Wright Electric, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1999

327 N.L.R.B. 1194 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1194
Wright Electric, Inc. and International Brotherhood
of Electrical Workers, Local 292, AFL–CIO.
Cases 18–CA–12820, 18–CA–13193, and 18–CA–
13369
March 31, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On November 26, 1996, Administrative Law Judge
William J. Pannier III issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed exceptions, a supporting
brief, and an answering 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 decided to
affirm the judge’s rulings,1 findings, and conclusions, to
adopt the remedy as modified, and to adopt the recom-
mended Order as modified and set forth in full below.2
The judge dismissed allegations that the Respondent
violated Section 8(a)(1) and (4) by filing a civil lawsuit
against the Union. Regarding this allegation, the Gen-
eral Counsel has excepted only to the judge’s failure to
find that the Board should retain jurisdiction pending
final court resolution of the suit. We find merit in this
exception.
The judge dismissed allegations that the Respondent
violated Section 8(a)(1) by making discovery requests
in connection with its lawsuit. The General Counsel
has excepted to the judge’s failure to find the discovery
requests violated the Act. We find merit only in the
exception pertaining to seeking discovery of employee
authorization cards.
The judge found that the Respondent violated Section
8(a)(3) of the Act by refusing to hire Louis Lutz be-
cause of his union membership. The General Counsel
has excepted to the judge’s statement that the Respon-
dent may litigate certain matters regarding Lutz’ rein-
statement in compliance. We find merit in this excep-
tion.
Background. The Respondent hired Thomas
Ouellette in November 1992 and discharged him in
February 1993 for allegedly “concealing and misrepre-
senting” certain facts about his employment history.
Ouellette failed to state on his employment application
that he had previously been employed by union contrac-
tors. The Union filed an unfair labor practice charge
alleging that the Respondent violated Section 8(a)(3) by
discharging Ouellette, and Ouellette filed a claim with
the State of Minnesota for unemployment benefits. The
unfair labor practice charge was dismissed, and the un-
employment benefits claim was denied.

1 The Respondent excepts to the judge’s ruling, made at the hearing,
granting the Charging Party’s petition to revoke the subpoena served on
it by the Respondent on April 16, 1996. For the reasons stated by the
judge in his ruling, we find that he properly granted the Charging
Party’s petition to revoke the subpoena.
2 In accord with Excel Container, Inc., 325 NLRB No. 14 (Nov. 7,
1997), we shall change the date in par. 2(e) of the recommended Order
from July 13, 1994, to August 24, 1993, the date of the first unfair labor
practice.
In August 1993, the Respondent filed a lawsuit in
Minnesota District Court against Ouellette, the Union,
and the Union’s business agent, Michael Priem. The
Respondent claimed that Ouellette, acting at the Un-
ion’s behest, submitted a falsified employment applica-
tion to the Respondent and thereby obtained a job and
that Ouellette’s actions were part of a “pattern and prac-
tice of fraud” perpetrated by the Union; and that the
unfair labor practice charge and the unemployment
benefits claim filed by Ouellette were “meritless and
malicious.” The Respondent’s lawsuit also included
claims for breach of contract and fiduciary duty of hon-
esty and loyalty against Ouellette; recovery of
Ouellette’s salary and the benefits paid to him while he
worked for the Respondent; unjust enrichment, fraudu-
lent misrepresentation, and concealment; and wrongful
use of property. The Respondent also made discovery
requests, seeking information allegedly relevant to its
lawsuit.
On January 14, 1994, the state court dismissed the
malicious prosecution claims. The remaining claims
are currently pending in state court. The General Coun-
sel does not dispute the judge’s finding that the Re-
spondent has preserved its right to appeal the dismissal
of the malicious prosecution claims and that therefore
there has been no final judgment on these claims.
1. Dismissal of unfair labor practice charges. The
unfair labor practice complaint in Case 18–CA–12820
alleges that the malicious prosecution allegations of the
Respondent’s lawsuit lacked a reasonable basis and
were motivated by an intent to retaliate against employ-
ees for exercising their Section 7 rights. The complaint
alleges that the Respondent violated Section 8(a)(1) and
(4) by filing and maintaining its lawsuit.
The administrative law judge noted that in Bill John-
son’s Restaurants v. NLRB, 461 U.S. 731, 748 (1983),
the Supreme Court stated that the Board “may not halt
the prosecution of a state-court lawsuit, regardless of
the plaintiff’s motive, unless the suit lacks a reasonable
basis in fact or law.” The judge held that he could not
conclude, based on the circumstances of this case, that
the malicious prosecution claims lacked a reasonable
basis in fact or law. The judge also noted that the hold-
ing in Bill Johnson’s requires “a final adjudication” of
the state court proceedings before the Board can “pro-
ceed to evaluation of the lawsuit and of the motivation
for it.” As stated above, the judge held that there has
been no final adjudication of the malicious prosecution
claims. The judge concluded that the allegations the
327 NLRB No. 196
WRIGHT ELECTRIC, INC. 1195
Respondent violated the Act by filing its malicious
prosecution claims must be dismissed.
The General Counsel does not dispute the judge’s
finding that the malicious prosecution claims do not
lack a reasonable basis in fact and law. Nor does the
General Counsel dispute the judge’s conclusions, ex-
cept that he urges that the case should be held in abey-
ance pending disposition of the state court litigation
rather than dismissed. We agree.
In Bill Johnson’s, the Supreme Court held that when
called upon to determine whether a lawsuit that raises
genuine issues of material fact is unlawful at a time
when the suit is still pending, “the Board must await the
results of the state-court adjudication with respect to the
merits of the state suit,” id. at 749 (emphasis added),
and that the Board “should stay [the 8(a)(1) and (4)]
proceedings until the state-court suit has been con-
cluded.” Id. at 746 (emphasis added).
Accordingly, no exceptions having been filed to the
judge’s finding that the malicious prosecution claims
are still pending, we shall sever and remand to the
judge, rather than dismiss, that part of the unfair labor
practice proceedings in Case 18–CA–12820 which al-
leges that the Respondent filed a “baseless and retalia-
tory” lawsuit. The judge is directed to hold that allega-
tion in abeyance until he receives notification that the
state court has resolved the matter pending before it. At
that point, the judge can determine, based on the state
court’s action, whether the state court suit lacked merit
and, if so, whether it was filed for a retaliatory motive.
2. Discovery issues. The unfair labor practice com-
plaint alleges that the Respondent’s discovery requests,
made in connection with its lawsuit, seek information
which is protected by the Act and which is not relevant
to the state court lawsuit. The judge found it unlikely
that the Supreme Court in Bill Johnson’s would direct
the Board to allow a state court lawsuit to proceed
while permitting the Board to enjoin discovery of items
sought during the state court proceeding.
The General Counsel has excepted to the judge’s
finding that the Respondent’s discovery requests may
go forward. We agree with the General Counsel only as
to the Respondent’s request for employee authorization
cards. For the reasons stated below, we find that the
Respondent violated Section 8(a)(1) by seeking to ob-
tain the identities of employees who signed authoriza-
tion cards.
It is axiomatic that “an employer who seeks to obtain
the identities of employees who sign authorization
cards . . . violates the Act.” National Telephone Direc-
tory Corp., 319 NLRB 420, 421 (1995). The Board
zealously seeks to protect the confidentiality interests of
employees because of the possibility of intimidation by
employers who obtain the identity of employees en-
gaged in organizing. As discussed in National Tele-
phone, the courts have similarly recognized that “it is
entirely possible that employees would be ‘chilled’
when asked to sign a union card if they knew the em-
ployer could see who signed.” 319 NLRB at 421 (quot-
ing Committee on Masonic Homes v. NLRB), 556 F.2d
214, 221 (3d Cir. 1977). Given that the Respondent’s
conduct would reasonably tend to deter the exercise of
protected activity, we now turn to an examination of the
Respondent’s business justification.
The Respondent claims that the Union, through
Ouellette, gained access to its premises to engage in an
unlawful purpose, i.e., to disrupt its business. Accord-
ing to the Respondent, the Union’s response that
Ouellette obtained employment to organize the Re-
spondent’s employees makes any authorization cards
from the Respondent’s employees discoverable under
the theory that the existence of such cards would tend to
support the Union’s contention, while the absence of
such cards would support the Respondent’s claim that
the Union’s object was to engage in an unlawful pur-
pose.
We do not accept the Respondent’s assertion that the
absence of cards from its employees would prove that
the Union’s objective was unlawful. But, even assum-
ing it were true, we find that the Respondent has failed
to state an interest in examining employee authorization
cards that outweighs the considerable confidentiality
interests of employees who sign cards. The Respondent
itself has demonstrated the weakness of its claimed
business justification by suggesting there are less intru-
sive ways of obtaining the information it seeks. For
example, the judge in the civil suit could, in an in cam-
era inspection, examine authorization cards submitted
by the Union to determine whether any cards were
signed by Respondent’s employees. Such an accom-
modation, suggested by the Respondent, would not
prejudice the Respondent’s case.
Further, we do not agree with the judge that Bill
Johnson’s requires the Board to allow the request for
authorization cards to go forward. The Supreme Court,
at footnote 5, held that the Board has the authority to
enjoin a lawsuit “that has an objective that is illegal
under federal law.” In that situation, “the legality of the
lawsuit enjoys no special protection under Bill John-
son’s.” Teamsters Local 776 (Rite Aid), 305 NLRB
832, 834 (1991), enfd. 973 F.2d 230 (3d Cir. 1992),
cert. denied 507 U.S. 959 (1993). The Respondent’s
seeking of the names of employees who signed authori-
zation cards has an objective that is, as pointed out
above, illegal under Federal labor law. Accordingly, the
Respondent’s discovery request falls within the “illegal
objective” exception to Bill Johnson’s and enjoys no
special protection. We therefore find that the Respon-
dent violated Section 8(a)(1) by seeking discovery of
employee authorization cards.
3. Refusal to employ Lutz. The judge found that the
Respondent violated Section 8(a)(3) by refusing to hire
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1196
Louis Lutz and recommended that the Respondent be
ordered to offer him employment.3 In his decision,
however, the judge stated that the Respondent could
litigate in compliance the theory that Lutz is not entitled
to employment because his was one of a number of ap-
plications submitted by an untrustworthy source, i.e.,
the Union.4 We find merit in the General Counsel’s
exception to the judge’s statement about what can be
litigated in compliance.
Although the Respondent had already filed its lawsuit
against the Union for submitting purportedly falsified
applications, Manager of Human Resources Earl Stan-
dafer never relied on that as a reason for rejecting Lutz.
Further, the Respondent’s counsel admitted that the
alleged untrustworthiness of the Union was not “the
basis for what happened with respect to Mr. Lutz.”
Given the Respondent’s admission of this fact, we can
discern no policy reasons why the Respondent should
be allowed to litigate in compliance whether another
entity’s alleged misconduct entitles the Respondent to
avoid its obligation to remedy its discrimination against
Lutz. In short, we hold that the Respondent may not
raise in compliance the Union’s alleged untrustworthi-
ness as a referral source to foreclose its obligation to
offer Lutz employment.
ORDER
The National Labor Relations Board orders that the
Respondent, Wright Electric, Inc., Plymouth, Minne-
sota, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Seeking to obtain the identities of employees who
signed authorization cards.
(b) Refusing to hire or otherwise discriminating
against Louis John Lutz, or any other employee, be-
cause of sympathy toward, or activity on behalf of, In-
ternational Brotherhood of Electrical Workers, Local
292, AFL–CIO, or any other labor organization.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Louis John Lutz immediate employment to the position
for which he applied or, if such position no longer ex-
ists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-

