Rondout Electric, Inc.

National Labor Relations Board - Board Decisions

Nov 8, 1999

329 N.L.R.B. 957 (N.L.R.B. 1999)

RONDOUT ELECTRIC 957
Rondout Electric, Inc. and International Brotherhood
of Electrical Workers, Local Union 363, AFL–
CIO. Cases 3–CA–18643, 3–CA–18950, and 3–
CA–19567
November 8, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS HURTGEN
AND BRAME
On December 5, 1996, Administrative Law Judge
Howard Edelman issued the attached decision. The
General Counsel and the Charging Party filed exceptions
and supporting briefs1 and the Respondent filed a brief in
answer to the exceptions of the General Counsel and
Charging Party.
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,2 and conclusions3
and to adopt the recommended Order.
In so doing, we note the following:
(1) We agree with the judge’s finding that the Respon-
dent’s state court criminal trespass charges against union
organizers John Sager and Stephen Rockafellow were
not a violation of the Act. However, we do not agree
with the judge’s analysis. The judge cited the following
evidence. On September 12, 1994,4 nonemployee union
organizers John Sager and Stephen Rockafellow entered
the Respondent’s office trailer at the jobsite. Sager took
a photograph of an antiunion poster.5 The Respondent
did not invite Sager and Rockafellow to do this. In Oc-
tober, the Respondent filed criminal trespass charges
against Sager and Rockafellow concerning this incident.
In March 1995, the state court dismissed these charges
because they relied on the wrong statutory provision.6
The state court held no hearing on the merits of the
charges.

1 The General Counsel also renewed his motion, contained in the
General Counsel’s brief to the administrative law judge, to correct
minor transcript errors. The administrative law judge inadvertently
failed to grant this motion. We do so.
[Certain errors in the transcript are noted and corrected.]
2 The judge dismissed the complaint allegations, relying almost en-
tirely on his credibility findings. The General Counsel and the Charg-
ing Party have excepted to 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.
3 We agree with the judge’s finding that the Respondent’s general
manager, Ed Pietrowski, did not unlawfully interrogate applicant Chris
Gallo at his prehire interview in May 1994, based on the judge’s dis-
crediting of Gallo’s testimony concerning the incident. We find it
unnecessary to address the judge’s further comments regarding the
lawfulness of Pietrowski’s inquiries.
4 All dates are in 1994 unless otherwise indicated.
5 The record does not support the judge’s additional finding that
Sager took an antiunion flier.
The judge concluded that in order to establish a viola-
tion of the NLRA based on a state court lawsuit, the
General Counsel must show that a respondent filed a
meritless state court lawsuit with a retaliatory motive.7
The judge found that the Respondent’s charges against
Sager and Rockafellow were not shown to be meritless.
He noted that the state court dismissed the charges be-
cause of erroneous statutory citations. He also found that
the testimony of Sager and Rockafellow indicated that
they had trespassed. Finally, the judge found that the
Respondent’s charges were not filed with a motive to
retaliate against the Union’s organizational activities.8
We disagree with the judge’s analysis. The Board has
held that where a state court lawsuit has finally been ad-
judicated and the plaintiff has not prevailed, the state suit
is deemed meritless for purposes of a Bill Johnson’s
analysis.9 In discussing this finding of lack of merit, the
Supreme Court in Bill Johnson’s alluded not only to ad-
verse judgments, but also to suit withdrawals and occur-
rences that “otherwise” manifest a lack of merit.10 Here,
the state court dismissed the Respondent’s trespass
charges. The court did so because there was no cause of
action under the cited state statute on which the state
court suit was based. There is no record of an appeal or
of a lawsuit amendment relying on a different statute.
Accordingly, that lawsuit is over, and plaintiff lost.11
However, we agree with the judge’s finding that the
Respondent’s criminal charges did not have a retaliatory
motive. In the criminal trespass “informations” filed
against Sager and Rockafellow, the Respondent only
cited trespass in the job trailer with respect to both Sager
and Rockafellow, and “tak[ing] a picture of the interior”
with respect to Rockafellow.12 The Respondent did not
attack Sager’s and Rockafellow’s other access to the Re-
spondent’s employees on the jobsite. The Respondent’s
attorney noted this access on the record and Sager him-
self testified that on September 12 he went to the con-
struction building on the jobsite where he spoke with the
6 The charges relied on a statute concerning “a dwelling.”
7 The judge relied on Bill Johnson’s Restaurant v. NLRB, 461 U.S.
731 (1983).
8 The judge provided no analysis for the latter finding.
9 Braun Electric Co., 324 NLRB 1 (1997); Control Services, 315
NLRB 431, 455–456 (1994), and cases cited.
10 Bill Johnson’s Restaurants v. NLRB, supra at 747.
11 The Respondent contends that its criminal charges had merit and
the state court’s dismissal for erroneous statutory citation was based on
“mere technicalities.” Even if we were to find that Respondent’s
criminal charges were not meritless, that would not affect the result in
this case. As discussed, our basis for dismissal is that there is no proof
that the criminal charges were filed for a retaliatory motive.
12 Rockafellow testified that it was Sager who took the photograph
of the antiunion poster.
329 NLRB No. 87
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 958
Respondent’s employees for 15 to 20 minutes.13 Given
the Respondent’s clear toleration of workplace organiz-
ing, we cannot conclude that it filed criminal charges to
retaliate against protected activity. Rather, it retaliated
against the unwarranted intrusion by Sager and Rockafel-
low. The two men entered the Respondent’s trailer to-
gether and one or the other proceeded to photograph a
Respondent document. This led the Respondent to file
criminal charges. There was no retaliation against pro-
tected activity as required for a violation.14
(2) We also agree with the judge, for the reasons he
states, that the General Counsel failed to establish that
the Respondent refused to hire the 11 named applicants
because of their affiliation with the Union. The judge
found that the Respondent’s hiring and failure to fire
were pursuant to its “ordinary and lawful policies.” Thus
the Respondent gave preference to its former employees,
to employees who had worked for the brother of the Re-
spondent’s owner, and employees who filled a hiring
need and were immediately available. In addition to the
reasoning of the judge, we rely on the following:
(a) William Miller
The judge found that the Respondent hired William
Miller because he filled a hiring need and was immedi-
ately available. The judge credited General Manager
Kenneth Schupp’s testimony concerning the events of
June 22. John Harris, one of Schupp’s foremen, tele-
phoned Schupp about needing a worker. When Schupp
went downstairs, his secretary told him that William
Miller was filling out an application and would like to
talk to someone. Schupp spoke with Miller for about 10
minutes and was impressed with his work experience and
enthusiasm for hard work. Schupp testified that hiring
Miller on the spot was preferable to a delay of 2 or 3
days spent checking files and setting up interviews.
The General Counsel alleges that Miller, however, did
not work until June 27, and that this delay discredits the
validity of Miller’s hire as “filling a hiring need and im-
mediately available.” The General Counsel also notes
that Miller commenced work on the day after the Re-
spondent’s June 26 notification to the 11-named appli-
cants alleged as discriminatees that the Respondent
would not be offering them employment at that time but
would keep their applications on file for a year. The
General Counsel therefore alleges that Miller’s hire
shows a discriminatory motive as to the eleven.

