Independent Electrical Contractors of Houston, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 2010

355 N.L.R.B. 1410 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 225
1410
Independent Electrical Contractors of Houston, Inc.
(I.E.C.) and Correct Electric, Inc. and Highrise
Electrical Technologies, Inc. and International
Brotherhood of Electrical Workers Local Union
No. 716 a/w International Brotherhood of Elec-
trical Workers, AFL–CIO. Cases 16–CA–
18821–2, 16–CA–19940, 16–CA–18879–1, 16–
CA–19027, and 16–CA–19979
September 30, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND HAYES
On October 5, 2001, Administrative Law Judge Jane
Vandeventer issued the attached decision finding, among
other things, that Respondent Independent Electrical
Contractors of Houston, Inc.’s (IEC) application referral
service was unlawful; that IEC acted as an agent of Re-
spondents Correct Electric, Inc. and Highrise Electrical
Technologies, Inc., and that they too acted unlawfully by
their use of IEC’s referral service; and that Respondent
Correct Electric unlawfully discharged employee A. Pe-
ter Kazolias.1 The Respondents each filed exceptions
and a supporting brief. The General Counsel and the
Union each filed answering briefs, and IEC filed a reply
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs, and has decided to
affirm the judge’s rulings, findings,2 and conclusions as

1 On September 11, 2009, the two sitting members of the Board,
Chairman Liebman and Member Schaumber, granted the Charging
Party Union’s motion to withdraw charges and the parties’ joint motion
to dismiss the complaint with respect to three additional Respondent
Employers—Central Electric Co., Lakey Electric, Inc., and Pollock
Summit Electric, L.P.—and remanded the case for non-Board settle-
ment with respect to them. Having carefully considered the matter, we
affirm those earlier actions, and we have amended the caption accord-
ingly. Further, in light of the settlement of the case against Lakey
Electric, we deny as moot IEC’s exception to having been named a
“party in interest” in that case.
2 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We also deny IEC’s and Highrise’s exceptions to the judge’s “fail-
ure” to strike the cross-examination testimony of two employees that
was taken while those Respondents’ lead counsel was absent due to
illness. The record shows that neither IEC nor Highrise was prejudiced
by the judge’s action, and also that they waived their objections at the
time.
modified below, and to adopt her recommended Order as
modified and set forth in full below.
The principal issue in this case is whether the applica-
tion referral service operated by IEC, and used by Cor-
rect Electric and Highrise Electrical, was unlawful. As
described below, this issue was fully litigated in KenMor
Electric Co., 355 NLRB No. 173 (2010). In that case,
the operation of IEC’s application referral service was
similarly at issue. In fact, the periods during which the
General Counsel alleges IEC operated the service in vio-
lation of the Act in the two cases overlap. In KenMor,
the Board considered the operation of IEC’s application
referral service during the period of January 1996 to Oc-
tober 1997 (when the hearing in that case commenced).
This case concerns the operation of the same referral
service during the overlapping period of January 1997 to
July 1999. Moreover, the parties most concerned with
the legality of IEC’s referral service—IEC, the General
Counsel, and the Charging Party Union—are all parties
here and were all parties in KenMor and actively litigated
the issue.3 Similarly, the complaint allegations and is-
sues of law in the two cases are virtually identical, as was
much of the material evidence. The facts found in Ken-
Mor and by the judge in this case establish that the ser-
vice operated in largely the same manner throughout
both time periods.
The one arguably significant change in the operation
of the system was IEC’s imposition of a $50 fee in Sep-
tember 1997 for each additional application that an indi-
vidual filed within a 30-day period after filing an initial
application. The fee requirement did not apply to appli-
cants who had been laid off by an IEC member within
the previous 30 days. KenMor, supra, slip op. at 2. IEC
eliminated the fee in April 1998. Thus, the system oper-
ated without the fee and with the fee during the period at
issue in KenMor and the same is true for the period at
issue in this case.4

There are no exceptions to the judge’s dismissal of the refusal-to-
hire allegations against Correct Electric and Highrise Electrical.
On May 24, 2010, the Union filed a motion to consolidate cases and
solicit briefs on issues raised by the Board’s decisions in Toering Elec-
tric Co., 351 NLRB 225 (2007); Oil Capitol Sheet Metal, Inc., 349
NLRB 1348 (2007); and Contractor Services, Inc., 351 NLRB 33
(2007). Specifically, the Charging Party requested that this proceeding
be consolidated with KenMor Electric Co., 355 NLRB No. 173 (2010),
which was then pending before the Board, and that the briefs solicited
address whether Toering Electric, Oil Capitol, and Contractor Services
should be applied in these cases. Respondent IEC filed a response
opposing the Union’s motion except with respect to the common com-
plaint allegations against it in both cases. In KenMor, supra, we denied
both motions.
3 Although the Respondent Employers in the two cases are different,
they are all IEC members and stand in the same relationship to IEC.
4 The only other change in the operation of the service was that in
April 1998 IEC began posting online the employment applications it
CORRECT ELECTRIC, INC. 1411
In KenMor, we found that by operating the service IEC
violated Section 8(a)(1) of the Act. Id., slip op. at 4–7.
We further found that, in operating the service, IEC acted
as an agent of its electrical contractor members, like Re-
spondents Correct Electric and Highrise Electrical in this
case, and, accordingly, that the contractor members “vio-
lated Section 8(a)(1) through their maintenance, support,
and use of IEC’s application referral system.” Id., slip
op. at 6.
The remedy we imposed in KenMor for the violation
of the Act caused by the operation of the referral system
was entirely prospective. It included a broad cease-and-
desist order pursuant to Hickmott Foods, 242 NLRB
1357 (1979), ordering that IEC cease and desist from in
any manner “interfering with, restraining, or coercing
employees in the exercise of their Section 7 rights.” Id.,
slip op. at 12. IEC was also specifically ordered to cease
and desist from “Maintaining an application referral sys-
tem for its member contractors that interferes with or
coerces employees in the exercise of the right to engage
in union activity.” Id. We further ordered IEC to take
the following affirmative action:

(a) Maintain, for a 2-year period from the date of
this Order, written records of the operation of its ap-
plication referral system, including applications, hir-
ing records, and information sufficient to disclose
how employment applications are processed,
marked, or segregated, and the basis for each referral
or failure to refer an application to an employer
seeking applications and, upon the request of the
Regional Director for Region 16 or his agents, make
available for inspection, at all reasonable times, any
records relating in any way to the application referral
system. [Id., slip op. at 12.]

