VOS Electric, Inc.

National Labor Relations Board - Board Decisions

Dec 7, 1992

309 N.L.R.B. 745 (N.L.R.B. 1992)

745
309 NLRB No. 117
VOS ELECTRIC, INC.
1 The General Counsel has excepted to some of the judge’s credi-
bility 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 judge’s findings.
We agree with the judge that the Respondent rebutted the General
Counsel’s evidence of the Respondent’s knowledge of the
discriminatees’ union affiliation. Even assuming that the General
Counsel has established a prima facie case, we agree with the judge
that the Respondent demonstrated that it would not have hired the
alleged discriminatees in the absence of any protected conduct on
their part.
1 Bittinger’s name was amended into the complaint at trial. Also
at trial, William T. Cook’s name was amended out of the complaint.
2 Kiessling’s name is spelled Keisling in the complaint, however,
the above appears to be the correct spelling.
3 Morrisette is listed as Edward R., however, it is believed the
above listing is correct.
VOS Electric, Inc. and International Brotherhood
of Electrical Workers, AFL–CIO, Local Union
1340. Case 11–CA–14834
December 7, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On August 18, 1992, Administrative Law Judge
William N. Cates issued the attached decision. The
General Counsel filed exceptions and a supporting
brief and the Respondent filed a reply brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Jasper C. Brown Jr., Esq., for the General Counsel.
Robert J. Janssen, Esq., and C. David Stellpflug, Esq.
(Stellpflug, Janssen & Nell), of De Pere, Wisconsin, for
the Respondent.
James Pickin, Rep., of Newport News, Virginia, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. Local
Union 1340, International Brotherhood of Electrical Workers,
AFL–CIO (the Union), filed an unfair labor practice charge
against VOS Electric, Inc. (the Company), in Case 11–CA–
14834 (formerly Case 5–CA–22476) on January 13, 1992.
The charge, which was amended on February 25, 1992, al-
leges the Company violated Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act), by on or about No-
vember 18, 1991, refusing to hire some 32 employee-appli-
cants because the employee-applicants joined, supported, or
assisted the Union and engaged in concerted activities for the
purpose of collective bargaining or other mutual aid and/or
protection. After an investigation, the Regional Director for
Region 11 of the National Labor Relations Board (the
Board), on February 26, 1992, issued a complaint and notice
of hearing charging the Company with violating Section
8(a)(1) and (3) of the Act by its failure since on or about
November 18, 1991, to hire the following named individuals:
Scott Bittinger1 Mark Kiessling2
Shawn P. Campbell John C. Lewis
Gilbert D. Diehl Steven E. Lewis
Franklin D. Edwards Dale E. Marlin
Charles E. Fuller Scott A. Moore
David Gaskill Carl Edward Morrisette Jr.3
Julis F. Gibson Jr. Chester Odom
Addison M. Goddard Ronald A. Parish
Charlie A. Hall Jr. Timothy W. Quail
Eric C. Horton Roger D. Ramsey
William B. Howard John F. Roger
Brian R. Howell Mark E. Rosenberger
Robert W. Ingram James L. Simmons
Jeffrey D. Jones Daniel M. Stenquist
Terry M. Jones William D. Wilson
Gene D. Jordan Raynard L. Wood
I heard this case in trial at Courtland and Franklin, Vir-
ginia, on June 1 and 2, 1992, respectively. The Company
filed a timely answer to the complaint in which it admitted
certain allegations but denied it violated the Act in any man-
ner.
I have carefully reviewed the trial record and have studied
the posttrial briefs by counsel for the General Counsel and
counsel for the Company. I have been influenced by my as-
sessment of the witnesses as they testify. Based on the above
and as explained below, I will conclude the Company has
not violated the Act in any manner set forth in the complaint.
FINDINGS OF FACT
I. JURISDICTION
The Company is a Wisconsin corporation, licensed to do
business in the State of Virginia, where it is engaged as an
electrical subcontractor at the Union Camp Paper Mill lo-
cated in Franklin, Virginia. During the 12 months preceding
issuance of the complaint, a representative period, the Com-
pany received at its Union Camp Paper Mill jobsite located
in Franklin, Virginia, goods and raw materials valued in ex-
cess of $50,000 directly from suppliers outside the State of
Virginia. During the same representative time, the Company
performed services for customers located outside the State of
Virginia valued in excess of $50,000. It is alleged in the
complaint, the parties admit, the evidence establishes, and I
find, the Company is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Most of the Company’s work is performed at existing businesses.
5 A ‘‘hard dollar job’’ as described by Company Superintendent
Ray Oliver (Superintendent Oliver) is where ‘‘you bid a job for a
certain amount and that’s all you’re going to get for doing that job’’
as opposed to a time and materials job where ‘‘you’re selling your
productivity and you do what it takes to get the job done.’’
II. LABOR ORGANIZATION STATUS
It is alleged in the complaint, the parties admit, the evi-
dence establishes, and I find, the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE FACTS
The Company, which is based in Wisconsin, contracts for
electrical and instrumentation type work at various facilities
throughout the United States.4 Currently, the Company has
11 contracts at jobsites in States including Alabama, Arkan-
sas, Texas, Utah, Wisconsin, and Virginia (Franklin).
Corporatewide, the Company employs in excess of 500 em-
ployees. The only jobsite involved in the instant case is the
Union Camp Paper Mill site at Franklin, Virginia. The Com-
pany, in addition to its current contract with Union Camp
Paper Mill, has had two prior contracts for electrical work
at this same facility. The two other contracts at the Union
Camp Paper Mill site were in February 1990 and May 1991.
The contract for the electrical services that gives rise to the
dispute was awarded to the Company by competitive bidding
and work started on the project in November 1991. The con-
tract is for approximately $3.5 million including materials
and labor and is described as a ‘‘hard dollar job.’’5
Company President Ron Van Den Heuval (President
Heuval) testified that in bidding for the Union Camp Paper
Mill ‘‘hard dollar job’’ he based the Company’s successful
bid on ‘‘quantities of and . . . materials cost . . . overhead
such as per diem . . . health insurance . . . fringe benefits
. . . and the labor rate [he] want[ed] to use for that job.’’
According to Superintendent Oliver, the job involves 100,000
plus man hours. Company President Heuval and Superintend-
ent Oliver said they decided on a labor cost that would not
exceed an average of $10 per hour.
After the Company was awarded the contract and based on
the need for electricians and helpers, the Company advertised
in November in various newspapers (Tidewater News, Vir-
ginia Pilot, Columbia State, and The Savannah News Press)
for ‘‘industrial electricians and helpers of all experience lev-
els.’’ Applicants were directed to apply at the jobsite or mail
their resumes to the Company in care of Superintendent Oli-
ver. Oliver stated approximately 30 to 40 job seekers came
to the jobsite daily during the time (10 to 20 days) the news-
paper advertisements were being run. Oliver said that all to-
gether the Company received between 500 and 600 applica-
tions for employment at its Union Camp Paper Mill project.
Oliver testified he hired electricians and helpers as needed
throughout the period from late November 1991 to March
1992. Oliver said that all job applications (left at the site or
mailed to the Company) were separated according to the rate
of pay an applicant was seeking and by the job classification
indicated—foreman, journeyman, or helpers.