3 We shall modify the judge’s recommended Order and notice to
make clear that this is a refusal to hire case. See B E & K Construction
Co., 321 NLRB 561 (1996); Casey Electric, 313 NLRB 774 (1994).
4 The Respondent argues that the Union engaged in misconduct by
submitting false employment applications; this misconduct makes the
Union an untrustworthy source of applicants; the Respondent therefore
should be allowed to reject all applicants from the Union; and thus
Lutz, an applicant referred by the Union, should not be entitled to em-
ployment.
leges, dismissing, if necessary, any employees hired to
fill the position.
(b) Make Louis John Lutz whole for any loss of earn-
ings and benefits suffered as a result of the discrimina-
tion against him in the manner set forth in the remedy
section of the judge’s decision.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful re-
fusal to hire Lutz, and within 3 days thereafter, notify
Lutz in writing that this has been done and that the re-
fusal to hire will not be used against him in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of
backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post
at its Plymouth, Minnesota facility, copies of the at-
tached notice marked “Appendix.”5 Copies of the no-
tice, on forms provided by the Regional Director for
Region 18, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since August 24, 1993.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint alle-
gations in Case 18–CA–12820 that the Respondent vio-
lated Section 8(a)(1) and (4) of the Act by initiating and
maintaining a civil suit in the District Court, Fourth
Judicial District, County of Hennepin, State of Minne-
sota, against the Union, Union Business Agent Michael
J. Priem, and employee Thomas J. Ouellette, alleging
malicious prosecution by the defendants by the filing of
an unfair labor practice charge with the Board in Case
18-CA-12542 and by filing an unemployment insurance
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

WRIGHT ELECTRIC, INC. 1197
claim with the Minnesota Department of Jobs and
Training are severed from this proceeding and re-
manded to the administrative law judge. The judge is
directed to hold those allegations in abeyance until he
receives notification that the state court has resolved the
matter pending before it. At that point, the judge can
determine, based on the state court’s action, whether the
state court suit lacked merit and, if so, whether it was
filed for a retaliatory motive.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.

WE WILL NOT seek to obtain the identities of em-
ployees who signed authorization cards.
WE WILL NOT refuse to hire, or otherwise discrimi-
nate against Louis John Lutz, or any other employee,
for supporting International Brotherhood of Electrical
Workers, Local 292, AFL–CIO, or any other labor or-
ganization.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer Louis John Lutz immediate em-
ployment to the position for which he applied or, if
such position no longer exists, to a substantially equiva-
lent position, dismissing, if necessary, any employee
hired to fill the position, without prejudice to his senior-
ity or any other rights or privileges which he would
have enjoyed had we not unlawfully refused to hire
him.
WE WILL make Louis John Lutz whole for any loss
of earnings and benefits resulting from our discrimina-
tory refusal to hire him, less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful refusal to hire Louis John Lutz, and WE
WILL, within 3 days thereafter, notify him in writing
that this has been done and that the refusal to hire him
will not be used against him in any way.

WRIGHT ELECTRIC, INC.

Pamela W. Scott, Esq., for the General Counsel.
Gregg J. Cavanagh, Esq. (Leonard, Street & Deinard), of
Minneapolis, Minnesota, for the Respondent.
Connie L. Howard, Esq. (Garber & Metcalf), of Minneapolis,
Minnesota, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Minneapolis, Minnesota, on April 23, 1996,
and the record was closed by Order of June 17, 1966. On
April 11, 1994, an amended complaint and notice of hearing
was issued by the Regional Director for Region 18 of the
National Labor Relations Board (the Board), in Case 18–CA–
12820. It alleged violations of Section 8(a)(1) and (4) of the
National Labor Relations Act (the Act), and was based on an
unfair labor practice charge filed on September 13, 1993, and
amended on February 18, 1994. An amendment to complaint
issued on August 5, 1994, deleting two paragraphs of the
amended complaint.
On October 27, 1994, the Regional Director issued a com-
plaint and notice of hearing in Case 18–CA–13193, based on
an unfair labor practice charge filed on July 13, 1994, alleg-
ing violations of Section 8(a)(1) and (3) of the Act. By order
consolidating cases issued on October 27, 1994, the Regional
Director consolidated Cases 18–CA–12820 and 18–CA–
13193.
On November 9, 1994, the Regional Director issued a
complaint and notice of hearing in Case 18–CA–13369, based
on an unfair labor practice charge filed on November 9, 1994,
alleging violations of Section 8(a)(1) of the Act. On February
27, 1996, the Regional Director issued an order further con-
solidating cases which consolidated Case 18–CA–13369 with
the already consolidated Cases 18–CA–12820 and 18–CA–
13193.
All parties have been afforded full opportunity to appear, to
introduce evidence, to examine and cross-examine witnesses,
and to file briefs. Based on the entire record, on the briefs
which were filed, and on the demeanor of the witnesses, I
reach the following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
There are essentially two aspects to this consolidated pro-
ceeding. The first arises from the employment of Thomas A.
Ouellette by Wright Electric, Inc. (the Respondent).1

1 At all material times, Respondent has been a Minnesota corpora-
tion, with an office and place of business in Plymouth, Minnesota,
engaged as an electrical contractor for residential and commercial pro-
jects. It admits that, at all material times, it has been engaged in com-
merce within the meaning of Sec. 2(2), (6), and (7) of the Act, based
upon a stipulation that it annually provides services valued in excess of
$50,000 to enterprises located in Minnesota, each of which, in turn,
either annually purchase and receive products valued in excess of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1198
Ouellette began working for Respondent on November 12,
1992, as an electrician. He was discharged on February 5,
1993, because Respondent discovered that, with regard to his
prior employment experience, Ouellette had misstated certain
facts, and had not revealed certain other facts, on his applica-
tion for employment. Ouellette did so, despite the fact that he
signed the “Agreement” portion of the application which
stated, inter alia, that he certified his answers “as true and
complete” and that he “understand[s] that false or misleading
information given in my application or interview(s) may re-
sult in discharge.”
Essentially, the application’s misstatements and nondisclo-
sures pertained to prior employment which might have re-
vealed to Respondent that Ouellette had worked for contrac-
tors with collective-bargaining relationships with Interna-
tional Brotherhood of Electrical Workers, Local 292, AFL–
CIO (the Union).2 Its business agent organizer, Michael J.
Priem, testified that he had told Ouellette, before the latter
had applied for employment with Respondent,

that if he believes that putting down a union contractor
on that application would stop him from being hired, that
maybe he should leave that union—that union contractor
off the application, if he believes—if he firmly believes
he’s going to be discriminated against or not hired, be-
cause he puts down a union firm on an application, leave
it off.

