D&S Electrical Contractors, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 6, 2013

19-CA-088609 (N.L.R.B. Sep. 6, 2013)

JD(SF)–44–13
Clarkston, WA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
D&S ELECTRICAL CONTRACTORS, INC.
and Case No. 19-CA-088609

INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL 46
Rachel Cherem, Esq., for the General
Counsel
Selena C. Smith, Esq., and Brian P.
Lundgren, Esq., for the Respondent
David A. Hannah, Esq., for the Charging
Party
DECISION
Statement of the Case
Gerald A. Wacknov, Administrative Law Judge: Pursuant to notice a hearing in this
matter was held before me in Seattle, Washington on April 30, May 1 and 2, 2013. The charge
was filed by International Brotherhood of Electrical Workers, Local 46 (Union) on September 4,
2012, and an amended charge was filed by the Union on October 29, 2012. Thereafter, on
December 19, 2012 the Regional Director for Region 19 of the National Labor Relations Board
(Board) issued a complaint and notice of hearing alleging a violation by D&S Electrical
Contractors, Inc. (Respondent) of Section 8(a)(1) and (3) of the National Labor Relations Act, as
amended (Act). The Respondent, in its answers to the complaint, duly filed, denies that it has
violated the Act as alleged.
The parties were afforded a full opportunity to be heard, to call, examine, and cross-
examine witnesses, and to introduce relevant evidence. Since the close of the hearing, briefs
have been received from counsel for the General Counsel (General Counsel), counsel for the
Respondent, and counsel for the Union. Upon the entire record, and based upon my
observation of the witnesses and consideration of the briefs submitted, I make the following
JD(SF)–44–13
2
Findings of Fact
I. Jurisdiction
The Respondent, a Washington state corporation, maintains an office and place of 5
business in Clarkston, Washington, where it is engaged in the business of performing
commercial electrical work in the construction industry. In the course and conduct of its
business operations the Respondent annually purchases and receives at its Clarkston
Washington facility goods, products, and materials valued in excess of $50,000 directly from
points outside the state of Washington. It is admitted and I find that the Respondent is, and at all 10
material times has been, an employer engaged in commerce within the meaning of Section 2(2),
(6) and (7) of the Act.
II. The Labor Organization Involved
15
It is admitted, and I find, that the Union is and at all times material herein has been, a
labor organization within the meaning of Section 2(5) of the Act.
III. Alleged Unfair Labor Practices
20
A. Issues
The principal issues in this proceeding are whether the Respondent has violated and is
violating Section 8(a)(1) of the Act by coercively interrogating employees regarding their union
activity and by telling them that they will not be hired because of their union affiliation or activity, 25
and whether the Respondent has violated section 8(a)(1) and (3) of the Act by refusing to hire or
consider for employment four employees because of their union affiliation or activity.
B. Facts
30
The Respondent is a nonunion electrical contractor engaged in prevailing wage hospital
and school installations. It customarily has between two and four projects ongoing
simultaneously, and employs between 20 to 60 or more electricians according to the size of the
various projects.
35
Richard Flerchinger is the Respondent’s president, Forrest Rudolph is the Respondent’s
field coordination officer, Patricia Abel is the Respondent’s administrative assistant, and John
Stranberg is the site superintendent for the Respondent’s Bellevue High School project.
Rudolph oversees all of the Respondent’s projects and does the hiring of electricians on 40
all the projects. Each project is under the day-to-day supervision of a site superintendent. Site
superintendents do no hiring. Rudolph is in contact with the site superintendents and tries to
visit each job site once a week. Rudolph, with the input of the site superintendent, assesses the
manpower needs of each job, and decides how many electricians are initially needed on each
project and whether the size of the crew should be augmented by additional employees as the 45
job progresses. The hiring process is explained below.
Abel works in the Respondent’s office and is the Respondent’s administrative assistant.
Among her other duties, Abel has responsibility for processing job applications. She sends
employment applications to those who request them, checks their references, and, after 50
Rudolph has authorized her to send them for drug screenings, sends them the requisite drug
JD(SF)–44–13
3
screening documentation, including the location of the drug screening services in their locales.
She communicates with applicants by phone, fax, or email, receives their phone calls, answers
their inquiries, informs them of their status, and advises them whether or not they have been
hired and where and when to report for work. She makes no hiring decisions, and simply
follows the instructions of Rudolph with regard to all hiring matters. If Rudolph determines that 5
there is a need for employees on any particular job he so advises Abel who, in turn, contacts the
employees who have not yet been hired but, after their employment applications and references
have been checked and after having passed the drug test, are in effect on standby status for
immediate employment.
10
Rudolph testified that drug screening is the final step of the hiring process, and because
drug screening is costly he advises Abel to send any given applicant out for drug screening only
after their references check out and they are being considered for employment. After passing
the drug screening the applicant is considered to be immediately available for work when
notified.15
Rudolph testified that the Respondent first became involved in the Bellevue High School
project in May 2012.1 This was an ongoing project; the general contractor retained the
Respondent to take over the electrical work from a defunct electrical contractor. It was an
unusual situation according to Rudolph because, “we had to hit the ground running and there 20
was so much work to be done immediately...it was an unusually difficult time for us.” Prior to
beginning work, it was initially determined that the manpower needs for this project were
between 18 and 20 electricians. This created immediate staffing issues, as the electricians
comprising Respondent’s core group of employees were busy working at other job sites. This
required that Rudolph look at his secondary source for electricians, namely referrals and25
rehires. However, he “pretty much hit a dead end” and therefore went to the applicant pool for
electricians “to help us through this project during the summer months, up until we could start
cutting back.” Having to hit the ground running created administrative pressure for the
Respondent. According to Rudolph, “It kept Patti [Abel] busy in the office almost constantly
processing and checking references and job applications to the point where they had to bring in 30
somebody to assist her.”2
John Stranberg has been a site superintendent for the Respondent for 11 years, and has
worked on many projects. He supervises the jobsite, deals with the general contractor, and
coordinates subcontractors and his crew. Because of the exigencies of the situation he was 35
taken from another project and assigned as the site superintendent for the Bellevue High School
project on short notice. On June 18, he and a foreman began working at the site. He brought on
a second foreman the second day, June 19. The initial crew of electricians began working on
June 25.
40
Stranberg testified that he tells Abel and Rudolph when he has manpower needs. They,
in turn, go to work and do what they can to fulfill the needs. Thus, Stranberg testified:
Well, when I figure out what I need for crews for certain areas, I just
communicate with the office that we are working in certain areas. I have a 45

