Moses Electric Service

National Labor Relations Board - Board Decisions

Jul 16, 2001

334 N.L.R.B. 567 (N.L.R.B. 2001)

MOSES ELECTRIC SERVICE 567
Moses Electric Service, Inc. and its agent Express
Personnel Services and International Brother-
hood of Electrical Workers, Local Union No.
480, AFL–CIO. Cases 26–CA–17100 (formerly
15–CA–13483), 26–CA–17214 (formerly 15–CA–
13632), and 26–CA–17904
July 16, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, TRUESDALE,
AND WALSH
On December 31, 1997, Administrative Law Judge
Pargen Robertson issued the attached decision in this
proceeding. The Respondent filed exceptions and a sup-
porting brief. The General Counsel filed an answering
brief, and the Respondent filed a reply brief.
On May 11, 2000, the Board issued its decision in
FES, 331 NLRB 9, setting forth the framework for
analysis of refusal-to-hire and refusal-to-consider cases.
On June 7, 2000, the Board remanded this case to the
judge for further consideration in light of FES, including,
but not limited to, the determination of whether the ap-
plicants had the training and/or experience relevant to the
announced or generally known requirements of the open-
ings or whether those requirements were not uniformly
adhered to or were either pretextual or pretextually ap-
plied.
On March 29, 2001, the judge issued the attached sup-
plemental decision. The Respondent filed exceptions
and a supporting brief. The General Counsel filed an
answering brief, and the Respondent filed a reply brief.
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, find-
ings,1 and conclusions and to adopt the recommended
Orders as modified and set forth in full below.2

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 Counsel for the General Counsel brought to the attention of the
judge the fact that the supplemental decision did not include discrimi-
natee Stephen Alexander. The judge explained in an Erratum issued
April 16, 2001, that he limited his supplemental decision to the FES
issues and that he did not consider Alexander to be included in the
remand. The judge stated that his “findings, conclusions, remedy and
order in the original decision [remain] unchanged as to Stephen Alex-
ander.” As indicated above, we adopt the judge’s finding in his original
decision that Alexander was unlawfully discharged, and we have in-
cluded appropriate remedial relief for him in our Order. The judge’s
recommended Orders have also been modified in conformance with
Indian Hills Care Center, 321 NLRB 144 (1996), and Excel Container,
Inc., 325 NLRB 17 (1997).
In FES, supra, the Board held that to establish a dis-
criminatory refusal to hire, the General Counsel must
show the following at the hearing on the merits:

(1) that the respondent was hiring, or had concrete
plans to hire, at the time of the alleged unlawful con-
duct; (2) that the applicants had experience or training
relevant to the announced or generally known require-
ments of the positions for hire, or in the alternative, that
the employer has not adhered uniformly to such re-
quirements, or that the requirements were themselves
pretextual or were applied as a pretext for discrimina-
tion; and (3) that antiunion animus contributed to the
decision not to hire the applicants. [Footnotes omitted.]

[Supra at 12.] Once the General Counsel has established
these elements, the burden shifts to the employer to show
that it would not have hired the applicants even in the ab-
sence of their union affiliation or activities. Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982).
Here, the judge found, and we agree, that the General
Counsel met his burden under FES with respect to each
applicant. Further, based on his credibility resolutions,
the judge rejected the Respondent’s reasons for not hir-
ing each applicant. As stated in footnote 1, supra, the
Respondent has not shown that the judge’s credibility
findings are contrary to the clear preponderance of all the
relevant evidence. Accordingly, we find that the Re-
spondent failed to meet its burden of showing that it
would not have hired each of the applicants in the ab-
sence of their union affiliation. Therefore, we agree with
the judge that the Respondent violated Section 8(a)(3)
and (1) of the Act by discriminatorily refusing to hire
each of the applicants.
ORDER
The National Labor Relations Board orders that the
Respondent, Moses Electric Service, Inc., and its agent
Express Personnel Services, Jackson, Mississippi, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to hire job applicants on the
basis of their union affiliation or other protected activi-
ties.
(b) Discharging and refusing to reinstate its employees
because of their protected or union activities.

334 NLRB No. 78
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 568
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Mike Albritton, Wayne Divine, Jeff Grimes, James Horn,
Robert Lindsey, Brooks Martin, Carl Roberts, Mike
Pickett, John Smith, Jamie Steele, Steve Upton, and
Sammy Yelverton instatement to the positions for which
they applied or, if those positions no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges.
(b) Make Mike Albritton, Wayne Divine, Jeff Grimes,
James Horn, Robert Lindsey, Brooks Martin, Carl Rob-
erts, Mike Pickett, John Smith, Jamie Steele, Steve Up-
ton, and Sammy Yelverton whole for any loss of earn-
ings and other benefits suffered as a result of the unlaw-
ful discrimination against them, in the manner set forth in
the remedy section of the supplemental decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusal to hire
Mike Albritton, Wayne Divine, Jeff Grimes, James Horn,
Robert Lindsey, Brooks Martin, Carl Roberts, Mike
Pickett, John Smith, Jamie Steele, Steve Upton, and
Sammy Yelverton and, within 3 days thereafter notify
them in writing that this has been done and that the re-
fusal to hire them will not be used against them in any
way.
(d) Within 14 days from the date of this Order, offer
Stephen Alexander full reinstatement to his former posi-
tion or, if that position no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
(e) Make Stephen Alexander whole for any loss of
earnings and other benefits suffered as a result of the
unlawful discrimination against him, in the manner set
forth in the remedy section of the original decision.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
and refusal to reinstate Stephen Alexander and, within 3
days thereafter notify him in writing that this has been
done and that the discharge and refusal to reinstate will
not be used against him in any way.
(g) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records, including an electronic copy of such re-
cords if stored in electronic form, necessary to analyze
the amount of backpay due under the terms of this Order.
(h) Within 14 days after service by the Region, post at
its facility in Jackson, Mississippi, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 26,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent 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 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 current employees and former employees employed
by the Respondent at any time since May 2, 1995.
(i) 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 at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated 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
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT fail and refuse to hire job applicants
on the basis of their union affiliation or other protected
activities.
WE WILL NOT discharge and refuse to reinstate our
employees because of their protected or union activities.

3 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.”
MOSES ELECTRIC SERVICE 569
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 of the date of the Board’s
Order, offer Mike Albritton, Wayne Divine, Jeff Grimes,
James Horn, Robert Lindsey, Brooks Martin, Carl Rob-
erts, Mike Pickett, John Smith, Jaime Steele, Steve Up-
ton, and Sammy Yelverton instatement to the positions
for which they applied or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights and privi-
leges.
WE WILL make Mike Albritton, Wayne Divine, Jeff
Grimes, James Horn, Robert Lindsey, Brooks Martin,
Carl Roberts, Mike Pickett, John Smith, Jaime Steele,
Steve Upton, and Sammy Yelverton whole for any loss
of earnings and other benefits suffered as a result of our
unlawful discrimination against them.
WE WILL, within 14 days of the date of the Board’s
Order, remove from our files any reference to our unlaw-
ful refusal to hire Mike Albritton, Wayne Divine, Jeff
Grimes, James Horn, Robert Lindsey, Brooks Martin,
Carl Roberts, Mike Pickett, John Smith, Jamie Steele,
Steve Upton, and Sammy Yelverton, and WE WILL,
within 3 days thereafter, notify them in writing that this
has been done and that the refusal to hire them will not
be used against them in any way.
WE WILL, within 14 days of the date of the Board’s
Order, offer Stephen Alexander full reinstatement to his
former position or, if that position no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously en-
joyed.
WE WILL make Stephen Alexander whole for any loss
of earnings and other benefits suffered as a result of our
unlawful discrimination against him, less any interim
earnings, plus interest.
WE WILL, within 14 days of the date of the Board’s
Order, remove from our files any reference to our unlaw-
ful discharge of and refusal to reinstate Stephen Alexan-
der, and WE WILL, within 3 days thereafter, notify him
in writing that this has been done and that the discharge
and refusal to reinstate will not be used against him in
any way.

