J.O. Mory Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1998

326 N.L.R.B. 604 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 604
J. O. Mory, Inc. and International Brotherhood of
Electrical Workers, Local Union No. 305 and
Sheet Metal Workers’ International Association,
Local Union No. 20 a/w Sheet Metal Workers’
International Association, AFL–CIO. Cases 25–
CA–23625, 25–CA–24410, and 25–CA–24805–1
August 27, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
AND HURTGEN
The issue presented to the Board in this case is
whether the judge correctly found that the Respondent
violated Section 8(a)(3) and (1) of the Act by refusing to
consider for employment or to hire seven applicants be-
cause of their apparent intention to organize the Respon-
dent’s employees on behalf of the International Brother-
hood of Electrical Workers, Local Union No. 305
(IBEW).1 The Board has considered the decision and the
record in light of the exceptions and briefs2 and has de-
cided to affirm the judge’s rulings, findings,3 and conclu-
sions only to the extent consistent with this Decision and
Order. Specifically, we reverse the judge and find that
the General Counsel has failed to prove that the Respon-
dent refused to consider or hire any job applicants for
antiunion reasons.4
The Respondent has operated as a general construction
contractor for over 100 years. Its employees have never
been represented by a union. It receives an average of
150–200 applications annually. Its officials interview
about 20–25 percent of those applicants.
At the time relevant to this proceeding, Tamra Hunt
was the Respondent’s personnel director. Her duties
included reviewing the applications, assessing job avail-
ability, and deciding whether the applicant should be
interviewed. Hunt credibly testified about several crite-
ria that she used in reviewing applications. One factor
was a comparison of the Respondent’s wages with the
past or desired wages of the applicant. Hunt explained
that it was the Respondent’s “common practice” not to
hire, at entry level positions, applicants who were cur-
rently earning more than the Respondent was paying.
She said that this policy reflected the Respondent’s con-
cern about the applicant’s interest in staying with the
Respondent for more than a temporary period.

1 On July 17, 1997, Administrative Law Judge Earl E. Shamwell, Jr.
issued the attached decision. The Respondent filed exceptions and a
supporting brief. The General Counsel filed limited exceptions and a
brief in support of the judge’s decision.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has requested oral argument. The Respondent’s
request is denied as the record, exceptions, and briefs adequately pre-
sent the issues and positions of the parties.
3 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.
4 There are no exceptions to the judge’s finding that the Respondent
did not discriminate against two applicants (Langmeyer and Lepper)
who were IBEW members or against seven applicants who were mem-
bers of the Sheet Metal Workers Union.
In July and August 1994, seven IBEW electricians (the
remaining alleged discriminatees in this case) filed job
applications with the Respondent. The manner of appli-
cation and/or information on the applications clearly
conveyed to the Respondent both the union affiliation of
these applicants and their intent to organize the Respon-
dent’s employees. Indeed, union organizer Michael
Closson hand-delivered a batch of these applications,
including his own, and also submitted a business card
disclosing his status as IBEW business representative.
IBEW Business Agent Harold Wasson likewise submit-
ted both his application and a business card to the Re-
spondent. The Respondent did not interview or hire any
of these applicants for available jobs during the period
from July 1994 to November 1996. It did attempt to hire
6 of 13 known union members who applied for work
during the summer of 1994.
Hunt indicated that the wage comparison factor was
critical to her determination not to interview or hire any
of the seven IBEW applicants. There is uncontroverted
evidence that the Respondent relied on this same wage
criterion during this time period to reject five other ap-
plicants, none of whom were known to be affiliated with
a union or with an organizational effort. On the other
hand, one of those union members whom the Respondent
attempted to hire was IBEW electrician Phillip Dirig. He
applied for work on July 18, 1994. His application indi-
cated that his present and past earnings at union scale
were substantially higher than the Respondent’s wages.
Hunt contacted Dirig with the apparent intent to hire him,
but he told her that he was already working.
In October 1995, six members of the Sheet Metal
Workers Union responded to the Respondent’ newspaper
advertisements by appearing as a group to apply for jobs.
All six applicants wore union insignia. Paid union
organizer John Kereszturi led the group and gave the
Respondent’s receptionist a business card disclosing his
organizer status. The Respondent, through Hunt, hired
Kereszturi a year later. She twice attempted unsuccess-
fully to hire one other applicant (James Till), interviewed
but did not hire another (John Tafelski), attempted un-
successfully to arrange interviews with two other appli-
cants (Terry Anspaugh and Michael Starnes), and never
contacted Kelly Ullery, the sixth member of the Sheet
Metal Workers who applied in October 1995.
The General Counsel argued before the judge that the
Respondent unlawfully refused to consider or hire both
the IBEW and Sheet Metal Workers applicant groups
because of their intent to organize the Respondent’s em-
326 NLRB No. 61
J. O. MORY, INC. 605
ployees. The judge recommended dismissal of all allega-
tions relating to the Sheet Metal Workers’applicants.
There are no exceptions to this recommendation.
In assessing whether the General Counsel met the ini-
tial burden of proving that union animus was a motivat-
ing factor in the Respondent’s refusal to consider or offer
employment to the alleged IBEW discriminatees, the
judge found no independent evidence of animus. He
emphasized, however, the testimony of the Respondent’s
officials indicating that they would clearly prefer not to
have unions and union contracts for its operations. Al-
though acknowledging that such a preference “in and of
itself, does not establish necessarily an antiunion ani-
mus,” the judge nevertheless assumed, arguendo, that the
General Counsel had met the initial evidentiary burden of
proving antiunion motivation in the Respondent’s treat-
ment of the IBEW applicant group.
The judge then proceeded to evaluate the Respondent’s
defenses of its hiring actions. He conceded that “Re-
spondent’s employment criteria seems facially valid, and
is reasonably and plausibly connected to its legitimate
business or economic reasons and concerns.” (There are
no exceptions on this point.) Still, the judge found that
the Respondent’s application of the critical wage crite-
rion to the seven alleged IBEW discriminatees was a
pretext masking the intent to avoid hiring known union
organizers. In making this finding, the judge relied on
the Respondent’s reaction to the application of IBEW
electrician Phillip Dirig. Personnel Director Hunt con-
tacted Dirig about his application even though he was
making union scale wages which were substantially
higher than the Respondent’s wages. The Respondent
did not hire Dirig because he was already employed, but
the judge found that the Respondent would have hired
him absent that factor. He concluded that Hunt’s unex-
plained willingness to ignore the wage criterion when
hiring someone who apparently posed no union organiza-
tional threat to the Respondent proved that the applica-
tion of this criterion to the IBEW organizer group was
pretextual; and, in turn, he concluded that the pretextual
reason given for failing to hire or consider hiring anyone
from this group warranted the inference that animus
against their organizational purpose motivated the Re-
spondent’s actions.
In sum, the judge essentially found that the General
Counsel has proven unlawful discrimination based on a
single unexplained variance from facially valid hiring
practices. We disagree. The preponderance of credible
evidence here weighs heavily against any finding of pre-
text or of inferring that animus against a threatened union
organizational effort motivated the Respondent in its
rejection of the IBEW applicants. Indeed, the judge’s
own findings and conclusions show that: (1) Apart from
the inference drawn by the judge from what we find to be
a mistaken finding of pretext, there is no evidence of
animus borne by the Respondent against union members
or union organizers. As the judge himself acknowl-
edged, the strong preference of the Respondent’s offi-
cials that its operation remain nonunion is not, standing
alone, sufficient evidence of animus. (2) The Respon-
dent interviewed, hired, or attempted to hire known un-
ion members during the period at issue here. (3) The
Respondent interviewed, hired, or attempted to hire
known Sheet Metal Workers’ organizers whose wage
history apparently posed no bar to their consideration
under the Hunt’s hiring criteria. There is no record basis
for distinguishing between the organizational “threat”
posed to the Respondent’s operations by Sheet Metal
Workers in 1995 and the organizational “threat” posed
by IBEW in 1994. (4) The Respondent relied on the
wage comparison criterion in declining to consider or
hire several persons who applied during the same time
period as the IBEW group but were not known by the
Respondent to be union organizers.
Under the foregoing circumstances, we find that the
single departure from normal, legitimate hiring policy—
i.e., the attempt to hire IBEW member Dirig in spite of
his apparently disqualifying wage history—falls short of
proving disparate treatment or pretext in the application
of that policy to the IBEW organizer group. We further
conclude that the General Counsel has failed to meet the
burden of proving that animus against union organizing
motivated the Respondent’s treatment of applications
from the seven alleged IBEW discriminatees. We shall
therefore dismiss the complaint in its entirety.
ORDER
The complaint is dismissed.

Steve Robles, Esq., for the General Counsel..
Thomas M. Kimbrough, Esq., and H. Joseph Cohen, Esq. (Bar-
rett & McNagny), of Fort Wayne, Indiana, for the Respon-
dent.
Michael L. Closson Sr., for Charging Party International Broth-
erhood of Electrical Workers, Local Union No. 305.
John Kereszturi, for Charging Party Sheet Metal Workers’
International Association, Local Union No. 20.
DECISION
STATEMENT OF THE CASE
EARL E. SHAMWELL JR., Administrative Law Judge. This
case was tried before me in Kendallville, Indiana, on February
3-4, 1997, pursuant to unfair labor practice charges initially
filed on December 5, 1994, by the International Brotherhood of
Electrical Workers, Local Union No. 305 (IBEW), in Case 25–
CA–23625 and by the Sheet Metal Workers’ International As-
sociation, Local Union No. 20 (the Sheet Metal Union), in Case
25–CA–24410 on January 11, 1996, and Case 25–CA–24805–1
on July 18, 1996, against J. O. Mory, Inc. (the Company or
Respondent). On July 10 and 26, 1996, the National Labor
Relations Board, by the Regional Director for Region 25, is-
sued amended complaints in Cases 25–CA–24410 and 25–CA–
24805-1. On December 31, 1996, the Regional Director for
Region 25 issued an order consolidating the afore-mentioned
cases. At the hearing, counsel for the General Counsel (the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 606
General Counsel or GC) moved to amend further the consoli-
dated complaint, which amendments were granted by me with
no objection from Respondent’s attorney.1 The consolidated
complaint, as amended, alleges that Respondent violated Sec-
tion 8(a)(1) and (3) of the Act by unlawfully refusing to hire or
consider for hire certain named applicants for employment
because of their (IBEW and Sheet Metal) union membership,
union activities, other concerted protected activities, and to
discourage employees from engaging in these activities.
Respondent filed an answer in which it denied that it violated
the Act in any way.
On the entire record in this case, including posthearing briefs
filed by the General Counsel and Respondent, and on my ob-
servation of the demeanor of the witness, I make the following.
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation with a
principal office and place of business located in South Milford,
Indiana, and various branch offices and places of business lo-
cated in Fort Wayne, Avilla, Syracuse, and Angola, Indiana,
and Sturgis, Michigan, has been engaged in the construction
industry. Respondent admits, and I find, that for the 12-month
period ending November 30, 1994, Respondent, in conducting
its business operations, sold and shipped from its Indiana facili-
ties goods and services valued in excess of $50,000 directly to
points outside the State of Indiana. For the same period, Re-
spondent, in conducting its business operations, purchased and
received at its Indiana facilities goods and services valued in
excess of $50,000 directly from points outside of Indiana. The
Respondent further admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the National Labor Relations Act (the Act).
II. THE LABOR ORGANIZATIONS INVOLVED
Respondent admits, and I find, that at all material times the
IBEW and Sheet Metal Unions have been labor organizations
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Respondent’s business
Respondent is a general construction contractor whose op-
erations include mechanical plumbing, electrical fire protection,
engineering, sheet metal and related functions. Respondent
performs commercial, industrial, and residential work. Re-
spondent has been in operation for over 100 years and during
this period has never been a “union” company. Respondent
employs an average of approximately 180–250 employees at
any given time. The Company performs all types of construc-
tion work.
Respondent’s principal office and place of business is lo-
cated in South Milford, Indiana. Most of Respondent’s busi-
ness is conducted in southern Indiana, but its operations extend,

