Beacon Electric Co.

National Labor Relations Board - Board Decisions

Jul 12, 2007

350 N.L.R.B. 238 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
350 NLRB No. 26
238
Beacon Electric Co. and International Brotherhood
of Electrical Workers, Local Union No. 212,
AFL–CIO. Case 9–CA–35127
July 12, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On July 14, 1998, Administrative Law Judge Richard
H. Beddow Jr. issued the attached decision. The Re-
spondent filed exceptions, the General Counsel filed ex-
ceptions and a supporting brief, and the Respondent filed
an answering brief to the General Counsel’s exceptions.
On June 9, 2000, the Board remanded this proceeding for
further consideration pursuant to FES, 331 NLRB 9
(2000), supplemented 333 NLRB 66 (2001), enfd. 301
F.3d 83 (3d. Cir. 2002). On December 20, 2000, Judge
Beddow issued a supplemental decision, also attached
here. The Respondent filed exceptions to the supplemen-
tal decision, the General Counsel filed a brief answering
the Respondent’s exceptions, and the Respondent filed a
reply to the General Counsel’s answering brief. On July
28, 2003, the Board remanded the case “for further con-
sideration of whether, under FES, the Respondent can
demonstrate that it would not have considered or hired
the alleged discriminatees, even in the absence of their
union activity or affiliation.” On May 5, 2004, Adminis-
trative Law Judge Pargen Robertson issued the attached
second supplemental decision.1 The Respondent filed
exceptions to the second supplemental decision.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the initial decision, the sup-
plemental decision, the second supplemental decision,
and the record in light of the exceptions and briefs, and
has decided to affirm the judges’ rulings, findings,2 and
conclusions as modified and set forth in full below.3

1 At the time of the second remand, Judge Beddow had retired.
2 The Respondent has 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.
3 We shall modify the recommended Order to more closely conform
to the 8(a)(3) violation found. We shall also modify the judge’s rec-
ommended Order in accordance with our decision in Ferguson Electric,
335 NLRB 142 (2001). In light of our instatement and backpay order
for all of the alleged discriminatees, we shall further modify the rec-
ommended Order insofar as it includes a remedy for the Respondent’s
failure to consider them for employment. Jobsite Staffing, 340 NLRB
332, 333 (2003) (“[W]hen both a refusal-to-hire and a refusal-to-
consider for hire violation are found regarding the same applicant and
an instatement and backpay remedy is ordered for the refusal-to-hire
For the reasons stated herein, we find that the Respon-
dent violated Section 8(a)(3) and (1) of the Act by dis-
criminatorily refusing to hire and consider for hire the 49
alleged discriminatees4 based on their union affiliation.
I. BACKGROUND
The Respondent is an electrical contractor in Cincin-
nati, Ohio. Pursuant to a “salting” campaign, organizers
and members of the International Brotherhood of Electri-
cal Workers, Local Union No. 212, AFL–CIO (the Un-
ion) attempted to apply for work with the Respondent on
several occasions between January and May 1997.5 Al-
though the Respondent hired electricians during each
month of the salting campaign, it did not permit any of
the 49 alleged discriminatees in this proceeding to apply
for employment. The Respondent contends, among other
things, that it did not hire the alleged discriminatees, or
consider them for hire, because they were not referred
pursuant to its hiring policy. The Respondent further
asserts that individuals without referrals are not allowed
to apply for employment (the referral policy). In finding
that the Respondent violated Section 8(a)(3) and (1) by
refusing to hire or consider the alleged discriminatees,
Judge Beddow rejected the Respondent’s referral policy
defense as pretextual. As explained below, we agree that
the Respondent’s referral policy defense fails because it
is pretextual.6

violation, the remedy for the refusal-to-consider violation is subsumed
by the broader refusal-to-hire remedy.”). We shall further modify the
recommended Order to conform with the General Counsel’s amend-
ment of the complaint at the hearing to correct the spellings of dis-
criminatees Steger (not “Steber”), Longmire (not “Lingmire”), and
Johantges (not “Johantes”). We shall substitute a new notice to con-
form to the Order as modified and in accordance with Ishikawa Gasket
America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir.
2004).
4 The 49 alleged discriminatees are: Matthew Kolbinsky, Ken Muel-
ler, Paul Mahoney, Paula Smith, Steve Jaeger, Annette Garza, Bob
Lloyd, Paul Elbisser Sr., Milbert Thornton, Kevin Stenger, Ed Kaueper,
Mike Miller, Jerry Smith, Tony Wartman, Walter Zimmer, Bill
Heinzelman, James Rosenberger, Louis Proctor, Bill Steger, Jim
Traynor, Tim Seller, Gary White, Ronald Krumme, Donnal Ruehl, Jane
Cooper, Kevin Voisine, James Wakefield, Steven Dunaway, Ron
Smith, Gary Blanchet, Larry Hunter, Robert Longmire, Nelson Davies,
Thomas Lana, Robert Oliver, Gary Johantges, Charlie Cupp, Scott
Painter, Jay Rizzuto, Jerry Vaughn, Jerry W. Jones, Eleanor Kumler, Al
Neiderhelman, Ralph Stewart, Valeria Riley, Wayne J. Whalen,
Charles Fribourg, Tim Ward, and Ken Smith. The General Counsel
amended the Complaint at hearing to withdraw the allegations made on
behalf of Buck Conn.
5 Hereafter, unless otherwise indicated, all dates are in 1997.
6 In so finding, the Board does not address the legality of the Re-
spondent’s referral policy itself. Accordingly, Members Liebman and
Walsh find it unnecessary to decide whether, as Judge Beddow con-
cluded, the referral policy “constitutes a discriminatory practice inher-
ently destructive of important employee rights” and whether the Re-
spondent violated the Act by maintaining and hiring pursuant to such a
policy. In Chairman Battista’s view, a referral hiring policy constitutes
BEACON ELECTRIC CO. 239
II. FACTS
A. The Referral Policy
The Respondent adopted its referral policy in 1994, but
never put it in writing. Timothy Ely, the Respondent’s
general superintendent, testified that the Respondent
hires electricians (journeymen and apprentices) exclu-
sively by referral, and the company “turns away” anyone
who arrives at its office seeking to apply without a refer-
ral. The Respondent’s referral sources include current
employees, contacts in the industry, professional associa-
tions, vocational schools, temporary agencies, and per-
sonal contacts.
The referral policy—never disclosed to the public—
differs from the “Applications for Employment Policy”
that the Respondent posted in its office lobby throughout
the salting campaign:
BEACON ELECTRIC COMPANY
APPLICATIONS FOR EMPLOYMENT POLICY
Beacon makes every effort to select the most qualified
employees for employment. To accomplish this, it de-
velops a pool of applicants who are evaluated and
ranked so that the most qualified are selected from the
pool. Accordingly, Beacon accepts applications and re-
sumes only at specific times of the year, whether or not
it is currently hiring. The periods during which appli-
cations and resumes are accepted are determined by the
President of Beacon.
When applications are being accepted, they must be
completed in person at the main office of the company.
When the company is hiring, the applicants selected
from the pooled applications will be interviewed and be
required to pass certain skills, aptitude and substance
abuse tests.
As shown, the posted applications for employment policy
makes no mention of the fact that an applicant without a
referral will not be permitted to enter the pool from which
the Respondent selects its employees. By this omission, the
policy implies that anyone can enter the pool. In fact, the
only way to enter the applicant pool is to be referred by one
of the Respondent’s sources.
B. The Salting Campaign
Believing that the Respondent needed to hire electri-
cians in order to meet a contractual commitment, union
organizers and members made numerous attempts to
apply in person for employment with the Respondent
between January 21 and May 5. The Respondent was

a “legitimate employment practice” and he does not adopt the judge’s
findings to the contrary. See Dilling Mechanical Contractors, Inc., 348
NLRB 98, 101–103 at 4–6 (2006).
hiring during this period. In fact, the Respondent hired
71 electricians between January 21 and August 22.7 De-
spite the Respondent’s ongoing need for labor, however,
the 49 alleged discriminatees were not allowed to apply.
As detailed below, during the salting campaign the Re-
spondent did not tell the alleged discriminatees that they
could not apply because they did not have referrals. In-
stead, the Respondent deceived them by denying that it
was hiring and deliberately sought to divert them from
discovering its referral policy by leading them to believe
that—when it started hiring—they would be permitted to
apply, without referrals, in accordance with the posted
applications for employment policy.
1. January 21
The first application attempt occurred on January 21.
On that date, 10 union members, including organizers
Matt Kolbinsky and Ken Mueller, traveled to the Re-
spondent’s office and attempted to apply as a group.8 On
this and subsequent application attempts, the members
openly displayed their union affiliation.
On behalf of the group, Kolbinsky, a journeyman
wireman, asked the Respondent’s receptionist whether
the Respondent was hiring. The receptionist said that the
Respondent was “not hiring” and “not accepting applica-
tions.” Accordingly, she did not permit anyone in the
group to apply.
The Respondent did not hire any electricians that day,
but it hired an electrician both on January 22 and 23.
Between January 22 and February 3, the Respondent
hired a total of 10 electricians. None of the 10 union
applicants who sought to apply on January 21 were con-
sidered for these positions.
2. January 29
Four union members attempted to apply on January 29.
The Respondent hired three electricians that day, but it