Priem testified, however, that he “didn’t know what
[Ouellette] had—what he had put on the application until later
on.”
As pointed out above, Ouellette was hired by Respondent.
He worked for it until he was discharged on February 5, 1993.
As to that event, Priem testified that he had received a tele-
phone call from Ouellette who reported that he had been
transferred to a job where there were supervisors who knew
that Ouellette had worked previously for a union contractor
and who had reported that fact to one of Respondent’s super-
visors. In consequence, Priem prepared a letter to Respon-
dent, stating that Ouellette was a union member and would
“be engaging in protected concerted activity.”
The letter was faxed during the morning, testified Priem,
and hand-delivered to Respondent. “I think I delivered it
around, approximately 1:00 in the afternoon and Tom was
beeped at about 1:30 that same day,” Priem testified. Accord-
ing to him, Ouellette responded to the beep, was told to report
to the shop, did so, and was told to turn in his truck and go
home, as there was a lack of work. Ouellette “was called back
to work about three days later,” Priem testified, “and worked
either part of the day or three-fourths of a day, whole day or
whatever and was terminated.” The Union filed a charge—
Case 18–CA–12542—but it eventually was dismissed by the
Regional Director. That dismissal was sustained on appeal to
the General Counsel. Ouellette also filed for unemployment
insurance benefits, with the Minnesota Department of Jobs
and Training, but his claim, likewise, was denied.
The foregoing facts supply background for the issues raised
in the first aspect of the instant consolidated proceeding. As

$50,000 directly from points outside of the State of Minnesota or, alter-
natively, sells and ships products valued in excess of $50,000 directly
to points outside of Minnesota.
2 At all material times, the Union has been a labor organization
within the meaning of Sec. 2(5) of the Act.
described in greater detail in subsection B below, on August
24, 1993, Respondent filed a complaint against Ouellette, the
Union, and Priem in the District Court, Fourth Judicial Dis-
trict, of the State of Minnesota. Two of that complaint’s 11
claims pertained to the charge in Case 18–CA–12542 and to
Ouellette’s claim of unemployment benefits, alleging in each
instance malicious prosecution. A motion to dismiss the com-
plaint was granted as to the malicious prosecution claims, but
was denied as to the other nine claims.
On the basis of that dismissal, the General Counsel alleges
that, with respect to each claim, Respondent had been “moti-
vated by an intent to retaliate against employees for exercis-
ing their rights under the Act.” As a result, alleges the Gen-
eral Counsel, Respondent interfered with, restrained, and
coerced employees in the exercise of rights protected by the
Act, in violation of Section 8(a)(1) of the Act, and, also, dis-
criminated against employees for filing charges or giving
testimony under the Act, in violation of Section 8(a)(4) and
(1) of the Act.
On August 24, 1993, Respondent also filed, in conjunction
with its complaint, a first request for production of documents
and, as well, a first set of interrogatories. On October 20,
1993, it filed a second request for production of documents.
All were directed to the Union, only. However, in the
amended complaint and amendment to complaint in Case 18–
CA–12820, the General Counsel alleges that Respondent
violated Section 8(a)(1) of the Act by requesting documents
and responses to interrogatories concerning: efforts to organ-
ize or “salt” Respondent or other nonunion employees; any
communications with Respondent’s employees; any authori-
zation cards received from Respondent’s employees; any
charges or complaints filed or lodged against Respondent by
the Union; information relating to Michael Johnson, Clifford
Maki, or James LeVoir, or other alleged “salts”; and, newslet-
ters or informational bulletins given to members since Janu-
ary 1, 1991, except insofar as they relate to the Union’s urg-
ing or otherwise advising members to misrepresent matters of
fact to employers. Requests for such information violate Sec-
tion 8(a)(1) of the Act, contends the General Counsel, be-
cause the information is irrelevant to the remaining state
claims made by Respondent and, further, is privileged from
disclosure to an employer under the Act.
A final element to the first aspect of this consolidated pro-
ceeding occurred over a year later. On November 4, 1994,
Respondent issued notices of taking deposition to Louis John
Lutz, Clifford Maki, and Michael Johnson. On the immedi-
ately preceding day, November 3, it issued notices of taking
depositions to certain educational institutions and employers,
seeking information concerning those three individuals. For
example, from the educational institutions, Respondent
sought such information as attendance dates, course records,
and transcripts, diplomas, and certificates for Lutz, Maki, and
Johnson. From the employers, Respondent sought such in-
formation as those three individuals’ resumes, interview re-
cords, employment history, compliance with employment
policies and procedures, employment separation, and eligibil-
ity for rehire.
The General Counsel alleges that all these notices of taking
deposition violate Section 8(a)(1) of the Act. They are unre-
lated to the claims against Ouellette, the Union, and Priem,
contends the General Counsel. Furthermore, it is argued, dis-
WRIGHT ELECTRIC, INC. 1199
covery of such information tends to interfere with Lutz, Maki,
and Johnson’s exercise of Section 7 rights.
The second aspect of this consolidated proceeding arises
from events which occurred during the late winter and spring
of 1994. Respondent’s human resources manager, Earl Stan-
dafer, testified that one of his “main guys” who performed
remodeling work—Bob Higgs—had said that his home was
up for sale and, once sold, that he intended to quit and move
to Montana. Obviously, there was no timetable for Higgs’
departure, given the fact that it was contingent upon sale of
his home. Still, Standafer sought a smooth transition from
Higgs to a replacement electrician.
To effect it, Standafer placed the following help wanted
advertisement in the Minneapolis Star Tribune during mid-
March:

ELECTRICAL JOURNEYMAN We are taking applica-
tions for an individual that would like to grow with a
well-established electrical contractor. Applicant must
have residential and remodel exp. Most projects are of a
larger nature with established general contractors. Wages
depend on experience. Please send resumes to: Box
M5579 Star Tribune, 425 Portland, Mpls. MN 55488–
0700

Priem testified that he saw it and assumed that the advertise-
ment had been placed by a nonunion contractor.
Lutz then was unemployed. After discussion of the ad with
Priem, Lutz prepared a resume. It showed that he possessed
Minnesota licenses as both a Class A Journeyman and a Class
A Master. It is undisputed that the latter is the highest ranking
license that an electrician can obtain in Minnesota. It allows
the holder to become self-employed and, also, to work for
someone who needs, but does not possess, a Master’s license.
As to work experience, Lutz recited on his resume:

Williams Electric—Commercial, Residential & Re-
model.
Commonwealth Electric—All phases of electrical
construction on Methodist Hospital, University of Min-
nesota hospital, Riverside Power Plant, AMFAC Hotel,
Nicollet Mall and IDS Tower.
Industrial Electric—All phases of electrical construc-
tion on Mount Sinai Hospital, Lock & Dam No 1, Cargill
Elevator.
Parsons Electric—All phases of electrical construc-
tion on Norwest Bank Building, Edinburgh Park, Group
Health, west Bank, Mpls, Nordstroms and Camp Snoopy,
Mega Mall, Plaza Hotel, Oppenheimer Wolf and Don-
nelly Offices.
Sterling Electric—All phases of electrical construc-
tion—NSP Main Office, Minneapolis, St. Marks Cathe-
dral—Mpls.

Lutz gave the completed resume to Priem.
Priem prepared a covering letter to “Mr. Merit Shop Con-
tractor.” Its text states, in pertinent part, that Lutz had been a
union member for over 15 years, was certified as a journey-
man by the joint Apprenticeship and Training Committee,
was willing to work on the same terms and conditions as
other qualified employees, and “that any protected activity in
which Mr. Lutz may choose to engage following his employ-
ment by you will be conducted strictly within the guidelines
established by law and the National Labor Relations Board
and will not interfere with his efficiency or productivity.”
Priem sent his letter and Lutz’ resume to the location listed in
the help wanted advertisement.
Respondent acknowledges having received them, along
with the resumes of six other individuals. None of those seven
applicants was offered employment. Instead, Respondent
hired Peter J. Abrahamson, an electrician who had not even
responded to the Star Tribune advertisement. Furthermore,
Standafer acknowledged that while he had made an effort to
contact two of the seven March 1994 applicants—Dean A.
Bartyzal and James Donald Marston—he had made no effort
whatsoever to contact Lutz.
Abrahamson began working for Respondent on Monday,
May 19, 1994. Standafer testified that Higgs had not quit
until, “I believe June or July.” The General Counsel alleges
that Respondent’s refusal to employ, or even to consider for
employment, Lutz had been unlawfully motivated by his
sponsorship by the Union and, accordingly, violated Section
8(a)(3) and (1) of the Act.
B. The Complaint Filed in Minnesota District Court
Respondent’s president, Terrance Korthof, testified that “I
made that decision” to file the state complaint against
Ouellette, the Union, and Priem on August 24, 1993. He de-
nied that he had done so as a means of retaliating against
them, because Priem was a union official, because Ouellette
was a union member, or because of involvement in lawful
union activities. Instead, Korthof testified, his sole reason for
having decided to file the suit had occurred

when the unemployment charges were brought against
us, I sat through the whole hearing listening to what was
going on and what took place there and ultimately it
ended up that it was fraudulent and we weren’t anywhere
at fault with what we had done to Mr. Ouellette and sub-
sequent to that time then there was also some NLRB
charges that were filed against us through Mr. Priem on
Mr. Ouellette’s behalf that also ended up with no merit
and the charges came, all during this process the cost of
the company was extensive, the time lost and this con-
tinually going on and on with—running up costs, had to
begin to put a stop to the actions that were taking place.