1 The General Counsel amended the complaint as follows:
(1) Alleged discriminatees Richard Chandler and Harold
Wasson were struck from subpar. 5(b) of said complaint; Wasson,
however, remained as an alleged discriminatee in subparagraph
5(a).
(2) August 3, 1994, was added to subpar. 5(a) of the com-
plaint.
to a limited extent, to southwestern Michigan. Respondent
employs a variety of trades in its business, including electrical,
plumbing, sheet metal, mechanical welding, and heating venti-
lation and air-condition (HVAC) employees and related trades.
These employees work in Respondent’s facilities and in the
field.
The principal officers and admitted supervisors and agents of
the Respondent are:2 Gene Mory, president; John Mory, secre-
tary; Michael Rowe, vice president; Tom Knott, treasurer; Dean
Polly, office manager for the Fort Wayne office; and Tamra
“Tammy” Hunt, personnel director.3
2. Respondent’s hiring agent—Tamra “Tammy” Hunt
Hunt was the person principally responsible for hiring at J.
O. Mory during the relevant period. Hunt’s duties included the
recruitment and placement of applicants for employment at the
Company. She reviewed applications, determined who would
or would not be interviewed, made, kept, and maintained em-
ployee files, contacted potential employees and, in general,
applied and implemented the J. O. Mory hiring procedures,
policies, and practices.
Hunt did not have an assigned staff or an assistant to help
with the performance of her hiring duties, but consulted with
other company foremen and supervisors to evaluate applica-
tions regarding positions and technical aspects beyond her ken.
The receptionist at Respondent’s South Milford office, how-
ever, would assist her somewhat by meeting and greeting walk-
in applicants, taking their applications, and forwarding these to
Hunt. Moreover, when the Company was in a particularly
needful hiring mode and required employees with certain skills
or even for all trades, Hunt made use of third-party referral
services, billboards, and newspaper advertisements. The record
is clear that as a practical matter during the relevant period,
Respondent’s hiring “department,” as it were, was Hunt. Ac-
cordingly, the primary issue for resolution, the failure to con-
sider to hire or hire certain alleged discriminatees, centers on
her conduct and activities as Respondent’s principal hiring
agent, as well as her enunciated statements about what Respon-
dent’s hiring practices, policies, and procedures were, and how
she applied and implemented them.
3. The Respondent’s hiring policies, practices, and procedures
Hunt related Respondent’s hiring policies practices and pro-
cedures during the time she acted as personnel director.
J. O. Mory receives an average 150-200 applications annu-
ally. Of that number, approximately 20-25 percent are inter-
viewed. Generally, all applications were forwarded to Hunt
who determined if there was a vacancy and whether the appli-
cant should be considered for an interview. Before any one
was considered for an interview and employment, the applica-
tion had to first be considered by her. Not all applicants re-
ceived an interview. The process she used was described by
her as a “process of elimination,” with the objective being to
2 It was stipulated and agreed by Respondent at the hearing that all
of these persons were supervisors and/or agents of the Respondent
within the meaning of Sec. 2(11) and (13) of the Act.
3 Hunt was Respondent’s personnel director for the period December
1992 though August 1996; she currently holds the position of personnel
assistant. Respondent’s present personnel director is Jeanne Rippe. No
reason was given for Hunt’s change of jobs and Rippe, who attended
the hearing, did not testify. Rippe does not figure at all in this litiga-
tion. All references to Respondent’s personnel director or hiring agent
are to Hunt during her tenure in that capacity.
J. O. MORY, INC. 607
determine if a prospective employee was a good match for the
Company, utilizing certain eligibility criteria. Hunt would
consult with various company supervisors and foremen to as-
certain whether the position was still available and their views
on the “fit” of the applicant for the position. Generally, these
supervisors or foremen would be persons directly in charge of
the applicant were he to be hired.
Pursuant to the process of elimination, Hunt first considered
the clarity of the application and whether it was complete or
fully filled out.4 She then checked the positions available
against the position applied for; the wages being sought by the
applicant and, finally, the location where the applicant resided
(as compared to the location of the job). After employing these
criteria, she then determined if the applicant was good “match”
for the Company. Another integral and important determinant
of whether a person received an interview was the applicant’s
calling in to check on the status of his application. In most
cases, Hunt would only schedule interviews, assuming a prior
determination that there was a good match of the applicant with
the Company, for persons who had called back.
With respect to wages sought by the applicant, Hunt testified
that it was the position of the Company, based on experience,
that if a person has been making significantly or substantially
higher wages than the Company was offering for the same
skills and experience, that person would use a J. O. Mory job as
a temporary job and, at the next better opportunity, would
leave. Hunt testified that this “causes the Company to have to
go through more training when we have to go through the hir-
ing process again . . . . So it is very costly to the Company and
it also—when we have a high turnover rate, it impacts the mo-
rale of the other employees working also.” (Tr. 317.) Accord-
ing to Hunt, it was always the “common practice” of the Com-
pany not to hire applicants at entry-level positions who were
currently earning higher wages if the Company could avoid it.5
Consequently, the Company’s application asks of the applicant
the salary desired, “So that we have a basis to go by, to know
whether the person is going to make a good match for the posi-
tion or not.” (Tr. 318.)
Hunt also testified that J. O. Mory utilized third-party re-
cruitment sources to fill various positions. However, these
sources were used sparingly or occasionally to place unskilled
workers in the Company shop facilities and only rarely for their
skilled labor needs. Hunt noted that the Company generally
sought employees willing to make a long-term commitment and
that the employees who come through the recruitment sources
were usually looking for short-term employment. Also, these
recruitment sources charge a fee which Hunt testified could be
as much as 45 to 50 percent on top of (additional to) the wages
the Company pays the selected employee. However, there were
advantages in using temporary workers, such as being able to
terminate or release them easily. Given the choice between a

4 Hunt did not expressly include skills and experience of the appli-
cant as part of her criteria for employment. However, I conclude that in
her consultations with supervisors and foremen, these matters were
discussed and considered for each applicant. It would be nonsensical
not to consider the applicant’s skills and experience to perform skilled
work.
5 Hunt testified in response to a question from Respondent’s counsel
regarding the frequency of the application of this hiring practice.
A. It would always be the practice. I am not saying that it
didn’t happen, depending on need, and circumstances, but I would
say that that would be the general practice, yes. [Tr. 317–318.]
qualified temporary referral and a qualified walk-in candidate
for a position, both being equally good matches for the Com-
pany, Hunt would select the walk-in because of the referral
fees.
Hunt denied specifically discriminating against union appli-
cants by setting aside their applications or by not giving them
the same consideration as other nonunion applicants. Hunt also
testified that she was unaware of any other individual at the
Company who had knowingly discriminatorily set aside any
union applications. Hunt also stated that she was unaware of
any company policies (and, presumably, she herself employed
none) wherein union applicants were given different considera-
tion from other nonunion applicants.
4. Respondent’s recruitment and hiring efforts
during the relevant period
Beginning in earnest in July and August 1994,6 and continu-
ing off and on through the Spring and Fall of 1996, Respondent
admits that at various times it placed recruitment advertise-
ments in newspapers and also utilized billboards and third-party
referral services, in an effort to fill positions in several trades
and occupations within its area of operations. The recruitment
efforts were spurred by Respondent’s stated continued growth
and expansion of its business during the period in question.7 I
would find that during the covered period, there were positions
(number unknown) available and open for at Respondent’s
various facilities and that Respondent had concrete plans to fill
these positions.
B. The IBEW Applications
In July and August 1994, certain members of the IBEW, in
response to newspaper advertisements, billboards, and by word
of mouth in the electrical trade, applied for employment with
Respondent. IBEW electricians Tim Geary, Michael Geary,
Roger Clayton, Harley Adams and Russell McCann submitted
applications and resumes to Respondent which were hand-
carried by Michael Closson, an IBEW member and paid organ-
izer, to Respondent’s Fort Wayne office, on July 21, 1994. At
the same time, Closson also submitted his own application and
resume.8 Another IBEW member, Harold Wasson, personally
6 As will be evident later in this decision, Respondent was hiring in-
dividuals for employment in the various trades as early as April 1994.
However, the material time frame pertinent to the instant matter was
July 1994 through November 1996.
7 The Respondent admits, and the record herein supports, a finding
that J. O. Mory in July 1994 was seeking qualified residential electrical,
plumbing, and HVAC installation workers; and in the period October
1995 through November 1996, at various times was seeking individuals
for HVAC positions, journeyman sheet metal workers, and other work-
ers. Again, the number of positions was not disclosed for any periods.
However, because the record clearly supports a finding that Respondent
was “busy” and “swamped” with work, clearly it needed workers in
probably substantial numbers in the various trades.
8 Closson testified that he also submitted a completed application for
one other IBEW union member, Joe Langmeyer. This is disputed by
Respondent and the matter of Langmeyer’s’ application will be dis-
cussed infra. Langmeyer also was never hired by Respondent. The
IBEW union charges that another IBEW union member, William Lep-
per, also made application with Respondent in July 1994. This applica-
tion, too, is disputed and will be discussed at length infra. Lepper also
was never hired by Respondent.
IBEW union member Richard Chandler was also originally included
in this group of electrician applicants but was stricken from the com-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 608
submitted applications to Respondent in July and August 1994.9
None of the IBEW members were hired by Respondent.
1. The IBEW individual cases
Michael Closson
Closson testified at the hearing. Closson currently works as
a paid organizer for the IBEW Union and has worked in its
employ for approximately 3 years; he is a licensed journeyman
electrician.10 Closson became aware of Respondent’s hiring
efforts in early July 1994 by word of mouth among the union
membership and through notices on billboards in the Fort
Wayne area. Closson, along with business managers from the
Sheet Metal Workers,11 went to Respondent’s Fort Wayne of-
fice on July 21, 1994, determined that Respondent was hiring
and submitted his application and business card,12 along with
the applications and resumes of several IBEW members. Clos-
son testified that the union applications dropped off by him
were for Harley Adams, Timothy Geary (T. Geary), Michael
Geary (M. Geary), Roger Clayton, Joseph Langmeyer, William
Lepper, Russell McCann, and Harold Wasson.13 Closson was
advised by the receptionist that the applications would be for-
warded for review to Dean Polly, Respondent’s Fort Wayne
office manager.
On July 26, 1994, Closson called the Fort Wayne office and
asked to speak to Polly who was not available. Closson again
called Respondent’s Fort Wayne office on July 28, 1994, and
asked for Polly who again was not available. Closson called
Respondent on July 29, 1994, but this time called the South
Milford office and reached Hunt. Closson asked Hunt if she
had received the (IBEW) applications from the Fort Wayne
office. Hunt told Closson that she had, but that she had not had
time to review them. Closson left the matter at that; but later he
became aware of Respondent’s continuing recruitment efforts
for journeyman electricians in November 1994 through news-
paper ads. Closson was never contacted by Respondent regard-
ing his application.
Hunt testified regarding her handling of the IBEW appli-
cants. Hunt’s version of these events differs materially from
Closson’s. According to Hunt, Clayton, Adams, T. Geary, M.
Geary, and Russell McCann applied in person (but as a group)
on July 11, 1994. She says, “I received them all together—they
came into the office together and dropped them off.” (Tr. 321.)
As to applicants Closson and Wasson, Hunt testified that Re-