MOSES ELECTRIC SERVICE, INC. AND
ITS AGENT EXPRESS PERSONNEL
SERVICE

Michael W. Jeannette, Esq., for the General Counsel.
William I. Gault Jr., Esq. and David Thomas, Esq., of Jackson,
Mississippi, for the Respondent.
Wayne A. Divine, of Jackson, Mississippi, for the Charging
Party.
DECISION
PARGEN ROBERTSON, Administrative Law Judge. This
hearing was on August 12, 13, and 14, 1996, in Jackson, Mis-
sissippi. The charges were filed between October 20, 1995, and
February 13, 1997. Cases 26–CA–17100 and 26–CA–17214
were amended on August 23, 1996; and Case 26–CA–17904
was amended on April 8, 1997. An amended consolidated com-
plaint issued on April 22, 1997.
I. JURISDICTION
Respondent (Respondent or Moses Electric) admitted that it
is a corporation, with an office and place of business in Jack-
son, Mississippi, where it is an electrical contractor. It admitted
that during the 12 months ending July 31, 1996, it performed
services valued in excess of $50,000 in States other than Mis-
sissippi and it received at its Jackson place of business goods
valued in excess of $50,000 from directly outside Mississippi.
During the hearing Respondent admitted that it is an employer
engaged in commence as defined in the Act.
II. LABOR ORGANIZATIONS
Respondent admitted that International Brotherhood of Elec-
trical Workers, Local Union No. 480, AFL–CIO (the Union) is
a labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICE ALLEGATIONS
A. Refusal-to-Hire Allegation
The General Counsel alleged that Respondents failed and re-
fused to hire Jeff Grimes, Wayne Divine, Sammy Yelverton,
Carl Roberts, Robert Lindsey, James Horn, Mike Albritton,
Jamie Steele, John Smith, Brooks Martin, Steve Upton, and
Mike Pickett because of their union affiliation.
Moses Electric used the services of Express Personnel Ser-
vices (Express Personnel) in acquiring electrician employees.
All the alleged discriminatees filed applications with Express
Personnel beginning in May 1995. Some had filed earlier appli-
cations with Express Personnel.
Wayne Divine, Sammy Yelverton, James Horn, Mike Albrit-
ton, Jamie Steele, John Smith, Brooks Martin, Steve Upton, and
Michael Pickett filed application with Express Personnel in
1995. At the top of the first page of the applications each of the
above-named applicants wrote union organizer.
Jeff Grimes, Robert Lindsey, and Carl Roberts filed applica-
tions with Express Personnel during May 1995.
Although Express Personnel does not contest receipt of the
applications, Moses Electric contends that it did not receive
those applications from Express.
B. Discussion
The General Counsel alleged that Respondent refused to hire
job applicants, because of the Union and especially because the
applicants were thought to be union organizers. See NLRB v.
Town & Country Electric, 516 U.S. 85 (1995); Town & Coun-
try Electric, 309 NLRB 1250 (1992); Fluor Daniel, Inc., 311
NLRB 498 (1993); Casey Electric, 313 NLRB 774 (1994).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 570
Applicants as potential employees, are accorded the protec-
tion of the Act. NLRB v. Mount Desert Island Hospital, 695
F.2d 634, 638 (1st Cir. 1982).
As to whether Respondent illegally refused to employ some
or all of the alleged discriminatees, I shall first consider
whether the General Counsel proved prima facie that one of the
reasons why Respondent refused to hire any of the alleged dis-
criminatees was union activity. If I find in support of the Gen-
eral Counsel then I shall consider whether Respondent proved
that it would have refused to hire the alleged discriminatees in
the absence of his union activities. Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982); NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983).
See also J. E. Merit Constructors, 302 NLRB 301, 303–304
(1991), where in a refusal-to-hire allegation the test applied
included a requirement that the General Counsel prove (1) the
applications were filed during hiring stages; (2) the Respondent
knew of their source; (3) it harbored union animus; and (4) it
acted on that animus in failing to hire any from this group.
1. Were the applications filed during hiring stages?
a. Did the applicants apply for work?
The evidence is not in dispute as to the alleged discrimina-
tees applying for work with Express Personnel on the dates
shown above.
Findings and Conclusions
I find that the alleged discriminatees filed applications at Ex-
press Personnel on the following dates: Jeff Grimes on May 2,
1995; Wayne Divine and Sammy Yelverton on May 4, 1995;
Robert Lindsey and Carl Roberts on May 5, 1995; James Horn
on May 22, 1995; Mike Albritton and Jamie Steele on May 25,
1995; John Smith on May 30, 1995; Brooks Martin on June 7,
1995; Steve Upton on June 28, 1995; and Michael Pickett on
July 26, 1995.
b. Was Respondent hiring?
Joint Exhibit 1 shows that Respondent hired 87 electricians
between May 15, 1995, and July 21, 1997. Twenty-seven elec-
tricians were hired in 1995 after May 15.
Thomas Allen, a master journeyman electrician, applied for
work with Express Personnel Services in Jackson on May 1,
1995. He was interviewed and tested for drugs. Allen did noth-
ing to indicate that he had any connection with the Union.
About 2 weeks later he was phoned from Express Personnel
and asked if he was available to interview with Moses Electric.
Allen said that he was not available at the time suggested. Ex-
press phoned back and asked Allen if he was able to start work
2 days later. Allen declined saying that he had taken another
job and had been injured.
Jeff Grimes has been a journeyman electrician for 10 years.
He has been a member of the Union since 1983. On May 2,
1995, Grimes went to Express Personnel where he was inter-
viewed and given a drug test. Grimes did nothing to show that
he was connected with the Union. Tracy Elkins at Express, told
Grimes that Moses Electric was hiring. Grimes, Tommy Dear-
ing, Kenny Fitzhugh, and Robert Lindsey went to Moses Elec-
tric and applied for work. Dearing introduced Grimes to Dianne
Cook. Cook interviewed and gave Grimes an aptitude test. Di-
anne Cook told Grimes that Moses Electric was definitely look-
ing for electricians. Cook suggested that Grimes would run a
truck making service calls and that he would be on call 24
hours a day. Grimes told Cook that would not be a problem.
Dianne Cook told Grimes that they were hiring through Express
Personnel and Grimes told her that he had already been to Ex-
press and taken their drug test.
Charles Leggett was president of Respondent until 1996.
Leggett testified that before Shaw Case came on board in Re-
spondent’ human resources in 1996, Respondent hired its elec-
tricians through Express Personnel. Respondent also used other
employment services to employ electricians, including Snell-
ling and Jackson Temporaries. Leggett admitted that from time
to time he looked through Dianne Cook’s list showing electri-
cians applicants that had come to Respondent seeking work.
Charles Leggett testified that Respondent hired some former
employees during 1995. Former employees were not required
to fill out applications. Respondent occasionally would not
check their references. David Dunn phoned a number of elec-
tricians around July 1995 because they were on a list of former
employees. Dunn asked them to come back and work for Re-
spondent.
Dunn was Respondent’s project manager plus human re-
sources until Respondent hired Shaw Case. At that time his
duties including interviewing applicants and, after background
checks were completed, assigning the applicants to jobs. Dunn
was involved in hiring of some former employees including
Terry Johnson, Dan Currey, Eddie Orlanski, Mark McLaurin,
and James Loden in the summer and fall of 1995.
Shaw Case testified that he started working for Respondent
around August 1996. He was the human resources manager.
Before Respondent, Case worked for Snelling Personnel. Case
agreed that while he was with Snelling he referred Bo Lot,
Mike Finely, Randy Rogers, Calvin Brown, and James Hughes
to Moses Electric.
Respondent did not advertise in newspapers for electricians.
Charles Leggett testified that Respondent may have asked Ex-
press Personnel to place ads in newspaper for electricians be-
cause they were needed by Respondent.
Roger Swartz was a superintendent at Respondent from
April 1996 until March 1997. After finding their number in the
phone book Swartz called Respondent and talked to Dianne
Cook. Swartz asked Cook if Respondent was taking applica-
tions. She asked about his experience. Cook said the personnel
manager was not in. Within an hour David Dunn phoned
Swartz and asked him about his past experience. During the
following week, Swartz faxed his resume to Dunn. After that
week Swartz went to Respondent and took a test. He was told
by Dunn that the computer would grade his test but that from
their talking Dunn said that he knew Swartz would pass. He
said they had a superintendent that had scored only a 20 on the
test. Dunn told Swartz to report to work on April 9, 1996. Dur-
ing the time between then and April 9, Dunn phoned and told
Swartz what he had scored on the test.
When Swartz reported for work, Dunn sent him to Express
Personnel to complete some paperwork and take a urinalysis.
MOSES ELECTRIC SERVICE 571
Swartz did that and reported back to Dunn where he was as-
signed to a job in Yazoo City.
Swartz worked on several jobs for Respondent including
some on which he was superintendent. He had trouble keeping
a sufficient number of quality electricians. Occasionally, the
project manager would send an electrician and instruct Swartz
not to leave him by himself.
On one occasion while in front of the receptionist area at Re-
spondent’s office along with Gary Chamely, Charles Leggett
and Sam Kimbrough, Swartz asked why Respondent did not
run an ad in the paper because no good electrician needs to go
through the temporary personnel agencies. Swartz testified that
either Charles Leggett or Sam Kimbrough replied that if they
run an ad (Local) “480 would send 200 electricians in there to
fill out an application.”
When asked about telling Swartz that he would not put an ad
in a newspaper, Leggett testified that he did not recall making
such a statement but that he may have done so.
Findings and Credibility
I have considered the testimony of the various witnesses in
view of their demeanor and the full record. I was impressed
with the demeanor of Thomas Allen, Jeff Grimes, and Roger
Swartz and I credit their testimony. I do not credit the testi-
mony of Charles Leggett to the extent it conflicts with other
testimony. Among other things, I was not impressed with his
demeanor and I found Leggett’s testimony that Respondent is
not concerned with an applicant’s union connections was in-
credible in view of comments regarding unions in Respondent’s
handbook. I credit the admissions of Leggett, David Dunn, and
Shaw Case to the extent their testimony tends to show that Re-
spondent was hiring electricians during 1995.
Conclusions
The credited testimony of Thomas Allen and Jeff Grimes
proved that Respondent was definitely looking to hire electri-
cians during May 1995. Moreover, the record was not in dis-
pute but that Respondent actually hired 27 electricians from
May 15 through the end of 1995. I find that the credited evi-
dence established that Moses Electric was hiring electricians at
various times from early May 1995.
Was Express Personnel Hiring for Moses Electric?
Between May 15, 1995, and September 3, 1996, 22 out of a
total of 46 electricians hired by Respondent, were referred to
Respondent by Express Personnel.
Express Personnel ran advertisements for electricians and/or
electrician helpers in the local newspaper beginning on May 10,
1995, and extending through October 11, 1995. Although Tracy
(Elkins) Parks testified that Express Personnel was seeking
only electrician helpers, most of the newspaper advertisements
clearly included electricians as well as electrician helpers.
On May 4, 1995, Wayne Divine applied for work at Express
Personnel along with Sammy Yelverton, Eddie Moody, Gerald
Smith, and Bobby Born. Divine was interviewed by Tracy El-
kins and given a drug test. Elkins told him they were hiring at
Moses Electric.
On May 5, 1995, Sammy Yelverton went to Moses Electric
along with union members Robert Lindsey and Carl Roberts.
The three spoke with Dianne Cook. Sammy Yelverton intro-
duced them to Cook as being from the IBEW in Jackson.
Yelverton tape recorded the conversation with Cook. Cook told
the three that Respondent did all its hiring through Express
Services and they needed to go to Express and see Tracy. Cook
said that Tracy would get in touch with Leggett there at Re-
spondent about their applications. Cook asked and was told that
all three of them were journeymen. Dianne Cook wrote down
each of their names and phone numbers. She said that she
would pass that information on to Leggett.
Divine phoned Tracy Elkins on May 9, 1995, and recorded
the conversation. Tracy Elkins told Divine that Moses Electric
had all the applications and was reviewing them.
On May 10, 1995, Divine phoned Moses Electric and talked
with Dianne Cook. Cook asked him about his work experience.
She said that she had a list from Express Personnel and Di-
vine’s name was on the list.
As shown above, Wayne Divine has continued to check on
his application but he had not been contacted about going to
work. He tape recorded a phone conversation with Dianne
Cook on June 20, 1995. Divine told Cook that he was out of
Local 480. Dianne Cook told Divine that Respondent did all its
hiring through Express and that he should go there and see
Tracy. Divine told Cook that he had already gone to Express
and talked with Tracy. Cook asked if she had not already talked
with Divine. She asked for his address and phone number.
Cook told Divine that she was going to go ahead and put him
on her list and tell Leggett.
Divine phoned Express Personnel that same day and re-
corded that conversation. He was told that he was on the Ex-
press list.
As shown above Sammy Yelverton continued to check on
work during 1995, 1996, and 1997 with Express Personnel and
with Dianne Cook at Moses Electric. He also talked with Shaw
Case when Case was with Snelling. Case told him that the
newspaper ads for electricians concerned work with Moses
Electric. Sammy Yelverton testified that he checked with
Moses on February 24, 1997, with Benny Suggs, Wayne Di-
vine, Larry Watts, and Jerry Webb. On that occasion, Yelverton
asked to be placed on Respondent list of electricians seeking
work. Shaw Case, who was then working with Respondent, told
them that everyone interested in working for Respondent was
required to sign in each week in order to be considered for
work that week. Neither Yelverton nor any of the 11 alleged
refusal-to-hire discriminatees, was ever offered a job at Re-
spondent.
In May 1995, Kenneth Fitzhugh went out to Moses Electric
and talked with Dianne Cook. He recorded the conversation.
Cook told Fitzhugh that Respondent did all its hiring through
Express Services and that he needed to go there and talk with
Tracy. She said that Tracy would turn his application in to Leg-
gett there at Respondent.
Thomas Allen applied for work with Express Personnel Ser-
vices in Jackson on May 1, 1995. Allen did nothing to indicate
that he had any connection with the Union. About 2 weeks later
Express Personnel suggested he interview with Moses Electric.
Allen was not available for the interview but Express Personnel
phoned back and asked Allen if he was able to start work. Allen
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 572
declined saying that he had taken another job and had been
injured.
Jeff Grimes went to Express Personnel where he was inter-
viewed and given a drug test. Grimes did nothing to show that
he was connected with the Union. Tracy at Express Personnel
told Grimes that Moses Electric was hiring. Grimes, Tommy
Dearing, Kenny Fitzhugh, and Robert Lindsey went to Respon-
dent and applied for work. Dearing introduced Grimes to Di-
anne Cook. Dianne Cook told Grimes that Moses Electric was
definitely looking for electricians. Cook suggested that Grimes
would run a truck making service calls and that he would be on
call 24 hours a day.
Dianne Cook testified that she worked at Moses Electric
from 1992 until January 1997. In 1995, whenever applicants
came to Respondent, Cook took each applicant’s name and
address then referred each applicant to Express Personnel. She
maintained those names and addresses in a folder which was
available to Respondent. She testified that a Grimes came to
Respondent with Dearing.
Stephen Scully is the owner of the Express Personnel fran-
chise in Jackson. Express Personnel is a staffing company.
They actually employ various craftsmen for referral to different
clients. Express Personnel did refer electricians to Respondent
among other clients. They did not have a written contract with
Respondent but an agreement to charge 40 percent for the Re-
spondent referrals. Express Personnel does not screen electri-
cian applicants on the basis of ability through tests. However,
Express does try to check a minimum of two of each appli-
cant’s references. In practice they are not able to always check
two references. In May 1995, Express Personnel’s supervisors
included Tracy (Elkins) Parks. Tracy Elkins was primarily re-
sponsible for the Moses Electric account.
Charles Leggett was president of Respondent until 1996. Re-
spondent hired its electricians through Express Personnel. On
occasion Respondent would contact an applicant’s references
after interviewing the applicant. Respondent also used other
employment services to employ electricians including Snellling
and Jackson Temporaries. Leggett admitted that from time to
time he looked through Dianne Cook’s list showing electricians
applicants that had come to Respondent seeking work.
Norma Meltin was construction secretary to Respondent
COO Sam Kimbrough from October 1995 until October 1996.
She was told to refer job applicants to Tracy at Express Person-
nel.
Respondent did not advertise in newspapers for electricians.
Charles Leggett testified that Respondent may have asked Ex-
press Personnel to place ads in newspaper for electricians be-
cause they were needed by Respondent.
Charles Leggett denied that Respondent received job
applications from Express Personnel for Wayne Divine,
Sammy Yelverton, Carl Roberts, Robert Lindsey, Mike Albrit-
ton, James Horn, Jamie Steele, John Smith, Brooks Martin,
Steve Upton, Mike Pickett, and Jeff Grimes.
On one occasion, Roger Swartz asked Gary Chamely,
Charles Leggett, and Sam Kimbrough why Respondent did not
run an ad in the paper because no good electrician needs to go
through the temporary personnel agencies. Either Charles Leg-
gett or Sam Kimbrough replied that if they run an ad (Local)
“480 would send 200 electricians in there to fill out an applica-
tion.”
Findings and Credibility
As shown above, I have considered the testimony of the
various witnesses in view of their demeanor and the full record.
I was impressed with the demeanor of Wayne Divine, Sammy
Yelverton, Kenneth Fitzhugh, Thomas Allen, Jeff Grimes, Di-
anne Cook, Roger Swartz, and Norma Meltin. To a large extent
their testimony is not in conflict. As shown herein, I do not
credit the testimony of Tracy (Elkins) Parks or Charles Leggett
other than admissions or testimony that accords with credited
evidence.
In some instances tape recordings were introduced. As to
those matters I credit the tape recording in full and do not credit
any testimony that conflicts with the recording.
Conclusions
The full record illustrated that Respondent was hiring elec-
tricians through Express Personnel during 1995 and 1996.
There is a dispute as to what happened to the applications of
the alleged discriminatees after those applications were filed
with Express Personnel. Charles Leggett testified that Express
Personnel did not refer the alleged discriminatees’ applications
to Respondent.
However, there is evidence that Respondent knew of the ap-
plications of the alleged discriminatees. Jeff Grimes credibly
testified that he talked with Dianne Cook at Respondent around
May 2, 1995. Cook told Grimes that Respondent was definitely
looking for electricians and that Respondent hired through Ex-
press Personnel. Wayne Divine credibly testified that when he
was interviewed by Tracy Elkins at Express Personnel on May
4, 1995, Elkins told him that Express was hiring for Moses
Electric. In a tape recorded conversation on May 5, 1995, Di-
anne Cook told Sammy Yelverton, Carl Roberts, and Robert
Lindsey that Respondent was hiring through Express Personnel
and that Express would get in touch with Charles Leggett if
Yelverton, Roberts, and Lindsey filed applications at Express.
Cook told the three that she would inform Leggett that they had
come in looking for work.
In another tape recorded conversation, Dianne Cook talked
with Kenneth Fitzhugh on May 5, 1995. Cook told Fitzhugh
that Respondent did all its hiring of electricians through Ex-
press Personnel, that Fitzhugh should apply at Express Person-
nel and that Express would sent his application to Leggett at
Respondent. Cook wrote down Fitzhugh’s name, the fact that
he was a journeyman and his phone number. In another tape
recorded conversation, Tracy Elkins told Wayne Divine on
May 9, 1995, that she had sent Charles Leggett at Respondent
all their applications. On May 10, Divine talked with Dianne
Cook at Respondent. Cook told him that she had a list of appli-
cants from Express Personnel and that Divine’s name was on
the list.
Around mid-May 1995, Express Personnel asked Thomas
Allen if he was immediately available to start work with Moses
Electric. During a recorded phoned conversation on June 20,
1995, Dianne Cook told Wayne Divine that she would put his
name on her list to give to Charles Leggett. Divine phoned
MOSES ELECTRIC SERVICE 573
Express Personnel that same day. Express acknowledged to
Divine that his name was on their list.
In view of the full record and especially the above evidence,
I find that Express Personnel did act on behalf of Moses Elec-
tric in taking the applications of the 12 alleged discriminatees
during 1995 and referring those applications to Respondent for
consideration. In making that determination I have fully con-
sidered comments and actions by Dianne Cook and Tracy (El-
kins) Parks. Cook and Parks were the two employees of Re-
spondent and Express, that were directly involved in the selec-
tion of electricians for Respondent. Their comments and actions
established that Express was referring electricians to Respon-
dent and that Express had informed Respondent of the applica-
tions of the alleged discriminatees. I find that the above and the
full credited record proved that Express Personnel was acting as
agent for Moses Electric at material times, in the employment
of electricians. Harvey Mfg., Inc., 309 NLRB 465 fn. 4 (1992);
M. K. Morse Co., 302 NLRB 924 (1991); Alliance Rubber Co.,
286 NLRB 645 (1987).
2. Did Respondent know the alleged discriminatees were affili-
ated with the Union?
Wayne Divine, the Union’s assistant business manager, has
applied for work at Express Personnel beginning in 1994.
Divine and Sammy Yelverton filed applications with Express
Personnel on May 4, 1995. Wayne Divine, Sammy Yelverton,
Eddie Moody, Gerald Smith, and Bobby Born were each wear-
ing a 3-inch badge that read “I’m a union organizer—IBEW,
Local 480.” Divine was interviewed by Tracy Elkins and given
a drug test. Elkins told him they were hiring at Moses Electric.
James Horn filed a May 22, 1995 application. Mike Albritton
and Jamie Steele filed applications on May 25, 1995. John
Smith filed an application on May 30, 1995. Brooks Martin
filed an application on June 7, 1995. Steve Upton filed a June
28, 1995 application. Michael Pickett filed an application on
July 26, 1995. At the top of the first page on each of those ap-
plications, the respective applicant wrote union organizer.
Sammy Yelverton was interviewed at Express Personnel by
someone named Scott. Yelverton had written union organizer
on his application and Scott asked Yelverton what that meant.
Yelverton replied that he intended to try and organize Moses
Electric but that would not interfere with his work for Respon-
dent and he would do organizing during breaks, before and
after work. Scott told Yelverton that his application looked
good. Express Personnel administered a drug test to Yelverton.
Yelverton had met with Charles Leggett, president of Moses
Electric, in early April 1995 in regard to a boat Leggett was
selling. During their conversation Yelverton asked Leggett
about Moses Electric signing a working agreement with the
Union. Leggett said that he did not believe he wanted anything
to do with it, that he felt that Laverne Tucker wanted to put him
out of business. Yelverton told Leggett that Tucker was no
longer with the Union and that the Union would treat Leggett
fairly.
In May 1995, Yelverton along with Mike Albritton, Jami
Steele, Wayne Divine, and Tommy Dearing went to Express
Personnel. Albritton and Steele filled out job applications and
wrote union organizer at the top of the first page of their appli-
cations. Yelverton, Divine, and Dearing asked if their applica-
tions were still active. They were told the applications would be
active for 1 year.
Findings and Credibility
As shown above, I have considered the testimony of the
various witnesses in view of their demeanor and the full record.
I credit the testimony of Wayne Divine, Sammy Yelverton,
Kenneth Fitzhugh, and Roger Swartz. To a large extent their
testimony is not in conflict.
In some instances tape recordings were introduced. As to
those matters I credit the tape recording in full and do not credit
any testimony that conflicts with the recording.
As shown above I do not credit the testimony of Charles
Leggett to the extent it conflicts with other testimony.
Conclusions
In view of that evidence and my findings above, I find that
Respondent and Express Personnel knew at the time of their
applications, that Divine, Yelverton, Horn, Albritton, Smith,
Steele, Martin, Upton, and Pickett were union organizers. That
information was written at the top of the first page of each of
those applications.
Robert Lindsey and Carl Roberts went to Moses Electric
with Sammy Yelverton on May 5, 1995. Yelverton had submit-
ted an application to Express Personnel on May 4 that identi-
fied him as a union organizer and showed that he was presently
employed by the Union. When Yelverton met with Dianne
Cook at Respondent on May 5 he said that he, Lindsey and
Roberts were with the IBEW here in Jackson. That conversa-
tion was recorded and is in evidence. After leaving Respondent,
Lindsey and Roberts submitted their applications to Express
Personnel that same day. Robert Lindsey wrote on his applica-
tion that he graduated from J.A.T.C., Local Union # 480. Carl
Roberts wrote on his application that he graduated from NECA,
IBEW Local 480.
Jeff Grimes filed an application with Express Personnel on
May 2, 1995. Grimes has been a journeyman electrician for 10
years. He has been a member of the Union since 1983. On May
2, 1995, Wayne Divine at the Union suggested to Grimes that
Express Personnel was advertising for journeyman electricians
in the local newspaper. Grimes went to Express Personnel
where he was interviewed and given a drug test. Grimes did
nothing to show that he was connected with the Union. Tracy at
Express Personnel told Grimes that Moses Electric was hiring.
Grimes returned to the union hall where he met Tommy Dear-
ing. He and Dearing along with Kenny Fitzhugh and Robert
Lindsey went to Respondent and applied for work. Dearing
introduced Grimes to Dianne Cook. Dianne interviewed and
gave Grimes an aptitude test. Cook told him that Respondent
was definitely looking for electricians. Dianne Cook suggested
that Grimes would run a truck making service calls and that he
would be on call 24 hours a day. Grimes told Cook that would
not be a problem. Cook told Grimes that they were hiring
through Express Personnel and Grimes told her that he had
already been to Express and taken their drug test.
Dianne Cook testified that she recalled Grimes coming to
Respondent looking for work with Tommy Dearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 574
Jeff Grimes did not hear from Respondent. He phoned Ex-
press Personnel every week over a 4-week period but was never
connected to Tracy. He told her supervisor that he was still
interested in work. He was told that he was being put on a list.
On the last occasion that Grimes called he told Tracy’s supervi-
sor that he felt they weren’t sending him for interviews because
they felt he was a union activist and that he planned to file
charges against them. That testimony which was not disputed,
shows that from early June 1995, Express Personnel knew that
Grimes suspected that he was not being referred for work be-
cause of the Union and that he planned to file charges against
Express.
In view of the above I find that Respondent was aware that
all 12 alleged discriminatees were affiliated with the Union and
that alleged discriminatee Jeff Grimes may file charges because
of his failure to be referred for work.
3. Did Respondent harbor union animus?
Moses Electric employee handbook includes the following at
section 1.5:

1.5 A FEW WORDS ABOUT UNIONS
Our Merit Shop Firm, like more than eighty percent of
all businesses and institutions throughout the United
States, is union-free. There is always a chance, however,
that in the future a labor organization will try to persuade
some of our employees to sign union authorization cards.
For this reason, it is important that you understand our
position concerning unions.
To say it simply and clearly, while you have the legal
right to join a labor union, you also have the legal right
NOT to join a union. We believe that remaining union-free
has definite advantages for you, our employees. For in-
stance, along with labor unions can come many changes
such as: (a) restrictions on your individual freedom to dis-
cuss and solve your problems directly with us and without
union involvement; (b) your compulsory union member-
ship and dues; (c) union discipline, fines, suspension and
expulsion from membership; ((d) union control over you
through the union’s constitution and bylaws; (e) union
politics; (f) union coercion and violence; (g) union hypoc-
risy; (h) union strikes and strike assessments; and (I) re-
sulting job replacements, sometimes temporarily, some-
times forever. In other words—unions have fostered tur-
moil, job insecurity, dollars out of workers’ pockets, and
loss of independence.
So if a labor union organizer ever asks you to sign a
union authorization card, remember that it is a legally
binding document in which you sign away your right of
individual freedom in our workplace for exclusive repre-
sentation by that union. We hop you would hesitate—and
think carefully—before signing any such union pledge
card. It could be your first step into the turmoil described
above. It might be like signing a blank check and giving it
to a stranger.
We have the ability, the desire, the expertise, and the
personnel to solve our problems and move forward by
working together in the Merit Shop Way—without inter-
ference from union outsiders. Based on these facts, we be-
lieve a labor union is unnecessary and unwanted here at
Moses Electric Service, Inc.