Neither the General Counsel nor the Union challenged Kor-
thof’s testimony about the costs incurred by Respondent in
connection with those proceedings.
Nor did they challenge Korthof’s testimony that, during the
unemployment hearing on March 29 and April 22, 1993,
Priem had admitted that, with regard to Michael Johnson,
“Priem had advised him of something that was false,” and,
further, “there was another individual by the name of Maki
that had [a] similar type application and then there were five
others that Mr. Priem was involved with that came in[.]” In-
deed, as set forth in subsection A above, Priem testified that
he had suggested to Ouellette that the latter could omit the
names of union contractors from his application with Respon-
dent, if Ouellette felt that their inclusion would lead to a dis-
criminatory refusal to be hired.
On the day after Respondent filed its state complaint, Ad-
ministrative Law Judge Gerald A. Wacknov’s decision issued
in Case 18–CA–12598. In it, Judge Wacknov dismissed a
complaint alleging that Respondent had refused to hire em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1200
ployees because of their activity as union informants and
activists.3
The state complaint filed by Respondent alleged certain
facts and, as noted in subsection A above, enumerated 11
claims on the basis of those alleged facts. As to those alleged
facts, Respondent’s complaint alleges generally that
Ouellette, the Union, and Priem “in concert and in furtherance
of a common purpose, engaged in all of the activities consti-
tuting the claims for relief alleged” in it.
Those factual activities, to the extent pertinent to the in-
stant proceeding, are alleged in Respondent’s complaint to be
that Ouellette had been employed to provide services under
an employment contract with Respondent; that he obtained
that employment by making representations some of which
constituted misrepresentations and, in other respects, con-
cealed certain facts about his employment history; that he had
been hired when Respondent would not have done so had it
been aware of those misrepresentations and concealments;
and, that he had been terminated once Respondent learned
about them. As to the Union and Priem, paragraph 11 of Re-
spondent’s complaint alleges as fact:

Ouellette sought employment with [Respondent], and
engaged in the misrepresentations and concealments de-
scribed above, at the request of [the Union] and Priem,
and in furtherance of their unlawful objectives. [The Un-
ion] and Priem enlisted Ouellette to engage in such mis-
representations and concealments as part of a pattern and
practice of misrepresentation and concealment.

Based on those factual allegations, the complaint claims
against only Ouellette breach of at-will employment contract,
breach of fiduciary duty and duty of loyalty, relief for recov-
ery of salary and benefits, and relief for unjust enrichment.
On the basis of each claim, Respondent contends that it in-
curred as damages “costs including, but not limited to, the
costs of hiring, orienting, and training Ouellette, the costs of
Ouellette’s salary and benefits, the costs of investigating
Ouellette’s unlawful activities, and the costs incurred in re-
placing Ouellette when he was terminated from his employ-
ment, in an amount to be proven at trial.” Under its claim for
recovery of salary and benefits, Respondent further seeks
restoration of amounts which it “furnished” to Ouellette.
The claims against Ouellette, the Union, and Priem, based
on the above-described factual allegations, are relief for
fraudulent misrepresentation, for fraudulent concealment, and
for wrongful use of property. Respondent claims that it in-
curred as damages the above-quoted costs and, as well, “is
entitled to amounts including, but not limited to, the fair
rental value of the use of [Respondent]’s physical facilities,
vehicles, and equipment, and the fair value of equipment and
supplies [Ouellette, the Union and Priem] used in connection
with the above-described activities, in an amount to be proven
at trial,” for claimed fraudulent use of its property which Re-
spondent had authorized Ouellette to use when it had em-
ployed him.
Those were not the only claims for relief enumerated in
Respondent’s complaint. Based on its alleged belief that
Ouellette, the Union, and Priem “are continuing to submit

3 The fact that I did not receive Judge Wacknov’s decision as an ex-
hibit does not preclude me from taking administrative or official notice
of it, FROE Rule 201, which I do.
employment applications containing false information to [Re-
spondent] and others,” Respondent includes a tenth claim,
seeking “a declaration that [Ouellette, the Union and Priem’s]
conduct in submitting employment applications containing
false information to [Respondent] and others is unlawful.” Its
final claim is for “an order permanently enjoining [Ouellette,
the Union, and Priem] from submitting employment applica-
tions containing false information to [Respondent] or others.”
That claim is based on the specific allegation that Respondent

will be irreparably harmed if [Ouellette, the Union and
Priem] are not permanently enjoined from submitting
employment applications containing false information to
[Respondent] and others, in that [Ouellette, the Union
and Priem] will continue to submit such applications to
[Respondent] and others, and [Respondent] will be
forced to make hiring and termination decisions with re-
spect to persons submitting false applications, and will
be subjected to continued malicious prosecutions by
[Ouellette, the Union and Priem] when it makes those
decisions.

In addition to its claims for declaratory and permanent in-
junctive relief, and for general and special damages described
above, Respondent seeks interest, attorneys’ fees and costs,
and whatever other relief is deemed “just and proper.” In a
“[PROPOSED] FIRST AMENDED COMPLAINT,” filed on
September 23, 1994, Respondent adds a prayer for punitive
damages, because Ouellette, the Union, and Priem allegedly
“acted with deliberate disregard for the rights of [Respondent]
and others” by breach of at-will employment contract; breach
of fiduciary duty and duty of loyalty; the alleged facts giving
rise to a right of recovery of salary and benefits and for unjust
enrichment; fraudulent misrepresentation; false concealment;
and, wrongful use of property. Significantly, no specific claim
for punitive damages is made in connection with either of the
malicious prosecution claims, though both are reasserted in
Respondent’s first amended complaint. By order dated Octo-
ber 20, 1994, the Honorable Harry Seymour Crump granted
Respondent’s “Motion to Amend their Complaint to add Pu-
nitive damages.”
By the time that Respondent filed its proposed first
amended complaint, both claims for malicious prosecution
had been dismissed, by order and memorandum issued by the
Honorable Stephen D. Swanson, judge of the district court, on
January 14, 1994. That order was issued in response to
Ouellette, the Union, and Priem’s motion for judgment on the
pleadings with prejudice, for failure to state a claim. That
motion had been directed to the entirety of the claims enu-
merated in Respondent’s complaint. As to the malicious
prosecution claims, Judge Swanson pointed out that, “Minne-
sota courts have not specifically addressed the question
whether a malicious prosecution claim may be based upon the
initiation of administrative proceedings.” He did not dispute
the accuracy of Respondent’s argument, and supporting cita-
tions, that courts in other jurisdictions—including the United
States Courts of Appeals for the District of Columbia, Ninth
and Tenth Circuits—have concluded that administrative pro-
ceedings, including specifically ones arising under the Act
and under unemployment compensation statutes, may provide
a basis for malicious prosecution claims.
Still, Judge Swanson concluded that the motion to dismiss
the malicious prosecution claims should be granted, and those
WRIGHT ELECTRIC, INC. 1201
claims dismissed, due to the “potential chilling effect on the
determination of an employee’s rights” which results from
unemployment benefit claims and unfair labor practice
charges. Thus, he stated, “Filing a claim with the commis-
sioner of jobs and training is the only way for an employee
who has been dismissed from his or her job to determine
whether he or she may be eligible for unemployment bene-
fits,” and, moreover, “an unfair labor practice charge is nec-
essary to give the NLRB a preliminary basis to determine
whether there is justification to investigate the charging
party’s allegation and to set the statutory machinery in mo-
tion.” (Citations omitted.)
Though well-reasoned, obviously Judge Swanson’s conclu-
sions are not beyond dispute and are not subject to disagree-
ment, as the above-mentioned contrary conclusions in other
jurisdictions show. Further, the General Counsel and the Un-
ion do not dispute Respondent’s representation that “the two
claims that have been dismissed under state law are still sub-
ject to appeal to the Court of Appeals and ultimately to the
Minnesota Supreme Court,” though not until there has been a
final judgment on Respondent’s complaint. In that respect,
apparently Minnesota follows a final judgment rule similar to
that which applies at the Federal level. See Coopers & Ly-
brand v. Livesay, 437 U.S. 463 (1978); Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541 (1949). Apparently, it is
that Minnesota rule which led Respondent to replead the ma-
licious prosecution claims in its above-mentioned first
amended complaint, filed almost 8 months after Judge Swan-
son’s order and memorandum—so that it could preserve its
record for appeal once a final judgment did issue on its com-
plaint. Consequently, as to those two malicious prosecution
claims, there has been no final judgment.
Beyond those two claims, Judge Swanson declined to dis-
miss Respondent’s remaining nine claims. A description of
his reasons is necessary to evaluate some of the General
Counsel’s allegations that Respondent violated Section
8(a)(1) of the Act, because of its discovery requests. With
respect to claims made only against Ouellette, Judge Swanson
pointed out that Minnesota courts have “imposed a duty of
honesty and faithfulness” as an implied condition in employ-
ment contracts and “that dishonesty on the part of the em-
ployee may constitute a breach of the employment contract.”
As a result, though he viewed the claim for breach of fiduci-
ary duty and duty of loyalty, as well as the claim for recovery
of salary and benefits, as “subsumed in the breach of contract
claim,” Judge Swanson concluded that, “Sufficient issues of
fact have been raised by the pleading as to [that] claim,” and
he declined to dismiss the first three claims against Ouellette.
Moreover, he concluded that Respondent “has sufficiently set
forth a claim for relief for fraud,” which supports a claim for
unjust enrichment, because “an unjust enrichment claim may
be based on a claim for fraud[.]”
Similarly, Judge Swanson concluded that as the complaint
pleads all elements of a fraud claim, and as Respondent al-
leges that Ouellette, the Union, and Priem “knowingly made a
misrepresentation on which [Respondent] relied to [its] det-
riment,” the motion to dismiss the fraudulent misrepresenta-
tion and fraudulent concealment claims should be denied:
“Because it is possible for [Respondent] to submit additional
evidence consistent with the fraud theory contained in the
pleading. . . .” Moreover, because “it is possible to introduce
facts consistent with the pleading to show that Ouellette used
[Respondent]’s personalty for purposes beyond the scope of
his employment,” Judge Swanson denied the motion to dis-
miss the claim for wrongful use of Respondent’s property.
With regard to the motion to dismiss Respondent’s claim
for declaratory relief, Judge Swanson stated that Minnesota
courts possess “the power to grant a declaratory judgment in
any situation where the judgment or decree will terminate the
controversy or remove an uncertainty.” (Citation omitted.)
Having concluded that a controversy exists, he continued

[Respondent] alleges that [the Union] has encouraged a
number of applicants to misrepresent their work history
in order to obtain employment at [Respondent]. Giving
[Respondent] the benefit of the doubt, it is possible to
present evidence to support this claim. If this claim can
be proven, a declaratory judgment could terminate any
remaining controversy; therefore, a motion for dismissal
for failure to state a claim cannot be sustained.