plaint by the General Counsel. Respondent also denies ever having
received his application.
9 Respondent claims it never received Wasson’s July application, but
does not dispute receipt of Wasson’s August application.
10 It was stipulated and agreed by the General Counsel that Closson
has been gainfully employed by Garfield Electric and the IBEW since
Closson submitted his application to Respondent.
11 It is not clear whether this person, identified by Closson as Dave
Platt, was affiliated with Sheet Metal Union Local 20 (one of the
Charging Parties here). Platt and the unidentified pipefitter were not
called as witnesses by the General Counsel.
12 Closson’s business card was not attached to his application—G.C.
Exh. 6—nd presumably was lost. However, Closson said that his busi-
ness card clearly showed that he was an IBEW “representative.” How-
ever, his application also clearly shows his union employment; there-
fore, Respondent’s knowledge that he was a paid union organizer, in
my view, is not disputed.
13 There is a dispute as to whether these applications included those
of alleged discriminatees Joseph Langmeyer, William Lepper, and
Harold Wasson, to be discussed infra.
spondent received their applications from them in person on
July 21 and in August 1994, respectively. I have credited Clos-
son’s version of the delivery and receipt of the applications of
Clayton, Adams, T. Geary, M. Geary, and McCann. It is clear
from the record herein that Hunt was not directly involved in
the intake of applications which were generally received by a
Company receptionist and then forwarded to Hunt. Further-
more, Hunt, herself, was not confident about the circumstances
surrounding the receipt of the applications of the five union
members in question.14
Accordingly, I conclude that the applications from Clayton,
Adams, the Gearys, McCann, and Closson, himself, were all
delivered by Closson to Respondent on July 21, 1994.
Regarding Closson, Hunt said that she considered his appli-
cation, but did not consider him for employment because first,
he was currently employed with the IBEW local; second, his
salary was (union) scale and as a union organizer, he was mak-
ing considerably more than what Respondent would pay.
Hunt was not asked whether she ever tried to contact Clos-
son about his application, so I assume she did not, which is
consistent with Closson’s testimony that he was never con-
tacted.
As with all of the IBEW alleged discriminatees, Respondent
contends that based on its employment criteria, Closson was
justifiably not hired. I note that Closson’s application clearly
states in the part asking for Salary Desired, that he is “open” (to
negotiation). Notable also is the fact that the other elements of
the Respondent’s employment criteria were evidently not ap-
plied; most pointedly, the criterion which placed emphasis on
the applicant’s calling back to check on his application, which
Closson did so on several occasions. I note that Closson’s
qualifications are clearly not disputed and that although he was
currently employed by the Union, he was a bona fide applicant
for employment.
Harley Adams
Harley Adams is a journeyman electrician according to his
application, submitted to Respondent by Michael Closson on
his behalf on July 21, 1994.15 Adams did not testify at the hear-
ing. Respondent acknowledged receipt of Adams’ application,
considered by Tammy Hunt who did not personally interview
Adams, did not contact him about this application and did not
hire him.
Hunt testified that Adams was not hired because his applica-
tion indicated he earned anywhere from $13 per hour up to
$18.45 at his last job. According to Hunt, Adams was not hold-
ing a journeyman’s card. Thus, Hunt concluded that Adams
was not hireable because he did not have the necessary jour-
neyman’s card and, moreover, was making substantially higher
wages than Respondent was offering journeymen with a card.
Hunt did not contact Adams to verify his journeyman status
or his wages which, according to his application, was a “nego-
tiable” item. Adams’ application calls for a response covering
“Subjects of Special Study and/or Licenses Held.” Adams
responded—“J.I.W.”—which I interpret to mean Journeyman
14 Hunt testified (regarding the submission of these five IBEW appli-
cations):
As far as the applications that I have here and exactly who was
there, I can’t say for sure. [Tr. 321.]
15 Adams’ application is contained in G.C. Exh. 2.
J. O. MORY, INC. 609
Inside Wireman.16 Hunt, on the other hand, concluded that
Adams did not possess a journeyman’s card and did not explain
how she drew this conclusion. Clearly, Hunt did not investi-
gate further than the four corners of the application. Closson
testified about Adams’ experience and background and indi-
cated that Adams had 20 years’ experience (journeyman status
occurs at the completion of 5 years’ experience) and was li-
censed in Allen County, Indiana, to do electrical work.17 I
would conclude that Adams was a qualified and licensed jour-
neyman electrician at the time of this application and a bona
fide applicant for employment.
Timothy “Tim” Geary
T. Geary, according to his application, is a licensed jour-
neyman electrician. T. Geary did not testify at the hearing.
Closson submitted this application to Respondent on July 21,
1994, on T. Geary’s behalf. 18
Hunt acknowledged receipt of T. Geary’s application and
considered it along with the other IBEW applications during the
July 1994 recruitment campaign. Hunt did not personally in-
terview him and did not hire him.
Hunt testified that she was aware of T. Geary’s union affilia-
tion, as his application indicated he was currently an “electri-
cian J.I.W.” (journeyman inside wireman) making $35 per
hour. T. Geary’s application indicated that he desired a salary
of $40 per hour for the foreman’s position for which he was
applying. Hunt viewed this salary request as way out of line for
what Respondent would pay anyone at J. O. Mory’s and basi-
cally for this reason, alone, did not hire T. Geary. Hunt did not
elaborate as to the nature of the foreman’s job—whether it was
a supervisory position and, accordingly, possibly not covered
by the Act. However, Respondent did not defend on this
ground. Thus, I would conclude that this foreman’s position
was not supervisory; and, therefore is covered by the Act.
Based on his application, and Hunt’s testimony, T. Geary’s
qualifications as an electrician/foreman are not in dispute.19 I
would conclude, irrespective of his being currently employed
by the IBEW, he was a bona fide applicant for employment.
Hunt made her decision not to hire T. Geary solely on the
basis of the wage related part of the Company’s employment
criteria and, in effect, did not engage in her “process of elimina-
tion” approach in not hiring him. Hunt, without contacting T.
Geary, assumed that his salary demand would make him a poor
fit for employment at J. O. Mory.
Michael Geary
M. Geary is a licensed journeyman electrician20 according to
his application which was submitted to Respondent on July 21,
1994, by IBEW member Michael Closson on his (M. Geary’s)

