North Bay Plumbing, Inc.

National Labor Relations Board - Board Decisions

Mar 19, 1999

327 N.L.R.B. 899 (N.L.R.B. 1999)

NORTH BAY PLUMBING 899
North Bay Plumbing, Inc. and Plumbers & Steamfit-
ters, Local 343, United Association of Journey-
men and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Can-
ada, AFL–CIO. Case 20–CA–26200
March 19, 1999
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On January 9, 1997, Administrative Law Judge Clif-
ford H. Anderson issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel and the Charging Party each filed ex-
ceptions and a supporting brief, as well as an answering
brief to the Respondent’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings,1 findings,2 and conclusions,
only to the extent consistent with this decision, and to
adopt the recommended Order as modified. Specifically,
we find that the judge erred in failing to find that the Re-
spondent violated Section 8(a)(3) and (1) of the Act by
its refusal to consider and hire job applicants Dan Caley,
Barry Culloty, and Kyle Wheeler.
The judge found that the General Counsel met the ini-
tial burden of proving that unlawful antiunion sentiment
was a substantial or motivating factor in the Respon-
dent’s refusal to consider, interview, or offer employ-
ment as plumbers to each of the eight union members
named in the complaint as discriminatees. We agree,
based on the evidence that: (1) the Respondent advertised
for and hired numerous plumbers during the time period
at issue; (2) the eight union members applied in such a
manner that it was clear to the Respondent that they were
acting in concert, and with an intent, if hired, to organize
the Respondent’s plumbing craft employees; (3) the Re-
spondent failed to consider, interview in a timely man-
ner, or offer employment to any of these persons, all of
whom were qualified to perform plumber’s work for the
Respondent; and (4) statements by the Respondent’s of-
ficials indicated their animus towards the Union.

1 We find no merit in the Respondent’s exceptions either to the tak-
ing of investigatory depositions from three management witnesses or to
the introduction of these depositions into the record. For the reasons set
forth in NLRB v. North Bay Plumbing, 102 F.3d 1005 (9th Cir. 1996),
we reject the Respondent’s contention that the Board does not have the
statutory authority and/or administrative rules permitting the issuance
and enforcement of precomplaint subpoenas. Furthermore, we reject the
Respondent’s contentions that the introduction into the record, and the
judge’s subsequent reliance on, deposition testimony secured by such
subpoenas violated due process. The Respondent had the opportunity to
examine each of the witnesses during the deposition process. At the
unfair labor practice hearing, the Respondent stipulated that these indi-
viduals would testify as they had in their depositions. Moreover, con-
trary to the Respondent’s claims, two of the three witnesses involved—
the Respondent’s President Lee Pettit and its estimator/purchasing
agent David Adams (an admitted supervisor)—also testified at the
unfair labor practice hearing. In sum, the Respondent has failed com-
pletely to demonstrate how it may have been prejudiced by the intro-
duction and use of the depositions.
The Respondent’s exceptions make only the procedural arguments
discussed here and in fn. 5. It does not otherwise contest the judge’s
factual or legal analysis supporting his conclusion that the Respondent
violated Sec. 8(a)(3) by refusing to consider and hire five applicants
because of their apparent intention to organize the Respondent’s
plumbing craft employees.
2 The Respondent, the General Counsel, and the Charging Party have
excepted to some of the judge’s credibility findings. The Board’s estab-
lished policy is not to overrule an administrative law judge’s credibility
resolutions unless the clear preponderance 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 care-
fully examined the record and find no basis for reversing the findings.
The judge further found that the Respondent failed to
meet its resultant burden of persuading that five of the
eight union members—Cameron, Lopes, Walters,
Bathurst, and Bishop—would not have been hired even
absent their union activity. He therefore concluded that
the Respondent’s failure to consider, interview, or offer
employment to these five persons violated Section
8(a)(3) and (1) of the Act. We affirm the judge’s findings
and conclusions in this regard.
We disagree, however, with the judge’s finding that
the Respondent did meet its burden of persuading chat
the three remaining union members—Wheeler, Caley,
and Culloty—would not have been interviewed or hired
even in the absence of their union activity. The judge
concluded that the Respondent proved its legitimate reli-
ance on a belief that Wheeler was an active competitor in
bidding for plumbing contracts and on information that
Caley and Culloty had done unsatisfactory work for an-
other plumbing contractor.
Specifically, the Respondent claimed it did not con-
sider Wheeler for employment because Respondent
President Lee Pettit knew that Wheeler had been the
owner of California Plumbing, a competitor of the Re-
spondent, which bid against the Respondent “every day.”
Although it is undisputed that Wheeler had ceased oper-
ating his own company and was unemployed when he
applied for work with the Respondent, the judge found
no record evidence that the Respondent generally or Lee
Pettit in particular knew of any change in Wheeler’s
situation. The judge also found that the Respondent’s
hiring of Frederick Long was distinguishable because
Long’s plumbing company had been primarily engaged
in service and repair plumbing, rather than new residen-
tial plumbing installation.
We find error in the judge’s findings. First, in
Wheeler’s May 6 employment application with the Re-
spondent, he wrote “no” in response to the question,
“Are you employed now?”. Thus, the judge was incorrect
in his assessment that Wheeler’s application “fully indi-
cat[ed] to the reader that he remained with California
Plumbing as of the time of the application.” Similarly,
the record does not support the judge’s assessment that
327 NLRB No. 159
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 900
Long, hired less than 2 months after Wheeler applied for
a job, was not a “true competitor” with the Respondent
because his company did primarily service and repair
work. Long testified that his company also performed
new construction residential plumbing—exactly the same
work performed by the Respondent. He further testified
that he continued to operate his company during the 3
months that he was employed with the Respondent. Fur-
thermore, on August 15, the Respondent hired Albert
Chano, who indicated on his application that he was self-
employed as a plumber at the time.
In light of this evidence, we find that the Respondent
has failed to prove that it had a reasonable basis for be-
lieving that Wheeler remained its business competitor
when he applied for a job. It also failed to prove that it
would not hire active business competitors who applied
for work. In sum, the Respondent has failed to prove that
it would not have considered, interviewed, and hired
Wheeler in the absence of his union affiliation.
With respect to alleged discriminatees Caley and Cul-
loty, the Respondent claimed that it did not interview or
consider them for employment because they had been
unsatisfactory employees for Nor Cal Plumbing, a now-
defunct company of which Lee Pettit had been president.
The judge credited the testimony of the Respondent’s
estimator/purchasing agent David Adams (and admitted
supervisor) that he told Lee Pettit soon after the eight
union members had applied for employment that he rec-
ognized Caley and Culloty among the applicants and that
the two had nor been satisfactory employees at Nor Cal.
The judge further credited Lee Pettit that this information
was the reason he did not interview or offer employment
to Caley and Culloty.
Once again, the record on the Respondent’s hiring
practices fails to support the judge’s analysis of the real
reasons for the Respondent’s actions. Both Lee Pettit and
Adams testified that poor performance did not necessar-
ily preclude the Respondent from hiring a former em-
ployee. Lee Pettit testified that the Respondent had re-
hired Rick Aranda, an employee who had been previ-
ously discharged because “his production was way down
and he was undependable . . . (and) his work wasn’t up to
the standards that it should have been.” Pettit further tes-
tified that the Respondent had rehired Ora Bernard de-
spite the fact that he had been previously discharged for
drug use affecting his work performance. In Lee Pettit’s
words, Bernard would “walk in the door and couldn’t hit
it in the mornings.”3
There is no proof that Caley and Culloty’s alleged
shortcomings when working for Nor Cal were more se-
vere than those of Aranda or Bernard, whom the Re-
spondent rehired. If anything, the record suggests that