7 The Respondent hired both journeyman and apprentice electricians
during this period. The record is silent as to the number of individuals
hired in each classification.
8 During the salting campaign, the union maintained a log that re-
corded the dates of the application attempts it organized and the names
of the union members who attempted to apply on each date. The judge
found that, with only one exception (the March 6 entry concerning
Buck Conn), the log “accurately reflects the presence of Union appli-
cants at Respondent’s facility during the various application at-
tempts[.]” The General Counsel does not except to this finding and we
find no merit in the Respondent’s exception concerning the log. Ac-
cordingly, the Union’s log (GC Exh. 11) is determinative as to the
identities of the union applicants who attempted to apply on the dates
set forth therein. Although Judge Beddow found that 11 union electri-
cians attempted to apply on January 21, the log shows that there were
10 union applicants on that date (organizers Mueller and Kolbinsky, as
well as members Gerald Smith, Valeria Riley, Paul Mahoney, Jean
Kumler, Louis Proctor, Paula Smith, Al Neiderhelman, and Ralph
Stewart).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD240
did not permit any of the union applicants to submit an
application.
The January 29 group consisted of Kolbinsky, Mueller,
and two former employees of the Respondent, Charles
Fribourg and Wayne Whalen. Mueller and Whalen each
had approximately 30 years of experience as an electri-
cian. Fribourg, a journeyman wireman for approxi-
mately 25 years, worked for the Respondent as a fore-
man/journeyman for approximately 3 years before quit-
ting in 1988.
On this occasion, Fribourg initially asked to speak with
the Respondent’s president, Joe Mellencamp, but the
receptionist told him that Mellencamp was out of town.
Fribourg then asked the receptionist for the name of the
Company’s “hiring agent,” identifying himself as a for-
mer employee and stating he had heard that the Respon-
dent had a sizeable job and was calling back some former
employees. The receptionist summoned Ely, who recog-
nized Fribourg and told him “we can’t take applications.”
Ely then referred the group to the applications for em-
ployment policy posted in the reception area of the Re-
spondent’s office.
Whalen then told Ely that he “wanted to make sure my
application was still in there. They said they had kept
my name on a [recall] list when I got laid off.” Ely re-
plied negatively and again said, “we’re not taking appli-
cations.” Ely then shut the window through which he
was speaking to the group as Whalen attempted to ask
another question.
By referring the union applicants to the posted applica-
tions for employment policy, Ely implied that that policy
remained in effect and that the union applicants would be
allowed to apply when the company started hiring. In
other words, Ely implied that the union applicants had
simply mistimed their application attempt. Mellencamp
reinforced that impression a few days later.
The applications for employment policy states that
“the President of Beacon” determines when the Respon-
dent will accept applications and resumes. Accordingly,
Fribourg followed up on the January 29 application at-
tempt by writing to Mellencamp to express his interest in
joining the Respondent’s applicant pool. Fribourg’s let-
ter, dated February 1, referenced the applications for em-
ployment policy and asked Mellencamp to notify him
when he planned to accept applications or resumes. Fri-
bourg stated that he knew other electricians who were
also interested in joining the applicant pool. Addition-
ally, Fribourg stated that “[i]f you do not plan to open
your pool then please inform me which Hiring service
Beacon is using.”
Mellencamp’s response, dated February 5, did not dis-
avow the applications for employment policy, and did
not disclose the unwritten referral policy:
Thank you for your letter dated 2/1/97. Beacon Elec-
tric is not advertising for applications or resumes for
electricians at this time. As you are aware, business
needs dictate when it may be necessary to place an ad-
vertisement for personnel. At this time we cannot pre-
dict when such need may arise.
The clear implication of this letter is that the posted applica-
tions for employment policy remained in effect but the Re-
spondent was not hiring at that time. Neither implication
was true.
3. February 21
Nineteen union members, including organizers Kol-
binsky and Mueller, attempted to apply on February 21.
The receptionist did not permit any of them to apply,
stating that the Respondent was “not accepting applica-
tions right now.” The Respondent hired an electrician a
few days later, on February 24. And it hired five more
on March 17.
In his February 1 letter to Mellencamp, Fribourg had
asked for the names of any “Hiring service” utilized by
the Respondent. Mellencamp responded by saying that
the company was not hiring (advertising for applications
or resumes).
On February 21, the Respondent, through a reception-
ist, specifically denied that it was hiring through tempo-
rary employment agencies. On that date, after the recep-
tionist said that the Respondent was “not accepting ap-
plications right now,” Kolbinsky asked whether the Re-
spondent was hiring through any temporary employment
agencies. The answer was an unequivocal “Nope.” The
receptionist gave the same answer when Kolbinsky asked
the question a second time. These representations were
false. In fact, the Respondent accepted referrals from
temporary employment agencies during each month of
the salting campaign.
4. February 27–May 5
Judge Beddow found that union applicants made
“about 16” application attempts between January 21 and
May 5. In addition to the three attempts discussed above,
the judge described the attempts on the following dates:
February 27, March 3, 6, 11, and 19, and April 17. Ac-
cording to the Union’s log, the other attempts organized
by the Union occurred on March 27; April 3, 10, and 25;
and May 1 and 5. During these attempts, the union ap-
plicants were never allowed to apply for employment and
were never told of the Respondent’s referral policy. In-
stead, they were repeatedly told that they could not apply
BEACON ELECTRIC CO. 241
because the Respondent was not hiring and/or not accept-
ing applications when, in fact, the Respondent was hiring
throughout this period, frequently within days of refusing
to allow the union applicants to apply.9
C. The Judges’ Decisions
In his initial decision, dated July 14, 1998, Judge Bed-
dow rejected the referral policy defense as pretextual. In
addition, he found that the referral policy “constitutes a
discriminatory practice inherently destructive of impor-
tant employee rights” and that the Respondent violated
Section 8(a)(3) and (1) by “maintaining and enforcing”
its referral policy, “failing to inform” the union appli-
cants of its referral policy, and “refusing to accept appli-
cation, to hire or to consider applicants for employment
unless they were referred by non-union sources.”
Following the Board’s remand for further considera-
tion in light of FES, Judge Beddow issued a supplemen-
tal decision, dated December 20, 2000. Therein, he de-
nied the Respondent’s request to reopen the record and
bolstered his conclusion that the Respondent violated the
Act by refusing to hire or consider for hire the alleged
discriminatees. In doing so, he again rejected the Re-
spondent’s referral policy defense, finding it pretextual.
On July 28, 2003, the Board remanded the case for a
second time, finding that “the General Counsel met his
initial burden under FES of establishing an unlawful re-
fusal to consider or to hire the union applicants,” but that
the judge improperly denied the Respondent “an oppor-
tunity to present evidence to show that it would not have
considered or hired the alleged discriminatees even in the
absence of their union activity or affiliation.” On re-
mand, the Respondent waived its right to a further hear-
ing, electing to rely on the existing record. Judge
Robertson, substituting for the retired Judge Beddow,
concluded that he was not authorized to review Judge
Beddow’s decisions and, instead, determined that he
could consider only “whether Respondent proved at the
reopened hearing that it would not have considered or
hired the alleged discriminatees in the absence of their
union activity or affiliation.” Because the Respondent
decided not to reopen the record, Judge Robertson con-
cluded that the Respondent did not meet its burden of
proof in the proceeding before him.

9 Chairman Battista notes that on more than one occasion the union
applicants appeared en masse at the Respondent’s office armed with a
tape recorder or video camera. In Chairman Battista’s view, such ac-
tions may be viewed as inconsistent with a genuine interest in obtaining
employment. In any case, he agrees that under the facts of this case,
and applying current law, the recordings were not inconsistent with a
genuine interest in employment for the reasons stated by the judge.
III. ANALYSIS
In FES, supra, the Board set forth its analytical frame-
work for determining whether an employer violates Sec-
tion 8(a)(3) by failing or refusing to consider or hire job
applicants because of their union activities or affiliation.
With respect to discriminatory refusals to hire, the Board
held:
[T]he General Counsel must, under the allocation of
burdens set forth in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), first show the following at the
hearing on the merits: (1) that the respondent was hir-
ing, or had concrete plans to hire, at the time of the al-
leged unlawful conduct; (2) that the applicants had ex-
perience or training relevant to the announced or gener-
ally known requirements of the positions for hire, or in
the alternative, that the employer has not adhered uni-
formly to such requirements, or that the requirements
were themselves pretextual or were applied as a pretext
for discrimination; and (3) that antiunion animus con-
tributed to the decision not to hire the applicants. Once
this is established, the burden will shift to the respon-
dent to show that it would not have hired the applicants
even in the absence of their union activity or affilia-
tion.
If the General Counsel meets his burden and the re-
spondent fails to show that it would have made the
same hiring decisions even in the absence of union ac-
tivity or affiliation, then a violation of Section 8(a)(3)
has been established.
331 NLRB at 12 (footnotes omitted). Regarding discrimi-
natory refusals to consider for hire, the Board stated:
[T]he General Counsel bears the burden of showing the
following at the hearing on the merits: (1) that the re-
spondent excluded applicants from a hiring process;
and (2) that antiunion animus contributed to the deci-
sion not to consider the applicants for employment.
Once this is established, the burden will shift to the re-
spondent to show that it would not have considered the
applicants even in the absence of their union activity or
affiliation.
“If the respondent fails to meet its burden, then a viola-
tion of Section 8(a)(3) is established.” Id. at 15.
In its second remand order, dated July 28, 2003, the
Board agreed with Judge Beddow’s finding that the Gen-
eral Counsel met his initial burden under FES of estab-
lishing an unlawful refusal to hire the alleged discrimina-
tees or consider them for employment. That finding is
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD242
the law of the case.10 In any event, we reaffirm our find-
ing that the General Counsel met his initial burden under
FES, as to both a refusal to hire and refusal to consider,
for the reasons set forth in Judge Beddow’s decisions.
As the General Counsel has met his initial burden un-
der FES regarding the Respondent’s refusal to hire and
refusal to consider the union applicants, the burden
shifted to the Respondent to show that it would not have
hired or considered them even in the absence of their
union activity or affiliation. FES, supra at 12, 15. In
attempting to meet its burden, the Respondent argues that
its consistent application of its referral policy, which it
adopted for legitimate business reasons, proved that it
would not have hired the alleged discriminatees or con-
sidered them for employment, even in the absence of
their union activity or affiliation.
Regardless of whether the Respondent normally ad-
hered to its referral policy, this defense fails because it is
pretextual. Jesco, Inc., 347 NLRB 903, 907 (2006)
(“The Respondent cannot rebut the General Counsel’s
initial showing of discriminatory motivation with a pre-
textual explanation.”); Leading Edge Aviation Services,
345 NLRB 977, 978 (2005), enfd. 212 Fed.Appx. 193
(4th Cir. 2007) (“Because the Respondent’s reasons for
not hiring Host for the second shift QC inspector position
have been found to be pretextual—i.e., they either did
not exist or were not actually relied on—they cannot
form the basis for a valid rebuttal to the General Coun-
sel’s case.”). Accord: McKee Electric Co., 349 NLRB
463, 465 (2007); Golden State Foods Corp., 340 NLRB
382, 385–386 (2003). The Respondent never revealed its
referral policy to the union applicants. The Respondent
did not rely on its referral policy when it rejected the
applicants. To the contrary, it gave other reasons for not
hiring, and each of the other reasons was false. The Re-
spondent deceived the union applicants by denying that it
was hiring (either directly or through temporary em-
ployment agencies) and deliberately sought to divert
them from discovering its referral policy by suggesting
that, once the company started hiring, they would be
considered for employment pursuant to its posted appli-
cations for employment policy (i.e., without referrals).11

10 Teamsters Local 75 (Schreiber Foods), 349 NLRB 77, 80 (2007);
Morgan Services, Inc., 339 NLRB 463 fn. 1 (2003) (adhering to law of
the case established by prior Board order); Technology Service Solu-
tions, 332 NLRB 1096 fn. 3 (2000), order modified on reconsideration
334 NLRB 116 (2001) (recognizing that unpublished orders of the
Board establish the law of the case in subsequent proceedings).
11 The Respondent excepts to the judge’s finding that its reception-
ists gave false answers to the union applicants, arguing that its recep-
tionists “were not intentionally untruthful.” We find no merit in this
exception. Irrespective of whether the receptionists intentionally gave
false information, the fact is that false information was given, and that
For instance, on January 29, the same day that the Re-
spondent hired three electricians, Ely turned away four
union electricians, including two former employees of
the Respondent, claiming, “we’re not taking applica-
tions.” Compounding the lie, Ely referred the group to
the posted applications for employment policy, which
does not mention a referral policy and, in fact, at least
implicitly indicates that applications will be accepted
from anyone who arrives at its office on a date when the
company is accepting applications. In his letter to Fri-
bourg dated February 5, Mellencamp also implied that
the posted policy remained in effect. The implication of
the Respondent’s false representations was that the Re-
spondent was not hiring anyone and that, once it did start
hiring, the union applicants would be permitted to apply
at its office, the same as nonunion applicants. In fact, the
Respondent was hiring throughout the salting campaign,
pursuant to its unwritten and undisclosed referral policy,
and even if the union applicants had attempted to apply
every day during that campaign, they would never have
entered the Respondent’s hiring pool owing to the ab-
sence of referrals.
By virtue of the Respondent’s deliberate misrepresen-
tations, it is obvious that there is no rebuttal to the Gen-
eral Counsel’s initial showing that the Respondent had an
overall scheme of refusing to hire or consider union ap-
plicants. Progressive Electric, Inc. v. NLRB, 453 F.3d
538, 548 (D.C. Cir. 2006) (“Having deliberately sought
to divert the Union Applicants from its normal hiring
process, Progressive cannot now take refuge therein.”);
Commercial Erectors, Inc., 342 NLRB 940, 943 (2004)
(rejecting employer’s “hiring preference” affirmative
defense where the employer “did not reveal this pur-
ported hiring priority” to the union applicants and, in-
stead, made “misleading or even false statements” to the
union applicants about its hiring); Jesco, 347 NLRB 903,
906–907 (rejecting the employer’s affirmative defense—
conformity with a facially nondiscriminatory hiring pol-
icy—because “the Respondent did not in fact rely on the
policy when it rejected the discriminatees”). Conse-
quently, we affirm Judge Beddow’s finding that by fail-
ing and refusing to hire and consider the discriminatees,

the Respondent is responsible for the false information given by its
agents. The judge found, and we agree, that the Respondent’s recep-
tionists were its agents within the meaning of Sec. 2(13) of the Act, at
least with respect to its hiring process. See Diehl Equipment Co., 297
NLRB 504, 504 fn. 2 (1989) (employee handling applications who had
apparent authority to provide information found to be an agent). In any
event, Mellencamp and Ely themselves deceived union applicants re-
garding whether the Respondent was hiring and/or misled them about
its hiring policy and these agents of the Respondent were well aware of
the company’s manpower needs and its hiring practices at all relevant
times.
BEACON ELECTRIC CO. 243
the Respondent violated Section 8(a)(3) and (1) of the
Act.
AMENDED REMEDY
Having found that the Respondent discriminatorily re-
fused to hire the discriminatees, and consider them for
employment, the Respondent must make them whole for
its unlawful conduct against them. The duration of the
backpay period shall be determined in accordance with
Oil Capitol Sheet Metal, Inc., 349 NLRB 1348 (2007).12
Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), and interest shall
be computed in accordance with New Horizons for the
Retarded, 283 NLRB 1173 (1987).13
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Beacon Electric Co., Cincinnati, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in the International
Brotherhood of Electrical Workers, Local 212, AFL–
CIO, or any other labor organization, by deceiving union
members and sympathizers concerning its hiring policy
and practice.
(b) Failing and refusing to consider applicants for em-
ployment and failing and refusing to hire them because
of their union affiliation.
(c) 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
employment to Matthew Kolbinsky, Ken Mueller, Paul
Mahoney, Paula Smith, Steve Jaeger, Annette Garza,
Bob Lloyd, Paul Elbisser Sr., Milbert Thornton, Kevin
Stenger, Ed Kaueper, Mike Miller, Jerry Smith, Tony
Wartman, Walt Zimmer, Bill Heinzelman, James Rosen-
berger, Louis Proctor, Bill Steger, Jim Traynor, Tim
Seiler, Gary White, Ronald Krumme, Donnal Ruehl,