Superintendent Oliver said that in staffing the site he first
sought to transfer current employees from other company lo-
cations or to hire employees who had previously worked for
the Company. Oliver said he next sought to employ those he
knew or knew about their work habits and skill levels. Oliver
said he also tried to determine if an applicant knew anyone
that he (Oliver) knew so the person knowing the applicant
could vouch for the applicant’s skills and work habits. Oliver
said he also noted the rate of pay an applicant was asking
for or expecting. Oliver said he did not want to hire anyone
that was asking for or had been making $2 or $3 more per
hour than the Company could afford to pay because such ap-
plicants would be ‘‘dissatisfied’’ with the job and ‘‘quit’’ as
soon as a better paying job came along. Oliver said he did
not telephone anyone for an interview because there were al-
ways applicants at the site waiting to be interviewed. Ac-
cording to Oliver, no applicant was hired by merely dropping
off an application at the jobsite and not requesting or waiting
for an interview. Oliver testified:
If they dropped off an application and didn’t wait
around . . . they had a very slim chance of getting
hired, or they just didn’t. I can’t think of any, you
know, that I would have hired like that, because I had
too many to pick from that were there.
You know, a bird in the hand is better than one in
the bush.
Oliver testified that if a job seeker came to the site for an
interview and indicated they had already filed an application,
he asked the applicant what pay rate he/she had indicated on
his/her application because the applications had been filed
based on the rates of pay the applicants were seeking.
Superintendent Oliver described his overall approach to
interviewing and selecting employees as follows:
Well, the way I go about hiring somebody is first off
do I know them, did they ever work for me before. I
have worked in construction all over the southeast and
I know thousands and thousands of people. Did they
know me, did they know anybody that I know, you
know, that I would say could vouch for that person.
Are they traveling, are they going to work with me
somewhere else down the road.
What kind of pay have they been used to making
and what am I looking for. Am I looking for journey-
men or helpers, in other words what is my span of pay
rate that I’m looking for, what is my average rate on
the job, what did I bid the job for, what level of person
can I hire to keep my average rate in such a way that
we can try to make money on the job.
Oliver described his interviewing techniques as:
Mostly . . . it was just a talking, you know, we
talked about, I would talk about almost anything just to
kind of get a feel for what, you know, how they felt,
what their attitude was like. And I also talked about the
jobs they had done.
Oliver indicated an applicant’s persistence impressed him.
Oliver said that an applicant that appeared at the worksite
looking for work before the workday commenced ‘‘had a
edge’’ over anyone else looking for work. Oliver said that
if an applicant called at a time that he was not hiring he
might have instructed the person to call back or come by
later but that he did not call anyone in for an interview.
747VOS ELECTRIC, INC.
6 I am not unmindful that the list reflecting all employees that
worked for the Company at its Union Camp Paper Mill project job-
site reflects only 177 employees with 6 of those being supervisors
and approximately 43 being employees that transferred from other
jobsites of the Company. I find it unnecessary to reconcile or further
address these differences in order to decide the issues. Whatever the
exact number of employees may have been approximately 30 were
qualified electricians with the remainder being helpers or laborers
according to Superintendent Oliver.
7 President Heuval testified the Company employes IBEW mem-
bers. He based his knowledge on the fact he is the trustee of the
Company’s 401(K) pension plan. Heuval said 47 employees cor-
porate wide had switched their pension plans from the Union to the
Company. He also stated 11 employees currently do not accept the
Company’s health and dental coverage and have the funds paid in-
stead into a trust fund. Heuval said that normally indicated such em-
ployees belong to a labor organization. Heuval said 5 of the latter
11 are currently working at the Franklin, Virginia jobsite. Addition-
ally, President Heuval said that nine employees that work for the
Company (corporatewide) have been sued with liens placed on their
homes by their particular local unions because the locals had rules
that prohibited its members from working for the Company herein.
8 Business Manager Pickin acknowledged Superintendent Oliver
told him he would hire union people and did not have a problem
with it. Pickin also acknowledged a company secretary informed him
that Abacus was being utilized by the Company to interview and
hire applicants. Pickin testified he did not inform or encourage his
local union membership to apply at Abacus. Pickin said he did not
direct the membership to file applications at Abacus because ‘‘they
had been use to making $15. Abacus, was paying $10 and no more,
and I felt they deserved more than $10.’’
9 Oliver said that between November 1991 and March 1992, he
hired seven union applicants as electricians. The record reflects the
Company has not hired electricians after March 1992.
10The parties stipulated the Company has a Superintendent Gerald
Smith, but the parties would not stipulate it was Superintendent
Smith that Pickin spoke with on November 11.
11 Pickin had never met Oliver prior to this occasion.
Company President Heuval testified that when the work
force for any project exceeded approximately 50 employees,
the Company utilized temporary employment agencies to as-
sist in staffing the project. Heuval said the Company utilized
the services of two such companies in staffing ‘‘the lower
end of the skill levels’’ at the Franklin, Virginia site. The
two outside employment agencies the Company utilized at
the Union Camp Paper Mill project were Ameristaff and Ab-
acus.
Superintendent Oliver said it was necessary to use the two
temporary agencies:
Because they took a lot of the burden of the work
off of me. You know, they were, they could do the
interview, they could call them in and that was basi-
cally the biggest reason.
The employees that were hired by the two employment
agencies worked at the Company site but remained employ-
ees of the employment agencies. Some of the employment
agencies employees were after a period hired by the Com-
pany. President Heuval said Ameristaff employed a maxi-
mum of 28 employees and Abacus peaked at 24 employees
at the Union Camp Paper Mill project. Heuval said the Com-
pany hired approximately 191 employees at its Franklin, Vir-
ginia jobsite including the employees it hired from
Ameristaff and Abacus. He explained that did not mean the
Company had 191 employees on the jobsite at any given
time. Heuval said the Company never exceeded an employee
complement of 124 at any given time and that the Company
never exceeded approximately 85 employees of its own.6
Company President Heuval testified the Company has non-
discrimination policies which he personally wrote and that
the Company hires ‘‘strictly by merit’’ without regard to
‘‘race, color, creed, sex, fear of retaliation age, nationality
[or] religion.’’ Heuval said union applicants were treated no
differently than nonunion applicants. President Heuval stated
union membership or lack thereof does not concern the Com-
pany so long as the applicants meet the wage rate the Com-
pany has designated for any particular jobsite.7
Superintendent Oliver said he had no problem hiring union
applicants and stated he even told Union Business Manager
James Pickin to ‘‘tell his people to put . . . in applications’’
with the Company.8 Oliver said he treated applications pre-
sented to him by Business Manager Pickin just like other ap-
plications and added he never looked on an application when
interviewing an applicant to see if the applicant was union
or not. Oliver testified an applicant’s union sympathies
‘‘didn’t bother [him] [h]e said he had hired union people and
used union people because everyone [had] to feed their fam-
ily.’’9
Business Manager Pickin testified he not only attempted to
be hired by the Company but that he also sought to persuade
the Company to hire members of his local union exclusively.
Pickin said he first made application with the Company in
May 1991 but did not at that time indicate he was affiliated
with the Union. He said he thereafter telephoned the Com-
pany once or twice and was told the Company would be hir-
ing through an employment agency—Abacus. Pickin applied
with Abacus in July 1991. Business Manager Pickin said he
visited the Company’s jobsite on November 11, 1991, and
updated his employment application noting his union affili-
ation and position on the application. Pickin said he spoke
with a company representative named Smitty.10 According to
Pickin, Smitty told him the Company had been awarded a
big job at Union Camp Paper Mill and that a Superintendent
Oliver would be coming to the jobsite the following week to
start taking applications and conducting interviews for em-
ployment.
