Gross Electric, Inc.

National Labor Relations Board - Board Decisions

May 9, 2018

366 NLRB No. 81 (N.L.R.B. 2018)

366 NLRB No. 81
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
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be included in the bound volumes.
Gross Electric, Inc. and International Brotherhood of
Electric Workers, Local 236. Case 03–CA–
187577
May 9, 2018
DECISION AND ORDER
BY MEMBERS MCFERRAN, KAPLAN, AND EMANUEL
On May 22, 2017, Administrative Law Judge Ira San-
dron issued the attached decision. The General Counsel
filed exceptions and a supporting brief.1
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 brief and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.
The General Counsel excepts to the judge’s dismissal
of the complaint allegation that the Respondent violated
Section 8(a)(3) and (1) of the Act by refusing to hire
John Mosher (Mosher) because he engaged in union or
other protected activity under the Act. For the reasons
that follow, we reverse the judge and find this violation.
A. Facts
The Respondent, an electrical contractor in the con-
struction industry, is a signatory to a collective-
bargaining agreement between the Albany Chapter of the
National Electrical Contractors Association and Interna-
tional Brotherhood of Electric Workers, Local 236 (“Un-
ion”), effective June 1, 2015, until May 31, 2018. The
agreement contains an exclusive hiring hall provision
and a grievance procedure. Under the agreement’s
grievance procedure, if the parties are unable to adjust a
grievance within 48 hours, it is automatically referred to
a labor-management committee consisting of three em-
ployer representatives and three union representatives.
Union president John Mosher served as one of the union
representatives on the committee.
On September 27, 2016,2 the labor-management com-
mittee held a grievance hearing concerning a grievance
filed by Jimmy Miller, an inside journeyman wireman.
The Respondent had rejected Miller for a job at the
Lafarge project in Ravena, New York, where it had a
contract for electrical work. During the grievance hear-
ing, Joseph Gross, the Respondent’s president and own-

1 By order dated September 13, 2017, the Board denied the Re-
spondent’s request for acceptance of its untimely answering brief.
2 All dates are in 2016, unless otherwise noted.
er, was asked why he had rejected so many applicants for
employment. He responded that he generally left the
selection of applicants to his job foremen. Mosher asked
Gross what the harm would be in giving a chance to ap-
plicants who had never previously worked for him.
Gross answered that the collective-bargaining agreement
gave him the right to reject an applicant for any reason.
They continued to debate this issue. Someone other than
Gross or Mosher brought up the name of Robert War-
rings, the lead general foreman on the Lafarge project.
Mosher subsequently made derogatory comments about
Warrings and his management style, including that War-
rings bullied employees, and also criticized Gross for
employing Warrings as general foreman. Although the
interaction between Mosher and Gross was heated, nei-
ther of them engaged in any threatening behavior.
Thereafter, Mosher applied to work at the Lafarge pro-
ject on several dates, but was rejected each time. Union
steward Michael Martell, who spoke to Warrings about
the Respondent’s refusal to hire Mosher, testified that
Warrings stated that:
John [Mosher] had gone around bad mouthing Joe
Gross and his company and [me], and that if John
thought that he was going to go around and speak nega-
tively of the Company and of [me], and then think he
was going to work for [me], that it wasn’t going to
happen.
Martell later talked to Jerry Jones, the superintendent
at the Lafarge project, about the Respondent's refusal to
hire Mosher. Jones explained that Mosher “had burned
his bridge with Gross Electric due to his actions at a pre-
vious interaction with Joe Gross.” Subsequently, at a
labor-management cooperation committee meeting,
Gross observed that he had rejected Mosher because of
what Mosher had said about Warrings and his manage-
ment style, and the need to avoid a hostile worksite situa-
tion. Gross testified that he alone made the decision not
to hire Mosher “based on his negative comments” at the
September 27 hearing.
B. Discussion
The judge found that Mosher was not engaged in pro-
tected concerted activity at the September 27 grievance
hearing when he criticized the Respondent’s hiring pro-
cess, including Warrings’ conduct as a manager. In sup-
port of this finding, the judge reasoned that, because the
Union had never filed any grievances against Warrings
for bullying or other inappropriate conduct, nor had it
filed grievances against the Respondent’s hiring practices
under the collective-bargaining agreement, Mosher’s
criticisms of Warrings’ conduct did not involve issues
pertaining to the collective-bargaining agreement. The
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
judge also emphasized that the union representatives at
the hearing, including Mosher, rejected Miller’s griev-
ance and that, therefore, Mosher was not acting on behalf
of the Union when he made disparaging comments about
the Respondent’s hiring practices and criticized Gross for
employing Warrings.