In the present case, guided by our prior decision in
KenMor, we would not grant any other form or any addi-
tional relief intended to remedy the violation arising out
of the operation of the referral service even were we to
proceed and find that its continued operation continued
to violate the Act. Accordingly, we conclude that be-
cause the order in the prior case contains all the relief

collected in addition to retaining hard copies for members’ review.
However, that change did not otherwise affect the character of the
referral service.
that we would grant in this case, it serves no statutory
purpose to find a further violation of the Act during the
latter, but overlapping, period when IEC continued to
operate the referral service. A second finding combined
with a second remedy would be entirely redundant. We
therefore need not decide whether the elimination of the
fee for submission of additional application alone would
cure the violation caused by the operation of the referral
service. We note, however, that IEC eliminated the fee,
in part, because of the allegation in the prior case that it
was an element of an unlawful system. The Respondents
do not argue and we would not hold that Respondents
have repudiated their unlawful conduct under the stan-
dards established in Passavant Memorial Area Hospital,
237 NLRB 138 (1978).
For these reasons, we dismiss the allegations concern-
ing the operation of the referral service on the grounds
that their adjudication would not further the remedial
purposes of the Act.
Finally, we adopt the judge’s finding that Correct Elec-
tric discharged Kazolias due to his union activity and
affiliation, in violation of Section 8(a)(3).5
AMENDED REMEDY
Having adopted the judge’s finding that Correct Elec-
tric unlawfully discharged A. Peter Kazolias, we will
order the standard reinstatement and backpay remedies.
Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as
prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Correct Electric, Inc., Houston, Texas, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because of their union af-
filiation or activity.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
Section 7 rights.

5 With respect to the Kazolias discharge, we do not rely, as did the
judge, on the instruction Correct Electric’s president, Don Hammons,
gave to Kazolias’ supervisor to “set him [Kazolias] up,” as evidence of
unlawful animus. The record does not confirm that this instruction
referred to setting Kazolias up for discharge. However, the other evi-
dence cited by the judge establishes that the discharge was unlawful.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1412
2. Take the following affirmative action necessary to
effectuate the purposes of the Act.
(a) Within 14 days from the date of this Order, offer A.
Peter Kazolias full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make A. Peter Kazolias whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him, in the manner set forth in the
amended remedy section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
A. Peter Kazolias, and within 3 days thereafter notify
him in writing that this has been done and that the dis-
charge will not be used against him in any way.
(d) 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, time cards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of back pay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its Houston, Texas facility, copies of the attached notice
marked “Appendix.”6 Copies of the notice, on forms
provided by the Regional Director for Region 16, after
being signed by the Respondent’s authorized representa-
tive, 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 Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all em-
ployees employed by the Respondent on or at any time
since July 1, 1997.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official, on a form provided by the Region,

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.”
attesting to the steps that the Respondent has taken to
comply.

MEMBER HAYES, concurring in part and dissenting in part.
The principal issue in this case is the same as in Ken-
Mor Electric Co., 355 NLRB No. 173 (2010), where a
Board majority found Respondent IEC’s operation of an
application referral service for several nonunionized
electrical contractors in the Houston, Texas area to be
unlawful.1 I concur with my colleagues’ dismissal of the
complaint allegations relating to the operation of the re-
ferral service here, but my reasons for doing so are quite
different. They dismiss because the remedy is essentially
redundant of the remedy for violations found in KenMor.
I would dismiss because I find the Respondent’s referral
system lawful.
The majority in KenMor held that the application re-
ferral system in its totality interfered with the right of job
applicants who were union members and “salts” to be
hired on an equal basis with other nonunion applicants.
It embraced this new theory of violation in an apparent
attempt to circumvent both the lack of evidence of dis-
criminatory motivation in the operation of the system and
the legal barrier to disparate impact litigation under our
Act.2 It did so in spite of the facts that (1) this new the-
ory of violation was neither plead by the General Coun-
sel, nor fully litigated, and (2) with one exception,3 each
of the practices and procedures comprising the Respon-
dent’s system predate any union activity and is undisput-
edly lawful under Board precedent. This case simply
addresses continuation of the Respondent’s operations
over a time period extending beyond the period covered
by the KenMor litigation.
Of course, there is no statutory right for union mem-
bers and salts to be hired on an equal basis with nonun-
ion applicants, if what that really means is that union
members and salts should be hired in the same number or
percentage as other applicants. The Act only requires
that employers conduct their hiring process on a nondis-
criminatory basis, without regard to an applicant’s sup-
port for or opposition to unions. There has been no
showing that the Respondent IEC operated its system on

1 I join the majority in finding that Respondent Correct Electric vio-
lated Sec. 8(a)(3) and (1) by discharging employee A. Peter Kazolias
and in affirming the September 11, 2009 Order in this case dismissing
certain complaint allegations and remanding portions of this case for
non-Board settlement.
2 Contractors Labor Pool v. NLRB, 323 F.3d 1051 (D.C. Cir. 2003),
denying enforcement to 335 NLRB 260 (2001) (“the Board may not
draw support for its decision from the [Title VII] disparate impact line
of cases”).
3 I agree that the $50 fee for repeat filings by “outside applicants,”
which was implemented in response to the union salting campaign,
violated Sec. 8(a)(3) and (1). That practice was terminated in 2008.
CORRECT ELECTRIC, INC. 1413
a discriminatory basis. Even assuming the viability of an
8(a)(1) theory that a nondiscriminatory operation could
still have the reasonable objective tendency to interfere
with employees’ Section 7 rights—and the similarity
between that theory and disparate impact theory puts
such an assumption very much in doubt—the Board still
may not find a violation without first considering any
asserted business justifications and balancing those con-
siderations against the alleged invasion of employee
rights in light of the Act and its policy. ANG Newspa-
pers, 343 NLRB 564, 565 (2004). In this respect, the
majority erroneously fails to give any weight to the sub-
stantial business justifications the Respondents have ad-
vanced for the IEC policies which, in any event, do not
interfere with any cognizable Section 7 right.
Accordingly, I dissent.
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 vio-
lated 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 fire employees because of their union af-
filiation or activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights listed above.
WE WILL offer A. Peter Kazolias full reinstatement to
his former job as a journeyman electrician or, if that job
no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or
privileges to which he would have been entitled if he had
not been discriminated against.
WE WILL make A. Peter Kazolias whole for any loss of
earnings and other benefits that he has suffered as a re-
sult of our unlawful discharge of him, less any net in-
terim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any and all references to the
discharge of A. Peter Kazolias, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that our unlawful conduct will not be used
against him in any way.

CORRECT ELECTRIC, INC.

Robert G. Levy, II, Esq., for the General Counsel.
Frank L. Carrabba and Jennifer Soileau, Esqs. (Law Office of
Frank L. Carrabba, P.C.), for Respondents Independent
Electrical Contractors of Houston, Inc. and Highrise Elec-
trical Technologies, Inc.
Frederic Gover, Esq. (Canterbury, Stuber, Elder, Gooch &
Surratt), for Respondent Pollock Summit Electric, L.P., a
subsidiary of Integrated Electrical Services, Inc.
Judith Sadler and Charles Sykes, Esqs. (Sadler & Sykes), for
Respondents Lakey Electric, Inc., Correct Electric, Inc., and
Central Electric Co.
Patrick M. Flynn, Esq., for the Charging Party.
DECISION
STATMENT OF THE CASE
JANE VANDEVENTER, Administrative Law Judge. This case
was tried on 13 days in March, May, and June 2001.1 The
complaints allege Independent Electrical Contractors of Hous-
ton, Inc. (Respondent IEC),2 a trade association of electrical
contractors in the greater Houston, Texas area, violated Section
8(a)(3) of the Act by operating a discriminatory employment
application and referral service on behalf of its constituent
members. It is further alleged in the pleadings that Correct
Electric Co. (Respondent Correct) violated Section 8(a)(3) of
the National Labor Relations Act (the Act) by using Respon-
dent IEC’s application and referral service, by refusing to hire
or to consider for hire three applicants, and by terminating the
employment of one employee. It is alleged that Central Electric
Co. (Respondent Central) violated Section 8(a)(3) of the Act by
using Respondent IEC’s application and referral service, and by
refusing to hire or to consider for hire four applicants. It is
further alleged that Lakey Electric, Inc. (Respondent Lakey)
violated Section 8(a)(3) of the Act by using Respondent IEC’s
application and referral service, and by refusing to hire or to
consider for hire two applicants. The pleadings allege that
Pollock Summit Electric, L.P., a subsidiary of Integrated Elec-
trical Services, Inc. (Respondent Pollock Summit) violated
Section 8(a)(1) of the Act by instructing an employee to re-
move a union sticker from his hat, and violated Section 8(a)(3)
of the Act by using Respondent IEC’s application and referral
service, using discriminatory hiring criteria, and by refusing to
hire or to consider for hire two applicants. Finally, it is alleged
that Highrise Electrical Technologies, Inc. (Respondent High-
rise) violated Section 8(a)(3) of the Act by using Respondent
IEC’s application and referral service, and by refusing to hire or