Business Manager Pickin said he notified his local mem-
bership the Company would be hiring and that he would be
taking applications to the Company. He asked the member-
ship to come to the local’s office and truthfully fill out job
applications. Pickin instructed his membership to reflect on
their applications that they had ‘‘been through an apprentice-
ship’’ program and that they were members of the Union.
Pickin testified 10 to 12 members thereafter prepared em-
ployment applicants. Pickin said he again visited the Compa-
ny’s jobsite on November 18:
I encountered [Supt.] Oliver on the outside of the
trailer, I figured out who he was11 and I encountered
him and I told him who I was, that I was Assistant
Business Manager of my local and I was offering him
the terms of an agreement as I would any other contrac-
tor and we would be willing to work the job agreement
out, a one job agreement.
748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Superintendent Oliver acknowledged ‘‘I didn’t quite know what
to do with them, because I had never been handed a stack of appli-
cations before, you know. But I put them on my desk and treated
them just like the rest of them.’’
13 Superintendent Oliver testified he did not call or contact anyone
to come for an interview, be they union members or otherwise. Busi-
ness Manager Pickin testified he visited the jobsite again on January
6, 1992, and turned in three or four more job applications. He could
not recall if he gave the applications to a secretary in the construc-
tion trailer or someone else. Pickin visited the jobsite again on Janu-
ary 8, 1992, and turned in two or three more job applications. He
said one of his unemployed local union members, Terry Jones, was
with him and filled out an application at the site and presented it
to a secretary.
He informed me that there was no way that VOS
Electric would sign an agreement of any kind, that he
was going to need quite a few electricians, that he
would hire his electricians from the street, that it was
an employer’s market, he could pay any dollar he want-
ed to to any electrician he wanted to. There were a lot
of people walking the streets and he could do that.
Pickin testified that after his conversation with Super-
intendent Oliver, he received a ‘‘fax’’ type message from a
sister local of the Union that indicated the Company would
be hiring 60 to 80 employees over a period of time at a pay
scale of $10 to $12. Pickin said that after receipt of the fax,
he had unemployed electricians from time to time fill out ap-
plications ‘‘some 20 or so’’ for employment with the Com-
pany which he ‘‘at various times delivered . . . to VOS’
trailer.’’
Pickin testified he delivered a ‘‘handful of applications’’
to the job site on December 11, 1991, but that since Super-
intendent Oliver was not there, he did not leave them with
anyone else in the office.
Pickin testified he returned to the job site on December
16, 1991, with employment applications which he was able
to present to Superintendent Oliver. Pickin testified:
I presented [Supt. Oliver] with these applications for
employment. He looked at them, we spoke and he
looked at them as if he didn’t quite know what to do
with them but he did accept the applications as I pre-
sented them.12 I informed him they were qualified elec-
tricians, they were unemployed and they were looking
for work.
Pickin testified Supervisor Oliver did not indicate he
would contact him or his members.13 Pickin stated Oliver
told him he was going to hire ‘‘a lot of people but not peo-
ple who were making too much money, that he was looking
for a lower rate electrician.’’
On January 13, 1992, Pickin, on behalf of the Union, filed
unfair labor practice charges with the Board charging the
Company with unlawfully failing and refusing to hire appli-
cants affiliated with the Union.
Business Manager Pickin testified that on March 11, 1992,
he had 14 of his out of work local union members fill out
employment applications at the union office and then he and
the 14 members went to the Company’s jobsite. At the job-
site, he gave the 14 applications to a secretary along with the
following letter:
March 11, 1992
Mr. Ray Oliver, Project Superintendent
VOS Electric Inc.
Franklin Paper Mill
Franklin, Virginia
Dear Mr. Oliver:
With me today are 15 unemployed applicants for
employment who are members of Local Union 1340,
International Brotherhood of Electrical Workers. All are
residents of this area, have passed a journeyman’s ex-
amination given by the duly constituted construction
local union or have been certified as a journeyman
wireman by a joint apprenticeship and training commit-
tee and are willing to work under the same terms and
conditions which have been extended to other employ-
ees who are qualified in the trade.
You will not be able to employ more qualified and
productive employees in any labor market.
Please feel free to contact any of these applicants
through this office.
Sincerely,
/s/ James E. Pickin
James E. Pickin
Asst. Bus. Manager
Pickin testified Superintendent Oliver was not present at the
jobsite when he and the others arrive. Pickin waited for Su-
perintendent Oliver to return from the airport with Company
President Heuval but he said the applicants that accompanied
him ‘‘were in a hurry to get home’’ and did not wait around.
Pickin said he spoke with Oliver and Heuval about work at
the jobsite and unionism. According to Pickin, Heuval told
him he had been a past union member and that his father and
brothers were union members.
Pickin stated that the following day he received a tele-
phone call from Superintendent Kussow who asked him to
have five specifically named applicants who had left their ap-
plications at the Company the day before to come in for an
interview. According to Pickin, Kussow ‘‘wanted to inter-
view [the] five people and he would in turn hire those people
if they met his qualifications.’’ Pickin notified the requested
applicants who went to the jobsite the next day (a Friday)
where they were interviewed and told to report for work the
following Monday (March 16, 1992). The five were Eric
Horton, James Simmons, Scott Moore, Carl Morrisette, and
Mark Kiessling. The five were hired at a pay scale of $13
per hour.
It is necessary to highlight the testimony and/or review the
job applications of the 32 applicants named in the complaint.
I have addressed the named applicants in alphabetical order.
Scott Bittinger testified he filled out an application on De-
cember 3, 1991, which was taken to the Company by Busi-
ness Manager Pickin on December 16, 1991. Bittinger said
he never visited the constructionsite at any time, nor did he
receive any calls from the Company. Bittinger testified he
has 5 years of experience as an electrician and last worked
for less than $13 an hour when he was an apprentice.
Bittinger indicated on his application that he expected to
make $15.25 per hour and that he had completed the Union’s
749VOS ELECTRIC, INC.
apprenticeship program. Bittinger listed the IBEW as a pro-
fessional organization that he belonged to.
Shawn P. Campbell testified he submitted an application
at the jobsite on November 11, 1991. He testified a secretary
told him that neither Superintendent Oliver, nor anyone else
in authority, was there to interview him, that the Company
would be in touch with him. He testified the Company did
not thereafter contact him. Campbell testified he has 9 years
of experience and it had been 4 years since he earned $13
or less per hour. On his application, Campbell indicated he
had completed the IBEW’s apprenticeship program and listed
the Union as a professional organization that he belonged to.
Campbell indicated he expected to earn $15 per hour.
Gilbert D. Diehl testified he filled out an application on
December 5, which was delivered to the jobsite by Union
Business Manager Pickin on December 16, 1991. Diehl testi-
fied he has 25 years of experience and indicated on his appli-
cation that he expected to earn $15 per hour. Diehl said it
had been several years since he made $13 or less per hour.
Diehl said he made no contact with the Company and the
Company did not contact with him. Diehl does not mention
the Union on his application, however, he testified that the
job references he listed on the reverse side of his application
were all union jobs.
Franklin D. Edwards did not testify at the trial. However,
the parties stipulated that Business Manager Pickin delivered
Edwards’ application to the Company on December 16,
1991. On the application, which appears to have been pre-
pared on December 5, 1991, Edwards indicated he had com-
pleted an apprenticeship program of the Local Union. The
last employment reference on his application reflects Ed-
wards made $19.75 per hour.