Contrary to the judge, we find that Mosher was en-
gaged in protected union activity. Initially, we note that
the judge correctly recognized that Mosher attended the
grievance hearing in his capacity as union president, ex-
plaining that his “conduct was solely in connection with
his role as a union official.” It is true that Mosher’s con-
duct does not automatically constitute union activity
simply because he is a union official or because his
statements were made during a grievance proceeding.
See Tampa Tribune & Richard Banos, 346 NLRB 369,
370-371 (2006) (employee was not engaged in union or
other concerted activity during his coaching session with
foreman where employee was present in foreman’s office
as an employee and not in his representative capacity as a
union steward); Roemer Industries, Inc., 362 NLRB No.
96, slip op. at 7 (2015) (observing that union stewards
involved in the processing of grievances generally enjoy
the Act’s protection, but recognizing that not all conduct
occurring in that context is protected), enfd. mem. 688
Fed. Appx. 340 (6th Cir. 2017). Here, however, the
judge failed to consider that Mosher's statements ex-
pressing concerns about a supervisor’s unfair treatment
and selection of workers at a job site were directly relat-
ed to union members' employment concerns and, thus,
directly related to his role as union president. Therefore,
it follows that Mosher’s criticisms about the Respond-
ent’s hiring policies, Warrings’ conduct as a supervisor,
and Gross constituted protected union activity. See, e.g.,
Adams & Associates, Inc., 363 NLRB No. 193, slip op. at
6–7 (2016) (employer violated Section 8(a)(3) by refus-
ing to hire the union president where the hiring officials
relied in part on the employee’s conduct when she was
performing her duties as union president as the basis for
the refusal), enfd. 871 F.3d 358 (5th Cir. 2017); Beverly
Health & Rehabilitation Services, 332 NLRB 347, 361
(2000) (employee was engaged in protected union activi-
ty when, as union steward, she complained on behalf of
employees about a supervisor), enfd. 297 F.3d 468 (6th
Cir. 2002); BASF Wyandotte Corp., 278 NLRB 173, 183
(1986) (employer violated Section 8(a)(3) for issuing an
oral warning to employee for his conduct when he was
acting in the capacity of a union representative at a meet-
ing with the employer’s managers). 3

3 See also New York Telephone Co., 304 NLRB 183, 188 (1991)
(employer unlawfully disciplined employee who, in her capacity as
steward, disputed employer's permission-only rule for use of lounge);
In addition, there is no support in Board law for the
judge’s rationale that Mosher was not engaged in union
activity because the Union had not filed a grievance
against Warrings nor filed grievances challenging the
Respondent’s hiring policies. A union official is not re-
quired to file a grievance in order to be engaged in union
activity or to be protected from retaliation. See, e.g., Ti-
tanium Metals Corp., 274 NLRB 706, 707 (1985) (find-
ing unlawful retaliation against a union steward who had
spoken out for employees but “did not file a grievance
over [the issue]”). Moreover, we reject the judge’s rea-
soning that Mosher’s statements did not constitute pro-
tected union activity because the union-side members of
the labor-management committee (including Mosher)
voted to reject the grievance. As explained above, the
fact that Mosher's statements occurred in the context of a
grievance procedure is not controlling here. Rather, the
issue is that Mosher, as union president, raised concerns
with the Respondent pertaining to union members' em-
ployment-related issues. Accordingly, the ultimate out-
come of the grievance is not relevant to our finding that
Mosher was engaged in protected union activity.
Finally, the judge erred in finding the absence of ani-
mus or other unfair labor practices committed by the
Respondent to be a significant factor.4 Because the Re-
spondent acknowledged that it did not hire Mosher be-
cause of his statements at the September 27 grievance
hearing―statements that clearly constituted protected
union activity—evidence of animus is not a necessary
part of the analysis. The Board has consistently held that
where an employer undisputedly takes action against an
employee for engaging in protected activity, a Wright
Line5 analysis is not appropriate. See, e.g., Phoenix
Transit System, 337 NLRB 510, 510 (2002), enfd. 63
Fed. Appx. 524 (D.C. Cir. 2003); Nor-Cal Beverage Co.,

Moore's Cafeteria Services, 271 NLRB 287, 287 fn. 2 (1984) (employ-
er violated Sec. 8(a)(3) by refusing to hire applicant because of her
union activities and other protected concerted activities where employ-
er’s supervisors worked as supervisors for the employer’s predecessor
and, during that time, had numerous contacts with employee who was
an assertive union steward).