1 The dates of trial were March 12 to 16, May 7 to 11, and June 12,
14, and 15.
2 In early 2001, Respondent IEC changed its name to Independent
Electrical Contractors, Texas Gulf Chapter, Inc.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1414
to consider for hire two applicants.3 Each of the Respondents
filed answers denying the essential allegations in the com-
plaints. After the conclusion of the hearing, the parties filed
briefs which I have read.
Based on the testimony of the witnesses, including particu-
larly my observation of their demeanor while testifying, the
documentary evidence, and the entire record, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent IEC is a corporation with an office and place of
business in Houston, Texas. It is a trade association which
provides various services to its constituent member companies,
including education and training, lobbying, networking, and an
application and referral service for prospective employees.
During a representative 1-year period, Respondent IEC derived
gross revenues in excess of $250,000 annually from its pro-
grams. Accordingly, I find, as Respondent IEC stipulated at
trial, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The other Respondents herein are all electrical contractors
operating primarily in the Houston, Texas area. Each of them
admits that it is engaged in commerce within the meaning of
the Act, and is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and I so find.4
The Charging Party (the Union) is a labor organization
within the meaning of Section 2(5) of the Act.
II. UNFAIR LABOR PRACTICES
A. The Facts
1. Facts relating to Respondent IEC
Respondent IEC is a trade association of electrical contrac-
tors in the Houston, Texas, and surrounding area. The other
Respondents are all members of Respondent IEC. For many
years, Respondent IEC has served its members by, among other
things, offering training to employees and managers, lobbying
appropriate city or State governmental groups on issues of con-
cern to its members, offering a forum for “networking” among
its members, and providing a centralized employee application
and referral service for the use of those members who choose to
use it. According to Executive Director Bill Wilkerson, mem-
bership has traditionally been made up of electrical contractors
who do not have a collective-bargaining agreement with the

3 This proceeding was originally consolidated with one other case,
entitled Highlights of Houston, Inc., Case 16–CA–18821–1. That case
was settled during the first week of the proceedings, and was severed
from the remaining cases.
4 Respondents Highrise, Lakey, and Central each purchased and re-
ceived materials valued in excess of $50,000 from points outside Texas
during a representative 1-year period. Respondent Pollock Summit
performed services valued in excess of $50,000 for entities located
outside Texas during a representative 1-year period. Respondent Cor-
rect performed services valued in excess of $50,000 for a general con-
tractor engaged in commerce during a similar period. Thus, each of
these companies meets the Board’s jurisdictional standards.
Charging Party Union (the Union). He testified that a few
times over the past 10 or 12 years, a member of Respondent
IEC has entered into a collective-bargaining agreement, and in
every case that contractor has then let its membership in Re-
spondent IEC lapse. In addition, at least one member has en-
tered into a project agreement with the Union, that is, an
agreement which is limited to one jobsite and limited to the
duration of that project only. Overall, however, the electrical
contractors who make up the membership of Respondent IEC
are not signatory to collective-bargaining agreements with the
Union.
The application and referral service has been available to
members for more than 10 years, since at least 1989.
Wilkerson described the operation of this service from about
1997 to the present. Member contractors who do not desire to
accept employment applications directly from applicants, either
because of their small size or limited office staff, may direct
applicants to Respondent IEC, where a standard application
form may be filled out. Respondent IEC maintains these appli-
cations in three categories: journeymen electricians, apprentice
electricians, and “green,” that is, applicants who are untrained
or inexperienced in electrical work. This case is concerned
only with journeymen electricians. When an application is 30
days old, it is removed from the application files. Member
employers may come to the headquarters of Respondent IEC
and look over the applications, or they may pick up copies of
applications, or they may ask to have applications faxed to
them at their offices. For the past several years, since April
1998, the applicants have also been listed on Respondent IEC’s
web site, along with certain pertinent information from the
applications. Members may review the applicants on the web
site. If a member hires an applicant, the member is asked to
report this fact to Respondent IEC, so that that application may
be removed from the file of available employees, but Wilkerson
testified that this is not always done. For this reason, among
others, many member employers choose to look at only very
recent applications, from 1 day to several days. Respondent
IEC keeps no record of which member employers use the ap-
plication and referral service, or which applications they gain
access to by any of the available methods. Wilkerson testified
that Respondent IEC’s staff is instructed not to screen applica-
tions or withhold particular applications from a member who
asks to look at applications. Instead, they are instructed to pro-
vide all the applications for the category of employee and time
period requested. All Respondent IEC members may use the
application and referral service, whether they also accept appli-
cations directly or not.
In addition to the application and referral service, Respon-
dent IEC members may also participate in the “Shared Man
Program,” which enables one contractor to borrow one or more
employees for a stated period of time from another contractor.
Wilkerson explained that this enables the lending contractor to
retain an employee instead of having to lay him off, and en-
ables the borrowing contractor to get temporary help when
needed without having to hire new employees.
At about the same time the application and referral service
was begun at Respondent IEC and the Shared Man Program
was formalized, according to the testimony of Respondent Cen-
CORRECT ELECTRIC, INC. 1415
tral’s vice president, James Kuykendall, some member contrac-
tors discussed with one another their views about hiring poli-
cies and priorities. They evolved a list of hiring priorities
which is followed, with some individual variations which will
be noted below, by all the Respondents herein (other than Re-
spondent IEC). Under this system, the contractor who needs to
employ additional electrical workers looks first to former em-
ployees (who were satisfactory employees), secondly to indi-
viduals recommended by its current personnel, and if these two
sources of workers are insufficient, then thirdly to applications
on file with Respondent IEC.
In early September 1997, Respondent IEC imposed a $50 fee
for the second and each succeeding application filed by an in-
dividual during a 1-month period of time. Any employee of a
member contractor who came into Respondent IEC to file an
application was, however, exempt from the rule. Wilkerson
testified that this fee was imposed because the program was
costing too much, but he admitted that no analysis was done
either before or after the imposition of the fee to determine if
the rule was accomplishing its asserted goal. Wilkerson admit-
ted that for about 6 months prior to the imposition of the fee,
Ray Rath, Troy Lockwood, and Jojn Gafford had filed applica-
tions with Respondent IEC on numerous days each month, and
implied that he considered this as burdensome to the applica-
tion and referral service. These applicants testified that they
did so in order to keep their applications fresh, since they were
aware that many contractors requested applications for only a
day or a few days. Wilkerson testified that no applicant ever
paid the $50 fee in order to be allowed to file a second applica-
tion in a 1-month period. In early 1998, Respondent IEC dis-
continued the $50 fee, and substituted instead a rule flatly pro-
hibiting a second application during a 1-month period, except-
ing only employees who had been laid off after working for a
member contractor for less than a month from their first appli-
cation.
During the period 1997 to the time of the hearing, all the
witnesses agreed that electrical workers were in high demand
for most of that time, with perhaps occasional short lulls. This
fact influenced member contractors, according to the testimony
of several of them, to request applicants from Respondent IEC
for only the current day or a few days. They reasoned that most
of the applicants would secure jobs so quickly that it would be
a waste of time to contact or to interview any applicant who
had had a few days in which to secure a job. They believed that
applicants would be snapped up by other contractors within a
few days.
Respondent IEC publishes a monthly newsletter for its
members. In the March 1994 issue of the newsletter, a former
president of Respondent IEC, Jon Pollock, authored an article
advising fellow member contractors on techniques best calcu-
lated to avoid hiring any union members and/or union employ-
ees who intend to try to organize their fellow employees. In a
related article which echoed some of these sentiments and ad-
vice, and attributed some of the openly antiunion statements to
Robert Wilkerson, he testified that he was quoted inaccurately,
and that the material attributed to him actually came from Pol-
lock’s article. Wilkerson admitted, however, that he never
corrected or disclaimed the supposed misquotations in the
newsletter or otherwise.
2. The Union’s salting campaign
During 1997 and subsequently, the Union engaged in a “salt-
ing” campaign among some of Respondent IEC’s member con-
tractors. Certain electricians would apply to these contractors,
either directly or through the application and referral service,
and would overtly state that they were members of the Union
and intended to engage in organizing activities among the em-
ployees, if hired. The Union referred to such applicants as
“overt salts.” At times, other electricians would apply, some-
times on the same day as an overt salt, and would not include
on his application his union-identified apprenticeship or past
job experience. These applicants were called “covert salts.”
Most salts who were hired were expected to discuss the Union
with other employees and sometimes to engage in other orga-
nizing activities such as wearing a union pin or picketing.
Jack Smith, Ray Rath, Troy Lockwood, and John Gafford
are four applicants who are alleged to have been passed over
for consideration or for hire by certain of the Respondents.
Each one testified to his experience and qualifications as an
electrician. Smith has been a qualified journeyman since 1977,
is licensed by the city of Houston, and is experienced in com-
mercial and industrial electrical work. Rath, Lockwood, and
Gafford are also licensed as journeymen by Houston, experi-
enced in all types of electrical work, and each has 20 or more
years of experience as an electrician. In order to keep their
licenses current, each of these individuals attends refresher
training courses at least every 3 years. Rath and Smith testified
that they continue to perform electrical work from time to time,
and that they have no difficulty in performing electrical work
when they do so. At the time of the trial, Gafford was working
full time as a journeyman electrician.
It was stipulated that each of them filed applications with
Respondent IEC on numerous dates. The dates each filed such
applications in January through September 1997 are set forth in
the following chart.