Charles E. Fuller testified he filled out his employment ap-
plication at the union hall on November 27, and that Busi-
ness Manager Pickin took it to the Company on December
16, 1991. He said he has had no further contact with the
Company. He has 25 years of experience. Fuller left the sal-
ary requirement part of his application blank but said he has
not worked for $13 or less per hour since the late seventies.
He reflected on his application that he had completed an
electrician’s apprenticeship program and under professional
organizations listed he was a member of the IBEW.
David Gaskill prepared his application at the jobsite on
November 20, 1991, and gave it to a company secretary. He
upgraded his application on March 3, 1992. Gaskill said he
has 6 years of experience and on his application indicated he
had completed the local union’s apprenticeship program and
that he expected to be paid $15.25 an hour. He reflected
under professional organizations that he belonged to IBEW
Local 1340. No one from the Company contacted Gaskill.
Julis F. Gibson Jr. filled out his employment application
at the union hall on December 13, and Business Manager
Pickin took it to the Company on December 16, 1991. Gib-
son contends that all employment references on his applica-
tion are union employers, however, he made no specific ref-
erence to the Union on his application. Gibson left blank that
part of his application related to what he expected to be paid
as well as other portions of the application. Gibson said it
had been 4 years since he earned $13 or less per hour.
Addison M. Goddard testified he personally submitted his
application to the Company on November 21, 1991. He said
a secretary told him the Company was not hiring at that time
but would be in the future. Goddard testified he has 35 years
of experience and said it had been a year since he worked
for $13 or less per hour. Goddard said all employment ref-
erences on his application were union employers. Goddard
left blank that portion of his application relating to what he
expected to be paid, however, the last employment reference
on his application reflects he was paid $18.50 per hour and
the lowest he was paid by any employer referenced on his
application was $15.25 per hour. Under professional organi-
zations, Goddard listed he was a member of the IBEW.
Charles A. Hall Jr. testified he prepared a job application
on January 8, 1992, and that Business Manager Pickin took
it to the union hall on or about that date. Hall left the salary
and professional organizations portions of his application
blank but did reflect he had completed an apprenticeship pro-
gram that Local 1340 administered. Hall testified the em-
ployment references on his application were all union em-
ployers. Hall said he has 8 years of experience.
Eric C. Horton was hired by the Company in mid-March
1992. Horton said he submitted an original application at the
jobsite on November 12, 1991, and submitted a second one
in March 1992. Horton testified he has 4 years of experience
and said the employment references on his original applica-
tion were all union employers. Horton reflected on his origi-
nal application that he had completed the JATC apprentice-
ship program which he indicated was sponsored by the State
of Virginia. Horton left blank that portion of his application
pertaining to expected wages.
William B. Howard testified he has 15 years of electrical
experience and that he completed his application for employ-
ment with the Company on December 2, which was taken
to the Company by Business Manager Pickin on December
16, 1991. Howard said he prepared a second application at
the jobsite on March 11, 1992. Howard testified he was
never hired or contacted by the Company. On his original
employment application, Howard reflected he had completed
the apprenticeship program of Local 1340 and listed as a
professional organization that he belonged to the IBEW.
Howard left blank that portion of his application related to
what wages he expected to be paid; however, the last em-
ployment reference on his application reflects he earned $28
per hour and the least he was paid by any employer of ref-
erence was $15.25 per hour.
Brian R. Howell testified he made application for employ-
ment at the jobsite on November 12, 1991. Howell said he
has 5 years of experience and stated the employment ref-
erences on his application were all unionized jobs. Howell
said he was never contacted by the Company. Howell re-
flected on his application that he had completed the joint ap-
prenticeship training program which he indicated was spon-
sored by the State. Howell left blank that portion of his ap-
plication related to professional organizations and the wages
he expected to be paid. Howell said the last time he earned
less than $13 per hour was in 1991.
Robert W. Ingram submitted his employment application
to the Company on November 12, 1991. Ingram testified he
has 27 years of electrical experience and said the employ-
ment references on his application were all union employers
except one. Ingram reflected on his application that he had
completed a joint apprentice training program that he re-
flected was sponsored by the State of Virginia. Ingram re-
flected he expected to be paid at least $12 per hour.
750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Jeffrey D. Jones prepared an employment application at
the union hall on December 17, 1991, and Business Manager
Pickin took the application to the Company on January 8,
1992. Jones testified he went to the Company twice but does
not recall who he spoke with, but said it may have been a
secretary. Jones testified he has 16 years of experience and
that the employment references listed on his application were
all union employers. Jones listed the IBEW as a professional
organization that he belonged to. Terry M. Jones did not tes-
tify at the trial. Business Manager Pickin testified he saw
Jones fill out an application at the Company and give it to
a secretary. Jones’ application is signed and dated January 7,
1992. On the application, Jones indicated he expected to be
paid $15 per hour and indicated under professional organiza-
tions that he was a member of IBEW Local 1340.
Gene D. Jordan testified he did not personally apply but
rather got his application from Business Manager Pickin. Jor-
dan’s application is dated December 10, 1991. Jordan said he
has 28 years of experience and reflected on his application
he has completed an apprentice training program sponsored
by the Union. Jordan left blank those portions of his applica-
tion that reflected membership in professional organizations
and the wages he expected. Jordan testified he last earned
$13 or less per hour in 1984. The least amount of hourly
wage Jordan reflected in his employer references was $15
per hour.
Mark Kiessling testified he applied for employment with
the Company in mid-January 1992 and then again in March.
Kiessling testified he went with Business Manager Pickin to
the Company on March 12, and a day or so thereafter was
interviewed by Superintendent Kussow and hired effective
March 16, 1992. Kiessling said he has 10 years of experience
and is working at the Company for $13 an hour. On his em-
ployment application, Kiessling reflected he had completed
an apprenticeship program of the Union and under profes-
sional organizations indicated he belonged to the Union.
Kiessling indicated on his application that he expected to
make $15 per hour.
John C. Lewis prepared an application on December 11,
which was submitted to the Company by Business Manager
Pickin on December 16, 1991. Lewis testified he has 39
years of experience and has worked in various parts of the
United States. On his application Lewis reflected he has
completed an apprenticeship program of the local union and
he listed his employer from 1953 to 1991 as IBEW Local
1340. Lewis left blank that portion of his application related
to what wages he expected to be paid.
Steven E. Lewis prepared an application for employment
on December 20, 1991, which was submitted to the Com-
pany by Business Manager Pickin on January 8, 1992. Lewis
testified he has 12 years of experience and he said he twice
called the Company to follow up on his application but was
told each time the Company was not hiring. Lewis testified
two of the employment references on his application were
union employers and one was not. Lewis indicated he has
completed an apprenticeship program of the union and under
professional organizations listed his IBEW membership.
Lewis put a question mark on that portion of the application
related to what wages he expected to be paid.
Dale E. Marlin testified he responded to a newspaper ad-
vertisement and went to the jobsite where he made applica-
tion for employment on December 14, 1991. Marlin testified
he spoke with Superintendent Oliver while he was filling out
his application. According to Marlin, they talked about the
value of the Company’s contract and Marlin said he told Oli-
ver he was a member of IBEW Local 80. Marlin testified
Oliver said he had tried to get into the union in his younger
days but had not been successful. According to Marlin, Oli-
ver asked if he still worked with his tools, climbed ladders,
and did things like that. Marlin told Oliver he sure did. Mar-
lin said Oliver told him that men of his [Marlin’s] age usu-
ally ended up being foremen, and said he would have him
in for an interview in 2 weeks or so. Marlin said he listed
on his application both union and nonunion employer ref-
erences. Marlin left blank that portion of his application re-
lated to what wages he expected to be paid. Marlin said he
had not been paid less than $13 per hour since 1979. He list-
ed IBEW Local 80 as a professional organization he be-
longed to. Marlin testified the Company did not contact or
hire him at any time even though he has 30 years of work
experience. Marlin also testified he mailed out well over 200
resumes to companies around the country but had not been
offered employment by any of them. He said it appeared he
was overqualified for some jobs.