4 Member Emanuel agrees with the judge that there is no evidence
that Joe Gross harbored any animus against the Union or against John
Mosher for his union affiliation. To the contrary, Gross was a long-
time member of the IBEW. In his view, Gross’ conflict with Mosher
was largely personal and based on Mosher’s criticism of Gross’ man-
agement and hiring practices. However, he agrees with his colleagues
that Gross’ decision not to hire Mosher at the Lafarge project was in
response to Mosher’s protected statements at the September 27 griev-
ance meeting, and he also agrees that evidence of animus is not neces-
sary to that finding. He therefore joins his colleagues in finding the
violation.
5 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
GROSS ELECTRIC, INC. 3
330 NLRB 610, 611–612 (2000); Neff-Perkins Co., 315
NLRB 1229, 1229 fn. 2 (1994).
For all of the above reasons, we reverse the judge and
find that the Respondent violated Section 8(a)(3) and (1)
by refusing to hire John Mosher because he engaged in
union activity while serving as local president of the Un-
ion during a grievance hearing.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 3 in
the judge's decision.
“3. The Respondent violated Section 8(a)(3) and (1) of
the Act by refusing to hire John Mosher because he en-
gaged in union activity while serving as local president
of the Union during a grievance hearing.”
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent unlawfully refused to hire
John Mosher, we shall order the Respondent to offer him
instatement and to make him whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against him. Backpay shall be computed in ac-
cordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as prescribed in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010).
We shall also order the Respondent to compensate John
Mosher for his search-for-work and interim employment
expenses regardless of whether those expenses exceed
interim earnings. King Soopers, Inc., 364 NLRB No. 93,
slip op. at 1 fn. 2 (2016), enfd. in pertinent part 859 F.3d
23 (D.C. Cir. 2017). Search-for-work and interim em-
ployment expenses shall be calculated separately from
taxable net backpay, with interest at the rate prescribed in
New Horizons, supra, compounded daily as prescribed in
Kentucky River Medical Center, supra.
Finally, we shall require the Respondent to compen-
sate John Mosher for the adverse tax consequences, if
any, of receiving a lump-sum backpay award, and to file
with the Regional Director for Region 3, within 21 days
of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the back-
pay award to the appropriate calendar year. AdvoServ of
New Jersey, Inc., 363 NLRB No. 143 (2016).
ORDER
The National Labor Relations Board orders that the
Respondent, Gross Electric, Inc., Queensbury, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to hire applicants for employment be-
cause of their union or other protected, concerted activi-
ties.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
John Mosher immediate employment (instatement) to the
position for which he applied, or, if such position no
longer exists, to a substantially equivalent position.
(b) Make John Mosher whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, in the manner set forth in the remedy
section in this decision, plus reasonable search-for-work
and interim employment expenses.
(c) Compensate John Mosher for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 3,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
year.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusal to hire
John Mosher, and within 3 days thereafter, notify him in
writing that this has been done and that the refusal to hire
will not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its Queensbury, New York facility copies of the attached
notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director for Region 3,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-

6 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facilities involved in this
proceeding, 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 those facilities at any time since October 20,
2016.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 3 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. May 9, 2018
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to hire job applicants because
they engaged in union or other protected, concerted ac-
tivities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board's
Order, offer John Mosher immediate employment (in-
statement) to the position for which he applied, or, if
such position no longer exists, to a substantially equiva-
lent position.
WE WILL make John Mosher whole for any loss of
earnings and other benefits resulting from the unlawful
discrimination against him, less any net interim earnings,
plus interest, plus reasonable search-for-work and inter-
im employment expenses.
WE WILL compensate John Mosher for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and we will file with the Regional Director for
Region 3, within 21 days of the date the amount of back-
pay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar
years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to our unlaw-
ful refusal to hire John Mosher and we will, within 3
days thereafter, notify him in writing that this has been
done and that the refusal to hire will not be used against
him in any way.
GROSS ELECTRIC, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/03-CA-187577 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.
Alexander J. Gancayco, Esq., for the General Counsel.
Mark W. Couch, Esq. (Couch Dale Marshall P.C.), for the
Respondent.
GROSS ELECTRIC, INC. 5
DECISION
STATEMENT OF THE CASE
IRA SANDRON, Administrative Law Judge. This case is be-
fore me on a January 11, 2017 complaint and notice of hearing
(the complaint) stemming from an unfair labor practice charge
that International Brotherhood of Electric Workers, Local 236
(the Union or the Local) filed on November 4, 2016,1 against
Gross Electric, Inc. (the Respondent or the Company).
I conducted a trial in Albany, New York, on March 28 and
29, 2017, at which I afforded the parties full opportunity to be
heard, to examine and cross-examine witnesses, and to intro-
duce evidence.