12 Members Liebman and Walsh dissented in relevant part in Oil
Capitol. See 349 NLRB 1348, 1357 et seq. Regarding the present
proceeding, they recognize that the majority view in Oil Capitol is
current Board law, and accordingly, for institutional reasons only, they
approve its application in compliance.
13 While our order herein provides for instatement, the instatement
award is subject to defeasance if, at the compliance stage, the General
Counsel fails to carry his burden of going forward with evidence that
the discriminatees would still be employed by the Respondent if they
had not been the victims of discrimination. Oil Capitol Sheet Metal,
349 NLRB 1348, 1354.
Jane Cooper, Kevin Voisine, James Wakefield, Steven
Dunaway, Ron Smith, Gary Blanchet, Larry Hunter,
Robert Longmire, Nelson Davies, Thomas Lana, Robert
Oliver, Gary Johantges, Charlie Cupp, Scott Painter, Jay
Rizzuto, Jerry Vaughn, Jerry W. Jones, Eleanor Kumler,
Al Neiderhelman, Ralph Stewart, Valeria Riley, Wayne
J. Whalen, Charles Fribourg, Tim Ward, and Ken Smith
in the electrician positions for which they sought to apply
or, if such positions no longer exist, in substantially
equivalent positions, without prejudice to their seniority
or any other rights and privileges to which they would
have been entitled absent the discrimination against
them.
(b) Make whole all of those individuals identified in
subparagraph (a) for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
them, in the manner set forth in the remedy section of
this Decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusal to hire
or to consider for employment Matthew Kolbinsky, Ken
Mueller, Paul Mahoney, Paula Smith, Steve Jaeger, An-
nette Garza, Bob Lloyd, Paul Elbisser Sr., Milbert Thorn-
ton, Kevin Stenger, Ed Kaueper, Mike Miller, Jerry
Smith, Tony Wartman, Walt Zimmer, Bill Heinzelman,
James Rosenberger, Louis Proctor, Bill Steger, Jim
Traynor, Tim Seiler, Gary White, Ronald Krumme,
Donnal Ruehl, Jane Cooper, Kevin Voisine, James
Wakefield, Steven Dunaway, Ron Smith, Gary Blanchet,
Larry Hunter, Robert Longmire, Nelson Davies, Thomas
Lana, Robert Oliver, Gary Johantges, Charlie Cupp,
Scott Painter, Jay Rizzuto, Jerry Vaughn, Jerry W. Jones,
Eleanor Kumler, Al Neiderhelman, Ralph Stewart, Vale-
ria Riley, Wayne J. Whalen, Charles Fribourg, Tim
Ward, and Ken Smith, and within 3 days thereafter, no-
tify them in writing that this has been done and that the
unlawful conduct of the Respondent will not be used
against them 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, timecards, 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 backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Cincinnati, Ohio, copies of the attached
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD244
notice marked “Appendix.”14 Copies of the notice, on
forms provided by the Regional Director for Region 9,
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-
tomarily posted. Reasonable steps shall be taken by the
Respondent 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all employees employed by the Respondent on or at
any time since January 21, 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,
attesting to the steps that the Respondent has taken to
comply.
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 discourage membership in the Interna-
tional Brotherhood of Electrical Workers, Local 212,
AFL–CIO, or any other labor organization, by deceiving
union members and sympathizers concerning our hiring
policies and practices.
WE WILL NOT fail and refuse to hire or consider for
employment job applicants because of their membership
in, or affiliation with, the International Brotherhood of

14 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.”
Electrical Workers, Local 212, AFL–CIO, or any other
labor organization.
WE WILL NOT in any like or related manner, interfere
with, restrain or coerce you in the exercise of the rights
guaranteed you in Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer employment to Matthew Kolbinsky, Ken
Mueller, Paul Mahoney, Paula Smith, Steve Jaeger, An-
nette Garza, Bob Lloyd, Paul Elbisser Sr., Milbert Thorn-
ton, Kevin Stenger, Ed Kaueper, Mike Miller, Jerry
Smith, Tony Wartman, Walt Zimmer, Bill Heinzelman,
James Rosenberger, Louis Proctor, Bill Steger, Jim
Traynor, Tim Seiler, Gary White, Ronald Krumme,
Donnal Ruehl, Jane Cooper, Kevin Voisine, James
Wakefield, Steven Dunaway, Ron Smith, Gary Blanchet,
Larry Hunter, Robert Longmire, Nelson Davies, Thomas
Lana, Robert Oliver, Gary Johantges, Charlie Cupp,
Scott Painter, Jay Rizzuto, Jerry Vaughn, Jerry W. Jones,
Eleanor Kumler, Al Neiderhelman, Ralph Stewart, Vale-
ria Riley, Wayne J. Whalen, Charles Fribourg, Tim
Ward, and Ken Smith in electrician positions for which
they sought to apply or, if such positions no longer exist,
in substantially equivalent positions, without prejudice to
their seniority or any other rights and privileges to which
they would have been entitled absent the discrimination
against them.
WE WILL make the named individuals whole for any
loss of earnings and other benefits that they have suf-
fered as a result of our unlawful refusal to hire them, less
any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any and all references to the
unlawful refusal to hire or to consider for employment
the named individuals and WE WILL, within 3 days there-
after, notify them in writing that this has been done and
that our unlawful conduct will not be used against them
in any way.
BEACON ELECTRIC CO.
Eric Taylor, Esq., for the General Counsel.
Jeffrey A. Mullen and Lowell Woods, Esqs., of Dayton, Ohio,
for the Respondent.
Matthew D. Kolbinsky, of Cincinnati, Ohio, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Cincinnati, Ohio, on May 5–8, and 12–13,
1998. Subsequently, briefs were filed by the General Counsel
and the Respondent. The proceeding is based upon a charge
BEACON ELECTRIC CO. 245
filed July 18, 1997,1 by International Brotherhood of Electrical
Workers, Local Union No. 212 AFL–CIO. The Regional Direc-
tor’s complaint dated January 28, 1998, as amended, alleges
that Respondent Beacon Electric Co., of Cincinnati, violated
Section 8(a)(1) and (3) of the National Labor Relations Act by
maintaining and enforcing a policy of only hiring employees
through referrals from existing employees, trade schools, and
temporary agencies and failing to inform union employee ap-
plicants of its hiring policy and by refusing to hire and/or con-
sider for hire named employee applicants because the named
employee applicants formed, joined or assisted the Union and
engaged in union or concerted activities and to discourage em-
ployees from engaging in these activities.
On a review of the entire record in this case and from my ob-
servation of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged as an electrical contractor in the con-
struction industry in southwestern Ohio and it annually pur-
chases and receives goods and materials valued in excess of
$50,000 directly from points outside Ohio. It admits that at all
times material it has been an employer engaged in operations
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
During 1997, the Respondent acted as an electrical contrac-
tor on several large scale projects as well as a number of
smaller projects. The larger projects included the “Olestra” job
in Cincinnati for the Proctor and Gamble Company, a job in
northern Kentucky (City-Corp job), and a joint venture at Rox-
anne Laboratories in Columbus, Ohio. The “Olestra” job and
the City Corp jobs required a substantial manpower commit-
ment. During the peak months of May through September,
Respondent had about 60 electricians on the “Olestra” and dur-
ing the peak of the City Corp job between January and June
1997, it had about 45 to 50 electricians. One of the more nota-
ble smaller projects worked on by Respondent in the summer of
1997 was a warehouse project it performed for Halls of Amer-
ica where 10 to 12 electricians were utilized. That project had
three or four phases and a much larger phase, requiring 50 to 60
electricians, began in about December. As of early January,
Respondent had a need for a substantial number of skilled jour-
neymen and apprentices to work on these and other projects
and between January 21, and the end of August, Respondent
hired about 71 employees to meet these needs (9 of these em-
ployees were hired in January, 2 in February, 5 in March, 12 in
April, and 12 more were hired in August). Additionally, during
the January to May time frame, Respondent utilized a number
of temporary employees and paid finder’s fees to other contrac-
tors who referred employees to it. Some of the electricians and
apprentices hired worked on the Olestra project, however, dur-
ing the spring and summer months, Respondent and the other