13 Sager also testified that in July, August, and September he visited
the Respondent’s jobsites, speaking to employees there, leaving his
business card, and answering phone calls from employees in the eve-
nings.
14 In Member Hurtgen’s view, the suit against Sager and Rockafel-
low would be lawful even if Respondent-plaintiff had alleged only
trespass onto Respondent-plaintiff’s property. Under Lechmere, 502
U.S. 527 (1992), they had no protected right to trespass, and thus the
suit would not be aimed at protected activity.
We disagree. The record is not precise about the im-
mediacy of Harris’ need for a worker. In any event,
Miller was immediately available on the day that Schupp
received the phone call establishing the need to hire and
hired Miller. Thus we find that the Respondent hired
Miller pursuant to the Respondent’s established “ordi-
nary and lawful” practice of hiring employees who filled
a need and were immediately available. Furthermore, the
day on which Schupp hired Miller preceded by a few
days the date of the Respondent’s notification to the 11
applicants alleged as discriminatees that the Respon-
dent’s hiring needs were currently satisfied. Accord-
ingly, the circumstances of Miller’s hire fail to establish
discrimination. This is especially so where, as here,
there is no evidence of animus.
(b) Ed Barber and Adam Cooper
The judge also credited Schupp’s testimony concern-
ing the Respondent’s rejection of Ed Barber for a fore-
man position and its hiring of Adam Cooper as a helper.
Barber applied for a foreman position. The Respondent
sought only electricians and helpers. There were no
foreman positions available. The Respondent also pre-
ferred not to substitute a journeyman electrician position
for a foreman position because of the significant differ-
ence between the two positions. Moreover, the Respon-
dent regularly rejected applicants for electrician positions
who had not recently worked in the trade. Barber had
not worked as an electrician for several years. Cooper
applied for an electrician position. The Respondent hired
him as a helper because his qualifications matched those
required of a helper.
The General Counsel alleges that the Respondent’s
failure to hire Barber as an electrician was discriminatory
as demonstrated by the fact that the Respondent hired
Cooper as a helper.
We disagree. The judge correctly found that the Re-
spondent refused to hire Barber as a foreman and hired
Cooper as a helper for valid reasons. By contrast, the
General Counsel’s allegation of discrimination rests on
two assumptions: the first is that there is some sort of
equivalency between substituting electrician for foreman
and helper for electrician; the second is that the Respon-
dent should have made the former substitution for Barber
because the Respondent made the latter substitution for
Cooper. We find that these assumptions are not sup-
ported by evidence. Thus they do not establish a basis
for finding discrimination. We also note that there is no
evidence showing animus.
(c) John Malkin
The judge credited Schupp’s testimony that the Re-
spondent hired Malkin on June 21 as a former employee
and an employee who had worked for the brother of the
Respondent’s owner. The General Counsel alleges that
Malkin was not a former employee of the Respondent
RONDOUT ELECTRIC 959
and that the Respondent’s preference for Malkin over the
11 specified applicants was discriminatory.
We disagree. Even assuming that Malkin was not a
former employee of the Respondent, the Respondent
lawfully gave Malkin preference over the 11 applicants
alleged as discriminatees as a former employee of the
brother of the Respondent’s owner.
(d) Warren Belmore
The judge credited Schupp’s testimony that Warren
Belmore was hired on August 7 on referral from one of
the Respondent’s employees and the brother of the Re-
spondent’s owner. The General Counsel alleges that
Belmore filled out his application for employment on
June 31, was hired on July 5 and rehired on August 7, all
after the June 26 notification to the 11 applicants alleged
as discriminatees that the Respondent’s hiring needs
were currently satisfied. The General Counsel further
alleges that the Respondent’s preference for Belmore was
discriminatory.
We disagree. We find no evidence of discrimination,
even assuming the accuracy of the chronology presented
by the General Counsel. Belmore was referred by the
brother of the Respondent’s owner. As the judge found,
and we agree, the Respondent used ordinary and lawful
hiring practices which included preference for employees
who were referred by the brother of the Respondent’s
owner. As just such an applicant, Belmore had prefer-
ence over the 11 applicants alleged as discriminatees
irrespective of the date of his application or hire, and
irrespective of whether these dates were before or after
June 26. The General Counsel provides no evidence of
discrimination here.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Robert A. Ellison, Esq., for the General Counsel.
Thomas V. Walsh, Esq. (Jackson, Lewis, Schnitzler & Krup-
man), and Patricia Wager, Esq. (Lewis & Greer, P.C.), for
the Respondent.
Robert M. Archer, Esq. (Meyer, Suozzi, English & Klein, P.C.),
for the Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This was
tried before me on April 29 and 30 and May 1 and 2, 1996, in
Poughkeepsie, New York. The various charges in this case
were filed by International Brotherhood of Electrical Workers,
Local Union 363, AFL–CIO (Local 363 or the Union) against
Rondout Electric, Inc. (Rondout or the Company). On October
6, 1995, a consolidated complaint issued, alleging violations of
Section 8(a)(1) and (3) of the Act.
On the entire record in this case, including my observation of
the demeanor of the witnesses, and a consideration of briefs
filed by the counsel for General Counsel, counsel for Local
363, and counsel for Rondout, I make the following
FINDINGS OF FACT
Rondout is a New York State corporation with the principal
office and place of business located in the city of Poughkeepsie,
New York, where it is engaged in the electrical contracting
business in the building and construction industry. Rondout
annually, in conducting its business provides electrical
contracting services within the State of New York for
enterprises, which are directly engaged in interstate commerce.
It is admitted, and I find that Rondout is an employer within
the meaning of Section 2(2), (6), and (7) of the Act.
It is also admitted, and I find Local 363 is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
As set forth above, Rondout is in the business of providing
electrical contracting services. Rondout is owned by its presi-
dent, Wilbur (Bill) Whitman. Whitman and his brother, Sandy,
previously owned and operated another electrical contracting
company, Whitman Electric, in Kingston, New York. The
brothers split amicably in 1969, when Wilbur founded Rondout
Electric in nearby Poughkeepsie, New York. Whitman Electric
is still owned and operated by Sandy Whitman and his sons.
Rondout conducts business at jobsites throughout New York
State and Florida. Its principal office is in Poughkeepsie, New
York.
Rondout’s Florida business increased substantially through-
out 1994 and began to demand more and more of Bill Whit-
man’s time. Whitman tried to continue managing the day-to-
day business of both offices with the help of his general man-
agers in Poughkeepsie, Ed Pietrowski and Jim Decker. To-
wards the end of 1994, Whitman’s time began to be dominated
more and more by his Florida business. By the beginning of
1995, Whitman moved to Florida, and left the management of
the Company’s New York operations to Pietrowski and Decker.
However, in early February 1995 Pietrowski and Decker left
Rondout suddenly, and under less than favorable circum-
stances.
In February 1995, the day-to-day running of Rondout be-
came the responsibility of Kenneth Schupp. Schupp was origi-
nally employed by Whitman Electric as an electrician, in 1982.