Issue
Did Joseph Gross, the Respondent’s president and owner, re-
fuse to hire Union President John Mosher as a journeyman
electrician on the Lafarge project (Lafarge) on and after Octo-
ber 20, because Mosher engaged in union activity at a griev-
ance hearing held on September 27, more specifically making
statements concerning the Respondent’s hiring practices and
General Foreman Robert Warrings at Lafarge?2
Witnesses and Credibility
The General Counsel called Mosher; Mark Lajeunesse, un-
ion business manager and financial secretary, who attended the
grievance hearing; Michael Martell, union recording secretary
and union steward at Lafarge; and Gross as an adverse witness
under Section 611(c).
The Respondent examined Gross after his Section 611(c) tes-
timony, and called two individuals who were at the grievance
hearing: Stephen Chamberlain, manager of the National Elec-
trical Contractors Association (NECA), Albany Chapter; and
Kevin Haggerty, president of Flex Electric.
The Respondent’s counsel sought to offer the testimony of
Brian Hart of George Martin Electric, proffering that he would
testify that at a holiday party prior to September 27, Mosher got
into an altercation with other Local members. I rejected that
testimony on several grounds: (1) Gross’ testimony that his
knowledge of such played little role in his decision to deny
Mosher employment; (2) the lack of a logical nexus between
what might have taken place at a holiday party and Mosher’s
conduct and statements at the September 27 grievance hearing;
and (3) no suggestion by Gross that he considered Mosher vio-
lent or threatening. Indeed, Gross testified that aside from the
one grievance hearing, they otherwise have enjoyed an amiable
relationship in their labor-management interactions.
Credibility resolution is not critical to deciding the issue in
this case. As might be expected, the various witnesses to what
occurred between Mosher and Gross at the grievance hearing
had variations in recall, but the substance of their descriptions

1 All dates hereinafter occurred in 2016 unless otherwise indicated.
2 The General Counsel does not allege that Mosher engaged in pro-
tected concerted activity separate and distinct from his conduct as union
president. In any event, nothing in the record shows that any employ-
ees ever sought to have Mosher act on their behalves in any capacity
other than in his role as a union official. Accordingly, I need not ad-
dress the arguments in the Respondent’s brief disputing that Mosher
engaged in 8(a)(1) protected concerted activity.
varied in detail but not in substance, and none of their versions
were in direct conflict on material points.
I note that Gross testified that he would have been willing to
hire Mosher at jobsites other than Lafarge had Mosher applied
for them (which he did not). In this regard, Martel testified
without contradiction that on October 21, Warrings and Super-
intendent Jerry Jones both admitted 2(11) supervisors, told him
that Mosher was on a “do not hire” list. Inasmuch as it is un-
clear whether this referred only to Lafarge or to all of the Re-
spondent’s jobs, I do not find this testimony necessarily incon-
sistent with Gross’, and whether Gross would have rejected
Mosher for other jobs remains conjectural. Either way, the
issue remains the legitimacy of Gross’ motivation for not hiring
Mosher for Lafarge.
There was conflicting testimony regarding if and when the
Respondent announced a change in the way employees could
obtain the training that the Mine Safety and Health Administra-
tion required for electricians to work on the Lafarge jobsite.
However, resolving this disagreement is unnecessary inasmuch
as the Respondent does not contend that Mosher lacked the
requisite qualifications when he applied for work at the project
starting on October 20, and thereafter.
Facts
Based on the entire record, including testimony and my ob-
servations of witness demeanor, documents, written and oral
stipulations, and the thoughtful posttrial briefs that the General
Counsel and the Respondent filed, I find the following.
The Respondent at all material times has been a corporation
with an office and place of business in Queensbury, New York,
conducting business as an electrical contractor in the construc-
tion industry and engaged in commercial and industrial con-
struction. The Respondent does not contest jurisdiction as al-
leged in Paragraph 2 of the complaint, and I therefore find stat-
utory jurisdiction.
Joseph Gross has been the president and sole owner of the
Company since it began operations in 1994. Since before then,
he has been a member of the Local.
The Respondent is signatory to the collective-bargaining
agreement between the Albany Chapter of the National Electri-
cal Contractors Association (NECA) and the Union, effective
June 1, 2015, until May 31, 2018. (GC Exh. 3.) Relevant pro-
visions follow.
The agreement contains an exclusive hiring hall provision
(art. IV sec. 4.02) and, by its terms, gives an employer unfet-
tered discretion in determining whom to hire: (1) Article II
section 2.03 (management rights) provides, inter alia, that the
employer shall have no restrictions on hiring employees; and
(2) Article IV section 4.03 states, “The Employer shall have the
right to reject any applicant for employment.”