1 All dates or time periods hereinafter are within 2012 unless otherwise stated.
2 Jt. Exh. 1 is a 205-page exhibit containing the employment applications and accompanying
documents from applicants who were applying for either the Woodinville High School Project or
the Bellevue High School project from about May through August. From a partial examination of
this exhibit, I estimate the number of applicants to be between 60 to 75.
JD(SF)–44–13
4
certain amount of manpower that is required to perform the work in that area, and
these are the timelines I have to get that work complete (sic), and then they
orchestrate getting the manpower on the site so I can fulfill my duties.
Stranberg believes that on June 25 he started off with a crew of about 12 journeymen 5
electricians. Half were current employees and half were new hires who had never worked for
the Respondent. After June 25, according to Stranberg, “that job just kind of took off on us and
we were adding a lot of bodies to the project.” During the 2-week period from June 25 to July 9
the number of electricians on the job, obtained through the foregoing hiring process, was
increased to a complement of about 18.3 Stranberg was in daily contract with the general 10
contractor on the site and was closest to assessing the needs of the workforce. As of July 9,
Stranberg believed that more electricians were needed. Further, Stranberg testified that the
general contractor was “biting my ear off” because of the “time crunch” to get the work
completed, and a significant amount of overtime was being worked by the electricians at the site
at the request of the general contractor and the owner.4 Accordingly Stranberg, who also 15
believed that more employees were needed and, in addition, was feeling pressure to
accommodate the general contractor, advised Rudolph and Abel that he wanted to continue
bringing on additional electricians.
On July 9, however, Rudolph, contrary to Stranberg’s assessment of the situation, 20
decided to put an abrupt halt to hiring, infra. Stranberg testified that Rudolph “had a different
perception on the project than I did,” and that “[Rudolph] wanted to put a halt to additional
staffing until things could kind of work itself out…see how our new crew members
...performed…we always want to create a flow on the project and run lean, and so he put a halt
to the hiring.” The hiring hiatus, however, was short-lived, infra.5 25
The complaint alleges that beginning on July 9 the Respondent failed to hire four
individuals because of their union affiliation
Mark Anderson, Steven Begley, David Tompkins and Margaret Ely are journeymen 30
electricians with EL01 electrical licenses issued by the State of Washington. This license

3 This is the number of electricians, according to Rudolph, that he, with Stranberg’s input,
initially estimated would be needed. This initial assessment was made prior to commencing
work.
4 The Respondent’s records show that on this prevailing wage project, journeyman electricians
were earning $57.74 per hour for regular time work and $86.61 per hour for overtime work.
During the week ending July 7 the overtime hours worked by the Respondent’s journeyman and
apprentice electricians totaled 216.5 hours for the week; during the week ending July 14, the
Respondent’s overtime hours totaled 217.5 hours for the week; during the week ending July 21,
the Respondent overtime hours totaled 153 hours for the week; during the week of July 28 the
Respondent’s overtime hours totaled 161 hours for the week; during the week ending August 4,
the Respondent’s overtime hours totaled 230 hours for the week; during the week ending
August 11, the Respondent’s overtime hours totaled 238 hours for the week.
5 Stranberg apparently believes that the hiatus lasted a few weeks instead of a few days. Thus,
he testified that after the hiring was halted and “after we let things play out for a few weeks, I
don’t really remember the timeline…I do remember that we had another area open up to us that
wasn’t available when we were doing our initial hiring…and then at that point, we brought on
additional help to help staff that area.”

JD(SF)–44–13
5
qualifies them for any type of electrical work. The four named individuals have had experience
with school electrical installations of the type being performed by the Respondent on the
Bellevue High School project. Each is a union member of either IBEW Local 46 or IBEW Local
191. When they submitted their respective employment applications each was an out-of-work
electrician registered in his or her respective local unions’ hiring hall. Each anticipated from his 5
or her high number on the hiring hall roster that work would not be available from 3 to 6 months;
each was able and anxious to immediately begin working for the Respondent; and each resided
within easy commute distances to the Respondent’s Bellevue High School jobsite or other
ongoing jobsites. Moreover, their union commitments and policies did not require that they get
advance permission to apply for work or work for a nonunion contractor, and there were no 10
limitations imposed by either local union on the duration of their employment with a nonunion
contractor.
Mark Anderson has been a union member of IBEW Local 46 for 4½ years. He phoned
Stranberg on June 20, having learned from his brother in law that the Respondent was hiring 15
electricians. Stranberg told him the Respondent was looking for electricians for the Bellevue
school job, and would be ramping up and would soon need help. Within a few days he again
called Stranberg about the job. Stranberg told him to call Abel at the shop for an application as
they were getting ready to put a crew together. He did so. Thereafter he received an
application form and submitted it back to Abel. Not hearing back from Abel he phoned her and20
asked if she had received his application. She said she had lost it, and faxed him another one.
He sent it to Abel on July 6. Several days later he again called Stranberg, who again told him to
call Abel. He did so. Abel told him they were looking over his application, that everything looked
good, and that she would be getting back to him. On July 9 Abel faxed him a form to take a
drug test. He took the test the same day.25
Michelle Anderson is Mark Anderson’s wife. Michelle testified that in the early afternoon
of July 9 she received a phone call from Abel, who was attempting to contact Mark. Abel
introduced herself and said, according to Michelle, “his application looked great and we would
love for Mark to get over to take a urinalysis.” She added that “if he could do it that day that 30
would be great, the sooner, the better.” Abel said that she was faxing an authorization form for
Mark to pick up so that he could take the drug test. Michelle said she would call Mark on his cell
phone. Michelle then phoned Mark, who came home and picked up the authorization form that
Abel had faxed, and left for the clinic to take the drug test.
35
Michelle testified that Abel called back about 2½ hours later. She told Michelle that the
urinalysis “looked great” and asked when Mark would be ready to start work. Michelle jokingly
said he could start work that night, and Abel said that wouldn’t happen but she needed to talk to
the “general foreman” and possibly Mark could start work the next day. Michelle said that would
be great, and would “actually give Mark some time to check in with the union on how to go 40
about salting a job,” because Mark had never worked for a nonunion company while with the
union. Abel asked, “Oh, Mark belongs to the union?” Michelle said yes he does, and Abel said
“that they do not hire union hands and they really want—and have nothing to do with the union.”
Michelle said she would call Mark and let him know what Abel had said, and would have Mark
get back to her. Despite Michelle’s foregoing testimony, Michelle acknowledged, pursuant to 45
questioning by Respondent’s counsel, that Abel never directly told her that Mark was not being
hired or that he was not being considered for employment, or that he was being denied
employment. Accordingly, it is clear that the conversation ended with the understanding by
Michelle that whether or not Mark would be hired was problematical.
50
JD(SF)–44–13
6
Mark Anderson testified that as he was headed home after taking the drug test, he
received a call from Michelle, who told him about her conversation with Abel. Michelle told him
she may have “screwed up” by telling Abel that Mark was in the union because Abel said they
did not hire people who are in the union. Mark called Abel within 20 minutes, at about 2:30
p.m., and said, “I understand that we have a problem with my employment.” Abel replied, “Yes 5
we do, we don’t normally hire union people or union hands.” Then she asked Mark, “What is
salting?” Mark, who had not taken the union’s salting course but had looked up “salting” on the
internet, told her, “I believe it’s keeping track of how many journeymen and how many
apprentices you have on the job, and basically trying to get D&S [the Respondent] to join the
union, unionize.” He also told her that he had “paperwork” he would have to fill out and turn in 10
to the union.6 Abel responded, “I’m going to have to talk to the GF [general foreman] about it.”
Mark did not reply, and Abel said she would call him “right back.” Mark said thank you and that
he was looking forward to her call. Mark did not hear back for several hours. At 5 p.m. he called
Abel and asked, “do I have a job or not?” Abel said, “We do not hire union people.” She said his
application was on file and, “as of right now, they had no openings.”715
Steven Begley is a member of IBEW Local 191. He submitted his employment
application to the Respondent on Friday, July 6. He too received a phone call from Abel on
Monday, July 9. Abel introduced herself, and Begley said he was hoping she would call, adding
that he had received a phone call from one of his references on his application who had been 20
contacted by the Respondent. Abel said it was common practice to contact personal
references. Begley asked, “Does this mean…welcome aboard?” Abel said yes. Begley
thanked her. Abel asked if he would be able to take a drug screening that afternoon. Begley,
who had a dentist appointment that afternoon, asked if it would be possible to take the drug test
the following day. Abel said that would not be a problem. Begley gave her his email address. 25
Within minutes he received an email with attachments, including a drug test authorization form
and directions to various testing locations in his area. It was his understanding that he would be
going to work on July 11, the day after passing the July 10 drug screening.
Later that day, however, at approximately 4 p.m., Begley received another phone call 30
from Abel. Abel again identified herself and said, “Listen, I forgot to ask you when I talked to
you last time if you were a member of the union.” Begley said, “Yes, I am.” Abel said, “Oh,” and
Begley asked, “Is that a problem?” Abel said “it could be,” and told him not to take the drug
screening test until he heard back from her. Begley said something along the lines that he
didn’t want any troubles and that he just wanted to work. Abel said, “I’ll get back with you.” He 35
has not heard from the Respondent since then.8