Name January February March April May June July August September
Troy Lock-
wood
3 5, 12, 13, 17,
18, 20, 21,
24, 24, 26,
27
3, 4, 5, 6, 7,
10, 11, 13,
14, 17, 18,
19, 20, 21,
24, 31
1, 2, 3, 4,
7, 8, 9, 10,
14, 15, 16,
21, 22, 23,
24, 28, 29,
30
1, 2, 7,
9, 12,
13, 14,
15, 16,
19, 20,
23, 27,
28, 29
2, 3, 4,
5, 9, 10,
11, 12,
13, 18,
19, 23,
25, 26,
27, 30
14, 16,
17, 21,
23, 24,
25, 30,
31
4, 11, 12,
13, 25, 26,
27, 29
2, 3, 4, 5, 8
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1416
Jack Smith 19, 24, 31 1, 7, 8, 9,
10, 14, 15,
16, 18, 21,
22, 23, 24
6, 8, 12,
14, 15,
16, 19,
23, 28,
29
2, 3, 5,
6, 9, 11,
12, 16,
17, 18,
23, 26
3, 7, 8,
10,
10
John Gafford 6 5, 12, 13, 14,
17, 18, 24,
25, 27, 28
3, 4, 5, 6, 7,
10, 12, 14,
17, 18, 19,
20, 21, 24,
31
1, 2, 3, 4,
7, 8, 9, 10,
14, 15, 16,
17, 18, 21,
22, 23, 25,
28, 29
2, 5, 6,
7, 12,
13, 14,
15, 19,
20, 23,
27, 28,
29, 30
2, 3, 4,
5, 6, 8,
9, 10,
11, 12,
16, 17,
18, 19,
20, 23,
24, 25,
27, 30
1, 2, 3,
7, 14,
15, 16,
17, 18,
21, 22,
23, 24,
25, 28,
30, 31
1, 4, 5, 6,
11, 12, 13,
15, 20, 22,
25, 26, 27,
28, 29
3, 4, 5, 8
Ray Rath 3 5, 12, 13, 17,
18, 19, 20,
21, 24, 25,
26,
3, 4, 5, 6, 7,
13, 14, 17,
18, 19, 20,
24, 25, 31
1, 2, 7, 9,
10, 14, 15,
18, 21, 22,
23, 25, 28,
30
1, 2, 5,
6, 7, 8,
9, 12,
13, 14,
15, 16,
19, 20,
23, 27,
28, 29,
30
2, 3, 4,
5, 6, 9,
10, 11,
12, 13,
16, 17,
23, 25,
26, 27,
30
1, 2, 3,
7, 8, 9,
10,
11,14,
15, 17,
22, 23,
25
1, 11, 13,
14, 18, 19,
20, 25, 26,
27
2, 3, 4, 5, 8

In 1998, three of the same individuals filed applications with
Respondent IEC on the following dates:

Name Jan. Feb. Nov. Dec.
Troy Lockwood 29
Jack Smith 9 11 7
Ray Rath 2 2 7

In 1999, two of these individuals filed applications with Re-
spondent IEC on the following dates:

Name Jan. Feb
.
March April May June July
Jack
Smith

12

12

19

19

19

21

20
Ray
Rath

13

12

19

19

19

21

20

Danny Tilley, an applicant who openly stated on his applica-
tion that he would organize other employees on nonworktime,
filed an application at Respondent IEC on February 4, 1998.
Tilley had 25 years’ experience in the trade, and was a city of
Houston licensed electrician.
3. Facts relating to Respondent Correct
Don Hammons, the president of Respondent Correct, testi-
fied that its hiring priorities are as follows:

1. former employees;
2. recommendations from current employees; and
3. applicants to Respondent IEC.

