Richard Mellow Electrical Contractors Corp.

National Labor Relations Board - Board Decisions

Mar 31, 1999

327 N.L.R.B. 1112 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1112
Richard Mellow Electrical Contractors Corporation
and International Brotherhood of Electrical
Workers, Local 81. Cases 4–CA–22023, 4–CA–
23074, and 4–CA–23148
March 31, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN

1. Contrary to the judge, we find that the Respondent
violated Section 8(a)(1) by requiring applicants for em-
ployment to disclose their union affiliation. It is undis-
puted that, on May 23, 1994,3 Union President Schrader
and union members Kenehan and McIntyre applied for
work at the Respondent’s office. On entering the prem-
ises, they saw a round see-through sticker containing the
word “union” with a diagonal slash over it affixed to the
glass door leading to the main office.4 They requested,
and received, applications along with a form asking them
to state whether they were “currently affiliated with any
local unions.” All three filled out the applications and
the union affiliation forms, on which they identified
themselves as union members. The applicants requested
and received copies of their applications, after which
they left the premises. Although the Respondent was
hiring electricians during this period of time, none of
these individuals was offered employment. On May 24,
the Respondent advised Schrader by letter that, although
“in the past, it has always been our company policy to
include with our employment applications; [sic] a sheet
inquiring whether the applicant was affiliated with any
unions or not,” it would no longer request that informa-
tion (emphasis added).
On January 30, 1996, Administrative Law Judge
George Aleman issued the attached decision. The Gen-
eral Counsel and the Charging Party filed exceptions and
supporting briefs, the Respondent filed an answering
brief, and the General Counsel and the Charging Party
filed reply briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.2

1 The General Counsel and the Charging Party have excepted to
some of the judge’s credibility findings. The Board's established 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 carefully examined
the record and find no basis for reversing the findings.
The judge discredited applicant Tom Skelly’s uncontradicted testi-
mony that, when he applied for a job with the Respondent on May 25,
1994, estimator Dembeski asked him if he was a union member and
told him that the Respondent might have a job for him when Skelly
stated falsely that he was not. Although we adopt the judge’s credibil-
ity resolution in this regard, we disavow the judge’s reliance on
Skelly’s having concealed his union membership during the application
process as one of the grounds for discrediting his testimony.
The Charging Party also asserts that the judge was biased against it.
Thus, the Charging Party notes that the judge, inter alia, discredited
virtually all of the General Counsel’s witnesses even when their testi-
mony was uncontradicted, while crediting virtually all of the testimony
by the Respondent’s witnesses, discredited witnesses called by the
General Counsel based on minor inconsistencies in their testimony
while not discrediting the Respondent’s witnesses despite similar in-
consistencies, and relied on the Respondent’s attorney’s experience to
support his credibility while discrediting the Charging Party’s attorney
despite his similar experience in labor relations. We find no evidence of
bias on the part of the judge.
2 The Charging Party has requested oral argument. The request is
denied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
3 Unless otherwise noted, all dates are in 1994.
That same day, the Regional Director for Region 4 ap-
proved an informal settlement agreement in Case 4–CA–
22023, resolving allegations that the Respondent had
engaged in the following unfair labor practices after the
start of a union organizing campaign in 1993: coercively
interrogating employees about their union activities;
threats to reclassify employees as apprentices, close its
shop and reopen under a new name with new employees;
creating the impression of surveillance; promising bene-
fits; announcing new benefits; and granting a wage in-
crease to discourage employees from voting for union
representation. The settlement agreement included a pro-
vision requiring the Respondent to recognize and bargain
with the Union as the representative of its electricians.
The judge dismissed the complaint allegation that re-
quiring applicants to disclose their union affiliation vio-
lated Section 8(a)(1) on the grounds that it was disposed
of by the settlement agreement in Case 4–CA–22023.
We disagree. In Hollywood Roosevelt Hotel Co., 235
NLRB 1397 (1978), the Board stated the rule that a set-
tlement agreement “disposes of all issues involving pre-
settlement conduct unless prior violations of the Act
were unknown to the General Counsel, not readily dis-
coverable by investigation, or specifically reserved from
the settlement by the mutual agreement of the parties.”
However, the Respondent did not raise this issue in its
pleadings or at the hearing.5 We find that the settlement
agreement bar is in the nature of an affirmative defense,
which is waived unless timely asserted by the Respon-
dent. See Federal Management Co., 264 NLRB 107
(1982); and McKeeson Drug Co., 257 NLRB 468 fn. 1
(1981) (10(b) defense waived unless timely raised in
4 Hereafter the “No Union” sticker.
5 The Respondent did assert at the hearing that the settlement agree-
ment barred the introduction of its presettlement statements that it
would not engage in good-faith bargaining with the Union. However,
the settlement agreement was never raised as a defense to the 8(a)(1)
allegation discussed above.
327 NLRB No. 171
RICHARD MELLOW ELECTRICAL CONTRACTORS CORP. 1113
pleadings or at hearing).6 Because the Respondent had
waived the defense by not timely raising it, the judge’s
dismissal of the allegation on these grounds was error,
and we reverse him on this point. Id.7
Turning to the merits, we find that the Respondent’s
requiring applicants to disclose their union membership
reasonably tended to interfere with, restrain, or coerce
employees in the exercise of rights protected by Section
7 of the Act and that it thereby violated Section 8(a)(1)
of the Act. See Colton Sportswear Mfg. Co., 182 NLRB
825, 846 (1970).8
2. We also disagree with the judge’s conclusion that
the Respondent’s display of the “No Union” sticker did
not violate the Act. As noted above, the sticker was dis-
played on the door to the Respondent’s office area,
through which applicants for employment—including the
discriminatees in this case—had to pass. We find that
applicants for employment could reasonably conclude
from this decal that they would not be hired if they were
members of a union—a conclusion amply supported by
the Respondent’s many other unfair labor practices, in-
cluding its coercive interrogation of applicants concern-
ing their union membership or affiliation as set forth
above.9 Accordingly, we find that the Respondent
thereby violated Section 8(a)(1) of the Act.
3. The judge properly found that the Respondent vio-
lated Section 8(a)(5) and (1) by unilaterally granting em-
ployees a wage increase on July 19, 1994, and by failing
and refusing to provide the Union with requested infor-
mation, namely the addresses and wage rates of unit em-

6 The judge’s handling of this issue demonstrates the unfairness of
allowing a party to raise this issue for the first time in its posthearing
brief, as the Respondent did here. Thus, in finding that the allegation
was barred by the settlement agreement, the judge stated that there was
no “contention being made that the alleged violations were unknown to
the General Counsel or were not readily discoverable by an investiga-
tion.” Because the Respondent never raised the issue in its pleadings or
at the hearing, it would have required clairvoyance on the part of the
General Counsel to have anticipated a need to make such a contention
and introduce evidence pertaining to the issue. We decline to impose
this burden on the General Counsel.
7 In light of this finding, we find it unnecessary to determine
whether, if the defense had been timely raised, the allegation would
have been barred by the settlement agreement. However, we note that
the agreement was executed by the parties prior to May 23. The agree-
ment was approved by the Regional Director on May 24, one day after
the Respondent’s actions on May 23.
8 In light of our finding that the Respondent coercively interrogated
applicants about their union affiliation, we find it unnecessary to pass
on the judge’s finding that the Respondent did not coercively interro-
gate employee Burdick by asking him on June 17 if he still had a union
card, since any additional findings of interrogation would be cumula-
tive.
9 It is well settled that the question of whether an employer’s actions
reasonably tend to interfere with, restrain, or coerce employees in the
exercise of Sec. 7 rights is an objective one, and does not turn on
whether the employer’s coercion succeeded or failed. See, e.g., Ameri-
can Freightways Co., 124 NLRB 146, 147 (1959). Accordingly, it is
irrelevant that, as the Respondent asserts, there is no evidence that any
individual in fact was deterred by the “No Union” sticker from apply-
ing for a position with the Respondent.
ployees.10 However, the judge also found that the Re-
spondent took these actions in “a good faith belief that it
was acting in a proper manner.” We disavow this find-
ing. Even assuming, arguendo, that the Respondent hon-
estly believed that employees’ addresses were not dis-
closable on privacy grounds, the sincerity of its belief is
irrelevant to the issues before us. It is well settled that
this information is presumptively relevant to a union’s
role as exclusive collective-bargaining representative.
Deadline Express, 313 NLRB 1244 (1994). Moreover,
an employer may not refuse to disclose relevant re-
quested information solely on the basis of its own inter-
nal policies or preferences regarding disclosure. Bryant
& Stratton Business Institute, 321 NLRB 1007 fn. 4
(1996), enfd. 140 F.3d 169 (2d Cir. 1998).
Likewise, there is no basis for finding that the Respon-
dent acted in good faith in unilaterally granting the wage
increase in July 1994, when its granting of a similar
wage increase in July 1993 was the subject of the settled
complaint in Case 4–CA–22023. In finding that the 1994
wage increase was granted in good faith, the judge ig-
nored the fact that both the announcement of the increase
policy and the granting of an increase pursuant to that
policy in 1993, were alleged to be unlawful in the com-
plaint, and were resolved by the settlement agreement in
which the Respondent promised to refrain from such
conduct in the future. Under these circumstances, we fail
to see how the judge could reasonably conclude that the
Respondent’s continued grant of such unilateral wage
increases was undertaken in good faith.
4. Contrary to the judge, we find that the Respondent’s
failure to consider any of the 14 union members who
applied for work between May 23 and June 17, despite
its hiring 13 other electricians, violated Section 8(a)(3)
and (1) of the Act. As set forth below, there is no evi-
dence that the Respondent ever considered any of the 14
discriminatees for any of the vacant positions. We find
that the General Counsel has established that antiunion
animus was a motivating factor in the Respondent’s fail-
ure to consider the union members for employment, and
that the Respondent has failed to rebut this showing with
evidence that it would not have considered them even in
the absence of their union membership.
As more fully described in the judge’s decision, 14 un-
ion adherents applied for work with the Respondent on
various dates between May 23 and June 17, in response
to help wanted ads placed by the Respondent. It is undis-
puted that the Respondent was aware, from the begin-
ning, that union adherents were submitting written appli-
cations. Not one of these applications was considered or
reviewed in any way by the Respondent’s president,
Richard Mellow, who made all hiring decisions for the
Respondent. The judge found that the 13 individuals who
were hired by the Respondent all had either previously
10 There are no exceptions to these findings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1114
worked for the Respondent, been referred to Mellow
personally, or had previously (i.e., prior to its solicitation
of applications in May 1994) expressed an interest in
working for the Respondent (presumably by some means
other than submitting a written application).11

The judge found that the General Counsel did not es-
tablish under Wright Line12 that the failure to consider the
14 union applicants was unlawfully motivated, primarily
because the judge found that the General Counsel did not
establish that Mellow personally knew of each alleged
discriminatee’s union affiliation. The judge also found
no evidence of union animus on the part of the Respon-
dent. The judge further found that, even assuming that a
prima facie case had been established, the Respondent
had demonstrated that it would not have hired the 14
union applicants even if they had not been affiliated with
the Union based on a legitimate, nondiscriminatory pol-
icy of preferring prior employees, referrals, or individu-
als who had by any other means than a written applica-
tion for employment expressed an interest in working for
the Respondent.
Contrary to the judge, we find that the General Coun-
sel established a strong case that the Respondent failed to
consider the 14 union applicants because of their union
membership or support.13 The Respondent admits that it
never considered the 14 union applicants for the 13 va-
cancies; it does not contend that they were rejected after
a comparison of their qualifications with those hired.
Thus, the only issue presented is whether the Respon-
dent’s refusal to consider the 14 applications was moti-
vated by their union affiliation. For the reasons that fol-
low, we find that it was.
On May 23, the Respondent’s help wanted ad appeared
in a local newspaper. That same day, Schrader, Kenehan,
and McIntyre applied for work. It is undisputed that Mel-
low knew that these three individuals were union mem-
bers and that they had applied for employment with the

11 Twelve of the thirteen individuals hired by the Respondent during
the period in question had no union affiliation; the remaining applicant
was related to a general contractor from whom the Respondent obtained
a substantial amount of business and a member of a union in another
jurisdiction. We do not regard the Respondent’s hiring of the relative of
an important customer, who happened to be a member of a union other
than the Charging Party, as evidence which would detract from the
General Counsel’s showing of antiunion motivation. See Fluor Daniel,
Inc., 304 NLRB 970, 971 (1991) , enfd. 976 F.2d 744 (11th Cir. 1992)
(prima facie case of discrimination established where those hired had
weak or nonexistent union ties, those affiliated with union not consid-
ered).
12 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
13 The complaint was amended at the hearing to allege that the Re-
spondent “failed and refused to consider and hire” the 14 union appli-
cants. Of course, failing to consider individuals for employment based
on union affiliation also violates Sec. 8(a)(3) and (1). See, e.g.
Ultrasystems Western Constructors, 310 NLRB 545 (1993), enf. denied
other grounds 18 F.3d 251 (4th Cir. 1994), on remand 316 NLRB 1243
(1995).
Respondent. It is also undisputed that the Respondent
never considered them for any of its vacant positions in
the months that followed.
The General Counsel has established a blatant dispar-
ity between the treatment of Schrader, Kenehan, and
McIntyre, none of whom was considered or hired, and
the 13 individuals whom the Respondent hired, who,
with one exception discussed above, had no union affilia-
tion.14 We find it reasonable to infer that it was not mere
coincidence that these three individuals, who were
known to Mellow to be union members, were not consid-
ered while those who were hired had weak or nonexistent
union ties. Fluor Daniel, Inc., 304 NLRB at 971. The
Respondent’s many unfair labor practices described
herein, including its prominent display of the “No Un-
ion” sticker on the door to the office where job applica-
tions were submitted and its longstanding and admitted
policy of requiring all applicants to disclose their union
affiliation as part of the application process, clearly dem-
onstrate union animus on its part.15 Accordingly, we find
that the General Counsel has established that the Re-
spondent’s refusal to consider these three applicants for
employment was motivated by an unlawful desire to
avoid hiring union members.
We find for the reasons that follow that the Respon-
dent’s failure to consider the applications of the remain-
ing alleged discriminatees was also motivated by anti-
union considerations. Thus, the General Counsel has
shown that the Respondent, including Mellow person-
ally, was aware that union adherents were submitting
written applications, beginning with Schrader’s applica-
tion on May 23. Thereafter, the Respondent refused to
14 The 13 individuals hired by the Respondent were hired on the fol-
lowing dates in 1994: May 24, May 29, June 6 (3 hires), June 13 (2
hires), June 14, July 18 (2 hires), July 27, July 28, and August 15.
15 It is not clear whether the judge considered the Respondent’s un-
lawful disclosure policy before finding no evidence of union animus in
this case. The judge did consider whether the policy would support an
inference that union affiliation was used as a basis for denying em-
ployment to the alleged discriminatees. He found that it did not be-
cause there was no evidence that Mellow had read the forms submitted
by Schrader and applicants McIntyre and Kenehan. We are puzzled by
this finding, as the judge found elsewhere that Mellow knew that these
three individuals were union adherents and that they had applied for
work with the Respondent. Even more to the point, the Respondent’s
evident willingness to coercively interrogate applicants concerning
their union affiliation is evidence of animus on its part and establishes a
strong basis for finding that it would be willing to act on that informa-
tion by denying them employment. Cannon Electric Co., 151 NLRB
1465, 1468 (1965) (interrogation is a common prelude to discrimina-
tion, because an employer cannot discriminate against union adherents
without first determining who they are).
In finding union animus we also rely on the stipulated testimony of
applicants Kerrigan, Demchak, and Caffrey set forth at fn. 6 of the
judge’s decision. The judge did not consider this evidence on the
grounds that, because they did not testify in person, he had not had an
opportunity to assess their credibility. We reverse this finding. Having
accepted the stipulated testimony, the judge was not entitled to effec-
tively discredit it based on the absence of an opportunity to observe the
individuals’ demeanor.
RICHARD MELLOW ELECTRICAL CONTRACTORS CORP. 1115
consider any written applications for employment in fill-
ing its open positions, even though it had solicited, and
continued, after May 23, to solicit, such applications
through help wanted ads in a local newspaper. At the
hearing, the Respondent never offered any business-
related reason for why it would prefer to hire individuals
who had not submitted written applications but had in-
stead indicated by some other means that they wanted a
job. These facts, coupled with the evidence of the Re-
spondent’s union animus, warrant an inference that the
Respondent’s refusal, after May 23, to consider any writ-
ten applications for employment was motivated by an
unlawful desire to avoid hiring union members.16
We further find that the Respondent has not estab-
lished that it would have taken the same actions even if
the alleged discriminatees had not been affiliated with
the Union. The Respondent asserts that it failed to con-
sider the written applications based on a policy of prefer-
ring to hire prior employees, referrals, and individuals
that had previously expressed an interest in employment.
However, the record wholly fails to substantiate this as-
sertion. We note first that Mellow, the individual respon-
sible for the Respondent’s hiring, never testified that he
had a policy of giving preference to referrals and indi-
viduals who had previously indicated an interest in em-
ployment (presumably by some means other than submit-
ting a written application for employment). Rather, Mel-
low testified only that he did not review the applications
of the alleged discriminatees because he “was hiring pre-
vious people that had worked for me.” The General
Counsel established that this explanation was inaccurate,
as at least 4 and perhaps as many as 11 of the 13 indi-
viduals hired by the Respondent during this period of
time had no record of prior employment with the Re-
spondent.17
The sole basis for the judge’s finding that the Respon-
dent also had a policy of giving preference in hiring to
referrals and individuals who had expressed a prior inter-
est in working for the Respondent was Office Manager
Kresge’s testimony that Mellow told her that he had