3 The Respondent’s witnesses did not testify, as the dissent suggests,
that the Respondent rehired Aranda or Bernard because it was “desper-
ate” for plumbers. Adams did testify generally that he would rehire
even the least capable former employee if he were desperate enough.
Aranda and Bernard were the greater reemployment
risks. There is no apparent lawful basis for the disparity
in treatment of applicants with similar unsatisfactory
prior employment histories. Under these circumstances,
it is permissible to infer that the Respondent’s claimed
reliance on Caley and Culloty’s work at Nor Cal was
mere pretext. At the least, we find that the Respondent
has failed to prove that it would have relied on this factor
in refusing to consider, interview, or hire these two indi-
viduals if they had not been associated with the Union.4
Based on the above, we find that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by failing to con-
sider, interview, or offer employment to applicants
Wheeler, Caley, and Culloty. We shall modify the
judge’s recommended remedy to include provisions that
they receive the same affirmative relief as the other dis-
criminatees .5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, North Bay Plumbing, Inc.,
Fairfield, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to consider for hire and failing
and refusing to interview and offer employment to job
applicants because the applicants intend to engage in
protected union organizing activities.
(b) In any like or related manner, interfering with, re-
straining, or coercing employees in the exercise of 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
William Bathurst, Anthony Bishop, Rodney Cameron,
Daniel Caley, Barry Culloty, Robert Lopes, Robert Wal-
ters, and Kyle Wheeler positions as plumbers, terminat-
ing, if necessary, any plumber employees hired on or
after May 6, 1994.
4 Contrary to the dissent, we neither reverse nor disregard the credi-
bility resolutions of the judge. We accept the facts that Adams ex-
pressed a negative view of both Caley and Culloty and that Petit relied
on this view. However, in light of the evidence supporting the General
Counsel’s prima facie case (which our dissenting colleague does not
dispute), this credited testimony begs the overarching motivational
question as to why Petit relied on Adams’ statement. This question
cannot be answered without consideration of the record as a whole.
Having considered the entire record, we find that the Respondent has
failed to prove that Adams’ assessment of the two former employees’
prior work record would have barred their consideration for rehire even
in the absence of their support for the Union.
5 We find no merit in the Respondent’s argument in exceptions that
the automatic stay provisions of the Bankruptcy Act (11 U.S.C. 3–
62(a)), bar any further proceeding for enforcement of this remedy. It is
well established that Board proceedings fall within an exception to the
automatic stay provision. See Isratex, Inc., 316 NLRB 135 fn. 1 (1995),
and cases cited there.
NORTH BAY PLUMBING 901
(b) Within 14 days from the date of this Order, make
the above-named individuals whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against them, with interest, in the manner set
forth in the remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusal to
consider and hire the above-named individuals, and
within 3 days thereafter notify each of them in writing
that this has been done and that the refusal to consider
and hire them will not be used against them in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents, for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its business office and other places where notices to its
employees are customarily posted copies of the attached
notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director, after being
signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since May 6, 1994.
(e) 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.

MEMBER HURTGEN, concurring and dissenting in part.
I agree with my colleagues that the Respondent vio-
lated Section 8(a)(3) and (1) by refusing to hire appli-
cants William Bathurst, Tony Bishop, Rodney Cameron,
Robert Lopes, and Walter Walters.1 For the reasons
stated below, I also agree with the majority that the Re-
spondent unlawfully failed to hire applicant Kyle
Wheeler. Contrary to the majority, however, I conclude