Charles Leggett admitted that Mississippi is a right-to-work
State and that Respondent employees can not be forced to join a
labor organization.
Norma Meltin was construction secretary to Moses Electric
COO Sam Kimbrough from October 1995 until October 1996.
After Shaw Case was hired around August 1996 Meltin over-
heard a conversation in the hallway near her office involving
Hux, Kimbrough, Leggett, and Shaw Case. They instructed
Shaw Case to find out if applicants had any union affiliation.
Roger Dale Swartz Jr. was a superintendent at Respondent
from April 1996 until March 1997. Swartz had trouble keeping
a sufficient number of quality electricians. Occasionally, the
project manager would send an electrician and instruct Swartz
not to leave him by himself.
On one occasion while in front of the receptionist area at Re-
spondent’s office along with Gary Chamely, Charles Leggett,
and Sam Kimbrough, Swartz asked why Respondent did not
run an ad in the paper because no good electrician needs to go
through the temporary personnel agencies. Swartz testified that
either Charles Leggett or Sam Kimbrough replied that if they
run an ad (Local) “480 would send 200 electricians in there to
fill out an application.”
As shown herein, Sammy Yelverton met with Charles Leg-
gett in early April 1995 and Yelverton asked Leggett about
Respondent signing a working agreement with the Union. Leg-
gett said that he did not believe he wanted anything to do with
it, that he felt that Laverne Tucker wanted to put him out of
business. Yelverton told Leggett that Tucker was no longer
with the Union and that the Union would treat Leggett fairly.
Leggett testified that Sammy Yelverton’s testimony regard-
ing a conversation between the two of them when Leggett was
trying to sell a boat was totally false. He admitted that Yelver-
ton did talk to him about his boat and that Yelverton said there
was another matter that he would like to discuss with Leggett.
Leggett replied, “[W]e’ll talk about that later” and that was the
end of the conversation.
Findings and Credibility
As shown above, I have considered the testimony of the
various witnesses in view of their demeanor and the full record.
I credit the testimony of Norma Meltin, Sammy Yelverton, and
Roger Swartz in view of their demeanor and the full record. In
view of his demeanor I do not credit the testimony of Charles
Leggett. His testimony was frequently inconsistent with estab-
lished evidence including comments in Respondent’s employee
handbook. Additionally, I do not credit the testimony of Tracy
(Elkins) Parks in view of her demeanor and the full record.
Conclusions
The above evidence established that Respondent was
strongly opposed to the Union. Contrary to the testimony of
Charles Leggett, I find that Respondent was motivated by union
animus.
MOSES ELECTRIC SERVICE 575
4. Did Respondent refuse to hire the applicants because of
its animus?
As shown above either Charles Leggett or Sam Kimbrough
told Roger Swartz that if Moses Electric ran ad Local “480
would send 200 electricians in there to fill out an application.”
When Sammy Yelverton talked with Charles Leggett in early
April 1995, Leggett said that he did not believe he wanted any-
thing to do with the Union and that he felt that Laverne Tucker
wanted to put him out of business. Yelverton told Leggett that
Tucker was no longer with the Union and that the Union would
treat Leggett fairly.
After Shaw Case was hired around August 1996, Norma
Meltin overheard a conversation in the hallway near her office
involving Hux, Kimbrough, Leggett, and Shaw Case. They
instructed Shaw Case to find out if applicants had any union
affiliation.
Findings and Credibility
As shown above, I have considered the testimony of the
various witnesses in view of their demeanor and the full record.
I credit the testimony of Roger Swartz, Sammy Yelverton, and
Norma Meltin in view of their demeanor and the full record. I
do not credit the testimony of Charles Leggett or Tracy (Elkins)
Parks.
Conclusions
The above and the full record show that Respondent was set
on a course of refusing to hire people shown to be interested in
organizing for the Union. As shown above the alleged dis-
criminatees applied for work with Respondent, Respondent
knew of their union affiliation, Respondent was strongly op-
posed to the Union and expressed a willingness to break the law
and avoid hiring union people. In view of that evidence, I find
that the General Counsel made a prima facie case that Respon-
dent refused to hire any of the alleged discriminatees because
of the Union. Fluor Daniel, Inc., 311 NLRB 498, 500 (1993).
5. Would Respondent have refused to hire the alleged discrimi-
natees in the absence of union affiliation?
I shall consider whether the record shows that Respondent
would have failed to employ the alleged discriminatees in the
absence of the Union. See Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982); NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983); Northport Health Services v. NLRB, 961
F.2d 1547 (11th Cir. 1992).
Respondent argued that Respondent had a nondiscriminatory
hiring policy in place in the summer of 1995, that it consis-
tently applied that policy and that none of the alleged discrimi-
natees were hired under its policy.
Respondent called William Hux who testified that Respon-
dent’s hiring policy was to first look to transfer current em-
ployees; secondly to look to employ former employees; third to
look to referrals from supervisors; fourth to referrals from cur-
rent employees; and finally to look to outside sources.
The record evidence called Hux’s testimony into question.
The undisputed testimony of Hux as well as others including
Charles Leggett, showed that Respondent did all its hiring
through Express Personnel and other employment services.
As to the testimony that Respondent first looks to transfer
current employees. However, the credited record proved that
Respondent hired from outside beginning as early as May 15,
1995. As shown above, Hux contended that after transfers,
Respondent looked to hire former employees, to supervisor
referrals, to current employee referrals, and to outside sources.
However, Respondent conceded that “any and all prospective
applicants who contacted Respondent directly were referred
Express to fill out an application.” That included even those
former employees of Respondent that were seeking to be re-
hired.
Joint Exhibit 1 shows that Respondent hired or promoted 27
employees to electrician positions in 1995 after May 15. Four-
teen of those 27 were referred to Respondent by Express or
Snelling employment services. Three of those referred by Ex-
press were former employees of Respondent. A total of 7 of the
27 were former Respondent’s employees.
After testifying as to Respondent’ policy in filling vacant po-
sitions, William Hux testified that Bo Lott and Mike Finely
were hired after submitting applications to Snelling in their
Monroe, Louisiana office. Lott and Finely as well as other ap-
plicants, R. J. Campbell, James Fleming (a promotion), and
Bobby Floyd, were from Greenwood, Mississippi, and could
work on a project in Greenwood without costing Respondent
per diem. Mike Jackson was hired because he lived in
McComb, Mississippi, and could work on a project there with-
out charging Respondent per diem. Calvin Brown lived in
Yazoo City. Respondent avoided per diem charges by hiring
Brown and assigning him to work on a project in Yazoo City.
Randy Rogers (referred by Snelling) was hired as a service
technician because he had particular qualities for that job.
James Hughes, another referral from Snelling was also hired
because he appeared to have particular qualities as a service
technician. As noted above, alleged discriminatee Jeff Grimes
was not selected as service representative even though Dianne
Cook expressed that Grimes was well suited for the position.
Larry Gill was hired because Respondent could get him for
$10.50 an hour. However, Charles Leggett testified that Re-
spondent did not reject applicants even though they asked for
too much money on their application.
Hux testified that Jerry Tillery was actually hired as a super-
visor instead of an electrician and that Dennis Mink was re-
ferred by a supervisor. Mink was referred by COO Sam
Kimbrough and Mink had previously worked for Respondent.
Nevertheless, Hux’s testimony does nothing to explain why
the above-mentioned applicants were selected instead of any of
the alleged discriminatees. As shown herein, Respondent took
the position that it never received any of the 12 alleged dis-
criminatees’ applications. Therefore, Respondent could not
determine how those applicants compared with others in regard
to where Respondent had projects that needed electricians or
whether Respondent could get a good electrician at a cheap
price.
The full record proves that Respondent engaged in pretext.
The credited evidence as shown above, proved that Respondent
was in need of electricians at various times after May 2, 1995;
that Respondent attempted to hire electricians through Express
Personnel and through newspaper advertisements run by Ex-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 576
press Personnel; and that Respondent hired some and attempted
to hire others that responded to those ads and were not referrals
by supervisors and employees. The record proved that Respon-
dent was aware of the applications of the 12 alleged discrimina-
tees but refused to consider for employment or even interview
any of those applicants. Despite its showing that factors other
than its alleged hiring priorities, played a part in its hiring deci-
sions, Respondent refused to consider any similar or additional
qualifications of the alleged discriminatees. Wright Line, supra;
Waste Steam Management, 315 NLRB 1088 (1994); Harmony
Corp., 301 NLRB 578 (1991); Pitt Ohio Express, 322 NLRB
867, 868 (1997).
I find that the General Counsel has proved that Respondent
refused to consider the employee applications of Jeff Grimes,
Wayne Divine, Sammy Yelverton, Carl Roberts, Robert
Lindsey, James Horn, Mike Albritton, Jamie Steele, John
Smith, Brooks Martin, Steve Upton, and Mike Pickett because
of their union affiliation and Respondent failed to prove that it
would have rejected consideration of those applications in the
absence of union affiliation. Wright Line, supra.
Respondent argued that the alleged discriminatees are not
entitled to preferential treatment over other applicants. How-
ever, as found above, the discriminatees were not afforded
equal treatment. Unlike others not shown to Respondent to be
affiliated with the Union, the alleged discriminatees were given
no consideration toward employment. Respondent argued that
the Union’s employees were not bona fide applicants. How-
ever, under similar circumstances the Board and the courts have
refused to find union organizers are not bona fide applicants.
Bay Control Services, 315 NLRB 30 fn. 2 (1994); NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983);
Wright Line, supra.
Respondent also argued that Sammy Yelverton failed in Re-
spondent’s test and that Yelverton lied on his job application.
However, the record showed that Respondent has hired others
that failed in their test. Charles Leggett admitted that a project
manager had placed one employee on the payroll even though
the employee failed the test. As shown above Roger Swartz
credibly testified that David Dunn told him that one supervisor
had been employed even though he scored 20 on the test. That
is 25 points below the minimum acceptable score of 45. As to
Yelverton lying on his application, that matter arose when
Yelverton talked with Shaw Case and filed an application di-
rectly with Respondent on March 3, 1997, after the instant
charges were pending. The issue of disqualification for em-
ployment on the basis of that application may, if relevant, arise
in compliance proceedings. Here, I find that Respondent’ re-
fusal to consider Yelverton as well as the other alleged dis-
criminatees, for employment after his May 4, 1995 application
was illegal.
IV. THE ALLEGED ILLEGAL DISCHARGE OF STEPHEN
ALEXANDER
The General Counsel alleged that Respondent discharged
Stephen Alexander on January 9, 1997, because of his union
and protected concerted activities.
Stephen Alexander testified that he has been an electrician
for over 6 years. He has been a journeyman for 19 months. At
the time of the hearing Alexander had been a member of the
Union for 7 months. Alexander was not hired by Respondent
after he filled out a job application with Express Personnel in
Jackson on April 18, 1995. Charges in Case 26–CA–17100
(formerly 15–CA–13483), filed on October 20, 1995, alleged
that Respondent and Express Personnel illegally refused to
employ several alleged discriminates including Steve (sic)
Alexander. The charge listed five named applicants on March
28, 1994; one named applicant on May 1, 1995; six named
applicants on May 4, 1995; one named applicant on May 9,
1995; one named applicant on May 18, 1995; one named appli-
cant on May 22, 1995; five named applicants on May 25, 1995;
two named applicants on May 30, 1995; one named applicant
on June 7; one on June 8; one on June 28; two named appli-
cants on July 26; and one named applicant on August 10, 1995.
Steve Alexander was one of the two named alleged discrimina-
tees on July 26, 1995.
In the summer of 1996, Wayne Divine asked Alexander to
do some organizing for the Union. Alexander went to Respon-
dent where he saw an acquaintance, William Hux. Back in the
late 1980s Alexander and Hux worked for a company called
Interoffice. Hux told Alexander that Respondent did all their
hiring through Express Personnel. On August 28, 1996, Alex-
ander filed an application at Express Personnel. On that same
afternoon Alexander was phoned by David Dunn. Dunn, a pro-
ject manager, handled Respondent’s human resources before
Shaw Case. Dunn asked Alexander to come by Moses Electric
for an interview and a test. Alexander did that and he was hired.
Alexander did nothing to indicate to Hux, Dunn, or Express
Personnel that he was connected to the Union.
Charles Leggett testified that Respondent hired Stephen
Alexander in August or September 1996 knowing that Alexan-
der had been listed as a discriminatee on a prior unfair labor
practice charge.
Alexander continued to work for Respondent without inci-
dent until December 1996. Then the Union wrote Moses Elec-
tric that “Stephen S. Alexander, an employee of (Moses)” was a
union organizer.
Alexander was discharged on January 9, 1997. His separa-
tion notice was checked “unacceptable conduct,” and “violation
of company policy” was written in under remarks. The form
showed that Alexander was not eligible for rehire and the writ-
ten remark was “repeated violation of company policies.”
Discussion
In consideration of the alleged illegal termination of Alexan-
der, I shall first consider whether the General Counsel proved
prima facie that one of the reasons for the action was union
activity. If I find in support of the General Counsel then I shall
consider whether Respondent proved that it would have dis-
charged Alexander in the absence of his union activities.
Wright Line, supra; NLRB v. Transportation Management
Corp., supra. See Electromedics, Inc., 299 NLRB 928 (1990),
affd. 947 F.2d 953 (10th Cir. 1991).
I shall consider (1) whether the alleged discriminatee en-
gaged in union activities; (2) whether Respondent had knowl-
edge; (3) whether Respondent’s actions were motivated by
union animus; and (4) whether Alexander’s discharge had the
MOSES ELECTRIC SERVICE 577
effect of encouraging or discouraging membership in a labor
organization. Electromedics, Inc., 299 NLRB at 937.
A. Did Alexander Engage in Union Activities?
Steve (not Stephen) Alexander was named as one of several
alleged discriminatees in an unfair labor practice charge (Case
26–CA–17100) filed against Respondent and Express Person-
nel on October 20, 1995. That charge involved refusal-to-hire
allegations. Alexander had not been an employee of Respon-
dent.
In the summer of 1996, Wayne Divine asked Alexander to
do some organizing for the Union. Divine told Alexander that
Respondent was hiring. As shown above Alexander went to
Respondent then to Express Personnel, where he applied for
work but he did nothing to show that he was affiliated with the
Union.
In December and January, Alexander wore items to work
that demonstrated support for the Union. On December 13,
1996, the Union wrote Respondent that one of their employees,
Stephen Alexander, is a union organizer.
Findings and Credibility
There was no dispute in the record as to the above-
mentioned facts.
Conclusions
I find that the record evidence shows that Stephen Alexander
engaged in union activity.
B. Did Respondent Know of Alexander’s Union Activities?
As mentioned above, Alexander was named as one of many
alleged discriminatees in an unfair labor practice charge filed
against Respondent on October 20, 1995. He was listed as
“Steve Alexander.” That charge was amended on August 23,
1996, and Alexander’s name was not listed in the amended
charge.
Charles Leggett testified that Respondent hired Stephen
Alexander in August or September 1996 knowing that Alexan-
der had been listed as a discriminatee on a prior unfair labor
practice charge.
The Union wrote and faxed Moses Electric on December 13,
1996, that Respondent’ employees were interested in authoriz-
ing the Union to represent them. That letter included the fol-
lowing paragraph:

Additionally, we wanted to notify you that Mr. Stephen S.
Alexander, an employee of yours, is an organizer for the un-
ion. I am sure that you will afford him every protection guar-
anteed by the federal labor laws and will not otherwise inter-
fere in his employment relationship with you on account of his
union affiliation.

During December 1996, Alexander wore a union pencil clip
in his belt buckle or in his shirt pocket. His foreman, Ferd
Rogers, saw the union pencil clip.
On January 4, 1997, Alexander reported to work overtime at
a Respondent jobsite at Albertsons Store in Jackson. Alexander
was wearing an IBEW shirt under his jacket. The shirt became
apparent when Alexander removed his jacket around 9 a.m.
After lunch an employee named Scott Hemphill was coming
toward Alexander. Hemphill was on a scissor lift. Hemphill
yelled out “IBEW.” Alexander asked Scott if he wanted to join.
Scott replied, “No, fuck you. Fuck Wayne Divine and fuck
IBEW.” Alexander asked Scott if there was a problem there.
Scott replied, “We don’t want a fucking union. All ya’ll can
kiss my ass.” Hemphill got off his scissor lift. Alexander saw
his superintendent, Jeff Jones, but Jones seemed to ignore the
occurrence.
Alexander’s supervisor on that job was Jeff Jones. Jones tes-
tified that he did not witness the confrontation between Alex-
ander and Hemphill but he admitted that he did hear Hemphill
yell, “[y]ou can tell Wayne Divine to suck my dick.” Jones
admitted that he came up in time to see Alexander walk away
from Hemphill. Alexander walked past Jones, went over and
picked up all his tools and told Jones that he had had enough
and was leaving.
Findings and Credibility
As shown above, I find Charles Leggett was not a credible
witness. I do not credit his testimony that Respondent was
aware that Alexander had been named as a discriminatee in an
unfair labor practice charge. The Case 26–CA–17100 charge
alleged that Respondent and Express Personnel had refused to
employ a number of individuals including several paid union
agents. Steve Scully, owner of Express Personnel, testified that
Express received thousands of applicants. Alexander, unlike
other alleged discriminatees was not an employee of the Union
and, as shown above, his first name was misspelled in the
charge. However, William Hux also testified that Respondent
was aware that Alexander had been named in the October 1995
charge. I do not discredit Hux.
The evidence regarding the Union’s December 13, 1996 let-
ter to Respondent is undisputed and credited. I was impressed
with the demeanor of Stephen Alexander. In view of his de-
meanor and the full record I credit his testimony regarding the
January 4, 1997 incident at the Albertsons store jobsite in Jack-
son. Both Alexander and Supervisor Jeff Jones testified to the
effect that even though Jones was present when Alexander
walked away from Scott Hemphill, Jones did nothing.
Conclusions
Despite my determination that Alexander was named in a
charge filed on October 20, 1995, and that Respondent was
aware of that charge, the record shows that Respondent did not
learn that Alexander was a union organizer until it received the
Union’s December 13, 1996 letter.
C. Was Respondent Motivated by Union Animus and did
Alexander’s Discharge have the Effect of Discouraging
Union Activities?
As shown above, the Moses Electric employee handbook in-
cludes the following at section 1.5:

1.5 A FEW WORDS ABOUT UNIONS
Our Merit Shop Firm, like more than eighty percent of
all businesses and institutions throughout the United
States, is union-free. There is always a chance, however,
that in the future a labor organization will try to persuade
some of our employees to sign union authorization cards.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 578
For this reason, it is important that you understand our
position concerning unions.
To say it simply and clearly, while you have the legal
right to join a labor union, you also have the legal right
NOT to join a union. We believe that remaining union-free
has definite advantages for you, our employees. For in-
stance, along with labor unions can come many changes
such as: (a) restrictions on your individual freedom to dis-
cuss and solve your problems directly with us and without
union involvement; (b) your compulsory union member-
ship and dues; (c) union discipline, fines, suspension and
expulsion from membership; (d) union control over you
through the union’s constitution and bylaws; (e) union
politics; (f) union coercion and violence; (g) union hypoc-
risy; (h) union strikes and strike assessments; and (I) re-
sulting job replacements, sometimes temporarily, some-
times forever. In other words—unions have fostered tur-
moil, job insecurity, dollars out of workers’ pockets, and
loss of independence.
So if a labor union organizer ever asks you to sign a
union authorization card, remember that it is a legally
binding document in which you sign away your right of
individual freedom in our workplace for exclusive repre-
sentation by that union. We hop you would hesitate—and
think carefully—before signing any such union pledge
card. It could be your first step into the turmoil described
above. It might be like signing a blank check and giving it
to a stranger.
We have the ability, the desire, the expertise, and the
personnel to solve our problems and move forward by
working together in the Merit Shop Way—without inter-
ference from union outsiders. Based on these facts, we be-
lieve a labor union is unnecessary and unwanted here at
Moses Electric Service, Inc.

Charles Leggett admitted that Mississippi is a right-to-work
State and that Respondent employees can not be forced to join a
labor organization.
Norma Meltin was construction secretary to Sam Kimbrough
from October 1995 until October 1996. At that time Kimbrough
was the COO at Respondent. Meltin worked in the same build-
ing with Diane Cook as well as Sam Kimbrough and Shaw
Case. After Shaw Case was hired around August 1996, Meltin
overheard a conversation in the hallway near her office involv-
ing Hux, Kimbrough, Leggett, and Shaw Case. They instructed
Shaw Case to find out if applicants had any union affiliation.
Roger Dale Swartz Jr. was a superintendent at Respondent
from April 1996 until March 1997. Swartz had trouble keeping
a sufficient number of quality electricians. On one occasion
while in front of the receptionist area at Respondent’s office
along with Gary Chamely, Charles Leggett, and Sam
Kimbrough, Swartz asked why Respondent did not run an ad in
the paper because no good electrician needs to go through the
temporary personnel agencies. Swartz testified that either
Charles Leggett or Sam Kimbrough replied that if they run an
ad (Local) “480 would send 200 electricians in there to fill out
an application.”
Findings and Credibility
As shown above, I do not credit the testimony of Charles
Leggett. I do credit the testimony of Norma Meltin in view of
the full record and her demeanor. As shown here I credit Roger
Swartz. Even though he was discharged by Respondent his
testimony was supported by the credited record. I credit his
testimony in view of his demeanor and the full record.
As to the testimony of Stephen Alexander and especially the
January 4 incident, I was impressed with Alexander’s de-
meanor. His testimony was in line with the overall record and
there was no conflicts between the credited evidence and Alex-
ander’s account of the January 4 incident.1 Jeff Jones’ testi-
mony about that incident was incomplete. Jones admitted that
he was not present during the bulk of the confrontation between
Alexander and Scott Hemphill. To the extent Jones overheard
remarks by Hemphill and witnessed what occurred after he
became aware of the incident, his testimony tends to support
Alexander. Hemphill did not testify.
Conclusions
The testimony of Meltin, Swartz, the antiunion message in
Respondent employees handbook, and my findings above of
8(a)(3) violations convince me of Respondent’s animus.
As to the question of whether Respondent was motivated by
its animus to discharge Stephen Alexander, the record shows:
Stephen Alexander worked without being disciplined until
Respondent learned around December 13, 1996, that he was a
union organizer. On January 4, 1997, Stephen Alexander wore
a IBEW shirt to work and had a dramatic confrontation with a
fellow employee. The credited evidence showed that Alexander
did nothing to cause or prolong that confrontation. Instead
Alexander broke off the confrontation by leaving. After lunch
when Alexander was wearing the IBEW shirt, another worker,
Scott Hemphill, came toward Alexander. Hemphill was on a
scissor lift. Hemphill yelled out “IBEW” and “No, fuck you.
Fuck Wayne Divine and fuck IBEW.” Scott Hemphill said,
“We don’t want a fucking union. All ya’ll can kiss my ass.”
Hemphill got off his scissor lift. Alexander’s supervisor, Jeff
Jones, seemed to ignore the occurrence. Hemphill was de-
scribed as being probably 6’4” and 250 pounds. Alexander is
5’10” and weighs about 150 pounds. Alexander turned and
walked away. He went over near Supervisor Jeff Jones, got his
tools and said that he had enough for one day. He left.
On Monday, January 6, Alexander reported to his normal job
for Respondent at Northwest Rankin. He told his supervisor
there had been an incident at his overtime job at Albertsons on
Saturday, and that he would like to talk to someone at Respon-
dent about the incident. That afternoon he was first told to go
ahead and talk to someone at the office. Later he was told by
Supervisor Cecil Peden that no one would be at the office for
him to talk with.
Alexander credibly testified that he never received a warning
or reprimand while working for Respondent. On Wednesday,