16 Under the circumstances of this case, the fact that Mellow may not
have been personally aware of the union affiliation of all of the indi-
viduals who submitted written applications after May 23 does not de-
tract from the General Counsel’s showing of antiunion motivation. It is
undisputed that Mellow knew that Schrader and other union adherents
were submitting applications. His refusal to consider those applications
plainly warrants an inference that their union affiliation “was a motivat-
ing factor in the employer’s decision.” Fluor Daniel, Inc., 304 NLRB at
970. In light of Mellow’s patent union animus, we find that his refusal
to consider any written subsequent applications warrants the same
inference.
17 In response to the General Counsel’s subpoena, the Respondent
produced at the hearing the applications of only 6 of the 13 individuals
hired.
Having concluded that the Respondent’s stated reason for its actions
is false, we find that the circumstances of this case warrant an inference
that its true motivation was an unlawful motive that the Respondent
wished to conceal. See Fluor Daniel, 304 NLRB at 970; and Associ-
ated Services for the Blind, 299 NLRB 1150, 1152 (1990).
hired “some other people that he knew of personally that
were recommended to him, some other people that he
had always wanted to come work for him that were
available.” The judge credited Kresge’s testimony, as
evidence that Mellow had a policy of giving preference
to such individuals. We note, however, that Kresge’s
testimony referred only to specific instances of the hiring
of employees who had been recommended by others or
who had previously expressed interest in working for the
Respondent, and does not establish that the Respondent
had any general policy in this regard. Further, there is no
documentary or other corroborating evidence to support
Kresge’s testimony. Under these circumstances, and
because Mellow alone was responsible for the hiring
decisions, we find that Kresge’s testimony is entitled to
little weight and does not rebut the General Counsel’s
showing that the Respondent’s failure to consider the
alleged discriminatees was motivated by their union af-
filiation.18
5. Finally, contrary to the judge, we find that the Re-
spondent violated Section 8(a)(5) by failing to comply
with its obligation to bargain with the Union as the ex-
clusive collective-bargaining representative of its em-
ployees.
As discussed more fully in the judge’s decision, the
Respondent agreed to recognize and bargain with the
Union as part of the settlement agreement in Case 4–
CA–22023, which was approved by the Regional Direc-
tor on May 24. On June 6, the Union mailed to the Re-
spondent a proposed collective-bargaining agreement and
proposed several dates in June for negotiations. The Re-
spondent’s negotiator, Attorney David Koff, was not
available on any of those dates, so the parties agreed to
meet on July 5. At that meeting, which lasted about 1
hour, the parties generally discussed the Union’s pro-
posed agreement, the differences between residential and
commercial work, and the possibility of the Respon-
dent’s agreeing to the Union’s standard residential
agreement. The Respondent’s negotiator, Attorney Koff,
stated that he would have to review these matters with
Mellow and get back to the Union.
The parties’ next meeting was on October 3. In the in-
terim, Mellow and Union Business Manager Flanagan
spoke by phone once, on July 12. During that conversa-
tion, which was initiated by Flanagan’s prior phone call
and message, Mellow stated that his sole desire was to be
“double-breasted,” and that he would sign an agreement
18 The General Counsel asserts that the judge should have discredited
both Mellow and Kresge in light of their inconsistent testimony con-
cerning the reasons for Mellow’s hiring decisions, and observes that the
judge consistently discredited his witnesses based on similar inconsis-
tencies. In light of our disposition of this case, we find it unnecessary to
pass on this issue. However, we do find that the shifting nature of the
Respondent’s explanations for its failure to consider the 14 union appli-
cants is further evidence of unlawful motivation. See NLRB v. Future
Ambulette, 903 F.2d 140 (2d Cir. 1990), enfg. as modified 293 NLRB
884 (1989).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1116
if that were permitted. When Flanagan stated that the
Union could not agree to that, Mellow stated he would
get back to Flanagan to schedule a meeting but that he
did not want Schrader present because he did not care for
him.
Mellow did not get back to Flanagan. On July 29,
Flanagan called the Respondent again and left a message
for Mellow when Office Manager Kresge told Flanagan
that Mellow was out. Mellow never returned that call,
and the Respondent made no further efforts to communi-
cate with the Union until August 24, when the Respon-
dent sent its first contract proposal to the Union—in re-
sponse to the Union’s August 18 letter requesting a coun-
terproposal to its proposal of July 5 and available dates
for a meeting.
When the parties met on October 3, they began by dis-
cussing article 18 of the Respondent’s proposed contract,
a “double-breasting clause” providing that the agreement
would not apply to any other entity owned by Mellow
even if that entity was engaged in the electrical contract-
ing business, and that Mellow could contract any work to
such entities and that such entities would not be bound
by the agreement. The Union stated its adamant opposi-
tion to the proposed article 18, and the Respondent’s
negotiators agreed to withdraw it after a caucus. The par-
ties then turned to economic matters, and the meeting
ended shortly thereafter.
It is undisputed that the parties never met to negotiate
an agreement after October 3. Likewise, it is undisputed
that the Union on January 12, 1995, proposed by letter
that the parties meet on January 18, 19, or 20, and that
the Respondent refused to meet on any of these dates
because its attorney was not available. Although not
mentioned by the judge, it is also undisputed that the
Respondent never offered any other dates on which to
meet, despite its January 18, 1995 promise to “get back
to you to set up a meeting sometime in the next two
weeks.”
Although the Respondent agreed to bargain with the
Union as part of the settlement agreement approved on
May 24, 1994, the evidence establishes that the Respon-
dent has failed to fulfill that obligation. Section 8(d) de-
fines the obligation to bargain collectively to include “the
performance of the mutual obligation of the employer
and the representative of the employees to meet at rea-
sonable times and confer in good faith with respect to
wages, hours, and other terms and conditions of em-
ployment.” The obligation to bargain requires both par-
ties to bargain with a “bona fide intent to reach an
agreement.”19 As noted above, the Respondent has failed
to respond to the Union’s requests for meetings on at
least three occasions, including a total, undisputed, and
unexplained failure to meet after January 1995. At the
same time it was failing to respond to the Union’s re-

19 Atlas Mills, 3 NLRB 10, 21 (1937).
quests to meet, the Respondent also granted unilateral
wage increases and refused to provide plainly disclosable
information on request by the Union. Viewed against the
background of the Respondent’s many and serious unfair
labor practices and the abundant evidence of its anti-
union animus, we find that the Respondent’s actions
clearly fall far short of its obligation to meet at reason-
able times and to bargain with the Union. Accordingly,
we find that the Respondent has violated Section 8(a)(5)
as alleged in the complaint. See Nursing Center at Vine-
land, 318 NLRB 901, 905 (1995) (employer’s negotiator
canceled three negotiating sessions because unavailable),
enfd. 151 LRRM 2736 (3d Cir. 1996); Entertech, 309
NLRB 896, 899 (1992) (unilateral changes in conditions
of employment evidence of bad faith); Barclay Caterers,
308 NLRB 1025, 1037 (1992) (although union pressed
for meetings, employer only agreed to meet four times in
9 months); and Storer Communications, 294 NLRB
1056, 1095 (1989) (employer only available to meet on
three dates in more than 5 months; union satisfied burden
to seek meetings by telling mediator it was available any
time).
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent has violated Section 8(a)(3)
and (1) by refusing to consider 14 applicants for em-
ployment, we shall order the Respondent to consider
them for hire and to make whole those discriminatees
whom the Respondent would have hired for the 13 job
openings that were filled between May 23 and June 17,
1994, for any losses sustained by reason of the discrimi-
nation against them, including amounts they would have
earned on other jobs to which the Respondent subse-
quently would have assigned them.20 The 3E Co., 322
NLRB 1058 (1997), enfd. mem. 132 F.3d 1482 (D.C.
Cir. 1997). If it is shown at the compliance stage of this
proceeding that the Respondent, but for the discrimina-
tion, would have assigned any of these discriminatees to
present jobs, the Respondent shall hire those individuals
and place them in positions substantially equivalent to
those for which they applied.21 Furthermore, as for the
remaining discriminatee who would not have been hired,
if it is shown at the compliance stage that the Respondent
20 Although we shall permit the Respondent to introduce evidence,
during the compliance proceedings, that these discriminatees would not
have been hired after the dates indicated on their application forms in
any event, the Respondent shall bear the burden of proving that the
employees hired after the application dates of the discriminatees actu-
ally had superior qualifications over the discriminatees. H. B. Zachry
Co., 319 NLRB 967, 968 (1995), enf. denied in part on other grounds
127 F.3d 1300 (11th Cir. 1997).
21 Consistent with Dean General Contractors, 285 NLRB 573
(1987), liability for subsequent positions may be defeated if it is shown
that the Respondent did not transfer employees from project to project.
RICHARD MELLOW ELECTRICAL CONTRACTORS CORP. 1117
would have hired the discriminatee to fill job openings
that later became available, the Respondent shall also
make that individual whole for the discrimination found
and place the individual in a position substantially
equivalent to that for which the individual applied. Any
backpay owed under the terms of this Order shall be
computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), and shall be reduced by net interim
earnings, with interest computed in accordance with New
Horizons for the Retarded, 283 NLRB 1173 (1987). Ad-
ditionally, having found that the Respondent has failed to
provide the Union with the addresses and rates of pay of
unit employees, information that is relevant and neces-
sary to its role as the exclusive bargaining representative
of the unit employees, we shall order the Respondent to
furnish the Union the information requested in its letter
dated August 5, 1994. We shall also order the Respon-
dent, if requested by the Union, to rescind the unilateral
wage increase granted on July 19, 1994. Nothing in this
Order shall be construed to require the Respondent to
withdraw any benefit previously granted unless requested
by the Union.
ORDER
The National Labor Relations Board orders that the
Respondent, Richard Mellow Electrical Contractors Cor-
poration, Dickson City, Pennsylvania, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating any employee about union
activities or sentiments.
(b) Threatening employees that they will not be con-
sidered for employment because of their union member-
ship or affiliation.
(c) Failing and refusing to furnish to the International
Brotherhood of Electrical Workers, Local 81 information
that is relevant and necessary to its role as the exclusive
bargaining representative of the unit employees.
(d) Unilaterally granting wage increases to unit em-
ployees without notifying and bargaining with the Union.
(e) Discriminatorily refusing to consider for hire appli-
cants for employment because of their union member-
ship.
(f) Refusing to bargain with International Brotherhood
of Electrical Workers, Local 81 as the exclusive bargain-
ing representative of the employees in the appropriate
bargaining unit.
(g) In any like or related manner interfering with, re-
straining, or coercing 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) Furnish to the Union in a timely fashion the infor-
mation requested by the Union in its letter dated August
5, 1994.
(b) On request, rescind the wage increase granted on
July 19, 1994.
(c) Consider for hire those discriminatees named be-
low whom the Respondent discriminatorily failed to con-
sider for hire and make whole those discriminatees
whom the Respondent would have hired for the 13 job
openings that existed between May 23 and June 17,
1994, for any losses sustained by reason of the discrimi-
nation against them, including amounts they would have
earned on other jobs to which the Respondent would
have assigned them, as set forth in the remedy section of
this decision. If it is shown at the compliance stage of
this proceeding that the Respondent, but for the discrimi-
nation, would have assigned any of these discriminatees
to present jobs, the Respondent shall hire those individu-
als and place them in positions substantially equivalent to
those for which they applied. As for the remaining dis-
criminatee who would not have been hired between May
23 and June 17, 1994, if it is shown at the compliance
stage of this proceeding that the Respondent would have
hired that discriminatee to a job that became available
subsequent to the discriminatee’s application, the Re-
spondent shall make the discriminatee whole for the dis-
crimination found in the manner set forth in the remedy
section of this decision and place the discriminatee in a
position substantially equivalent to that for which the
discriminatee applied.

Richard Schrader William Kenehan
Roger Dowdell Michael Caffrey
Gerald Trygar Robert Kerrigan
Ronald Demchak James Igoe
Charles Henger Larry Slusher
John McIntyre Sr. John Campbell
Matthew Dragon William Gansol

(d) On request, bargain with the Union as the exclusive
representative of employees in the following appropriate
unit concerning terms and conditions of employment
and, if an understanding is reached, embody the under-
standing in a signed agreement:

All electricians employed by Richard Mellow Electri-
cal Contractors Corporation, excluding all other em-
ployees, estimators, office clerical employees, guards,
and supervisors as defined in the Act.

(e) 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.
(f) Within 14 days after service by the Region, post at
its facility in Dickson City, Pennsylvania, copies of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1118
attached notice marked “Appendix.”22 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 4, 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 Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since August 31,
1994.
(g) 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 coercively interrogate any employee
about their union activities or sentiments.
WE WILL NOT threaten employees or applicants for
employment that they will not be considered for em-
ployment because of their union membership or affilia-
tion.
WE WILL NOT fail and refuse to furnish to the Inter-
national Brotherhood of Electrical Workers, Local 81
information that is relevant and necessary to its role as
the exclusive bargaining representative of the unit em-
ployees.

22 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.”
WE WILL NOT unilaterally grant wage increases to
unit employees without notifying and bargaining with the
Union.
WE WILL NOT discriminatorily refuse to consider for
hire applicants for employment because of their union
membership.
WE WILL NOT refuse to bargain with International
Brotherhood of Electrical Workers, Local 81 as the ex-
clusive bargaining representative of the employees in the
appropriate bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed by Section 7 of the Act.
WE WILL furnish to the Union in a timely fashion the
information requested by the Union in its letter dated
August 5, 1994.
WE WILL, on request, rescind the unlawful wage in-
crease granted on July 19, 1994.
WE WILL consider for hire those discriminatees
named below whom we discriminatorily failed to con-
sider for hire, and WE WILL make whole those dis-
criminatees whom we would have hired for the 13 job
openings that existed between May 23 and June 17,
1994, for any losses sustained by reason of the discrimi-
nation against them, including amounts they would have
earned on other jobs to which we subsequently would
have assigned them, with interest. If it is shown at the
compliance stage of this proceeding that, but for the dis-
crimination, we would have assigned any of these dis-
criminatees to present jobs, we shall hire those individu-
als and place them in positions substantially equivalent to
those for which they applied. As for the remaining dis-
criminatee who would not have been hired between May
23 and June 17, 1994, if it is shown at the compliance
stage of this proceeding that we would have hired that
discriminatee to fill job openings that later became avail-
able, we shall make the discriminatee whole for the dis-
crimination found, with interest, and place the discrimi-
natee in a position substantially equivalent to that for
which the discriminatee applied.