Upon layoff from Whitman in 1984, he was referred by Sandy
Whitman to Rondout. He was hired by Rondout as an electri-
cian, was promoted to foreman, and was later to superintendent.
At the time Schupp became general manager, he had served 8
years as Rondout’s superintendent at a major jobsite at the
Rockland Psychiatric Center in Rockland, New York. With the
increased demands on Bill Whitman’s time by the Florida of-
fices, it as agreed that Schupp would take over the daily opera-
tions of Rondout in Poughkeepsie. Schupp has been solely
responsible for all hiring decisions at Rondout, since February
1995.
The Rondout “shop” in Poughkeepsie is a two-story structure
housing the offices of 15 employees. Schupp, the general man-
ager, is in overall change of the Poughkeepsie operation. In
addition there is a controller, project managers, and estimators,
an accounting staff, and two secretaries. The building has a
small lobby area, which is open to the public, with a window
looking into the receptionists office. In addition to directly
supervising the office staff, Schupp spends about 30 percent of
his time on the road visiting clients and worksites. Both office
staff and onsite staff report to Schupp, either directly or indi-
rectly. No electricians work in the building although they are
occasionally helpers in the building to run materials back and
forth to sites.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 960
At each worksite, Rondout employs various numbers of
foremen, electricians, apprentices, helpers, and laborers. Each
Rondout worksite has a foreman. The General Counsel con-
tends that the “foremen” are employees within the meaning of
Section 2(3) of the Act. However, the General Counsel con-
tends that Respondent’s foreman, Jim Snell, is a supervisor
within the meaning of Section 2(11) of the Act. The credible
evidence established that all Rondout’s foremen, including
Snell are hourly paid. The foremen generally sets up man-
power for the day, consults the work plans provided by the
Company or by the clients, and will usually assign work to
electricians, helpers, and other employees. Such work assign-
ments are usually routine.
Foremen, including Snell, have no authority to issue disci-
pline, to grant time off, or to hire or lay off employees. Only
Schupp has the authority to exercise these functions. Schupp
occasionally asks foremen to be his eyes and ears on the site
and to discuss site problems with the office.
Rondout employs electricians in one job category or title:
electrician. Rondout does not use “mechanic” or “journeyman”
titles. To be considered for employment by Rondout as an
electrician, an individual must posses the knowledge and ability
to, inter alia, run conduit on his own, control work, work in
load centers, and do major power distributions. An individual
whose skills fall one step short of these requirements is not
considered to be an electrician and would not be hired as such.
Rondout conducts a New York State certified apprenticeship
program. The Company employs numerous new electricians in
this manner. In this program, Rondout hires individuals who
commit to participation in a 5-year academic program, attend-
ing classes at night, while employed in electrical field work for
Rondout during the day.
Rondout also employs approximately 10 or 11 “helpers.”
Helpers are not electricians. It is their job to work with electri-
cians by carrying materials, assisting as an extra hand, and
“getting coffee.” They have no qualifications as electricians.
The credible testimony of Schupp1 establishes that Rondout
Electric has a long established set of policies and practices with
regard to hiring and recruitment.of employees. These practices,
in order of their priority, are:

l. Rehiring former Rondout employees.
2. Hiring former Whitman Electric employees.
3. Referrals from current Rondout employees.
4. Hiring from newspaper ads

Employment in the electrical contracting industry is sea-
sonal. Summer is the peak season. It has been Rondout’s pol-
icy “forever” to seek the rehire former company employees

1 I conclude that Schupp is an entirely credible witness. On a scale
of 1 to 100, I would rate him 100. Throughout his long testimony
including intense cross-examination he was entirely composed. He
answered every question put to him in a direct and thoughtful manner.
His answer to all questions was complete and detailed. He did not
fence with counsel, nor was he evasive with respect to any question put
to him. His testimony to questions put to him by counsel as to why he
did not hire each of the alleged discriminatees were detailed, logical
and unrebutted. Similarly, his testimony as to questions why he hired
other employees during the hiring period of June through July 1995
were also direct, logical, detailed, and unrebutted. I credit his entire
testimony.
first. The reason for preference number 1 is obvious, the Com-
pany has already had successful experience with the employee.2
However, Rondout has no “seniority system” for recall or re-
hire. Rondout keeps track of its previous employees by refer-
ring to their personnel records filed in the inactive personnel
files. The files are listed alphabetically, not chronologically.
Each personnel file includes a folder, which indicates the
name of the former employee, his job title, address, wage rate,
and his dates of employment. When reviewing former employ-
ees’ files for reemployment, Rondout sorts through the file
cabinets. Because this method is imperfect, many former em-
ployees can be missed through misfiling, or because their ad-
dresses have changed. Therefore, at times Rondout has run
newspaper ads seeking applicants as a way of letting former
employees know that work is available. In this way, the former
employees find Rondout, instead of Rondout looking for its
former hires.
As stated above, the Whitman brothers, Bill and Sandy,
separated their business relationship amicably. From time to
time over the years, when Sandy (Whitman Electric) has laid
off employees, he has called Bill (Rondout Electric) to see if
Rondout needed help. In this manner, Sandy assisted his
brother, and also found continued work for his employees.
Because of the relationship, Rondout Electric has established a
practice of giving an employment preference to former em-
ployees of Whitman Electric when its’ own former employees
cannot fill the open jobs. Employees of Whitman Electric have
been represented by a union, although not Local 363.
According to Schupp’s credible testimony, hiring former
Rondout or Whitman employees has generally covered all of
Rondout’s hiring needs. Additional hiring needs are filled by
referrals received by the Company from other employees, and
from other employers. In the event these hiring methods do not
fill their hiring needs, the Company will consider applications
from qualified members of the public, either solicited by news-
paper ads, or received by Rondout, unsolicited. Schupp testi-
fied that a receptionist keeps a file of a current month’s applica-
tions, whether solicited by advertisement or unsolicited, for his
periodic review.
Schupp’s testimony as to Rondout’s hiring practices are
logical. They appear to me, to be sound business practice.
Moreover, Schupp’s credible testimony as to Rondout’s hiring
practices is entirely unrebutted.
The General Counsel contends that Rondout unlawfully in-
terrogated Chris Gallo during Gallo’s prehire interview in May
1994. It is claimed by the General Counsel that Ed Pietrowski,
at the time the general manager, examined Gallo’s application,
and inquired as to Gallo’s earlier work for unionized employ-
ers. According to Gallo’s testimony, which I do not credit,
Pietrowski allegedly inquired whether Gallo was a member of
Local 363. Gallo was previously employed—as a union mem-
ber—by Whitman Electric. Notwithstanding his prior union
membership, Gallo was hired by Pietrowski.
This constututes the extent of the allegation of “interroga-
tion” by Pietrowski. Even if I were to credit Gallo, which I do
not, as a matter of law, these alleged facts are insufficient to
establish a violation of the Act. It is well established that mere
inquiries are not unlawful. In order to constitute a violation of
2 Conversely, former employees who left employment under inap-
propriate circumstances, such as resigning without notice, or discharge
for cause, are not considered eligible for rehire.
RONDOUT ELECTRIC 961
the Act, an “interrogation” into protected conduct must be co-
ercive. Rossmore House, 269 NLRB 1176 (1984), affd. 760
F.2d 1006 (9th Cir. 1985). Where the nature of the questioning
is open, general, and nonthreatening, it is not a violation.