Superintendent Oliver said he did not like Marlin’s attitude
when he spoke with him. Oliver said Marlin ‘‘had politicked
his way through life all the time . . . that’s the attitude I got
from him . . . he talked a big lot but . . . I don’t think he
had worked very much [with] his tools.’’
Scott A. Moore prepared an employment application on
December 2, which was taken to the Company by Business
Manager Pickin on December 16, 1991. Moore made a sec-
ond application at the Company in March, a day or two be-
fore he was hired at $13 per hour on March 16, 1992. Moore
said he was interviewed by Superintendent Kussow before he
was hired. On his original application, Moore reflected he
had completed an apprenticeship program and received an
apprenticeship degree. Moore left blank that portion of his
original application that related to any professional organiza-
tions he belonged to or what wages he expected to earn.
Moore testified it had been 4 years since he last worked for
$13 or less per hour.
Carl Morrisette filled out an application on December 5,
which was taken to the Company by Business Manager
Pickin on December 16, 1991. Pickin has 15 years of elec-
trical experience and stated he could do whatever needed to
be done on a project. Morrisette went to the jobsite the first
week in March and was hired by the Company in mid-March
1992. Morrisette testified that Superintendent Oliver had
‘‘been more than reasonable with him and the other union
members’’ on the project. On his original application for em-
ployment, Morrisette left blank what wages he expected to
be paid but reflected under professional organizations that he
belonged to the local union.
Chester Odom prepared an employment application on De-
cember 2, which was apparently delivered by Business Man-
ager Pickin to the jobsite on December 16, 1991. Odom testi-
fied he has 21 years of experience. He said he never visited
the Company’s jobsite nor did anything other than make ap-
plication for employment with the Company. On his applica-
tion, he twice reflects he has been with the Union for 21
years. Odom left blank that portion of his application related
to what wages he expected to be paid.
751VOS ELECTRIC, INC.
Ronald A. Parish testified he prepared an application on
November 20, 1991, and a second application at the jobsite
some 2 months later. Parish testified on direct examination
that the secretary that he gave the application to said if the
Company needed him, they would call him. However, on
cross-examination, he testified the secretary never said any-
thing about contacting him but rather that the secretary was
eating lunch and very little was said between them. On his
original application, Parish reflected he had completed an ap-
prenticeship program and that he expected to be paid $15.25
per hour. He listed the Union under professional organiza-
tions.
Timothy W. Quail’s employment application, which is
dated December 11, 1991, was taken to the Company by
Business Manager Pickin on December 16, 1991. Quail testi-
fied that in March he went to the jobsite and filled out an-
other application which he left with a secretary. Quail said
his latest application was made after the Company had hired
certain union members in mid-March 1992. Quail testified he
has 10 years of experience and that he last worked for $13
or less per hour in 1988 or 1989. On his original application
for employment, Quail indicated he had completed an ap-
prenticeship program of the Union and listed his employer
from 1982 to 1991 as the Union at a pay rate of $15.50 per
hour. Quail left blank that part of his application related to
the wages he expected to be paid.
Roger D. Ramsey testified he prepared an employment ap-
plication at the union hall on January 7, 1992, and left it at
the hall. Apparently, Business Manager Pickin delivered the
application to the Company on January 8, 1992. Ramsey tes-
tified that the employment references on his application were
all unionized employers and that he has 24 years of experi-
ence as an electrician. Ramsey left blank the wages he ex-
pected to be paid but listed, as a professional organization,
that he belonged to the Union. Ramsey also listed Business
Manager Pickin as a reference on his employment applica-
tion.
John F. Roger, whose application is dated November 15,
1991, testified he submitted it in person to the Company.
Roger testified he returned to the jobsite on February 24,
1992, and spoke with an unidentified person who assured
him his application was still on file. Roger testified he has
20 years of experience. Roger left blank that portion of his
application relating to what wages he expected to be paid;
however, he indicated he had completed an apprenticeship
program of the Union and reflected under professional orga-
nizations that he belonged to the Union. In his employment
references, he reflected he had made between $18.65 and
$19.11 per hour on his prior jobs.
Mark E. Rosenberger testified he has 9 years of experience
and made application for employment with the Company on
February 25, 1992. He testified the employment references
on his application are all union employers. Rosenberger said
he first applied for employment with the Company at the job
site on November 19, 1991. He said that at that time, he sim-
ply filled out the application, left it with the Company, and
nothing was said to him about hiring prospects. No copy of
this purported application was offered or received in evi-
dence. On his 1992 application, he reflected he expected to
be paid $13 per hour and indicated he had completed the
Union’s apprenticeship program and was a member of the
local union.
James L. Simmons testified he applied at the jobsite on
November 19, 1991, and gave his job application to Super-
intendent Oliver. On the application, he indicated he ex-
pected to be paid $15.25 per hour and that he had completed
an apprenticeship training program. He listed under profes-
sional organizations that he was a member of the Union. For
all the employment references on his application, he reflects
he was paid at the rate of $15.25 per hour. Simmons was
hired by the Company on March 16, 1992, at a pay rate of
$13 per hour.
Daniel M. Stenquist prepared his employment application
on December 2, and it was taken to the Company by Busi-
ness Manager Pickin on December 16, 1991. Stenquist testi-
fied the employment references on his application are all
unionized employers. Stenquist testified he has 4-1/2 years of
electrical experience. He reflected on his application that he
expected to be paid $15.25 per hour. Stenquist also reflected
he had completed an apprenticeship program.
William D. Wilson testified he prepared an application
dated November 12, 1991, and submitted it to a secretary at
the jobsite. Wilson testified he has 17 years of experience
and that it has been 2 or 3 years since he earned $13 or less
per hour. On the application, Wilson reflected he had com-
pleted the Union’s apprenticeship program and that he ex-
pected to be paid $12 to $13 per hour. Wilson testified the
employment references on his application were all unionized
employers.
Raynard L. Wood testified he submitted his first applica-
tion dated January 16, 1992, through Business Manager
Pickin. Wood testified he submitted a second application in
person on March 14, 1992, but has never been contacted or
interviewed. Wood listed on his original application that he
expected to be paid $15.25 per hour, that he had completed
the Union’s apprenticeship program and listed Business Man-
ager Pickin as a reference. Under professional organizations,
Wood reflected he was a member of the Union. Wood’s
March 14, 1992 application was not offered or received in
evidence.
III. THE WRIGHT LINE TEST AND OTHER LEGAL
PRINCIPLES
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); ap-
proved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983), the Board set forth its causation test for
cases alleging violations of the Act that turn, as does the
case herein, on employer motivation. First, the General
Counsel must make a prima facie showing sufficient to sup-
port the inference that protected conduct was a ‘‘motivating
factor’’ in the employer’s decision. Once this is established,
the burden shifts to the employer to demonstrate that it
would have taken the same action even in the absence of the
protected conduct. An employer cannot simply present a le-
gitimate reason for its actions but must persuade by a pre-
ponderance of the evidence that the same action would have
taken place even in the absence of the protected conduct.