6 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.”
1 The only exceptions to these 8(a)(3) findings are procedural ones
which, for the reasons stated by my colleagues, I reject.
that the Respondent did not unlawfully refuse to hire
applicants Dan Caley and Barry Culloty.
With regard to Wheeler, I agree with the judge and my
colleagues that the General Counsel established a prima
facie case that the Respondent refused to hire Wheeler
because of his union membership or activities. Thus,
Wheeler engaged in union activities when applying for
work, and the Respondent was well aware of this activ-
ity. Further, Wheeler was qualified for the journeyman
pipefitter positions for which the Respondent advertised,
and which it subsequently filled with later applicants.
I further find that the Respondent failed to rebut this
prima facie case by establishing that it would not have
hired Wheeler regardless of his union activities. I first
reject the Respondent’s defense that it lawfully refused to
hire Wheeler because he operated a competing company.
The evidence establishes that the Respondent hired
plumbers who operated their own companies. Thus,
within 2 months of Wheeler’s application, the Respon-
dent hired applicant Frederick Long who—with the Re-
spondent’s knowledge—owned and continued to operate
a competing plumbing company. Further, within months
of hiring Long, the Respondent hired another self-
employed plumber, Albert Chano.
In any event, I also reject the judge’s conclusion that
the Respondent believed that Wheeler was operating a
competing plumbing company at the time of his applica-
tion. Wheeler wrote on his application that he was not
currently employed. Further, even if reporting his owner-
ship in California Plumbing from “89–94” on the appli-
cation, without providing the requested “reason for leav-
ing,” might have created some uncertainty, the Respon-
dent easily could have resolved it during an employment
interview. As the judge concluded with regard to dis-
criminates Bathurst, the Respondent cannot “assert its
ignorance of the matters it should have learned of in such
an interview to justify it[s] failure to offer [him] em-
ployment.”
In light of the foregoing, I agree with my colleagues
that the Respondent failed to rebut the prima facie case
that it unlawfully refused to hire Wheeler.
As to Caley and Culloty, I find that the General Coun-
sel established a prima facie case, for the reasons dis-
cussed above for applicant Wheeler. Contrary to my col-
leagues, however, I agree with the judge that the Re-
spondent rebutted that case by demonstrating that it
would not have hired Caley and Culloty regardless of
their union activity. Thus, the judge specifically credited
estimator Adams that, after the eight union applicants
applied for work, he told Lee Pettit that he recognized
Caley and Culloty as unsatisfactory employees formerly
employed by Pettit’s defunct company, No-Cal. The
judge further credited Pettit, who made the decisions
whether to interview and hire. Pettit testified that, be-
cause of Adams’ representations, Caley and Culloty
would not be interviewed or hired. Indeed, as found by
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 902
the judge, Pettit’s explanation was particularly credible
because “Adams’ report [ ] to Pettit in response to his
query about [Carey and Culloty] is essentially cotermi-
nous with Pettit’s initial decision about the two appli-
cants and should not be lightly discounted.” Similarly,
the credibility resolutions of the judge should not be
lightly disregarded.
I agree with my colleagues that the “overarching”
question is one of motive. However, under Board law,
that question is to be decided under Wright Line, 251
NLRB 1583 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982). Under that case, a
prima facie case of improper motive can be rebutted.
Given the credibility resolutions, it is clear to me, as it
was to the judge, that the Respondent relied upon Ad-
ams’ statement to Pettit, and that the Respondent would
have refused to hire the two employees even if they had
not engaged in union activity.
Finally, I do not agree with my colleagues that the fact
that the Respondent, on other occasions, has considered
or rehired less-than-exemplary former employees is a
sufficient basis for setting aside the judge’s credibility-
based findings. Indeed, when resolving credibility, the
judge expressly considered arguments that the Respon-
dent, on other occasions, may have hired plumbers with
less-than-exemplary credentials. I find that nothing in my
colleagues’ discussion warrants reversing the judge. In
essence, my colleagues compare the shortcomings of
these hired plumbers with the shortcomings of the al-
leged discriminatees. However, that is not a comparison
for my colleagues to make. Respondent made the com-
parison based on its assessment of the relative merits of
the employees. I would not second-guess that judgment.
Further, the fact that the Respondent has hired less-than-
exemplary plumbers, in circumstances where it was
“desperate” for plumbers, is neither determinative nor
comparable here. There is no showing that the Respon-
dent was similarly “desperate” for plumbers at the time
of these applications. Indeed, the Respondent seemed to
have an ample supply of applicants.
Accordingly, I would dismiss allegations that the Re-
spondent violated Section 8(a)(3) and (1) by failing to
hire Caley and Culloty.

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.

Employers subject to the National Labor Relations Act
must consider applicants for hire free from any discrimi-
nation based on those applicants’ union activities which
activities include the applicants’ support for or intention
to organize on behalf of the Plumbers & Steamfitters,
Local 343, United Association of the Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of
America and Canada, AFL–CIO.
WE WILL NOT fail and refuse to consider for em-
ployment, to interview, or to hire plumber applicants
who support the Plumbers & Steamfitters, Local 343,
United Association of the Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of America and
Canada, AFL–CIO, or who indicate that they will at-
tempt to organize our employees on the Union’s behalf.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer employment as plumbers to the fol-
lowing plumber job applicants, terminating, if necessary,
any plumber employees hired on or after May 6, 1994:

William Bathurst
Anthony Bishop
David Caley,
Rodney Cameron
Barry Culloty
Robert Lopes
Robert Walters
Kyle Wheeler

WE WILL make the above-named individuals whole
for all losses of wages and benefits they suffered as a
result of our failure to consider and offer them employ-
ment, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful refusal to consider for hire and hire the
above-named individuals, and WE WILL, within 3 days
thereafter, notify each of them in writing that this has
been done and that the prior handling of their applica-
tions will not be used against them in any way.

NORTH BAY PLUMBING INC.

Marilyn O’Rourke, Esq., for the General Counsel.
Mark Thierman, Esq., of San Francisco, California, for the
Respondent.
Diane Sidd-Champion, Esq. (McCarthy, Johnson & Miller), of
San Francisco, California, for the Charging Party.
NORTH BAY PLUMBING 903
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge.
This case was tried in San Francisco, California, during the
week of July 15, 1996. The charge was filed by the Plumbers &
Steamfitters, Local 343, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL–CIO (the Union or the Charg-
ing Party) against North Bay Plumbing, Inc. (the Respondent)
on July 14, 1994.1 A complaint and notice of hearing was is-
sued by the Regional Director for Region 20 of the National
Labor Relations Board on February 29, 1996. Posthearing
briefs were due on August 22, 1996.
The complaint alleges, and the answer denies that, on and af-
ter May 6, 1994, the Respondent failed and refused to consider
for hire, or hire, eight individuals because of their support for
and assistance to the Union, and discouraged its employees
from engaging in concerted activities, in violation of Section
8(a)(1) and (3) of the National Labor Relations Act (the Act).
On the entire record, including my observation of the de-
meanor of the witnesses, and the briefs filed by the General
Counsel and the Charging Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, the Respondent has been a California
state corporation with an office and place of business in Fair-
field, California, where it has been engaged in the business of
installing residential plumbing. During calendar year 1994,
Respondent, in conducting its business, provided services val-
ued in excess of $50,000 to enterprises within the State of Cali-
fornia, each of which meets the Board’s standards for the asser-
tion of jurisdiction on a direct basis.
The Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent has been incorporated since the early 1980s
and is primarily engaged in the business of installation of resi-
dential plumbing in Solano and adjacent California counties.
The Respondent’s president is Elmer Lee Pettit (Lee Pettit)
whose wife owns the corporation. Patrick Pettit, son of Lee
Pettit, is the Respondent’s superintendent and David Adams is
its estimator/purchasing agent. The Respondent’s employees
have never been represented for purposes of collective bargain-
ing.
Lee Pettit was also president of a separate entity, Nor Cal
Plumbing, which had a collective-bargaining relationship with
the Union from 1965 until 1987. That entity ceased operations
in 1989. The Union and Mrs. Lee Pettit have been involved in