Sunnyvale Medical Clinic, 277 NLRB 1217–1218 (1985).
Accordingly I find that Rondout did not violate Section 8(a)(1)
as alleged.
The General Counsel similarly alleges that Pietrowski inter-
rogated employee Andy Karadontes about his union affiliation,
during Karadontes’ interview with Rondout in June 1994.
The sole allegation of this 8(a)(1) violation is based on
Karadontes’ testimony that during his job interview with
Rondout on or about June 16, 1994, Pietrowski asked him “if
he belonged to any union organization.”
On cross-examination, Karadontes was questioned about the
affidavit he provided to the Region in support of this complaint.
The affadavit taken by a board agent, only a few days after the
alleged “interrogation” contained contradictive testimony to his
direct examination. Karadontes, when confronted by counsel
for Rondout during cross-examination admitted that his affida-
vit stated that Pietrowski only asked him whether he belonged
to “any organizations.” Such testimony is totally contradictory
to his direct testimony where he accused Pietrowski of asking
him “if he belonged to any union organizations.” I find such
significant contradiction renders Karadontes entire testimony
incredible.
On the basis of my credibility resolution concerning Kara-
dontes, I conclude the General Counsel has not established that
Rondout violated Section 8(a)(1) as alleged.
Gallo was a Rondout employee for exactly 4 weeks, from
May 16 to June 10, 1994. Initially, Gallo spent 2 days on a
Wal-Mart project in Newburgh, New York, installing conduit
and dividing circuits. Thereafter, beginning May 18, he and
another employee, Charlie Jones, were assigned to prepare a
Home Depot site in Middletown, New York, for the larger
Rondout crew, which was scheduled to start in June.
Gallo was specifically given the assignment because of the
skill he had claimed, during his prehire interview, for drawing
layouts.
Gallo testified on direct that, from the outset of his employ-
ment with Rondout, he had no trouble completing his assigned
work. He specifically denied that Pietrowski had ever dis-
cussed his work performance with him. He testified that noth-
ing had even made him think that he was in danger of receiving
a disciplinary notice. However, he had no choice but to admit
the truth when confronted on cross-examination with his affi-
davit, which said exactly the opposite, that Pietrowski “was
constantly telling me I wasn’t doing the work fast enough and
what was the problem.”
Indeed, Gallo’s affidavit expressed that he knew Pietrowski
was thoroughly displeased with his work. Gallo said in his
affidavit that Pietrowski felt that he “never did anything—no
matter what you did it wasn’t good enough, it wasn’t fast
enough.”
On May 20, after encountering continued difficulty satisfy-
ing the Company’s work requirements, Gallo contacted Local
363 Organizer John Sager, and signed an authorization card.
Gallo did not discuss his Local 363 activity with another
employee of Rondout until June 9 at the earliest. During the
interviewing time, Gallo’s work continued to deteriorate.
On Monday, June 6, Ed Pietrowski specifically told Gallo
that he was expecting technical drawings of an electrical room
which Gallo had not yet completed. Gallo admitted, when
confronted with his affidavit that Pietrowski told him his work
“was not good enough” on that day. On June 7, Pietrowski
directed Gallo to contact him daily regarding his job perform-
ance. However, Gallo did not call him. Gallo then testified on
cross-examination when, again confronted with his affidavit
that on June 8, Pietrowski reviewed Gallo’s technical drawing,
but was still not satisfied.
On June 9, 1994, when Gallo was certain that his job was at
risk because of the poor performance, he decided to advertise
his Local 363 interests. Gallo testified that on that day he wore
Local 363 T-shirt, and during the break he discussed the Local
363 with Rondout employees and handed out authorization
cards.
In the afternoon on June 9, Gallo testified he was approached
by Foreman Jim Snell. Snell was handing out paychecks. Snell
allegedly held in his hand an IBEW authorization card. Snell
allegedly told Gallo that Rondout wants nothing to do with
Local 363 and they’re not going to put up with this kind of
conduct. With that, Snell “walked away.” In view of the sig-
nificant contradictions between his direct testimony and cross-
examination, and his affidavit, I conclude Gallo is an incredible
witness. I do not credit his testimony as to his alleged conver-
sations with Snell.
Counsel for the General Counsel contends that Snell, al-
though “foreman” was also a supervisor under Section 2(11) of
the Act.3
The party seeking to assert an individual’s supervisory status
has the burden of proof. St. Alphonsus Hospital, 261 NLRB
620, 624 (1982), enfd. 703 F.2d 577 (9th Cir. 1983).
Under Section 2(11), an individual is a supervisor if he or
she

has authority, in the interest of the employer, to hire, transfer,
suspend, lay off, recall, promote, discharge, assign, reward, or
discipline other employees, or responsibly to direct them or to
adjust their grievances, on effectively to recommend such ac-
tion, if in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature, but re-
quires the use of independent judgment.

The record contains no evidence whatsoever that Jim Snell
had the requisite authority to make him a supervisor within the
meaning of the Act. In fact, all the affirmative evidence on this
subject demonstrates conclusively that. Snell was not a supervi-
sor under the Act. Jim Snell had no authority to hire or fire, nor
to lay off employees, he did not responsibly direct employees in
any but routine work, he had no authority to grant time off, or
to take disciplinary action. Moreover, Foreman Snell had no
greater authority than any other employee to recommend any
changes in terms and conditions of employment.
The record is further silent as to any ability of Foreman Snell
to adjust grievances, reward, transfer, promote or demote em-
ployees, grant overtime, or in any way affect changes in em-
ployees’ terms and conditions of employment. On this record,
it is conclusive, and I find that Snell is an “employee”—and not
a “supervisor”—within the meaning of the Act.
Absent such supervisory status on the part of Snell, his al-
leged statements to Gallo, even if true, cannot be imputed to
Rondout. Moreover, Gallo’s contention of “interrogation” by
Snell are simply not made out on the record. The record estab-

3 Neither Rondout nor the General Counsel called Snell as a witness.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 962
lishes that Snell handed Gallo a union authorization card which
Gallo admitted handing out earlier that day, and asked him if he
knew what it was. There is no alleged “interrogation,” coercive
or otherwise. Further, on this record, it is abundantly clear that
Snell’s alleged comments as to the Rondout’s displeasure with
union organizing are no more than an expression of opinion.
Indeed, according to Gallo, Snell said he wanted nothing to do
with a union.
The record is clear that Rondout discharged employee Gallo,
because it was dissatisfied with his work performance. This is
clear from witness Gallo’s own testimony, and from the docu-
mentary evidence. Moreover, the General Counsel failed to
show directly or indirectly, that Rondout was motivated in any
way by any intent or desire to retaliate against Gallo because of
his activities on behalf of Local 363.