Hammons stated that Respondent Correct is part of the for-
mal Shared Man Program, but did not state where its use may
fit into the hiring priorities. Hammons also testified that he was
familiar with Lockwood, Rath, and Gafford, and knew that they
were electricians who were also organizers for the Union.
According to Hammons, during 1997, it secured all its em-
ployees except one without resort to the third-hiring priority.
The one employee hired through an IEC application was Peter

Kazolias in July 1997. According to Kazolias, he was inter-
viewed and hired by Hammons as a journeyman at a pay rate of
$15 per hour. Kazolias had been a foreman on some past jobs,
but according to his testimony, he informed Hammons during
the initial interview that because of some family duties, he did
not want to be a supervisor. Kazolias recalled that Hammons
commented that the people who run his jobs get paid more than
$15 an hour.5 Kazolias worked as a journeyman for 2 months
without incident.
In September, Kazolias participated in picketing Respondent
Correct’s jobsite at the lunchbreak along with an organizer
from the Union, Troy Lockwood. Hammons admitted that he
was told that Kazolias was picketing on behalf of the Union.
About a week later, Hammons instructed Ken Kaiser, Respon-
dent Correct’s vice president, to assign Kazolias as a foreman
to a jobsite at a considerable distance. Kaiser, in testifying,
said that Hammons had told him to “set him up,” referring to
Kazolias. Kazolias testified that when Kaiser told him about
the assignment as foreman, he protested that his mother’s ill-
ness made it difficult for him to spend more time on the job
than he was doing as a journeyman. He mentioned that the
greater distance of the new jobsite and the increased duties that
a foreman had to do would take too much time. According to
Kazolias, Kaiser told him that he could either take the fore-

5 Hammons stated that Kazolias was hired as a foreman, although he
had no clear memory of the interview. He based his statement on the
pay rate of $15 an hour, stating that he would not pay a mere journey-
man $15 an hour. However, when applying this criteria to a list of his
workers, he stated that he employed 14 foreman and 22 journeymen.
Hammons admitted that not all of the foremen had jobs to superintend.
Witness Kaiser could not corroborate Hammons, and simply stated that
he did not remember what the pay levels were for different categories
of employee. In addition, Hammons initially denied knowledge of
Kazolias’ picketing activity, before admitting that he had been told
about the picketing. Kazolias, while appearing to be an individual who
thinks highly of himself, was straightforward in testimony and recalled
details without difficulty. His testimony stood up well under cross-
examination. For all these reasons, I credit Kazolias over Hammons.
CORRECT ELECTRIC, INC. 1417
man’s job, or his pay would be cut. When Kazolias said that he
would take a pay cut, Kaiser asked him to wait, and left. When
he came back, he simply told Kazolias that he was being termi-
nated. The termination slip in Respondent Correct’s files states
that Kazolias had quit, but a subsequent letter from Kaiser
stated that Kazolias had been terminated because he refused a
foreman’s job assignment. No explanation was offered for this
discrepancy.6
4. Facts relating to Respondent Lakey
Kyle Gilmore, Respondent Lakey’s superintendent for the
past 7 years, testified concerning its hiring policies and actions
during 1997 and 1998. Respondent Lakey’s hiring priorities
are as follows:

1. former employees;
2. referrals from current employees;
3. loaned employees (not from Shared Man Program);
and
4. applicants from Respondent IEC.

Gilmore later added two glosses on category two, stating that
recommendations from former employees or from other con-
tractors were considered to be referrals within the second prior-
ity. Respondent Lakey is not a participant in the formal Shared
Man Program, but does, according to Gilmore, have informal
arrangements with a few other contractors to borrow or lend
employees.
Lakey hired four journeymen electricians in February 1998,
and two in March 1998.7 Gilmore testified that he begins to
look for employees 2 or 3 weeks ahead of the time that he
needs to hire them. He also had a practice at that time of hav-
ing all the journeyman applications which Respondent IEC
received faxed to him every day. Gilmore testified that while
he believed it was up to the employees to have a union cam-
paign, but he didn’t want to “bring in” union organizers.

6 Kaiser’s version of this conversation differed in his attribution of
the option of taking a pay cut to Kazolias. Kaiser testified that being a
foreman did not require spending additional time on the job, despite the
extra duties of ordering materials, filling out timesheets, laying out the
job, and directing other employees’ work. His answers were often
vague or even evasive, especially on cross-xamination, and his memory
was not good, even on basic facts which were within his area of respon-
sibility, such as the wage rates paid employees. I credit Kazolias over
Kaiser.
7 The record reflects that Respondent Lakey hired Joe Elizondo and
Joe Fenn on February 13, 1998; Neil Howland in early February 1998;
Paul White on February 20, 1998; Scott Lee on March 4, 1998; and
Alan Dalton on March 9, 1998. Respondent Lakey filed a motion to
correct the record as to a stipulation and in the alternative to take ad-
ministrative notice of a document contained in a regional office investi-
gative file. I decline to take administrative notice of a document in an
investigative file. In addition, because the record as a whole, both
testimony and exhibits, is sufficiently clear as to the employees hired
by Respondent Lakey, I find that the ambiguous stipulation is not con-
trolling, and I deny Respondent Lakey’s motion to correct the record in
that regard.
5. Facts relating to Respondent Central
Respondent Central has operated as a nonsignatory electrical
contractor since about 1983. James Kuykendall testified that its
hiring priorities are:

1. former employees;
2. individuals “who are compatible with our shop’s
philosophy” recommended by current employees;
3. Shared Man Program; and
4. Applications from Respondent IEC.

During his testimony, Kuykendall stated that Respondent
Central wants to remain union free.
Respondent Central hired a journeyman electrician (Pablo
Rios) on July 19, 1997, and another journeyman electrician
(Steve Shelton) on February 16, 1999. Both these employees
were contacted through their applications filed at Respondent
IEC. Rios had only 5 years of experience doing residential
wiring, and none at all in industrial and commercial work,
which is the bulk of Respondent Central’s work. Shelton had
about 20 years of experience, and was not a member of any
union. Admitted Supervisor David Templeman interviewed
and hired him. Kuykendall testified that Templeman was the
representative of Respondent Central who procured applica-
tions from Respondent IEC, interviewed, and hired employees.
Templeman is no longer in Respondent Central’s employ and
did not testify.
As detailed above, Gafford, Lockwood, and Rath all had
timely applications on file at Respondent IEC throughout July
1997. All three of these employees had longer experience in
the trade than did Rios as well as being experienced in com-
mercial and industrial work. Rath and Smith had timely appli-
cations on file at Respondent IEC on February 16, 1999. None
of these four applicants were contacted or interviewed by Re-
spondent Central.
Kuykendall testified that Respondent Central hired both Rios
and Shelton because their applications showed “stability,” i.e.,
that they were stable employees, unlikely to leave Respondent
Central’s employment. Shelton remained employed at Respon-
dent Central for only a few months.
6. Facts relating to Respondent Highrise
Paul Blount, president of Respondent Highrise since 1993,
testified that his company’s hiring priorities are:

1. former employees;
2. individuals recommended by current employees;
and
3. applications from Respondent IEC.