Richard Schrader William Kenehan
Roger Dowdell Michael Caffrey
Gerald Trygar Robert Kerrigan
Ronald Demchak James Igoe
Charles Henger Larry Slusher
John McIntyre Sr. John Campbell
Matthew Dragon William Gansol

WE WILL, on request, bargain with the Union as the
exclusive representative of employees in the following
appropriate unit concerning terms and conditions of em-
ployment and, if an understanding is reached, embody
the understanding in a signed agreement:

RICHARD MELLOW ELECTRICAL CONTRACTORS CORP. 1119
All electricians employed by us, excluding all other
employees, estimators, office clerical employees,
guards, and supervisors as defined in the Act.

RICHARD MELLOW
ELECTRICAL
CONTRACTORS
CORPORATION

Henry Protas, Esq., for the General Counsel.
Scott Gartley, Esq. (Koff, Wendoloski, Ferguson, & Cordaro),
of Wilkes-Barre, Pennsylvania, for the Respondent.
Bernard N. Katz, Esq., of Philadelphia, Pennsylvania, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE ALEMAN, Administrative Law Judge. Pursuant
to charges filed by International Brotherhood of Electrical
Workers, Local 81 (the Union), the Regional Director for Re-
gion 4, on February 14, 1995, issued a consolidated complaint
alleging that the Respondent, Richard Mellow Electrical Con-
tractors Corporation, had violated Section 8(a)(1), (3), and (5)
of the National Labor Relations Act (the Act).1 The Respon-
dent thereafter timely filed an answer to the complaint on or
about March 2, 1995, denying the commission of any unfair
labor practices. A hearing on these allegations was held in
Scranton, Pennsylvania, on May 24–25, 1995, during which all
parties were afforded full opportunity to call and examine wit-
nesses, to submit oral as well as written evidence, and to argue
on the record.
The Issues
Specifically, the complaint alleges that the Respondent vio-
lated
1. Section 8(a)(1) of the Act by
(a) Displaying an antiunion symbol on its office door.
(b) Requiring job applicants to disclose their union affilia-
tion.
(c) Interrogating employees as to their union membership
and regarding conversations had with union officials.
2. Section 8(a)(3) of the Act by
(a) Refusing to hire or to consider for employment 14 appli-
cants because they were they were members of or supported the
Union.
3. Section 8(a)(5) of the Act by
(a) Unilaterally granting unit employees a pay raise.

1 Case 4–CA–22023 was filed August 25, 1993, and amended Octo-
ber 29, 1993; Case 4–CA–23074 was filed August 31, 1994; Case 4–
CA–23148 was filed September 27, 1994, and amended October 27,
1994. A complaint in Case 4–CA–22023 issued on October 29, 1993,
after which the parties entered into an informal settlement agreement
resolving the issues raised therein which was approved by the acting
Regional Director on May 24, 1994. On February 14, 1995, the Re-
gional Director issued an order revoking the settlement agreement and
consolidating the cases for hearing. However, on April 20, 1995, the
Regional Director issued a further order reinstating his approval of the
settlement agreement in Case 4–CA–22023, and directing that that case
be severed from Cases 4–CA–23074 and 4–CA–23148. (See G.C. Exh.
1(v).) Thus, the allegations in the consolidated complaint relating to
Case 4–CA–922023, more particularly, pars. 1, 5–9, 16–18, 22, and
parts of pars. 23 and 25, have been withdrawn and are not before me.
(b) Failing and refusing to furnish the Union with certain re-
quested information.
(c) Failing and refusing to bargain in good faith with the Un-
ion.
On the basis of the entire record in this proceeding, including
my observation of the demeanor of the witnesses, and having
duly and carefully considered briefs filed by counsel for the
General Counsel, the Union, and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Pennsylvania corporation with an office
and place of business in Dickson City, Pennsylvania, is en-
gaged in the business of providing electrical contracting ser-
vices. During the past year, the Respondent, in the course and
conduct of its business operations, derived gross revenues in
excess of $500,000. During the same period, it purchased and
received at various sites located within the Commonwealth of
Pennsylvania goods valued in excess of $50,000 from other
enterprises located in Pennsylvania, which enterprises, in turn,
received the goods directly from points outside the Common-
wealth of Pennsylvania. The Respondent admits, and I find,
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act. It further admits, and I
find, that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A Background
Since 1977, the Respondent has been owned and operated by
Richard Mellow. It has an employee complement consisting of
electricians (including journeymen and apprentices), an estima-
tor, Jay Dembeski, an office manager, Cathy Kresge, who func-
tions also as secretary and receptionist, and a truckdriver identi-
fied only as Chris.
In late November 1992, the Union began efforts to organize
the Respondent’s electricians. Union President and Organizer
Richard Schraeder initially engaged in “top down” organizing
efforts aimed at obtaining voluntary recognition from Mellow.
When this proved unsuccessful, the Union, in July 1993,
switched tactics and began a “bottoms up” organizing cam-
paign that essentially involved contacting the Respondent’s
employees directly to obtain their support. Soon thereafter, on
August 25, 1993, the Union filed the charge in Case 4–CA–
22023 alleging that the Respondent had engaged in certain
unlawful conduct designed to thwart its organizational efforts.
On May 24, 1994,2 the Acting Regional Director for Region 4
approved an informal settlement agreement entered into by the
parties resolving the issues raised in Case 4–CA–22023. Under
the terms of that agreement, the Respondent, inter alia, agreed
to recognize and bargain with the Union as the exclusive bar-
gaining representative of its electricians.3
On May 23, the Respondent advertised in the Scranton Trib-
une Times for experienced electricians. Kresge testified, with-
2 All dates hereinafter are in 1994, unless otherwise indicated.
3 As more appropriately described in the complaint and admitted in
the answer, the unit consists of “All full-time and regular part-time
electricians employed by Respondent, excluding all other employees,
estimators, office clerical employees, guards and supervisors as defined
in the Act.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1120
out contradiction, that she was advised by Mellow to place the
ad and to maintain applications received in response to the ad
on file in the event additional personnel were needed. Between
May 24 and August 18, the Respondent hired some 13 indi-
viduals, none of which included any of the 14 alleged discrimi-
natees named in the complaint.

1. Facts surrounding the job application process
Schraeder, a named discriminatee, testified that he saw Re-
spondent’s “help wanted” ad on May 23, and that he convinced
alleged discriminatees William Kenehan and John McIntyre,
both unemployed union members, to join him in applying for
work with Respondent. Schraeder described his efforts as a
“salting” operation.4 That same day, Schraeder, Kenehan, and
McIntyre went to Respondent’s office to apply for jobs.
Schraeder testified that on entering Respondent’s premises, he
noticed a round see-through sticker containing the word
“UNION” with a diagonal slash over it posted at eye level on
the glass door leading to the main office, which he took to be
an antiunion symbol. 5 Schraeder, Kenehan, and McIntyre met
with Kresge, who gave them applications to fill out, along with
a separate form on which they were asked to state whether they
were “currently affiliated with any local unions.” (See G.C.
Exh. 4.) All three filled out applications, along with the union
affiliation form identifying themselves as union members, after
which they requested, and received, copies of their applications.
Kresge advised the employees that Respondent was “taking
applications for jobs that we would have coming up” and that
“at one point or another [she] would probably be giving the
applications to Mr. Mellow and if he was interested he would
give them a call.” On receiving copies of their application,
Schraeder, Kenehan, and McIntyre left the premises. On the
following day, Kresge notified Schraeder by letter that Respon-
dent was immediately discontinuing its policy of requesting job
applicants to disclose their union affiliation.
In the days that followed, Schraeder continued his “salting”
efforts by encouraging other union members to apply for work
with Respondent, and asking those who chose not to conceal
their union affiliation to obtain copies of their application. The
record reflects that at various times on May 24, the Respondent
received applications from alleged discriminatees Roger
Dowdell, Michael Caffrey, Matthew Dragon, Gerald Trygar,
Robert Kerrigan, and John Campbell. None of these individu-
als was asked to disclose their union affiliation, and none testi-
fied at the hearing.6

4 Under the Union’s “salting” resolution, union members were al-
lowed to apply for jobs with a nonunion employer with the expectation
that once hired, they would help organize other employees, and con-
vince the employer of the quality of their work. Absent a salting
agreement, union members were not permitted to work for a nonunion
contractor.
5 Schraeder described the sticker as about 4–6 inches in diameter.
Kresge and Dembeski both stated it was approximately 3 inches round.
While the size of the sticker is of no consequence here, I credit Kresge
and Dembeski that the sticker was approximately 3 inches round.
6 In lieu of testimony, the parties stipulated as to what some of these
individuals would say if called to testify as to the circumstances sur-
rounding the application process. It was stipulated that Kerrigan went
to Respondent’s office by himself, observed that Dowdell was present,
and completed and thereafter requested a copy of his application. Ker-
rigan presumably would have testified that soon thereafter, Dembeski
walked in and asked, “What’s going on?” to which Kresge, after hand-
On May 26, alleged discriminatee Ronald Demchak submit-
ted his application for employment. (G.C. Exh. 39.) When he
requested a copy of his application, Kresge purportedly stated
“she did not want to get in trouble. I don’t know what’s going
on, but I’ve been told not to give out copies of the applica-
tions.”7 James Igoe, another alleged discriminatee, filed his
application on May 27. (G.C. Exh. 14.)
The remaining alleged discriminates William Gansel, Charles
Henger, and Larry Slusher submitted applications on June 17
on which they expressly identified themselves as “union organ-
izers.” (G.C. Exhs. 40ÿ 0942.) Of the three, only Gansel was
called to testify. According to his testimony, he, Henger, and
Slusher were driven by Schraeder to Respondent’s facility to
apply for employment. After dropping them off at Respon-
dent’s parking lot, Schraeder parked his car across the street
from Respondent and waited for them to return. Kresge, ac-
cording to Gansel, told him after they completed their applica-
tions that Respondent was “hiring in the near future and would
be putting some people on.”
Gansel claims he overheard a conversation that occurred be-
tween Mellow and Schraeder after he turned in his application.
He testified that on learning that Schraeder was outside his
premises Mellow became very upset, complained that
Schraeder was “harassing him again,” and purportedly went
outside to chase him away. Gansel claims he also went outside,
observed that Schraeder had pulled up the street, and heard
Mellow telling Schraeder he was still on his property.
Schraeder, according to Gansel, replied that he was just waiting
for his friends who were filling out applications for work, and
that Mellow sarcastically responded, “Well, I just might hire
them.” Gansel states he then approached Mellow, offered to
shake his hand, and informed him he would like to work for
Mellow and would give “eight hours work for eight hours pay.”
Mellow, however, responded by refusing to shake his hand and
simply jumped in his truck and drove off without saying any-
thing.
Schraeder’s version of what occurred is materially different
from Gansel’s account. Schraeder’s testimony is that after he
dropped off Gansel, Henger, and Slusher, Mellow drove up in
his truck, got out, shook Schraeder’s hand, and asked him,
“What’s the matter? What are you doing?” to which Schraeder
replied, “Nothing’s the matter.” Schraeder told Mellow he had
brought in some men to apply for jobs. Mellow then reminded
Schraeder of the upcoming bargaining session, and Schraeder
responded he was aware of the scheduled meeting and looked

ing him Kerrigan’s application, responded, “Rich isn’t going to like
this.” The parties stipulated that Caffrey submitted an application on
May 24, that he was accompanied by Dragon, that no other applicants
were present at the time, that because he and Dragon had had similar
work experiences much of the information he included in his applica-
tion regarding his past work experience came from Dragon, and that he
and Dragon both asked for and received copies of their applications.
While the Respondent may have stipulated that the above applicants, as
well as Demchak, discussed infra, would have testified as described,
there is no indication that Respondent also agreed to accept as true the
statements ascribed to them under the stipulation. As these applicants
did not testify in person, I have no way of assessing the credibility of
their purported statements and, consequently, place no reliance on their
stipulated testimony.
7 Demchak did not testify, and the statements attributed to him were
entered into the record pursuant to stipulation. Kresge admits refusing
to give Demchak a copy of his application on advice of legal counsel.
RICHARD MELLOW ELECTRICAL CONTRACTORS CORP. 1121
forward to meeting with Mellow.8 Mellow, however, advised
Schraeder that due to a busy schedule he would not be at the
meeting, but that his attorney, David Koff, Dembeski, and pos-
sibly his wife, would be attending. Schraeder claims he told
Mellow he was pleased that Mellow was busy and that maybe
“we could help you out here with some manpower,” and that
Mellow responded, in sarcastic fashion, “Yeah, maybe [we’ll]
hire them.” Schraeder replied that it was up to Mellow. Ac-
cording to Schraeder, Mellow pointed out that Schraeder was
on his property, at which point Schraeder replied he was un-
aware he was on Mellow’s property and asked if Mellow
wanted him to leave. Mellow advised Schraeder that he
“owned all this property,” and that he just wanted to know
“what the matter is.” Schraeder replied, “there’s no matter. I
brought a couple [of] men up, I’m waiting for them to fill out
applications.” According to Schraeder, it was at the end of this
conversation that Gansel, Henger, and Slusher reappeared, at
which point Mellow got into his truck and left.9
Job applicant Tom Skelly, who is not alleged as a
discriminatee, was called as a rebuttal witness by the General
Counsel to refute Kresge’s testimony that union considerations
did not factor into the hiring process. Skelly testified he
applied for a job on May 25,10 and that he deliberately
concealed his union affiliation. He claims to have seen the “no
union” sticker on the door and in filling out his application, he
listed only his most recent employment, which for the most part
was with nonunion firms, and deliberately omitted any
reference to past union-affiliated employment, most of which
occurred prior to 1988.11 Skelly claims he returned a few days