It is also clear that Rondout was dissatisfied with Gallo’s
work performance from that time he was hired. It is also clear
that Gallo did not tell his coworkers about his Local 363 activ-
ity until June 9—and indeed, he never told management. The
General Counsel failed to show that Rondout was even aware
of Gallo’s allegedly prounion stance at any time prior to his
discharge.4
Gallo testified that on June 10, 1994, he spoke with Ed Pie-
trowski by telephone. According to Gallo, Pietrowski “started
complaining and saying I’m not working out, this not going to
work out.” His criticisms, by Gallo’s own testimony, were
about Gallo’s work performance. Pietrowski amiably
accommodated Gallo’s request to finish the workday, but ter-
minated his employment at the conclusion of that day.
Pietrowski subsequently gave Gallo a warning letter dated
June 7. The warning letter expressed Rondout’s dissatisfaction
with his failure to apply himself to his work assignments, fail-
ure to report daily to Pietrowski as ordered, failure to lay out
the electricial room properly, and a general lack of the knowl-
edge Gallo claimed he had, during his employment interview as
to his ability to draw layout.
Upon Gallo’s discharge he received a termination letter stat-
ing he was terminated for lack of experience, failure to follow
directions, and generally an unacceptable work performance.
In a case such as this one, where the General Counsel relies
exclusively on the uncorroborated testimony of a single inter-
ested witness, the witness’ credibility must be a determinative
factor. Unfortunately, Gallo was an incredible witness.
As described above, Gallo’s affidavits stated that he knew
Pietrowski was thoroughly displeased with his work.
In addition, Gallo testified on direct that, prior to being ter-
minated he had never heard any complaints about his work.
However, on cross he admitted—again when faced with an
inconsistent affidavit—that he received three complaints during
the week of June 6th alone. On June 6, Pietrowski told him that
his layout was not good enough. Gallo then received further
criticism of his work 2 days later. Gallo even agreed at trial
that his work was incomplete.
The only reasonable interpretation of Gallo’s testimony is
that he would say anything to support his charge. Accordingly,
I only credit his admissions against his own interest, which
were literally dragged out of him on cross-examination.
The General Counsel seems to rely solely on the timing of
the discharge; the day after Gallo informed coworkers of his

4 The General Counsel failed to call. Ed Pietrowski and a James
Snell—on this issue.
Local 363 affiliation. There is no evidence that Rondout had
any knowledge of Gallo’s Local 363 activity. On the other
hand there is ample evidence that Gallo had serious work defi-
ciencies. Accordingly, I conclude that the General Counsel has
failed to establish that Gallo’s union activities were a motivat-
ing factor leading to his discharge, and I conclude that Gallo
was not discharged by Rondout in violation of Section 8(a)(1)
and (3) of the Act.
On September 12, 1994, John Sager and Stephen Rockafel-
low, nonemployee Local 363 organizers, entered Rondout’s
office trailer, an extension or its’ office at a jobsite. It is uncon-
troverted that the two men entered the Rondout job trailer with-
out invitation by any “supervisory” employee and proceeded to
photograph Rondout documents inside the trailer. At one point,
Sager ripped off an antiunion flier from the trailer wall.
When Rondout’s general manager, Pietrowski, became
aware of such action, he filed criminal trespass charges. The
police inadvertently listed the statute for trespass on a residence
rather than on a business. (See GC Exhs. 35 & 37 listing Penal
Law Sec. 140.15 “when he knowingly enters or remains unlaw-
fully in a dwelling”; and GC Exh. 39 in which counsel argues
that the trailer is not a dwelling.) Pietrowski then left the Com-
pany during the prosecution of the charges without informing
anyone of the status of the charges. The charges were dis-
missed, not on the merits, but for the technical error in the
statutory citation.
The General Counsel contends that the filing of such crimi-
nal charges is a violation of Section 8(a)(1) under the theory of
Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731 (1983),
wherein the Supreme Court held that it is an unfair labor prac-
tice to prosecute a baseless lawsuit with the intent of retaliating
against an employee, a labor organization, because of its union
activities concerning the employer who prosecutes such charge.
While the Act prohibits interference with an individual’s par-
ticipation in concerted activity, it does not in any way insulate
union officials from appropriate prosecution for unlawful activ-
ity. Nor does it bestow on a union official the right to invade
another’s privacy under color of some unspecified “union
right.” The General Counsel’s complaint erroneously states
that there was no reasonable basis in law and fact for a trespass
charge under the facts here. The admitted acts of Sager and
Rockafellow belie such claim.
Rockafellow and Sager admittedly trespassed in the trailer.
Sager testified that he and Rockafellow saw a person enter the
trailer and simply followed him in. They neither asked nor
received permission to enter the trailer, which they knew to be
the property of Rondout. Sager admitted that while inside they
took photographs, and ripped off a antiunion flier
I conclude such lawsuit was not filed to retaliate against Lo-
cal 363’s organization activities.
The General Counsel appears to argue that a construction
trailer is a public place and that absent specific direction to the
contrary or a request to leave, anyone may enter a contractor’s
trailer and help themselves to the contractor’s documents. See
testimony of Rockafellow, claiming industry practice allows
entry by the public. This argument is absurd. A trailer on a
jobsite is an extension of a contractor’s office and is entitled to
the same protection. Important papers and sometimes money
are in such trailers. It is clear that a construction trailer, unlike
a jobsite, is not a public place.
In any event I find no violation of the Act by Rondout filing
of such criminal charge.
RONDOUT ELECTRIC 963
The General Counsel alleges that Rondout refused to hire or
refused to consider for hire 11 applicants, because of their Lo-
cal 363 affiliation.
After General Manager Pietrowski suddenly left Rondout in
late February 1995, Schupp, newly returned from his post at the
Rockland Psychiatric Center, took over. Schupp inherited not
only the numerous responsibilities which had always belonged
to the general manager, but also the duties left by the absence
of Bill Whitman, who had moved to the Company’s Florida
operation.
Among the numerous projects Schupp had to undertake was
the hiring of an adequate staff of qualified personnel. Schupp
utilized the same practices he had seen the Company use over
the years he was employed. He knew that Rondout repeatedly
hired back its former employees. He knew that there might be
referrals from Whitman Electric, which was in fact how he got
his own job.
Schupp began to employ these methods immediately. Dur-
ing February to May 1995, Schupp hired numerous individuals,
through the use of the Company’s traditional hiring practices.
For example, in February 1995, Schupp reviewed the files to
contact and hire an electrician, Dennis Borne, with whom he
had worked at Rondout’s Rockland Psychiatric site, but had not
been called back to work. In March, he contacted another for-
mer employee electrician, John Hanes whose work he recalled
as being good. Two former employees, Jeff Heek and Charlie
Jones, contacted him to request work, one a graduate of
Rondout’s apprenticeship program, the other a semiretired for-
mer employee who regularly worked in the spring and summer.
In May 1995, Schupp hired five former employees, including
four electricians and a helper. Of the five electricians, one,
David LaFay, contacted Schupp after living outside the area for
some time. Another, Gary Kuzminski, graduate of Rondout’s
apprenticeship program asked for rehire after an illness. Two
others, Tom Morris and Troy Mackey, were friends of Schupp,
with whose work he was familiar and respected. The helper
Michael Kuftack, was a former Rondout apprentice who quit
the apprenticeship program long before finishing it, and now
was qualified for work as a helper.