The grievance procedure is set out in article I. The first step
is attempted adjustment by one representative of each party. If
they are unable to adjust a grievance within 48 hours, it is au-
tomatically referred to a labor-management committee consist-
ing of three employer representatives and three union repre-
sentatives. The committee decides grievances by majority vote.
Both Gross and John Mosher, Local president since July
2015, are trustees for a contractual trust funds committee (con-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
cerning pensions, health and welfare, and annuities) and also
serve on the contractual labor management cooperation com-
mittee (LMCC).
Operation of the Referral System
When an employer such as the Respondent needs electri-
cians, it places a manpower request through the Union’s refer-
ral agent. Members looking for work hear a tape recording of
jobs being offered and then apply by phone. The Union main-
tains a daily report or log of members who applied and were
referred for work. See General Counsel Exhibit 17, the reports
from October 20 to November 4. Members are ranked in nu-
merical order, with those with the lowest number on top and
referred out first. The Union then provides the referrals to an
employer, who can accept or reject them. The employer is
required to put in writing its rejections or “spins” of applicants.
See General Counsel Exhibit 18, all of the Respondent’s rejec-
tions for Lafarge from October 20 to November 4.
Members are not required to apply for an announced job.
However, if they do not, and members below them on the list
do and get hired, they get a “ding” or a “strike.” This applies if
a member who has been rejected for a job does not continue to
apply for further postings of the same job; the Union tells
members to continue to apply because employers sometimes
change their minds and hire applicants they previously rejected.
An applicant who applies for a job, receives an offer, and then
turns it down also is given a ding. Three dings results in being
removed from the list and having to come back in and re-sign
up. Applicants who are rejected do not receive dings. Mosher
has never received any dings.
The September 27 Grievance Hearing
Jimmy Miller, an inside journeyman wireman, had given up
another job, out of the area, to apply for Lafarge. However, the
Respondent exercised its right under section 4.03 not to hire
him, and Miller filed a grievance alleging that his nonselection
was a violation of the “basic principles” (harmonious relations)
section of the agreement (GC Exh. 3 at 3). (GC Exhs. 4, 5.)
On the morning of September 27, the labor-management
committee met at NECA headquarters in Albany to hear two
grievances, the second of which was Miller’s against the Re-
spondent. The Union’s committee persons included President
John Mosher, Business Manager Mark Lajeunesse, and Assis-
tant Business Manager Michael Torres, who took notes. Kevin
Haggerty of Flex Electric was one of the three employer repre-
sentatives. Also in attendance were Stephen Chamberlain,
NECA Albany Chapter manager, and a union representative.
Miller, represented by Union Assistant Business Manager
Paul Fitzmourice, presented his case to the committee first. He
asked why, never having worked for the Respondent, he would
not be given an opportunity to prove himself. I credit Cham-
berlain’s uncontroverted and plausible testimony that Miller got
very emotional. Torres’ notes of the meeting (GC Exh. 16 at 2)
reflect that Fitzmourice stated that there was no violation of
section 4.03, which gave the contractor the right to refuse an
applicant.
After Miller and Fitzmourice left, Gross came into the room.
He first distributed a spreadsheet listing applicants that the
Respondent had rejected by project and date. (GC Exh. 8.)
When Gross was asked why he had rejected or “spun” so many
applicants, he responded that he generally left the selection or
rejection of applicants to his job foremen (at Lafarge, they in-
cluded General Foreman Robert Warrings), who were more
familiar with their needs and the qualifications of applicants.
Gross cited both section 4.03 and the management rights clause
as giving him the right to reject an applicant for any reason.
Mosher questioned the fairness of Gross not giving a chance
to applicants who had never previously worked for him. Gross
responded that he did not need a reason under section 4.03.
Mosher repeated what he had said. They went back and forth.
Someone other than Gross or Mosher brought up Warrings’
name. Thereafter, Mosher made disparaging comments about
Warrings and his management style (which he had observed at
a different jobsite), and directly or implicitly criticized Gross
for employing Warrings as general foreman. Thus, both Gross
and Mosher testified that Mosher stated that Warrings bullied
employees, and, Mosher also said that he did not like War-
rings.3 Gross did not specifically respond.
The exchange between Mosher and Gross was animated,
perhaps to the level of heated, but devoid of any threatening
behavior, and Mosher’s tone was elevated but not out of the
ordinary for a grievance hearing.4 I therefore do not credit
Gross to the extent that I believe he exaggerated Mosher’s level
of emotion during their exchange and relied on that as a reason
for later not hiring him.