The classic elements commonly required to make out a
prima facie case of union discriminatory motivation under
Section 8(a)(3) of the Act are union activity, employer
knowledge, timing, and employer animus. As to the latter
element, the Board, under certain circumstances, will infer
animus in the absence of direct evidence. Such a finding may
752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
be inferred from the record as a whole. See, e.g., Fluor Dan-
iel, Inc., 304 NLRB 970 (1991). In the Fluor Daniel, Inc.,
case, which involved refusals to hire, the Board concluded
that where all applicants who revealed some indicia of union
membership on their applications were not contacted or
called in for an interview or hired while applicants who uni-
formly displayed weak or nonexistent union ties were it was
reasonable to infer it was not just coincidental and that such
disparity, standing alone, was sufficient to support a prima
facie case of discrimination.
It is well established that a failure to hire a job applicant
because of his/her union sympathies or activities violates
Section 8(a)(1) and (3) of the Act. The same principle ap-
plies when an employer, for the same reasons, fails to con-
sider an applicant for employment. See, for example, D.S.E.
Concrete Forms, 303 NLRB 890 (1991).
IV. DISCUSSION, ANALYSIS, AND CONCLUSIONS
A. The General Counsel’s Prima Facie Case
Examining the instant facts, in light of the principles out-
lined above, I am persuaded Counsel for the General Counsel
established a prima facie case.
1. Company knowledge of the applicants’ union
affiliations or sentiments
Counsel for the General Counsel placed in evidence the
applications of the 32 applicants named in the complaint. A
review of those applications shows that applicants Bittinger,
Campbell, Edwards, Fuller, Gaskill, Goddard, Hall, Howard,
T. Jones, Jordan, Kiessling, J. Lewis, S. Lewis, Marlin,
Morrisette, Odom, Parish, Quail, Ramsey, Roger, Rosen-
berger, Simmons, Wilson, and Wood each made specific ref-
erences on their applications to the Union or one of its
locals. Applicants Horton, Howell, Ingram, Moore, and
Stenquist indicated on their applications they had completed
a joint apprentice training course. Applicants Diehl, Gibson,
and J. Jones testified the employment references listed on
their applications were all known union employers. Based on
the above, counsel for the General Counsel asserts the Com-
pany knew that all the named applicants were members of,
were trained by, or supported the Union.
2. Evidence of animus and motivation
First, counsel for the General Counsel points to the fact
the Company did not hire any of the named applicants until
March 1992, which was approximately 2 months after the
Union had filed an unfair labor practice charge against the
Company. Counsel for the General Counsel argues none of
the alleged discriminatees was contacted and only five were
hired in late March. Counsel for the General Counsel con-
tends it was not just coincidental that all the applicants who
displayed union affiliations were refused employment. Coun-
sel for the General Counsel contends the above ‘‘blatant dis-
parity’’ standing alone is sufficient to support a prima facie
showing of discrimination.
Counsel for the General Counsel also asserts that the
Company’s motive in failing to hire the 32 named applicants
is demonstrated by Superintendent Oliver’s evaluation of ap-
plicant Marlin. As noted elsewhere in this decision, Marlin
visited the jobsite and made application for employment on
December 14, 1991. While at the site, Marlin talked with Su-
perintendent Oliver. The two of them discussed union mem-
bership with Marlin telling Oliver he was a member of
IBEW Local 80 (a sister local of the one involved). Super-
intendent Oliver asked Marlin if he still worked with his
tools, climbed ladders, and did things of that sort. Marlin in-
dicated he did. Superintendent Oliver testified about his as-
sessment of Marlin. He said he did not like Marlin’s attitude,
that it appeared Marlin ‘‘had politicked his way through
life’’ that he talked a ‘‘big lot’’ but he didn’t think Marlin
had worked very much with his tools. Counsel for the Gen-
eral Counsel contends Superintendent Oliver’s reference to
Marlin’s (and other other applicants’) ‘‘attitude’’ was nothing
more than a euphemism masking his antiunion hostility.
Counsel for the General Counsel points to the significant
years of experience and credentials the 32 named applicants
listed on their applications and asserts the Company could
not have refused to offer them employment based on their
qualifications. It is noted that applicants Diehl, Fuller, Gib-
son, Goddard, Howard, Ingram, J. Jones, Jordan, Kiessling,
J. Lewis, S. Lewis, Marlin, Morrisette, Odom, Quail,
Ramsey, Roger, Wilson, and Wood each listed over 10
years’ experience as electricians on their applications. The
remaining applicants listed an average experience factor of
approximately 6 years as electricians.
Counsel for the General Counsel points out, correctly so,
that Superintendent Oliver indicated the wage rate sought by
an applicant played a major consideration in whether to hire
the applicant or not. Superintendent Oliver acknowledged
unionized electricians were accustomed to making more
($15.25 per hour) than the $12 to $13 per hour the Company
was paying its electricians. Superintendent Oliver testified his
past experience had been that if he hired someone for less
money than the individual had been making, such an em-
ployee would become dissatisfied and quit as soon as a better
paying job came along. Counsel for the General Counsel
contends Superintendent Oliver cited no evidence to docu-
ment his contentions in this regard. Furthermore, counsel for
the General Counsel asserts the Company consistently ig-
nored its $13-per-hour maximum wage rate when it selected
nonunion applicants for hire. Counsel for the General Coun-
sel asserts the above further demonstrates the Company was
unlawfully motivated in not selecting for hire the 32 appli-
cants named in the complaint.
Finally, in support of a prima facie case, counsel for the
General Counsel notes the Company declined to enter into a
prehire agreement with the Union and notes Superintendent
Oliver told Union Business Manager Pickin he could hire
electricians off the street at a desired rate rather than paying
the higher rates the unionized electricians expected. Counsel
for the General Counsel also notes Superintendent Oliver did
not offer to negotiate a lower wage rate for union members
Pickin might refer to the jobsite.
I am persuaded counsel for the General Counsel’s evi-
dence, arguments, and contentions as outlined and/or alluded
to above establishes a prima facie case. The Company, if it
examined the applications of the 32 applicants named in the
complaint, would have been aware that the vast majority of
them were affiliated with or supported the Union or were
trained in a program sponsored at least in part by the Union.
Only five of the 32 applicants were ever offered employment
with the Company and those five were only offered employ-
753VOS ELECTRIC, INC.
14 The lack of effort on the part of the applicants to be interviewed
is perhaps best demonstrated by Union Business Manager Pickin’s
testimony regarding his and 14 out-of-work union members visit to
the jobsite in mid-March 1992. Superintendent Oliver was not
present when Pickin and the others arrived. Pickin waited for Oliver
to show but the 14 out-of-work members were in a hurry to get
home and did not wait.
ment after the Union had filed a charge against the Company
and the General Counsel had issued a complaint thereon. The
person doing the hiring for the Company, Superintendent
Oliver, had indicated he did not like the ‘‘attitude’’ of union
supporter Marlin and certain other unnamed applicants. The
experience and qualification levels of the 32 applicants were
such that should have warranted some response from the
Company. Thus, counsel for the General Counsel met his
burden of establishing a prima facie case.
B. The Company’s Burden
I am persuaded the Company demonstrated it would have
taken the same action it did even in the absence of any pro-
tected concerted conduct on the part of any or all of the 32
applicants named in the complaint.
In meeting its burden, the Company demonstrated it
sought to staff its Union Camp Paper Mill project with exist-
ing or former employees of the Company. Company Presi-
dent Heuval testified, and his testimony was not challenged
on this point, that 43 of those who worked at the site during
applicable times (November 1991 through March 1992) were
existing or former employees of the Company.