16 In support of this interpretation, see, e.g., G.C. Exh. 8, Harold
Wasson’s resume which uses the description “journeyman inside wire-
man”; the testimony of William Lepper at Tr. 133, in which he used the
description journeyman inside wireman; and the testimony of Joseph
Langmeyer at Tr. 143, who also refers to his rating and skill level as a
journeyman inside wireman.
17 I credit Closson’s testimony regarding his knowledge of Adams’
background, experience and licensing status.
18 T. Geary’s application is contained in G.C. Exh. 9.
19 Closson testified that T. Geary had 17–18 years’ experience and
consistent with his application, T. Geary was licensed in Allen County,
Indiana, to do electrical work.
20 M. Geary’s application is contained in G.C. Exh. 10 and indicates
that he holds electrical licenses in Allen and Dekalb Counties (Indiana).
behalf. M. Geary did not testify at the hearing; however, his
application was acknowledged to have been received and con-
sidered by Hunt who did not personally interview M. Geary.
Hunt testified that Respondent did not hire M. Geary because
he was currently employed at Shambaugh Electric21 at $20.21
per hour. Hunt noted that M. Geary’s application also stated
that his reason for wanting to leave Shambaugh was to better
himself and make more money. M. Geary’s application stated
that he desired a salary of $21 per hour. Hunt testified that M.
Geary was not hired because he (M. Geary) was employed at a
higher wage and, to her, he would not, on that basis, have made
a good match for J. O. Mory. Hunt did not check with the ap-
plicant to advise him, that J. O. Mory’s wage structure was not
commensurate with his salary desire. Hunt assumed that his
salary was not comparable with the wages budgeted for the
position. Hunt evidently applied no other components of the
Respondent’s employment criteria to reach her decision not to
hire M. Geary.
Roger Clayton
Clayton did not testify at the hearing. Clayton, according to
his application, is a licensed journeyman electrician.22 Clay-
ton’s application was submitted to Respondent by Closson on
July 21, 1994, along with the other IBEW members. Hunt ac-
knowledges Respondent’s receipt of his application and that
Clayton was not personally interviewed. However, Clayton’s
application was considered by her along with other applications
she received from the IBEW during July 1994.
Hunt testified that Clayton was not hired by Respondent for
several reasons. First, Hunt noted that at the time of the Com-
pany’s placing of the advertisements seeking employees, the
Company was looking for skilled labor; however, the Company
did not, in the course of time, actually hire skilled workers.
Rather, the Company opted to bring in apprentices to “match
up” with their own journeymen.23 Hunt also noted from Clay-
ton’s application that he (Clayton) was presently employed (at
Service Electric24) and that he was making $20 (plus) per hour
as an electrician. Hunt reasoned Clayton would not be
“happy” at J. O. Mory were he to be hired because he would
be making significantly less money. Hunt testified that J. O.
Mory was paying in July 1994 approximately $11 per hour for
an electrician position, considering one’s experience. Hunt
testified that beginning or entry-level electricians in 1994 were
paid approximately $9 per hour.25
Hunt never contacted Clayton regarding his application, and
therefore never advised him of Respondent’s decision to hire
only apprentice-level employees26 or to discuss wages. Irre-
21 Hunt had testified that she was aware that some of Respondent’s
competitors were so-called union companies, but was not sure of all
their names. However, with respect to Shambaugh, she was sure this
was a unionized company.
22 Clayton’s application is contained in G.C. Exh. 11 and indicates
that he is licensed in Allen County. Closson also testified to this fact.
23 This justification for not hiring was first advanced by Respondent
in Clayton’s case.
24 I decline to infer that Hunt (Respondent) knew that Service Elec-
tric was a union company, as the General Counsel argues (B E & K
Construction Co., 321 NLRB 561 fn. 2 (1996)).
25 This basically corresponds to Respondent’s wage structure set out
in R. Exhs. A and B for licensed journeymen electricians with Clay-
ton’s experience.
26 Respondent did not produce any documentation for this policy
change. Thus, it appears Respondent seems to have shifted or changed
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 610
spective of the policy change, Hunt seems to have relied most
heavily on the wage criterion. That is, Clayton, according to
his application, was making substantially more than Respon-
dent was paying and in spite of his being “open” as to desired
salary, Hunt reasoned that he (Clayton) would not be a good
match for the Company.
Russell McCann
McCann testified at the hearing. McCann is a member of the
IBEW and has held membership since 1968. He has been a
licensed journeyman electrician for over 20 years. McCann has
also served for over 20 years as a fifth year instructor with the
IBEW Joint Apprenticeship Training Committee (JATC).27
McCann testified that during July 1994, he was unemployed
and inquired of Closson about work availability (through the
hiring hall), and Closson informed him about Respondent’s
hiring efforts and its soliciting of applications. McCann ob-
tained an application from Closson, completed it on July 11,
1994, and returned it to Closson who, McCann understood,
submitted it to Respondent on July 21, 1994. McCann, who
applied for an electrician/foreman position, was never con-
tacted by Respondent about his application for employment.
Hunt testified regarding her handling of McCann’s applica-
tion which she acknowledged was received by her as part of the
IBEW applications in July 1994. She did not hire McCann
because he was currently employed28 and desired a salary of
$26.60 per hour which Hunt understood to be more in line with
union wages or “scale.”29
McCann’s application makes his union affiliation clear, and
Hunt herself knew McCann was part of the Closson group of
applicants. While Hunt says she rejected McCann because he
was employed, I note that Hunt herself admitted that she hired
at least two other non-IBEW applicants—Patrick Garrett in

in part the hiring criteria for Clayton alone, which, in my view, casts a
shadow over Respondent’s rationale for not hiring him. (Cf. Falcone
Electric Corp., 308 NLRB 1042 (1992) (payroll records produced by
company to show no one was hired during the relevant period of al-
leged discrimination.) Also, I note that respect to alleged discriminatee
Adams (previously discussed), Hunt rejected him for employment
because Adams’ application indicated that he had not achieved jour-
neyman status. Clayton, however, by contrast, was rejected by Hunt
because he had achieved journeyman status. These applications were
submitted contemporaneously.
27 McCann’s application is contained in G.C. Exh. 13, which clearly
states that he is a licensed journeyman electrician in Allen County and
has taught electrical apprenticeship for 21 years. Hunt testified that she
recognized that union membership of applicants by reference to the
JATC.
28 On cross-examination, McCann was directed to his application by
Respondent’s counsel. The application indicated that he was then
employed at Claxton Electric. McCann reluctantly admitted that he
was employed at the time. Thus, I find that at the time of his applica-
tion, he was not unemployed as he earlier testified. However, in the
context of this case, I do not conclude he was irredeemably impeached;
rather, I find that his testimony is otherwise generally reliable and
credible.
29 Hunt clearly indicated that she was familiar with “scale” as a term
denoting union wages as opposed to other wages or pay structures. For
instance, in speaking of IBEW applicant Michael Closson, she testified:
Again, he was currently employed. He was employed at the
IBEW local. He has on here [the application] that he was—the
salary that he was making was scale, that his position was as or-
ganizer and from the other applications that I received I would
know that he is already making considerably more than what we
would be employing someone at [emphasis added]. [Tr. 335.]
June 1994 and Ronald Swangin in August 94—when they were
currently employed. Notably, McCann’s qualifications are not
seriously disputed—he was a qualified journeyman electrician,
and I so find. I also find that in spite of his then current em-
ployment with another company, McCann was, nonetheless, a
bona fide applicant for employment.
Harold Wasson
Harold Wasson testified at the hearing. Wasson was an
IBEW business agent from 1992 through 1995; he is currently
retired from that position. He has been a licensed journeyman
electrician for approximately 28 years. Wasson became aware
of Respondent’s hiring efforts through other union members.
Wasson initially testified that he was then unemployed and
went to J. O. Mory’s Fort Wayne office, filled out an applica-
tion on July 8, 1994, on the premises and submitted it to the
company receptionist.30 On July 13, 1994, Wasson made a
telephone call to Respondent’s Lima Road (Fort Wayne) office
to check on his application and was instructed to call Hunt at
the South Milford office. When he called the South Milford
office, he was told that Hunt was not in, but that he had to di-
rect everything to and through her. Wasson left a message for
Hunt to return his call as soon as possible, because “[He] really
needed a job.”31
On or about August 2, 1994, Wasson went to Respondent’s
Avilla office and submitted another application along with his
business card because, as he testified, he was seeking a job with
Respondent wherever and whenever he could.32 Wasson re-
turned to Respondent’s South Milford office on August 22 and
on August 23, to inquire about his application and on each oc-
casion was told that Hunt was not available. Wasson, however,
did manage to speak to Respondent’s vice president, Michael
Rowe, to whom Wasson said he introduced himself as an
IBEW business agent. According to Wasson, Rowe said
(among other things) that the Company was very busy
(“swamped”) and asked him (Wasson) whether he possessed a
Michigan (electrical) license. On or about October 25, 1994,
Wasson again visited the South Milford office and spoke to
Gene Mory, Respondent’s secretary, whom he met by chance
coming out of a local post office. Wasson inquired of Mory
whether Respondent was hiring electricians, to which Mory
responded that the Company was definitely hiring. Mory then
took Wasson back through Respondent’s offices, introduced
30 Wasson’s July application was not physically produced at the
hearing. IBEW Representative Michael Closson testified that he deliv-
ered Wasson’s application and resume (G.C. Exh. 8) to Respondent as
part of a group of IBEW applications. I believe that Closson is mis-
taken relative to the delivery and submission of Wasson’s July and
August application which I believe were delivered by Wasson himself,
as he testified. I believe that the July application probably was inno-
cently lost or misplaced by Respondent.
31 Actually, Wasson was employed at the time by the IBEW Union
and making $20-$21 per hour during the time he was applying for work
at J. O. Mory. As to his employment status, it is clear that Wasson at
the time was not telling Respondent’s agents the truth in order to get
Respondent’s attention and secure employment. Wasson’s August
application clearly states that Wasson had left Shambaugh Electric on
June 28, 1992, “to go into the office.” It does not indicate where he
was employed, but a telephone number is included. Respondent has
not asserted any defense of giving false statements in the application or
by Wasson as grounds for not hiring him.
32 Wasson also testified that he went to the Respondent’s Angola of-
fice on August 3, 1994, presumably, to check on his application; but he
did not submit an application at that time.
J. O. MORY, INC. 611
him to Hunt and instructed Hunt to get the paperwork com-
pleted so that Wasson could be hired. At the meeting, Wasson
brought up the subject of his previously submitted applications
with Hunt. Hunt, whose office was being painted at the time,
told Wasson she could not find his application. Hunt also ac-
knowledged to Wasson that Respondent was swamped (with
work). On that occasion, Hunt interviewed Wasson at the of-
fice and asked him whether he was seeking a full-time posi-
tion—he was; whether he was willing to work overtime—he
was; whether he had reference—he did; and whether he pre-
ferred commercial or industrial work—he had no preference.
Hunt concluded the interview and advised that she would try to
find his application, check his references, and get back with
him in a couple of days. On or about November 10, 1994,
Wasson again called the South Milford office and once more
spoke to Hunt. Wasson asked her why she had not gotten back
to him, and Hunt claimed that she had been too busy, and had
not contacted Wasson’s references. Wasson ended the conver-
sation by again reminding her that he was looking forward to
her calling him back, because, “[He] really needed the job.”
(Tr. 108.) Wasson was never re-called by Respondent.
Hunt explained her handling of Wasson’s application.33
Hunt did not hire Wasson because he was already employed at
Shambaugh Electric34 as an electrician, and she knew thereby
that he was making more there than he would receive at J. O.
Mory. Acknowledging one meeting with Wasson, Hunt stated
that Wasson told her he was interested only in short-term em-
ployment—work through the Winter—but she was only inter-
ested in employees willing to work for a longer time. Accord-
ingly, Wasson was not hired by the Company. Hunt did not
mention the several calls made by Wasson to check on the
status of his application; nor the time Gene Mory introduced
Wasson to her. Hunt did not reveal much of what happened at
the interview with Wasson.
I have examined Wasson’s application (and resume), and I
note at the time, Wasson was not employed by Shambaugh.
Wasson, on his application, clearly stated that he had left that
company in June 1992. So, to the extent Hunt relied on his
employment at Shambaugh to reject Wasson for employment,
she was clearly in error. Hunt also determined that Wasson
would not be a good match for the Company because he was
making too much money, as compared to J. O. Mory wages,
although his application clearly states that as to salary desired,
Wasson was “open” (to negotiation).
I was not impressed with Hunt’s testimony with respect to
her handling of Wasson’s application. On the other hand, Was-
son was not a very impressive witness. First, he testified that
he was unemployed at the time of application, which was sim-
ply not true. Second, he also seemed to develop memory lapses
on examination by the Respondent’s counsel, quite unlike his
rather precise, forthright and unhesitating answers to the Gen-
eral Counsel’s questions. In resolving this issue, I have
considered both Hunt’s and Wasson’s testimonies, in toto, re-
garding Wasson’s application and would conclude that of the
two, Wasson’s testimony is the more believable.
In finding Wasson more credible, I have taken note that sig-
nificant aspects of his proffered testimony are unrebutted. For