After Gross had left, the committee unanimously decided
that the Respondent’s rejection of Miller did not violate the
agreement and that the grievance therefore lacked merit. See
General Counsel Exhibit 7. There is no evidence that grievanc-
es have ever been filed against Warrings for bullying or other-
wise engaging in improper behavior toward union members on
any jobsites.
Mosher’s Referrals to Lafarge
The Lafarge project, a large scale expansion and retrofit of
an existing cement plant in Ravena, New York, was by far the
Respondent’s biggest job at all times relevant; and for the peri-
od from October 20 to November 7, by far the largest number
of union referrals for journeymen jobs were for the Respond-
ent’s work there. See General Counsel Exhibit 17, the Union’s
day book report covering that time frame.
The Respondent has a contract of about $30 million for elec-
trical work at Lafarge, where it started work in approximately
March or April. The Respondent currently employs on the site
about 120–130 electricians who are engaged on providing addi-
tional add-ons that the client has requested. Jones is the super-
intendent or project manager, Warrings is lead general foreman,
and Joe Greene is another general foreman. Jones and War-
rings are union members and obtained their employment at the
project through the Union’s referral system, and presumably the
same holds true of Greene. Under the general foremen are

3 Credited testimony of Chamberlain, Gross, and Haggerty. Cham-
berlain also recalled that Mosher called Warrings “an asshole.” Tr.
297.
4 Credited testimony of Chamberlain at Tr. 298; see also Tr. 183
(Haggerty—neither of them raised his voice); Tr. 141 (Lajeunesse –
nothing out of the ordinary happened).
GROSS ELECTRIC, INC. 7
foremen who directly supervise the journeymen.5 The Compa-
ny has different supervisors on other jobs.
Through the contractual hiring hall procedures previously
described, Mosher applied to work at Lafarge on October 20,
21, 24, 27, 28, and 31, and November 3 and 4, and was rejected
each time. See General Counsel Exhibit 10, which also shows
that other applicants were rejected multiple times. For the peri-
od from August 3, 2016, through March 8, 2017, Mosher did
not otherwise apply for Lafarge or to work on four small jobs
for which the Respondent requested journeymen. See General
Counsel Exhibit 11.
General Counsel’s Exhibits 12 and 13 consist of a series of
October 20 internal management emails concerning the nine
journeymen, including Mosher, whom the Union referred for
Lafarge that day. In the first email, sent to various management
representatives, Assistant Controller Joey Vogt rejected four of
them (not including Mosher) and requested input on the others.
He received responses from Jones and Field Supervisor Bri-
an Pronto. Jones stated that feedback was needed on Mosher
(“he may be president of the local”) and (first name unclear)
Joseph (“a[sic] organizer.”). Pronto stated, “Joe may be reject-
ing [Mosher], stand by I can’t get a straight answer.”
In another email, Jones rejected one of the five remaining
journeymen. The final email was from Gross, agreeing to three
of the applicants (including Joseph) but rejecting Mosher.
Michael Martell, a journeyman electrician employed by the
Respondent at Lafarge, and union steward there, testified with-
out controversion about jobsite conversations that he had with
Jones and Warrings on October 21.
Inasmuch as both Jones and Warrings are admitted agents of
the Respondent, I reject the Respondent’s contention that Mar-
tell’s testimony concerning their statements to him was uncor-
roborated hearsay and “must be disregarded and discredited.”
(R. Br. at 25.) Rather, Federal Rules of Evidence, Rule
801(d)(2)(D) provides that a statement by a party’s agent con-
cerning a matter within the scope of the agency or employment,
made during the existence of the relationship, is not hearsay if
offered against a party as an admission by a party-opponent.
See U.S. Ecology Corp., 331 NLRB 223, 225 (2000), enfd. 26
Fed. Appx. 435 (6th Cir. 2001). Therein, the judge credited a
union vice president’s testimony about what a company negoti-
ator said to him regarding statements that the negotiator had
heard from other members of the employer’s negotiating team.
On that basis, the judge found bad-faith bargaining. The Board,
citing Section 801(d)(2)(D), rejected the respondent’s argument
that the statements constituted inadmissible double hearsay, and
upheld the judge’s determinations. See also Times Union, Cap-
ital Newspapers Division, 356 NLRB 1339, 1339 fn. 1 (2011);
United Rubber Workers, Local 878 (Goodyear Tire & Rubber
Co.), 255 NLRB 251, 251 fn. 1 (1981).