8 The meeting referred to by Mellow and Schraeder was an initial
bargaining session scheduled for July 5.
9 Schraeder makes no mention in his testimony of Gansel having
been present during this conversation or of Gansel offering to shake
Mellow’s hand, and the latter refusing to do so. In fact, Schraeder
testified that Gansel, Henger, and Slusher came out of Respondent’s
premises at the conclusion of his discussion with Mellow, and that
when they pulled up to Schraeder’s car, Mellow simply jumped in his
truck and left. Further, Gansel’s claim to having heard Mellow angrily
state that Schraeder was harassing him and that he was going to tell
Schraeder to get off his property is hardly consistent with Schraeder’s
own testimony that Mellow shook his hand and at no time asked him to
leave the premises. Neither Henger nor Slusher, who purportedly were
present during this incident, were called to corroborate Gansel’s testi-
mony. I found Gansel’s testimony unpersuasive. While obviously
called to corroborate Schraeder’s account, given the obvious inconsis-
tencies in their testimonies, Gansel was not very successful. Gansel’s
demeanor on the witness stand was poor, and this fact, along with the
inconsistency between his testimony and that of Schraeder, leads me to
doubt his overall reliability as a witness to this event. In fact, I am
convinced that Gansel most likely learned of the Schraeder-Mellow
conversation from Schraeder himself and that, in an effort to aid the
Union’s cause, concocted his account of what transpired between
Schraeder and Mellow, and between Mellow and himself. Schraeder’s
version, while more believable than Gansel’s, was, in my view, embel-
lished in certain respects and not wholly trustworthy. For example,
Schraeder’s testimony that he and Mellow shook hands and that Mel-
low reminded him of the upcoming meeting does not square with his
subjective characterization of Mellow as being very angry and upset.
While I accept Schraeder’s testimony that he and Mellow conversed
while Gansel, Henger, and Slusher were inside filling out applications,
I reject as pure hyperbole his further testimony that Mellow “stormed
out” of his office, was “pretty much yelling,” and was “sarcastic.”
10 Skelly was not clear as to when he applied, and recalled only that
it was in spring 1994. Schraeder, however, confirmed that Skelly put in
his application on May 25. (Tr. 48.)
1988.11 Skelly claims he returned a few days later to deliver a
resume, which he handed to Kresge, and that soon thereafter,
Dembeski entered the office. Dembeski purportedly reviewed
his application and resume, questioned him about his work
experience, and then asked whether he was in the Union. When
Skelly answered he was not, Dembeski purportedly stated, “I
think we have some jobs coming up and I think we can place
you. If you don’t hear from us next week, call back.”
Skelly claims he called back the following week, as in-
structed, but could not recall with whom he spoke. He further
testified that “like maybe within two weeks, ten days, I don’t
know,” Mellow called to advise him that he had a job, but indi-
cated that “right now, things are moving around, I don’t have a
definite date.” Mellow purportedly told Skelly he would keep
in touch and that if Skelly did not hear from him, Skelly should
call him back. Skelly claims that this went on for a “couple of
weeks,” and that in the first week of June, Mellow called and
asked him to start that same week. Skelly further testified,
however, that the day after he received Mellow’s call, Flanagan
told him of the availability of work with another employer, and
that he took this latter job and “blew off” Mellow’s job offer.
Skelly’s testimony, while uncontroverted, was vague and un-
convincing, and, in my opinion, not credible. Skelly’s account
of his various contacts with Mellow leading up to the alleged
job offer and starting date in the first week of June contains an
inconsistent time frame and does not ring true. For example,
following the filing his application on May 25, Skelly, as pur-
portedly instructed by Dembeski, called back the following
week, which logically places the call at some time during the
end of May or the beginning of June. Within 2 weeks or 10
days, which would be in the second or third week of June, Mel-
low purportedly informs him that a job was available, but does
not give him a definite starting date. According to Skelly, Mel-
low continued to call him for a couple of weeks thereafter,
which, as per Skelly’s sequence of events, suggest that as of
late June or maybe even early July, Skelly had not yet received
his job offer. This, however, conflicts with Skelly’s other
statement that he received a job offer in the first week of June
and was asked to start that same week. Given the vagueness
and inconsistencies in his testimony, I am convinced that Skelly
was not being candid in describing his contacts with Dembeski
and Mellow, and conclude that his testimony that Dembeski
asked him if he was a union member was, like his other testi-
mony, a fabrication. That Skelly was capable of such fabrica-
tion is evident from the fact that he apparently had no qualms
about falsifying his employment application as requested by
Schraeder.12
11 Skelly had worked for a union employer for approximately 90
days, from late 1993 to early 1994, but did not disclose this on his
application. The General Counsel suggests that Skelly’s reluctance to
include this union work on his application was influenced by the “no-
union” decal on Respondent’s door. Schraeder’s testimony, however,
indicates that Skelly was instructed by Schraeder not to disclose his
past union employment. (Tr. 48.) I accept Schraeder’s testimony in this
regard and find that it was Schraeder’s instructions, not the decal,
which caused Skelly not to reveal his full employment history on his
application.
12 In rejecting Skelly’s uncontradicted testimony, I rely on the
Board’s holdings in Operative Plasters Local 394 (Burnham Bros.),
207 NLRB 147 (1973); McCormick & Co., 254 NLRB 922 (1981); and
Dentech Corp., 294 NLRB 924, 927 (1989).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1122
2. Prenegotiation conduct
a. June 14 Koff-Schraeder conversation
Following execution and approval of the settlement agree-
ment in May 1994, Schraeder hand-delivered to Respondent a
letter dated June 6, along with a copy of the Union’s proposed
collective-bargaining agreement, and advised that the Union
was available to meet for negotiations on June 14, 15, or 16.
Schraeder testified that on June 14 he received a call from Re-
spondent’s labor counsel, David Koff, who advised that he
could not meet on the suggested dates, and proposed an alterna-
tive date. After agreeing to a July 6 meeting, Koff, according
to Schraeder, stated he would like to get together with the Un-
ion to discuss an agreement “no matter how remote that might
be.” Schraeder purportedly told Koff that the word “remote”
bothered him, to which Koff replied, “Well, Mr. Mellow is set
against signing an agreement.” Schraeder recalls telling Koff,
“Well, I would like to see that we start on a positive note rather
than a negative note and that we come to some type of a work-
able agreement that both parties would be satisfied with,” and
Koff allegedly stated, “he would speak to Mr. Mellow in an
effort to have us meet, but he didn’t know if we would be able
to come to terms.” Schraeder responded, “Well, I would still
rather start on a positive note rather than going into this on a
negative note.” (Tr. 53–54.)
Credibility resolution
Although Koff testified at the hearing, he was not asked
about the purported statements attributed to him by Schraeder
regarding Mellow’s alleged opposition to signing a contract.
However, the inconsistency in Schraeder’s testimony on direct
and cross-examination regarding his conversation with Koff
convinces me that Schraeder was being less than candid in
recounting the substance of his conversation with Koff. For
example, while stating on direct examination that Koff in-
formed him that Mellow was “set against signing an agree-
ment,” Schraeder on cross-examination altered his testimony by
claiming, “I didn’t say that he wouldn’t be not willing to sign
it.” Apparently recognizing his inconsistency, Schraeder
sought to extricate himself from his dilemma by stating that
what Koff had actually said was “all right, he would indeed talk
to Mr. Mellow, but Mr. Mellow indicated that he did not want
to come to agreement.” Schraeder’s vacillating statements lead
me to conclude he was not being fully candid about what Koff
may have said, and may have fabricated some or all of his con-
versation with Koff.
Koff, on the other hand, struck me as a fully reliable and
credible witness who testified in a candid and forthright manner
regarding matters addressed to him. While he was not, as
noted, questioned as to his conversation with Schraeder, I find
it highly unlikely that Koff, a seasoned labor law practitioner
with some 33 years’ experience, would be so naive as to make
the comments attributed to him by Schraeder. Further clouding
Schraeder’s credibility on this matter is the fact that during
Schraeder’s cross-examination Union Attorney Bernard Katz
nodded his head repeatedly at Schraeder as the latter was re-
sponding to questions posed to him by Respondent’s counsel,
creating the clear impression, in my view, that he was seeking
to aid Schraeder in his testimony. When the matter was
brought to his attention, Katz initially denied his behavior, but
subsequently acknowledged that this had occurred and agreed
to refrain from further doing so. Katz’ conduct in this regard,
whether done knowingly or unwittingly, casts further doubt on
Schraeder’s overall credibility as a witness. (Tr. 103.)
b. The June 17 Koff-Katz conversation
Following his conversation with Schraeder, Koff spoke with
Katz regarding the first bargaining session. Katz claims that
during this June 17 phone conversation, he and Koff discussed
the settlement agreement and Respondent’s recognition of the
Union. Katz testified he told Koff that he did not think there
would be much of a problem achieving a collective-bargaining
agreement and that he wanted to set a date, time, and place for
the first meeting in hopes that agreement could be reached that
same day. Katz claims he asked Koff if Mellow would be pre-
sent at the meeting, and that Koff replied, “We’d all be better
off if Mr. Mellow were not present” because “an agreement
could be better achieved in his absence” due to Mellow’s hot
temper. Koff assured Katz that Respondent would be repre-
sented at the negotiations by someone with authority to enter
into a final agreement.
Koff admits having had a conversation with Katz on June 17
and agreeing to meet on July 5. However, he testified that Katz
said something to the effect that “we’ll meet, it should take no
longer than 10 minutes or so to sign a contract and that we
could all go home.” Koff replied that that would be somewhat
unusual, and jokingly told Katz, “You’re always the perpetual
optimist.”
Credibility resolution
Except to the extent that both recall Katz being optimistic
about arriving at a quick agreement, Koff’s version of what was
said varies significantly from Katz’ description of the conversa-
tion. I credit Koff over Katz regarding the substance of the
discussion. Koff’s straightforward answers to questions, and
his excellent demeanor as a witness convinces me that he testi-
fied in a truthful and honest manner. Katz, on the other hand,
was not very convincing. Initially, his conduct during
Schraeder’s testimony in which he appeared to be aiding the
latter during cross-examination causes me to doubt the veracity
of his own testimony. Further, assuming, as suggested by Katz,
that he and Koff discussed Mellow during their conversation,
Katz presumably would have learned at that time that Mellow
was Respondent’s owner. However, from Schraeder’s testi-
mony as to what occurred during the July 5 bargaining session,
it is quite apparent that Katz had no prior knowledge prior to
July 5 of who Mellow was since, according to Schraeder, dur-
ing the July 5 meeting Katz asked who owned the Respondent,
and when told it was Rich Mellow, commented, “Well, how
can we have an appropriate meeting here if the owner isn’t here
to make a decision on even signing?” Clearly, if Katz had
learned who Mellow was during his conversation with Koff on
June 17, why would he make the comments attributed to him
by Schraeder during the July 5 meeting? The answer, quite
simply, is that he and Koff did not discuss Mellow at all during
the June 17 conversation, and that Katz first learned of Mellow
at the July 5 meeting. Katz’ claim that he and Koff discussed
Mellow during their June 17 phone conversation is therefore
rejected as not credible, and Koff’s version as to what was said
is accepted as true.
3. The July 5 bargaining session
The parties held their first bargaining session on July 5.
Koff and Dembeski were present for the Respondent, the latter
serving primarily in an advisory capacity and the former as
RICHARD MELLOW ELECTRICAL CONTRACTORS CORP. 1123
Respondent’s chief negotiator. The Union, in turn, was repre-
sented by Schraeder, Business Manager John Flanagan, and
Attorney Katz.13 Much of this first meeting was spent discuss-
ing the type of agreement the Union had with other employers
and what would best suit the Respondent’s needs. The Union
suggested the possibility of the parties entering into a residen-
tial agreement. Koff and Dembeski both looked over the Un-
ion’s proposed agreement and, after comparing its provisions to
the type of work being done by Respondent, expressed the view
that the Union’s contract would not work for Respondent.
However, as neither Koff nor Dembeski appeared fully familiar
with the residential-type agreements proposed by the Union,
Koff advised Schraeder that the matter would have to be dis-
cussed with Mellow as the latter was also unfamiliar with such
agreements. Koff agreed to get back to the Union on this mat-
ter, stating that this “was something that maybe we could mold
into an agreement.”
With some minor variation, Schraeder’s testimony essen-
tially accords with Koff’s version of what was discussed during
the July 5 session. He testified that in addition to discussing the
residential agreements, there was discussion regarding educa-
tional matters and apprenticeship training. As to the residential
agreements, Schraeder claims that either Koff or Dembeski
inquired whether Respondent would be able to mix “residential
people” with “industrial people” and that he responded, “No,
that’s why we have two programs that we don’t allow that
mix.” This, according to Schraeder, was one of Respondent’s
main objections during this first session. Schraeder stated that
Koff “seemed very receptive towards the small jobs or ex-
panded scope residential program” and advised that he would
have to thoroughly discuss the matter with Mellow “to see if
there could be a way that we could come to an agreement.”
According to Schraeder, the parties concluded the meeting on a
pretty positive note regarding the prospects for a future con-
tract. Koff agreed to contact Flanagan after discussing the mat-
ter with Mellow.
Katz testified that this first meeting began with a general dis-
cussion of procedures used by the Union in negotiating with
contractors, and proceeded to a discussion of how any agree-
ment reached would apply to existing jobs that had already
been “costed” out by Respondent. He claims that the parties
had an “amiable discussion” of the Union’s flexibility in ac-
commodating the Respondent so that there would be no eco-
nomic difficulty regarding existing jobs, and went on to discuss
concluding an agreement along the lines of the standard agree-
ment used by the Union with other area contractors. According
to Katz, either Dembeski or Koff then stated that “they could
not make any substantive decisions, that they would have to get
back to me because all decisions were really made and arro-
gated unto himself in the sole and complete and exclusive
power of Mr. Mellow.” Katz admits he “exploded” on hearing
this because he “had made a lot of alterations and plans to be up