33 As previously noted, Wasson’s personally submitted application is
G.C. Exh. 7; G.C. Exh. 8 is a copy of his resume introduced by Clos-
son.
34 Shambaugh was known by Hunt to be a “union” contractor.
instance, Wasson pointedly testified to his repeated checks on
the status of his application and with Hunt in particular. Hunt
mentions merely one such possible meeting and does not dis-
cuss much, if at all, the interview that Wasson says took place.
Also, Hunt did not testify at all about the time Gene Mory in-
troduced Wasson to her and supposedly directed her to hire
him. It would seem that this was a most significant event, yet
Hunt is silent as to what happened at the meeting or if it took
place at all. For these reasons, combined with Hunt’s clearly
mistaken reading of Wasson’s application, I would find and
conclude that Wasson is the more credible witness with respect
to material facts surrounding Wasson’s attempts to be em-
ployed at J. O. Mory.
Wasson was clearly qualified for an electrician’s position.
Wasson had substantial experience in the trade, was licensed in
two counties and, as far as Hunt knew, was desperately seeking
employment at a time Respondent desperately needed electri-
cians. Although Wasson was not truthful at the time of his
application to Respondent with respect to his true employment
status, he was candid in admitting that one of his reasons for
applying at J. O. Mory was to organize Respondent’s employ-
ees. In spite of employment, he was in my view, nonetheless, a
bona fide applicant for employment. I note on this point that
one of Respondent’s executives evidently considered his em-
ployment as an IBEW business agent no barrier to employment
at the Company and indeed wanted Hunt to hire him.
2. The disputed IBEW applications
Joseph (Joe) Langmeyer
Langmeyer testified at the hearing. Langmeyer is a current
member of the IBEW and has been a member since February
1978. Langmeyer has been a licensed journeyman “inside
wireman” (electrician) since 1980. Langmeyer learned of job
openings at J. O. Mory through Mike Closson and through
notices on billboards in July 1994. Langmeyer obtained an
application from Closson, filled it out and returned it to Closson
for submission to Respondent. Langmeyer testified that Clos-
son told him he was going to submit it to J. O. Mory. Lang-
meyer did not personally go to the Respondent’s offices to
apply for a job and never called the Company to follow up on
the status of his application. Langmeyer was never contacted
by Respondent.
Hunt testified that Respondent never received Langmeyer’s
application and he never was considered for employment for
that reason. As far as Hunt was concerned, Langmeyer never
applied for employment, a fact confirmed by a search of com-
pany records which did not disclose any record of his having
submitted an application for employment.35
Closson testified that Langmeyer’s application was among
those he submitted to Respondent on July 21, 1994, at Respon-
dent’s South Milford office. On cross-examination by Respon-
dent’s counsel, Closson acknowledged that he did not have a
copy of Langmeyer’s application, but explained that his copies
35 Because Respondent denied receipt of Langmeyer’s application,
the General Counsel presented Langmeyer with a blank J. O. Mory
application and asked him to explain his responses to the questions in
the application. Langmeyer was not altogether sure of all of the actual
responses he made. However, based on the clear and firm responses he
made regarding his background and experience and, by comparison to
the other applicants, he was, in my view, a qualified licensed journey-
man electrician and was therefore at the time a bona fide applicant for
employment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 612
were possibly lost by the NLRB investigators to whom he had
provided copies pursuant to the investigation of this case. I
note that Closson also testified that he submitted the application
of another alleged IBEW union discriminatee, William Lepper,
on July 21, 1994. However, Lepper testified at the hearing that
he personally submitted his application to Respondent. Thus,
while I have credited Closson’s previous testimony about cer-
tain other applications he left with Respondent, I believe he is
mistaken in his belief that he delivered Langmeyer’s applica-
tion to Respondent (as he was with respect to Lepper).
In any event, the General Counsel has the burden to show by
a preponderance of the evidence each material element of the
charge. A crucial threshold point to be established regarding an
alleged discriminatory refusal to hire is whether Respondent
knew of an applicant’s intention or desire to be hired. In regard
to Langmeyer, I cannot find that Respondent actually received
his application. I note there has been no suggestion of irregu-
larities, questionable or underhanded conduct with respect to
records or record production by Respondent. Therefore, at
best, the evidence of Langmeyer’s purported application is in
equipoise. Accordingly, with respect to the charge of Respon-
dent’s alleged unlawful refusal to hire, or consider for hire,
Langmeyer, the General Counsel has failed to meet his burden
of proof regarding the threshold requirement that it be shown
an application for employment was actually submitted to Re-
spondent. Accordingly, I would dismiss the complaint as it
relates to alleged discriminatee Langmeyer.
William Lepper
William Lepper testified at the hearing and stated that he was
and is a member of the IBEW Union and became a member in
February 1951. Lepper is retired presently (as of January
1995), but retired as a journeyman inside wireman. He has
been a journeyman electrician since 1958. Lepper became
aware of the Respondent’s recruitment efforts in July 1994
through a local newspaper advertisement and decided to apply
for a position. Lepper told Closson of his plans to apply, but
took it on himself to apply personally. Lepper testified that he
went to the Respondent’s Lima Road (Fort Wayne) office, ob-
tained an application, filled it out, and turned it in to the com-
pany receptionist. After submitting the application, about a
week later, he saw another J. O. Mory advertisement almost
identical to the first one. This ad, however, stated that appli-
cants had to have a city or county (electrician’s) license. On
the next day, after reading this ad, Lepper went to the Lima
Road office again and presented his license to the receptionist,
who copied it and told him that it would be associated with his
prior application.
Lepper at the time was unemployed, having been laid off
from a previous job in the middle of July 1994. On cross-
examination, Lepper reiterated that he applied directly and
personally for employment at the Company, and that no one
had submitted an application on his behalf. Lepper was not
asked by either party whether he ever followed up on the status
of his application (after supplementing it with his license) or
whether he was ever contacted by the Company. I assume by
inference then that he made no additional status checks on his
application.
Respondent’s Hunt testified that to her knowledge, Lepper
did not ever apply for a position at J. O. Mory and, accordingly,
was never considered as a prospective employee.36
I have stated earlier herein that it is the General Counsel’s
burden to establish by a preponderance all facts material to the
charge in question. In my view, Lepper testified credibly re-
garding his attempt to get hired at J. O. Mory. However, there
is no reason to doubt Hunt’s denial of receipt of Lepper’s pa-
perwork. Clearly, records can be innocently or inadvertently
lost or misplaced.37 In the absence of any proof of any allega-
tion of misconduct or irregularity in the keeping and production
of records by Respondent, I cannot disbelieve or discredit
Hunt’s denial of receiving Lepper’s application. On this point,
it has been established beyond cavil that applications during
this period generally were submitted to Hunt through other
persons, but it seems primarily through the South Milford re-
ceptionist, Nancy Clendenon. Yet when given the opportunity
to examine Clendenon, the General Counsel did not question
her about Lepper’s (or Langmeyer’s) application, and thus was
lost an opportunity to resolve the issue.
Accordingly, I would find that while Lepper’s testimony of
having submitted an application is generally credible, I also
find that Respondent’s denial of receipt of his application is
equally credible. I note that there was a substantial volume of
applications received by Respondent during the period that
Hunt received applications, and that a person who could per-
haps have shed light on the handling of Lepper’s (and Lang-
meyer’s) application was not examined about the issue. Ac-
cordingly, I find that the General Counsel has not met his bur-
den of proof as to the alleged discriminatory failure to hire or
consider for hire, Lepper. I would dismiss the complaint as to
this charge.
C. The Sheet Metal Union Applications
In October 1995, in response to newspaper advertisements
placed by Respondent, five employee/members of the Sheet
Metal Union went to the Respondent’s South Milford facility as
a group. The Sheet Metal union members were Terry
Anspaugh, John Tafelski, Kelly Ullery, John Kereszturi, and
Michael Starnes and each appeared onsite wearing various
union paraphernalia. Each member obtained and submitted an
application to J. O. Mory on October 9, 1995. This group was
acting on the instructions of Kereszturi, a paid Sheet Metal
organizer, and each of these individuals were, themselves, paid
employee-members of the Sheet Metal Union. With the excep-
tion of Kereszturi, who was hired approximately 1 year later,
none of this group was ever hired by Respondent.