1 All following dates will be in 1997 unless otherwise indicated.
electrical contractors on the project (Indecon, Inc. and Garfield
Electric), had some difficulty providing enough electrical man-
power to the project. Numerous options were discussed (with
the Respondent’s participation) in an attempt to meet projected
shortfalls in electricians and electrical hours of work required
for the project and some of the discussed options were imple-
mented. For example, the Respondent and the other electrical
contractors went to rolling a 4-day a week, 10-hour a day
schedules that provided employees with bonus pay. Addition-
ally, some of Respondent’s employees were given pay raises
just for the duration of the Olestra project (it is unclear whether
other options, such as the payment of per diem to all electri-
cians located more than 50 miles from the project, were actu-
ally implemented).
The Respondent is partially owned by Joseph N. Mellen-
camp, who is also Respondent’s president. Timothy Ely is gen-
eral superintendent and is responsible for the hiring of indi-
viduals to fill electrical positions, including journeymen and
apprentices. Mellencamp is in the Respondent’s Cincinnati
office on a nearly daily basis and Ely is also often there. At all
material times, Respondent has utilized at least three individu-
als to perform receptionist duties at this office. Part of these
duties include interacting with the public and responding to
individuals who arrive at Respondent’s facility seeking em-
ployment. Employment and hiring inquiries were most often
fielded by Payroll Administrator Angel LaFollette and recep-
tionist Mona Lisa (Mounce) (both admitted agents of Respon-
dent). Beth Rutherford, a part-time receptionist who ceased
working for Respondent in the early summer of 1997, also han-
dled some inquiries.
The Olestra project acquired three electrical contractors from
outside the greater Cincinnati area in July to provide additional
electricians. A prior attempt had been made in February to sup-
plement the “local” work force with nonunion electrical con-
tractors Wilmar Electric and Town & Country Electric but they
declined an offer to participate on the project because of project
commitments that left them with insufficient manpower. Previ-
ously, the project’s general contractor, Fru-Con, Inc., said that
the reason Respondent and the other electrical subcontractors
had been selected was because they had available manpower to
perform this project and that “we wouldn’t have to do as Flour
Daniel had done in previous projects, bring in people from all
over the United States to do their project.”
Respondent was awarded the subcontract to perform electri-
cal work on the Olestra job in mid 1996 and it initially was
planned that three electrical subcontractors, including Respon-
dent, would be expected to supply the project with about 60
electricians each for the better part of a calendar year.
In January, the Union learned that the Respondent had a con-
tract for electrical work on the Olestra job. The Union’s orga-
nizing department (led at that time by full-time organizers Matt
Kolbinsky and Ken Mueller), then coordinated efforts for union
members who were primarily unemployed at the time to apply
for employment at Respondent. A secondary goal of the Un-
ion’s actions was to attempt to organize the Respondent’s em-
ployees and to obtain a bargaining relationship with the com-
pany. Members who were interested in attempting to obtain
employment at Respondent and other nonunion electrical con-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD246
tractors learned of application efforts at regularly scheduled
union meetings or through telephone contact initiated by them
or by one of the organizers.
A set procedure was followed with respect to each applica-
tion attempt in which interested members gathered in the orga-
nizing department at the appointed time and signed their names
or had their names affixed to a sign-in log before going to the
Respondent’s facility. I find that the logbook accurately reflects
the presence of union applicants at Respondent’s facility during
the various application attempts (except for March 6, when
Buck Conn signed his name in the logbook at the organizing
department but did not go to make an application with Respon-
dent), inasmuch as the entries are corroborated by the testimony
of numerous witnesses as well as by several audio-visual re-
cordings which show the applicants in the reception area or just
outside of Respondent’s office.
Between January 21 and May 5, about 16 separate attempts
were made in person by union members to file applications for
employment with Respondent. Additionally, a number of un-
successful attempts to obtain employment were also made by
telephone during that same time frame. Specifically, 11 union
electricians, including Kolbinsky and Mueller, met in the orga-
nizing department on January 21, signed a logbook and went to
Respondent’s facility for the purpose of applying for employ-
ment as electricians. On this occasion and subsequent visits the
vast majority of them wore union jackets, hats, shirts, pins, or
other items identifying them as members of the Union. Addi-
tionally, during each application attempt either Kolbinsky or
Mueller identified themselves as organizers for the Union and
left their business cards on the ledge or counter in the reception
area.
When the union applicants arrived at Respondent’s facility
on January 21, several of them crowded in the small reception
area while the others waited just outside the door. Kolbinsky
rang a bell on the counter, spoke to the receptionist, and asked
if the employer was hiring. When she replied that the employer
was not hiring, he asked if he and the other applicants could fill
out applications and the receptionist said that Respondent was
not accepting applications.
A second attempt to apply for employment at Respondent
was made on January 29 when two former employees of Re-
spondent, Charles Fribourg and Wayne Whalen accompanied
Kolbinsky and Mueller. Fribourg asked if Mellencamp was in
and when told by the receptionist that he was out of town, he
identified himself as an exemployee and asked to talk to the
company’s “hiring agent” as he has heard that they has a siz-
able job and were calling back some exemployees. The recep-
tionist got General Superintendent Ely who immediately recog-
nized Fribourg and told him that they couldn’t take his applica-
tion. Ely then referred the group to a sign on the wall that reads
as follows:
BEACON ELECTRIC COMPANY APPLICATIONS
FOR EMPLOYMENT POLICY
Beacon makes every effort to select the most qualified em-
ployees for employment. To accomplish this, it develops a
pool of applicants who are evaluated and ranked so that the
most qualified are selected from the pool. Accordingly, Bea-
con accepts applications and resumes only at specific times of
the year, whether or not it is currently hiring. The periods dur-
ing which applications and resumes are accepted are deter-
mined by the President of Beacon.
When applications are being accepted, they must be com-
pleted in person at the main office of the company. When the
company is hiring, the applicants selected from the pooled
applications will be interviewed and be required to pass cer-
tain skills, aptitude and substance abuse tests.
Whalen then spoke to Ely and said he “wanted to make sure
my application was still in there. They said they had kept my
name on a list when I got laid off.” Ely replied, “Nah,” then
repeated that they were not taking applications right now and
he shut the sliding window as Whalen attempted to question
further whether he was on a rehire list.
The group left, however, Fribourg followed up with a letter
to Mellencamp dated February 1 in which he referred specifi-
cally to the posted hiring practice pointed out by Ely and he
asked Mellencamp to notify him when he planned to set a date
to accept applications or resumes. He advised Mellencamp that
he knew of other electricians who would be interested in plac-
ing applications or resumes in Respondent’s employment pool
and he asked Mellencamp to please inform him which tempo-
rary hiring service Respondent was utilizing if it did not plan on
opening up its application pool. Mellencamp responded by
letter dated February 5 that merely states that: “[Respondent] is
not advertising for applications or resumes for electricians at
this time. As you are aware, business needs dictate when it may
be necessary to place an advertisement for personnel. At this
time we cannot predict when such a need may arise.”
A group of union electricians next attempted to apply for
employment with Respondent on February 21. They asked to
fill out applications and were told by a receptionist that Re-
spondent was “not accepting applications right now.” Kolbin-
sky asked if they were hiring through any temporary agencies
or anything and was told “Nope.” He again asked “You’re not
hiring through any temporary agencies, you’re not hiring at
all?” and the Receptionist repeated “Nope.” Applicant Walt
Zimmer testified that on February 27, the receptionist said that
Respondent was not hiring, was not taking applications, and
would not take their resumes. A videotape was made of this
application attempt for the purpose of providing additional
documentation as to the union electricians who were present at
Respondent’s facility on that date. Unemployed electrician and
applicant Jim Rosenberger took the videotape which was shot
from the outside of the facility and shows the union electricians
who attempted to apply on that date.
A videotape recording was made by applicant electrician
Ron Smith of the March 6 attempt, and on this occasion, each
of the union applicants stated their name for the camera. The
next application attempt occurred on March 11 and applicants
were videotaped. When Kolbinsky started to ask about their
hiring policy the receptionist quickly said “we’re just not hiring
or accepting applications right now,” the same response given
on March 6.
Former company employee Fribourg also attempted to apply
BEACON ELECTRIC CO. 247
in person for employment with Respondent on March 3, and
March 11. On March 3, he went alone and spoke with recep-
tionist Angel LaFollette (Kelly). Fribourg told her that he had
heard Respondent was hiring a number of people and he asked
if Respondent was taking applications. LaFollette told him,
“No.” He was met with the same results on March 11.
On March 19 union electrician Thomas Lana went to Re-
spondent’s facility with a small group, Kolbinsky asked if Re-
spondent was hiring and if the union applicants could fill out
applications. The receptionist said Respondent was not hiring
and was not accepting applications for employment. On April
17, a group of applicants with Mueller were told that the com-
pany “was not accepting applications” when he asked if Beacon
“was hiring.” When he tried to ascertain the possible distinction
between “hiring” and accepting applications the receptionist
shut the window and did not respond.
The Respondent’s president testified about his personal
background, the history of the company from when he took
over until the present, and his early reorganizational efforts in
which he cut the number of field electricians from over 100 to
28. Mellencamp also reduced the number of foreman at Beacon
from approximately 60 to 6 in February or March 1987. One of
the foremen who remained during the early cutbacks was
Charles Fribourg. Mellencamp then gratuitously testified that
Fribourg would likely have been terminated following the cut-
backs, but it was not necessary to do so because Fribourg vol-
untarily left Beacon in 1988.
The Respondent’s current hiring policy for field personnel
was developed jointly by Mellencamp and Ely over the course
of several years. Mellencamp said that before that, the company
did not have a focused method for hiring its field employees but
hired workers through newspaper ads, walk-in applications,
temporary agencies, employee referrals and any other available
source.
Mellencamp said that he rethought the wisdom of utilizing
walk-in applicants as a source for potential employees in the
early 1990’s because he was not impressed with either the qual-
ity or quantity of such applicants, most had no electrical experi-
ence and the company did not have an in-house training pro-
gram for applicants at that time. He also said that processing
walk-in applicants was a significant administrative burden for
Ely and other office staff and he discontinued its practice of
taking walk-in applicants in 1991 and posted a policy concern-
ing employment applications in its office entry area that Beacon
would accept applications and resumes only at specific times of
the year.
The Respondent continued to utilize newspaper ads, in con-
junction with a variety of referral sources, to recruit prospective
employees subsequent to 1991, but found itself paying for ex-
pensive advertisements which produced only a handful of job
applicants. Additionally, as a result of a tight labor market, the
individuals who responded to these ads were often less than
desirable job candidates and assertedly substantial amounts of
time was necessary to check with prior employers and investi-
gate the references of individuals who responded to newspaper
ads. The referral system consisted primarily of employee refer-
rals, contacts in the industry, professional associations, voca-
tional schools, temporary agencies, and personal referrals.
When Ely utilized referral sources outside of the Company he
assertedly relied on individuals whom he had known for some
period of time and in whom he had a degree of trust and confi-
dence and therefor he did not spend time checking references or
past work histories.
When the Respondent began using the referral network as its
claimed exclusive method for recruiting employees in early
1994, the policy statement concerning employment applications
remained posted in the office entry area, assertedly because it
was possible that it might wish to utilize newspaper ads or other
means to recruit electricians if the referral network faltered and
the posted message was still applicable with respect to the issue
of not taking applications from walk-in candidates. The Re-
spondent asserts that it has not accepted any walk-in applicants
or advertised in the newspaper for any electrical positions since
adoption of the current policy.
Trade and vocational schools also were cultivated as referral
sources to recruit young workers by Ely, who sits on a number
of advisory committees for such programs. Ely is also involved
in several other professional organizations within the construc-
tion industry which serve as valuable referral sources. In addi-
tion to trade schools, the Respondent developed the Construc-
tion Training Institute (CTI) in 1995 as a separate entity to train
unskilled individuals who were interested in becoming electri-
cians. The school functions as an entry level apprenticeship
program in which students work while attending classes. Can-
didates are recruited through trade schools, newspaper adver-
tisements and other sources, and participants in the program are
often referred to Respondent for employment.
The Respondent also uses temporary agencies as another
source for potential employees. Such workers are used to sup-
plement its short-term labor needs without incurring adminis-
trative expenses and burdens and also present an opportunity to
recruit permanent employees inasmuch as temporary workers
can be evaluated on a trial basis without any obligation on the
Respondent’s part and good workers may be offered a perma-
nent position with the company (the agency has an obligation to
perform references and prior employers checks prior to refer-
ring the employee). Other employees are referred from other
electrical contractors and contacts within the industry and may
be in the form of a temporary loan from another contractor. The
Respondent also has “shared” employees on a temporary basis
with Henderson Electric, Garfield Electric, Kerry Electric,
Packard Electric, and Cosmos Electric, all local, nonunion con-
tractors.
M.W. Electric referred its employees to the Respondent on a
permanent basis because if was going out of business. The re-
ferral came through Randy Allen, a business acquaintance of
Ely who worked for another nonunion contractor in the Cincin-
nati area who was using the employees. The Respondent asserts
that referrals from contractors often provide experienced labor
as opposed to the novice workers recruited from trade schools
and CTI. Other referrals come from current employees and
such referrals have provided a substantial number of new em-
ployees for the company. As with referrals from sources out-
side of the Company, Ely does not check the references or past
employers of applicants referred by its current employees.
The Respondent asserts that since Ely developed the referral
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD248
network and is aware of its parameters, neither Ely nor Mellen-
camp ever felt that it was necessary to reduce the hiring policy
to written form. It also asserts that because it operates in a
highly competitive market for labor the Company has a vested
interest in not divulging its policy or its referral sources to the
general public. It Ely is not available to meet with a referred
applicant at the office, he gives the receptionist an employment
application, the name of the applicant and the time of the
scheduled appointment. If an unscheduled walk-in attempts to
apply at the office, the receptionist is under specific instructions
to state that it is not accepting employment applications.
Ely personally interviews all job applicants, but does not
maintain a list of the referral sources for each and every indi-
vidual with whom he speaks. He also testified that he was un-
aware of any situation where an exception was made to the rule
concerning walk-in applicants.
The Respondent presented evidence tending to show that be-
tween January and August 1996, the company employed an
average of 98 permanent employees. During the same period in
1997, this average declined slightly to 93. It admits that it did
engage a few more temporary workers during 1997, but asserts
that the overall difference in manpower utilized between the 2
years is negligible. Mellencamp testified that in 1996 it com-
mitted to provide between 45 and 60 electricians during the
course of the construction of the Olestra project. As other elec-
trical contractors were engaged for the project, its involvement
was limited to its assigned portion of the facility and he said
that the projected labor demand for electricians and other trades
fluctuated significantly. The Respondent admits that additional
electrical contractors were ultimately brought in to meet the
construction schedule, but states that its commitment of 60
electricians was not increased beyond the scope of its original
agreement. It agrees that the Olestra project was one of its larg-
est ventures in 1997, but states that the project’s impact on the
company’s overall manpower requirements was far from un-
usual. Mellencamp testified that the company had no responsi-
bility to increase its work force in connection with the Olestra
project, and in fact it actively opposed taking a larger role be-
cause its management personnel were not being used in control-
ling positions on the project.
DISCUSSION
This proceeding involves the Respondent’s apparent failure
or refusal to consider union affiliated applicants for hire for
positions as electricians.
The Board endorses a causation test for cases turning on em-
ployer motivation, see Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982); NLRB v. Transportation Management Corp., 462 U.S.
393 (1983), however, the foundation of Section 8(a)(1) and (3)
“failure to hire” allegations rests on the holding of the Supreme
Court ruling that an employer may not discriminate against an
applicant because of that person’s union status, Phelps Dodge
Corp. v. NLRB, 313 U.S. 177, 185–187 (1941).
In a case of this nature the General Counsel meets his initial
burden of proof when he establishes that (1) an individual at-
tempted to file an employment application, (2) the employer
refused to accept or consider the application, (3) the applicant is
or might be expected to be a union supporter, (4) the employer
had knowledge of the applicant’s union sympathies, (5) the
employer maintains animus against union activity, and (6) the
employer refuses to consider or hire the applicant because of
such animus. In order to rebut the General Counsel’s case, the
employer must establish that the applicant would not have been
considered or hired absent the discriminatory motive. The
qualifications of the job applicant may be an expected element
of why an employer might refuse to hire any individual and,
accordingly, it is customary in relation to criteria (1) that the
record be developed to show that an applicant has the basic job
experience or training to match up with the position for which
an employer is filling at any particular time, see Norman King
Electric, 324 NLRB 1077 (1997), and cases cited therein.
This proceeding arises in the jurisdiction of the United State
Court of Appeals for the Sixth Circuit and, as in the King Elec-
tric case, I find that the record here meets the requirement of
the court’s test set forth in NLRB v. Fluor Daniel, Inc., 102
F.3d 1818 (6th Cir. 1996).
Here, it is shown that in 1997 the Respondent was seeking
job applicants (through its so-called “referral” process), that it
hired numerous electricians during this relevant period, and that
the alleged discriminatees who attempted to apply for employ-
ment were experienced journeyman electricians who were
qualified to do the work for which the Respondent hired other
persons. The Respondent, however, contends that the alleged
discriminatees are not bona fide job applicants and that there
was no union animus in the development of its hiring policy. It
also maintains that this policy is not inherently destructive of
employees’ rights and that it otherwise was not applied in a
discriminatory manner.
Turning to the specific criteria and the evidence of record I
find that it is clear that (1) that the alleged discriminatees were
qualified electricians who went to the Respondent’s place of
business with the intention of filing applications for employ-
ment but, (2) were not allowed to do so even though the Re-
spondent was hiring electricians during this period of time
when it received applications under its so called “referral” pol-
icy, and (3) the applicants overtly displayed their union affilia-
tion by wearing union paraphernalia announcing their affilia-
tion and leaving business cards. With regards to criteria (4), on
each visit some of the applicants spoke directly with either the
Respondent’s receptionists (and admitted agents), or General
Superintendent Ely and it appears that the Respondent does not
dispute the fact that it was aware of the Union’s involvement.
The Respondent contends that there was no union animus,
criteria (5), in the development of its hiring policy, however, I
find this argument disingenuous at best. While the Respon-
dent’s president presents the appearance of a benign attitude
towards unions, it is unnecessary for the General Counsel to
show blatant actions on the part of an employer in order to
demonstrate antiunion animus and here the Respondent does
not persuasively show valid reasons why it did not consider
accepting and looking at union related applications for em-
ployment.
As noted by the general counsel, the Respondent’s animus
toward union applicants may be implied through the actions of
Mellencamp, Ely, and the receptionists in concealing Respon-
BEACON ELECTRIC CO. 249
dent’s purported referral hiring procedures from the applicants.
Ely directed the applicants to a posted policy that Respondent
now claims was not in effect at the time. Mellencamp also ad-
vised Fribourg only that Respondent was not then advertising
for applications and that it was difficult to predict when a need
to advertise for positions might arise at a time when the Re-
spondent was actively hiring electricians. In no instance were
the applicants told about the referral policy and otherwise they
did not receive truthful answers to inquiries about such things
as whether the Respondent was hiring or using temporary agen-
cies.
The Respondent referred would be applicants to its posted
policy but failed to disclose its asserted referral policy and, in
effect, the Respondent lied to the union applicants about the
procedures it actually used. This lie is further demonstrated by
the fact that union applicants (especially Fribourg), sought to
come within the posted policy by seeking to apply at some time
when the company president would be hiring. This moment
was apparently a very fleeting one and only occurred without
advance notice, when the Respondent had, in effect, a preap-
proved referral that it could hire, and this moment never was
disclosed to any of the alleged discriminatees, not even the two
former employees, or, apparently, to its own receptionist.
As noted by the General Counsel, former employee Fribourg
had been one of the six foremen retained by Mellencamp when
he reorganized the company, yet when he sought reemployment
as a regular journeyman (by letter, after he had sought to apply
in the presence of the union organizers), Mellencamp replied in
a form letter that deceptively said the Respondent was “not
advertising” for applicants “at this time” and in his testimony
Mellencamp gratuitously disparaged Fribourg’s abilities by
insinuating that he “likely” would have been terminated in 1988
if he had not voluntarily left.
I find a further basis for inferring union animus and anti-
union motivation in the element of the Respondent’s hiring
policy relative to referrals from CTI. Mellencamp’s testimony
in this respect shows that he and the company went to great
length to set up and sponsor an electrician apprenticeship train-
ing school that would provide less skilled workers through on
the job training and ultimately provide trained electricians, who
incidentally would be untainted by the existing alternative of
the union affiliated apprenticeship program. This elaborate
effort must be compared with the Respondent’s assertion that it
was too much trouble to check references or prior employment
records of walk in or unreferred applicants and I find that this
comparison provides added support for the inference that the
Respondent harbors union animus.
While any single inference drawn here might be inadequate
to persuasively show animus, the overall circumstantial evi-
dence clearly shows union animus and antiunion motivation
and it is further supported by the direct, credible testimony of
witness Kumler. Here, it appears that the Respondent may have
made a tactical mistake and opened a “can of worms” when it
called alleged discriminatee Kumler as its own witness and then
questioned her about the circumstances of her contacts with the
company when it did not know what her probable answers
would be.
Eleanor Jean Kumler testified that in addition to attempting
to apply for employment at Respondent with the group on
January 21, 1997, she had actually succeeded in obtaining and
filling out an application for employment at the Respondent in
the spring of 1996. She telephoned Respondent (who is located
near where she lives), spoke to a woman who said that Respon-
dent was hiring and that Respondent would be interested in her
because of her years of experience and because she was female.
She was told by Respondent’s representative to “Come in and
fill out an application.” Kumler, whose demeanor was highly
credible, testified that she arrived at its facility a few minutes
later and was handed an application by the receptionist she had
spoken with on the telephone. She completed the application in
the small reception area and noted thereon a work history that
reflected that she had recently worked for unionized employers.
She handed the completed application back to the receptionist,
who told her to, “wait a minute,” because, “he’s in his office.”
The receptionist then took the application and turned into a
doorway on her right that was next to the lobby area.
The receptionist came back to the reception area after deliv-
ering the application and, after a brief time, Kumler heard a
male voice call the receptionist back into the office. The voice
remarked to the receptionist that Kumler was a “union person,”
and that she should just throw her application in the trash or
the, “circular file.” She next heard the receptionist caution:
“Shhh, she’s still out there.” Kumler then heard a male voice
reply, “I don’t care, just get rid of it and her too.” The recep-
tionist then came out of the office looking embarrassed and
apologetic and told Kumler, “You’re gonna have to leave.”
Kumler replied, “Okay” and left.
My overall impression of Kumler’s testimony is that she was
a believable and trustworthy witness who gave highly credible
testimony about the details of an event that occurred shortly
before any organized application effort took place and which
was independent of the Union’s organizational drive. The Re-
spondent claims that the office to the right of the reception area
was at that time occupied by Office Manager Patricia Hughes,
not Ely, and Ely denies that he was involved in the incident. As
noted by the General Counsel, Hughes and Ely were Respon-
dent’s two most senior employees and Ely had probable reasons
that might lead him to be in Hughes’ office at any given time.
Thus, the receptionist was either simply mistaken when she
referred to “his” office, or meant merely that he was in the of-
fice, or Ely was incorrect about the time frame when he moved
into that particular office. It also is possible that Mellencamp
could have been in that office, however, he did not testify about
this event.
In any event, I conclude that Kumler truthfully testified
about her attempt to file an application and I find that a male in
an apparent position of authority made the antiunion remarks
that Kumler recalled hearing and that these remarks constitute
direct evidence of the Respondent’s animus at a time less than a
year prior to the events involved in the complaint.
The Board has held that where there is evidence, as here, that
an employer has concealed its methods and pattern of hiring
from applicants or would-be applicants such evidence supports
a finding of unlawful motivation. See American Press, 280
NLRB 937, 942 (1986). Furthermore, as discussed below, the
record shows that the Respondent’s established hiring policy
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD250
establishes criteria and practices which result in the exclusion
of union members and it constitutes a discriminatory practice
inherently destructive of important employee rights. Accord-
ingly, I find that the record is sufficient to show animus and
that animus otherwise is implicit in its discriminatory practices
and can be found here even without proof of antiunion motiva-
tion, see J.E. Merit Constructors, 302 NLRB 301, 304 (1991),
and Great Dane Trailers, 388 U.S. 26, 34 (1967).
Lastly, (6) I find that the record is sufficient to support an in-
ference that the Respondent’s antiunion animus was a motivat-
ing factor in its decision to fulfill its hiring needs almost exclu-
sively by referrals, conduct which precluded even the consid-
eration of union affiliated applicants.
Here, the Respondent attempts to refute the General Coun-
sel’s showing by asserting the legitimacy of its hiring practices
and by making a collateral attack on the Union’s organizational
practices. Applications by full time regular union business
agents or organizers (not primarily employed in the trade), even
if currently qualified in the trade may be legally justified, but
appears to be counter productive in a practical sense, where
other bona fide applicants who are actually, usually, and regu-
larly employed in the trade are shown to have experienced pos-
sible discrimination and the pursuit of changes on behalf of
regular union staff personnel merely acts as a distraction from
an evaluation of any direct and (more relevant) evidence of
discrimination. Otherwise, however, the Board’s decisions in
Sunland Construction Co., 309 NLRB 1224 (1992), and Ultra-
systems Western Constructors, 310 NLRB 545 (1993), have
found unequivocally that paid union organizers are statutory
employees entitled to the protection of the Act, and the fact that
their employment period might be of limited duration does not
act to invalidate that status.
The law also does not require that job applicants must be un-
obtrusive in respect to their union affiliation in order to be con-
sidered to be bona fide applicants and the possibility that more
subtle tactics might be more effective with any particular com-
pany does not make discrimination in the application process
any less unlawful or any less deserving of a remedy and it does
not offer an employer an excuse for engaging in discriminatory
practices.
A job seeker’s participation in group attempts to file applica-
tions and the fact that a union may have supplemental objec-
tives in supporting its members in their attempts to obtain em-
ployment does not act to preclude their viability as legitimate
job applicants. Here, the majority of the alleged discriminatees
were unemployed and were seriously interested in engaging in
employment that might have the advantage of keeping them at
a particular jobsite for a lengthy period and they were experi-
enced electricians and presumptively qualified for positions that
the Respondent would need to fill to meet its manpower re-
quirements.
The fact that the tactics used by the Union may be unwise or
unsuccessful does not make a Respondent’s conduct any less
discriminatory. The propriety of an employer’s conduct in a
failure to hire proceeding turns on the nature of the act, not on
the motive or intent of the job applicant, unless special circum-
stances, not shown here, exist. Also, the use of “testers” by a
party or someone representing their interest (in this case the
Union fits into both roles), that is the perceived victim of dis-
crimination is a legitimate practice in attempts to protect the
rights of any victim whether it be in an area such as equal hous-
ing or educational opportunities or in hiring practices or
whether it be because the discrimination is because of their
national origin, religious discipline, sex, or membership or
nonmembership in a union.
If information is obtained that shows the probability of ille-
gal discrimination, the credibility or reliability of that informa-
tion is not adversely affected by the circumstance under which
it was obtained. In a similar fashion, the Union’s obvious use of
audio and video recording devices may be a wise or unwise
strategy but as long as it is not so intrusive as to unlawfully
intimidate an employer, the law otherwise permits a union to
make nonmalicious and noncoercive efforts to put pressure on a
company to accede to a union’s bargaining demands or organ-
izational efforts or to protest unfair labor practices, see Burns
International Security Services, 324 NLRB 485 (1997), and
here the Respondent shows no extraordinary circumstance that
would strip the Union of its rights to engage in organizational
activities and to maintain the economic status of its members.
(Here, for example it is not improbable that an employer in the
Respondent’s situation might respond by at least allowing ap-
plications to be filed). Although the Respondent objects on
brief to the video taping and related union conduct, there is no
showing that Respondent’s supervisors or receptionists were
threatened or intimidated and there was no request made for the
Union to stop and compare the extreme factual circumstances
in Heiliger Electric Corp., 325 NLRB 966 (1998). Under these
circumstances, I find that consistent with Board precedent and
the Supreme Court’s decision in NLRB v. Town & Country
Electric, 516 U.S. 85 (1995), all the involved applicant dis-
criminatees are bona fide applicants. Otherwise, I find that the
real issue here is the basic question of whether the union affili-
ated job applicants were discriminated against because of the
Respondent’s bias against their status.
Here, the Union and its members were not acting without le-
gitimate reason but sought employment following the Union’s
receipt of information about the Respondent’s selection for a
construction contract that would require the employment of a
large number of electricians. Although the Respondent never
advertised for added electricians, it did in fact hire 71 new em-
ployees between January 21 and the end of August, 1997 and it
also utilized a number of temporary employees from employ-
ment services or on loan from other contractors. Accordingly,
discrimination can be shown if the Respondent’s hiring prac-
tices are such that they are inherently destructive of the appli-
cant’s rights to be treated without discrimination.
Despite the fact that it needed skilled electricians because of
the nature of the Olestra job and its other jobs, it chose to ig-
nore journeyman union electricians and to rely on word of
mouth referrals (some apparently fresh from school), without
checking any of their reference or work records. And, in spite
of the fact that it hired on 71 occasions in a 7-month period it
asserts, in effect, that none of these hiring occasions occurred
exactly at or near the 16 or more times the Union or individuals
attempted to file applications (for example, three new employ-
ees were hired on January 29 the same day the Union sought to
BEACON ELECTRIC CO. 251
file application and five were hired 6 days after the Union’s
March 11 visit). Thus, no union applicant was ever told that the
company was hiring and no union applicant was ever able to
apply precisely when the Respondent was hiring during “the
period” when the president of the Respondent “determined” he
would accept applications, the criteria stated in its posted pol-
icy. Here, I find the absurdity of these circumstances to be in-
dicative of a pretextual motive and I find that its actions were in
large measure designed to screen out applications by union
affiliated job seekers.
Although the Respondent seeks to disavow its posted policy
and claim that it relied on its undisclosed referral policy, the
fact that it kept this so-called policy secret from potential appli-
cants and did not even reduce its policy to writing clearly does
not contribute to the Respondent’s burden to persuasively show
that it would have ignored or failed to allow job seekers to file
applications even in the absence of their probable status as
union affiliated electricians. See the court’s decision in Trans-
portation Management Corp., supra; where it pointed out that:
an employer cannot simply present a legitimate reason for its
action but must persuade by a preponderance of the evidence
that the same action would have taken place even in the ab-
sence of the protected concerted activity.
The Respondent used an unpublicized referral procedure that
was different than the posted policy it pointed out to the union
applicants. This procedure was exclusive in nature and basi-
cally insured that it would receive applications only by referrals
from known sources that would refer only nonunion applicants.
This essentially precluded union members from ever being
considered and this hiring procedure allowed the Respondent to
perpetuate a nonunion work force. The “practical effect” of the
Respondent’s hiring practice was to preclude employment of
union members and it reinforces the conclusion that the union
applicants were not allowed to be considered simply because of
their union affiliation. See P. S.E. Concrete Forms, 303 NLRB
890 (1991).
Under these circumstances, I find that the Respondent has
failed to persuasively rebut the General Counsel’s showing of
unlawful motivation and, accordingly, I find that the General
Counsel has met its overall burden and shown that the Respon-
dent’s failure and refusal to consider and hire the discriminatees
named below violated Section 8(a)(3) and (1) of the Act, as
alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 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. By engaging in a pattern or practice that allows screening
of job applicants to determine suspected union sympathizers by
maintaining and enforcing a policy of only hiring employees
through referrals from personal and business acquaintances,
existing employees, certain trade schools and certain temporary
agencies, by failing to inform union employee applicants of its
hiring policy and by refusing to accept applications, to hire or
to consider applicants for employment unless they were re-
ferred by nonunion sources, Respondent discriminated in re-
gard to hire in order to discourage union membership in viola-
tion of Section 8(a)(3) and (1) of the Act.
REMEDY
Having found that Respondent engaged in certain unfair la-
bor practices, I shall recommend that it be ordered to cease and
desist and that it take certain affirmative action set forth below
to effectuate the policies of the Act.
It having been found that the Respondent unlawfully dis-
criminated against job applicants including Matthew Kolbin-
sky, Ken Mueller, Paul Mahoney, Paula Smith, Steve Jaeger,
Annette Garza, Bob Lloyd, Paul Elbisser, Sr., Milbert Thorn-
ton, Kevin Stenger, Ed Kaueper, Mike Miller, Jerry Smith,
Tony Wartman, Walt Zimmer, Bill Heinzelman, James Rosen-
berger, Louis Proctor, Bill Steber, Jim Traynor, Tim Seiler,
Gary White, Ronald Krumme, Donnal Ruehl, Jane Cooper,
Kevin Voisine, James Wakefield, Steven Dunaway, Ron Smith,
Gary Blanchet, Larry Hunter, Robert Lingmire, Nelson Davies,
Thomas Lana, Robert Oliver, Gary Johantes, Charlie Cupp,
Scott Painter, Jay Rizzuto, Jerry Vaughn, Jerry W. Jones, Jean
Kumler, Al Neiderhelman, Ralph Stewart, Valeria Riley,
Wayne J. Whalen, Charles Fribourg, Tim Ward, and Ken Smith
based on their suspected union sympathies and because they
were not “referred” to the Respondent under the Respondent’s
exclusive and unlawful hiring procedure and practices, it will
be recommended that Respondent be ordered to consider them
for employment and make them whole for any loss of earnings
they may have suffered by reason of the failure to give them
nondiscriminatory consideration for employment, by payment
to them of a sum of money equal to that which they normally
would have earned in accordance with the method set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), computed on a
quarterly basis with interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).2 It also will be recom-
mended that the Respondent be ordered to modify its referral
policy to accept referrals from the Union or other union related
sources and that this policy be memorialized in writing and
posted or otherwise disclosed to potential applicants.
Other considerations regarding the remedy and the specifics
of the relief granted must wait until the compliance stage of the
proceeding, see Fluor Daniel, Inc., 304 NLRB 970, 981 (1991),
Dean General Contractors, 285 NLRB 573–574 (1987), and
The 3E Co., 322 NLRB 1058 (1997). Otherwise, it is not con-
sidered necessary that a broad Order be issued.
On the findings of fact and conclusions of law, and on the
entire record, I hereby issue the following recommended3
ORDER
Respondent, Beacon Electric Co., its officers, agents, succes-