David Tompkins is a member of Local 191. He learned about the job from an
acquaintance, Terry Conrad. In addition, his wife found it posted on an internet site, Craigslist,

6 Anderson testified that in fact he did not have the paperwork at the time of this conversation,
and was simply attempting to advise Abel that he would have to fill out paperwork and submit it
to the union. His Board affidavit states, “Patti asked me if I was going to salt. I said yes, that I
had paperwork to fill out and turn in to the union.” While it was his understanding that he
needed permission from the union in order to work for a nonunion contractor, he did not testify
that he needed prior permission to do so. Other evidence, namely the testimony of Margret Ely,
a Local 46 executive board member and trustee and an alleged discriminatee, infra, shows that
he needed no permission whatsoever. I credit Ely’s testimony in this regard.
7 Abel testified that she did not recall any conversations with Mark Anderson. However she did
recall conversations with Michelle Anderson, infra.
8 Abel testified she did not recall any conversations with Begley.
JD(SF)–44–13
7
and showed it to him. It stated, according to Tompkins, that positions were available for EL01
cardholders for prevailing wage electrical work. On July 2 he called the Respondent, said that
he saw the ad on Craigslist, and asked for an application. He was transferred to Abel. He told
Abel he was interested in the job he saw on Craigslist. She said, “We’re gearing up; we are
hiring.” She mentioned three school jobsites, and said, “We’re gearing up for the Clearview 5
job.” Tompkins said, “Great, that’s real close to my home.”9 She said she would email him an
application. He filled it out and faxed it to Abel on July 6. He called within a day, spoke with
Abel, and told her he was very interested in the job. She said everything in his application
looked good, and said the next step was that he had to pass the drug test. She said she would
email him the authorization for the drug test, “and they’re in a crunch to hire a couple more 10
people and I need to hurry.” He received the application for the drug test on July 9. The email
from Abel, to which the application was attached, states, “If you could go in as soon as possible
it would be greatly appreciated.” He took the drug test the same day.10 He called Abel “within a
day” and asked if they got the results of the drug test. She indicated that he had passed the
test. He asked, “When can I go to work?” She asked if he was a union member. He said, “I’ve 15
done both, I’ve been nonunion and union.” Her response was, “We’re not hiring.” On cross
examination, asked whether Abel told him why they were not hiring, he testified, ”Well, you
know she did, I didn’t put it in my [affidavit], but she flat out said, “We do not hire union
members…we do not hire—we’re not interested in hiring a union person.” He called back the
following day, told Abel he really wanted the job, and advised her that, “Discrimination against a 20
union member is illegal, it’s against the law.” Abel said, “We’re not hiring.”11
Margaret Ely is a Local 46 member. She is on the executive board of the local and is a
labor trustee on the Union’s pension fund. She is paid for attending executive board meetings
and for attending trustee meetings or annual training meetings. As of November she started as 25
a part time Local 46 employee helping with organizing, but is not a paid organizer. Ely testified
that there are no restrictions regarding performing work on nonunion jobsites. The only
requirement is that members are to report this to the local and give the organizing department a
weekly report indicating their wages and job benefits. As far as Ely understands, the same
requirement is applicable to Local 191 members.12 30
Ely, who was out of work, was told about the job by one of the organizers. She called on
July 13 and spoke to Abel. She said she heard their company was doing work at Bellevue and
Issaquah High Schools, and she was interested in applying. Abel said they were looking for
electricians and would send her an application. She received the application within the next 35
half-hour, immediately filled it out and faxed it back that day with a cover letter. On Monday,
July 16, at 7:13 a.m. she sent the following fax to Abel:
Please let me know, either via email or phone…, when you have had a chance to
look over my application so that we can set up an interview. In addition to the 40
skills listed on the application, I have had extensive experience doing school
work, both new construction and remodels. I would really enjoy working on either
your Bellevue High School or Woodinville High School job.

9 In fact, the Respondent had no “Clearview” job. It is apparent that Tompkins stated he was
interested in the “Bellevue” job, as this is what Abel noted on his application.
10 Abel’s email to Tompkins is dated July 9 at 11:25 a.m., and his drug test “Chain of Custody
Form” shows that he took the drug test at 1:23 p.m. the same day.
11 Abel variously testified that she did not recall any such conversation with Tompkins, and also
that the conversation “never happened.”
12 As noted, I credit Ely’s testimony in this regard.
JD(SF)–44–13
8
She received a fax from Abel at 7:51 a.m., as follows: I received your application and we are
still in the process of determining what our needs are. For the moment we have filled the
positions, but that may change at any time. I will keep your application on file.
5
Ely left a message 2 days later. She reiterated that she was interested in the position at
either high school, and would like for the Respondent to reconsider her application because she
was anxious to go to work. The application requires the applicant to list the 5 most recent
employers. As the second employer on the list, Ely listed IBEW Local 46, and under title and
duties, she put “Organize the unrepresented.” Under references on the application, she listed a 10
number of union business representatives. Ely testified that she entered this information on her
application knowing that her employment by the Union would be apparent to the Respondent if
the Respondent did a job record search; and rather than include her titles and duties as a union
trustee and executive board member, she simply “put kind of the mission of the IBEW” on her
application. 15