36 As with Langmeyer, because Respondent denied receipt of Lep-
per’s application, the General Counsel presented a blank company
application form and asked him to fill it in on the witness stand as he
did when he submitted it. I was impressed with Lepper’s recall and his
qualifications as a licensed journeyman electrician. In my view, he was
at the time fully qualified for the available electrician positions and was
a bona fide applicant.
37 Closson testified that NLRB investigators possibly lost some of
the Union’s records in the course of the investigation of this matter.
J. O. MORY, INC. 613
1. The Sheet Metal individual cases38
Terry Anspaugh
Anspaugh testified at the hearing and related that he was a
Sheet Metal Union member and has been a member for 5 years;
he is currently a fourth year apprentice and was a third year
apprentice in October 1995; and was and is employed by the
Sheet Metal Union. Anspaugh became aware of the Respon-
dent’s hiring efforts through newspaper ads and, along with
several other union members, went to the South Milford office
to apply for any sheet metal worker job; Anspaugh wore a
Sheet Metal Union hat at the time he applied. Anspaugh com-
pleted an application onsite, submitted it to the Respondent, and
was told that Hunt was responsible for job interviews. Ans-
paugh was not hired by J. O. Mory.
Hunt testified and explained her handling of Anspaugh’s ap-
plication. Hunt said that Anspaugh was not initially considered
for employment, because the Company had decided not to fill
the advertised positions, even though some persons had already
been interviewed.39 However, in March 1996, the Company
had decided to hire again. Accordingly, on March 6, 1996,
Hunt attempted to re-contact Anspaugh for possible employ-
ment and left a message with his wife to have Anspaugh call
her (Hunt) for an interview.40 Anspaugh’s wife advised that
Anspaugh was at school on that night. Anspaugh never called
back, and was never heard from again by Respondent.
On cross-examination by Respondent’s counsel, Anspaugh
testified that he did not personally receive the call from Hunt,
but acknowledged that his wife did indeed receive the call from
Hunt. Anspaugh admitted that he never called Hunt back, be-
cause he never got the number and so he never returned Hunt’s
call.41
There is no genuine dispute as to Anspaugh’s qualifications
for employment or Respondent’s knowledge of his employment
with the Union, made manifest by his attire and his application.
I would find and conclude that in spite of his employment with
the Union, that he was nevertheless a bona fide applicant. Fur-
thermore, it is clear that Hunt did not initially consider Ans-
paugh for employment in October 1995. However, I would
find that Hunt did consider him for work in March 1996 based
on his October application, which was the only application
submitted by him to Respondent. I would find that Anspaugh
knew (by and through his wife) that he was being considered
for employment at J. O. Mory, but decided not to follow up on
Hunt’s call. Accordingly, I would find that Anspaugh was not
hired by Respondent, but his nonhiring was not based on any

38 Alleged discriminatee Kelly Ullery will be discussed, infra, in a
separate section of this decision.
39 Respondent did not produce any records in support of this claim of
a policy change. However, the General Counsel offered no evidence to
rebut this nor did he otherwise seek to discredit this testimony. I would
therefore credit Hunt’s testimony regarding this matter which was
explained in greater detail through discussion of other applicants.
40 Hunt stated that she made a note on Anspaugh’s application—–
G.C. Exhs. 18 and 18a—of the call to Anspaugh’s wife on March 6,
1996, and a note dated March 8, 1996, indicating “no return call.”
41 Anspaugh testified as follows in response to a question from Re-
spondent’s counsel:
Q. So you never bothered to try to call Ms. Hunt despite the fact
that you knew that she worked at J. O. Mory at [the] South Milford
office to schedule an interview?
A. Correct. [Tr. 229.]
unlawful motive or reason cognizable under the Act. Accord-
ingly, I would dismiss the complaint as to Anspaugh.
John Tafelski
Tafelski testified at the hearing and related that he has been a
member of the Sheet Metal Union for approximately 7 years;
he currently is a fourth year apprentice. Tafelski was and is a
paid Sheet Metal Union organizer. During October 1995, Ta-
felski learned of possible job openings at J. O. Mory through
newspaper advertisements. On October 9, 1995, he and several
other Sheet Metal union members went to Respondent’s South
Milford office as a group and there made application for an
opening. The group all entered together and were each wearing
some form of (Sheet Metal) union attire (hats and/or jackets).42
Tafelski, himself, was wearing a union hat and jacket. Tafelski
filled out an application for employment as a service tech and
HVAC installer43 and submitted it to Respondent through its
receptionist. Tafelski said that he was not interviewed on that
date because Tammy Hunt was not available. Tafelski called
on two subsequent occasions to check on the status of his appli-
cation and finally reached Hunt. Hunt scheduled an interview
for October 28, 1995. On the appointed date, Tafelski met with
Hunt at the South Milford office; no one else was present at this
interview session. 44
According to Tafelski, Hunt basically discussed the Com-
pany’s benefits and programs, inquired about his experience,
his willingness to travel to the Syracuse area (where the job
presumably was) and discussed the wages of the position. Ta-
felski also stated that Hunt asked him if he were willing to still
work for the Union, because his application indicated he was
currently a union organizer. Tafelski, in response to these in-
quiries, told her his experience was in both commercial and
industrial sheet metal, and that traveling to the Syracuse area
presented no problem for him. Tafelski made no comment re-
garding wages, but he advised Hunt that he would continue to
work for the Union if he was hired. The interview concluded,
according to Tafelski, by Hunt’s advising him that she would
have to talk to a foreman who would, in turn, talk to him; and
then the foreman and she would evaluate him and reach a hiring
decision.
After this interview, Tafelski, on October 27, 1995, called
the South Milford office and inquired about his application. He
spoke to Hunt who advised that the Company was still inter-
viewing candidates and she would note his call. Tafelski was
never re-contacted by Respondent.
Hunt testified and explained her version of these events.
Hunt acknowledged that his application was received by her,
along with the application of other members of the Sheet Metal
Union workers on October 9, 1995. Hunt knew at the time that
Tafelski was a union organizer by virtue of his application
which indicated he was applying for a service technician or
42 Tafelski stated that he was in the company of John Kereszturi,
Terry Anspaugh, Kelly Ullery, Michael Starnes, and another whose
name he could not remember except that this person, like Starnes, was
from the Fort Wayne area.
43 Tafelski was a third-year Sheet Metal apprentice at the time. He
also possessed a chauffeur’s license and a certificate for universal re-
covery and reclaiming. These licenses would appear to have no appli-
cation to or bearing on Tafelski’s qualifications for the job he sought
with J. O. Mory. Tafelski’s application is G.C. Exh. 14.
44 Tafelski was accompanied to the South Milford office by Michael
Starnes who was purportedly checking on his application. Starnes was
not present during this interview.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 614
HVAC installer position. Disputing Tafelski, Hunt says that
she interviewed Tafelski on the same day he dropped off his
application and that at that time, he was wearing his union hat.
Hunt, on direct examination by Respondent’s counsel, ex-
plained why she did not hire Tafelski. First, Hunt reiterated her
prior testimony that the advertised positions were not filled
because of a downturn in the Company’s business and the deci-
sion to use the existing South Milford employees for a pro-
posed expansion of work in the Syracuse area. Second (and
this was evidently the more important stated reason for not
hiring Tafelski) was Tafelski’s unpleasant and intimidating
attitude and behavior during the interview which led her to
conclude that he would not be a “good match” for J. O. Mory.
Hunt found Tafelski to be “pretty offensive“ and that she felt he
was trying to intimidate her, i.e., by asking her more questions
than she of him; by providing very short (abrupt) answers to her
questions and not providing much in the way of information;
and by being more aggressive than one should be in an inter-
view. For instance, Tafelski, according to Hunt, raised the
subject of his union organizer status and very sarcastically
asked whether union status did not bother her. Hunt replied:

[H]is union affiliation did not make a difference to me but that
my job was to find the best match for the position that I was
looking for and part of that is for full time work with J. O.
Mory. [Tr. 365.]

Hunt went on to say:

By him [sic] [Tafelski’s] doing that through the interview
process, I felt that I was the one—I was going through an in-
terrogation rather than going through an interview. [Tr., id.]

Hunt was not asked by either party anything about conversa-
tions with Tafelski about his qualifications, work experience,
willingness to travel to Syracuse or wages. I would credit Ta-
felski’s testimony as to these conversations. However, I do not
credit Tafelski’s testimony, first as to the date of the interview
and second that Hunt raised the issue of his involvement with
the Union in the course of the interview. On these points, I find
that Hunt was eminently more credible and I conclude that her
version of the date and other aspects of their encounter are
more believable. In evaluating the credibility of Tafelski
(Hunt), I have carefully considered pertinent parts of his testi-
mony and his demeanor on the stand, and I have found him
wanting as a fully credible witness. Notably, Tafelski was not
sure of his responses, was hesitant, evasive, changed his testi-
mony and, in fact, was in my view somewhat untruthful. For
example, Tafelski, on direct examination in response to a ques-
tion from the General Counsel about his experience, said “I told
her commercial and residential.” Tafelski answered later that he
had done residential work. When he was asked for whom and
when had he done such residential work, he unresponsively
answered, “I learned it in school.” (Tr. 182.) Tafelski then
responded confusingly that he had done residential work, “not
for an employee [sic] but I done [sic] a few [jobs] for personal
people.” (Tr. 182.) Tafelski finally admitted that he had never
worked for a contractor doing residential work.
In response to another question from the General Counsel
regarding the location of the new position, Tafelski said, “I
think, it was the Syracuse area or something she was talking
about.” (Tr. 178.) On cross-examination, the following ex-
change took place between Tafelski and Respondent’s counsel:

Q. During the interview process, it was your under-
standing that the job was for the Syracuse area?
A. No. [Tr. 180.]

When he replied no, the following exchange occurred between
Respondent’s counsel and Tafelski:

Q. I thought you testified that she said it was for
. . . . .
A. She mentioned that. She said they
. . . . .
Q. Okay. So during the course of the interview, she
said that the job position that they were looking for was
. . . . .
A. She asked.
Q. the Syracuse area?
A. Right. She asked me would there be a problem for
me to travel in that area and I told her no. [Tr. 182.]

Hunt, on the other hand, was direct in her responses and
seemed candid and forthright. I note, that in spite of her
awareness of the unfair labor practice charges here, and Tafel-
ski’s union affiliation, she candidly expressed her views of him
as a candidate for employment. Hunt’s testimony makes clear
that Tafelski did not impress her, and in fact had offended her.
She did not mince or equivocate about what happened at the
interview. Accordingly, I tend to believe her when she stated
that Tafelski brought up the Union in the interview. I also be-
lieve Hunt’s testimony regarding her perceptions about and
reactions to Tafelski’s behavior at the interview. As to Tafel-
ski’s qualifications for service technician and/or HVAC in-
staller, I find him qualified for these jobs, and that irrespective
of his union employment, he was a bona fide applicant.
However, I also find and conclude that it is both plausible
and reasonable for Hunt as a hiring agent to conclude that a
person exhibiting the behavior she attributed to Tafelski on that
basis would not be a suitable employee. I believe Hunt decided
not to hire Tafelski for these reasons and not because of his
union activity or involvement. Accordingly, I would dismiss
the complaint as to Tafelski.
Michael Starnes
Sheet Metal union member Michael Starnes testified at the
hearing. Starnes has been a member of the Union for approxi-
mately 5 years and at the time of his application for employ-
ment at J. O. Mory, his application indicated that he was a
third-year apprentice. Starnes became aware of Respondent’s
hiring efforts in October 1995 through newspaper advertise-
ments. Accompanied by fellow union members Kereszturi,
Till, and individuals described as his three apprentices from
South Bend,45 Starnes made application for a HVAC installer
position at the Company’s South Milford facility. All of the
group were wearing some form of union insignia or
paraphernalia, and Starnes was wearing a union hat. After
completing his application and submitting it, Starnes learned
that Hunt was responsible for hiring. Starnes made several
calls to the Company during October 1995 to check on his
application and specifically asked for Hunt. On each
occasion, he was told that Hunt was not available but that
his call would be noted.