Blount stated that he normally views only applications from
the past few days, since employees who filed applications of
any earlier dates are likely to have secured jobs already. The
evidence shows that one employee, John Easton, was inter-
viewed by Blount for a position at some time during July 1999,
but that he was told by Blount a few days later that another
individual had been hired. This testimony was not contradicted
by Blount. He simply did not recall exactly when he had hired
a journeyman, but thought it was around July 1999.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1418
Blount also testified that when he began the company in
1993, he told fellow union electricians who were considering
coming to work for him that he had “decided” to operate the
company nonunion.
7. Facts relating to Respondent Pollock Summit
James Roberts, Respondent Pollock Summit’s vice president
for field operations, testified concerning its hiring policies and
priorities. They are as follows:

1. current employees;
2. former employees;
3. recommendations of supervisors;
4. recommendations of employees; and
5. applicants to Respondent IEC.

Roberts testified that he customarily requests from Respon-
dent IEC only those applications filed on the day he visits the
office. He picks up copies in person. Respondent Pollock
Summit called a business consultant, G. Whitney Smith, to
testify as an expert on the subject of hiring policies. He testi-
fied that Respondent Pollock Summit’s hiring priorities consti-
tute a rational system. G. W. Smith’s experience in the con-
struction industry and his knowledge of its particular needs was
extremely slight. The testimony of this witness was no more
informative than a general text on the subject of human re-
sources management. I find that it was too general to be of
value in determining the issues in this case, and I accord it very
little weight.
Respondent Pollock Summit hired two journeymen in April
1999 (John Easton and Taylor), one in May and one in July.
Roberts testified that Taylor was hired as a service truckdriver.
Although he does not recall seeing the applications filed by
Rath and Smith in April, he testified that their applications do
not reflect experience in the particular job of service truck-
driver, and that hence they would not have been as well quali-
fied as the employee who was hired.
Employee John Easton was hired on the basis of an applica-
tion he filed on April 19, 1999. Both Ray Rath and Jack Smith
filed applications on the same date. Easton testified that he
applied as a “covert” salt, omitting any past experience which
would identify him as a union supporter or member. After a
few weeks of employment at Respondent Pollock Summit,
Easton began wearing a sticker bearing the name of the Union
on his hardhat. According to Easton, a few days after he began
wearing the sticker, Roberts approached him and told him that
it was against company policy to wear union stickers on hard-
hats, and ordered him to remove the sticker. Easton asked for a
copy of the Company’s policy. Roberts testified that the Com-
pany owns the hardhats, and does not allow certain stickers to
be placed on them, such as stickers bearing the name of another
company, but it does allow safety-related stickers and flag
stickers on the hats.8

8 To the extent that Roberts’ version of his conversation with Easton
differs from that of Easton, I credit Easton. Roberts was not an impres-
sive witness and his denial of having seen applications of Rath and
Smith on April 19, 1999, the very day for which he requested copies of
all applications filed, is incredible.
Some weeks later, employee Michael Frazier observed that a
sign reading “No Solicitation” in 2-inch high letters was posted
on the jobsite trailer following a visit to the jobsite by some
individuals picketing on behalf of the Union.
B. Discussion and Analysis
1. The applicable law
The lead case concerning the elements which must be estab-
lished and rebutted in refusal to hire or refusal to consider for
hire cases is FES, 331 NLRB 9 (2000). In that case, the Board
found that to establish a prima facie case, the General Counsel
must show: “(1) that the respondent was hiring, or had concrete
plans to hire, at the time of the alleged unlawful conduct; (2)
that the applicants had experience 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 pretex-
tual or were applied as a pretext for discrimination; and (3) that
antiunion animus contributed to the decision no to hire the ap-
plicants.” FES, supra at 12. If these elements are established,
the burden then shifts to the respondent, under Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir 1981), cert
denied 455 US 989 (1982), to establish that it would not have
hired the applicants in any case.
With respect to an allegation of refusal to consider for hire,
the elements which must be established are: “(1) that the re-
spondent excluded applicants from a hiring process; and (2)
that antiunion animus contributed to the decision not to con-
sider the applicants for employment.” FES, supra at 15.
Also relevant here, is a line of cases decided by the Board
which concern exclusionary hiring systems. In these cases,
where a respondent devises a scheme which excludes union
members or union supporters from basic eligibility for hire
because of antiunion animus, and in order to avoid hiring indi-
viduals who support a union, the Board has found the scheme
to be discriminatory, regardless of asserted business reasons
supporting the “reasonableness” of the scheme. See, e.g.,
D.S.E. Concrete Forms, 303 NLRB 890 (1991), enfd. 21 F.3d
1109 (5th Cir. 1994); Fluor Daniel, Inc. (Fluor Daniel III), 333
NLRB 427 (2001); M & M Electric Co., 323 NLRB 361
(1997); Eldeco, Inc., 321 NLRB 857 (1996).
The General Counsel argues, among other things, that Re-
spondent IEC’s application and referral service, taken as a
whole, is an unlawful exclusionary scheme, citing not only
Board cases, but the decisions rendered by Administrative Law
Judge Howard I. Grossman in two cases which involved mem-
ber contractors of Respondent IEC.9 While the ALJ decisions
are instructive, they are not binding, and the analysis which
follows relies upon Board precedent.
The Charging Party argues that the hiring scheme herein is
“inherently destructive” of employee rights. Citing NLRB v.
Erie Resistor Corp., 373 U.S. 221, 227 (1963), and NLRB v.
Great Dane Trailers, Inc., 388 U.S. 26, 33 (1967), the Charging
Party Union argues that a finding of antiunion animus motivat-
ing the hiring scheme is therefore unnecessary.

9 Those decisions are entitled Houston Stafford, et al., JD(ATL)–72–
98 and Pollock Electric, JD(ATL)–50–98.
CORRECT ELECTRIC, INC. 1419
Respondents argue that Respondent IEC’s application and
referral service is supported by rational business considerations,
and is motivated solely by those considerations, not by any
antiunion animus.
2. Respondent IEC
Respondent IEC was originally established to assist its
member contractors, essentially all of whom are nonunion, that
is, have unrepresented work forces. As is made clear by evi-
dence concerning the history, activities, and objectives of the
association, one of its aims is to assist its members in remaining
nonunion. While I do not attach great weight to the articles
authored by a former president of Respondent IEC which un-
ashamedly set forth suggestions for avoiding having to hire any
union members or salts, it is entitled to some weight. The arti-
cle can fairly be said to demonstrate that former Respondent
IEC president, Jon Pollock, at least, displayed antiunion ani-
mus. When viewed in conjunction with the record evidence as
a whole, it bolsters the conclusion that one of the objectives of
Respondent IEC is indeed to assist its contractor members in
remaining nonunion.
The elements of Respondent IEC’s hiring scheme include:
(1) the centralized acceptance of employment applications by
Respondent IEC on behalf of all its member contractors and the
communication of those applications to member contractors;10
(2) the formulation and administration of the Shared Man Pro-
gram; (3) the methods used in administering these programs,
which include the rules regarding frequency of application and
the lack of recordkeeping or provision of any information about
the operation of the system; and (4) the commonly formulated
and similar hiring priorities which all the Respondents herein
utilize in some variation or another.11
There can be little doubt that the use of this system as a
whole has the effect, and the predictable and foreseeable effect,
of reducing the probability that a union member or union-
associated employee will ever by considered for employment
by a member contractor utilizing the scheme. The first tier
(former employees or in some variations current and former
employees) comes from a group of employees who are know to
be unrepresented by a union and to have been so for many
years. The second tier (recommendations from employees or in
some variations supervisors and employees) is most likely to
consist of employees who come from an unrepresented envi-
ronment, especially if these employees are expected to be
“compatible” with the nonunion “philosophy” of the member
contractors. In some variations of the priorities, employees