Furthermore, an administrative law judge has the discretion
to draw an adverse inference based on a party’s failure to call a
witness who may reasonably assumed to be favorably disposed
to the party and who could reasonably be expected to corrobo-
rate its version of events, particularly when the witness is the

5 Unrebutted testimony of Mosher at Tr. 96 and Journeyman Elec-
trician Martell at Tr. 270.
party’s agent and thus within its authority or control. Roosevelt
Memorial Medical Center, 348 NLRB 1016, 1022 (2006); see
also Martin Luther King, Sr., Nursing Center, 231 NLRB 15,
15 fn. 1 (1977); Underwriters Laboratories Inc. v. NLRB, 147
F.3d 1048, 1054 (9th Cir. 1998). In that circumstance, drawing
an adverse inference regarding any factual question on which
the witness is likely to have knowledge is appropriate. Interna-
tional Automated Machines, 285 NLRB 1122, 1123 (1987),
enfd. mem. 861 F.2d 720 (6th Cir. 1988).
Finally, Martell’s testimony about his conversation with
Jones was corroborated in relevant part by the tape recording
that he made as they spoke. (GC Exhs. 20(a) (the tape record-
ing), 20(b) (a transcript thereof).)
Accordingly, I credit Martell’s unrebutted versions of those
conversations and find the following.
On the morning of October 21, Martell approached Warrings
at or near the main office trailer. Martell expressed concern
about members being turned down for work at Lafarge, includ-
ing those who had not previously worked for the Company.
Warrings stated that the Respondent had a “do not hire list” of
people who for one reason or another would not be accepted.
Martell stated that he knew that Mosher had been refused work,
to which Warrings replied:6
John had gone around bad mouthing Joe Gross and his com-
pany and Bob Warings[sic], and that if John thought that he
was going to go around and speak negatively of the Company
and of Bob, and then think he was going to work for him, that
it wasn’t going to happen.
Warrings then spoke briefly about employees who had been on
the do not hire list but then taken off of it.
Later that morning, Martell approached Jones outside the
field foreman’s office. He expressed the same concern that he
had voiced to Warrings and cited Mosher as an example of
someone being turned down if he had not before worked for the
Respondent. Jones also responded that the Company had a do
not hire list, stating that Mosher “had burned his bridge with
Gross Electric due to his actions at a previously interaction with
Joe Gross”7 and that if Mosher wanted to pursue any other ac-
tion, he would have to speak directly to Gross.
At a LMCC meeting in approximately November, Gross
asked to meet separately with Lajuenesse and Mosher about
settling the NLRB matter. During the course of their conversa-
tion, Gross stated that he had rejected Mosher because of what
Mosher had said about Warrings and his management style, and
Gross’ desire to avoid a hostile worksite situation.
Gross testified that he alone made the decision to reject
Mosher for work as a journeyman electrician at Lafarge, “based
on his negative comments” at the September 27 hearing, “and
the nature of his emotional state saying it.”8 The Respondent
does not dispute that Mosher was qualified to perform the
work.9

6 Tr. 287.
7 Tr. 273–274.
8 Tr. 248–249; see also Tr. 247–248 (Mosher was rejected because
he expressed dislike for the supervisors and because his hire would
create a potential hostile workplace situation).
9 See Tr. 74–75.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
In the past, Gross has hired other union officers and execu-
tive board members.10
Analysis and Conclusions
Initially, I will address the impact of Sec. 4.03 of the collec-
tive-bargaining agreement, which the Respondent’s amended
answer raised as an affirmative defense to its rejection of
Mosher. The General Counsel’s brief (at 20-21) correctly
states the law on the matter. Thus, the unfettered right of the
Respondent to refuse referrals under Sec. 4.03 does not serve to
insulate the Respondent from liability it might have for engag-
ing in unlawful discrimination under the Act. As the Supreme
Court said in J.I. Case Co. v. NLRB, 321 U.S. 332, 337 (1944),
“‘The Board asserts a public right vested in it as a public body,
charged in the public interest with the duty of preventing unfair
labor practices.’ . . . Wherever private contracts conflict with
its functions, they obviously must yield or the Act would be
reduced to a futility.” See also NLRB v. Mackay Radio & Tele-
graph Co., 304 U.S. 333, 347–348 (1938).
In determining whether a refusal to hire is unlawful, the gov-
erning test is set out in FES, 331 NLRB 9 (2000), supplemented
333 NLRB 66 (2001), enfd. 301 F.3d 83 (3rd Cir. 2002). Ini-
tially, the General Counsel must show the following to estab-
lish a prima facie case: (1) the respondent was hiring, or had
concrete plans to hire, at the time of the alleged unlawful con-
duct; (2) the applicant had experience or training relevant to the
announced or generally known requirements of the positions
for hire, or in the alternative, that the employer has not adhered
uniformly to such requirements, or that the requirements were
themselves pretextual or were applied as a pretext for discrimi-
nation; and (3) antiunion animus contributed to the decision not
to hire the applicant.