1 The Respondent is and has been at all relevant times, an employer
engaged in commerce within the meaning of Sec. 2(2), (6), and (7) of
the Act.
substantial and protracted litigation respecting disputed obliga-
tions to the Union.
Plumbers and plumbers’ helpers are the Respondent’s pri-
mary employees but its craft work is not highly structured and
all employees pitch in to do work as needed. The Respondent
handles hiring on a relatively informal basis. Applicants are
generated by use of the State of California’s employment ser-
vices, newspaper advertising, employee suggestions, and walk-
in applicants. Applicants are interviewed by either of the
Pettits or Adams. Lee Pettit is usually consulted respecting the
hire of a given individual. While applications are normally
filled out, some employees have been hired without complet-
ing an application form and completed application forms are
not maintained by the Respondent indefinitely.
In very simple terms, the plumbing trade may be divided into
three broad categories of work: residential, commercial, and
industrial.2 Residential plumbing involves the installation of
new plumbing in homes, and is generally the simplest and most
repetitive type of plumbing work with an emphasis on speed
and economy of operation. Commercial plumbing deals with
the installation of plumbing in commercial buildings and is
generally more complex than residential plumbing. Industrial
plumbing covers the wide range of plumbing involved in indus-
trial buildings and processes and generally involves the highest
degree of skill and experience.
B. Events
1. The submission of applications
In the first week of May 1994, the Respondent placed a help
wanted advertisement in the Vacaville Reporter, a local news-
paper, which stated:

JOURNEYMAN plumbers wanted
for local contractor. Apply at
North Bay Plumbing Inc.,
1651 Cement Hill Rd, Fairfield

The advertisement caught the eye of Rodney Cameron, chief
organizer for the Northern California/Northern Nevada Pipe
Trades District Council No. 51 and business agent for the
Charging Party.3 Cameron contacted the Union’s business
manager, Michael Beavers, told him about the advertisement,
and asked him to provide a list of qualified union member
plumbers. Beavers did so. Cameron reached then-unemployed
plumbers William Bathurst, Anthony (Tony) Bishop, Daniel
Caley, Barry Culloty, Kyle Wheeler, and District Council Or-
ganizers Robert Lopes and Robert Walters, informed them that
he intended to apply for and accept work with the Respondent,
and solicited their participation in this effort.4 The seven
2 The Union is a labor organization within the meaning of Sec. 2(5)
of the Act.
3 Cameron testified he had responded to a similar advertisement in
November 1993, and applied for a position with the Respondent. At
that time he spoke to Patrick Pettit who took his application but when
asked about “other union brothers” applying for work said “they didn’t
want anybody stirring up the troops there at North Bay Plumbing.
They could make application but they probably wouldn’t get hired.”
Patrick Pettit gave a precomplaint deposition in which he described the
conversation with Cameron in 1993, but did not recall the “hire” re-
marks attributed to him.
4 While there are certain limitations on union members working for
“non-union” contractors, Cameron explained to the individuals that the
planned action was permissible under the “salting” or organizational
provisions of the Union’s governing provisions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 904
agreed to participate with Cameron. The eight individuals
counting Cameron in the total (sometimes hereinafter referred
to collectively as the eight) met on the morning of May 6,
donned union pins and hats,5 and drove to the Respondent’s
offices.
The eight entered the Respondent’s office, requested and re-
ceived blank job applications, completed them on site and sub-
mitted them to the office secretary requesting and receiving
photocopies for their retention. The applications were received
in evidence. The eight applicants wrote “plumber” on their job
applications for “employment desired.” All listed previous
plumbing employment under “former employers.” Lopes,
Cameron, and Walters wrote on their applications that they
were employed as organizers by the District Council. The other
applicants wrote on their applications that they were “voluntary
organizers” for the Union. After submitting their completed
applications the eight left.
Cameron, corroborated by Bathurst, and Walters, testified
that during this process Cameron asked David Adams about the
Respondent’s need for plumbers. Adams said that the company
had quite a bit or a lot of work. Cameron then asked how many
people the Respondent needed, and Adams said two or three
people right away. Adams did not recall this conversation with
Cameron and expressed doubt he would have made the state-
ments attributed to him.
Rick L. Barstad, at the time a foreman for the Respondent,
testified that somehow he learned of the eight’s actions and, at
the end of his field work on the same day he returned to the
office and asked Adams about it. Barstad testified:

I said to Dave [Adams], I said, I heard some union plumbers
came into the shop looking for work. And I said, you know,
are we going to hire any of these guys? And Dave said, no, I
wouldn’t hire any of these guys on a bet.

Adams did not address this conversation in his testimony.
2. The Respondent’s hire of plumbers in and after May 1994
The parties stipulated that some 24 individuals were hired
and started work for the Respondent during the period May 9
through July 11. The Respondent identified most of these new
hires as plumbers, helpers, laborers, and backhoe operators.
The four Respondent-identified plumbers who began working
during this period were paid a wage of $15 or $16 per hour,
while the 11 helpers were paid various rates with 5 earning $15
per hour, 2 earning $14 per hour and the others less. Thereaf-
ter, through 1994 and 1995, many other plumbers were hired.
After leaving the Respondent’s premises on May 6, 1994,
none of the eight was contacted by the Respondent for ap-
proximately a year. In 1995 the Respondent sent letters to
various of the eight with varied success in reaching them. It
also interviewed Anthony Bishop for employment.
3. Evidence of the Respondent’s consideration of the eight
applicants for interviews or employment
Adams testified in his Board deposition, that he was asked
about the eight applicants and shown a few of their applications
by Lee Pettit a day or so after the eight had visited the facility.

5 One of the caps bore the legend “AMERICA WORKS BEST
WHEN WE SAY UNION YES” and displayed the Union’s logo.
Another cap displayed “UA” in large letters and carried the Union’s
logo. One button said: “ORGANIZING UA COMMITTEE,” another:
“ALL THE WAY WITH THE U.A. THERE IS NO SUBSTITUTE
FOR U.A. SKILLED CRAFTSMEN.”
He recognized three names and told Lee Pettit what he knew of
Dan Caley, Barry Culloty, and Rod Cameron. Adams recalled
telling Pettit that Culloty and Caley had worked for him at Nor
Cal and that he viewed Culloty as slow in production and Caley
as irresponsible. He told Lee Pettit that he recognized Cam-
eron’s name but otherwise had no knowledge of his work or
experience.
Lee Pettit, in his Board deposition, testified that at relevant
times he believed Kyle Wheeler to be the owner of a direct
competitor enterprise, California Plumbing. He testified: “He
bids against me every day,” and indicated that was the reason
he did not further contact, interview or offer Wheeler a job.
Pettit testified in essence that the three union officials, while
qualified to work for the Respondent, were not sincere job ap-
plicants and for that reason he gave them no consideration.
More specifically, he testified that while Robert Walters was
not personally known to him and his application listed experi-
ence which seemed to justify an interview and further consid-
eration, his application also indicated he was “already em-
ployed for $30 an hour, and there’s no way in my opinion that
he’s going to accept a job from me and give that one up.” Lee
Pettit testified about Rodney Cameron:

He is presently employed, and he is a business agent and why,
in my opinion, am I to believe that he seriously wants a job
with me for a lot less money?
. . . .
The man is a business agent and he’s not looking for a job.
He’s not interested in coming into my company and going to
work for less money and giving this job up and becoming a
good, steady, dependable employee.