In all this instances, Rondout utilized its preference for for-
mer employees, for those of Whitman Electric, and for refer-
rals, long before it received the applications from the alleged
discriminatees. There is no evidence to dispute this.
Traditionally, the busy season for the Company is June to
September. Schupp knew that he would need to hire additional
employees in June. However, with outstanding bids, an un-
known number of returning workers, and uncertain program
schedules at his on-going projects he did not know how many
he would need.
In June 1995, Schupp determined that he would protect the
Company by building up an applicant base for electrician and
helpers. He also knew from the office personnel that the Com-
pany had, from time to time, run ads in various newspapers.
These advertisements had produced both original applications
and familiar names of Rondout employees who had fallen out
of touch.
For 3 weeks in June 1995, Rondout ran newspaper adver-
tisements for electricians and helpers, changing the ad each
week. The ads were drafted by Schupp’s secretary, based on
previously run advertisements. The first week Schupp included
Rondout’s name and invited applicants to apply at the office.
This caused stress for the office staff who was hard pressed to
explain Schupp’s limited availability, since he was the only
person authorized to interview candidates. The second ad
therefore listed an anonymous post office box and requested
resumes from interested applicants. Rondout received far fewer
responses, leading them to believe that applicants were unwill-
ing to expend the energy of resume send to an unknown em-
ployer. Therefore, in the third week, the ad simply requested a
telephone message to a voice mail box explaining the appli-
cant’s qualifications. While the ad ran, Rondout received no
responses to the phone line.
Schupp was very busy during the first week of June. He util-
ized the time while the first was running during their week of
June 5 to pull records of potential rehires from the Rondout
inactive employee file. When reviewing these files, Schupp
used the same criteria he used in his searches before. He took
these files and piled them on his desk, for further review and
potential contact.
Meanwhile, applicants and resumes were being received by
the Company in response to the advertisements. These applica-
tions were being delivered largely in person, although some
came in the mail. At the end of that week into the beginning of
the next week, Schupp began reviewing the accumulated files
and new applications for hiring. Later in the week of June 5 the
began hiring from the former employee category, and continued
to do so throughout the week of June12.
On or about June 5, Schupp received a call from Bill Whit-
man’s brother, Sandy who said that Whitman Electric would be
laying off employees, and asked if Rondout needed people.
Schupp said that they did, and asked him to send the names. At
this point, Schupp was simultaneously reviewing incoming
applications, old files, and was expecting the Whitman refer-
rals.
On June 20, just after 9 a.m., Schupp received a fax from
Bill Whitman listing 13 Whitman employees just laid off and
recommended for hire. Of the 13 listed names, Schupp hired 7
of these referrals. All of these hirings were during June 1995.
During the week of June 24, Schupp began to feel confident
that he had hired an adequate number of qualified employees,
and that he had accumulated an adequate applicant pool. On
June 26, Schupp, knowing that the receptionist had told appli-
cants they would be hearing from him, directed letters to be
sent to the outstanding applicants telling early that Rondout
would keep their applications on file for 1 year, but would not
be offering them employment at that time.
Schupp credibly testified as to the names of each employee
hired during the May–June 1995 period, the reason for each
hire, and how such hires complied fully with Rondouts usual
hiring practices.
Joseph Mooney
Rondout rehired Mooney as an electrician on June 26, 1995.
He was previously employed by Rondout in 1994. Mooney
called Rondout seeking work. Mooney previously worked for
Whitman Electric, during the time Schupp worked for Whit-
man. Further, he had previously worked for Rondout as a refer-
ral.
Michal Mancuso
Mancuso, a student in medical school, has always been em-
ployed by Rondout during the summers, and was rehired on
June 9 as a helper, just as he had been in previous years.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 964
Robert Valentine
Valentine was rehired as an electrician, on June 14, follow-
ing a telephone discussion between he and Schupp earlier in
June. Valentine previously worked for Rondout in 1992.
Wayne Heaney
Heaney is an electrician who was rehired by Rondout on
June 19 after Schupp located him through the inactive file.
Schupp has remembered him from having worked together with
him, “hand and hand,” for years.
James McElrath
McElrath ,a former Rondout employee, was also rehired as
an electrician on June 19. Schupp contacted hum after receiv-
ing the inactive files and offered him a job. He previously
worked for Rondout in 1992.
David Rosner
Rosner, another former Rondout employee, submitted a re-
sume to the Company on May 17. Upon reviewing his resume,
Schupp noted that he has seen his name in the inactive file. He
was retired as an electrician on June 19.
Mark Vose
Rondout rehired Vose on June 19 as a electrician. He previ-
ously worked for the Company in 1993. Vose contacted the
Company, on or about June 16, to say he was looking for work.
August Wiedermann
Wiedermann sent in a resume, then filled out an application
on June 15. Schupp remembered his former Rondout work. In
fact, Schupp had worked with him personally. Schupp rehired
him as an electrician on June 19.
John Malkin
Rondout rehired Malkin as an electrician on June 21. Be-
sides being a previous Rondout employee, his name was on the
list of Whitman Electric referrals.
Albert Leonardo
Leonardo mailed in a resume and application in response to
one of the ads. Schupp hired him as a former Rondout em-
ployee, to work as an electrician, on June 26. Schupp noted
that Leonardo referenced Local 363 on his resume, a fact which
did not interfere with his rehire.
James Walsh
Walsh filled out an application on May 16. He was previ-
ously employed by Rondout in 1991. He has worked with
Schupp at Rockland for several years. Schupp offered him
work as an electrician on or about May 16, but Walsh did not
commence employment until June 26. There was a large time
span between when he filed out the application and when he
started because Walsh wanted to give his current employer
ample notice, and Schupp was not going to need a lot of help
until June.
John Schorschinsky
Rondout rehired Schorschinsky as a helper, on July 6th.
Schorschinsky had left Rondout’s apprentice program to join
the Union apprentice program. However, Schorschinsky de-
cided to leave the Local 363 program, and asked to be rehired
by Rondout. He was reinstated by Schupp, notwithstanding his
prior union affiliation.
Warren Belmore III
Belmore was rehired as an electrician on August 7 following
receipt of two excellent references from a Rondout employee
and Sandy Whitman.
Michael Sharpe
Sharpe has worked several times for Rondout. He was most
recently rehired as an electrician on August 29. He had been
laid off sometime after March 1995, but was recalled by
Schupp because he knew he was a good worker, and the Com-
pany had an immediate need. Sharpe’s 4 years’ experience in
the apprenticeship program of Local 215 IBEW was known to
Schupp, and was no deterrent to his hire.
Thomas Alecca
Alecca was referred by Whitman. He was also recom-
mended by two employees of Rondout. Schupp hired him as an
electrician on June 16.
Gary Coon
Coon was also referred by Whitman, and was called by
Schupp. He was hired as an electrician. His start date was June
22.
Edward Albright
Albright was referred by Whitman and hired by Schupp in or
about June 26.
Roger Kelly
Kelly was also referred by Whitman.
Wilhelm Peters
Peters was referred by Whitman. In addition, Schupp knew
him from having worked with him in the past. Peters submitted
an application on June 23 and Schupp put him to work as an
electrician on June 27.
Charles Pectral III
Pectral III was referred by Whitman. He was hired on July
15 as an electrician.