13 Dembeski credibly testified that Katz did not show up for the
meeting until it was almost over. His testimony in this regard is sup-
ported by Koff and Schraeder who testified that Katz was late for the
meeting, which lasted approximately 1 hour. During his testimony,
Katz made no mention of having arrived late for the meeting. In fact,
in describing what transpired at the July 5 session, Katz stated that “the
session started with a . . . generalized discussion about procedures that
are utilized in negotiating with a contractor,” creating the distinct and
misleading impression that he was present during the entire the meet-
ing.
there the day after July 4, on the assumption that we were going
to conclude an agreement.” Katz then stated, “Well, where the
f—k is Mellow? get him the f—k over here!” Katz claims that
Respondent’s representatives merely laughed and remarked,
“You don’t want him in the room!” From that point on, accord-
ing to Katz, the discussion “went sort of downward.” Interest-
ingly, Flanagan, who was present at this meeting, and who
testified at the hearing, was not questioned about what went on
during this meeting.
4. Post-July 5 conduct
Koff called Flanagan the very next day to inform him that
Mellow had some further questions regarding contractual items
relating to economic matters, the moving of manpower, and one
or two other small items, and suggested that Flanagan call Mel-
low directly to arrange for a one-on-one meeting to discuss the
possibility of an agreement, to which Flanagan agreed. On July
12, Flanagan called Mellow. Mellow, however, was unavail-
able at the time so Flanagan left word with Kresge to have him
call back. Mellow returned Flanagan’s call later that day.14
According to Flanagan, after asking Mellow if “we could get
together to come to some kind of an agreement,” Mellow re-
sponded, “Look all I want to be is double-breasted. If I could
be double-breasted I’ll sign an agreement right now.” Flanagan
responded that for the protection of other union contractors,
what Mellow sought would not be possible, and that if Mellow
became a union contractor, “we wouldn’t want him competing
against that kind of atmosphere out there.” Notwithstanding
Flanagan’s opposition to his suggestion for a double-breasted
arrangement, Mellow still expressed an interest in meeting with
Flanagan. Mellow, according to Flanagan, added that he did
not want Schraeder present because he didn’t care for
Schraeder and considered him a troublemaker.15 Mellow
agreed to get back to Flanagan.
Not having heard from Mellow, Flanagan phoned him on
July 29. Kresge answered and informed Flanagan that Mellow
was not in the office,16 that she would page him, and that hope-
fully Mellow would return his call. Mellow, however, did not
call back. No further communications were had between the
parties until August 18, when Katz wrote to Koff requesting a
counterproposal to the Union’s proposed agreement. On Au-
gust 24, Respondent forwarded its counterproposal to the Un-
ion. (G.C. Exh. 20.)
5. The October 3 bargaining session
A second bargaining session between the parties occurred on
October 3 at the Union’s office. Mellow, Koff, and Dembeski
attended this meeting on Respondent’s behalf, with Katz,
Schraeder, and Flanagan present for the Union. Schraeder testi-
fied that the meeting began with Koff asking if the Union had
any counterproposal to make to Respondent’s September con-
14 Flanagan testified that Mellow identified himself to his secretary
as “Richard non-union Mellow.” Flanagan, however, did not read
anything into Mellow’s comment and acknowledged that he simply
viewed it as a joke and did not take it in any other manner.
15 Given what, in my view, was an amiable discussion between
Schraeder and Mellow on June 17, I find it highly unlikely that would
have called Schraeder a troublemaker, and do not credit Flanagan in
this regard.
16 Mellow’s absence from the office was not unusual, for he testified,
credibly and without contradiction, that on average he spends only 4 to
5 hours per week in his office and that he spends most of his time in the
field.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1124
tract offer, to which Schraeder responded, “Yes, we ask that
Article 18 (a “double-breasting” provision) be removed in its
entirety.” Except for Katz’ assertion, discussed below, there is
no indication that the Union explained its reasons for opposing
such a provision or that it offered any modification or proposals
of its own in response to article 18, or to the counterproposal in
general. Schraeder claims that no agreement was reached re-
garding article 18. He further testified that Mellow expressed
an unwillingness “to sign a contract where he would be locked
up for a couple of years,” but that Mellow further stated “that if
this thing could work, you know, he wanted to see if it would
work.” Schraeder purportedly responded that “it wouldn’t be
fair to sign for one job or just sign for a very short period of
time you have to give it a chance to work.” Schraeder purport-
edly suggested that the Union would be willing to sign a 1-year
contract after which, if Mellow was not satisfied with how
things worked out, he would be free to walk away. Schraeder
claims that Mellow agreed to consider the offer and to get back
to the Union within a week. He further claims that at some
point during the meeting, Mellow indicated he wanted to know
every line in the contract rather than go into the contract
blindly, and that Flanagan offered “to sit down and go over this
with (Mellow) line by line.” Mellow purportedly promised to
get back to the Union within a week.
Katz testified that numerous items were discussed at the Oc-
tober 3 meeting, including the duration of any agreement
reached, as well as economic matters, such as whether jobs
currently in progress would be affected by any such agreement.
As to article 18, Katz expressed opposition to the inclusion of
such a provision in any agreement because, in his view, it
would have the effect of nullifying the entire agreement. He
testified that Respondent did not withdraw article 18 from its
proposed contract, but agreed to “look at it again.” As to fur-
ther negotiations, Katz stated that Flanagan and Mellow agreed
to arrange for a future meeting. He could not, however, recall
if Flanagan was to contact Mellow, or vice versa.
Koff testified that, during the October 3 meeting, Katz
strenuously objected to article 18, asserting that the provision
amounted to an unfair labor practice. Koff described Katz as
being very angry during the meeting, which he attributed to the
Union’s inability to achieve the quick, same-day agreement
Katz had unreasonably anticipated. More importantly, Koff
testified, contrary to both Schraeder and Katz, that after caucus-
ing with Mellow and Dembeski the Respondent withdrew arti-
cle 18 from the table, and that the meeting then turned to eco-
nomic matters and broke up soon after that. Koff testified that
after Respondent withdrew article 18 from the table he asked
for, but did not receive, and to date has yet to receive, a coun-
terproposal from the Union regarding Respondent’s September
contract proposal as modified by the removal of article 18.
No further meetings were scheduled or held after October 3.
Although Flanagan was present at both bargaining sessions, the
General Counsel called him as a witness for the sole purpose of
showing that following the October 3 session Flanagan unsuc-
cessfully tried to arrange a meeting between Mellow and him-
self. Thus, Flanagan testified that he received a call from Mel-
low 1 week after the October 3 meeting wherein Mellow of-
fered to get together “one-on-one, have a couple of beers, or go
out for dinner or something” to see if they can “come to some
type of agreement.” Flanagan purportedly agreed to do so and
asked where and when they could meet, to which Mellow re-
plied, “Well, I’m a little busy this week, maybe next week.”
Flanagan claims that Mellow agreed to call him the following
week with a particular date, and suggested that if Flanagan did
not hear from him, he should call back.
Flanagan claims he did not hear from Mellow and conse-
quently called him on October 17, as had been suggested, and
that Dembeski answered the phone. After informing Dembeski
that Mellow had agreed to get back to him regarding a meeting,
Dembeski offered to page Mellow and have him get back to
Flanagan. According to Flanagan, Mellow did not return his
call, and on October 20, Flanagan called again and this time
spoke to Kresge, who put Mellow on the line. Flanagan pur-
portedly reminded Mellow that he was supposed to get back to
him for a meeting, to which Mellow responded that he was
extremely busy and did not know when they could meet, but
that he would get back to Flanagan as to a time and place.
Flanagan claims he called again on October 27 and spoke with
Kresge, who informed him Mellow was not in but that she
would page him and would have him return the call, which
Flanagan further asserts never occurred.
On January 12, 1995, Schraeder wrote to Mellow requesting
negotiations be resumed during the morning or afternoon of
January 18, 19, or 20. By letter dated January 18, 1995, Mel-
low responded that his attorney was out of town and unavail-
able to meet on any of the three suggested dates, but that he
(Mellow) would get back to Schraeder within 2 weeks to set up
a meeting. Mellow, however, did not get back to Schraeder
regarding further negotiations.
B. Discussion and Findings
1. The alleged 8(a)(1) conduct
a. Soliciting disclosure of applicants’ union affiliation
The complaint alleges and the General Counsel contends that
Respondent, on May 23,17 unlawfully interrogated applicants
Schraeder, Kenehan, McIntyre, and Bubenheimer by asking
them to disclose their union affiliation as part of the application
process. While not denying the particulars of this allegation,
the Respondent nevertheless contends that the allegation should
be dismissed because its practice of inquiring into an appli-
cant’s union status was immediately discontinued on advice of
counsel the very next day, as evident by its May 24 letter to the
Union. It further contends that this alleged unlawful conduct
was addressed by the settlement agreement and is therefore not
before me. I agree with Respondent’s latter assertion.18
It is well settled that a settlement agreement disposes of all
issues involving presettlement conduct unless prior violations
of the Act were unknown to the General Counsel, not readily
discoverable by investigation, or specifically reserved from the
settlement by mutual understanding of the parties. Hollywood
Roosevelt Hotel, 235 NLRB 1397 (1978). In determining
whether evidence of prior violations was “known” to the Gen-

17 The complaint alleges that the Respondent had engaged in this
conduct “from on or about May 25, 1993 to on or about May 24, 1994.”
However, as evident from the employment applications of employees
Schraeder, Kenehan, McIntyre, and Bubenheimer, and as the General
Counsel’s readily admits in his posthearing brief, the last alleged inter-
rogations occurred on May 23, 1994.
18 While, for the reasons discussed infra, I make no finding as to the
merits of this allegation, I note that such conduct is viewed by the
Board as unlawful, Clark Printing Co., 146 NLRB 121, 122–123
(1964); Colton Sportswear Mfg., 182 NLRB 825, 846 (1970), and the
fact that the practice is subsequently discontinued would not ipso facto
render such conduct moot. Colton Sportswear, supra.
RICHARD MELLOW ELECTRICAL CONTRACTORS CORP. 1125
eral Counsel, the Board looks to whether such evidence “was or
should have been discovered through a proper investigation.”
Quality Hotel Tacoma Dome, 314 NLRB 538, 544 (1994).
The settlement agreement resolving the allegations in Case
4–CA–22023 was, as noted, approved by the Acting Regional
Director for Region 4 on May 24. The alleged unlawful inter-
rogations of applicants Schraeder, Kenehan, McIntyre, and
Bubenheimer occurred on May 23, 1 day prior to approval of
the agreement, and thus constitute presettlement conduct
clearly encompassed and resolved by the terms of that agree-
ment. No claim has been made by the General Counsel or the
Union, nor indeed is there any evidence to show, that the par-
ties agreed to have this matter specifically reserved from set-
tlement, nor is any contention being made that the alleged vio-
lations were unknown to the General Counsel or were not read-
ily discoverable by an investigation. In these circumstances, I
find that this particular allegation has been resolved by the
settlement agreement and is not properly litigable in this pro-
ceeding.
b. The alleged unlawful interrogations
(1) Alleged interrogation by Mellow of employee Burdick
It is alleged that on August 19 Mellow unlawfully interro-
gated employee Burdick regarding a conversation the latter had
with Schraeder at the jobsite. Thus, Schraeder purportedly
approached Burdick at the jobsite, asked him how much he was
making, and said “something about overtime and whether I was
getting time and half.” He and Schraeder discussed “exactly
what I was supposed to be making and everything” and dis-
cussed prevailing wage issues. As to the alleged interrogation,
on direct examination Burdick stated that a few days after his
discussion with Schraeder, as he was installing fixtures, Mel-
low asked him about his conversation with Schraeder. Burdick
claimed he told Mellow that he and Schraeder only discussed
his earnings. Mellow, according to Schraeder’s direct testi-
mony, did not ask anything further and left.
Mellow’s testimony regarding this incident is that he had
been advised that Burdick was seen talking to Schraeder during
working hours, and that on or about August 22, he approached
Burdick and said to him that if he wanted to talk to Schraeder
he should do it on his own time, not while he was working.
Mellow testified that Burdick admitted having had a conversa-
tion with Schraeder and replied, “Okay, I won’t do it.” Mellow
was unable to recall who reported the Burdick-Schraeder meet-
ing to him. He further testified that employees were free to do
what they wished on their own time, including breaks and lunch
period.
I credit Mellow over Burdick regarding the above incident,
and find that Mellow did not question Burdick as to his conver-
sation with Schaefer, but simply instructed him not to talk to
Schraeder during the times he should be working. While both
Mellow and Burdick experienced problems with their recollec-
tion, a comparison of their testimony and demeanor on the wit-
ness stand persuades me that Mellow is the more credible of the
two. Mellow, as noted, could not recall who informed him of
the Burdick-Schraeder conversation, or the exact time of day it
occurred. However, he remained steadfast in his assertion that
the Burdick-Schraeder discussion occurred when Burdick
should have been working. Despite this brief lapse in memory,
Mellow’s answers to questions posed on direct and during
cross-examination regarding this incident were consistent, di-
rect, and forthright, and without any hint of fabrication or em-
bellishment.
Burdick’s testimony regarding this incident, on the other
hand, was at times flippant, self-contradictory, and equivocal.
Thus, when questioned on direct examination by the General
Counsel, Burdick, as noted, testified that after Mellow inquired
about his conversation with Schaefer, Mellow simply departed.
During questioning by the General Counsel, Burdick made no
mention of any further comments having been made by Mellow
at that time. However, when questioned by the Union’s attor-
ney, Burdick embellished his earlier testimony by stating that
Mellow had also told him he “didn’t have to talk to [Schaefer]
if [he] didn’t want to.” Further, despite his earlier testimony
that these were Mellow’s exact words, Burdick, in an apparent
change of mind, suggested that what Mellow had actually said
was “You don’t have to talk to that asshole if you don’t want
to.” (Tr. 153.) Burdick’s recollection fared no better during
cross-examination. For example, when asked if Mellow had
instructed him not to talk to Schraeder while working, Burdick
expressed uncertainty, stating, “I don’t think so,” and, when
pressed on the matter, conceded Mellow might have told him,
and that he “might not have been listening” to Mellow at the
time.
Burdick’s equivocal response regarding this incident renders
his testimony unreliable and of little probative value. His flip-
pant and derisive response to certain questions during cross-
examination further detracts from his overall credibility as a
witness. Thus, when asked about the timing of his conversation
with Schraeder, Burdick replied, “We were having lunch.”
When asked if he knew when during the lunch period it oc-
curred, he became flustered and sarcastically replied, “12:09,”
followed by “I don’t know. It was sometime between 12:00
and 12:30.” Further, when asked by Respondent’s counsel
whether Mellow had instructed him to speak with Schaefer on
Burdick’s own time, Burdick responded somewhat derisively,
“That’s a little eloquent for Rich [Mellow].” Overall, I do not
credit Burdick’s testimony.
(2) Alleged interrogation of Burdick by Dembeski
The interrogation of Burdick by Dembeski is alleged to have
occurred on June 17 at Respondent’s office when Burdick went
to pick up his paycheck. Burdick testified that in the presence
of other employees who were also picking up their checks,
Dembeski “just asked me out of the blue if I had a union card
out of Binghamton,” to which he responded affirmatively.
Dembeski provided a somewhat different version of this in-
cident. He testified that on or about June 17, a payday, he was
in the office with four or five other employees, including Bur-
dick, who were there to pick up their paychecks when a discus-
sion ensued. Dembeski recalls that they were all just standing
around when “a joke was started by one of the guys about the
union or something like that” at which time he turned and said
to Burdick, “You still carry your card, don’t you?” Burdick,
according to Dembeski, replied, “Yeah, I still have my card.
It’s the worst thing I ever did.” According to Dembeski, except
for some more small talk that followed, that was the end of the
conversation. He testified that he was fully aware from the day
Burdick started working a year earlier that Burdick was a mem-
ber of the Union.
I credit Dembeski’s version of this incident. Burdick’s
statement that Dembeski asked him clear “out of the blue”
about his union status is simply not believable, especially in
light of his other less than credible testimony. Rather, Dem-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1126
beski’s testimony, in which he readily admits having asked if
Burdick still carried his union card, is a more plausible account
of what transpired. Dembeski’s question reflects prior knowl-
edge of Burdick’s union status and is consistent with Dem-
beski’s statement that he was fully aware since Burdick’s hiring
a year earlier of the latter’s union membership. I find nothing
coercive about Dembeski’s question, nor do I view it as an
attempt by Dembeski to ascertain a fact of which he already
knew. Rather, the question to Burdick was an innocuous one
made in the context of a casual, friendly, and joking conversa-
tion.
The General Counsel also used Burdick for purposes of
showing Respondent’s bad-faith bargaining intentions. Thus,
Burdick testified to statements allegedly made by Dembeski on
May 20, which purportedly reflect Respondent’s bargaining
attitude. Burdick claims, for example, that on May 20, he was
in Respondent’s office, together with employee Brian Barnes,
and Dembeski, when Barnes asked Dembeski how things were
going with the Union. According to Burdick, Dembeski re-
plied, “[I]t’s really no problem, it’s a paper war, and [Respon-
dent] was going to do what their lawyer told them to do and go
through the motions.” Dembeski denied having made such
remarks. I credit Dembeski over Burdick and find that no such
remarks were made.
Burdick’s testimony regarding the above discussion is am-
biguous at best and full of uncertainty. The following colloquy
between the General Counsel and Burdick best exemplifies the
dubious nature of Burdick’s testimony regarding this matter:

Q: Was there any mention of Union proposals and ne-
gotiations?
A: I don’t know what you mean. Oh, just that they
were going to go—they didn’t have to accept any of them
I think.
Q: And what were they going to do?
A: Just let them pass by, I guess, and just do whatever
their lawyer told them to do.

Burdick further testified in the following fashion to comments
allegedly made by Dembeski regarding the Board’s Rules:

Q: How about any mention of NLRB rules? Did he
say anything about that?
A: There was nothing really that they could do to
them.
Q: Nothing who could do to him?
A: The NLRB could do to him, really. They were
just—I guess there was no way they could hurt him.
Q: The NLRB could do?
A: Yeah, they were powerless like, really.