Pettit equated Bob Lopes’ application and circumstances
with those of Cameron and Walter’s. Thus, Lee Pettit testified
that he did not consider offering employment to any of the three
because he did not believe that Walters, Cameron, or Lopes
would “give up” their better paying union jobs to come to
work for the Respondent as a substantially lesser wage.
Lee Pettit testified that William Bathurst’s application did
not justify interviewing nor hiring him:

Because I judge this man to be more commercial than resi-
dential. And in my opinion, his experience has been in the
commercial industry and he could not fit what I had to offer at
that time.

Respecting Daniel Caley, Lee Pettit testified he did not in-
terview Caley because he had previously worked for Nor Cal
and had been discharged by Adams from that position for lack
of production and missing time at work. Lee Pettit testified
similarly respecting Barry Culloty, that he was not hired be-
cause of Adam’s work experience with him. Caley and Culloty
each testified that he had not been discharged for cause during
his employment at Nor Cal, but rather had been laid off for lack
of work in the normal course of affairs.
Essentially no testimony was received respecting the Re-
spondent’s pre-May 1995 consideration of Tony Bishop’s ap-
plication. Adams did not know him. Lee Pettit testified that in
May 1994, he did not recognize the name of Tony Bishop, but
upon interviewing him in May 1995, recognized his face as
someone he knew from times past without being able to iden-
tify the basis for his familiarity.
NORTH BAY PLUMBING 905
C Analysis and Conclusions
1. The analytical framework
The Board in Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), established a test for approaching discrimination alle-
gations which was recently restated in Manno Electric, Inc.,
321 NLRB 278, 280 fn. 12 (1996):

Under [the Wright Line] test, the Board has always first re-
quired the General Counsel to persuade that antiunion senti-
ment was a substantial or motivating factor in the challenged
employer decision. The burden of persuasion then shifts to
the employer to prove its affirmative defense that it would
have taken the same action even if the employees had not en-
gaged in protected activity. Office of Workers’ Compensation
Programs v. Greenwich Collieries, [114 S.Ct. 2551, 2557–
2558 (1994)] supra at 2558.

The complaint allegations that the Respondent improperly
failed to consider, which in this context includes a failure to
offer to interview and to offer employment to the eight, must be
evaluated utilizing that analytical framework.
2. The General Counsel’s case
The General Counsel has established three important thresh-
old facts. First, the Respondent was advertising for journeymen
plumbers at the time the applicants applied for employment and
in the period thereafter the Respondent hired numerous plumb-
ers. Second, the eight applicants submitted employment appli-
cations in circumstances making it clear to the Respondent’s
agents they were acting in concert and with an unambiguous
intent, if hired, to attempt to engage in organizing activities
among the Respondent’s plumbing craft employees.6 Third, the
General Counsel has established that the eight had the qualifi-
cations to perform plumber’s work for the Respondent.7
The government has also established the Respondent’s ani-
mus against the Union and the idea of the Respondent’s em-
ployees selecting the Union as their representative for purposes
of collective bargaining. Crediting Barstead’s8 testimony re-
garding his conversation with Adams on the day the applicants
visited the Respondent’s premises, I find that the word had
gone out that “union plumbers” had sought work with the Re-
spondent and that Adams, at least, expressed the opinion he
“wouldn’t hire any of these guys on a bet.”

6 I reject the Respondent’s argument that the earlier actions of the
Union respecting the Respondent made it unlikely that these individu-
als, if employed by the Respondent, would in fact attempt to organize
the Respondent’s work force. I also reject Respondent’s argument that
the its agents would not have taken the eight at their word in this re-
gard. I specifically find, based on the conduct of the eight and the
record as a whole, that Respondent’s agents in fact believed that orga-
nizing efforts of behalf of the Union would in fact occur if any of the
eight was hired.
7 I specifically find that each of the eight was qualified to perform
the type of work on offer at the Respondent. Further, based on the
testimony of the qualifications of the individuals, the testimony regard-
ing the work done in the industry and the qualifications of the employ-
ees hired in the past by the Respondent, I find that none of the eight
was so “overqualified” or specialized in nonresidential construction or
installation plumbing that the Respondent would not have considered
them for employment on that basis simply by examining their applica-
tions.
8 Barstead had a very sound demeanor and a clear recollection of
events.
Lee Pettit, at the time in question, had been in litigation with
the Union and could fairly be said to be opposed to having his
employees select the Union to represent them in collective bar-
gaining. Various remarks were attributed to Lee Pettit which I
credit that indicated hostility to the Union’s efforts to obtain a
monetary judgment against Pettit and his wife based on con-
tested matters arising out of the Union’s representation of Nor
Cal’s employees.
The Respondent argued that it was indifferent to the union
membership of the employees it hired and that it had hired un-
ion members heretofore. I do not find these assertions inconsis-
tent with a finding, which I make, that the Respondent was
opposed to the Union’s representation of its employees and
therefore opposed to hiring any job applicants who it believed
would attempt to organize its employees.
In this context Lee Pettit, in May 1994, considered the appli-
cations of the eight and, despite have a running newspaper ad-
vertisement seeking journeyman and despite hiring various
individuals as plumbers in the following weeks and months,
found none of the eight worthy of followup contact, interview,
or job offer.9
As noted, it is clear that the Respondent was seeking
plumber applicants, hired plumber applicants through the pe-
riod, recognized that the eight individuals involved herein were
intending to organize the Respondent’s employees, and did not
hire, interview, or offer them employment despite their appar-
ent qualifications. A failure to consider or hire an employee
applicant because that applicant is believed intent on organizing
an employer’s employees is a violation of Section 8(a)(3) and
(1) of the Act.
I find and conclude that the evidence summarized above sus-
tains the General Counsel’s burden to persuade that the Re-
spondent failed and refused to consider, interview, or offer
employment to each of the eight applicants because of the
Respondent’s belief that any and all of the eight job applicants
would attempt to organize the Respondent’s plumbing craft
employees on behalf of the Union.
3. The Respondent’s affirmative defense that it would have
taken the same action even if the applicants had given no basis
for belief that they were union supporters or intended to organ-
ize the Respondent’s employees10
Having found the counsel for the General Counsel has sus-
tained her initial obligation under Wright Line, the burden of
persuasion then shifts to the Respondent to prove its affirmative
defense that it would not have considered, interviewed, or of-
fered employment to the eight, even if the applicants had not
applied in a manner indicating they had or were not suspected
by the Respondent of having intentions to attempt to organize
the Respondent’s employees. The Respondent asserts various
defenses: some of which address all of the applicants as a
whole, and others which address individual applicants. They
will be considered in turn.
9 One interview of an applicant was conducted approximately one
year later as the unfair labor practice charges herein matured. I find
that interview and what occurred in May 1995 is sufficiently removed
from the events in controversy so as not to constitute significant evi-
dence of the alleged violations. The evidence of these 1995 events may
be relevant to the compliance stage of these proceedings.
10 The Respondent’s arguments are taken from its argument during
the course of the trial. It did not submit a posthearing brief or argue the
case orally.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 906
a. The Respondent’s common defenses
The Respondent argues that the eight, in announcing an in-
tention to organize the Respondent’s employees, were not en-
gaging in protected activity or, in the alternative, the Respon-
dent did not believe the applicants in fact intended to organize
its employees because the Union had, in the past, not been will-
ing to demand recognition of the Respondent. Further, the
Respondent argues that, because the eight would not in fact
have attempted to organize the Respondent’s employees, but
rather would have solicited the Respondent’s employees to
leave the Respondent’s employ and seek employment with
other employers under contract with the Union, that the eight
were, if anything, intending to engage in unprotected activity
for which the Respondent could properly discharge them.
Irrespective of whether or not the Union acted in the past as
the Respondent contends, claims which the General Counsel
and the Charging Party strongly dispute,11 the eight made no
assertions respecting any conduct other than that of attempting
to organize employees, i.e. acting as “organizers,” and the Re-
spondent may not rely on broader notions based on argued past
conduct of the Union to render the applicant’s union affiliations
or assertions of “organizer” interest unprotected by virtue of
speculations concerning the future intentions of the Union.
The Respondent also argues that, because the Union was in
litigation with Mr. and Mrs. Lee Pettit and the Respondent,
organizing attempts on behalf of the Union were unprotected or
that the Respondent was permitted under these circumstances to
refuse to consider and/or hire union members, advocates and
union officials and employees. The General Counsel and the
Charging Party argue vociferously that there is no such excep-
tion to the general protections of the Act, and that labor organi-
zations are often in contest with employers without union sup-
porting employees or job applicants losing the protections of
Section 8(a)(3) and (1) of the Act. I agree.
b. The Respondent’s defenses as to individual applicants
(1) Union employees Cameron, Lopes, and Walters
Lee Pettit testified that he did not interview or offer em-
ployment to any of the three union officials because they were
paid substantially more than was on offer from the Respondent
and he judged them not to be seriously interested in giving up
such employment and becoming “good, steady, dependable”
employees of the Respondent. It appears that the Respondent’s
argument concerning the reason for declining to offer them
employment turns not so much on the amount that these three
individuals had been paid in the past so much as the fact that
they were still employed in such a high wage position at the
time they submitted their applications. Thus, Lee Pettit testi-
fied in his deposition under questioning by the counsel for the
General Counsel:

Q. Do you ever hire people who put on their applica-
tion that they made more in their current or previous job
than you pay at North Bay Plumbing for a plumber? [In-
tervening comments of counsel for the Respondent omit-
ted.]
11 Were it necessary to decide, based on the record as a whole and in
agreement with the arguments of the General Counsel and the Charging
Party, I would find that the evidence offered by the Respondent to show
that the Union had no intention to organize the Respondent was inade-
quate to support such an argument.
THE WITNESS. I possibly have, but they w[ere] not
employed at that time. And what they made in the past I
don’t care.

The Respondent argues that a determination not to hire ap-
plicants currently paid substantially more than would be offered
them for employment with the Respondent is a business deci-
sion free of discriminatory or illegal intent. The General Coun-
sel argues that by suggesting that it need not hire a paid union
official the Respondent is simply attempting to reverse the Su-
preme Court’s unanimous decision in NLRB v. Town & Coun-
try Electric, 516 U.S. 85 (1995), 116 S.Ct. 450, 133 L.Ed.2d
371 (1995), holding that union officials and other union loyal-
ists are entitled to protection under the Act.
I disagree with the General Counsel’s position that Town &
Country resolves the issue as raised by the Respondent. If an
employer has a rule or practice of not hiring job applicants that
are currently employed at wages substantially higher than those
available at that employer, such a rule in benign12 circum-
stances could be applied to justify not hiring or further consid-
ering labor organization officials who are currently employed at
higher wages. Town & Country and the many Board cases ad-
dressing the application of the Act to individuals with union
associations do not in my view do more than establish that there
are no statutory impediments to treating such individuals like
other employees or employee applicants.
I find the issue raised by the Respondent is one of fact.
Thus, I accept the proposition that, if the Respondent is able to
meet its burden of persuasion to prove its affirmative defense
that it would not contact, interview or hire any plumber appli-
cant however otherwise qualified, who was currently employed
by another employer at a substantially higher wage, the Re-
spondent could well establish that it had properly declined to
offer employment to these three individuals.
The problem for the Respondent is that Lee Pettit clearly did
not assert that he was following such a past practice, or that the
union officials’ current high wage employment was the basis
for his not interviewing or hiring them. Thus Pettit testified
further under examination by counsel for the General Counsel:

Q. Okay, so is it correct you’re saying then if they’re
currently employed for more money you do not hire them?
A. I didn’t say that.
Q. Or interview?
A. I said in —
Q. Okay, explain it —
A. —my opinion —
Q. —to me.
A. . . . the man is a business agent and he’s not looking
for a job. He’s not interested in coming into my company
and going to work for less money and giving this job up
and becoming a good, steady, dependable employee.
Now these are the way[s] I evaluate who you call in
and who you don’t call in. And I have clarified for you
before, I don’t care if he’s union, nonunion, black, white,
yellow or gold. Matters not. But I’m also a sensible per-
son.