As to Respondent’s claim for injunctive relief, he stated that
dismissal would be inappropriate, because such a claim “is a
remedy, the applicability of which cannot be determined until
a motion for relief is made or the underlying cause of action
has been resolved.” In sum, dismissal of Respondent’s mali-
cious prosecution claims did not foreclose claims for relief
based upon the Union’s alleged conduct in conjunction with
employees whom it assertedly acted in concert.
Those other claims—or, at least, some of them—provide
the basis for Respondent’s defense to its discovery requests.
Asked why Respondent had made those requests, Korthof
denied that they had been motivated by any reason other than
“to further get information so that we could pursue in [sic]
our civil matter and to find out what was going on.” He de-
nied specifically that those requests had been made to retali-
ate against Ouellette, the Union, or Priem, and, moreover,
because of anyone’s union membership or activities.
It divulges no secret of the profession to point out that or-
dinarily it is counsel, not client, who determines the need for
and extent of discovery which is undertaken. Both the Gen-
eral Counsel and Respondent point, in their briefs, to
Minn.R.Civ. Rule 26.02(a) which accords parties discovery of
“any matter, not privileged, which is relevant to the subject
matter involved in the pending action,” and which continues,
“It is not ground for objection that the information sought will
be inadmissible at the trial if that information appears rea-
sonably calculated to lead to the discovery of admissible evi-
dence.” In fact, that is an approach which is not significantly
different, if any difference exists at all, from the one followed
by the Board in evaluating petitions to revoke subpoenas is-
sued during its formal proceedings.
In his brief on behalf of Respondent, counsel represents
that his 1993 requests for production of documents is relevant
to such state court factual allegations and issues as existence
and extent of any agency relationship between Ouellette, on
the one hand, and the Union and Priem, on the other; extent to
which Ouellette’s employment application misrepresentations
and concealments were part of a pattern of fraud; extent to
which Ouellette, the Union, and Priem were truly concerned
with organizing Respondent’s employees or, instead, were
actually engaged in a predatory effort aimed at driving up
Respondent’s costs and putting it out of business, through
such devices as specious unfair labor practice charges and
baseless unemployment compensation claims; extent to which
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1202
fraudulent activity aimed at Respondent had been part of a
broader scheme to defraud it and other employers, as well;
and, extent to which other employees were being enlisted to
file with Respondent and others employment applications
which misrepresented some facts and concealed others. Simi-
lar purposes had motivated Respondent’s late 1994 deposition
requests, represented Respondent’s counsel.
C. Refusal to Consider Employing Lutz
It is axiomatic that, in analyzing discrimination allegations,
actual motive is the ultimate determination which must be
made. See, e.g., Concepts & Designs, 318 NLRB 948, 950
(1995), and cases cited therein. Human Resources Manager
Standafer testified that, on his own and without having con-
sulted with anyone else, he had made the decision not to con-
tact Lutz, after having received the latter’s resume and
Priem’s covering letter stating that Lutz was applying for
employment in response to the Star Tribune help wanted ad.
Called as a witness during the General Counsel’s case-in-
chief, Standafer was asked to explain why he had not con-
tacted Lutz, upon having received his resume. He answered:

I was looking for a residential—someone with some
residential and remodelexperience and although Mr. Lutz
has a—quite a history of jobs, the only residential history
that he had listed was with Williams Electric which had
been out of business for some time at the time of the ap-
plication. And the remainder of his work had all been ei-
ther industrial or commercial.

Before being excused as a witness at that point, Standafer
repeated that explanation:

Because his work history at the—the only residential that
he had listed was for Williams Electric which had been
out of business for a few years at least at the time of the
application and substantial work that he performed while
impressive was all in commercial and industrial and I
was looking for a residential electrician at the time.

In the course of advancing those explanations, Standafer
denied that there had been any reason for not contacting Lutz,
other than the latter’s lack of recent residential and remodel
experience. However, Standafer effectively contradicted that
denial when he appeared as a witness during Respondent’s
case-in-chief. At that point, he added another reason for not
having contacted Lutz:

Other than those already stated, was [sic] there was one
other thing and that was with his last stated rate of pay,
even though it said that he would be willing to work for
whatever wages were offered, it has been my experience
in this field that when you offer someone that much less
to do a job, generally they only use it long enough until
they can find another job that pays what they were mak-
ing and would—and at that time would generally take
that job and leave you without an employee, so you have
to start this whole process over again.

Not only was Standafer’s testimony internally contradic-
tory when he appeared as Respondent’s witness, when com-
pared with his denial when he earlier appeared as a witness
during the General Counsel’s case-in-chief. There were other
aspects of his testimony which tended to contradict his own
above-quoted explanation for having disregarded the applica-
tion for Lutz. As pointed out in subsection A above, a total of
seven resumes were received in response to the Star Tribune
advertisement. It is undisputed that the one of Dean A. Bar-
tyzal did show residential experience. But, when he contacted
Bartyzal, Standafer discovered that Bartyzal sought only part-
time employment.
Standafer also made effort—unsuccessfully, as it turned
out—to contact James Donald Marston. Yet, in his resume,
under “Work Experience,” Marston had recited:

West Star Electric
6336 Lake Land Avenue North
Brooklyn Park, Minnesota
(612) 537–0807
Duties: Residential, Commercial, Remodel Wiring
Position: Apprentice
June 19, 1989—September 30, 1989

Mueller and Pribyl Utilities
Highway 55
Hamel, Minnesota
Position: Laborer
May, 1988—September, 1988

Devac, Incorporated
Plymouth, Minnesota 55411
Position: Shipping and Receiving
June, 1986—November, 1986

School District #877
Buffalo, Minnesota 55313
Position: 7th Grade Baseball Coach
Spring of 1983

Dickson Construction
Buffalo, Minnesota 55313
Position: Carpenter
Summers of 1981 and 1982

Obviously, that recitation does not show that Marston had
performed residential or remodel work—or any other electri-
cian’s work, for that matter—for over 4 years before having
submitted his resume to Respondent.
Furthermore, the lone electrician’s job which Marston re-
cited having performed was work which he had performed as
an apprentice, not as a journeyman. Next to those resume
entries, Marston had handwritten that he received his Class A
Journeyman’s License on March 2, 1994—but a few days
before having submitted his resume to Respondent. That
hardly shows significant experience having actually worked
as a journeyman electrician. Nevertheless, Standafer con-
ceded that he had attempted to contact Marston about em-
ployment with Respondent.
In an effort to explain his contrasting disregard of Lutz’ re-
sume, Standafer testified:

[T]he fact that [Marston’s] most recent work history that
he has on here was with West Star Electric who does
probably 50/50 residential commercial, maybe a little
heavier in the residential and it was dated in ‘89 which
was about a five year gap there I guess from 89 to 94 and
then right beside it he had “received my Class A jour-
neyman’s license March 2 of ‘94” and I was just wonder-
ing if he had been with West Star that entire time or
where he had been for that matter.

WRIGHT ELECTRIC, INC. 1203
That explanation, however, gives rise to two other inconsis-
tencies in Standafer’s testimony.
First, if “from 89 to 94” Marston “had been with West Star
that entire time,” that would mean that he had misrepresented
on his resume his employment history with that firm. For, the
resume states explicitly, “June 19, 1989—September 30,
1989.” And, as set forth in subsection B above, misrepresen-
tation of employment history had been one of the claims that
Respondent included in its state complaint against Ouellette,
the Union, and Priem. Standafer never explained why he
would have gone to the trouble to try contacting an applicant
who, seemingly, might have misrepresented his employment
history, at the very time that Respondent was suing a former
employee for having done the same thing.
Conversely, if Marston “had been for that matter” working
for someone other than West Star “from 89 to 94,” that would
mean that he failed to disclose—in effect, concealed—his
most recent “Work Experience.” Again, concealment was the
basis for another of Respondent’s claims in its state complaint
against Ouellette, the Union, and Priem. In light of that
particular claim, Standafer never explained why he had tried
to contact Marston to ascertain if the latter had omitted recent
past employment from his resume.
Second, there is no evidence as to precisely when Williams
Electric—for which Lutz’ resume shows that he had per-
formed, inter alia, “Residential & Remodel” electrical work—
had gone out of business.4 Thus, as quoted above, Standafer
testified generally that it had been “for some time at the time
of [Lutz’] application” and, elsewhere, “for a few years at
least at the time of the application[.]” At no point did Standa-
fer testify, nor is there any other evidence, that Williams
Electric had been out of business prior to September 30, 1989,
when Marston’s resume recites that he had ceased working
for West Star Electric. Accordingly, had he truly believed that
Marston’s resume warranted a followup call, Standafer never
explained why he had not similarly believed that Lutz’ re-
sume likewise warranted such a call. Seemingly, the reason-
ing which assertedly warranted the call to the one also would
have warranted a call to the other applicant.
Beyond the foregoing considerations, as set forth in subsec-
tion A above, Respondent eventually did hire Peter J. Abra-
hamson to fill the vacancy which would be created by the
anticipated departure of Higgs. However, examination of
Abrahamson’s application for employment reveals that, under
“Work Experience,” he had set forth nothing about having
performed residential or remodel electrician’s work. His most
recent employment had been from September 1990 to April
14, 1994, with City View Electric. There, Abrahamson recited
in this application, he had “started as apprentice then obtained
License and ran small commercial jobs.” The only other elec-
trician’s work which he lists is when he had worked as an
apprentice electrician for Pete’s Repair Inc., from June 1989
to September 1990. Before that he had picked up and deliv-
ered trucks, washed and fueled trucks, and run a parts plow
during the winters for almost 2 years, while employed by
Penske Truck Leasing.