2 Under New Horizons, interest is computed at the “short term Fed-
eral rate” for the underpayment of taxes as set out in the 1996 amend-
ment to 26 U.S.C. § 6621.
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD252
sors, and assigns, shall
1. Cease and desist from
(a) Maintaining and enforcing a policy and practice of hiring
only by referrals from personal and business acquaintances,
existing employees, certain trade schools, and certain tempo-
rary employment agencies.
(b) Failing to fully inform prospective applicants of its hiring
policies and practices.
(c) Refusing to accept applications or to consider for em-
ployment job applicants for the position of electrician because
they are members or sympathizers of a union or because they
were not referred to the Respondent under its exclusive policy.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action:
(a) Within 14 days from the date of this Order, consider for
hire Matthew Kolbinsky, Ken Mueller, Paul Mahoney, Paula
Smith, Steve Jaeger, Annette Garza, Bob Lloyd, Paul Elbisser
Sr., Milbert Thornton, Kevin Stenger, Ed Kaueper, Mike
Miller, Jerry Smith, Tony Wartman, Walt Zimmer, Bill
Heinzelman, James Rosenberger, Louis Proctor, Bill Steber,
Jim Traynor, Tim Seiler, Gary White, Ronald Krumme, Donnal
Ruehl, Jane Cooper, Kevin Voisine, James Wakefield, Steven
Dunaway, Ron Smith, Gary Blanchet, Larry Hunter, Robert
Lingmire, Nelson Davies, Thomas Lana, Robert Oliver, Gary
Johantes, Charlie Cupp, Scott Painter, Jay Rizzuto, Jerry
Vaughn, Jerry W. Jones, Jean Kumler, Al Neiderhelman, Ralph
Stewart, Valeria Riley, Wayne J. Whalen, Charles Fribourg,
Tim Ward, and Ken Smith in positions for which they sought to
apply, or if such positions no longer exist, to substantially
equivalent positions and make them whole for any loss of earn-
ings they may have suffered by reason of the discrimination
against them as set forth in the remedy section of the decision.
(b) Within 14 days from the date of this Order, modify its re-
ferral policy to accept referrals from the Union or other union
related sources, memorialize this policy in writing and post or
otherwise disclose this policy to potential applicants.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(d) Within 14 days of service by the Region, post at its Cin-
cinnati, Ohio, facilities and all current jobsites, copies of the
attached notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 9, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps

4 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.”
shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a reasonable official
on a form provided by the Region attesting to the steps the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.
WE WILL NOT maintain and enforce a policy and practice of
hiring only by referrals from personal and business acquaintan-
ces, existing employees, certain trade schools, and certain tem-
porary employment agencies.
WE WILL NOT fail to fully inform prospective applicants of
our hiring policies and practices.
WE WILL NOT refuse to accept job application, to hire or to
consider for employment job applicants for the position of elec-
trician helper because they are members of sympathizers of a
union or because they have not been referred to us.
WE WILL NOT in any like or related manner interfering with,
restraining, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL within 14 days from the date of the Board’s Order,
consider for hire Matthew Kolbinsky, Ken Mueller, Paul Ma-
honey, Paula Smith, Steve Jaeger, Annette Garza, Bob Lloyd,
Paul Elbisser Sr., Milbert Thornton, Kevin Stenger, Ed Kaue-
per, Mike Miller, Jerry Smith, Tony Wartman, Walt Zimmer,
Bill Heinzelman, James Rosenberger, Louis Proctor, Bill Ste-
ber, Jim Traynor, Tim Seiler, Gary White, Ronald Krumme,
Donnal Ruehl, Jane Cooper, Kevin Voisine, James Wakefield,
Steven Dunaway, Ron Smith, Gary Blanchet, Larry Hunter,
Robert Lingmire, Nelson Davies, Thomas Lana, Robert Oliver,
Gary Johantes, Charlie Cupp, Scott Painter, Jay Rizzuto, Jerry
Vaughn, Jerry W. Jones, Jean Kumler, Al Neiderhelman, Ralph
Stewart, Valeria Riley, Wayne J. Whalen, Charles Fribourg,
Tim Ward, and Ken Smith in positions for which they sought to
apply, or if such positions no longer exist, to substantially
equivalent positions and make them whole for any loss of earn-
ings they may have suffered by reason of the discrimination
against them in the manner specified in the section of the ad-
ministrative law judge’s decision entitled “The Remedy.”
WE WILL modify our referral policy to accept referrals from
the Union or other union related sources and memorialize this
BEACON ELECTRIC CO. 253
policy in writing and post or otherwise disclose this policy to
potential applicants.
BEACON ELECTRIC COMPANY
Eric Taylor, Esq., for the General Counsel.
Jeffrey A. Mullen and Lowell Woods, Esqs., of Dayton, Ohio,
for the Respondent.
Matthew D. Kolbinsky, of Cincinnati, Ohio, for the Charging
Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Cincinnati, Ohio, on May 5–8, and 12–13,
1998, briefs were filed and a decision (JD-115-98), was issued
on July 14, 1998.
On June 9, 2000, the Board remanded this case to me for fur-
ther consideration in light of the May 11, 2000 decision in FES,
331 NLRB 9. On August 2, 2000, the parties were invited to
file supplemental briefs addressing the issues set forth in the
Board’s remand including, as stated by the Board: (1) whether
the General Counsel established that the Respondent unlawfully
refused to hire the alleged discriminatees for openings filled by
other applicants, and (2) the entry of an appropriate recom-
mended remedy and order.
In this connection I noted that in my decision dated July 14,
1998, I had found that the Respondent refused to consider 49-
named applicants and that I made a factual finding that the
alleged discriminatees were journeymen electricians qualified
to do the work and that the Respondent was seeking job appli-
cants (through its so-called “referral” process), for a commit-
ment to supply between 45 and 60 electricians to a specific
construction project and that in a relevant 7-month period it
hired 71 electricians.
In view of my further statement that “it is not readily appar-
ent that further briefing on the issues would result in a need to
reach any significantly different conclusion,” the General
Counsel elected not to file a supplement brief. On October 2,
2000, the Respondent filed a supplemental brief in which it
requested further hearing to address the issues of (1) the an-
nounced or generally known requirements of the position for
hire and (2) the qualifications of the applicants in relation to the
first issue.
It contends that there is no evidence in the record to show the
criteria Respondent used to screen applicants, and little or no
evidence in the record establishing what the generally known
requirements were for employment at Respondent or any other
similar employer. The Respondent also contends that the re-
cord does not show the training and/or experience of the appli-
cants or the electricians that hired Respondent during the rele-
vant timeframe, that the training and experience of the alleged
discriminatees have not been shown, and that the hiring criteria
used has not been shown.
I find that these arguments are contrary to the record and also
fail to show the likelihood that a further hearing would produce
anything material that would affect my initial findings of fact.
First, the record and my prior decision show that the Respon-
dent is an electrical contractor who works in large scale con-
struction projects and employs “electricians” in both “journey-
man” and “apprentice” classifications. In January 1997, it had
a sign in its reception area setting forth its application policy.
This sign said nothing about specific or unique qualifications
but only that when interviewed they would be “required” to
pass certain skill, aptitude—test.” Moreover, two applicants,
Wayne Whalen and Charles Fribough (who previously was a
foreman for the Respondent), were formerly employed by the
Respondent before being placed on layoff and therefore they
were presumptively familiar with the requirement for employ-
ment with the Respondent and had met those requirements.
Also, the Respondent’s president and its general superintendent
both testified regarding their current hiring policy for field per-
sonnel (electricians), as set forth in pages 5 and 6 of the prior
decision. The net result of the asserted policy is that the Re-
spondent relies upon the opinions of other employees or con-
tacts who “refer” applicants and relieve the employer of its
burden of checking references or past work histories. The re-
cord also shows that the Respondent’s referral contacts include
the Construction Training Institute (CTI) which was developed
by the Respondent as a separate entity to train unskilled indi-
viduals interested in becoming electricians.
Under these circumstances, I conclude that additional evi-
dence to show the Respondent’s position criteria would be in
effect an impeachment of its own principal witnesses and their
testimony at the original hearing.
Finally, the Respondent argues that the term “qualification”
includes whether the applicants fully intend to work for the
employer if hired and that in the prior hearing I prohibited its
attempt to litigate that issue by not enforcing its subpoena for
various documents and by sustaining objections of the General
Counsel on its attempted questioning of applicant witnesses
concerning other things done to attempt to find a job and their
bona fide status as applicants.
These evidentiary rulings were not timely challenged in Re-
spondent’s original brief and as I otherwise find the relevancy
the material to the applicants’ qualifications are not apparent, I
find that Respondent’s request is inappropriate and insufficient
to show good cause for further hearing.
In this respect the prior decision stated that:
The qualifications of the job applicant may be an ex-
pected element of why an employer might refuse to hire
any individual and, accordingly, it is customary in relation
to criteria (1) that the record be developed to show that an
applicant has the basic job experience or training to match
up with the position for which an employer is filling at any
particular time, see Norman King Electric, 324 NLRB
1080 (1997), and cases cited therein.
This proceeding arises in the jurisdiction of the United
States Court of Appeals for the Sixth Circuit and, as in the
King Electric case,1 I find that the record here meets the
requirement of the court’s test set forth in NLRB v. Fluor
Daniel, Inc., 102 F.3d 1818 (6th Cir. 1996).