10 Member contractors may have applications communicated to
them, as noted above, by any of several means, among which are per-
sonal perusal of the original applications, obtaining copies of the appli-
cations, having applications send by datafax, and perusing applications
on the website of Respondent IEC. Respondents have denied that
Respondent IEC is their agent for the purpose of collecting and com-
municating these applications on their behalf. In view of their reliance
upon Respondent IEC for this purpose and the entire record in this
proceeding, it is overwhelmingly clear that Respondent IEC acts as the
agent for its member contractors in the operation of the application and
referral service in all its aspects.
11 The variations in the hiring priorities utilized by each Respondent
are set forth below.
from the Shared Man Program are the next tier. These employ-
ees are guaranteed to come from a nonunion environment, as
they are employees of other Respondent IEC contractors, and
virtually all its members are nonunion contractors. Finally,
after exhausting the supply in all these tiers, the final resort is to
the applications filed with Respondent IEC. If priority is given
to employees who have worked for other Respondent IEC
member contractors at that step, as was suggested by some
witnesses, these employees too will almost certainly come from
a nonunion employer. By this time, the cumulative impact of
insuring that each source of potential employees is always a
nonunion or unrepresented environment, is multiplied at each
step, reducing the probability of having any union members or
supporters applying to these contractors to an extremely small
one.
Thus, the first opportunity that any union member or union-
associated applicant has to be considered is at the last step of
the three to five step priority system. In this case, the record
shows that four openly union members—Jack Smith, Rath,
Lockwood, and Gafford—applied many, many times to Re-
spondent IEC at a time when experienced journeymen like
themselves were in high demand, and were generally snapped
up by employers within a very few days, but they were never
contacted or interviewed by any of the Respondents, or by any
other Respondent IEC member contractor. This fact suggests
that at this final and only chance for union-identified applicants
to enter the employment of one of these contractors, no contrac-
tor would willingly choose, in Kyle Gilmore’s words, to “bring
in” union employees who intended to try to organize other em-
ployees. Another factor buttressing this inference is the com-
plete lack of any recordkeeping or accountability in the applica-
tion and referral service.
It is a clearly predictable and foreseeable effect of the system
that union employees will be virtually excluded from employ-
ment. When this effect is so obvious, and there is, as here,
other evidence of antiunion animus, the inference that this pre-
dictable effect was intended by the member contractors and
Respondent IEC in creating the system is virtually inescapable.
It is not necessary to reach, as the Charging Party argues, the
issue of whether the system is “inherently destructive” of em-
ployee rights by excluding union members from the possibility
of being hired. There is sufficient evidence of antiunion ani-
mus, and evidence from which inferences of antiunion animus
can be drawn, to support a finding that such antiunion animus
exists, and is one motivation for the application and referral
service scheme as a whole.
3. Respondent Correct
Respondent Correct, as found above, hired Peter Kazolias as
a journeyman, and believed he did good work for about 2
months. At that time, Kazolias began to engage in union activi-
ties such as picketing, and within a week, Hammons terminated
his employment, having instructed his vice president to “set
him up.” Kazolias had informed Hammons when he was hired
about his mother’s illness and consequent inability to supervise
a job or travel long distances to a jobsite. Hammons was well
aware that Kazolias would have to quit if given such an as-
signment. He essentially decided to terminate Kazolias. That
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1420
Hammons was motivated by antiunion animus in making this
decision is shown by the timing of the “Hobson’s Choice” pre-
sented to Kazolias, only a week after he began to engage in
union activities, by the irrationality of discharging an admit-
tedly good worker at a time when they were difficult to find, by
his instruction to Kaiser to “set up” Kazolias, and by the incon-
sistency in Respondent Correct’s records. Respondent Cor-
rect’s asserted defense, that Kazolias had been hired as a fore-
man, is not credited. I find, therefore, that Respondent Cor-
rect’s discharge of Kazolias violated Section 8(a)(3) of the Act.
Respondent Correct asserts that it hired only one employee,
Kazolias, through Respondent IEC’s application and referral
service in 1997, and that any others were hired through recom-
mendations or were former employees. Rath, Lockwood, and
Gafford, certainly did have applications on file with Respon-
dent IEC through most of 1997, and were qualified journey-
men. However, as there is no record evidence to show if and
when Respondent Correct actually did hire employees other
than Kazolias in 1997, I decline to find that it violated Section
8(a)(3) of the Act by refusing to hire Rath, Lockwood, and
Gafford. However, I find that by its participation in and use of
Respondent IEC’s discriminatory hiring system, Respondent
Correct violated Section 8(a)(3) of the Act.
4. Respondent Lakey
As stated above, Troy Lockwood filed an application with
Respondent IEC on January 29, 1998, and Danny Tilley filed
an application there on February 4, 1998. Both are qualified
and licensed electricians. Kyle Gilmore testified that he re-
ceives all applications filed with Respondent IEC, and that he
begins to look for qualified employees about 2 or 3 weeks
ahead of his staffing needs. The record reflects that Gilmore
hired three journeymen within the first 2 weeks of February
1998. By his own description of his method, then, both Lock-
wood and Tilley’s applications would have been among those
he reviewed. I therefore do not credit Gilmore’s denial that he
saw Lockwood’s and Tilley’s applications.
Gilmore’s testified that he hired Joe Elizondo, Joe Fenn, and
Neil Howland because they had recent experience and showed
“stability.” Two of the three, however, listed on their applica-
tions no electrical employment for the preceding 6 months.
Both Elizondo and Fenn had completed their electrical training
in 1986, and had less experience as journeymen than did Lock-
wood or Tilley. Gilmore testified that he hired Howland, a
covert union salt, because his application was the best one.
When shown Tilley’s application, Gilmore testified that it was
better than Howland’s application. The fact that Gilmore hired
Howland rather than Tilley can only be explained by Gilmore’s
unwillingness to hire an employee who intends to engage in
union activities and seek to organize other employees. Gil-
more’s testimony to the effect that he didn’t want to “bring in”
union organizers also shows that this was the reason he did not
hire Tilley, despite his better application. This fact gives rise to
the inference that his reason for declining to hire Lockwood,
despite his lengthy experience, was also motivated by antiunion
animus.
Gilmore defended his decisions on the basis that, in his ex-
perience, it takes an employee 2 or 3 weeks to become an effi-
cient worker, both physically and mentally, if the employee has
not been working in the trade recently. This is belied by the
fact that two of the three employees he did decide to hire in
February 1998 had not been employed doing electrical work for
at least 6 months. In addition, Jack Smith, Troy Lockwood,
and Ray Rath, who have resumed electrical work repeatedly
over the last few years, testified that they had no difficulty re-
suming electrical work, and did not require 2 or 3 weeks to get
reacclimated to the work. I find that Respondent Lakey has
failed to rebut the prima facie case, and violated Section 8(a)(3)
of the Act by failing to hire Troy Lockwood and Danny Tilley.