Administrative Assistant Abel has worked for the Respondent since October 2008. She
reports to Richard Flerchinger, president, and Corey Flerchinger, controller. She described her
current job duties as follows:
20
I do accounts payable and responsible (sic) for receiving invoices, processing
them for payment, reconciling with statements. I do the financial reports,
maintain the check register. I do leases for subcontractors, the purchase order
purchases. I’m involved in payroll. I track the daily timesheets, track OJT hours
to submit OJT reports, keep lists of apprentice hours in the IEC. I process job 25
applications…and their references, and send them out for drug screens.
Anything else that’s outstanding.
Abel testified that while she did not recall conversations with Mark Anderson, Begley,
and Tompkins, she did not care whether applicants for employment were union members. She 30
does not “generally” ask applicants if they are union members or question applicants regarding
their union affiliation. Abel recalled that two employees who were hired by the Respondent, Joe
Dugger and Terrance Conrad, volunteered that information, stating that they were union
members when they called in to request an application. She recalled telling them that she didn’t
care, it wasn’t an issue, and that, with regard to Dugger, “all we cared about was that he had 35
come highly recommended by another employee.” According to Abel, “There could have
possibly been others [who volunteered their union affiliation]. It wasn’t important.” She
specifically remembers her conversations with Dugger and Conrad “because it was recent,
within the last year.” She testified her conversation with Dugger “stuck out in my mind,” and that
she was familiar with Conrad because “he called in all the time.”1340
Abel testified that “Bellevue was unique in that we were taking over the job and we had
to hit the ground running and we just needed to get that job staffed quickly.” Abel testified, “I do
not remember actually speaking to Mark Anderson,14 but I do recall having a couple of
conversations with his wife.”45

13 Further, Abel testified that the applications of four other employees who were hired by the
Respondent on other jobs in 2010 and 2011 indicated their union affiliation.
14 She also testified that she does not use the letters “GF” to refer to the general foreman and
does not know what a “GF” is. Thus, contrary to Mark Anderson’s testimony, she would not
have used these initials in any conversation.
JD(SF)–44–13
9
Abel testified that Anderson first requested an application on about June 22. She
received it on June 25 and received another one on July 6. Again she answered, “Not that I
recall,” when asked if she had any conversations with Anderson after receiving his application.
She “put him out” for a drug screen on July 9. She did not say how she notified him of the drug 5
screen.15 Then, according to Abel, she received a phone call from Michelle Anderson, Mark’s
wife, who inquired as to the status of Mark’s application and when he would be starting. Abel
asked when he would be available, and Michelle replied, “that he had to complete some salting
paperwork with his union boss.” Abel asked, “Well, what is salting?” Michelle explained to her
that “it’s reporting back to the union how many employees we have and what capacity they’re 10
working.” Abel said, “Well I need to talk to Dick [Richard Flerchinger] because I’m not sure if
there’s anything I need to do on my end for the union before he can show up on the jobsite.”16
She told Michelle that she would call her back after talking to Flerchinger. She never told
Michelle that there “might be a problem” with Anderson being a salt or a union member, or that
the Respondent does not usually hire union applicants or did not have a need for union hands. 15
She would not have said anything like that because union membership was not an issue for the
company--she didn’t care and the company didn’t care.
Immediately after this conversation she spoke with Richard Flerchinger at the shop, and
asked, him, “Is there anything I need to do get (sic) Mark Anderson ready? He has to fill out 20
salting paperwork. What do I need to do?” Flerchinger simply replied, according to Abel, “there’s
not anything I needed to do.” That brief exchange is the entire extent of Abel’s conversation
with Flerchinger. 17
Then, believing that Mark Anderson was in effect hired, she called Stranberg to find out 25
when he wanted Anderson to start. 18 Abel testified, “At that point, [Stranberg] had told me that
Mark’s name had come up on a lunch break and several of the employees said that they didn’t
want to work with Mark, that he was not a productive employee.”19 However, in her Board
affidavit, taken on October 12, Abel states: “I am personally not aware of anything about Mark
that disqualified him for employment at the Employer.” Explaining her contradictory statements, 30

15 Accordingly, I credit the testimony of Michelle Anderson regarding the first conversation she
had with Abel that day regarding the drug screening.
16 However, in her Board affidavit, taken on October 12, 3 months after the conversation, Abel
states: “I do not remember what I said in response to Mrs. Anderson’s comments about salting.”
Abel testified, however, that after thinking about it she did recall what she said.
17 Flerchinger, who testified in this proceeding, infra, did not mention the conversation during the
course of his testimony.
18 In fact, two employees were in effect hired at the time of her conversation with Stranberg,
namely, Mark Anderson, and David Tompkins. Abel did not testify why she did not ask
Stranberg when he wanted Tompkins to start.
19 Stranberg did not corroborate Abel’s testimony that he even had a conversation with her on
July 9. And with regard to Anderson, Stranberg testified that early in the hiring process, prior to
the time Anderson had even applied, he received a phone call from Anderson who told him he
personally knew some of the people who were working on the jobsite and felt he would probably
be a good fit for the job. Stranberg told him to call Abel at the office and get the paperwork filled
out. Stranberg testified, “It was only natural” for him to mention Anderson’s name and let them
know “that we were in the process of trying to hire Mark Anderson,” and when he did so some of
his electricians told him they weren’t impressed with his work. At that point he called Abel and
let her know “That we wish to not have Mark Anderson come to our jobsite.” This scenario is
entirely different from the testimony of Abel and I credit neither Abel nor Stranberg.
JD(SF)–44–13
10
Abel testified that the complaints regarding Anderson would not have necessarily disqualified
him, and further, that at the time of her affidavit she did not remember this conversation with
Stranberg. Rather, she remembered it later, when Stranberg reminded her of the conversation.
Then she found an undated handwritten note to this effect, stating:
5
Mark Anderson—get him ready.
Guys on site say we don’t want.
Upon learning that Stranberg did not want Anderson to work on his jobsite, she testified
that she phoned Rudolph and asked him, “What’s going on here? Are we putting Mark on?” 10
Rudolph then advised Abel, “that they were putting a pause on hiring. They wanted to evaluate
what was going onsite (sic), we were going to hold off putting anyone on.” This is the first she
knew about the hiring pause; she did not know when the decision was made as, “I wasn’t in the
loop clearly as to what was going on.”
15
On Anderson’s application, she wrote, “Have enough employees.” On cross
examination Abel testified that the foregoing conversation with Rudolph also would have
included the status of Tompkins, as both individuals were ready to start work: “Yes, I had them
both ready. They had gone through the application process and both of them were –my part of
it was done at that point, and I was checking to see what he was wanting to do.” Accordingly, 20
as Rudolph had put a blanket pause on hiring, the pause affected all applicants, and she wrote
on the applications of each of the four individuals, Anderson, Begley, Tompkins, and Ely, “Have
enough employees.” Abel testified that Anderson was not removed from the applicant pool as
she was never told to remove him from the pool; thus Anderson and the other three applicants
remained in the applicant pool during the hiatus in hiring until, according to Abel, “they decided 25
what it was they were going to do at Bellevue.” Moreover, in accordance with what was stated
on the application form, the applicants would remain in the pool 30 days from the date their
applications were submitted.20 Abel did not write “Okay per Buddy [Rudolph]”21 on Ely’s
application because, “We already had three applicants in the pipeline, so we never went any
further on even checking past employment or personal references. We just kind of put a pause 30
on hers and never went into her application. So no, ‘Okay per Buddy,’ she didn’t get sent out for
a drug screen. She hadn’t made it through the process yet. ”
Abel testified that after her foregoing respective conversations with Flerchinger,
Stranberg, and Rudolph, she had another conversation with Michelle Anderson. She believes 35
Michelle called her back, but she may have called Michelle. Abel told Michelle “that after review
with [Rudolph] that they were pausing putting anybody on until they could reevaluate the
conditions on the jobsite.” Michelle, according to Abel, became “pretty emotional by that point.”
She was concerned that her mentioning salting was the reason Mark wasn’t being hired; she
spoke about some personal health matters, and mentioned that Mark was low on the union’s40
hiring roster and would not be called up for employment for a long time. Abel tried to reassure
her that his union affiliation had nothing to do with it, and that “we were just taking a pause in
the hiring process to reevaluate.”