The Company demonstrated it utilized various means to
secure the remainder of its needed work force. For example,
the Company ran newspaper advertisements seeking appli-
cants from a multistate area. The Company also utilized the
services of two employment agencies.
The Company demonstrated that applications, from what-
ever source, were all processed in the same manner. Super-
intendent Oliver separated and filed all applications accord-
ing to the positions sought and wages expected by the appli-
cants. Superintendent Oliver credibly testified he processed
applications supplied by the Union in the same manner as
those received from other sources. In agreement with the
Company, I find the evidence fails to establish any unlawful
motivation on the Company’s part in the manner and method
it utilized in receiving and filing the some 500 to 600 appli-
cations it received.
The Company demonstrated it followed a very informal,
unstructured hiring procedure to select and hire those who
were not existing or former employees and/or who were not
supplied by the two employment agencies. Superintendent
Oliver considered several factors in selecting which appli-
cants he would hire. Oliver’s first selection criteria was
whether he knew an applicant and/or whether the applicant
had ever worked for him before. Secondly, Oliver looked to
see if the applicant knew someone he knew who could vouch
for the applicant’s potential as an employee. Thirdly, Oliver
attempted to ascertain if the applicant would be willing to
travel and/or work for the Company at some later time on
some other project. Fourthly, Oliver looked at the rate of pay
the applicant had been accustomed to making and noted how
that would fit into the Company’s average wage rate for the
project in question. Fifthly, Oliver was influenced by wheth-
er the applicant showed up at the jobsite and sought an inter-
view as well as the applicant’s attitude toward work. Super-
intendent Oliver testified, and his testimony was not effec-
tively challenged on this point, that no applicant was hired
by merely dropping off an application at the jobsite without
waiting for an interview. I am persuaded there is nothing
about Superintendent Oliver’s selection process, as outlined
above, that would indicate it was unlawfully motivated.
Counsel for the General Counsel’s entire case falls apart
simply on the fact no evidence was presented to demonstrate
that any of the 32 named applicants ever specifically sought
an interview with the Company.14 The Company dem-
onstrated Superintendent Oliver did not hire anyone without
an application and interview. The Company also established
that Superintendent Oliver did not telephone any applicant to
come to the jobsite for an interview and he did not return
applicant’s telephone calls. The Company established appli-
cants had to personally appear at the worksite and wait, in
some instances hours, to be interviewed. No one was hired
by just dropping off an application at the jobsite. I note that
applicants Bittinger, Diehl, Edwards, Fuller, Gibson, Hall,
Jordan, J. Lewis, S. Lewis, Odom, Ramsey, and Stenquist
never visited the jobsite at any time. The Company’s evi-
dence is persuasive that its failure to hire certain of the 32
applicants may not be attributed to unlawfully motivated rea-
sons on its part but rather to a failure of the applicants to
follow the nondiscriminatory procedures for hiring utilized
by the Company.
Even if I concluded the Company’s evidence, as outlined
above, did not rebut counsel for the General Counsel’s case,
I would nonetheless conclude it presented evidence that
would rebut each of the elements of counsel for the General
Counsel’s prima facie case.
Turning to the various elements of counsel for the General
Counsel’s case, I conclude the Company rebutted the evi-
dence that it knew the union sentiments of the 32 applicants
in question. It is clear that if the Company had examined the
applications of Bittinger, Campbell, Edwards, Fuller, Gaskill,
Goddard, Hall, Horton, Howard, Howell, Ingram, T. Jones,
Jordan, Kiessling, J. Lewis, S. Lewis, Marlin, Moore,
Morrisette, Odom, Parish, Quail, Ramsey, Roger, Rosen-
berger, Simmons, Stenquist, Wilson, and Wood, it would
have been aware of their union sentiments. Further examina-
tion, however, is necessary in deciding if the Company, by
merely examining the applications of Diehl, Gibson, and J.
Jones would have been aware of their union sentiments. The
only evidence on their applications of their union sentiments
was their prior employment references which they testified
were all unionized employers. Applicant Diehl listed as prior
employment references U. E. & C Catalytic, M. M. & R.
Foley Co., and P & W Electric. No additional testimony or
other evidence was presented to demonstrate that these were
unionized employers nor was any evidence presented regard-
ing the size of or how widely known these employers were.
No evidence was presented regarding the number of elec-
tricians these employers employ. Diehl’s application does re-
flect the three employers paid him in excess of $15 per hour.
Applicant Gibson listed as prior employment references
Klate Holt Co. and Saunders Electric Co. which he indicated
were located at Hampton, Virginia. Gibson listed his rate of
pay ($12.95 per hour) only for the Klate Holt Co. Applicant
J. Jones listed as prior employment references Catalytic, Inc.,
Dyna Electric, Inc., and E. G. Middleton, Inc. No additional
754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 In making my conclusions regarding Diehl’s, Gibson’s, and J.
Jones’ applications, I am not unmindful that the Board in Fluor
Daniel, Inc., supra at 972, adopted Administrative Law Judge Arline
Pacht’s decision in a refusal to hire case in which she noted
‘‘[m]any applicants provided a work history with employers known
to hire union labor, and/or cited former rates of pay which were rec-
ognizably higher than wages typically offered by nonunion employ-
ers.’’ (Id. at 975.) I am not persuaded that the Board in Fluor Dan-
iel, Inc. intended, even implicitedly to hold an employer responsible
for knowing which employment references on applications were
unionized employers and which were nonunion employers. Nor am
I persuaded that the Board in Fluor Daniel, Inc. held or intended
for its holdings to be interpreted that ‘‘higher’’ rates of pay listed
on employment references would automatically signal a unionized as
opposed to a nonunionized employer. Furthermore, I note that even
if it could be concluded that when an applicant reflected a prior em-
ployment wage rate in excess of $15 per hour that such signaled a
unionized employer it would not avail applicant Gibson because he
reflected a prior employment wage rate of $12.95 per hour.
16 I credit Superintendent Oliver’s testimony that he did not review
or utilize the applications beyond that described above. In addition
to his courtroom demeanor, other factors persuade me he testified
truthfully regarding the extent of his use of employment applications.
He testified he kept a very busy schedule during the time in ques-
tion. The evidence demonstrates he not only served as the offsite
manager for the Franklin, Virginia project but he also served as the
Company’s southeastern operations manager based in Savannah,
Georgia. He said he spent approximately 3 days at each of these two
locations. He testified he received 60 to 70 telephone calls daily
from salespersons, temporary employment agencies, and others. He
also testified that during the time the Company advertised in various
newspapers approximately 30 to 40 applicants stopped by the
constructionsite daily seeking employment. During this same time
the Company received in excess of 500 job applications. Oliver testi-
fied he purchased over $1 million in materials during this time and
worked and/or coordinated with the two employment agencies uti-
lized by the Company. Thus, I find very credible Superintendent Oli-
ver’s testimony that he simply did not have the time nor did he in
fact review applications except to file them.
17 Superintendent Oliver hired prounion applicants Freddie Herron
in November 1991 and Mark Crawley in January 1992.
18 Perhaps to some extent, Superintendent Oliver’s assessment of
applicant Marlin is supported by Marlin’s own testimony that he sent
well over 200 resumes to various employers without being hired.
testimony or other evidence was presented to demonstrate
these were unionized employers nor was any evidence pre-
sented regarding the size of or how widely known these three
electric employers are and/or what size electrical work force
they employ. J. Jones did indicate he made in excess of $15
per hour at each of the employers. Union Business Manager
Pickin delivered Diehl’s, Gibson’s, and others applications to
the jobsite on December 16, 1991. Pickin also delivered J.