1 The Board’s order in this case was enforced in Kentucky General,
Inc. v. NLRB, 177 F.3d 430 (6th Cir. 1999).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD254
The decision goes on to make findings that:
The fact that a union may have supplemental objec-
tives in supporting its members in their attempts to obtain
employment does not act to preclude their viability as le-
gitimate job applicants. Here, the majority of the alleged
discriminatees were unemployed and were seriously inter-
ested in engaging in employment that might have the ad-
vantage of keeping them at a particular job site for a
lengthy period and they were experienced electricians and
presumptively qualified for positions that the Respondent
would need to fill to meet its manpower requirements.
. . . .
Here, the Respondent attempts to refute the General
Counsel’s showing by asserting the legitimacy of its hiring
practices and by making a collateral attack on the Union’s
organizational practices. Applications by full time regular
Union Business Agents or organizers (not primarily em-
ployed in the trade), even if current qualified in the trade
may be legally justified, but appears to be counter produc-
tive in a practical sense, where other bona fide applicants
who are actually, usually, and regularly employed in the
trade are shown to have experienced possible discrimina-
tion and the pursuit of changes on behalf of regular union
staff personnel merely acts as a distraction from an evalua-
tion of any direct and (more relevant) evidence of dis-
crimination. Otherwise, however, the Board’s decisions in
Sunland Construction Co., 309 NLRB 1224 (1992) and
Ultrasystems Western Constructors, 310 NLRB 545
(1993), have found unequivocally that paid union organiz-
ers are statutory employees entitled to the protection of the
Act, and the fact that their employment period might be of
limited duration does not act to invalidate that status.
. . . .
Under these circumstances, I find that consistent with
Board precedent and the Supreme Court’s decision in
NLRB v. Town & Country Electric, 116 S.Ct. 450 (1995),
all the involved applicant discriminatees are bona fide ap-
plicants. Otherwise, I find that the real issue here is the
basic question of whether the union affiliated job appli-
cants were discriminated against because of the Respon-
dent’s bias against their status.
As noted, I consider the requirement of the Sixth Circuit’s
test in Fluor Daniel, supra, and the bona fide status of the ap-
plicants.
It also is observed that subsequent to the issuance of my
prior decision, the Sixth Circuit enforced the cited Norman
King Electric case supra, in Kentucky General, Inc. v. NLRB,
177 F.3d 430 (6th Cir. 1999). Here, as in the latter case, the
Employer also sought word of mouth referrals and looked for
prospects from training schools and I also find that the em-
ployer’s generalities and speculative concerns about employee
“qualifications” are pretextual. The Respondent does not hint
at what relevant evidence would spring forth from the docu-
ments or its further cross examination of the General Counsel’s
witnesses and I find that the General Counsel had a valid basis
for his objections. I otherwise find that the Board’s Thermo
Power criteria does not create some expanded right to pursue
tangential or nonrelevant matters or to engage in “a fishing
expedition” that would burden the record with information that
normally would not be relevant or would be relevant to the
compliance stage of the proceeding. Accordingly, I conclude
that it is not shown to be necessary (the term specified in the
Board’s remand Order) to obtain the evidence the Respondent
appears to suggest as evidence that would be required to decide
the case under the FES framework.
Otherwise, I my prior findings of fact, discussion, and con-
clusions of law as set forth in the prior decision and as supple-
mented by the additional discussion and the modified remedy
and Order set forth below and I find that good cause is not
shown that would require reopening of the record.
Discussion
In FES, supra, the Board held that in order to establish a dis-
criminatory refusal to hire, the General Counsel must first
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 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 ap-
plied as a pretext for discrimination; and (3) that antiunion
animus contributed to the decision not to hire applicants.
In order to establish a discriminatory refusal to consider for
hire, the General Counsel must show:
(1) that the respondent excluded applicants from a hir-
ing process; and (2) that antiunion animus contributed to
the decision not to consider the applicants for employ-
ment.
Once this is established, the burden shifts to the Respondent to
show that it would not have hired or considered the applicants
even in the absence of their union activity or affiliation.
Refusal to Consider
The prior decision and the discussion below address the
General Counsel’s animus burden. Otherwise, the FES criteria
require the General Counsel to show that the Respondent ex-
cluded applicants from the hiring process. As noted in the prior
decision the record shows that the Respondent failed and re-
fused to review the application or to interview 49 union-
affiliated applicants and it used its asserted policy of hiring
primarily by referrals (including referrals it apparently gained
from its related training institute), to screen out union-affiliated
applicants for employment and thus it effectively removed the
union applicants from its hiring process.
Here, the Union and its applicant members (who were pre-
dominantly unemployed at the time they attempted to apply),
were not acting without legitimate reason but sought employ-
ment following the Union’s receipt of information that the Re-
spondent had been selected for a large construction contract
that would require the employment of a large number of elec-
BEACON ELECTRIC CO. 255
tricians. Although the Respondent did not advertise for added
electricians, it hired 71 new employees between January 21 and
the end of August 1997, and it also utilized a number of tempo-
rary employees from employment services or on loan from
other contractors.
Despite the fact that the Respondent needed many skilled
electricians because of the nature of the new Olestra job and its
other jobs, it chose to ignore journeyman union electricians and
to rely on word of mouth referrals (some apparently fresh from
school) without accepting applications from union applicants
and without checking their qualifications, references, or work
records. Here, the General Counsel clearly has met his burden
and I further find for the reasons set forth in the prior decision
that the Respondent’s referral policy defense is pretextual and
that it otherwise fails to persuasively show that it would not
have considered these applicants even in the absence of their
union affiliation.
Refusal to Hire
Between January 21, and the end of August, 1997, Respon-
dent hired 71 employees to meet its needs for skilled journey-
men and apprentice electricians (9 of these employees were
hired in January, 2 in February, 5 in March, 12 in April, and 12
more were hired in August). Additionally, during the January
to May timeframe, Respondent utilized a number of temporary
employees and paid finder’s fees to other contractors who re-
ferred employees to it. Moreover, as found in the prior deci-
sion:
Some of the electricians and apprentices hired worked
on the Olestra project, however, during the spring and
summer months, Respondent, and the other electrical con-
tractors on the project (Indecon, Inc. and Garfield Elec-
tric), had some difficulty providing enough electrical
manpower to the project. Numerous options were dis-
cussed (with the Respondent’s participation), in an attempt
to meet projected shortfalls in electricians and electrical
hours of work required for the project and some of the dis-
cussed options were implemented. For example, the Re-
spondent and the other electrical contractors went to roll-
ing 4-day[s] a week, 10-hour[s] a day schedules that pro-
vided employees with bonus pay. Additionally, some of
Respondent’s employees were given pay raises just for the
duration of the Olestra project (it is unclear whether other
options, such as the payment of per diem to all electricians
located more than 50 miles from the project, were actually
implemented).
Accordingly, I find that the record supports a conclusion that
the Respondent was hiring and had concrete plans to hire to
meet its project performance needs.
The record also shows that union applicants Fribough and
Whalen must have had the experience and training relative to
the requirement of the job inasmuch as they were formerly
employed by the Respondent, see Fred’K Wallace & Son, Inc.,
331 NLRB 914 (2000), and the record also shows that the other
applicants were experienced journeyman electricians and there-
fore had the necessary experience and training, see Kaminski
Electric & Service Co., 332 NLRB 452 (2000), and they had
skills and experience at least as extensive as the applicants who
were hired. Moreover, and despite her experience, the only
applicant who was able to make out an application, Eleanor
Kumler, overheard someone in an apparent position of author-
ity direct the receptionist to place her application in the “circu-
lar file” not because of her qualifications or experience, but
because she was a “union person.” Accordingly, the General
Counsel has established that the discriminatees met the em-
ployer’s requirements for the position for which they applied
(and that the employer’s qualification rational is pretextual).
As noted, animus has been established and I conclude that
the record fully supports a conclusion that the General Counsel
has met the three-point refusal to hire criteria.
The Respondent’s original defense was addressed in the
prior decision and its supplemental defense is substantially
addressed in the discussion above concerning its request for
further hearing. Otherwise, it is noted that while it could be
argued that there was no apparent departure from the Respon-
dent’s normal practice of reliance on referrals, that practice
itself as applied by the Respondent clearly is discriminatory.
The net effect is that the Respondent unlawfully refused to hire
union applicants for job openings filled by other applicants.
Moreover, even though it had plans and the opportunity to
place additional electricians on the Olestra jobsite, it apparently
changed its plans and cut back on its numerical commitment to
supply electricians, an action which I infer was motivated, at
least in part, by its desire to avoid filling any of its positions
with union-affiliated electricians.
Under these circumstances, I find that the policies and prac-
tices upon which the Respondent relies to justify its actions are
more pretextual than persuasive, and I again find that the Re-
spondent has failed to persuasively rebut the General Counsel’s
showing of unlawful motivation.
In summation, I find that the Respondent maintained policies
and engaged in practices that are contrary to basic prohibitions
against discrimination in regard to hire, accordingly, I find that
the General Counsel has met his overall burden and shown that
the Respondent unlawful refused to consider and unlawful re-
fusal to hire the discriminatees named below for openings filled
by other applicants and thereby violated Section 8(a)(3) and (1)
of the Act, as alleged.
CONCLUSIONS OF LAW
1. Respondent is an Employer engaged in commerce within
the meaning of Section 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. By engaging in a pattern or practice that allows screening
of job applicants to determine suspected union sympathizers, by
maintaining and enforcing a policy of only hiring employees
through referrals from personal and business acquaintances,
existing employees, certain trade schools and certain temporary
agencies, by failing to inform union employee applicants of its
hiring policy, by refusing to accept applications, and failing and
refusing to hire or to consider applicants for employment unless
they are referred by nonunion sources, Respondent discrimi-
nated in regard to hire in order to discourage union membership
in violation of Section 8(a)(3) and (1) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD256
REMEDY
Having found that Respondent engaged in certain unfair la-
bor practices, I shall recommend that it be ordered to cease and
desist therefrom and that it take certain affirmative action set
forth below to effectuate the policies of the Act.
It having been found that the Respondent unlawfully dis-
criminated against job applicants including Matthew Kolbin-
sky, Ken Mueller, Paul Mahoney, Paula Smith, Steve Jaeger,
Annette Garza, Bob Lloyd, Paul Elbisser Sr., Milbert Thornton,
Kevin Stenger, Ed Kaueper, Mike Miller, Jerry Smith, Tony
Wartman, Walt Zimmer, Bill Heinzelman, James Rosenberger,
Louis Proctor, Bill Steger, Jim Traynor, Tim Seiler, Gary
White, Ronald Krumme, Donnal Ruehl, Jane Cooper, Kevin
Voisine, James Wakefield, Steven Dunaway, Ron Smith, Gary
Blanchet, Larry Hunter, Robert Longmire, Nelson Davies,
Thomas Lana, Robert Oliver, Gary Johantges, Charlie Cupp,
Scott Painter, Jay Rizzuto, Jerry Vaughn, Jerry W. Jones, Elea-
nor Kumler, Al Neiderhelman, Ralph Stewart, Valeria Riley,
Wayne J. Whalen, Charles Fribourg, Tim Ward and Ken Smith
based on their suspected union sympathies and because they
were not “referred” to the Respondent under the Respondent’s
exclusive and unlawful hiring procedure and practices, it will
be recommended that Respondent be ordered to consider them
for employment. It also is recommended that the Respondent
be ordered to offer immediate and full instatement to each dis-
criminatee in the position of electrician, without prejudice to
their seniority or other rights and privileges and make them
whole for any loss of earnings they may have suffered by rea-
son of the failure to give them nondiscriminatory consideration
for employment, by payment to them of a sum of money equal
to that which they normally would have earned in accordance
with the method set forth in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest as computed in New Horizons for the
Retarded, 283 NRB 1173 (1987).2
In accordance with Thermo Power, supra, and Dean General
Contractors, 285 NLRB 573 (1987), refusal-to-hire discrimina-
tees are entitled to a make-whole remedy, see also Kentucky
General, Inc., supra at 439. Here, there are 49 qualified dis-
criminatees that were not hired as electricians between January
21 and the end of August 1997, when, at the same time, the
Respondent hired 71 electricians, utilized several temporary
employees and declined the opportunity to attempt to meet
projected electrical employees shortfalls by increasing its work
force. Thus, it appears that if each of the union journeymen
had been hired they would have been approximately half of the
employer’s average staffing (93 to 98 permanent employees)
and would have placed approximately 60 percent of its newly
filled positions. It is noted that it is well established that when
ambiguities or uncertainties existed in compliance proceedings
doubts should be resolved in favor of the wronged party rather
than the wrongdoer, see Paper Moon Milano, 318 NLRB 962,
963 (1995), and United Aircraft Corp., 204 NLRB 1068 (1973).
Under these circumstances, it appears that each of the discrimi-
natees who was refused instatement is entitled to instatement