Burdick’s testimony thus suggests that much of what he was
relating concerning Dembeski’s alleged statements to Barnes
was based on guesswork, rather than on an actual knowledge of
what was said. Accordingly, I place no credence on Burdick’s
testimony and credit Dembeski’s denial that no such remarks
were made by him.
c. The “No Union” decal
The General Counsel does not dispute the fact that the “no
union” decal has been on the door since about 1987 or 1988,
certainly long before the Union first came on the scene in late
1993, as credibly testified to by Dembeski and Kresge.19
Kresge also testified that the decal was intended as a joke for
Mellow. As no evidence was adduced to counter Kresge’s
testimony, her assertion in this regard is accepted as true. The
General Counsel’s theory of the violation is, in any event, not
premised on how the decal appeared on the door in the first
place or why it was placed there. Rather, the General Coun-
sel’s claim that the Act was violated centers on a belief that the
Respondent was somehow under an affirmative obligation to
remove the decal upon its execution of the settlement agree-
ment and its grant of recognition to the Union. By failing to
remove the decal the Respondent, the General Counsel argues,
violated Section 8(a)(1) because it effectively conveyed to bar-
gaining unit members and job applicants alike the message that
Respondent did not intend to recognize or bargain in good faith
with the Union or to abide by the settlement agreement. I find
no merit in the General Counsel’s argument.
Implicit in the General Counsel’s argument that Respondent
was obligated to remove the decal is the suggestion that the
decal on its face is somehow coercive of employee rights. The
Respondent, on the other hand, takes the position, in which I
fully concur, that the “no union” decal was not coercive, and
did not restrain or interfere with its employees’ or applicants’
Section 7 rights. Rather, the Respondent argues that the decal
is protected speech under Section 8(c) of the Act.
Under Section 8(c) of the Act, an employer is free to com-
municate to his employees any of his general views about un-
ionism or any of his specific views about a particular union, so
long as the communications do not contain a “threat of reprisal
or force or promise of benefit.” NLRB v. Gissel Packing Co.,
395 U.S. 575, 617–619 (1969).20 Here, the “no union” decal on
its face amounts to nothing more than an expression of opinion
regarding the proponent’s antiunion sentiments, and contains
no coercive or threatening message. As such, I find, in agree-
ment with the Respondent, that the decal in question constituted
a lawful expression of opinion protected under Section 8(c) of
the Act. There is, in any event, no hard evidence to show that
the Respondent was somehow responsible for the placement of
the decal. The evidence of record indicates only that the decal
was given to Mellow as a joke more than 7 years ago. Argua-
bly, the decal could have been given to Mellow and placed on
the door by anyone, including a rank-and-file employee. Given
the lack of evidence regarding this matter, I decline to ascribe
the placement of the decal on the door to the Respondent.
However, as previously noted, the gist of the General Coun-
sel’s argument regarding this allegation is that the violation
resulted from the Respondent’s failure to remove the decal
following its recognition of the Union, rather than from the
circumstances surrounding its placement on the door in the first
place. The General Counsel cites no case authority, nor have I
found any, to support the view that on entering into a bargain-
ing relationship with a union, an employer becomes legally
obligated to sanitize its workplace by removing from its prem-

19 Dembeski’s undisputed testimony reveals that the decal has been
on Respondent’s door for some 7 to 8 years. Kresge corroborated
Dembeski when she testified that the decal was there before she began
working for Respondent in 1989.
20 Sec. 8(c) provides that the [expression] of any views, argument, or
opinion, or the dissemination thereof, whether in written, printed,
graphic, or visual form, shall not constitute or be evidence of an unfair
labor practice under any of the provisions of [the] Act, if such expres-
sion contains no threat of reprisal or force or promise of benefit.
RICHARD MELLOW ELECTRICAL CONTRACTORS CORP. 1127
ises any and all material, such as the decal in question here, that
might be anathema to the union or the employees it represents.
While the purported offensive material here involves only a “no
union” decal, taken to its logical conclusion the General Coun-
sel’s position, if adopted, effectively would require an em-
ployer to purge its workplace of any antiunion matter, or risk
having charges filed against it. The General Counsel contends
that by allowing the decal to remain the Respondent was
merely reinforcing the Respondent’s position, as Burdick
claims was stated to him by Dembeski on May 20, that it had
no intentions of bargaining with the Union or abiding by the
terms of the settlement agreement. The flaw in the General
Counsel’s argument is that, as found above, Dembeski never
made such remarks to Burdick. In summary, I find that neither
the presence of the decal on the door, nor the Respondent’s
failure to remove it upon execution of the settlement agreement
amounted to unlawful conduct. According, this allegation is
dismissed.
2. The 8(a)(3) allegations (refusal to consider/hire union
applicants for employment)
The General Counsel, as noted, asserts that Respondent un-
lawfully refused to consider for employment or to hire the
above-named 14 individuals because they either supported or
were members of the Union. Section 8(a)(3) makes it unlawful
for an employer to discriminate against an employee in regard
to hire or tenure of employment or any term or condition of
employment, or to encourage or discourage membership in any
labor organization.
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981),21 the Board established a causation test to be
used in all cases alleging a violation of Section 8(a)(3) and (1)
that turn, as in the instant case, on employer motivation. Under
that test, the General Counsel is first required to make a prima
facie showing sufficient to support the inference that the em-
ployees’, or in this case job applicants’ protected conduct was a
“motivating factor” in Respondent’s decision not to hire or
consider them for employment. Stated otherwise, the General
Counsel must establish by a preponderance of the credible evi-
dence that the alleged discriminatees engaged in union activi-
ties, that the employer had knowledge of such conduct, and that
the employer’s actions were motivated by union animus.22 If
the General Counsel is able to make such a prima facie show-
ing, the burden will shift to the employer who must then dem-
onstrate that it would have taken the same action even in the
absence of the employee’s or applicant’s protected conduct.
Examining the evidence in light of the above principles, I
find that the General Counsel has failed to make a prima facie
showing that the Respondent’s failure to consider for employ-
ment or to hire any of the 14 alleged discriminatees was moti-
vated by antiunion considerations.
a. The knowledge issue
It is undisputed, and I find, that all the hiring was done by
Mellow. It is also undisputed that all 14 named discriminatees
filed applications for employment with Respondent on the dates
alleged in the complaint, that Mellow hired some 13 employees
during the same period that it was receiving applications, and

21 The Board’s Wright Line test was approved by the Supreme Court
in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).
22 VOS Electric, 309 NLRB 745, 751 (1992); and HarperCollins
Publishers, Inc., 317 NLRB 168, 181–182 (1995).
that none of the 14 alleged discriminatees were among those
hired. At issue here is whether, as asserted by General Counsel
in his posthearing brief, Mellow “knew or suspected” that the
14 alleged discriminatees were union members or supporters,
and whether this was a factor in their not being hired by Mel-
low.
All 14 named discriminatees generally followed the same
pattern in submitting their job applications. Thus, they ap-
peared at Respondent’s premises either with Schraeder or at his
suggestion on various dates between May 23 and June 17, and
filled out applications for employment that they then turned in
to Kresge, but not before requesting copies. There is little
doubt that Kresge either knew or had reason to believe that
most, if not all, of the 14 applicants were in some way associ-
ated with the Union Thus, she testified that she reviewed all
the applications filed by these individuals and that some of
them e.g., those of Schraeder, McIntyre, Kenehan, Gansel,
Henger, Slusher, and Kerrigan contained specific reference to
the applicant’s union affiliation.23 Kresge’s further testimony
regarding the applicants’ “unusual” comportment while filling
out their applications–e.g., requesting copies of their applica-
tions which had not happened before, failing to ask any ques-
tions about the job itself or benefits being paid, laughing aloud,
and asking each other what they should include on their appli-
cations suggests that Kresge may have, at the very least, sus-
pected that even those applicants who did not mention a union
affiliation on their applications were somehow involved with
the Union.
While Mellow did not personally review any of the applica-
tions filed by the alleged discriminatees, and could not there-
fore have known of their purported union sympathies from
information contained therein, other evidence of record estab-
lishes that Mellow clearly knew or had reason to believe that
applicants Schraeder, Kenehan, McIntyre, Gansel, Henger, and
Slusher supported or were members of the Union. Mellow’s
knowledge of Schraeder’s involvement with the Union can
hardly be disputed, as Schraeder and Mellow had had prior
dealings dating back to November 1992, when Schraeder began
his “top down” organizational efforts. Mellow’s admission that
he was told by Kresge that Kenehan and McIntyre appeared at
Respondent’s office accompanied by Schraeder to fill out job
applications, and that all three requested copies of their job
applications, is, in my view, sufficient to support an inference
that Mellow knew Kenehan and McIntyre, like Schraeder, were
union supporters.24 A similar inference can be drawn with
respect to applicants Gansel, Henger, and Slusher, all of whom
were driven to Respondent’s office by Schraeder. The record
reflects that Mellow was told by Schraeder that he had brought
some men to apply for jobs, and that Mellow apparently ob-
served the three applicants leave with Schraeder. In these cir-
cumstances, I am convinced that Mellow must have at least
23 Kerrigan’s application, unlike that of other applicants, does not
specifically identify him as a union organizer or member. It does,
however, list the Union as a reference source which Kerrigan has been
familiar with for 20 years.
24 Mellow testified that he believed Kresge informed him that
Schraeder, Kenehan, and McIntyre had requested copies of their appli-
cations. Although Kresge denied having done so, I am convinced that
she was either mistaken or had forgotten this particular fact. My find-
ing in this regard does not, in any event, affect the reliability of her
overall testimony which I find to be trustworthy and believable.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1128
suspected, if not known, that Gansel, Henger, and Slusher were
also union supporters.
There is, however, no evidence to establish that Mellow
knew of the alleged union membership or sympathies of the
eight remaining applicants, e.g., Dowdel, Caffrey, Dragon,
Trygar, Kerrigan, Campbell, Demchak, and Ignoe. Unlike with
Schraeder and the others discussed supra, there is no indication
that any of these eight was seen by Mellow applying for a posi-
tion with Respondent, or had been observed in Schraeder’s
company. While Kresge may have had reason to believe that
these eight applicants were union members or sympathizers,
she never made her suspicions known to Mellow. The General
Counsel, unable to show that Mellow had direct knowledge of
the applicants’ union sympathies, argues that knowledge of the
applicants’ union sympathies is imputable to the Respondent
because all the applications filed by the alleged discriminatees,
including those of Dowdel, Caffrey, Dragon, Trygar, Kerrigan,
Campbell, Demchak, and Ignoe, reflect extensive prior em-
ployment with union contractors and high pay rates which
would be indicative of union employment. The General Coun-
sel contends that these factors alone are sufficient under Casey
Electric, 313 NLRB 774 (1994), and Fluor Daniel, Inc., 304
NLRB 970 (1993), to establish that Respondent knew the ap-
plicants were union members or supporters.
The General Counsel has misread the Board’s decisions in
Fluor Daniel and Casey Electric, supra. In those two cases, the
Board’s finding that the employer had knowledge of an appli-
cant’s union sympathies was not, as suggested by the General
Counsel, premised exclusively on the applicant’s prior history
of employment with union contractors or higher wage rates. In
Fluor Daniel, for example, the Board relied on the fact that the
applicants clearly and expressly identified themselves as union
supporters by writing the words “voluntary union organizer” on
their applications, all of which, unlike the case at hand, were
reviewed by the employer’s human resources manager, who
had responsibility for the hiring of applicants. Id. at 503–504.
In Casey Electric, the Board’s finding of employer knowledge
was premised not only on the applicants’ prior work history,
but also on the fact that the employer unlawfully interrogated
applicants about their union affiliation, and the fact that appli-
cants openly displayed their union affiliation by wearing union
caps or stickers. I find nothing in either Casey Electric or
Fluor Daniel to suggest that the Board will infer knowledge of
union support solely from an applicant’s prior employment
with union contractors.
The General Counsel’s argument here is similar to that con-
sidered and rejected in Dorey Electric, 312 NLRB 150 (1993).
Addressing the question of whether an applicant’s work history
by itself is sufficient to satisfy the General Counsel’s burden of
proof under Wright Line, the administrative law judge in Dorey
Electric, with Board approval, found that “while a work history
may raise a suspicion that the applicant is or is not a union
member . . . it falls short of being sufficient evidence on which
to base a conclusion that the General Counsel’s burden of proof
has been met.” Id at 152. The judge further noted that “no
Board case has held that simply listing union contractors as
previous employers or relatively high wages and/or having
completed a union-sponsored apprenticeship course is suffi-
cient to establish prima facie that the employer knew the appli-
cant was a union member.” Id. For the reasons stated in Dorey
Electric, I decline to find, as argued by the General Counsel,
that the Respondent must have known of the applicants’ union
membership or sympathies based on the latter’s prior employ-
ment with union contractors or a wage history suggestive of a
union scale pay rate.
However, even assuming, arguendo, that such factors as
prior employment with union contractors and a history of high
wages may, without more, be sufficient to satisfy the knowl-
edge criteria under Wright Line, the General Counsel would
still not have met his burden of proof, as the credible evidence
of record clearly establishes that Mellow never saw or reviewed
any of the applications filed by the alleged discriminatees, and
obviously knew nothing of the applicants’ work history. Nor,
in any event, was it established that Mellow was familiar with
any of the contractors identified on the applications. The only
evidence in this regard came from Schraeder who testified as to
his own personal knowledge of area union contractors, and
sought to impute that knowledge, in a rather vague and uncon-
vincing fashion, to Mellow by suggesting that Mellow must
have been familiar with certain of the contractors listed on the
applications. His subjective testimony as to which contractors
Mellow may or may not have known is rejected as based on
nothing more than mere speculation. Thus, even if the General
Counsel had shown, which he did not, that Mellow reviewed
the applications, no inference could be drawn that he would
have known which of the contractors identified on said applica-
tions operated as a union or nonunion employer. VOS Electric,
309 NLRB 745, 754 fn. 15 (1992).
The General Counsel would also have me infer employer
knowledge of the applicants’ union membership from the fact
that of all persons who applied for jobs, only the 14 alleged
discriminatees requested copies of their applications, something
which no applicant had ever done before, and that Respondent
was aware that the Union had instructed them to do so. Mel-
low, as noted, readily admitted having been told by Kresge that
Schraeder, Kenehan, and McIntyre, requested copies of their
applications. However, contrary to the General Counsel’s inti-
mation, there is no evidence to suggest that Mellow was told
that the other 11 alleged discriminatees also requested copies of
their application. Thus, when asked if he was aware that any-
body other than Schraeder, Kenehan, and McIntyre had re-
quested copies of their applications, Mellow credibly answered,
“No.” In summary, the General Counsel has failed to sustain
his burden under Wright Line of showing that Respondent had
knowledge that alleged discriminatees Dowdel, Caffrey,
Dragon, Trygar, Kerrigan, Campbell, Demchak, and Ignoe
were union members or supporters. Accordingly, that aspect of
the complaint alleging that the Respondent refused to consider
for employment or to hire these eight applicants because of
their support for, or membership in, the Union is without merit
and is dismissed.
b. The union animus issue
The General Counsel, as noted, has established that Mellow
either knew or had reason to know that applicants Schraeder,
Kenehan, McIntyre, Gansel, Henger, and Slusher were union
members or supporters. This factor alone, however, is insuffi-
cient to support a finding of a violation, for as part of his prima
facie case, the General Counsel, as noted, must also show that
union animus was a factor in Respondent’s failure to hire or to
consider for employment any of the above applicants. If the
unlawful purpose is neither present nor implied, the Respondent
cannot be found to have violated the Act. Queen Kapiolani
Hotel, 316 NLRB 655, 663 (1995). The evidence required to
RICHARD MELLOW ELECTRICAL CONTRACTORS CORP. 1129
show animus need not be direct, and may be inferred from the
totality of the circumstances proved. Id.
Much of the conduct cited by the General Counsel as evi-
dence of Respondent’s union animus has been found herein
either not to have occurred or not to be unlawful. For example,
the purported May 20 comments attributed to Dembeski by
Burdick, which the General Counsel contends show that Re-
spondent was determined from the outset to rid itself of the
Union, as discussed supra, were simply not made and, as fur-
ther found supra, the credible evidence fails to establish that
Burdick was unlawfully interrogated by Dembeski or Mellow,
as alleged. The General Counsel also claims that Respondent’s
union animus and open hostility toward unions were plainly
evident from the “no union” decal displayed on its door. How-
ever, as found above, the decal constitutes nothing more than a
statement of the proponent’s views about unions in general,
privileged under Section 8(c) of the Act.
The Respondent did engage in certain unfair labor practices,
involving a failure to provide the Union with certain relevant
information and a unilateral wage increase for unit employees
(see discussion infra), which the General Counsel asserts serves
as evidence of its antiunion animus. However, as explained
below, such conduct, while unlawful, was nevertheless the
product of a mistaken but good-faith belief by Respondent that
its actions were justified, not from any alleged animosity to-
wards the Union.
Finally, the General Counsel claims that Respondent’s un-
lawful practice of requiring applicants to reveal their union
affiliation raises a strong inference, which the Respondent
failed to rebut, that such information was used to exclude union
members from employment consideration. While this allega-
tion, as noted, was resolved by the settlement agreement and is
not properly before me, such evidence may nevertheless prop-
erly be considered as background evidence to establish a mo-
tive for Respondent’s postsettlement conduct. Kaumagraph
Corp., 316 NLRB 793, 794 (1995); and Host International, 290
NLRB 442 (1988). There is, however, no evidence of record
either to establish or to support an inference that Respondent
used such information to exclude union applicants from em-
ployment.
Initially, as noted, Mellow never reviewed the applications
and consequently would not have known which applicants had
filled out the form disclosing their union affiliation. Further, of
the 14 alleged discriminatees, only 3—Schraeder, Kenehan,
and McIntyre—were affected by Respondent’s questionable
policy before it was discontinued. Thus, when the remaining
11 alleged discriminatees submitted applications, they were not
required to disclose their union affiliation as the policy by that
time had been discontinued. Accordingly, the drawing of any
inference with respect to these individuals would be wholly
illogical and improper.
One other applicant, Donald Bubenheimer, who filled out an
application on the same day as Schraeder, Kenehan, and McIn-
tyre, and who revealed his union affiliation in compliance with
Respondent’s policy, was hired by Respondent.25 This fact,
however, along with the fact that Schraeder, Kenehan, and
McIntyre also revealed their union affiliation and were not