4 In its brief, Respondent appears to attempt to correct that omission
by stating as fact that “Williams Electric had gone out of business in
the mid-1980’s [sic].” I reject that attempt to, in effect, add to the evi-
dence presented during the hearing.
Standafer did testify that, when he had “talked to [Abra-
hamson] when he stopped in to fill out his application,”
Abrahamson “told me that he had been working for—I be-
lieve it was City View—well he was laid off currently but his
last employer had been City View Electric and that he had
had some residential and probably more of a commercial with
City View[.]” Yet, that asserted explanation is not corrobo-
rated by what Abrahamson had written on his application.
Furthermore, Abrahamson never appeared as a witness to
corroborate that testimony by Standafer, though there was
neither testimony nor representation that Abrahamson was
unavailable to Respondent as a witness. Moreover, that ex-
planation by Standafer hardly supplies the dates of Abraham-
son’s employment with City View and, beyond that, it hardly
reveals how much supposed residential electrician’s work
Abrahamson had assertedly performed for City View.
Respondent makes much of the difference between residen-
tial and commercial electricians’ work. For example, Standa-
fer testified “you can have a real good commercial electrician
who cannot perform even though he’s very good at commer-
cial, cannot perform residential and vice versa,” without pass-
ing through “a long learning curve in a lot of cases.” To sup-
port that conclusionary testimony, Standafer explained that
while on commercial jobs electricians have only to run con-
duit and hang light fixtures, and to deal only with project
foremen, but on residential jobs they deal with homeowners
and so, “have to be good at a general rapport with [sic] more
of a people person,” as well as being “able to perform more
tasks on a daily routine because the jobs are of a shorter na-
ture[.]” The latter factors are compounded on remodel jobs,
testified Standafer, because electricians also have to be able
to “work[] around a home owners [sic] possessions . . . with-
out destroying everything” when installing fixtures.
In his description of having interviewed Abrahamson,
however, Standafer never explained with particularity what
had been said that supposedly allowed him to conclude that
Abrahamson would be able to satisfy the above-described
residential and remodel requirements. To the contrary, Stan-
dafer’s description of his interview with Abrahamson dis-
played a rather casual attitude concerning the latter’s qualifi-
cations: “we discussed the job that I was—I had intended for
him to be hired for and he was comfortable with doing that
work,” and, elsewhere, “we discussed the residential and the
jobs and just the general interview, I got a good feeling, good
comfort level with Mr. Abrahamson and therefore offered him
an offer of employment.” At no point did Standafer describe
any inquiry of Abrahamson that would have revealed to Stan-
dafer any more recent residential or remodel experience than
was disclosed by Lutz’s resume. In fact, Standafer’s descrip-
tion of the interview, as well as Abrahamson’s application for
employment, provide no basis whatsoever for concluding that
Abrahamson had told Standafer about any residential or re-
model experience as a journeyman electrician.
Beyond that, had Standafer but spoken with Lutz, there is
no basis for concluding that the latter would not also have
been “comfortable with doing [Respondent’s projected]
work.” Nor is there any basis for concluding that, had he con-
tacted and spoken with Lutz during March 1994, Standafer
would not have arrived at “a good feeling, good comfort level
with Mr. Lutz.” In other words, not only does Standafer’s
description of a relatively brief and summary interview with
Abrahamson not reveal any particular effort to ascertain the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1204
extent of the latter’s recent residential and remodel experi-
ence, thereby tending to contradict Standafer’s assertions of
concern about the ability of a commercially-experienced elec-
trician’s ability to perform residential and remodel work. It
also displays an inconsistent approach to Lutz and Abraham-
son as applicants. The only difference between those two
applicants, so far as the record shows, is that Lutz’ applica-
tion had been submitted by the Union, while that of Abraham-
son had not.
Standafer’s supposed concern with recent residential and
remodel experience tends further to be contradicted by the
actual work assigned to Abrahamson after he had started
working for Respondent on May 9, 1994. At that time,
Higgs—the employee whom Abrahamson had been hired to
eventually replace—still was working for Respondent, his
departure for Montana being contingent upon sale of his Min-
nesota home. There is no evidence that prospects for such a
sale had been any better during May 1994 than had been the
situation when he earlier had notified Respondent of his
plans. In fact, Higgs continued working for Respondent until
“I believe June or July,” testified Standafer. Thus, it is not
surprising that residential and remodel work continued to be
assigned to Higgs. Still, that situation left Respondent with a
need to locate work for Abrahamson.
During his first month of employment by Respondent—
from May 9 through June 8, 1994—Abrahamson performed
predominately commercial electrical work, the same type of
work which Lutz was qualified to perform. Respondent’s
records show that Abrahamson worked only 7 days (on May 9
and 31, and on June 1, 2, 3, 6 and 7, 1994) on residential pro-
jects, while he worked 15 days (on May 10 through 13, 16
through 20, and 23 through 27, and on June 8, 1994) on
commercial projects, virtually a two to one ratio.
To be sure, after June 8 Abrahamson began performing an
increased amount of residential work. That may reflect the
departure of Higgs. For, Standafer claimed that after Higgs
had left, Abrahamson was “changed to strictly residential.”
But, that claim was not true, as shown by Respondent’s own
records. From June 9 through August 19, the last day for
which records were introduced, Abrahamson performed resi-
dential work for 24 full workdays,5 plus 4 hours on June 16,
6.5 hours on June 24, 1 hour on July 22, 5–1/2 hours on Au-
gust 4, 7 hours on August 12, and 5 hours on Saturday, Au-
gust 13, 1994. However, he worked a total of 21 full days
doing commercial electrician’s work during that same pe-
riod,6 plus 4 hours on June 16, 1.5 hours on June 24, 7 hours
on July 22, 2–1/2 hours on August 4, and 1 hour on August
12, 1994. Certainly, those comparative figures do not support
Standafer’s testimony that Abrahamson had performed
“strictly residential” electrician’s work after Higgs had quit.
Indeed, had Higgs actually quit during July 1994, that had
been a month during which Abrahamson performed 13 full
days of commercial work and merely 4 full days of residential
work, while working 7 hours of commercial work on July 22
and only 1 hour of residential work on that day.
When he testified, it did not seem to me that Standafer was
being candid. That impression is confirmed by the foregoing