20 Outlined in a box at the top of the application is the following: “This application is current only
for thirty (30) days, at the conclusion of which time if you have not heard from us and still wish to
be considered for employment it will be necessary for you to fill out a new application.”
21 “Okay per Buddy” was placed on all the applications of applicants who were sent out for drug
screens; this signifies that Rudolph had authorized the drug screen.
JD(SF)–44–13
11
As noted, Abel testified that she recalls no conversations with Anderson, Tompkins, or
Ely. With regard to Begley, she testified, “I probably spoke to him at some point to let him know
we were pausing in the hiring process and to not go out and take his drug screen just yet.” After
sending Begley the drug test authorization form, “He just went back into the general application
pool until they decided what, you know, they were going to do at Bellevue.” Abel testified that 5
she would have had no conversations with any of the applicants asking about their union
affiliation or telling them that the Respondent did not hire and would not consider union
members for employment, as their union affiliation simply made no difference, and there would
have been no reason to ask such questions or make such statements. In addition, with regard
to Tompkins, she said she would not have asked him about his union affiliation as she already 10
knew this from the job dispatch history on IBEW Local 191 letterhead that he included with his
application.22 Regarding the alleged conversation with Anderson, she would not have used the
initials “GF” to refer to the general foreman.23 And regarding Begley, who testified he saw an ad
for the job posted on Craigslist, Abel testified that the Respondent never advertised for
electricians, and she is not aware of any Craigslist ads for electricians.24 15
Abel testified that she received a phone call from Rudolph who told her that Joe Dugger
was a referral from Cody Herman, a core employee who was working at Bellevue, and
instructed Abel to send him an application and “start the process.” Dugger applied on July 11,
took his drug screen on July 12, and began work on July 16. Joshua Felix, a referral, applied on 20
July 22, took his drug test on July 24, and was hired on July 26; Bruce Fahber, a rehire, applied
on August 1, took his drug test on August 2, and was hired on August 3; and Michael Hughes, a
referral, applied on August 20, took his drug test on August 23, and began working on August
24.
25
Rudolph testified that site superintendents usually want more labor on their sites. He
testified that that most of the site superintendents are “very competent in what they do. But if
you are in the trenches all day long and you get that added pressure, then they would like more
labor, but at times, I do overrule it, yes.”
30
With regard to manpower, Rudolph testified that he has his core group of employees,
including superintendents and foremen and a group of journeymen electricians who have
worked for the Respondent for years. This is common in the industry. The core group,
comprised of approximately 14 electricians in the Seattle area on the west side of Washington
State, tends to stay with the Respondent and are very seldom laid off. If manpower is needed 35
he will look at his list of electricians who have previously worked for the Respondent. If no one
is available he will ask the on-site electricians if they know of anyone who is available. If not, he
will go to the applicant pool. He hires apprentices from the IEC program of Washington, a state
approved apprenticeship school. He likes to hire former employees because “They are a known
commodity,” and he knows what they can and cannot do, Referrals are also “somewhat of a 40

22 However, Abel acknowledged that at the time she sent him the drug test authorization form
she had not yet had the conversation with Michelle Anderson and had never heard the word
“salting.”
23 However, Abel did not testify that she would not have used the words “general foreman,” and
according to the testimony of Michelle Anderson, Abel did use the words “general foreman”
during their conversation. Moreover, Mark Anderson was not asked whether Abel actually used
the initials ”GF” or whether this was just his own shorthand reference.
24 Also, Cory Flerschinger, Respondent’s comptroller, testified that he is the “resident tech guy”
and he would have been the only person to place internet ads on behalf of the Respondent. He
never placed an ad on Craigslist for electricians.
JD(SF)–44–13
12
known commodity,” as the referring electrician has his “reputation on the line, so most of the
time we do not get a bad referral from anybody.”25 They also do a reference check on referrals.
Abel sends people for drug testing after their references check out.
Regarding the manpower for the Belleview job, he and Stranberg did a “take-off” and 5
prior to commencing work determined the manpower needs in terms of hours of work to
complete the job and the “labor budget” available to the Respondent. It was estimated that
between 18 and 20 electricians would be needed. The number of estimated electricians
included journeymen and apprentices. It could be all journeymen or journeymen and
apprentices combined, as the estimate is based on “man hours” and is adjusted during the 10
course of the project. Rudolf testified, “we like to hire journeymen with apprentices because
that… keeps our labor costs down.” Thus, prior to the beginning of work, Rudolf’s calculations
were not based on journeymen alone. Rudolf testified that the employees comprising his core
group were busy at other projects, and he had to look at possible rehires and referrals “which I
pretty much hit a dead end, so at that point we went to the applicant pool.” New hires from the 15
applicant pool, according to Rudolf, were hired “to help us through this project during the
summer months, up until we could start cutting back.”
Rudolph testified that on about July 9 there were 15 journeymen and four apprentices on
the site. This was the initial forecast amount prior to the commencement of work on the site. He 20
testified, “I needed to step back and do a jobsite assessment to see where we were at on
manpower and see if we had enough. I don’t want to over-burden these jobs with unneeded
labor on it…Labor is the biggest variable…it is the biggest liability…because… it is money out
the window if they are not needed.” He told Abel “that we were halting all future hiring for the
time being.” Following the hiatus Rudolph hired six more journeymen electricians—five referrals 25
and one rehire. Hiring ceased entirely on August 24, and the Respondent started cutting back
in September. Currently there are three electricians on the job.
The Respondent’s records show that one employee, Jacob Jensen, a rehire, applied on
June 21, took his drug test on July 6 and began working at the site on July 9. Another 30
employee, Derek Olson, applied on July 9, but had taken a drug test on June 26, and began
working on July 9.26 Following the hiring of Jensen and Olson on July 9, no general pool
applicants were hired. Rather, according to Rudolph, only referrals and former employees
(rehires) were hired because they had applied during the hiatus; and, when work picked up they
were given preference over the other applicants. This, according to Rudolph, was in 35
accordance with the Respondent’s customary but unwritten practice of giving priority to referrals
and rehires.
According to Rudolph, it was not unusual for the Respondent to employ journeymen
electricians who have been involved in unions or are currently in unions. Thus, Joe Dugger, 40
who applied on July 11 and began working on July 16, was a referral, and the person who
referred him, Cody Herman, said he was a union member.
Rudolf acknowledged that overtime wages on a prevailing wage job can be high and in
certain circumstances the additional cost might justify bringing on additional employees; 45
according to Rudolph, determining whether or not to hire additional employees to cut down on
the number of overtime hours requires “a case by case evaluation.” Moreover, Rudolph