1 In determining what occurred on January 4, I have discounted the
testimony of William Smitherman. Despite Smitherman’s testimony
Respondent proved that Smitherman did not work on January 4. For
that reason I find that Smitherman’s testimony neither contributed not
distracted from the record evidence regarding January 4, 1997.
MOSES ELECTRIC SERVICE 579
January 8, work at the Northwest Rankin job was rained out.
The next day it was still raining and Alexander drove to the
Respondent shop. He saw David Dunn who told him he had
been rained out and to call Shaw Case at 9 o’clock. Alexander
phoned Shaw Case and was told that he had been terminated for
violation of company policy. Alexander asked what policy had
he violated. Case said, “Can’t tell ya. It’s none of your busi-
ness.”
Respondent alleged at the hearing that it discharged Alexan-
der for unacceptable conduct. Respondent pointed to three inci-
dents including Alexander’s walking away from the union re-
lated confrontation on January 4, as the bases for its determina-
tion to discharge Alexander. The only incident that occurred
after the January 4 confrontation with a fellow employee, was
Alexander leaving work a few minutes early on January 6. Ac-
cording to Supervisor Peden, Alexander left work 12 minutes
early. Alexander, on the other hand, contends that he left 2
minutes early.
Alexander testified that he was aware of other employees
that left work early. He testified that other employees were not
wearing hardhats on the same day he was called down by David
Dunn.
I am convinced in view of Respondent’s animus, the inci-
dents leading to Alexander’s discharge, the timing of his dis-
charge within a month after learning he was a union organizer
and within a week after Alexander wore a IBEW shirt to work,
and the full record, that Respondent was motivated to discharge
Alexander because of its union animus.
D. Would Respondent have Discharged Alexander in the Ab-
sence of Union Activities?
Respondent contended that it treated Alexander in the same
manner it treated other employees. He was discharged because
of absenteeism.
Human Resource Manager Shaw Case testified that Alexan-
der was discharged because he broke the Company’s absentee-
ism and attendance policy. Case pointed to several incidents.
On December 20, 1996, Alexander told the person in charge
that he had worked his 40 hours and was going home. After
requesting overtime on January 4, Alexander left his job before
his time set for finishing work. Finally, on the following Mon-
day, January 6, 1997, Alexander left his job early at 3:18 p.m.
He was scheduled to leave at 3:30 p.m. After learning of the
January 6 incident Case decided to discharge Alexander be-
cause of the three above-mentioned incidents. He told Alexan-
der that he was being discharged for violation of company pol-
icy. Case testified that the Union had nothing to do with Alex-
ander’s discharge.
Respondent submitted separation notices showing that it has
discharged several employees for attendance problems. Richard
Hilliard was discharged on November 5, 1996, for unacceptable
performance and unacceptable attendance. Michael Hudson
was discharged on February 14, 1997, for unacceptable per-
formance and unacceptable conduct. The comment was that he
“walked off job site. Left early.” Mike McDonald was fired on
June 20, 1997, for unacceptable conduct and unacceptable at-
tendance with the comment “left the job site.” Joe Bates was
fired on February 13, 1997, for unacceptable performance,
unacceptable conduct and unacceptable attendance. His separa-
tion notice included the comment “no show 2/17/97 &
2/18/97.” Mike Newell was also shown as a no show for Febru-
ary 17 and 18. Newell was fired on February 12, 1997. Robert
Puckett was fired on January 29, 1997, with the comment “no
show no call 1/8/97–1/29/97.” Eric Greenlee was fired on Janu-
ary 30, 1997, with the comment “not reliable.” Burt Darling
was fired on February 7, 1997, with the comment “slow & un-
reliable.” Francis Dextra was fired on February 14, 1997. Dex-
tra’s separation sheet included the comment “Missed 2/11/97,
Late 2/10/97, Missed 2/12/97, no call no show 2/13/97.” Roby
Humphrey was fired on February 24, 1997, for unacceptable
attendance. Billy Kinds, fired March 25, 1997, for unacceptable
attendance was marked “no show—no call.” Shane Curtis was
fired May 19, 1997, for unacceptable attendance. Danny Nelson
was fired on June 11, 1997, for unacceptable conduct and unac-
ceptable attendance. Michael Daniel was fired on June 20,
1997, for unacceptable performance, unacceptable conduct, and
unacceptable attendance with the comment “no show—no call
absenteeism.” Ronica Hilliard was fired March 14, 1997, for
unacceptable attendance with the comment “no show no call.”
Trennis Gooden was fired March 11, 1997, for unacceptable
attendance with the comment “Not reliable 2 days—no call no
show 3/10/97–3/11/97.” William Smitherman was also termi-
nated because of absenteeism. Smitherman’s separation notice
includes the remark “no show no call 1/28/97–1/29/97.”
Findings and Credibility
There is remarkably little conflict in the evidence regarding
the absenteeism record of Stephen Alexander. Both Alexander
and his foreman had similar recollections of the incident on
December 20. Alexander’s testimony of the January 4 incident
is essentially undisputed. As to the January 6 incident, both
Alexander and Peden agree that Alexander left work before the
3:30 p.m. quitting time. As shown here, I find that Alexander
was a credible witness. To the extent there are conflicts I credit
the testimony of Stephen Alexander.
Conclusions
The General Counsel contends that Respondent’s version of
why Alexander was fired is a fabrication. Even though Alexan-
der did say to his foreman that he would leave after getting his
40 hours on December 20, the foreman did not disagree. In fact
Foreman Fern Rogers nodded his head in agreement. Moreover,
nothing was said or done to show that Respondent was unhappy
over the incident. Fern Rogers noted in his job diary that Alex-
ander had left early that day but made no recommendation for
disciplinary action. Alexander was not disciplined in any man-
ner.
As to the January 4 incident, the General Counsel and the
Union argued in their briefs that Alexander left to avoid a pos-
sible fight and that the other employee involved, Scott Hemp-
hill, was disciplined for using profane language. The evidence
is undisputed that Alexander was confronted by Scott Hemphill
because Alexander was wearing an IBEW shirt. Hemphill
yelled “IBEW” at Alexander. Alexander asked Scott if he
wanted to join. Scott replied, “No, fuck you. Fuck Wayne Di-
vine and fuck IBEW.” Alexander asked Hemphill if there was a
problem there. Hemphill replied, “We don’t want a fucking
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 580
union. All ya’ll can kiss my ass.” Hemphill got off his scissor
lift. Alexander turned and walked away. He went over near
Supervisor Jeff Jones, got his tools and said that he had enough
for one day and left.
On Monday, January 6, Alexander told his supervisor there
had been an incident while he was working another job at Al-
bertsons on Saturday, and that he would like to talk to someone
at Moses about the incident. That afternoon he was first told to
go ahead and talk to someone at the office. Later he was told by
Supervisor Cecil Peden that no one would be at the office for
him to talk with.
That evidence as well as the testimony of Supervisor Jeff
Jones shows that Respondent did nothing to determine whether
Alexander should have been disciplined for leaving the job on
January 4. In fact Jones admitted that he overheard Hemphill
use profane language.
The only evidence that anything was ever said to Alexander
about an absenteeism problem involved his leaving work a few
minutes early on January 6. Even though Respondent now con-
tends that Alexander was issued a warning for that incident, the
credited evidence shows that the only thing that occurred was a
comment by Supervisor Cecil Peden. On the morning of Janu-
ary 7, Peden said to Alexander, “[Y]ou left early yesterday.”
Peden contended Alexander left at 3:18 p.m. rather than the
scheduled 3:30 p.m. Alexander testified that he left at 3:28 p.m.
While absenteeism is not one of the listed major offenses in
Respondent’s disciplinary policy, two of the major offenses are
“threatened or actual physical violence” and the use of profane
or abusive language. The record shows that Scott Hemphill
may have engaged in both those major offenses on January 4
and received only a verbal warning.
The General Counsel pointed to other instances where Re-
spondent (through Shaw Case the same person that discharged
Alexander), applied its absenteeism policy differently than in
the case of Alexander. On January 30, 1997, Larry Dixon re-
ceived a verbal warning from Shaw Case. Case wrote on the
warning form, “Told him that absences were excessive. At least
one a week for the past two months. Told him that he had to
straighten out the problem w/ absenteeism & tardiness.”
Shaw Case issued a verbal warning to Seth Fuller on July 2,
1997. Case wrote on the warning, “Seth has run late or missed
work a few times in the past month. Seth was warned about his
consistent absences & told to obey the policies just like every-
one else.” Respondent argued that the situations with Dixon
and Fuller involved excused absences. However, there was
nothing in the record that distinguished those employees from
Alexander.
In view of the full record I find that Respondent failed to
prove that it would have discharged Stephen Alexander in the
absence of his union affiliation. The record showed that Alex-
ander was involved in two notable incidents regarding the Un-
ion. On December 16, 1996, Respondent received the Union’s
December 13 letter stating, among other things, that employee
Stephen Alexander was a union organizer. On January 4, 1997,
Alexander wore a IBEW shirt to work and was violently con-
fronted by another employee. At the time of those two incidents
Alexander had not been disciplined. However, after only 2
workdays following his wearing an IBEW shirt, Alexander was
fired. The record shows that Respondent had allowed more
serious infractions of its absenteeism policy by other employees
with nothing more than verbal warnings.
The record as shown above, proved that the General Counsel
proved that Respondent was motivated to discharge Stephen
Alexander by its union animus and the record failed to show
that Alexander would have been discharged in the absence of
his union affiliation.
CONCLUSIONS OF LAW
1. Moses Electric Service, Inc. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. International Brotherhood of Electrical Workers, Local
480, AFL–CIO is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent by discharging its employee Stephen Alexan-
der and thereafter failing and refusing to employ Alexander,
has engaged in conduct violative of Section 8(a)(1) and (3) of
the Act:
4. Respondent by refusing to hire or, in the case of Alexan-
der, to rehire, any of the following employees because of their
union affiliation and preference has engaged in conduct viola-
tive of Section 8(a)(1) and (3) of the Act:

Jeff Grimes Jamie Steele
Carl Roberts Steve Upton
Mike Albritton Sammy Yelverton
Brooks Martin James Horn
Stephen Alexander John Smith
Wayne Divine Mike Pickett
Robert Lindsey

5. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6),
(7), and (8) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
As I have found that Respondent has illegally refused to hire
any of the below named employees in violation of sections of
the Act, I shall order Respondent to offer those employees im-
mediate and full employment to the positions for which they
applied and are qualified or, if those positions no longer exist,
to substantially equivalent positions:

Jeff Grimes Jamie Steele
Carl Roberts Steve Upton
Mike Albritton Sammy Yelverton
Brooks Martin James Horn
Stephen Alexander John Smith
Wayne Divine Mike Pickett
Robert Lindsey

I have also found that Respondent illegally discharged, and
thereafter refused to employ Stephen Alexander. I shall order
Respondent to offer immediate and full employment to Alex-
MOSES ELECTRIC SERVICE 581
ander to his former position or, if that position no longer exists,
to a substantially equivalent position.
I further order Respondent to make the above-mentioned
employees whole for any loss of earnings suffered as a result of
the discrimination against them. Backpay shall be computed as
described in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as described in New Horizons for the Retarded, 283
NLRB 1173 (1987).
Despite the above findings, the record failed resolve several
issues that may be relevant to the initial employment of the
discriminatees (except Alexander who was discharged rather
than denied initial employment), and make whole portions of
the remedy. Those issues which may include among others,
when each alleged discriminatee would have been hired in the
absence of union activities under Respondent’s normal nondis-
criminatory practices and if and when each alleged discrimina-
tee may have been laid off in the absence of union activities
under Respondent’s normal nondiscriminatory practices, may
be considered in compliance proceedings if necessary. Casey
Electric, 313 NLRB 774 (1994); Dean General Contractors,
285 NLRB 573 (1987).
[Recommended Order omitted from publication.]