5 On June 17, 20 through 23, and 27 through 30, on July 7 and 18
through 20, and on August 3, 5, 8 through 11, and 15 through 19, 1994.
6 On June 9, 10, 13 through 15, and 10.5 hours on Saturday, June 11,
on July 6, 8, 11 through 15, 21, and 25 through 29, and on August 1
and 2, 1994.
review of the record of his testimony and of other evidence. I
do not credit Standafer. Of course, as will be seen in section
II, infra, standing alone that does not resolve the allegation of
unlawful motivation for Respondent’s refusal to consider
Lutz for employment.
II. DISCUSSION
A. The State Complaint and Discovery Requests
Arising During It
The General Counsel encounters a threshold problem with
respect to the allegations concerning Respondent’s malicious
prosecution claims: There has been no final disposition of
those claims.
The Supreme Court has held that “the Board may not halt
the prosecution of a state-court lawsuit, regardless of the
plaintiff’s motive, unless the suit lacks a reasonable basis in
fact of law.” Bill Johnson’s Restaurants v. NLRB, 461 U.S.
731, 748 (1983). Here, the Minnesota District Court dis-
missed the malicious prosecution claims. But, in applying the
holding of Bill Johnson’s, the Board has taken, and must take,
into account not solely an initial determination, but, as well,
whether or not a right of appeal exists and, further, whether or
not that appeal right has been exhausted or waived. Phoenix
Newspapers, 294 NLRB 47, 49 (1989) (“Summary judgment
in favor of the union defendants has been entered and the
Respondent has waived any right to appeal that judgment.”);
Summitville Tiles, 300 NLRB 64, 65 (1990) (“the state appel-
late court affirmed the lower court’s granting of summary
judgment.”) Not until there has been a final adjudication can
the Board proceed to evaluation of the lawsuit and of the mo-
tivation for it.
Respondent has not waived, or otherwise abandoned, its
right to appeal Judge Swanson’s dismissal of the malicious
prosecution claims. To be sure, it has not yet appealed that
dismissal. As pointed out in section I.B above, however, no
one disputed Respondent’s argument that it cannot do so—
cannot seek interlocutory or interim relief—until there is a
final judgment of the state complaint. Since dismissal of Re-
spondent’s other claims was denied, and the state proceeding
remains viable, there has been no final judgment. Thus, ap-
peal cannot now be taken of the malicious prosecution
claims’ dismissal. Nevertheless, Respondent has preserved its
record of those claims for appeal, as shown, for example, by
the fact that it renewed those malicious prosecution claims in
its first amended complaint, filed over 8 months after Judge
Swanson’s order and memorandum.
Were I to conclude that a violation occurred and to issue
the remedial order sought by the General Counsel, and were
the Board to uphold those actions, Respondent would be ef-
fectively prevented from appealing dismissal of the malicious
prosecution claims. For, in the brief, the General Counsel
proposes an order requiring, inter alia, “that Respondent cease
and desist from: initiating and maintaining civil suits against
its employees, the Union or the Union’s representatives alleg-
ing malicious prosecution on account of their having filed
charges with the NLRB or unemployment compensation pro-
ceedings[.]” Obviously, eventual appeal from dismissal of the
malicious prosecution claims would constitute maintenance of
a civil suit and Respondent would be prevented from taking
such an appeal by the proposed remedial order.
WRIGHT ELECTRIC, INC. 1205
Such a remedy could be imposed were there a basis for
concluding that Respondent’s malicious prosecution claims
“lack[] a reasonable basis in fact or law.” Bill Johnson’s Res-
taurants, supra. Such a conclusion is not possible in the cir-
cumstances presented here, however. Those claims were dis-
missed because there is no precedent in Minnesota for basing
malicious prosecution claims upon initiation of administrative
proceedings. In other words, Respondent is asserting novel
theories to support claims for malicious prosecution.
Historically, novel legal theories have been one vehicle by
which the law changes, sometimes expanding and, other
times, contracting. No one contends that Minnesota statutes
preclude a malicious prosecution cause of action based on
administrative proceedings. Nor, as Judge Swanson pointed
out, has there been such a holding by Minnesota’s highest
court.
Conversely, Respondent has pointed to holdings in other
jurisdictions which, at least arguably, allow malicious prose-
cution claims to be based upon administrative proceedings. In
consequence, there is no basis for concluding that Respon-
dent’s novel theory is unreasonable—that there is no “realistic
chance that [Respondent]’s legal theory might be adopted.”
Bill Johnson’s Restaurants v. NLRB, supra 461 U.S. at 747.
In light of the foregoing considerations, there is no basis
for enjoining Respondent from eventually appealing the state
district court’s order of January 14, 1994, at the appropriate
time. Instead, “the Board must await the results of the state-
court adjudication with respect to the merits of the state-court
adjudication with respect to the merits of the state suit” for
malicious prosecution. Id. At 749. Therefore, I shall dismiss
the allegations that Respondent violated Section 8(a)(1) and
(4) of the Act by filing malicious prosecution claims based on
the charge in Case 18–CA–12542 and on Ouellette’s claim for
unemployment insurance benefits.
As to the discovery requests, in light of the Supreme
Court’s holding in Bill Johnson’s Restaurants, it is not possi-
ble to locate an independent basis under the Act for enjoining
Respondent from seeking the requested information in the
course of the state proceeding. Even though two claims have
been dismissed, many others in it remain viable. There is
neither allegation nor argument that any one of those claims
“lack a reasonable basis in fact or law.” Id. at 748. Indeed,
were such an allegation or argument to exist, it would not be
possible to conclude that there is merit to it, given the reason-
ing of Judge Swanson’s denial of the motion for judgment on
the pleadings with respect to those other claims.
The General Counsel argues that the information specified
in the unfair labor practice allegations is not “relevant to
Ouellette’s misrepresentations or the involvement of the Un-
ion (or Union Representative Priem) in making those repre-
sentations.” At no point, however, has Respondent asserted,
or even indicated, that its requests for documents, interrogato-
ries, and depositions are confined to seeking information only
in connection with its claims for malicious prosecution. To
the contrary, as set forth in section I.B above, Respondent’s
counsel has specified a litany of reasons as to how the infor-
mation sought might support other claims in the state com-
plaint.
Relevance, of course, has developed into an extremely
broad concept, as illustrated, for example, by FROE Rule
401: “evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the
action more probable or less probable than it would be with-
out the evidence.” As pointed out in the Advisory Commit-
tee’s note to that Rule, “The variety of relevancy problems is
coextensive with the ingenuity of counsel in using circum-
stantial evidence as a means of proof,” with the result that
relevancy “exists only as a relation between an item of evi-
dence and a matter properly provable in the case.”
Inasmuch as relevance is determined by the relationship of
what is sought to what is to be proved, lack of relevancy
claims must be evaluated on the basis of Minnesota law re-
garding the still viable claims in Respondent’s complaint. As
to such an evaluation, however, the Board already has held
that it will not make efforts to determine the merits of suits
arising under state law. “Our expertise lies in resolving labor
law questions that arise under the Act, rather than deciding
claims that arise under state law.” (Fn. omitted.) Bill John-
son’s Restaurant, 290 NLRB 29, 32 (1988).
Beyond that, it seems unlikely that the Supreme Court’s di-
rection to the Board—to allow genuine state law factual and
legal issues to be decided by state courts—contemplated al-
lowing the Board to analyze the parties’ efforts to present
evidence in state proceedings and, then, to make an independ-
ent determination as to whether specific items can or cannot
be presented, or even discovered, during those state proceed-
ings. Such micro-management of state litigation effectively
would undermine the general holding that “the Board should
proceed no further with the [Section]8(a)(1)-[Section] 8(a)(4)
unfair labor practice proceedings but should stay those pro-
ceedings until the state-court suit has been concluded.” (Fn.
omitted.) Bill Johnson’s Restaurants v. NLRB, supra at 746.
Indeed, long before that case was decided, the United States
Court of Appeals for the Eighth Circuit—within the jurisdic-
tion of which this case arises—rejected such an approach.
NLRB v. Katz Drug Co., 207 F.2d 168, 171–172 (1953).
The subject matter sought by Respondent’s discovery are
ones which, for the most part, it could not obtain in the course
of a hearing before the Board. Yet, that shows no more than a
difference in “relation between an item of evidence and a
matter properly provable in [a] case” arising under the Act, as
the Advisory Committee pointed out. Rules governing litiga-
tion under the Act cannot serve as a device for overriding
First Amendment and compelling state interests which the
Supreme Court already has held outweigh the inherently co-
ercive and retaliatory effects of state lawsuits. Id. at 740–741.
A contrary conclusion would eviscerate the holding of that
case, by allowing through indirection a result—control of
state litigation—which the Court has barred from being exer-
cised by direction.
It should be pointed out that, in the malicious prosecution
portion of his memorandum, Judge Swanson certainly dis-
played sensitivity concerning the position and rights of em-
ployees. That, of course, is precisely what the Supreme Court
contemplated. Further, as Respondent points out in its brief,
state courts possess ample powers—as, for example, protec-
tive orders—to minimize potential risk to employees which,
otherwise, might arise as a consequence of discovery.
In sum, there is no basis on which to enjoin Respondent
from discovering—through requests for documents, interroga-
tories and depositions—information which may tend to be of
consequence to determination of its surviving state claims. In
that respect, Respondent’s position is parallel, if not identical,
to that of a bargaining agent seeking information to discover
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1206
if there is a basis for pursuing a grievance. See, e.g., NLRB v.
Acme Industrial Co., 385 U.S. 432 (1967); Shoppers Food
Warehouse, 315 NLRB 258, 259–260 (1994). Therefore, I
shall dismiss the allegations that Respondent violated Section
8(a)(1) of the Act because of its discovery requests.
B. Refusal to Consider Lutz for Employment
There is no dispute that Louis John Lutz, during March of
1994, had been a member of the Union and, further, that Respon-
dent had known that Lutz was sympathetic toward the Union.
Priem’s covering letter disclosed as much to Respondent.
In that letter, Priem pointed out that Lutz “may choose to
engage” in protected activity “strictly within the guidelines
established by law and the National Labor Relations
Board[.]” Respondent denies that the prospect of such activ-
ity, and Lutz’ generally disclosed relationship with the Union,
had motivated the decision not to consider Lutz for employ-
ment and to hire him. Yet, as concluded in section I.C above,
the official who had made that decision—Human Resources
Manager Standafer—was not a credible witness. Thus, I do
not credit his assertion that he had disregarded Lutz’ applica-
tion because the latter’s resume showed no recent residential
and remodel experience.
Nor do I credit Standafer’s added assertion that he had
feared that Lutz would work for Respondent only until he
could locate a higher-paying commercial electrician’s job.
After all, such a fear could have been no less applicable to
Abrahamson. His application for employment revealed only
commercial work as a journeyman. Standafer advanced no
testimony which would show that, during the employment