In addition to the Whitman and Rondout referral lists,
Schupp also offered employment to individuals based on refer-
rals from other sources, or by application.
Richard Gallina
Gallina was hired as a laborer beginning June 12. He was re-
ferred to Rondout by its employee Dennis Borne. Gallina sub-
mitted an application on May 31.
Harrison Lou
Lou submitted an application on June 5, in response to a
newspaper ad, and was hired as a helper on June 12. Schupp
hired him as a helper even though he had applied to be an elec-
trician because Schupp felt that he did not have enough electri-
cal experience to be a commercial electrician.
Robert Pomilla
Pomilla submitted an application on June14. Schupp inter-
viewed him and hired him, based on his demeanor in the inter-
view and his skills. Pomilla had applied as an electrician
helper, however, Schupp determined that he was not qualified
to be an electrician. He was hired as a helper.
William E. Miller
Miller was hired by Schupp on June 22. On the morning of
June 22, Schupp received an urgent call for additional staff
RONDOUT ELECTRIC 965
from a jobsite. When Schupp walked down the stairs from his
office, on his way out to the field, the receptionist told him that
MIller was there filling out an application. Schupp, who
needed to hire an electrician at once, agreed to speak with him.
Schupp was impressed by MIller and decided to hire him im-
mediately. Because of the convenience of Miller’s unexpected
presence and availability, as opposed to the delay inherent in
returning to the application and files, Schupp elected to offer
the work to Miller.
Adam Cooper
Cooper was referred to Rondout by two employees. Cooper
had also applied for a position as an electrician. However,
Schupp determined that he was not qualified as such as he was
hired as a helper. He commenced work on June 27.
Earl Davis
Davis was referred to Schupp by one of the employees.
Schupp interviewed him and hired him as a helper on June 27.
Roger Hill
Hill was referred to Schupp by the New York State Depart-
ment of Labor. He applied on June 30. Hill wrote on his appli-
cation “father is an electrician Local Union No. 3 and would
like to follow footsteps of Dad.” This was known to Schupp
when he received Hill’s application, but did not interfere with
Hill’s hire.
Michael Court
Court submitted an application on March 2. Schupp hired
him as an electrician on July 5. Court had continued to call
Schupp to ask about available work during that period and
when Schupp knew he had some available, he called Court.
Court also had Whitman as a reference on his application and
Schupp knew his work personally from having worked together
as partners. Moreover, Schupp was well aware that. Court had
been a long-time member of Local 363. Nonetheless, Schupp
hired him.
Gene Lane
Lane applied to Rondout on June 23. He had been referred
by employee Bill MIller. However, Schupp did not rely on
Miller’s referral until he interviewed Lane, and based on his
interview, decided to hire Lane as an electrician. Schupp de-
cided to hire Lane on or about June 23. After deciding to hire
him, Schupp misplaced his application, and did not have a
phone number for him. Once he obtained Lane’s phone num-
ber, he called, and hired him on July 6.
Paul Cerwonka
Cerwonka was also referred by the New York State Depart-
ment. He applied on September 19 during a period when
Rondout was recruiting solely for its apprenticeship program.
He was hired as an apprentice specifically to participate in that
program.
Matthew Suppies
Suppies was hired as a laborer on June 26. Schupp was per-
sonally familiar with his work. Suppies is a member of the
Laborer’s Union, a fact known to Schupp, but which did not
interfere with Rondout offering him employment.
The General Counsel alleges that the 11 discriminatees who
applied to Rondout and were affiliated with the Union were
denied employment discriminatorily. Based on Schupp’s credi-
ble testimony I conclude Rondout’s determinations made with
with respect to their applications were neutral as to any Local
363 affiliation. As set forth above, I have concluded that
Rondout had adequate nondiscriminatory reasons to hire the
individuals that it did hire. Following their hire, there were no
positions available for the “alleged discriminatees.” Moreover,
I conclude Rondout had logical business reasons not to hire
these applicants who were not offered employment. I “further”
conclude those reasons were devoid of any discriminatory ba-
sis.
It appears to me that the General Counsel’s only theory is
that Rondout knew the 11 alleged discriminatees were union
members, and that any failure to hire them must give rise to the
conclusion that it was the membership in Local 363 which mo-
tivated the Company to refuse to hire them. The General
Counsel submitted no evidence of any direct intention to dis-
criminate.
Schupp credibly testified in detail why each of the alleged
discriminatees was not hired.
Peter Crisci applied for work as an electrician at Rondout on
June 16. Rondout Electric did not offer Crisci work because
Schupp had a sufficient number of hires from among former
Rondout employees. He simply had no position for Crisci.
Moreover, Crisci had been out of work for a lengthy period of
time, a fact Rondout considers as having a strong negative im-
pact on the Company’s assessment of an applicant’s skills.
Further, Schupp had no knowledge of any union membership
on the part of Crisci. Crisci’s application was silent on the
issue. The General Counsel told Schupp during his 611(c)
examination that one of the employers listed on Crisci’s appli-
cation was a Local 363 employer. Schupp credibly testified
that he was unaware that such employer listed by Crisci on his
application was Local 363 employer.
Gregg Fratto sought employment as an electrician. Fratto’s
sole indication of his Local 363 background was his former
employment by Perreca Electric. Schupp credibly testified that
although he recognized that Perreca had a Local 363 contract,
he made no assumptions about its employees as Perreca does
not hire exclusively union members.
Moreover, Fratto and Crisci both applied on June 16, while
Schupp was dealing primarily with Rondout rehires. The fol-
lowing week Schupp received and hired the referrals from
Whitman Electric. Following these, the Company had no rea-
son to offer employment to either of these individuals.
Don Krom applied for work as an electrician on June 9. Ini-
tially, Schupp considered Krom for employment, Krom was a
former Rondout employer, and also had Whitman experience.
Since Krom’s Rondout experience listed on his application pre-
dated Ken’s time, he asked a long-time Rondout project man-
ager about Krom. The project manager noted that Krom had
quit suddenly and without notice. Schupp concluded that this
circumstances constituted grounds to disqualify such applicant
from re-hire. Rondout therefore did not further consider Krom
for employment.
Ed Barber applied for work as a foreman, on June 23. It is
uncontroverted that Rondout had no openings for foremen at
that time. Indeed, the advertisements, which the Company used
only sought helpers and electricians. Thus Rondout did not
have any opening for the position sought by the applicant.
The General Counsel argues that although Barber sought a
foreman job. Rondout should have considered him for an elec-
trician’s job. I conclude there is no reason why such a burden
should be placed on an employer. Moreover, Schupp credibly
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 966
testified that he would not hire an employee for a lower posi-
tion when he applied for a foreman job because the jobs of
electrician and foreman differ dramatically. A foreman does
not work with tools, and is higher paid
Moreover, according to Barber’s application, he had not
worked in the field as an electrician for several years. Schupp
credibly testified that in his view an electrician who does not
practice for an extended period of time loses the skills, and is
not deemed a qualified candidate. I conclude this is another
credible reason Barber was not hired.