12 Rules which are in fact or in application designed to rule out ap-
plicants because of their protected or union activities, even if facially
neutral, would not be valid. See Tualitin Electric, Inc., 319 NLRB
1237 (1995).
NORTH BAY PLUMBING 907
I find the quoted explanation Lee Pettit gave for not further
contacting, interviewing, or offering employment to the three
Union employees, distills down to his belief that well paid labor
organization employees could not be serious about being em-
ployees of the Respondent.13 The Board has made it clear that,
where an employer argues that a labor organization official or
organizer would not in fact have accepted a position with the
employer and therefore the employer need not have offered the
union applicant such a position, the employer must do more
than simply speculate concerning the individual’s actual inten-
tions. Thus, the Board finds that, where the question of
whether or not an individual would have accepted employment
could not be answered because of the employer’s wrongful
refusal to offer employment to the applicant, any doubts must
be resolved against the wrongdoer whose actions created the
doubt. The Board has explicitly applied that requirement to an
employer who claimed a union organizer would not have ac-
cepted a position with it in Arrow Flint Electric Co., 321 NLRB
1208 (1996). Applying that case to the facts herein, the Re-
spondent has not established a valid reason for not offering
employment to the three union officials.
Based on all the above and the record as a whole, I find that
the Respondent has failed to meet its burden of persuasion that
the three Union employees would not have been hired had they
not been perceived by the Respondent as likely to attempt to
organize the employees of the Respondent.
(2) Kyle Wheeler
Lee Pettit testified that at relevant times he knew Kyle
Wheeler to be the owner of California Plumbing, a competitor,
which bid against the Respondent for jobs and therefore did not
further consider him for employment. The General Counsel
and the Charging Party emphasize both that Wheeler at the time
he applied for work with the Respondent no longer ran Califor-
nia Plumbing and that the Respondent had hired Frederick
Long in the summer of 1994 knowing that at the time of his
hire he was the owner of Above All Plumbing. Thus they argue
that Pettit’s asserted reason for not hiring Wheeler was simple
pretext.
I do not find the fact that Long was hired as an owner of a
small company primarily doing service and repair plumbing—
an entity not identified on this record as a true competitor of the
Respondent—to be fatally inconsistent with Pettit’s testimony
that he did not want to hire the owner of a competitor who bid
against his company “every day.” Nor do I find the fact that
the Respondent had hired other individuals who possessed con-
tractor’s licenses or who had been self employed in the plumb-
ing trade during periods of their unemployment or after their
businesses had failed or were experienced slow times, is incon-
sistent with Pettit’s testimony.
I also do not find there is record evidence that the Respon-
dent generally or Lee Pettit in particular was ever made aware
of Wheeler’s loss of employment or that he was no longer run-
ning California Plumbing at the time he applied for work.
Wheeler’s application recites he was the owner of California
Plumbing in the period “89–94” and leaves the application box
“reason for leaving” blank fairly indicating to the reader that he

13 The General Counsel and the Charging Party argue convincingly
on brief that to the extent Pettit’s argument is that he needed steady or
long term employees, the Respondent has a practice of hiring employ-
ees knowing they would be short term and using them for as long as
they were available.
remained with California Plumbing as of the time of the appli-
cation. Pettit was not crossexamined on his assertion that
Wheeler was thought by him to be the owner of California
Plumbing at the time he applied for employment.
I find that Lee Pettit’s testimony respecting Wheeler is not
inconsistent with the evidence adduced by the General Counsel
and is credible. Therefore I find that, at the time of Wheeler’s
application and thereafter, Lee Pettit believed Wheeler was the
owner of a business competitor of the Respondent in the impor-
tant and primary sense of a frequent bidder on and therefore in
direct competition for the same jobs that the Respondent bid on.
It is plausible that one business would not desire to employ the
owner of a competitor for a variety of valid commercial reasons
unrelated to issues of union representation. I am persuaded that
the Respondent would have declined to employ Wheeler in all
events believing him to be the current owner of California
Plumbing. I therefore find that the Respondent has established
that it would not have hired Wheeler, even had it had no
knowledge or belief that he intended to organize the Respon-
dent’s employees or had made common cause with other job
applicants who so intended.
(3) Caley and Culloty
Adams testified he told Lee Pettit, within a day or two after
the eight had applied for employment with the Respondent, that
Culloty and Caley had worked for Nor Cal and that he viewed
Culloty as slow in production and Caley as irresponsible. Lee
Pettit testified that he did not interview of offer work to Caley
because of Adam’s experience with him. In his deposition he
testified that Adams had earlier fired Culloty as a Nor Cal
employee “for being insufficient to handle the duties assigned
him” and asserted his knowledge of that fact was the reason he
did not interview or offer employment to Culloty.
The General Counsel and the Charging Party argue that the
Respondent’s asserted reasons for not hiring these two indi-
viduals are simple fabrications. Thus, they note that neither
employee was told he was being discharged for cause as op-
posed to being simply laid off at the end of his employment at
Nor Cal and there were no employer records offered into evi-
dence indicating their discharges were for cause. It is not al-
ways true, however, that employees are informed of an em-
ployer’s dissatisfaction with their work at the time they are laid
off. Further, it is not so much the truth of Adam’s opinions
about these men that is relevant so much as what he told Lee
Pettit about the two in May 1994 and Lee Pettit’s belief in
Adam’s assertions and deferral to his opinion. Honest reliance
by an agent of management on the negative opinion of another
concerning a job applicant in declining to hire him or her is
sufficient to justify the decision taken absent other circum-
stances.
Important to the resolution of the dispute concerning Caley
and Culloty, I credit Adam’s testimony that he told Lee Pettit
soon after the eight applied for employment that he recognized
these two men among the eight applicants and that the two had
not been satisfactory employees at Nor Cal. Given that finding,
I also credit Lee Pettit’s testimony that he learned of Adam’s
experience and opinion of the two and for that reason would not
have interviewed or offered employment to either of them in all
events.
The General Counsel and the Charging Party also assert that,
whatever the negative opinions and evaluations that might have
been reported to Pettit about these two individuals, the Respon-
dent had hired plumbers with less sterling credentials and the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 908
Respondent should not be allowed to rely on such general
statements of disapproval to justify rejecting the two men’s
applications. I realize the Respondent bears the burden of per-
suasion at this stage of the analysis, but find that Adam’s report
given to Pettit in response to his query about the applicants is
essentially conterminous with Pettit’s initial decision about the
two applications and should not be lightly discounted.
Based on all the above and the record as a whole and while
the issue is a close one, I find and conclude that the Respondent
has met its burden of persuasion that it would not have hired
Messrs. Caley and Culloty even had it had no knowledge or
belief that they intended to organize the Respondent’s employ-
ees or had made common cause with other job applicants who
so intended.
(4) William Bathurst
Although Bathurst has experience in plumbing for contrac-
tors, he also had 6 years of experience in the trade as an instruc-
tor for the local plumbing trades apprenticeship program. His
application however listed four construction or plumbing com-
panies and did not disclose his instruction experience. As noted
supra, Lee Pettit asserted Bathurst’s experience was too com-
mercial to justify further inquiry or the granting of an interview.
The General Counsel points out that Pat Pettit testified that
the experience listed on Bathurst’s application would have
merited an interview. Further the General Counsel argues, in
an interview, the Respondent would have learned of Bathurst’s
residential plumbing knowledge and experience. The General
Counsel argues that since the Respondent wrongfully denied
Bathurst an interview, it may not assert its ignorance of the
matters it would have learned of in such an interview to justify
it failure to offer Bathurst employment. Finally the General
Counsel and the Charging Party note that the Respondent fre-
quently hired plumbers with less experience and training than
was evident on Bathurst’s application.
I agree with the General Counsel that the Respondent should
be held to have known all that it reasonably would have learned
in an interview for purposes of determining the propriety of the
Respondent’s failure to offer employment to the job applicant,
if that interview was wrongfully withheld. Crediting Pat Pettit
over Lee Pettit, as well as in consideration of the evidence re-
specting the various types of work within the plumbing industry
and the evidence of the qualifications of the employees hired by
the Respondent at relevant periods, I agree that Bathurst’s skills
and experience as they appeared on his application would have
merited an interview from the Respondent and that the inter-
view was therefore wrongfully withheld. Lee Pettit’s rather
cryptic rejection of Bathurst as too commercial and that “he
could not fit what I had to offer at that time” was far to certain a
rejection at the preinterview stage of the application process
given the Respondent’s track record of hiring to that time. I
further find that had an interview or inquiry been made by the
Respondent, it would have determined Bathurst’s skills and
experience would in fact have “fit” what the Respondent had to
offer. Accordingly, I find the Respondent has not met its bur-
den in sustaining its affirmative defense that it would not have
interviewed nor offered Bathurst employment, even had he not
been viewed as a union organizer or associated with the others
who intended to organize the Respondent’s employees.
(5) Anthony Bishop
Anthony Bishop was interviewed for employment by the Re-
spondent in May 1995.14 The Respondent argues that Bishop
and perhaps others of the eight should have any make whole
remedy directed to them reduced as a result of events in and
after May 1995. I find all such events sufficiently remote from
the failure to hire allegations of May 1994 that those issues
should be deferred to and resolved in the compliance stage of
these proceedings, if necessary. Accordingly, I find none of
those later events relevant to a determination of the merits of
the complaint unfair labor practice allegations.15
Inasmuch as the Respondent makes no particular contentions
respecting Bishop as an individual in 1994 not heretofore dis-
cussed, I find that it has not established an affirmative defense
as to Bishop.
(6) Summary of findings respecting the Respon-
dent’s affirmative defenses
Having considered the Respondent’s affirmative defenses
consistent with the Wright Line doctrine, I have found that no
general affirmative defense applicable to all the alleged dis-
criminatees is viable. Respecting defenses specific to Bathurst,
Bishop, Cameron, Lopes, and Walters, the Respondent has
failed to meet its burden of persuasion that it would have de-
clined to interview and offer employment to each and every one
of these five job applicants, even if they had not engaged or
been suspected by the Respondent of planning to engage in
protected organizing activity.
As to individual affirmative defenses specific to Caley, Cul-
loty, and Wheeler, I further find that the Respondent has met
meet its burden of persuasion that it would have declined to
interview and offer employment to any and all of these indi-
viduals, even if they had not engaged or been suspected by the
Respondent of planning to engage in protected organizing ac-
tivity.
4. Summary of violations found
I have found that the Respondent improperly failed to con-
sider for employment and denied interviews and offers of em-
ployment to the following individuals because they had an-
nounced an intention to attempt to organize employees of the
Respondent:

William Bathurst
Tony Bishop
Rodney Cameron
Robert Lopes
Robert Walters

This conduct violates Section 8(a)(3) and (1) as alleged in
the complaint and I so find. I therefore sustain the relevant
complaint allegations.

14 In what surely must be regarded as the ultimate job interview sce-
nario in an adversarial relationship, Bishop acting in part under the
apparent compulsion of a subpoena issued by the Respondent and ac-
companied by union agents and union counsel arrived at the Respon-
dent’s premises and was initially met by the Respondent’s agents, the
Respondent’s labor counsel, and a court reporter.
15 To the extent the General Counsel and the Charging Party argue
that the granting of an interview to Bishop in May 1995 indicated he
was viewed as qualified by the Respondent in 1994, in agreement with
the Respondent, I find the Respondent’s actions at that time may be as
easily explained as simply a prudent approach by the Respondent given
the processing of the instant charge.
NORTH BAY PLUMBING 909
I have found that the Respondent did not improperly fail to
consider for hire, deny interviews [or] to or deny offers of em-
ployment to the following individuals because they evinced
support for the Union or had indicated an intention to attempt to
organize employees of the Respondent:

Dan Caley,
Barry Culloty
Kyle Wheeler

Accordingly, I find that the Respondent did not violate Sec-
tion 8(a)(3) and (1) as alleged in the complaint as to these indi-
viduals. I shall therefore dismiss the relevant complaint allega-
tions.
THE REMEDY
Having found that the Respondent has violated the Act, I
shall direct it to cease and desist therefrom, and take certain
affirmative action in order to effectuate the purposes and poli-
cies of the Act, including the posting of a remedial notice con-
sistent with the Board’s recent modifications to its standard
remedy in Indian Hills Care Centers, 321 NLRB 144 (1996).
I shall direct the Respondent to offer immediate employment
as plumbers to employee applicants William Bathurst, Tony
Bishop, Rodney Cameron, Robert Lopes, and Robert Walters,
discharging, if necessary, any plumber employees hired on or
after May 6, 1994. These individuals would have accepted
employment had it been offered to them by the Respondent in
May and therefore the Respondent’s failure to offer such em-
ployment denied each discriminitee the wages and benefits
such employment would have provided. Therefore, the Re-
spondent shall be directed to make each individual whole, with
interest, for any and all losses of wages and benefits he would
have received, but for the Respondent’s wrongful failure to
interview and offer employment to the five individuals follow-
ing their application on May 5, 1994. The make-whole remedy
shall be calculated in accordance with F. W. Woolworth Co.,
90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651
(1977), with interest as prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
CONCLUSIONS OF LAW
On the basis of the above findings of fact and the record as a
whole, I make the following conclusions of law.
1. The Respondent is and has been at all relevant times, an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(3) and (1) of the
Act by failing and refusing to consider for hire and failing and
refusing to interview and offer employment to the following
plumber employee applicants because of their apparent inten-
tion to attempt to organize the Respondent’s plumbing craft
employees:

William Bathurst
Tony Bishop
Rodney Cameron
Robert Lopes
Robert Walters

4. The unfair labor practices described above are unfair la-
bor practices within the meaning of Section 2(6) and (7) of the
Act.
5. The allegations of the complaint not specifically found
to violate the Act above are without merit and shall be
dismissed.

[Recommended Order omitted from publication.]