45 Presumably, Sheet Metal union members Tafelski, Anspaugh, and
Ullery. Starnes testified that Kereszturi organized the group and they
all went in together to apply for work.
J. O. MORY, INC. 615
Starnes reached Hunt sometime in November 1995 by tele-
phone and conversed with her. In that call, according to Star-
nes, Hunt indicated that the Company was looking for workers
for its Michigan area of operations and inquired of his (Star-
nes’) willingness to work in this area. Starnes indicated to
Hunt that he was willing to work in Michigan.
According to Starnes, Hunt stated that she would make note
on his application of the call; and the conversation ended. To
his knowledge, Starnes said that he was never contacted by the
Company regarding his application.
Hunt testified regarding Starnes’ application and explained
her handling of his application. Hunt did not attempt to or con-
sider Starnes for hire in October 1995, because the Company
elected not to fill these positions.46 However, on February 22,
1996, she unsuccessfully attempted to reach Starnes to schedule
an interview, but she left a message for him. On the following
day (February 23), Hunt called Starnes’ number and got no
answer. Hunt again called on February 26 and left a message
for Starnes. Hunt made her last attempt to reach Starnes on
March 1 and left a message asking whether he was still inter-
ested in employment and to leave a message with the reception-
ist if she (Hunt) were not available. Hunt pointed to her hand-
written notations on Starnes’ application (GC Exh. 16) to cor-
roborate her attempts to at least schedule an interview for
Starnes. Hunt was not asked by Respondent’s counsel about
any conversation that she may have had with Starnes prior to
her February-March telephone call. I will assume this conver-
sation occurred, crediting Starnes here. I also credit Starnes
repeated attempts to check on his application during 1995, in-
cluding a November or December 1995 visit by Starnes to Re-
spondent’s Fort Wayne facility.47
As to any messages from Hunt in February and March 1996,
Starnes testified that he does not recall receiving any such mes-
sage either personally or through his roommate at the time.
Starnes specifically denied receiving any messages on his an-
swering machine. On this issue of whether Respondent,
through Hunt, attempted to contact Starnes for purposes of
1996 possible employment with the Company, I credit Hunt’s
testimony over Starnes. I note that Hunt testified that gener-
ally, it was her regular practice to annotate an application re-
garding various and sundry job related matters and, in Starnes’
case, this practice was clearly followed. I also note that Starnes
testified that during the time of the purported calls from Hunt,
he began full-time employment with another contractor—
around mid-February 1996—around the time Hunt commenced
her calls. Therefore, in all likelihood, Starnes could have
missed her calls. Starnes further testified that he never even
consulted with his roommate about any calls regarding em-
ployment from J. O. Mory. Furthermore, Starnes testified that
he discontinued his status calls in 1995 and never made
checkup calls to Respondent in 1996.

46 Previously discussed.
47 Starnes testified that approximately in November or December
1995, he and fellow union member Till went to the Respondent’s Fort
Wayne office in response to a billboard sign that said apply within for
work. However, because of their applications at the South Milford
office, Starnes and Till were told by the receptionist that they need not
reapply at Fort Wayne, that those applications would also be good for
the Fort Wayne jobs.
Thus, I believe that Hunt considered Starnes for employment
based on his October 1995 application.48
Consequently, as to Starnes, I would find and conclude as
follows: Respondent was clearly aware of Starnes’ union af-
filiation at the time of his application for employment on Octo-
ber 9, 1995; that Respondent, based on that application, consid-
ered Starnes qualified for possible employment with the Com-
pany; Respondent, through its agent Hunt, in good faith repeat-
edly and earnestly attempted to contact Starnes to schedule an
interview for possible employment with the Company. Starnes,
for reasons beyond the control of Respondent, did not receive
the messages regarding Respondent’s interest in interviewing
him for possible employment. Starnes made no independent
efforts to check on the status of his application after December
1995 and at no time in 1996 through the present.
Accordingly, I would find and conclude that Respondent did
not violate the Act in not hiring alleged discriminatee Starnes,
and the complaint should be dismissed as to him.
James Till
Till testified at the hearing. Till has been a member of the
Sheet Metal Union for approximately 5 years and currently is a
fourth year apprentice; he was a third year apprentice employed
by the Sheet Metal Union on October 9, 1995, when he made
application for a sheet metal installer position at J. O. Mory.
Till at that time wore union insignia, a union ball cap. Till, like
Ullery, completed his application at the South Milford office
and submitted it to the receptionist who advised him that Hunt
was responsible for hiring. Till checked on the status of his
application periodically and ultimately reached Hunt who
scheduled an interview for October 19, 1995, at the South Mil-
ford office. Till was interviewed by Hunt as scheduled. Till’s
interview with Hunt covered his experience and his willingness
to travel. According to Till, Hunt said that the Company was
looking to fill residential sheet metal installers, and she noted
that Till’s experience was mostly in commercial and industrial
areas. In response, Till advised Hunt that, first, travel would
pose no problem for him. Second, he told her that he had not
done any residential work, but he considered residential install-
ing no more difficult than commercial or industrial; it was (in
his view) in effect the same type of work but on a smaller scale.
Two weeks later, Till and fellow union member Starnes saw a
lighted sign advertising the Respondent’s need for HVAC in-
stallers outside of the Company’s Fort Wayne office, which
prompted them to check on their applications and inquire if
another application were necessary. The receptionist, being
told of their prior applications a the South Milford office, said
another application would not be necessary.
At this time, Till also asked for how long his application
would be good or active. Till came to understand that his ap-
plication was good for a fairly long period of time. Approxi-
mately 1 week later, Till telephoned the South Milford office
again to check on his application. Till spoke to Hunt who indi-
cated that she (Hunt) and a supervisor were then going over
applications and his (Till’s) call would be noted on his applica-
tion. All of these events took place in 1995. Till was not hired
by Respondent.
48 I note that Starnes testified that Respondent’s receptionist told him
that applications were considered “active” for 6 months and would be
placed thereafter in an inactive status for 1 year. Hunt’s calls were
made within the 6-month period.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 616
Hunt testified regarding Till’s application. Respondent, at
the time of placing employment ads in October 1995, needed to
fill residential installer positions in the Company’s Syracuse
office which was part of a planned expansion of the Com-
pany’s operations there. However, due to a downturn in busi-
ness at the South Milford office, those advertised positions
were not filled; rather, the Company opted to use its existing
South Milford employees for the Syracuse operation. In Febru-
ary 1996, the Company again began looking for individuals to
fill HVAC positions in the South Milford office. In October
1996, the Company also needed workers for its sheet metal
division in Avilla and began a search for this operation. Thus,
according to Hunt, the Respondent, during the period covering
October 1995 through October 1996, advertised as needed for
workers for essentially three of its facilities.
As to Till, Hunt initially interviewed him on October 19,
1995,49 but did not hire him then, because the positions were
not filled because of the downturn in the Company’s business.
Hunt testified that on February 19, 1996, she tried to re-
contact Till to offer him a job and left a message. She called
again on February 20 and was told by a woman that Till was
out running errands. On February 21, Hunt called twice, and
on the fist time, she did not get an answer; on the second call,
she was told that Till had already gone back to work.
In October 1996, because Respondent needed workers for its
sheet metal division, Hunt again called Till and was told by a
woman that if the call was about a job, that he (Till) was not
interested.
Till, on cross-examination by Respondent’s counsel, stated
that he was not aware of any specific calls from Respondent (or
Hunt). However, Till said that he received many telephone
calls, and his wife took some of those calls on his behalf. Till
understood that some of the calls received by his wife were
from employers about jobs, but she could not remember the
names. As to the October 11, 1996, alleged call from Hunt to
Till’s wife, he was unsure of its being made by Hunt or re-
ceived by his wife. Till was not aware of Hunt’s proposal of a
job offer on October 11, 1996.
Regarding Till’s qualifications for jobs offered by Respon-
dent, there is no dispute or controversy. Accordingly, I would
find and conclude that he was a qualified applicant for em-
ployment when he submitted his application. I also would find
and conclude that irrespective of his employment with the
Sheet Metal Union at the time of his application, he, nonethe-
less, was a bona fide applicant for employment.
I credit Hunt’s testimony regarding her attempts both to con-
tact Tills and to offer him employment at J. O. Mory during
February and October 1996. I note that on this point that Hunt
testified credibly and forthrightly, and her notes, while not
wholly consistent with her testimony, are in the main corrobo-
rative of her testimony.50