Once the General Counsel has met that burden, the burden
shifts to the respondent to show that it would not have consid-
ered or hired, respectively, the applicant even in the absence of
his or her union activity or affiliation.
As to elements one and two above, there is no dispute that
the Respondent was hiring at the times that Mosher applied to
work as a journeyman electrician at Lafarge, or that he was
qualified to perform such work.
The issue is whether the General Counsel has met element
three, showing that Gross’ decision not to hire Mosher was
based on antiunion animus.
It is well established that disruptive and disrespectful con-
duct of applicants during the application process can lead to the
conclusion that the employer would not have hired them re-
gardless of their union activity. Exterior Systems, Inc., 338
NLRB 677, 678 (2002), citing Heiliger Electric Corp., 325
NLRB 966, 966 fn. 3 and 968 (1998) (“[T]here is no provision
in the Act or in the law developed by the Board that would
require an employer to . . . [be] subjected to rude or intimidat-
ing conduct.”). See also J & R Roofing Co., 350 NLRB 694
(2007), in which the Board found that the respondent met its
rebuttal of showing that it would not have hired the applicants
regardless of their union activities, because of their lewd and
sexually offensive comments.

10 Tr. 172–173 (Lajeunesse).
Here, Mosher’s conduct at the September 27 grievance hear-
ing was not in conjunction with his application for employ-
ment, and it certainly did not rise to the level of disruptive or
offensively disrespectful. The question, though, is whether or
not, his criticisms of the Company’s policies, Warrings’ con-
duct as a manager, and Gross (directly or indirectly) can be
considered as related to his position as union president.
There is no evidence that any grievances have ever been filed
against Warrings for bullying or other inappropriate conduct,
either at Lafarge, any other jobs of the Respondent, or any other
jobs of other contractors. Additionally, there is no evidence
that the Union has ever filed grievances against, or otherwise
objected to the Respondent’s policies rejecting applicants under
section 4.03 of the contract, either because they had not previ-
ously worked for the Company, or otherwise. Indeed, all of the
union members of the labor-management committee (including
Mosher) agreed with the employer representatives that Miller’s
challenge of rejection on that basis had no merit under the
agreement, and Fitzmourice even stated that the Respondent
could refuse Miller under section 4.03. Accordingly, by argu-
ing to the contrary, Mosher was taking a position at odds with
the Union.
Other significant factors include the following:
(1) The Respondent has rejected numerous other applicants
and at a higher rate than other contractors that are signatory to
the agreement.
(2) Gross is a union contractor and himself a member of the
Local, as are his managers at Lafarge.
(3) In the past, Gross has hired Local officers and board
members.
(4) The record is devoid of any evidence that Gross has ex-
pressed animus toward the Union or committed other unfair
labor practices.
The General Counsel (Br. at 19) cites Yesterday’s Children,
Inc., 321 NLRB 766, 767 (1996), vacated in relevant part 115
F.3d 36 (1st Cir. 1997), and other cases, for the proposition that
employees engaged in Section 7 activity in protest of actions by
their employer do not lose the Act’s protection simply because
they mention that they dislike a manager and would like to see
the manager discharged. Those cases are distinguishable.
Here, Mosher was not engaged in any protected concerted ac-
tivity as an employee per se; rather, his conduct was solely in
connection with his role as a union official. As noted above,
his statements about the Respondent’s hiring policies did not
mesh with the Union’s position, and Warrings’ “bullying” con-
duct has never been the subject of grievances or any protests by
the Union. Finally, Mosher’s statements about Warrings’ “bul-
lying” were generalized criticisms of his management style, not
tied to any specific actions that might violate the collective-
bargaining agreement.
In all of these circumstances, I conclude that Gross refused
to hire Mosher for Lafarge because he took offense at Mosher’s
criticisms of him, his policies under the contract that the Union
has not contested, and Warrings, and not because of antiunion
animus.
Accordingly, I conclude that the General Counsel has failed
to establish a prima facie case of unlawful failure to hire. As-
GROSS ELECTRIC, INC. 9
suming arguendo a prima facie case, I conclude that the Re-
spondent would not have hired Mosher even aside from any
union considerations because of Gross’ displeasure over
Mosher’s statements at the September 27 hearing that were not
sufficiently within the purview of his role as Local president to
constitute activity on behalf of the Union.
CONCLUSIONS OF LAW
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.
3. The Respondent has not engaged in any unfair labor prac-
tices under the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended11
ORDER
The complaint is dismissed.
Dated, Washington, D.C. May 22, 2017

11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.