2 Under New Horizons, interest is computed at the “short term Fed-
eral rate” for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C. § 6621.
and a make-whole remedy, leaving to compliance the determi-
nation of specific individuals and any limits on the instatement
remedy and the extent or tolling of the Respondent’s liability
where the Respondent will have the opportunity to show limit-
ing factors, see Ferguson Electric Co., 330 NLRB 514 (2000),
and Serrano Painting, 331 NLRB 928 (2000). Otherwise it is
not considered necessary that a broad Order be issued.
[Recommended Order omitted from publication.]
Eric Taylor, Esq., for the General Counsel.
Jeffery Mullins, Esq. and Fred Ungerman, Esq., of Cincinnati,
Ohio, for the Respondent.
Jerry Spicer, Esq., for the Charging Party.
SECOND SUPPLEMENTAL DECISION
This matter was tried before Administrative Law Judge
Richard H. Beddow Jr. in May 1998. Judge Beddow issued a
decision (JD–174–00) on July 14, 1998. The Board remanded
that matter in light of its May 11, 2000 FES decision (331
NLRB 9). The judge issued a December 20, 2000 supplemen-
tal decision.
On July 28, 2003, the Board again remanded this matter to
Judge Beddow. The Board stated in that order remanding the
case:
Although we agree with the judge that the General Coun-
sel met his initial burden under FES of establishing an
unlawful refusal to consider or to hire the union appli-
cants, we find that the Respondent was improperly denied
an opportunity to present evidence to show that it would
not have considered or hired the alleged discriminatees
even in the absence of their union activity or affiliation.
Accordingly, we shall remand this aspect of the case to the
judge for further consideration of whether, under FES, the
Respondent can demonstrate that it would not have con-
sidered or hired the alleged discriminatees, even in the ab-
sence of their union activity or affiliation.1
Judge Beddow having retired, this matter was assigned to
me, Pargen Robertson, Administrative Law Judge, for action in
accord with the Board’s July 28, 2003 remand. I set this matter
down for an April 5, 2004 hearing.
Respondent Beacon Electric Co. filed an April 2 motion in
which it waived its right to hearing and stated if “the hearing
were to be held, Respondent, consistent with the Board’s lim-
ited remand order, and without waiving Respondent’s excep-
tions previously filed with the Board, would rest on the record.”
Respondent’s motion was granted and the parties were given a
deadline for receipt of briefs. Respondent then filed a brief.
Respondent’s Argument
Respondent stated in its brief, “it appears clear from the
Board’s Order that Judge Robertson may not, in this remand,
revisit the issues surrounding the General Counsel’s prima facie
case.” However, Respondent went on to argue that Judge Bed-
dow erred in his finding that Respondent’s referral system was

1 The Board stated at fn. 1, “In remanding this case, we are not pass-
ing on the issues raised by the parties’ exceptions and briefs at this
time, except as detailed herein.”
BEACON ELECTRIC CO. 257
inherently destructive of employees’ Section 7 rights.
Respondent argued in that regard that General Counsel failed
to establish a prima facie case in that he failed to show that
Respondent’s exclusive use of a referral system for the selec-
tion of new hires was discriminatorily motivated. According to
Respondent’s argument, its exclusive use of its referral system
predated any union activity and Respondent continued to exclu-
sively use that same referral system throughout the events al-
leged in the complaint.
Findings
I must consider whether I am authorized to consider Respon-
dent’s argument. As shown above, Respondent waived its right
to a hearing on the question of whether it would not have con-
sidered or hired the alleged discriminatees even in the absence
of their union activity.
To a limited degree, Respondent does argue that it would not
have considered for hire, or actually hired, the alleged discrimi-
natees even in the absence of their union activities. However,
instead on putting on evidence to support that claim, Respon-
dent argued that the record already contained that evidence and
that that evidence showed that the General Counsel failed to
prove a prima facie case. Respondent argued that Judge Bed-
dow’s finding that Respondent’s referral system was inherently
destructive of Section 7 rights was incorrect and that that find-
ing should be reversed.
Perhaps Respondent is correct in that claim. However, con-
sideration of that claim would involve review of the Decision
and, perhaps, the Supplemental Decision, of Judge Beddow. I
am not authorized to review those decisions. Instead I am spe-
cifically limited in my deliberations by the order of the Board.
That order as shown above, limits my authority to consideration
of whether Respondent proved at the reopened hearing that it
would not have considered or hired the alleged disciminatees in
the absence of their union activity or affiliation.
I am aware of the Board’s statement in footnote 1 that by this
remand, it is “not passing on the issues raised by the parties’
exceptions and briefs at this time, except as detailed herein.”
However, the Board said nothing in that regard about extending
the scope of its remand to include consideration of those issues
raised by the parties.
I find that Respondent did not prove in these proceedings
that it would not have considered or hired the alleged discrimi-
natees even in the absence of their union activity or affiliation.