interview, Abrahamson had said anything which Standafer
could have construed as a promise to remain with Respon-
dent, rather than seek commercial electrician’s employment
elsewhere. Indeed, so far as Standafer’s testimony shows, this
supposedly important consideration had not even been men-
tioned during the employment interview with Abrahamson.
Ordinarily animus, or unlawful intent, is shown by an em-
ployer’s unlawful statements and, sometimes, by other unlaw-
ful actions. See, e.g., NLRB v. Clinton Packing Co., 468 F.2d
953, 954 (8th Cir. 1972); NLRB v. Superior Sales, 366 F.2d
229, 233 (8th Cir. 1966). Still, the absence of such direct evi-
dence of animus or unlawful intent is not fatal to an allegation
of discriminatory motivation. “Even without direct evidence,
the Board may infer animus from all the circumstances.” (Ci-
tations omitted.) Electronic Data Systems, 305 NLRB 219,
219 (1991). Just as the existence of unlawful statements and
other unlawful conduct, of itself, does not mandate a conclu-
sion of discriminatory motivation with regard to a specific
allegedly unlawful action, see, e.g., Florida Steel Corp. v.
NLRB, 587 F.2d 735, 744 (5th Cir. 1979); NLRB v. Speed
Queen, 469 F.2d 189, 194 (8th Cir. 1972); Graham Architec-
tural Products Corp., 259 NLRB 1174 fn. 2 (1982), so, also,
absence of other unlawful conduct, of itself, does not preclude
a conclusion that a particular action has been motivated by
animus or hostility toward union sympathy or support. Auto-
Truck Federal Credit Union, 232 NLRB 1024, 1027 (1977),
and cases cited in footnote 4.
Several factors present here provide objective indicia of
discriminatory motivation. First, had Lutz been hired, he
would have been the lone activist on behalf of the Union, so
far as the record discloses, then employed by Respondent. In
the context of an allegedly unlawful discharge, the fact that
the alleged discriminatee is a union activist “can give rise to
an inference of violative discrimination.” NLRB v. First Na-
tional Bank of Pueblo, 623 F.2d 686, 692 (10th Cir. 1980).
See also, Handicabs, Inc., 318 NLRB 890, 897 (1995), enfd.
by Opinion No. 95–3352 of the United States Court of Ap-
peals for the Eighth Circuit on September 11, 1996, see slip
op. at 8. So, also, is animus evidenced by discharge of a lead-
ing union adherent. See NLRB v. Ri-Del Tool Mfg. Co., 486
F.2d 1406 (7th Cir. 1973). Parallel reasoning dictates a con-
clusion that animus likewise is evidenced by refusal to con-
sider for hire a known union adherent where, as here, there is
no evidence that a respondent then employed any other union
activists or, for that matter, sympathizers.
Second, Standafer’s explanation for failing to consider
Lutz for employment not only was not advanced credibly. His
asserted reasons were contradicted by his own admitted ac-
tions in connection with his procedure for hiring an electri-
cian to eventually replace Higgs. Thus, though he made no
effort whatsoever to contact Lutz, he did try to contact an-
other applicant, Marston, whose resume showed no residential
or remodel experience, so far as the evidence reveals, more
recent than that shown on Lutz’ resume. Moreover, inasmuch
as Marston’s resume stated that he had not received a Class A
Journeyman’s License until March 2, 1994—a few days be-
fore having submitted that resume to Respondent—Marston’s
1989 residential and remodel wiring experience obviously had
not been as a journeyman—at least, not from the face of the
resume. In contrast, of course, Lutz possessed not merely a
journeyman’s license, but also a Class A Master license.
Another inconsistency arose in connection with Abraham-
son’s application for employment. As pointed out in section
I.C above, it showed that his only experience as a journeyman
electrician had been when he “ran small commercial jobs” for
City View Electric from September 1990 to April 19, 1994.
No residential or remodel experience whatsoever—either as
apprentice or journeyman—is revealed by that application.
Nor did Standafer testify with particularity about any such
experience being disclosed during his preemployment inter-
view with Abrahamson. Nevertheless, Respondent hired him.
Furthermore, if concern existed with past commercial em-
ployment leading a successful applicant to work for Respon-
dent only until a commercial job could be located, as Standa-
fer claimed, then surely such a concern was no less applicable
to Abrahamson than to Lutz.
In sum, the evidence shows that Respondent had followed
inconsistent paths in considering the resume of Lutz, on the
one hand, and those of Marston and Abrahamson, on the
other. So far as the record discloses, the only significant dif-
ference had been that the application for Lutz had been made
by the Union, thereby revealing to Respondent not only that
Lutz was one of the Union’s supporters, but that he likely
would engage in organizing activity once employed by Re-
spondent. In contrast, Respondent had no basis for believing
that the Union had sponsored the applications of Marston and
Abrahamson. To the contrary, so far as the evidence shows,
Respondent had no reason to believe that either man was even
sympathetic toward the Union.
Third, at the time of Lutz’ application, Respondent was
maintaining a lawsuit against, among others, the Union. Such
conduct would hardly dispose an employer to view with favor
an applicant whose resume had been submitted by the very
labor organization which was being sued by that employer.
WRIGHT ELECTRIC, INC. 1207
As discussed below, Respondent takes the position that, as
a matter of law, it should not be obliged to accept referrals
from the Union because of prior falsified applications submit-
ted by it and its supporters. However, there is no evidence
that Standafer had been aware of that position when evaluat-
ing Lutz’ resume. Standafer never claimed that he had relied
upon such a policy when discarding Lutz’ resume. Nor did he
claim that he had doubted the veracity of any information
appearing on that resume. Further, Respondent’s counsel
conceded that Respondent was not claiming that its legal
position on not being obliged to accept union-affiliated
applications had been “the basis for what happened with
respect to Mr. Lutz,” inasmuch as “Mr. Standafer has testified
to” his reasons for rejecting Lutz’ application.
g.
Finally, that Standafer failed to advance a credible reason
for not considering Lutz for employment is, itself, a factor
tending to show that Respondent’s true reason had been an
unlawful one. Shattuck Denn Mining Co. v. NLRB, 362 F.2d
466, 470 (9th Cir. 1966). “If one can show that every other
alternative except the fact sought to be proved is not true, you
indirectly prove the fact is true.” NLRB v. Melrose Processing
Co., 351 F.2d 693, 698 (8th Cir. 1965). Here, to explain why
Lutz had not been contacted for employment with Respon-
dent, Standafer advanced reasons which were not credible.
Consequently, those alternative reasons were not the true ones
which motivated Standafer. That conclusion, in the context of
the foregoing considerations, considered collectively, estab-
lish that Respondent harbored animus or unlawful intent to-
ward the Union and its supporters.
Beyond that, the absence of credible legitimate reasons for re-
fusing to consider Lutz for employment and the totality of those
foregoing considerations, as well as of other ones discussed in
section I.C, supra, establish that Respondent’s true motive for
failing to hire Lutz had been his disclosed relationship with the
Union. He had been more qualified for the opening than Marston
and Abrahamson. Respondent rejected the application filed on
his behalf. The only difference between his situation and that of
Marston and Abrahamson had been that the latter two applicants
were not revealed adherrents of the Union, as had been Lutz.
Therefore, a preponderance of the credible evidence establishes
that Respondent violated Section 8(a)(3) and (1) of the Act by not
hiring Lutz. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
Such a violation usually warrants issuance of, inter alia, a
reinstatement order. As pointed out above, however, Respon-
dent contends that, as a matter of law, it is entitled to reject
any applicant referred by the Union, because the Union has
demonstrated that it is “a referral source that had proven itself
to be inherently untrustworthy.” Yet, as also pointed out
above, there is no evidence of falsified information in Lutz’
resume. And, in any event, Respondent admits that purported
inherent untrustworthiness of the Union’s referrals had not
been even one reason for rejecting Lutz for employment.
Still, those facts would not necessarily preclude Respon-
dent from arguing that it should not have to reinstate Lutz
because his had been one of a number applications submitted
over the years by a source of proven untrustworthiness. I
barred such evidence because the issue posed by the com-
plaint in Case 18–CA–13193 is whether liability exists—
whether unlawful motivation had been present. Had it not,
obviously receipt of evidence pertaining to the reinstatement
remedy would have been a waste of time and effort.
Having concluded that unlawful motivation has been estab-
lished, the issue of reinstatement can be addressed during the
compliance phase of this proceeding. “This Court and other
lower courts have long recognized the Board’s normal policy of
modifying its general reinstatement . . . remedy in subsequent
compliance proceedings as a means of tailoring the individual
circumstances of each” discriminatory act. (Citations omitted.)
Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 902 (1984). Here, Re-
spondent already has presented some evidence showing that it
has ceased utilizing one other referral source because of the lat-
ter’s unreliability. On the other hand, it may be that the Board
and courts will regard it to be inherently destructive of Section 7
rights to allow employers to reject absolutely union-sponsored
employment applicants, no matter the extent of adverse experi-
ences with such applicants.
Even if there is unwillingness to allow so general a course, the
Board and courts still may be willing to allow employers to reject
union-sponsored applicants only in more carefully defined, par-
ticular situations, in accordance with specifically-formulated
guidelines. In that regard, Respondent’s state litigation may dis-
close information which permits it, as well as the Union and the
General Counsel, to make a more complete record regarding the
propriety of reinstatement in the circumstances of Respondent’s
situation. In any event, I rejected Respondent’s evidence
concerning reinstatement, because that issue was not ripe for
resolution, and consideration of its defense to reinstatement will
be deferred to the compliance stage of this proceedin

CONCLUSIONS OF LAW

Wright Electric, Inc. has committed unfair labor practices af-
fecting commerce by refusing to consider for employment and to
hire Louis John Lutz, in violation of Section 8(a)(3) and (1) of
the Act. It has not committed any other unfair labor practices
alleged in the amended complaint in Case 18–CA–12820, as
amended, and in the complaint in Case 18–CA–13369.
REMEDY

Having concluded that Wright Electric, Inc. has engaged in
unfair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and, further, that it be ordered to
take certain affirmative action to effectuate the policies of the
Act. With respect to the latter, it shall be ordered, within 14
days from the date of this Order, to offer Louis John Lutz full
reinstatement to the electrician’s job for which he was denied
employment or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any
other rights or privileges which he would have enjoyed had he
not been unlawfully denied employment. In addition, within
14 days of the date of this Order, it shall remove from its files
any reference to the unlawful refusal to hire him and, within 3
days thereafter, notify Lutz in writing that this has been done
and the refusal to hire him will not be used against him in any
way. Further, it shall be ordered to make Louis John Lutz
whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him, with backpay to be
computed on a quarterly basis, making deductions for interim
earnings, F. W. Woolworth Co., 90 NLRB 289 (1950), and
with interest to be paid on amounts owing, as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]