25 As the General Counsel correctly points out, Bubenheimer was
apparently hired by Mellow based on a recommendation from a fellow
general contractor. Mellow states that he learned of Bubenheimer’s
union affiliation from Bubenheimer himself.
hired, is of no consequence, for to be relevant there must be
some evidence to link Mellow, who was solely responsible for
the hiring, to the applications of Schraeder, Kenehan, and
McIntyre. Such evidence is nonexistent for, as stated, Mellow
did not review any of the applications, including Buben-
heimer’s. Lacking such evidence, I find no basis for inferring
that Mellow utilized knowledge obtained from the union dis-
closure form signed by Schraeder, Kenehan, and McIntyre as a
basis to deny them, or consider them for, employment.
Finally, I find credible and plausible Respondent’s assertion,
as testified to by Mellow and Kresge, that Mellow filled all
positions with persons who either had previously worked for
him, had expressed an interest in working for him, or had been
recommended to him, without considering any of the applica-
tions received in response to the want ads placed in the Scran-
ton Tribune Times newspaper.26 Mellow’s testimony in this
regard was corroborated by Kresge who credibly and without
contradiction testified that she knew “for a fact that [some of
the people hired by Mellow] were employed there before.” The
General Counsel correctly points out that in response to its
subpoena, it received copies of only six of the applications filed
by the 13 individuals who were eventually hired, and that four
of the six applications do not reflect that the named individuals
previously worked, or had previously applied to work for the
Respondent. The fact that only six applications were received
in response to the subpoena is no great mystery, for as credibly
testified to by Kresge, many of the files kept on employees
“just contain timecards” and full applications were not retained
for some of the individuals hired. Her testimony in this regard
is consistent with Mellow’s testimony that he hired individuals
without first obtaining applications.27 Further, while the appli-
cations submitted by Bubenheimer, Arbucco, Ceccaroni, and
Sterowski indicate that they may not have previously worked or
applied for work with Respondent, they could have obtained
employment pursuant to a recommendation. Indeed, the record
evidence clearly establishes that Bubenheimer obtained em-
ployment with Respondent through a referral from a fellow
contractor. Although no similar evidence was produced with
respect to how Arbucco, Ceccaroni, and Sterowski, came to be
employed, I accept Respondent’s assertion that all 13 applicants
were hired either because they previously worked for Respon-
26 The General Counsel suggests that Kresge’s testimony that she
was informed by Mellow that he had hired individuals who previously
worked for him or had expressed interest in doing so, as well as indi-
viduals who were recommended by others, was hearsay, and a ruling on
his objection to such testimony was deferred and not ruled on by me.
He argues that I should sustain his objection and reject such testimony.
I disagree. The General Counsel’s objection was properly denied. (Tr.
325–326.) The General Counsel suggests that Kresge provided such
testimony only after Mellow’s testimony proved to be inadequate. He
ignores the fact, however, that Kresge, like all other witnesses in this
matter, was sequestered and had no knowledge of what Mellow may or
may not have testified to. Further, Mellow was a key witness in this
proceeding, and was questioned extensively by the General Counsel.
The latter’s failure to elicit the responses he was seeking on this par-
ticular issue was not the product of any recalcitrance or reluctance on
Mellow’s part to properly answer questions put to him, but rather re-
sulted from a failure on the General Counsel’s part to fully pursue this
line of questioning. Thus, Kresge’s testimony as to what Mellow, who
testified at the hearing and was a party to this proceeding, may have
said to her is not hearsay and was properly admitted.
27 The General Counsel does not allege that the Respondent failed to
fully comply with his subpoena requests or that it deliberately withheld
information.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1130
dent, had previously expressed an interest in doing so, or had
been referred by others for employment. In any event, as the
General Counsel has not made out a prima facie showing that
Respondent was motivated by antiunion considerations in its
hiring practices, the Respondent was under no obligation to
prove the legitimacy of its hiring practices.
3. The 8(a)(5) allegations
The unilateral wage increase
It is not disputed that on July 19 Respondent unilaterally
granted unit employees a wage increase. The Respondent con-
tends that the increase was consistent with a written policy,
enacted July 29, 1993, and put into effect on January 1, 1994,
establishing July 19 as the anniversary date for all future em-
ployee wage increases. (See G.C. Exh. 18, p. 5.) It contends
that the increase did not have an antiunion purpose or effect,
and that it was caught in a “damned if you do, damned if you
don’t situation” because had it withheld the increase, it would
have been subject to an unfair labor practice charge for failing
to follow its established policy or practice.
The General Counsel points out that Respondent, having
recognized the Union pursuant to the settlement agreement as
its employees’ exclusive bargaining representative, was duty
bound to bargain with the Union regarding the wage increase,
and that its unilateral decision to grant the July 1994 increase
amounted to a breach of its bargaining obligation and a breach
of the settlement agreement.28 I agree with the General Coun-
sel.
Regarding unilateral wage increases, or other changes made
during the course of negotiations, the Board in Taft Broadcast-
ing Co., 163 NLRB 475, 478 (1967), stated that:

An employer violates his duty to bargain if, when negotiations
are sought or are in progress, he unilaterally institutes changes
in existing terms and conditions of employment. On the other
hand, after bargaining to an impasse, that is, after good-faith
negotiations have exhausted the prospects of concluding an
agreement, an employer does not violate the Act by making
unilateral changes that are reasonably comprehended within
his preimpasse proposals.

The Respondent does not justify its actions on the basis of any
impasse in negotiations or waiver by the Union. Rather, it con-
tends that it was compelled to grant the increase given the pol-
icy it announced a year earlier and put into effect in January
1994, that it would henceforth grant wage increases on July 19
of every year. Essentially, the Respondent argues that it was
caught between the proverbial “rock and a hard place” because
had it not granted the increase, it could have been accused of
refusing to abide by its announced policy. It argues implicitly
that its conduct in this regard was undertaken in good faith and
should be found not to have been unlawful. Unfortunately for
the Respondent, its good faith is not enough to absolve it from
liability under the Act, for a unilateral change by an employer
during the course of a collective-bargaining relationship regard-
ing a mandatory subject of bargaining, such as a wage increase,
is normally regarded as a per se refusal to bargain. See NLRB
v. Katz, 369 U.S. (1962).29 Indeed, in NLRB v. Katz, supra, a
violation was found notwithstanding that no evidence of bad

28 The General Counsel has not requested that the settlement agree-
ment be set aside.
29 See 2 Morris, Developing Labor Law 563 (2d ed. 1983).
faith was shown and where the evidence indeed suggested that
the employer acted in good faith. Here, the Respondent, re-
gardless of its good-faith intentions, violated Section 8(a)(5)
and (1) when it unilaterally implemented its July 1994 wage
increase without notifying and affording the Union an opportu-
nity to bargain over said increase.30
4. The refusal to furnish information
It is alleged that Respondent since on or about August 5, has
failed and refused to furnish the Union with the addresses and
rates of pay of unit employees. The record evidence establishes
that on August 5, the Union wrote to Respondent requesting
that it provide the Union with “a current employee list, which
includes names addresses, current rates of pay, benefits, and
dates of hire for each of your employees” so that it could prop-
erly represent its employees during the bargaining process. The
letter requested that Respondent contact the Union if the infor-
mation could not be provided within 10 days. (See G.C. Exh.
17.) On August 26, the Respondent furnished the Union with a
list of employees, their dates of hire, a general list of wage
rates, and a digest of benefits. It did not, as requested in the
Union’s August 5 letter, furnish employee addresses claiming
that it wished to “protect the privacy of employees.” Instead, it
suggested that if the Union wished to correspond with unit
employees, it send all such correspondence in care of Respon-
dent at its business address. (G.C. Exh. 18.)
The Respondent argues that it has fully complied with the
Union’s information request, and that it should not be deemed
to have violated the Act simply because some of the informa-
tion provided, e.g., wage scales, was not in the form desired by
the Union or because it sought to protect the privacy rights of
employees by withholding the employees’ addresses. The
General Counsel concedes that Respondent provided some of
the information sought in the August 5 letter. It contends, how-
ever, that Respondent nevertheless violated Section 8(a)(5) and
(1) by refusing to furnish the Union with employee addresses
and with the pay rate of each individual unit employee. I agree
with General Counsel.
It is well settled that once a bargaining obligation is created,
as it was in this case pursuant to the settlement agreement of
May 24, an employer becomes statutorily obligated to provide
the bargaining representative with information that is both rele-
vant and necessary for the proper performance of its duties.
Pfizer, Inc., 268 NLRB 916, 918 (1984). The Board has found
that addresses and wage rates of individual unit employees are
presumptively relevant and must be produced. Circuit-Wise,
308 NLRB 1091, 1097 (1992); and Top Job Bldg. Maintenance
Co., 304 NLRB 902, 909 (1991).
The Respondent does not question the relevancy of the in-
formation that was not provided; namely, the individual wage
rate and address of each unit employee. Rather, its failure to
furnish the Union with the pay rate for each unit employee was
premised on what I find to have been a good faith, but mistaken
30 Although par. 8 of the complaint alleges that the Respondent’s an-
nounced policy of July 29, 1993, was unlawful, that allegation was
withdrawn following reinstatement of the settlement agreement, and
while the agreement prohibited Respondent from making unilateral
changes in the employees’ terms and condition of employment, there is
nothing in the agreement that expressly required the Respondent to
rescind its July 29, 1993 policy. In the absence of such a directive, the
Respondent arguably could have believed that its policy remained in
effect and that it was obligated pursuant thereto to grant the increase.
RICHARD MELLOW ELECTRICAL CONTRACTORS CORP. 1131
belief that it had complied with the request by providing the
Union with a general list of its wage rates, without pegging it to
the individual unit employee. Notwithstanding Respondent’s
good faith, it is sufficiently clear from its August 5 request, that
the Union was seeking the wage rate for each individual unit
employee, rather than a general list of wage rates, and Respon-
dent’s submission of the latter, without identifying what each
unit employee was earning, obviously fell short of the Union’s
request.
As to the employee addresses, the Respondent defends its re-
fusal to provide such information to the Union on grounds that
it was only interested in protecting the privacy rights of said
employees. While the Respondent may have had good inten-
tions, its failure to comply with this request, information which
as noted is considered to be presumptively relevant, was never-
theless unlawful. As the Board has noted, whenever a claim of
confidentiality is raised, the party asserting that claim has the
burden of proof. Pfizer, Inc., supra at 919. Except for a gen-
eral claim that it was interested in protecting the privacy rights
of employees, the Respondent failed to show that its employees
had expressed a desire to have such information kept confiden-
tial or that it had, in the ordinary course of business, kept such
information confidential for other purposes. In these circum-
stances, Respondent’s failure to provide the Union with the
addresses and wage rates of unit employees, regardless of how
pure its motives, violated Section 8(a)(5) and (1) of the Act, as
alleged. The fact that Respondent may have partially complied
with the Union’s information request does not absolve it of
liability stemming from its failure to provide the Union with
remaining necessary and relevant information it had requested
and to which it was clearly entitled. Top Job Bldg. Mainte-
nance, supra. Its conduct in this regard, however, convinces
me that the Respondent did not intentionally seek to avoid its
bargaining obligations, and that its refusal to comply fully with
the Union’s request was based on a good-faith, albeit erroneous
belief that it did not have to do so, rather than on any perceived
animosity towards the Union.
5. The alleged refusal to bargain
The General Counsel contends that the Respondent’s con-
duct both at and away from the bargaining table establishes
clearly that the Respondent had no intentions of entering into
any agreement with the Union and that it simply engaged in
bad-faith surface bargaining in violation of Section 8(a)(5) and
(1) of the Act.
The resolution of surface bargaining allegations never pre-
sents an easy issue. Indeed, the determination whether a party
has engaged in unlawful “surface” bargaining is usually a diffi-
cult one because it involves, at bottom, a question of the intent
of the party in question, and usually such intent can only be
inferred from the totality of the challenged party’s conduct both
at and away from the bargaining table. Lucky 7 Limousine, 312
NLRB 770, 789 (1993); and Overnite Transportation Co., 296
NLRB 669, 671 (1989).
In support of the bad-faith, surface bargaining allegation, the
General Counsel cites the “paper war” and other related state-
ments purportedly made by Dembeski to Burdick on May 20,
as well as Katz’ claim that he was told by Koff during the June
14 conversation that Mellow was opposed to signing any
agreement. Undoubtedly, such statements, if made, would
constitute strong prima facie evidence of Respondent’s early
intentions not to bargain in good faith and would support a
surface bargaining allegation. However, as noted, Burdick and
Katz were not credible witnesses and I am convinced, based on
the Burdick’s and Katz’ poor demeanor on the witness stand
and inconsistencies in their testimony, that neither Dembeski
nor Koff made the statements attributed to them.
The General Counsel further cites as evidence of Respon-
dent’s bad faith its alleged refusal to meet for an August 25
bargaining session. Katz claims that several days after August
5, he called Koff’s office to arrange for a bargaining session.
As Koff was out of town on business, Katz claims he spoke
with someone identifying herself as Koff’s secretary who
committed Koff and the Respondent to an August 25 bargain-
ing date. Koff denies that any such meeting was agreed to, and
credibly testified that all of his appointments and meetings are
scheduled by him and no one else.
As between Koff and Katz, I credit Koff that no such meet-
ing was scheduled. Katz, as previously noted, was not a credi-
ble witness. His testimony that the parties agreed to an August
25 bargaining session was based on nothing more than his own
recollection, and certain self-serving letters he sent to Koff, and
is simply not believable. Thus, his suggestion that Koff’s sec-
retary was able to commit both Koff and the Respondent to an
August 25 bargaining session, without first consulting with
either Koff or any of Respondent’s representatives, e.g., Mel-
low or Dembeski, as to their availability, strains credulity.
Further casting doubt on Katz’ testimony in this regard is the
fact that unlike the July 5 and October 3 bargaining dates,
which Katz admits were confirmed in writing, no such written
confirmation was produced by Katz regarding an August 25
meeting.31 At times during his testimony, Katz volunteered
information that was not being elicited. For example, when
asked by the General Counsel if he recalled who was to contact
whom after the October 3 meeting, Katz stated he could not
recall, but added, somewhat gratuitously, that “Flanagan had
tried, and tried, and tried ... and couldn’t really do anything
with him afterwards.” At times during his cross-examination,
Katz seemed anxious to portray himself as someone who had
assumed the higher moral ground in this proceeding, as evident
by his following statement: “In this case it’s clear to me and to
any attorney involved I this case that [the Union] is right mor-
ally and legally and Mr. Mellow is a game-playing violator of
the law in many way some of which are being barred here.”
The General Counsel sought to bolster Katz’ testimony re-
garding an August 25 meeting by producing several letters
exchanged between Koff and Katz that make reference to such
a meeting. (G.C. Exhs. 24, 25, 27–29.) Those letters, however,
do not establish that such a meeting had been arranged. On the
contrary, the letters reveal a disagreement between Katz and
Koff regarding such agreement, and serve neither to bolster nor
corroborate Katz’ claim of an agreed-upon August 25 meeting.
In fact, Katz’ letters, particularly the ones dated August 31 and
September 27 (G.C. Exhs. 27, 29), are clearly self-serving in