25 According to Stranberg, referrals are referred by the Respondent’s core electricians.
26 The record does not show why Olson’s drug test preceded his application date.
JD(SF)–44–13
13
acknowledged that pressure from a general contractor might very well be justification to bring on
additional electricians, as it is good business policy to keep the general contractor happy.
Gwynda Edgar performed temp work for the Respondent from the “end of June,
beginning of July” until October. She is no longer working for the Respondent. She did office 5
work: filing, answering the phone, doing some payroll things. She worked 40 hours per week, 5
days a week, through July. In June and July her role was basically to call and verify the
references of applicants in order to help Abel; she worked at a desk in Abel’s office, only four
feet away from Abel. She spent about 80 percent of her time in Abel’s office, and the other 20
percent performing other work outside of Abel’s office, some 20 feet away. Accordingly, even 10
when she was not in Abel’s office she could hear Abel on the phone. She overheard Abel
speaking with some 25 applicants in the June and July timeframe. According to Edgar, Abel
never asked applicants if they were union members; nor did she tell applicants that the
Respondent did not hire union members or did not want union hands. Edgar also
acknowledged, however, that there were “plenty of times” that Abel was on the phone when she15
was not present to listen to Abel’s conversations.
Lindsay Caldwell was an administrative assistant for the Respondent from June until
September, and is no longer working for the Respondent. She worked 2 to 3 days a week, and
was “constantly moving around the office” and helping everybody in the office: answering the 20
phone, putting together O&M manuals, and helping with submittals and timecards. From where
she was sitting in the reception area she could hear Abel talking on the phone. She never
heard Abel say anything to the effect that the Respondent did not want to hire union hands, or
did not hire union workers; nor has she ever heard anyone else say that.
25
Richard Flerchinger is Respondent’s president. Flerchinger testified that he is “working
the tiller on the ship” and “try[s] to stay at the 10,000 foot level and to oversee the operations
and how things work and give guidance where needed.” Sometimes, however, if people are
indecisive, he has the final say. Flerchinger testified that he is familiar with the Bellevue project.
In May, when Flerchinger was discussing the Respondent’s take-over of the project with the on-30
site project manager of the former electrical contractor, Nelson Electric, a union contractor,
Nelson’s site superintendent came into the office. Flerchinger asked him if it would be possible
to retain “some of his lead people so that we would have some continuity…” The
superintendent said it was not possible for his electricians to work for the Respondent because,
according to Flerchinger, “we were a non-signatory shop, it would not be possible for them to 35
work for us.” Accordingly, the Respondent put its own crew together, including its own lead
men, even though Flerchinger “certainly want[ed] some lead men” from Nelson to help with the
continuity.
The foregoing constitutes Flerchinger’s entire testimony. He was asked no questions 40
regarding the hiatus in hiring, and did not acknowledge that he even knew about it. Nor did he
corroborate Abel’s testimony that Abel had a July 9 conversation with him regarding Mark
Anderson’s salting activity.
C. Analysis and Conclusions45
As noted, the complaint alleges that the Respondent advised applicants that they could
not be hired because of their union membership, and beginning on July 9 the Respondent failed
to hire four individuals because of their union affiliation. In support of the complaint allegations
the General counsel and Union maintain that on July 9 the Respondent imposed a short lived 50
hiatus in hiring that was contrived by the Respondent to give it an opportunity to seek out and
JD(SF)–44–13
14
hire four additional electricians, who were either referrals or former employees, in order to avoid
having to hire the four alleged discriminates.
I credit the foregoing testimony of Michelle Anderson, Mark Anderson, Tompkins,27 and
Begley. Each appeared to be a credible witness with a clear memory of his or her various 5
conversations with Abel. There is no showing that in applying for work the three out-of-work
electricians were acting other than independently of each other, and there is no evidence of
collusion or union involvement that caused them to seek work with the Respondent. Indeed,
there is no evidence that they were even acquainted with each other, or that either of the three
were acquainted with Ely. The Respondent has advanced no rationale for doubting the 10
credibility of these individuals.28
Abel had no recollection of her conversations with any of the electricians, and repeatedly
testified that she would not have told any of the individuals that the Respondent did not hire
union electricians and did not want to have anything to do with a union, or that their union 15
affiliation could be a problem, or anything to that effect; she would not have said these things
because union affiliation simply made no difference to her or the Respondent.29
While the Respondent may have had no general reluctance to occasionally hire
electricians who happened to be union members, the instant situation was quite different and, 20
as the credible record evidence shows, presented the Respondent with an immediate matter of
concern.
Abel admits that on July 9 she was directly told by Michelle Anderson that Mark
Anderson “had to complete some salting paperwork with his union boss.” Abel asked what 25