Michael W. Jeannette, Esq., for the General Counsel.
William I. Gault Jr., Esq. and David M. Thomas II, Esq., of
Jackson, Mississippi, for the Respondent.
Wayne A. Divine, of Jackson, Mississippi, for the Charging
Party.
SUPPLEMENTAL DECISION
PARGEN ROBERTSON, Administrative Law Judge. The
National Labor Relations Board remanded the decision
(JD(ATL)–16–95) in this matter on June 7, 2000, for considera-
tion in light of its decision in FES, 331 NLRB 9 (2000). The
parties responded to an order to show cause and filed briefs
following an order dated August 7, 2000. I found that all the
issues raised in FES had been covered in my original decision
with the exception of the question of whether the alleged dis-
criminatees would have been considered for hire, and actually
hired, if Respondent had examined each of their applications in
a nondiscriminatory manner. On October 5, 2000, I ordered a
limited reopening of the hearing (GC Exh. 90L) for the sole
reason of dealing with that issue.
Pursuant to my Order a hearing was held in Jackson, Missis-
sippi, on January 24, 2001. I have considered the full record
and briefs filed by the General Counsel and Respondent in
reaching this decision. My review of the underlying decision is
limited. The Board has established that the administrative law
judge is limited to considering only those matters specified by
the Board’s Order. Monark Boat Co., 276 NLRB 1143, 1143
fn. 3 (1985), enfd. 800 F.2d 191 (8th Cir. 1986).
At the hearing the parties stipulated the relevant appropriate
time period for comparison purposes is the period May 1 to
December 31, 1995, and that Charles Leggett was involved in
the hiring.
Respondent’s president and owner, Charles Leggett,1 was re-
sponsible for hiring. He testified that Respondent looks for
applicants that have prior experience in commercial work; that
are willing to work at Respondent’s wage level; and that dem-
onstrate the capability of becoming a long-term employee. Ad-
ditionally, Leggett testified that because of shifting work times,
its employees are not permitted to work for other people while
employed by Respondent.2 Commercial work is distinguishable
from industrial work in that a lot of industrial work involves
turnaround and such, where the employees work for short peri-
ods of time. Since Leggett moved to Jackson3 in 1988 all Re-
spondent’s work has been commercial. Leggett testified that
Respondent’s selection of employees followed a schedule. The
first source of hires was transfers from other of its jobs. The
second source was rehires. The third source was management
referrals and the next source was referrals from employees.
Only after exhausting all the above sources, did Respondent
consider applications from other sources.4
Leggett testified that he would not have hired Michael Al-
britton (GC Exh. 2), if he had received Albritton’s application5
because the application is incomplete. The driver’s license
number is not included. Additionally, the application shows
that Albritton lives in Summit, which is a long way from Jack-
son. Leggett testified that Albritton said he would commute 100
miles but Respondent has not had good experience with em-
ployees that commute that far. Also, it appears that most of
Albritton’s work experience is in industrial work and Respon-
dent was not interested in hiring industrial electricians. Only
one reference was verified on Albritton and that reference said
they would not rehire Albritton. Albritton failed to list any edu-
cation and training. As to Wayne Divine (GC Exh. 3), Leggett
testified that he would not have hired Divine because he knew
that he was a full-time employee as business manager of the
Union. Also, Divine had not worked as electrician in a long
time (6 years) and his experience was industrial. The applica-
tion did not show but Leggett knew, that Divine had worked for
Woody Overly and Overly had fired him. Wayne Divine testi-
fied that he had been fired by Overly but it was because of his
union activity and unfair labor practice charges were filed re-
garding that discharge. The matter was heard before an admin-
istrative law judge and eventually settled.6 On cross-
examination, Leggett admitted that he said nothing on his pre-
hearing declaration (GC Exh. 90(h)) about why he would not
have hired Divine. Leggett testified that he would not have
hired Jeff Grimes (GC Exh. 4) because Grimes did not include

1 Leggett was president and chief executive office for Respondent
between 1989 and 1997 (GC Exh. 90(h)).
2 See R Exh. 21, which was received in the original hearing and pur-
ports to show Respondent’s hiring policies from March 30, 1994.
3 All of Leggett’s testimony regarding Respondent involved a time
after he came to Jackson.
4 The other sources included referrals by Express Personnel Services
but occasionally one of their referrals would be a former Respondent
employee (i.e., a rehire).
5 Leggett denied that he received the alleged discriminatees’ applica-
tions in the original hearing. I discredited his testimony in that regard in
my decision (JD(ATL)–16–95).
6 Overley Electric Co., 319 NLRB 1232 (1995).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 582
his driver’s license number on his application; his experience
was plant maintenance work; Grimes showed that he did not
like night shift; a reference check showed that Grimes would be
rehired with reservation; Grimes indicated that his maximum
commute distance would be 40 miles and that would limit his
availability on jobs outside Jackson since Grimes lived in Flor-
ence; and Grimes did not sign his application. That showed
Leggett that Grimes did not follow instructions very well and
Respondent had had difficulty with employees that did not
follow instructions. On cross-examination Leggett admitted that
he said nothing on his prehearing declaration about refusing to
hire Grimes because Grimes indicated he would not work the
night shift or about Grimes being unwilling to commute over
40 miles.
Charles Leggett testified that James Horn (GC Exh. 5), listed
his minimum hourly salary as $15, which is more that Respon-
dent usually pays (i.e., $12); and his experience was industrial
work. Additionally, Horn did not list his driver’s license num-
ber. Leggett testified that he would not hire Robert Lindsey
(GC Exh. 6) and Sammy Yelverton (GC Exh. 12) because he
had a conversation where Scott Casey told him that he had a
problem and had fired them both for insubordination “probably
around ‘93, ‘94, somewhere about that time.” Yelverton did not
show that he had worked for Casey Electric even though Leg-
gett knew he had. Yelverton’s application did not include any
experience similar to the work performed by Respondent;
Yelverton did not list his driver’s license number;7 and he had
worked at a higher wage rate than Respondent was willing to
pay. On cross-examination Leggett admitted that he said noth-
ing on his prehearing declaration about why he would not have
hired Sammy Yelverton. Robert Lindsey had been laid off as a
ROF after 2 months which showed Leggett that Lindsey was
not a very productive employee; and Lindsey’s experience was
all in high paying industrial work. On cross-examination, Leg-
gett admitted that he said nothing on his prehearing declaration
about why he would not have hired Lindsey. Brooks Martin
would not have been hired if Leggett had examined his applica-
tion (GC Exh. 7) because he had worked a long time on a nu-
clear power house.8 Leggett testified that Martin, “[P]robably
didn’t know how to do anything but nuclear power house
work,” and his other work history appears to be incomplete.
Martin did not include his pay for the other two jobs listed on
the application. Moreover, Martin lives in Brandon and shows
the maximum commute as 50 miles and that may cause a prob-
lem if Respondent wanted to work him outside Jackson. On
cross-examination Leggett admitted that he said nothing on his
declaration (GC Exh. 90(h)) about Martin being willing to
commute only 50 miles or that Martin had an incomplete pay
history on the application. Leggett testified that he would not
have hired Carl Roberts if he had received Roberts’ application
(GC Exh. 8). Roberts listed the minimum acceptable salary as

7 Leggett testified that Respondent checks out applicants driving re-
cords and it is not interested in hiring anyone with DUIs and by failing
to list a driver’s license number the applicant makes it more difficult for
Respondent to check that driver record.
8 The notation on the application, “Bechtel, Port Gibson” shows nu-
clear power work.
$14.40 and Respondent was paying only $12 an hour. Also,
Roberts indicated that he was available for only 1 year; and
Roberts did not list the pay he had received from prior employ-
ers or the years he worked for those employers. On cross-
examination, Leggett admitted that he said nothing in his pre-
hearing declaration about Roberts not listing his employment
history as a reason why he would not have hired Roberts.
Leggett testified that Michael Pickett (GC Exh. 9) showed
his previous work was maintenance work and Pickett did not
sign his application but that if Respondent had been hiring the
day it received his application he may have hired Pickett. On
cross-examination Leggett admitted that in his prehearing dec-
laration, he only listed Pickett’s education as a reason why he
may not hire Pickett. As to Johnnie Smith (GC Exh. 10), Leg-
gett would not have hired him if he had received his application
because Smith’s minimum salary requirement was too high
($14.40), and Smith’s work experience was industrial. More-
over, Smith listed his last job as paying $23.20 per hour. Leg-
gett would not have hired Jamie Steele (GC Exh. 11), because
Steele listed his minimum pay at $14.40 an hour; Steele did not
finish high school and his work experience was mostly indus-
trial work. Leggett would not have hired Steve Upton if he had
received Upton’s application (GC Exh. 13) because all Upton’s
experience was in nuclear power; he had made $17 to $20 an
hour; and he had a lot of jobs that lasted for short periods of
time. On cross-examination Leggett admitted that Smith’s ap-
plication does show he had industrial/comm. experience. The
only reason given on Leggett’s declaration for refusing to hire
Steele was his salary “far exceeding what Moses would pay.”
Leggett’s prehearing declaration did not include anything about
Smith living in McComb and commuting to Jackson, or about
Smith not finishing high school or vo–tech classes in electron-
ics.
Charles Leggett testified that the most important factor in
considering application would be whether the applicant had
commercial work experience. Leggett admitted that Respondent
did some, but very little, industrial work.
Union organizer, Wayne Divine, testified that he was famil-
iar with various contractors and the type of work performed by
those contractors. He testified that several contractors including
Rust Engineering, Pie, Silvey, Triad, EMI, and Computer
Aided Systems, Incorporated engaged primarily in industrial
work. Energy Erectors is a line construction outfit, meaning
line distribution, pole work, and distribution stations. Energy
Erectors’ work is not related to commercial work. G and C
Electric does about 80-percent residential and some light com-
mercial work. Fountain Construction does commercial and
industrial work. Jordan is a commercial contractor.
Credibility and Findings
The sole issue here concerns whether Respondent would
have hired the alleged discriminatees if it had considered their
respective applications in a nondiscriminatory fashion. I found
in my underlying decision that Respondent was hiring at mate-
rial times; that it hired 87 electricians between May 15, 1995,
and July 21, 1997; and that 27 electricians were hired in 1995
after May 15.
MOSES ELECTRIC SERVICE 583
Respondent elected to deal with the nondiscriminatory con-
sideration issue through the testimony of its chief executive
officer at material times, Charles Leggett. Leggett testified in
the original hearing that he did not receive the applications of
the alleged discriminatees. I did not credit Leggett’s testimony.
Instead I found that Respondent had received the applications.
Even though I did not credit the testimony of Charles Leggett in
my underlying decision, I shall consider his testimony espe-
cially in view of Respondent’s reliance on his testimony to
prove its entire remand case. In that regard I have considered
the full record including the original record, Leggett’s full tes-
timony, his demeanor and the arguments made in the respective
briefs.
Leggett testified that initially Respondent looks to several
factors including prior experience in commercial work, a dem-
onstrated willingness to work at Respondent’s wage level, the
capability of becoming a long-term employee, and whether the
applicant is otherwise employed. Charles Leggett also testified
that applicants are considered in relation to how they were rec-
ommended to Respondent. Those employees that are transfer-
ring from other of Respondent’s jobs are considered first; then
applicants that formerly worked for Respondent; then appli-
cants recommended by management; then applicants referred
by other employees and finally applicants from other sources.
There was no evidence that Respondent’s standards for deter-
mining whether to hire an applicant were illegal per se. Instead
the evidence dealt with whether Respondent actually applied
those standards in a nondiscriminatory manner.
With one exception Leggett testified to the effect that he
would not have hired any of the alleged discriminatees at any
time during the material period. The one exception involved
Michael Pickett. In view of Leggett’s testimony in the initial
hearing that he did not receive the alleged discriminatees’ ap-
plications, it is impossible to determine when Leggett consid-
ered or refused to consider Pickett’s application. Moreover, in
view of Leggett’s claim that he did not receive the applications,
Respondent did not rely on testimony by Leggett that he con-
sidered an application for only 30 days9 after receipt. It would
be impossible to determine when that 30 days started as to each
applicant since Leggett claimed he did not receive the applica-
tions at any time. Leggett did not testify to the effect that an-
other person or persons were selected for specific jobs during
the material period, because the selected applicant was more
qualified that any alleged discriminatee that Respondent con-
sidered at that time. Again, in view of his earlier testimony that
he did not receive the alleged discriminatees’ applications, such
testimony would not have made sense. In effect, Leggett
claimed that he would not have hired any of the alleged dis-
criminatees at any time10 regardless of whether any of the al-
leged discriminatees was more qualified than applicants actu-
ally hired, because of nondiscriminatory factors. Because of the
nature of that claim it is clear that credibility is a key considera-
tion.