Another problem with Barber’s application was that he
crossed out his signature on the line which would indicate, inter
alia, that the applicant has told the truth. Barber earlier testified
that he did not want to sign the Company’s at will employment
provision. Schupp testified that this also contributed to his
decision.
Roger Dalton an alleged discriminatee, applied for work as
an electrician on June 15. He was not hired by Schupp because
Schupp credibly testified that his application was incomplete.
Dalton completed the application’s request listing of prior em-
ployers by simply listing IBEW Local 363 rather than the em-
ployers for whom he worked. Thus he supplied no employer,
references. Without such information, Rondout had nothing to
assess. Schupp testified he had no time to pursue this matter,
and did not try to track down his previous employers. Further,
after Rondout hired those applicants it did make offers to, there
was no position for which to consider Dalton. Therefore, Dal-
ton was not offered employment.
As set forth above, Schupp credibly testified that he consider
an electrician who was not practicing the profession for a sub-
stantial period of time as disqualifying the individual from em-
ployment. Rondout had three such individuals apply for work.
All three were lawfully rejected.
John Sager a Local 363 official, applied for work as an elec-
trician on June 5. His application states that he ceased to work
as an electrician in 1992, when he became a full-time paid or-
ganizer for Local 363. Schupp credibly testified that such ab-
sence from the field for this length of time led him (Schupp) to
determine that he was not qualified for hire. Again, such re-
fusal to hire was academic, because after Rondout hired those
applicants it did, there was no position for which to consider
Sager.
Stephen Rockafellow and Russell Smith also applied for
work as electricians on June 5 and 6, respectively. Rockafel-
low’s application states that he ceased to work as an electrician
in 1988, when he became a full-time paid organizer for Local
363. Smith’s application similarly indicates that he withdrew
from being an electrician in 1988, when he became a full-time
representative of the Union. Moreover, Smith had not worked
as an electrician—or even as a foreman—since 1982. Schupp
credibly testified that their absence from the field for this length
of time led him to determine that each individual was not quali-
fied for hire. Again, this question is academic, because after
Rondout hired those applicants it did, there was no position for
which to consider either Smith or Rockafellow.
William Murphy applied for work as an electrician on June
21. Schupp has known Murphy for 15–20 years and knew he
was a member of Local 363 although it was not on his applica-
tion. Murphy spoke with Schupp directly on June 21. Murphy
was looking for work at the Filene’s job. Schupp told him he
did not need someone there. Schupp gave the application little
consideration because he did not need people at this particular
time. In fact, the very day before, Schupp received the long list
of Whitman referrals.
Schupp credibly testified it would not offer work to appren-
tices as helpers. Rondout participates in a New York State
approved apprenticeship program. The Union likewise has an
apprenticeship program. The purpose of such a program is to
train individuals to become electricians. For instance, the
Rondout program runs 5 years, during which apprentices work
as electricians (under supervision) during the day, and attend
classes at night.
Working in the field as an electrician is part of the training
program itself. An apprentice, therefore, would not ordinarily
seek work as a “helper.” To do so would be contrary to the
requirements of the apprenticeship program. Therefore,
Schupp credibly testified that Rondout would not offer work to
an apprentice who sought work as helper. Such practice would
be “going backwards.”
James McMorris and Thomas McGrath were sent by Local
363 to apply for the positions at Rondout as helpers. Each of
them completed applications, which indicated that they were in
their last year of apprenticeship in Local 363’s program. Yet
each of them applied for positions as helpers.
It is uncontroverted that apprentices who are in the last year
of their program are close to being full-fledged electricians.
They could not be hired as anything other than apprentices
otherwise they would lose their status in the Union’s program.
Schupp testified reasonably that if they had been hired as help-
ers, it would have been a huge step backward.
Moreover, Schupp deemed employment of apprentices as
helpers as inappropriate. “I don’t have that time to—interview
somebody that’s going to be an electrician in a year to be a
helper.” Schupp credibly that pursuant to Rondouts practice, he
did not offer them employment.
In order to establish a violation of Section 8(a)(3), the Gen-
eral Counsel must demonstrate that facts sufficient to support
the inferences that the alleged discriminatees’ protected con-
duct was a “motivating factor” in Rondout’s decision not to
offer employment to them. Wright Line, 251 NLRB 1083,
1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981). Specifically,
in this case, it is the General Counsel’s burden to prove both (1)
that Rondout had knowledge of each individual’s union activ-
ity, and (2) that the employer’s action was the result of union
animus. Borin Packing Co., 208 NLRB 280 (1974). I conclude
the General Counsel has factual proof to sustain such burden.
The mere fact of an organizing campaign is insufficient evi-
dence to imply an inference of union animus. Basin Packing
208 NLRB 280–281 (1974), and Monmouth College, 204
NLRB 554 (1973).
The essence of the General Counsel’s case is that all appli-
cants alleged as discriminatees were members of Local 363,
that Rondout was aware of such membership and the failure to
hire any of the alleged discriminatees establishes the Wright
Line motivating factor.
In this case there was no direct evidence of Local 363 ani-
mus, nor any reasonable basis for implying such animus. The
facts of this case clearly establish that every employee who was
hired by Rondout was hired according to Rondouts long-
established hiring policies. Moreover, such hiring practices are
nondiscriminatory, but rather, in my view represent sound
business policies. I conclude that the mere fact that 11 mem-
bers of Local 363 applied for work at Rondout and not a single
applicant was hired does not permit an inference that such fail-
RONDOUT ELECTRIC 967
ure to hire even a single Local 363 member-employer estab-
lishes such the motivating factor required by Wright Line. See
Wright Line, supra at 1088. Moreover, as set forth above, in
excruciating detail by Schupp’s, credible testimony, and non-
discriminatory reasons were given why each alleged discrimi-
natee was not hired.
Assuming, arguendo, that a prima facie case of discrimina-
tory motive by Rondout was established by the record, in my
opinion, the General Counsel still cannot prevail. Under
Wright Line, where an employer asserts a legitimate and sub-
stantial business justification for its conduct, despite the alleged
ill motive, the Board must regard the conduct as lawful. Harter
Equipment, 280 NLRB 597 (1986).
In the present case, every employee who was hired, was
hired under application of the Company’s ordinary and lawful
policies. Each employee was either a former Rondout em-
ployee, a former Whitman employee, or was employed because
they filled a hiring need, and were immediately available. The
Company has had a long and established policy of offering
work to its own employees first, then to those of Whitman
Electric.
During the time at issue, Rondout hired several helpers—all
for good cause, and for unquestionably nondiscriminatory rea-
sons. Only two of the alleged discriminatees applied for work
as helpers—and since both were then electricians apprentices in
the last year of their apprenticeship, they were inappropriate
candidates.
Since I have concluded Rondout used its ordinary and non-
discriminatory bases for its decisions at issue, I further con-
clude there can be no violation of the Act found. Dallas Morn-
ing News, 285 NLRB 807 (1987).
CONCLUSIONS OF LAW
1. Rondout is an employee within the meaning of Section
2(2), (6), and (7) of the Act.
2. Local 363 is a labor union within the meaning of Section
2(5) of the Act.
3. Rondout has not violated Section 8(a)(1) and (3) of the
Act as alleged.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The complaint is dismissed in its entirety.

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.