27 The Respondent maintains that Tompkins’ credibility is tainted by evidence indicating that,
contrary to Tompkins’ testimony, the Respondent has never placed a posting for electricians on
Craigslist. Whether or not Tompkins responded to a Craigslist ad or contacted the Respondent
after learning of the job from an acquaintance, as he also testified, he clearly applied and had
been in effect hired at the time of his conversation with Abel. Assuming arguendo that
Tompkins was mistaken regarding the Craigslist ad, I find this makes no difference in terms of
his overall credibility. He was subject to cross examination and favorably impressed me as a
credible witness, and his testimony regarding his conversation with Abel was consistent with the
testimony of other applicants.
28 The testimony of Respondent’s office workers, Gwynda Edgar and Lindsay Caldwell, that they
did not overhear Abel make such statements is insufficient to establish that Abel did not make
the July 9 statements attributed to her by Michelle Anderson and the applicants. The two office
workers were not tasked with the duty of listening to Abel’s phone conversations or other
conversations around the office: rather, were performing other tasks and, it may be presumed,
were focused on these other tasks. While they may have been able to hear Abel’s voice, this
does not establish that they were attuned to what Abel was saying. Moreover, Edgar testified
that there were “plenty of times” that Abel was on the phone when she was not present to listen
to Abel’s conversations; and it has not been shown that Caldwell, who only worked two to three
days each week, was even in the office on July 9.
29 Abel, during her testimony, emphasized this point, as did other witnesses called by the
Respondent, by specifically naming some five or six electricians over several years who were
known to be union members either before or after they were hired. And Richard Flerchinger
testified that he had unsuccessfully attempted to hire several leadmen from Nelson, who were
union electricians.
JD(SF)–44–13
15
salting was, and Michelle told her that “it’s reporting back to the union how many employees we
have and what capacity they’re working.” I do not credit Abel’s testimony that upon learning
about Mark Anderson’s salting activities and the involvement of his “union boss” she was simply
unsure about what she would need to do to accommodate Anderson and the union in
preparation for Anderson’s employment the following day. It seems clear that while union 5
affiliation was normally not a reason for concern, Abel understood that the Respondent was a
non-union employer and would not welcome union members engaged in salting activities and
potential union involvement in the Respondent’s operations; and she told Michelle as much, as
this, in fact, was what she believed. Thus, upon being confronted with this revelation by
Michelle, I find, Abel directly advised her that the Respondent wanted to have nothing to do with 10
the union, and that the conversation ended with the understanding by Michelle that whether or
not Mark would be hired was problematical.
Abel immediately reported this to Richard Flerchinger. It seems to be the Respondent’s
position that only Abel and Flerchinger were aware of salting activity by Mark Anderson, and 15
that when Abel so advised Flerchinger of this following her conversation with Michelle
Anderson, Flerchinger simply, in effect, advised her it was not a problem. It is critical to the
Respondent’s position-- that the hiring freeze was imposed by Rudolph for legitimate business
reasons-- to show that the salting matter got no further than that brief conversation between
Abel and Flerchinger. Accordingly, it was essential that Flerchinger testify that the salting 20
activity was of no concern or significance to him and that he did not initiate a hiring freeze or
confer with Rudolph about the salting activity of Anderson because it made no difference. The
fact that Flerchinger did testify about other matters, but was not asked about this important
element of the Respondent’s case, warrants the adverse inference, which I make, that if
Flerchinger had testified about such matters his testimony would not have supported the 25
Respondent’s position. Champion Rivet Co., 314 NLRB 1097, 1098 fn. 8 (1994); Martin Luther
King, Sr. Nursing Ctr., 231 NLRB 15, 15 fn. 1 (1977).
Abel did not know what “salting” was. She had to have salting explained to her by
Michelle and Mark Anderson. It is probable that her general knowledge of other union matters 30
was also rather limited. There is no evidence that the Respondent had ever been involved in a
union campaign or that Abel knew about such matters. Significantly, while Abel abundantly
testified that union affiliation made no difference in the hiring process and that she would never
ask applicants about union membership because it simply didn’t matter, she did not testify that
she had ever received instruction or was otherwise aware that questioning applicants regarding 35
their union affiliation or telling them that the Respondent did not hire union hands was unlawful
and something she should not do. Accordingly, it is likely that Abel simply told Anderson,
Tompkins, and Begley that the Respondent was not interested in hiring union people because
she believed it was permissible and legitimate for a nonunion employer to hire only nonunion
employees.40
In any event, regardless of motivation, I find that in fact Abel made such statements to
Michelle Anderson and the applicants during her conversations with them. I do not credit her
assertions that she did not recall her conversations with Mark Anderson, Tompkins, and Begley.
While it is understandable that Abel would not have been able to recall various conversations 45
that she may have had with numerous applicants in the June and July timeframe due to the
number of applicants being processed, the conversations with Mark Anderson, Tompkins, and
Begley were extraordinary and not readily forgettable as she was advising applicants to whom
she had earlier that day said “welcome aboard” and who had, in effect, been hired, that the
Respondent had abruptly changed its mind.50
JD(SF)–44–13
16
Nor do I credit her testimony regarding her July 9 conversation with Stranberg. Thus,
according to Abel, on July 9 two applicants who had passed their drug test, Anderson and
Tompkins, were ready to report to work. Prior to knowing anything about the hiatus in hiring,
Abel phoned Stranberg to find out when he wanted these two electricians to report. According
to Abel, Stranberg simply said that he had consulted with some of his crew who advised him 5
Anderson was not a productive employee and they didn’t want to work with him. As noted
above, Abel’s Board affidavit states that she was not personally aware of anything about Mark
that would disqualify him for employment,30 and Abel attempted to justify this by testifying that at
the time of her affidavit she had forgotten what Stranberg had allegedly told her. Moreover,
although there was no objection to Tompkins employment, Abel did not explain why she did not 10
also ask Stranberg when he wanted Tompkins to report to work. It is highly unlikely that Abel
would not have done so, because the very purpose of calling Stranberg in the first place was to
find out when he wanted the two employees to start work. Thus, as noted, Stranberg not only
himself believed more electricians were immediately needed on the job but was also receiving
pressure from the general contractor to bring on more electricians; and at this point in time, 15
insofar as the Respondent’s evidence shows, Stranberg obviously knew of no hiatus in hiring
because if he had known about it he would have so informed Abel during that alleged phone
conversation.31 The fact that both Anderson and Tompkins were simultaneously denied
employment establishes that the Respondent linked them together, and the Respondent has not
explained the reason for the linkage. Accordingly, I do not find this testimony of Abel to be 20
credible. Obviously, assuming the conversation occurred at all, there was more to the
conversation than Abel revealed.
On the basis of the foregoing I find the General Counsel has presented a strong prima
facie case in support of the complaint allegations. Accordingly, the General Counsel’s Wright 25
Line32 burden of proof has been abundantly satisfied. It is therefore incumbent on the
Respondent to show that the hiatus in hiring occurred for legitimate business reasons and that
none of the applicants would have been hired in any event.
Clearly the Respondent has not met its Wright Line burden of proof. Insofar as the 30
record evidence shows, Rudolph suddenly, within hours and perhaps within minutes of Abel’s
“salting” conversation with Michelle Anderson, which she immediately reported to Flerchinger,
imposed a hiring hiatus. This was at a time when there was a significant and immediate need
for more electricians on the job. Stranberg was an experienced and long time site
superintendent who had been entrusted to take over a difficult project on short notice. Stranberg35
believed that the requisite work warranted additional electricians, and indeed was receiving
pressure from the general contract to hire more electricians. Yet, insofar as the record
evidenced shows, Rudolph, without visiting the site and without prior consultation and
discussions with either the general contractor, Stranberg or Flerchinger, decided otherwise;
indeed, he told Abel about the hiatus before he advised anyone else. Such an abrupt, untimely, 40
unforeseen, unannounced, and improbable unilateral decision on the part of Rudolph defies
logic, and constitutes strong evidence of an ulterior motive.