9 Despite Leggett’s testimony the purported written hiring policies
(R Exh. 21) shows that applications remain on file for only 10 days.
10 Excluding of course, the possibility that he may have hired Mi-
chael Pickett.
In regard to whether the alleged discriminatees would have
been hired if Respondent had considered their applications in a
nondiscriminatory manner, several of the reasons given by
Charles Leggett to support Respondent’s refusal to hire, are
common as to more than one of the alleged discriminatees. For
example, Leggett testified about his reluctance to hire anyone
with industrial or other noncommercial experience including
Michael Albritton, Wayne Divine, James Horn, Sammy Yelver-
ton,11 Robert Lindsey, Brooks Martin,12 Johnnie Smith, Jamie
Steele, and Steve Upton.13 However, evidence in the original
hearing showed that several applicants hired by Respondent
had demonstrated industrial, nuclear power and other noncom-
mercial electrical work on their respective applications. Those
included R. J. Campbell (GC Exh. 25), Edward Van Currey
(GC Exh. 35),14 Michael Finley (GC Exh. 40), Bobby Floyd
(GC Exh. 27), Donald Fontaine (GC Exh. 34), James Hughes
(GC Exh. 43), Mark Jackson (GC Exh. 30), Mark McLaurin
(GC Exh 37),15 Daniel Nelson (GC Exh. 31), Eddie Orlinski
(GC Exh. 38), Don Pratt (GC Exh. 26), and Randy Rogers (GC
Exh. 41). Leggett testified that he would not hire some of the
alleged discriminatees because they had made higher wages at
prior jobs or requested a minimum salary that exceeded, the
$12 an hour he was willing to pay. Those alleged discrimina-
tees included James Horn, Sammy Yelverton, Robert Lindsey,
Carl Roberts, Johnnie Smith, Jamie Steele, and Steve Upton.
However, Respondent did hire other applicants that had earned
over $12 an hour with prior employers including Calvin Brown
(GC Exh. 42), R. J. Campbell (GC Exh. 25), Edward Van Cur-
rey, Michael Finley, Bobby Floyd, Donald Fontaine, Mark
Jackson, and Terry Johnson (GC Exh. 33), James Loden (GC
Exh. 36), Mark McLaurin, Dennis Mink (GC Exh. 70), and
Eddie Orlinski. Charles Leggett testified that he would have
refused to hire several applicants including Albritton, Grimes,
Horn, and Yelverton because their drivers’ license information
was incomplete. However, The General Counsel pointed out in
his brief that Respondent hired Calvin Biddy (GC Exh. 22),
Donald Fontaine, Lewis Johnson, and James Loden (GC Exh.
36), and Dennis Mink (GC Exh. 70) even though all either
failed to mark they had a driver’s license or failed to include
their driver’s license number, on their respective applications.
As to Leggett’s testimony regarding the individual alleged
discriminates, the above findings regarding industrial experi-
ence, high wages and drivers’ licenses demonstrate that Leggett
was not truthful in his testimony that he would not have consid-
ered Albritton for those reasons. Respondent had actually hired
others with similar applications. Leggett also testified that he
would not have hired Albritton because he lived too far away
11 Leggett testified that Yelverton’s application showed that his
work experience was not the type work desired by Respondent.
12 Leggett testified that Martin’s application showed that he had
worked a long time on a nuclear power house.
13 Leggett testified that all of Upton’s experience had been in nu-
clear power.
14 Currey showed one of his employers, H&H Elect. as “Industrial-
commercial.”
15 McLaurin failed to fill out any of the information about previous
employers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 584
but Albritton stated on his application that he would commute
up to 100 miles. Leggett testified that one of Albritton’s former
employers had given him a negative reference. Albritton had
quit at EMI and EMI indicated it would not be interested in
rehiring him. However, the General Counsel pointed out that
Respondent had hired several employees that lived significant
distances from Jackson. For example R. J. Campbell lived in
Grenada, Mississippi (GC Exh. 25); Michael Chesteen lived in
Greenwood, Mississippi (GC Exh. 23); and Bobby Floyd also
lived in Greenwood, Mississippi (GC Exh. 27). Leggett testi-
fied he would not have hired Albritton because he did not have
any education or training. Albritton’s application showed he
finished high school. Respondent actually hired Calvin Biddy
and Mark Jackson (GC Exh. 30), and Donald Smith even
though none of the three listed either high school or electrical
training on their application. Four other applicants hired by
Respondent listed high school but no electronics or electrical
theory including Michael Finley, Donald Fontaine, and James
Hughes (GC Exh. 43), and Eddie Orlinski (GC Exh. 38).
Leggett testified for the first time, that he would not have
hired Wayne Divine because Divine had a full-time job with
the Union and its was Respondent’s policy not to hire anyone
with full-time jobs with another employer. Leggett did not al-
lege that as a reason for not hiring Divine in his prehearing
declaration. The General Counsel pointed out that the Board
issued a decision after Leggett’s prehearing declaration, up-
holding an employer’s refusal to hire because the applicant had
a full-time job where the employer had an established rule
against hiring in that situation.16 Moreover, Respondent hired
Mark Jackson (GC Exh. 30) even though Jackson stated on his
application that he was currently employed full time.17 The
record supports the General Counsel’s argument that Respon-
dent did not apply its alleged 1994 policy before it received the
applications of Wayne Divine and Sammy Yelverton. Charles
Leggett testified he would not have rehired Jeff Grimes for
several reasons including some that were not included in Leg-
gett’s prehearing declaration as to why he would not have hired
Grimes, including the allegation Grimes did not write his
driver’s license number on the application. As shown above,
Respondent hired other applicants not shown to support the
Union, even though there were problems, omissions, and in
some cases, no question on the application form, regarding
driver’s licenses. Leggett testified that Grimes’ experience was

16 Little Rock Electrical Contractors, 327 NLRB 932 (1999).
17 Record evidence established that applicants including Divine,
Yelverton and Mark Jackson were fully employed elsewhere at the time
of their respective applications. Respondent argued that in light of
recent case law, it is justified in applying its preexisting rule against
hiring anyone with another full-time job. However, there was no show-
ing as to why there was a distinction in the treatment of Jackson as
opposed to Divine and Yelverton. Perhaps Divine and Yelverton were
unwilling to give up their full-time jobs with the Union if hired by
Respondent and perhaps Jackson was willing to give up his full-time
job elsewhere if employed by Respondent but the record failed to show
those possibilities were ever investigated and known by Respondent.
What the record did show was disparity in the treatment of Divine and
Yelverton as opposed to Jackson and Respondent failed to justify that
disparity.
in maintenance but as shown above Respondent hired others
with maintenance and industrial experience. Leggett testified
that he did not hire Grimes because a reference check indicated
an unfavorable reference the check showed that Grimes did not
like the night shift. It is noted on Grimes’ application (GC Exh.
4) that a previous employer, Riverwood, stated that Grimes did
not like the night shift and that it would rehire Grimes with
some reservations. However, others, including Don Smith re-
ceived an unfavorable reference and Smith stated on his appli-
cation that he did not like working long hours (GC Exh. 29). R.
J. Campbell was terminated by Rust for being unable to per-
form duties and Randy Rogers was hired even though a refer-
ence stated “NO REHIRE–rhl drinker” (GC Exh. 41). Leggett
testified he would not hire Grimes because he limited his com-
mute to 40 miles and did not sign his application, but Leggett
did not include either of those reasons for not hiring Grimes in
Leggett’s prehearing declaration.
James Horn was allegedly not rehired according to Leggett,
because his minimum salary was too high ($15); Horn had
industrial experience; and because of Horn’s short tenure with
previous employers. As to the first item, Horn’s application
shows that he was open as to a minimum salary even though his
four pervious jobs had paid more than $12. Moreover, I have
already found that Respondent did not reject applicants because
they asked for too much money (JD(ATL)–16–95). As shown
above Respondent did hire applicants with industrial or mainte-
nance experience and Leggett failed to list that as a reason for
rejecting Horn in his prehearing declaration. As to short tenure,
Respondent hired Currey (GC Exh. 35), Fontaine (GC Exh. 34),
Johnson (GC Exh. 33), and Loden (GC Exh. 36) even though
all had worked a short-term job for Respondent in 1994 (Tr.
425–426).
Charles Leggett allegedly would have refused to hire Robert
Lindsey because he and Sammy Yelverton had been fired from
Casey Electric; and because Lindsey did not list his driver’s
license number. Leggett failed to list either of those reasons for
not hiring Lindsey, in his prehearing declaration. Moreover, as
shown above, Respondent did not apply either of those two
criteria in a nondiscriminatory manner. Leggett testified he
would not have hired Brooks Martin because he had industrial
experience. As shown above Respondent did not apply that
criteria in a nondiscriminatory fashion. Charles Leggett testi-
fied that Martin failed to list his salary with prior employers
and Martin gave a maximum commute distance of 50 miles but
Leggett failed to include those reasons when he gave his pre-
hearing declaration. As to Michael Pickett, Leggett testified
that he might have hired Pickett if he had his application when
he was hiring but that was different from testimony in Leggett’s
prehearing declaration where he said he would not have hired
Pickett because of his maintenance or industrial experience. As
to Carl Roberts, Leggett testified that he would not hire him
because Roberts indicated he would prefer a 1-year assignment
and Roberts failed to list his pay with prior employers. How-
ever, as shown herein, Leggett hired others that failed to fully
complete their applications. Johnnie Smith was allegedly not
considered for hire because of his $14.40 salary requirement
and demand for a minimum of 40 hours a week. However, as
shown herein, Respondent hired several applicants that failed to
MOSES ELECTRIC SERVICE 585
list a minimum salary and Leggett failed to include the allega-
tion regarding Smith’s wanting a minimum of 40 hours a week
in his prehearing declaration. Leggett testified he would have
rejected Jamie Steele because Steele wanted a $14.40 minimum
salary; Steele lived too far from Jackson in McComb; Steele
had industrial experience; and Steele failed to finish high
school. However, Leggett’s testimony conflicts with his pre-
hearing declaration where he listed only the $14.40 minimum
salary from the above reasons for not hiring Steele. As noted
above, the record shows that Respondent applied all the criteria
allegedly applied to Steele in a discriminatory manner. Charles
Leggett testified that he would not have hired Sammy Yelver-
ton because Yelverton, like Lindsey, had been terminated by
Casey Electric; Yelverton was already employed full time by
the Union; Yelverton listed too high a salary rate by previous
employers; he had industrial experience; and he failed to list his
driver’s license number. Leggett did not include those reasons
for rejecting Yelverton in his prehearing declaration. As shown
above, the record shows that Respondent applied those criteria
in a discriminatory manner. As to the claim that he rejected
Yelverton because of his full-time employment with the Union,
that like in the case of Wayne Divine, appeared to be a recent
fabrication following the decision in Little Rock Electrical Con-
tractors, supra.18 Leggett allegedly would not have considered
Steve Upton because of Upton’s limited experience at a nuclear
power facility. However, that reason for not hiring Upton was
not included in Leggett’s prehearing declaration.
In view of the above, the entire record, his demeanor, the
numerous conflicts in his testimony during the instant hearing
and earlier testimony and conflicts between his testimony and
other records, I do not credit the testimony of Charles Leggett.
Therefore, I find that the credited evidence did not show that
Respondent would have refused to consider or hire, the alleged
discriminatees if it had considered their applications in a non-
discriminatory manner. Moreover, the full record reveals that
Respondent discriminatorily applied the criteria it allegedly
would have used in determining not to consider or hire the al-
leged discriminatees. Respondent’s records in evidence illus-
trated that other applicants were hired even though application
of the criteria set out by Respondent’s witness, would have
resulted in Respondent refusing to consider for hire, or hiring,
those applicants. In other words, the record showed that the
standards set out by Charles Leggett were discriminatorily ap-
plied to the alleged discriminatees and those standards were not
applied to other applicants that were hired. In view of the full

18 See also Architectural Glass & Metal Co. v. NLRB, 107 F.3d 426
(6th Cir. 1997).
record, I find that Respondent would not have refused to con-
sider for hire, or to hire, any of the alleged discriminatees if it
had considered their applications on a nondiscriminatory ba-
sis.19
ADDITIONAL CONCLUSIONS OF LAW
Respondent by refusing to hire any of the following employ-
ees because of their union affiliation and preference has en-
gaged in conduct in violation of Section 8(a)(1) and (3) of the
Act:

Michael Albritton Michael Pickett
James Horn Steve Upton
Carl Roberts Jeff Grimes
Jamie Steele Brooks Martin
Wayne Divine Johnnie Smith
Robert Lindsey Sammy Yelverton

The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6), (7),
and (8) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist there from and to take certain affirmative action designed
to effectuate the policies of the Act.
As I have found that Respondent has illegally refused to hire
any of the below named employees in violation of sections of
the Act, I shall order Respondent to offer those employees im-
mediate and full instatement to the positions for which they
applied and are qualified or, if those positions no longer exist,
to substantially equivalent positions. I further order Respondent
to make those employees whole for any loss of earnings suf-
fered as a result of the discrimination against them. Backpay
shall be computed as described in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as described in New Horizons
for the Retarded, 283 NLRB 1173 (1987).

Michael Albritton Michael Pickett
James Horn Steve Upton
Carl Roberts Jeff Grimes
Jamie Steele Brooks Martin
Wayne Divine Johnnie Smith
Robert Lindsey Sammy Yelverton

[Recommended Order omitted from publication.]
19 Nelson Electrical Contracting Corp., 332 NLRB No. 17 (2000)
(not reported in Board volumes).