Jones’ and others applications to the jobsite on January 8,
1992. There is no evidence, however, that Superintendent
Oliver specifically noted that these three applications were
among those Pickin left with him on those occasions.
To summarize the issue of the Company’s knowledge of
the union sentiments of the 32 named applicants, I conclude
that if it had examined the applications in question, it would
have been on notice that all except Diehl, Gibson, and J.
Jones were to some degree affiliated or associated with the
Union or were trained in a program sponsored, at least in
part, by the Union. I conclude an examination of Diehl’s,
Gibson’s, and J. Jones’ applications would not have alerted
the Company that they were in any manner associated with
or held prounion sentiments.15 The evidence, however, is
conclusive that the Company, and more specifically Super-
intendent Oliver, did not review the 500 plus applications
filed with the Company. In that regard, Superintendent Oli-
ver credibly testified he did not review any applications ex-
cept to file them by positions sought and rates of pay ex-
pected by the applicants.16 In that regard, I note the position
sought and rate of pay expected appears near the top front
of an application whereas employment references and pre-
vious rates of pay as well as memberships in professional or-
ganizations, such as a union, are all on the reverse side of
an application. In light of the fact no one reviewed the appli-
cations, I am persuaded counsel for the General Counsel
failed to demonstrate that the Company or Superintendent
Oliver knew which applicants, including the 32 named in the
complaint, supported the Union.
The Company rebutted counsel for the General Counsel’s
evidence related to the element of antiunion animus and dis-
criminatory motivation on its part. First, the Company dem-
onstrated it had, through Superintendent Oliver, informed
Union Business Manager Pickin that he should have his
members submit applications with the Company. Oliver told
Pickin he had no problem hiring union people.17 Super-
intendent Oliver treated the applications Union Business
Manager Picking provided him no differently than any other
applications submitted at the jobsite. It is undisputed that Su-
perintendent Oliver and Union Business Manager Pickin
have had an amicable relationship from their first meeting in
November 1991 through the trial herein. Further evidence of
a lack of union animus is demonstrated by the fact the Com-
pany, corporatewide, currently has approximately 47 IBEW
members (or former members) on its payrolls.
With regard to Superintendent Oliver’s statements to appli-
cant Marlin and his comments to certain other unnamed ap-
plicants about their ‘‘attitude,’’ the Company demonstrated
his comments related to justifiable concerns and were not un-
lawfully motivated remarks. Superintendent Oliver’s testi-
mony regarding his conversation with applicant Marlin and
his testimony about the importance of an applicant’s ‘‘atti-
tude’’ clearly suggests his comments were based on some-
thing other than antiunion considerations. Superintendent Oli-
ver testified he did not like applicant Marlin’s attitude be-
cause Marlin had ‘‘politicked his way through life’’ that ‘‘he
talked a big lot’’ but ‘‘the attitude’’ he projected was that
‘‘he had not worked very much [with] his tools.’’18 Super-
intendent Oliver testified about the attitude he looked for
when he selected applicants for employment. Oliver testified:
The main thing is if a guy’s got a good attitude . . .
he’ll do, you can show him something. If a guy’s pretty
smart, you ain’t got to show him but a couple times
and he can do things especially tasks that are repetitive.
In the first part of a job, there’s a lot of things going
on that are repetitive work.
I am persuaded Superintendent Oliver was concerned with
having this ‘‘hard dollar job’’ turn a profit and was looking
for those he perceived would make the best workers without
regard to the workers’ union sympathies. Thus, I conclude no
unlawful motivation or antiunion animus may be inferred
from Superintendent Oliver’s references to applicant Marlin’s
and others’ attitudes.
755VOS ELECTRIC, INC.
19 See Tyger Construction Co., 296 NLRB 29, 30 fn. 1 (1989).
20 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
The Company effectively rebutted counsel for the General
Counsel’s contention that the significant years of experience
and other credentials listed by the 32 applicants in question
should have warranted some kind of inquiry by the Com-
pany. There is no question but that the 32 applicants dem-
onstrated an impressive work history. Such experience fac-
tors would clearly have warranted some type of response
from the Company if the 32 applicants had sought and made
themselves available for interviews. The Company estab-
lished that all applications from whatever source or with
whatever credentials listed were not reviewed beyond that
necessary for filing purposes unless an applicant actively
sought an interview. With no evidence that any of the 32 ap-
plicants in question specifically sought an interview with Su-
perintendent Oliver, I cannot infer that unlawful animus or
motivation played any part in the Company’s not responding
to the experience levels set forth on the 32 applications in
question.
The Company effectively rebutted counsel for the General
Counsel’s contention that it ignored budgetary constraints
when it selected nonunion applicants but automatically ap-
plied such constraints to eliminate union applicants or appli-
cants that listed higher paying prior employment references.
First, Superintendent Oliver credibly testified he interviewed
any applicant that sought and made time for an interview re-
gardless of the expected wage rate reflected on the applica-
tion. Therefore, the listed wage rate expected by an applicant
did not automatically bar an applicant from an interview.
Secondly, of the 180 applications of those that were hired,
only 5, namely, Robert Dodd, Billy Carswell, Eugene Rich-
ardson, Raleigh M. Holland, and Franklin D. Norris indicated
on their applications that they expected wages ranging from
$14 to $14.50 per hour and only 6, namely, Cecil Earl
Lewis, Willie C. Pait, Billy J. Boutwell, James C. Long, Ar-
thur B. Comer, and Albert F. Buppert indicated they ex-
pected wages ranging from $13.25 to $13.75 per hour. Con-
trary to counsel for the General Counsel’s urging, I cannot
conclude that this small percentage (less than 10 percent of
those hired) demonstrates the Company consistently ignored
its budgetary constraints when it selected nonunion appli-
cants.
Certain other factors counsel for the General Counsel
raised in establishing his prima facie case are addressed as
follows. The fact the Company declined to enter into a
prehire agreement with the Union does not establish an un-
lawful antiunion bias on the part of the Company.19 Like-
wise, Superintendent Oliver’s telling Union Business Man-
ager Pickin that he could hire electricians off the street at a
desired wage rate does not establish unlawful bias against
union applicants. Counsel for the General Counsel made
much of the fact Superintendent Oliver did not offer to nego-
tiate a lower pay rate with Union Business Manager Pickin
for any union members Pickin might refer to the jobsite. No
unlawful motivation attaches to such a failure inasmuch as
the Company was under no legal obligation to do so. The
Company’s hiring five union applicants after a charge had
been filed by the Union and a complaint issued does not
warrant an inference it was unlawfully motivated in hiring
the five. It appears the Company hired the five union appli-
cants after the Union put in writing its applicants would
work under the same terms and conditions as other elec-
tricians employed by the Company.
In light of all the above, I am persuaded the Company
demonstrated it would have taken the same action it did even
in the absence of any protected conduct on the part of any
or all of the 32 applicants named in the complaint. Accord-
ingly, I recommend the complaint be dismissed in its en-
tirety.
CONCLUSIONS OF LAW
1. VOS Electric, Inc. 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, AFL–
CIO, Local Union 1340 is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Company did not fail and refuse to hire the 32 ap-
plicants named in the complaint or any other applicants be-
cause of their union membership, sympathies, and/or activi-
ties in violation of Section 8(a)(1) and (3) of the Act.
4. The Company has not violated the Act in any manner
alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended20
ORDER
The complaint is dismissed in its entirety.