I find further that Respondent Lakey, by its use of Respondent
IEC’s discriminatory application and referral service, has vio-
lated Section 8(a)(3) of the Act.
5. Respondent Central
With respect to Respondent Central, the General Counsel has
shown that Jack Smith, Rath, Gafford, and Lockwood all had
timely applications on file with Respondent IEC in July 1997,
when Pablo Rios was hired, and that they were all qualified.
The third element, antiunion animus, has been demonstrated as
well. Kuykendall limited his willingness to accept recom-
mended employees to those “who are compatible with our
shop’s philosophy.” The only reference to any philosophy in
Kuykendall’s testimony was that the Company was operated
“union free” and wanted to continue in that fashion. One addi-
tional indication of animus contributing to the hiring decision is
the fact that Respondent Central passed over four highly quali-
fied journeymen in July 1997 in order to hire an individual with
only 5 years of experience, and that only in residential wiring.
Rios was an unlicensed electrician with no experience in com-
mercial or industrial work. Respondent Central’s asserted de-
fense, that he promised “stability” cannot be accepted. No
amount of stability could outweigh a significant deficiency in
qualifications for the work, and this defense does not rebut the
prima facie case. In the case of Shelton, it was not specified
what in his experience promised stability, but in fact, he did not
prove to be a stable employee. As Templeman, the superinten-
dent who made the hiring decision, was not present to state
with more precision exactly why he chose Shelton over appli-
cants Ray Rath and Jack Smith in February 1999, the prima
facie case is unrebutted. I therefore find that Respondent Cen-
tral violated Section 8(a)(3) of the Act by failing to hire Jack
Smith in July 1997 and February 1999, and failing to consider
for hire Troy Lockwood, John Gafford, and Ray Rath. I further
find that Respondent Central, by its use of Respondent IEC’s
discriminatory application and referral service, has violated
Section 8(a)(3) of the Act.
6. Respondent Highrise
The evidence establishes that Respondent Highrise hired one
journeyman in July 1999. Both Smith and Rath had applica-
tions of file with Respondent IEC which had not expired.
However, these applications were at least a week old by the
beginning of July 1999. If Blount examined only a few days
worth of applications, he most likely did not review the applica-
tions of Smith and Rath. While it is arguable that Respondent
IEC’s limitation on the filing of multiple applications during a
month, coupled with its refusal to keep records of the operation
CORRECT ELECTRIC, INC. 1421
of its referral system and its refusal to supply applicants with
any information about the fate of their applications should give
rise to a presumption that all applications on file have been
viewed by member contractors who use the system, I do not
presume that the applications were viewed by Blount. Even
assuming that Blount did see the applications, there is a failure
of proof as to the third necessary element, the required showing
that antiunion animus contributed to the decision not to hire the
applicants. Here, the only evidence of Blount’s animus is the
remote statement that he had “decided” to operate his Company
nonunion. Not only is this statement remote in time, it is am-
biguous when examined for the purpose of showing antiunion
animus. In any case, I find that little weight should attach to
the statement, and find that the General Counsel has failed to
establish that antiunion animus was a contributing factor to
Blount’s failure to hire or consider Smith and Rath in July
1999. I therefore dismiss that portion of the complaint with
respect to Respondent Highrise which alleges that it violated
Section 8(a)(3) of the Act by failing to hire or to consider for
hire Jack Smith and Ray Rath.
I shall find, however, in common with the other Respondents
herein, that Respondent Highrise’s use of Respondent IEC’s
discriminatory application and referral service violates Section
8(a)(3).
7. Respondent Pollock Summit
Employee John Easton, a “covert salt,” was hired by Re-
spondent Pollock Summit in April 1999. When, a few weeks
later, he wore a union sticker on his hardhat, James Roberts told
him that his “union sticker” was prohibited by company policy
and that he must remove it. Respondent Pollock Summit ar-
gues that its no solicitation policy, pursuant to which Roberts
was presumably acting, did not single out union stickers.
Whether the written policy is or is not lawful is beside the
point. Roberts singled out Easton’s union sticker for removal.
His oral instruction was coercive, and violates Section 8(a)(1).
With respect to Respondent Pollock Summit, the General
Counsel has shown that it did hire four journeymen during
April through July 1999, a period in which both Ray Rath and
Jack Smith, qualified journeymen, had active applications on
file with Respondent IEC. More precisely, it was shown that
both Rath and Jack Smith filed applications on April 19, 1999,
the very same day as John Easton, and individual who was
hired by Respondent Pollock Summit. This was admittedly the
day when James Roberts picked up applications for only April
19. In addition, the General Counsel has shown, through Rob-
erts’ coercive instructions to Easton concerning his union
sticker, that Respondent Pollock Summit possessed antiunion
animus. I rely on the Roberts-Easton incident rather than on
Frazier’s testimony concerning a large “No Solicitation” sign
he observed a couple of months later in the wake of picketing
in order to find antiunion animus. I find that the General Coun-
sel has established a prima facie case that Respondent Pollock
Summit failed to hire Jack Smith and Ray Rath because of their
union associations.
Respondent Pollock Summit has asserted in defense that one
of the jobs it filled was a service truckdriver, which required
specialized experience not possessed by Rath or Smith. Even
assuming that this is a valid defense, Respondent hired three
other journeymen, and raised no defense concerning these three
positions. The General Counsel’s prima facie case remains
with respect to those jobs.
With respect to its hiring priorities, which were specifically
alleged to be discriminatory, the General Counsel argues that
because the sources of employees in the first four steps of the
priority scheme were so very unlikely to contain any union-
associated applicants, it can be inferred that the system was
designed to exclude union-associated applicants, and violates
Section 8(a)(3) of the Act. This is a cogent argument. Respon-
dent Pollock Summit defends against this argument with the
assertion that the priority system is a “rational” business prac-
tice. As pointed out by the Board in Fluor Daniel, Inc. (Fluor
Daniel III), 333 NLRB 427 (2001), “‘Reasonableness’ is not
the standard by which the Board assesses an employer’s hiring
system.” Fluor Daniel III, supra at 437. As set forth above, the
entire scheme, level-by-level, acts to screen out more and more
effectively most union-associated applicants, greatly reducing
the probability that any union-associated applicants will reach
the point of having their applications reviewed or of being in-
terviewed. I find that the hiring system used by Respondent
Pollock Summit is discriminatory and violates Section 8(a)(3)
of the Act. I also find, in common with the other Respondents
herein, that Respondent Pollock Summit’s use of Respondent
IEC’s discriminatory application and referral service, including
its own variation of exclusionary hiring priorities, violates Sec-
tion 8(a)(3).
CONCLUSIONS OF LAW REGARDING RESPONDENT IEC
1. By its maintenance of a discriminatory and exclusionary
application and referral service, Respondent IEC has violated
Section 8(a)(3) and (1) of the Act.
2. The violation set forth above is an unfair labor practice af-
fecting commerce within the meaning of the Act.
THE REMEDY
Having found that Respondent IEC has engaged in certain
unfair labor practices, I shall recommend that it be required to
cease and desist therefrom and to take certain affirmative action
necessary to effectuate the policies of the Act.
[Recommended Order omitted from publication.]