30 Abel had checked his prior employment record and references and all of the responses were
highly favorable.
31 I discredit Stranberg’s testimony that he and Rudolph had a conversation about the matter.
Stranberg was not certain when the alleged conversation occurred; and when asked, answered,
“Oh, umm, it seems like just a couple of weeks into it [the project]. Umm, I don’t know,
everything was happening so fast for me.” Nor did Stranberg testify he knew about the hiatus
during his aforementioned conversation with Abel.
32 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
JD(SF)–44–13
17
Rudolph claims he does not recall just how he happened to determine that a July 9
hiring freeze was appropriate. I posited the following question to Rudolph:
Q. Okay, and when you decided…on or about July 9th, that you didn’t need any 5
more people, did you go to the site to check out whether you needed people, or
did you just talk to John [Stranberg] on the phone…
A. You know, I don’t recall exactly what happened. Typically, I would go out to
the site …in a situation like that, and a lot of times, they do tell me over the 10
phone. And John is competent enough to where he can tell me over the phone
exactly how the condition is.
Rudolph summarily testified that although his site superintendents are quite capable of
evaluating the need for more electricians and “very competent in what they do,” he will “at times” 15
overrule their request for more electricians. Yet Rudolph cited no specific examples of having
ever done so, and, moreover, did not testify that he had ever overruled the evaluation of
Stranberg. Rudolph acknowledged that overtime wages on a prevailing wage job can be high,
that in certain circumstances the additional cost might justify bringing on additional employees,
and that the determination of whether or not to hire additional employees to cut down on the 20
number of overtime hours requires “a case by case evaluation.” However Rudolph provided no
evidence that he made such an evaluation in this case; nor did he otherwise specifically explain
why the considerable and costly overtime hours being worked by the crew did not warrant the
hiring of additional employees. Rudolph acknowledged that pressure from a general contractor
might very well be justification to bring on additional electricians, as it is good business policy to 25
keep the general contractor happy; yet he did not testify that he had any conversation with the
general contractor about the matter, nor did he explain why he determined, in this particular
instance, that a hiatus in hiring was more important than keeping the general contractor happy.
Accordingly, from the foregoing, I find that the Respondent has not sustained its burden 30
of proof by showing that the hiatus or hiring freeze was imposed for legitimate business
reasons. Rather, as maintained and abundantly demonstrated by the General Counsel and the
Union, I find the hiatus was imposed because the Respondent was concerned that it was being
targeted by the Union with possible organizational activities, and believed that Anderson,
Tompkins, and Begley, and perhaps Ely,33 were union adherents who would engage in salting 35
activities and become potentially disruptive influences within the Respondent’s workforce.
Moreover, Ely submitted her employment application on July 13 but, according to Abel’s
testimony, her application was simply not processed during the hiring freeze. Having found that
the hiring freeze was imposed for discriminatory reasons, it follows that had there been no 40
unlawful hiring freeze her application would have been expeditiously processed within a matter
of a few days. The Respondent has presented no evidence showing that in the absence of the
hiatus Ely would not have passed the application process and would not have been hired. Thus,
I find that Ely would have been hired prior to the time the Respondent hired the “referrals” who
applied on July 18, 22, and August 20, and prior to the time the Respondent hired a “rehire” who 45
applied on August 1.

33 I have found that Abel was not a credible witness in many respects. Her testimony that she
did not know about Ely’s union membership and involvement because, due to the hiring freeze
she simply did not begin processing Ely’s application, seems unlikely.
JD(SF)–44–13
18
On the basis of the foregoing, I find that the Respondent, by coercively interrogating
employees regarding their union membership, by telling them that their hiring status is affected
by their union membership, and by advising them that they are not being hired because of their
union membership, has violated and is violating Section 8(a)(1) of the Act as alleged. C. P.
Associates, Inc., 336 NLRB 167, 168 (2001); 323 NLRB 238 (1997).5
Further, I find that the Respondent, by failing and refusing to hire Mark Anderson,
Steven Begley, David Tompkins and Margaret Ely because of their union membership or
because of a discriminatorily instituted hiring hiatus, has violated Section 8(a)(3) of the Act as
alleged. FES, 331 NLRB 9 (2000); Caruso Electric Corp., 332 NLRB 519, 523 (2000); Aim 10
Royal Insulation, 358 NLRB No. 91 (2012); C.P. Associates, Inc, supra; Quality Control Electric,
Inc., supra.
Conclusions of Law and Recommendations
15
1. The Respondent is an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
20
3. The Respondent has violated Section 8(a) (1) and (3) of the Act as alleged.
The Remedy
25
Having found that the Respondent has engaged in certain unfair labor practices, I
recommend that it be required to cease and desist therefrom and from in any other like or
related manner interfering with, restraining, or coercing employees in the exercise of their rights
under Section 7 of the Act. I shall also recommend the posting and mailing of an appropriate
notice, 34 attached hereto as “Appendix.”30
The Respondent, having discriminatorily refused to hire Mark Anderson, Steven Begley,
David Tompkins, and Margaret Ely, shall be required to offer them employment and make them
whole for any loss of earnings and other benefits, with interest computed on a quarterly basis,
less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus 35
interest, as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). All
reinstatement and backpay recommendations are subject to the procedures discussed in Dean
General Contractors, 285 NLRB 573 (1987), and Haberman Construction Co., 236 NLRB 79
(1978).
40

34 I find that mailing is necessary in this case as the Respondent’s principal office is not in the
vicinity of many of its projects, its employees work at sites throughout the State of Washington,
and the projects are temporary in nature.
JD(SF)–44–13
19
ORDER
The Respondent, D&S Electrical Contractors, Inc., its officers, agents, successors, and
assigns, shall
5
1. Cease and desist from:
(a) Coercively interrogating job applicants and telling them that their union membership may
affect their hiring status and that they are being denied employment because of their
union membership or activity.10
(b) Discriminatorily refusing to hire applicants for employment because of their union
membership or suspected union involvement.
(c) Discriminatorily refusing to consider applicants for employment by instituting a hiring 15
freeze in order to avoid having to hire applicants with suspected union involvement.
(d) In any like or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
20
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 Mark Anderson, Steven Begley, David
Tompkins, and Margaret Ely employment in the manner set forth in the remedy section
of this decision.25
(b) Make Mark Anderson, Steven Begley, David Tompkins, and Margaret Ely whole for any
loss of earnings and other benefits suffered as a result of the discrimination against them
in the manner set forth in the remedy section of this decision.
30
(c) 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.
35
(d) Within 14 days after service by the Region, post at its facility and at all construction
projects where it is performing work copies of the attached notice marked “Appendix,”35
and duplicate and mail a copy of the notice, at its own expense, to all current employees
and former employees employed by the Respondent at any time since July 9, 2012.
Copies of the notice, on forms provided by the Regional Director for Region 19, after 40
being signed by the Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not altered, defaced, or covered
by any other material.45

35 If the Order is enforced by the judgment of a United States court of appeals, the words in the
notice reading ”Posted by Order of the National Labor Relations Board” shall read “Posted
pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(SF)–44–13
20
(e) 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.
5
Dated, Washington, D.C. September 6, 2013

10
_______________________
Gerald A. Wacknov
Administrative Law Judge
15
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 Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT interrogate applicants for employment regarding their union membership or
union activities.
WE WILL NOT tell applicants for employment that they are not being considered for
employment or will not be hired because of their union membership or activities.
WE WILL NOT discriminatorily refuse to hire applicants for employment because of their union
membership or activities or impose a hiring freeze in order to avoid hiring union members.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the
exercise of the foregoing rights guaranteed them by Section 7 of the Act.
WE WILL offer employment to Mark Anderson, Steven Begley, David Tompkins, and Margaret
Ely, and make them whole for any loss of earnings and other benefits as a result of the
discrimination against them, less any net interim earnings, plus interest.
D&S ELECTRICAL CONTRACTORS, INC
_______________________________
(Employer)
Dated: ______________ By: __________________________________________
(Representative) (Title)
This is an official notice and must not be defaced by anyone.
This notice must remain posted for 60 consecutive days from the date of posting and must not
be altered, defaced, or covered with any other material. Any questions concerning this notice or
compliance with its provisions may be referred to the Board’s office, 915 2ND Avenue, Room
2948, Seattle, WA 98174-1078, Phone 206-220-6300