31 Katz brought with him to the hearing his “communication file”
which he claimed contained “whatever communications I sent or didn’t
send.” From the file, Katz was able to produce confirmation letters he
sent regarding the July 5 and October 3 bargaining dates. When asked
if he had a similar confirmation letter as to the August 25 meeting, he
stated, “I do not see one in my communication file. That does not mean
I do or don’t have one.” Katz’ ambiguous testimony as to the existence
of such a letter, and his failure to produce a letter confirming an August
25 meeting, while producing such letters for the July 5 and October 3
meetings, convinces me that no such letter exists and that no August 25
meeting was scheduled.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1132
nature and appear to have been prepared by Katz for the pur-
pose of creating a paper trail of evidence to be used, if the need
arose, to support a bad-faith bargaining allegation.
The General Counsel also cites as evidence of Respondent’s
“unwillingness to return to the business of negotiating an
agreement” Koff’s alleged refusal in his August 24 letter to
provide Katz with alternative bargaining dates, as requested by
Katz in his August 18 letter. However, when read in conjunc-
tion with Katz’ August 18 letter, Koff’s response is subject to a
more reasonable and certainly less sinister explanation than that
proffered by the General Counsel. In his August 18 letter,
Katz, inter alia, asked Koff to provide him with Respondent’s
counterproposal to the Union’s initial contract offer. Along
with his August 24 response, Koff sent Katz Respondent’s
counterproposal and suggests that Katz call him to arrange for a
mutually acceptable date when he Katz would be available to
meet and talk about collective-bargaining issues. Clearly,
Koff’s conduct in immediately forwarding to Katz a counter-
proposal, as requested by the latter, is hardly consistent with
any plan or design by the Respondent to avoid its bargaining
obligation, as argued by the General Counsel.
Admittedly, Koff did not furnish Katz with alternative bar-
gaining dates as requested in the latter’s August 18 letter. It is
equally true, however, that Katz himself made no mention of
his own availability for further negotiations, nor did he propose
alternative dates of his own on which bargaining might resume.
I note further that Katz’ statement in his August 18 letter, that
“as soon as we have received your position, we will be able to
finish our evaluation of that which will be required from your
client in order to conclude the labor contract,” could reasonably
have led Koff to assume that the Union would need some time
to review Respondent’s counterproposal before deciding on a
response. Not knowing when the Union might be ready or
willing to discuss Respondent’s counterproposal, Koff’s reluc-
tance to furnish Katz with specific dates regarding his availabil-
ity, and his alternative suggestion that Katz call him to “arrange
for a mutually agreeable date” when he (Katz) would be “avail-
able to meet and talk about collective bargaining issues,” can
reasonably be viewed as nothing more than a good-faith effort
by Koff to provide the Union ample time to review Respon-
dent’s proposal. Thus, contrary to the General Counsel, I find
nothing in Koff’s reply to Katz than demonstrates an unwill-
ingness by the Respondent to engage in good-faith negotiations
or that can be construed as a refusal to bargain.
The General Counsel further cites as evidence of Respon-
dent’s bad faith Mellow’s alleged refusal to respond to Flana-
gan’s phone requests to meet with him to discuss an agreement.
Flanagan, as noted, testified that following the July 5
bargaining session, and again after the October 3 session, he
tried repeatedly, albeit unsuccessfully, to meet with Mellow,
with the latter either refusing to return his calls, or refusing to
set up a particular meeting date on those occasions when they
did speak.
While undisputed in most respects, Flanagan’s testimony,
like that of Schraeder and Katz, was not very convincing.
Flanagan’s testimony on certain points is in conflict with that
provided by Schraeder, and while Schraeder was generally not
a credible witness, the inconsistencies between his testimony
and Flanagan’s casts a shadow over Flanagan’s testimony as
well. For example, in an effort to corroborate Flanagan’s tes-
timony regarding the latter’s attempts to arrange for a post-
October 3 meeting with Mellow, Schraeder stated that he was
present during many of the calls Flanagan made to Mellow, and
that despite these frequent contacts, Flanagan and Mellow were
unable to arrange for a date that would be agreeable to both.
Schraeder also stated that many of these discussions occurred
between October 31, 1994, and January 12, 1995, at which time
Schraeder wrote to Respondent seeking a resumption of bar-
gaining. Oddly enough, Flanagan makes no mention in his
testimony of Schraeder having been present during any of the
alleged phone calls made to Respondent, or during any of the
purported conversations he may have had with Mellow.
Schraeder’s further assertion that Flanagan held additional dis-
cussions with Mellow after October 31, is contradicted by
Flanagan who testified that after October 31, no further contact
was had with Respondent until Schraeder’s January 12, 1995
letter.
Finally, both Schraeder and Flanagan testified to having had
separate conversations with Mellow during which the latter
gave different accounts about the state of his business. Thus,
Schraeder testified that Mellow advised him during a brief en-
counter on October 31, that he Mellow was not very busy, re-
ferring to the amount of work that he had available. Flanagan,
on the other hand, testified that during his alleged conversations
with Mellow in October, Mellow often claimed to be very busy.
Assuming, arguendo, that Mellow did in fact converse with
both Schraeder and Flanagan during late October, I find it
highly unlikely that Mellow would have made conflicting
statements to Schraeder and Flanagan regarding the state of his
business. Rather, I find it more likely than not that either
Schraeder or Flanagan, or both, embellished their account of
what Mellow might have said so as to create an impression that
Mellow either had no basis for refusing to meet because, ac-
cording to Schraeder’s account he was not very busy, or sought
to avoid his bargaining obligation under the guise of being too
busy, as implicitly suggested by Flanagan. While it is conceiv-
able that Mellow might have said one thing to Schraeder and
quite another to Flanagan, I find it highly unlikely that Mellow,
who was generally a very credible witness, would have made
such patently conflicting statements to Schraeder and Flanagan.
Overall, I find Flanagan’s testimony to be suspect, including
his claim that he made numerous attempts following the Octo-
ber 3 meeting to meet with Mellow.32 Further, as found above,
the Union, having received Respondent’s counteroffer and
having been advised by Koff that article 18 was being with-
drawn, was expected to respond to the Respondent’s last pro-
posal. In this regard, I do not accept Flanagan’s testimony that
Mellow had agreed to contact him following the October 3
meeting as it runs counter to Koff’s claim, which I credit and
accept as true, that the Union was to contact Respondent re-
garding a response to the latter’s counterproposal.33 As I do not

32 Mellow admitted having spoken with Flanagan at the October 3
meeting during which Flanagan told him he would do whatever it took
to get a contract signed and would, if necessary, go over the contract
line by line with Mellow. Flanagan’s testimony is credited only to the
extent it agrees with Mellow’s or that of other Respondent witnesses.
33 As Schraeder and Katz are found not to be credible, the General
Counsel’s intimation that they corroborate Flanagan’s testimony in this
regard is rejected. Katz’ testimony, in any event, was in no way sup-
portive of Flanagan’s above testimony. In fact, Katz initially stated that
it was Flanagan who was to contact Mellow. However, he subse-
quently changed his testimony in response to a leading question from
the General Counsel, and ultimately admitted he could not recall “who
was to contact whom.” (Tr. 187.) The General Counsel further sought
to corroborate the Union’s claim in this regard through notes taken by
RICHARD MELLOW ELECTRICAL CONTRACTORS CORP. 1133
credit Flanagan’s above testimony, the General Counsel’s claim
that Respondent refused to meet is without merit.
The Union, in its posthearing brief, also makes certain argu-
ments regarding what it views as the Respondent’s bad-faith
approach towards negotiations. It contends, for example, that
Respondent’s bad faith is evident from the fact that Mellow did
not attend the first bargaining session on July 5, and instead
sent Koff and Dembeski who purportedly indicated at the July
5 session that they lacked any real authority to negotiate or
enter into agreement with the Union.34 As previously found,
neither Katz nor Schraeder were credible witnesses, and their
testimony regarding what Koff may have said regarding his
bargaining authority is not accepted as true. Mellow and Koff,
on the other hand, credibly testified that Koff had full authority
to bind the Respondent during negotiations. Further, the fact
that Mellow, rather than Koff, had the final authority to ap-
prove any agreement does not establish bad faith, for the Board
does not require that a representative be so empowered but
instead expects that any such limitation not serve as an im-
pediment to the progress of negotiations. Carpenters Local
1780, 244 NLRB 277, 281 (1979).
As noted above, the parties engaged in extensive discussions
during the first session regarding the Respondent’s particular
needs, and the types of agreements the Union had with other
local employers. Mellow’s absence or presence at that session
was not crucial to the success of those initial discussions. In-
deed, except for Katz’ and Schraeder’s discredited assertion as
to Koff’s purported lack of bargaining authority, there is noth-
ing in the record to suggest that the July 5 discussions were in
any way hampered by the fact that Mellow retained final au-
thority over any agreement that might be reached. Schraeder’s
and Flanagan’s description of the meeting as a “positive” one,
and their view that the meeting ended on a “positive” note (Tr.
62; 113; 225), strongly suggests that the parties had engaged in
a productive and meaningful dialogue of the issues. While the
parties were not able to reach agreement that day, the Union
nevertheless remained satisfied with the results of that first
bargaining session.35
Nor do I view Koff’s decision to consult with Mellow re-
garding the “residential-type” agreement proposed by the Un-
ion as evidence that Koff lacked bargaining authority or of bad-
faith bargaining, as has been suggested by the Union, for the
mere fact that an agent confers with his principal about matters

Schraeder. Those notes, however, are nothing more than a brief, self-
serving summary of Schraeder’s view of what occurred and do not, in
my view, accurately reflect all that was discussed at the meeting.
34 Katz’ testimony as to what Koff said regarding his bargaining au-
thority differs significantly from Schraeder’s. Katz testified, for exam-
ple, that either Dembeski and/or Koff “stated they could not make any
substantive decisions, that they would have to get back to me because
all decisions were really made and arrogated to himself in the sole and
complete and exclusive power of Mr. Mellow.” Schraeder, however,
testified that following discussions by the parties he was of the opinion
that the parties could come to some type of agreement and wanted to
discuss the matter further. Katz, at that point, asked, “Just who is the
owner of the corporation?” After being advised that it was Mellow,
Katz commented, “Well, how can we have an appropriate meeting here
if the owner isn’t here to make a decision on even signing? We can’t
even gain anything at this meeting other than an exchange of ideas.”
According to Schraeder, either Dembeski or Koff responded that Mel-
low “makes all the decisions.” (Tr. 61.)
35 Unlike Flanagan and Schraeder, Katz testified that the July 5
meeting ended on a downward note.
raised in a bargaining session with which he may not be wholly
conversant does not necessarily constitute evidence of bad
faith. Arcadia Foods, 254 NLRB 1012, 1020 (1981). Here,
neither Koff nor Dembeski was familiar with the Union’s pro-
posed standard agreement, and their suggestion that they
wanted to discuss it first with Mellow, who apparently was also
unfamiliar with said agreement, was not unreasonable. Indeed,
Koff’s further suggestion that the “residential type” agreement
was something that could be molded into an agreement after it
was discussed with Mellow clearly indicates Koff’s willingness
to engage in further negotiations and his anticipation that the
parties would be able to reach agreement.
The Union also argues that the Respondent’s proposal to in-
clude a “double breasting” provision in any agreed-upon con-
tract, which it claims would effectively give Respondent the
unilateral right to change certain working conditions without
notice to the Union, when viewed in light of Respondent’s
other conduct, such as Mellow’s failure to meet with Flanagan,
Dembeski’s alleged “paper war” statements to Burdick, its
refusal to comply with an information request, and its unilateral
granting of a wage increase, serves as further evidence that
Respondent had no real desire of reaching agreement with the
Union and was engaging in surface bargaining.
In matters such as this, the Board’s role is not to sit in judg-
ment of the substantive terms of bargaining, but rather to over-
see the process to ascertain that the parties are making a sincere
effort to reach agreement. McClatchy Newspapers, 307 NLRB
773, 779 (1992). The Board therefore will not consider
whether a particular proposal is “acceptable” or “unacceptable”
to a party in deciding the question of bad faith, but will instead
examine proposals when appropriate and consider whether, on
the basis of objective factors, a demand is clearly designed to
frustrate agreement on a collective-bargaining contract. Reich-
hold Chemicals, 288 NLRB 69 (1988).
As an initial matter, and without regard to whether the provi-
sion in question here—article 18—is a reasonable one, it should
be noted that the Board has long accepted the concept of “dou-
ble breasting” as a lawful arrangement for employers, primarily
in the construction industry, to create a separate and distinct
nonunion operations. Carpenters Ohio (Alessio Constr.), 310
NLRB 1023 (1993). To the extent that the Board sanctions
such an arrangement, it can hardly be deemed unlawful or im-
proper for an employer to propose such a provision for inclu-
sion in a contract during negotiations, as the Respondent did in
this case when it included article 18 as part of its counterpro-
posal. While the Union undoubtedly finds this provision objec-
tionable, that fact alone is insufficient to render the proposal
unreasonable, and cannot, without more, support a finding un-
der Reichhold Chemicals, supra, that the Respondent proffered
article 18 for the purpose of stifling or hindering the bargaining
process. Indeed, the Respondent’s conduct in removing article
18 from the bargaining table during the October 3 bargaining
session, soon after the Union expressed objections to the provi-
sion, is hardly consistent with a plan or design by Respondent
to thwart or hinder the bargaining process.
Finally, while Respondent, as found above, unlawfully
granted employees a wage increase and failed to fully comply
with the Union’s information request, its conduct in this regard,
as found above, resulted from a good-faith belief that it was
acting in a proper manner and was not, in my opinion, the
product of any grand design or deliberate scheme by the Re-
spondent to delay or avoid its bargaining obligation or to some-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1134
how undermine the Union in any way. Thus, there is no ques-
tion that it engaged in serious negotiations during the July 5 and
October 3 bargaining sessions, and that it submitted a counter-
proposal of its own in response to the Union’s proposed agree-
ment which, except for the “double-breasting” provision, was
not contested. The Respondent’s good faith was further mani-
fested in it willingness to withdraw article 18 from its counter-
proposal. As noted, there is no indication that the Union ob-
jected to any other aspect of Respondent’s counterproposal. By
the same token, no evidence was presented to show that the
Union, blinded by its opposition to article 18, discussed other
provisions in the counterproposal. In fact, when the record is
viewed in its totality, it becomes fairly evident that the Union’s
frustration with the Respondent during this whole process re-
sulted from its inability to reach a quick agreement. Thus, Koff
credibly testified that Katz told him during prenegotiation dis-
cussions that he expected an agreement to be reached within 10
minutes. During negotiations, Katz further commented that he
had revised his schedule because he anticipated that an agree-
ment would be signed during the first session. The fact that
Respondent chose to be more deliberate and cautious in its
approach towards the bargaining process does not amount to
dilatory and evasive tactics or constitute bad-faith bargaining.
Accordingly, I find that a preponderance of the relevant and
credible evidence fails to establish that Respondent engaged in
bad-faith, surface bargaining, and that Respondent in this re-
gard did not violate Section 8(a)(5) and (1) of the Act, as al-
leged.
CONCLUSIONS OF LAW
1. The Respondent, Richard Mellow Electrical Contractors
Corporation, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. International Brotherhood of Electrical Workers, Local 81
is a labor organization within the meaning of Section 2(5) of
the Act.
3. By failing and refusing to provide the Union with the ad-
dresses and wage rates of employees in the following appropri-
ate bargaining unit, the Respondent has violated Section 8(a)(1)
and (5) of the Act:

All full-time and regular part-time electricians employed by
Richard Mellow Electrical Contractors Corporation, exclud-
ing all other employees, estimators, office clerical employees,
guards, and supervisors as defined in the Act.

4. By unilaterally granting a wage increase to unit employees
on July 19, 1994, the Respondent has violated Section 8(a)(1)
and (5) of the Act.
5. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent has not engaged in any of the other un-
lawful conduct alleged in the complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. The Respondent shall be ordered to
furnish the Union the address and rate of pay for each unit em-
ployee. However, while the Respondent is found to have un-
lawfully granted unit employees a wage increase, nothing here
shall be construed as authorizing the Respondent to rescind
such increases.
[Recommended Order omitted from publication.]