49 Hunt testified that she is sure of this date, because she claims this
date is noted on one of the documents of his application. Till’s applica-
tion, G.C. Exh. 17, has several annotated date references, almost all of
which indicate 1996 dates; the exception is a reference to “10/10_” (no
year is indicated). There is no entry precisely indicating October 19,
1995, on Till’s application.
50 By contrast, Till was unsure of whether he received the calls in
question; but he did acknowledge that his wife received calls from
employers about jobs. Thus, I find that it is more likely that Hunt made
the calls in question to Till.
I would find and conclude that Respondent, as to Till, at-
tempted to hire him based on his October 5, 1995 application
on two occasions in 1996. However, Till was not hired by
Respondent because of a failure of communication of its inten-
tions to hire him, which failure was not the fault of Respondent
and, specifically, not because of Till’s involvement with the
Sheet Metal Union or because of protected activity. Accord-
ingly, I would dismiss the complaint as it relates to Till.
John Kereszturi
Kereszturi is currently and has been a paid union organizer
for the Sheet Metal Union since September 1992. He learned
of the availability of job openings at J. O. Mory on or about
October 8, 1995, through newspaper ads in the South Bend
area. Kereszturi, on October 9, 1995, went to Respondent’s
South Milford office between 9:30 to 10 a.m., accompanied by
Sheet Metal union members Michael Starnes, James Till, Kelly
Ullery, Terry Anspaugh, and John Tafelski, all of whom were
wearing union insignia/paraphernalia of one kind or the other,
i.e., union jackets or union hats. Kereszturi and the others all
filled out applications onsite and submitted them. Kereszturi
also gave the receptionist his business card which clearly iden-
tified him as an organizer employed by Sheet Metal Union.
Kereszturi asked the receptionist about scheduling interviews
for himself and the others and was told that Tammy Hunt was
responsible for interviews, but she was not available at the
time. Kereszturi then left the site but later, that same day,
called Respondent again to speak to Hunt who was still report-
edly unavailable. Kereszturi was not contacted by J. O. Mory
regarding his application at all in October nor at any other time
in 1995. However, he was contacted by Respondent through
Hunt in October 1996 and asked if he were still interested in a
job with the Company. Kereszturi was eventually hired by the
Company after an interview with Hunt in mid-October 1996.
Hunt explained the circumstances of Kereszturi’s eventual
hiring. Noting that his application was among several dropped
off personally by him and the other Sheet Metal Union workers
as a group, Hunt testified that Kereszturi was not considered for
employment in October 1995 because the Company decided
not to fill the position at that time. However, in October 1996,
Respondent required workers proficient in commercial sheet
metal work and some fabrication at its Avilla facility. Hunt
considered Kereszturi for these. Hunt interviewed him, hired
him and after he completed an orientation program, Kereszturi
began working for the Company on November 6, 1996. Hunt
acknowledged that she knew Kereszturi was “union” at the time
of his application because of his business card which was at-
tached to his application. Kereszturi only worked for approxi-
mately 2 days and voluntarily left the Company’s employ.51
Here, as with the other Sheet Metal union members who
made application for employment in October 1995, Keresz-
turi’s qualifications for employment are not disputed, as is evi-
dent by his later hiring by Respondent. Accordingly, I would
find and conclude that at the time of his initial application,
Kereszturi was a bona fide applicant for employment with Re-
spondent, his employment with the Union notwithstanding. I
find that Respondent, through its agent Hunt, considered
Kereszturi for employment based on his October 9, 1995, ap-
51 Kereszturi testified that after he requested a wage increase which
was rejected by Respondent; he then went on economic strike against
the Company, quit, and never returned to Respondent.
J. O. MORY, INC. 617
plication,52 interviewed him and ultimately hired him, fully
aware of his union employment and possible involvement in
protected activity.53 I would conclude that Respondent did not
violate the Act as to alleged discriminatee Kereszturi and would
dismiss the complaint as to him.
2. The application of Sheet Metal Workers’ union
member Rick Creswell
As stated earlier herein, in the spring of 1996, Respondent
needed to fill certain skilled positions, including licensed elec-
tricians, sheet metal journeymen, HVAC service technicians,
and other jobs. At this time, Respondent utilized the services of
a third-party referral company, CSR Technical Services (CSR)
to assist in the recruitment effort. In April 1996, CSR placed
ads for these positions in local newspapers and directed inter-
ested parties to act immediately and contact CSR. Respondent
was not identified as the principal employer in these ads.
Rick Creswell testified at the hearing. Creswell is currently
a fourth year sheet metal apprentice and has been a member of
the Sheet Metal Union for 7 years; in April 1996, he was a third
year apprentice.54 Creswell’s application indicated that he was
and is a paid organizer for the Sheet Metal Union.
In April 1996, Creswell saw an ad in a local newspaper for
journeyman sheet metal and HVAC positions. The ad in-
structed interested persons to contact CSR. Responding to the
ad, Creswell went to CSR and submitted an application. Once
there, Creswell was interviewed by CSR officials. He provided
background information which he identified as being included
on a CSR-prepared resume sheet.55 Creswell came to under-
stand after a time that J. O. Mory was the Company to which
his application would be referred. Creswell checked with CSR
four or five times, perhaps more, regarding the status of his
application. Creswell never made any contact with J. O. Mory
and was never contacted by the Company for employment.
Tammy Hunt testified regarding Creswell’s application.
Hunt acknowledged that the Company at times has used third-
party referral services to fill positions and that CSR has been
one such service used by Respondent. However, as to Cres-
well’s application, Respondent never received it and, therefore,
she did not consider him for employment.
A representative from CSR was called as a witness by the
General Counsel. CSR’s Karen Wolf testified and related that
she was the technical account manager for CSR. According to
Wolf, CSR operates as a complete staffing service and handles
the placement of light industrial, clerical, and technical person-
nel. CSR also performs out placement personnel work. In
April 1996, CSR received a request from J. O. Mory to find
potential employees in certain job categories, including sheet
metal journeymen. Among the steps taken by CSR to fill this

52 I have credited the testimony of union member Michael Starnes,
who said that Respondent’s receptionist told him that applications were
considered active for 6 months and placed on inactive status thereafter
for 1 year. Kereszturi testified to submitting only one application to
Respondent. I, therefore, conclude that he was considered for employ-
ment by dint of his October 9, 1995 application.
53 By hiring Kereszturi, a union employee and clearly the leader of
the Sheet Metal Union’s organizational effort, Respondent, in my view,
vitiates its argument that the alleged discriminatees were not bona fide
applicants for employment, simply because they were employed by the
Union and were bent on organizing Respondent’s workers.
54 As to Creswell, all dates refer to 1996.
55 G.C. Exh. 2(b).
request, it placed advertisements in local newspapers in April
1996.
Wolf explained that for every job order received by CSR,
they prepare a resume of the candidate’s background and ex-
perience, his requested salary, CSR’s fee, and whether the indi-
vidual will be a direct hire. This package is then submitted to
the requesting company. Wolf identified documents compris-
ing Creswell’s application and said it was handled in the cus-
tomary way as outlined above. Wolf, however, said that Cres-
well’s application was not prepared by her personally; rather by
Charmaine Wooleridge, then a CSR recruiter. Wolf testified
that Wooleridge would have been responsible for transmitting
Creswell’s application to Respondent. Wolf had no role in the
actual submission of Creswell’s paperwork and could not state
that it was in fact sent to Respondent. CSR’s Creswell package
included a fax cover sheet. Wolf was asked about the activity
report that usually is printed out to document the transmission.
Wolf said that she did not have a report for this particular
transmission.
The issue of receipt of the Creswell package redounds to
credibility. Respondent, through Hunt, steadfastly maintains
that it did not receive Creswell’s application; therefore, it never
considered him for employment because of that fact, as op-
posed to his union involvement which is clearly indicated in the
CSR package. The General Counsel argues, in essence, that
Respondent’s denial is simply not plausible. He cites the steps
undeniably taken by CSR to present Creswell’s application
(from the receipt of Respondent’s request, the placing of ads,
receiving and accepting applications, and preparing a Creswell
application) are clear proof that CSR must have sent it on to
Respondent; that it is highly unlikely after doing all of this, that
CSR would not complete the process by sending the package
along to Respondent.
The General Counsel’s argument facially is persuasive.
However, his argument and the facts do not gibe. First, it is
clear that the witness the General Counsel chose to present the
Creswell evidence was not the most appropriate person to es-
tablish the chain of proof necessary to establish receipt. Char-
maine Wooleridge, not Wolf, was that person. There was no
reason given for her absence, so I will assume she was avail-
able and could have been called. Second, there is the missing
fax activity report, a document that would certainly have
clinched the General Counsel’s argument. Yet, the activity
report was not produced. I decline to infer that it is available
and, moreover, that it would have indicated receipt by Respon-
dent.
Respondent has denied receipt of the Creswell application
and the record herein permits of no reason to question the de-
nial. As noted, there have been no allegations of irregularities
or other questionable conduct on Respondent’s part in the
course of the litigation of this matter.
I would conclude that Creswell was a qualified journeyman
sheet metal worker at the time of his application and that he
was a bona fide applicant for employment. Creswell’s applica-
tion was prepared by agents of CSR who elected to fax his
application to Respondent on about April 26, 1996. For rea-
sons unknown, Creswell’s application was not received by
Respondent. Therefore, having never actually received Cres-
well’s application, Respondent could not have considered him
for employment. I would find and conclude that Creswell was
not considered for hire by Respondent because his application
was not received and not for any unlawfully discriminatory
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 618
reason cognizable under the Act. I would dismiss the com-
plaint as it relates to Creswell.
D. The Contentions of the Parties
1. The General Counsel’s and the Charging Parties’ positions
regarding the nonhiring of the IBEW and Sheet Metal Union
applicants during the relevant period
The General Counsel (and the Charging Parties) readily ac-
knowledge that these consolidated matters represent “salting”
and involves “two clear, open and provocative attempts to or-
ganize Respondent’s various groups of employees [and that]
both the IBEW and the Sheet Metal group of applicants were
quite open (even brash) in their submission of applications to
Respondent.” 56 However, the General Counsel contends, along
with this objective, the applicants also wanted in good faith to
be hired for jobs with the Company. The General Counsel
concedes that several and probably most of the alleged dis-
criminatees were either full-time union agents and/or individu-
als then in the employ of the Unions who were paid to assist in
the Unions’ organizational efforts during the period in question.
However, even given the dual objective by the union appli-
cants, the General Counsel contends this would not be a legally
sufficient reason not to hire or consider them for hire, citing
NLRB v. Town & Country Electric, 516 U.S. 85 (1995), which
held that a worker may be an “employee” within the meaning
of that term of the Act, even while paid by the union to help the
union organize the Company. Consequently, he argues, the
alleged discriminatees herein should be accorded all of the
protections of the Act against unlawful discrimination accorded
other applicants.57 The General Counsel further argues that the
Respondent should not be permitted to discriminate against
paid organizer applicants, nor should these alleged discrimina-
tees be considered non-bona fide applicants to employment on
this ground. Furthermore, irrespective of some of the alleged
discriminatees’ employment with the Unions in question (some
were also in fact employed by private contractors), that fact
should not make them non-bona fide applicants without a
showing that they intended to harm the Company or not per-
form the employer’s work or be disloyal in other ways. The
General Counsel submits that the evidence of record demon-
strates a compelling case for violations of the Act by Respon-
dent by virtue of the unusually provocative nature of the Un-
ion’s organizational efforts and the Respondent’s failure to
contact, much less interview or hire most of the alleged dis-
criminatees. In spite of Respondent’s claim of no antiunion
animus or policies and its hiring of persons with known (and
unknown) union affiliation during the period in question, the
General Counsel strongly contends that the possible hiring of
these aggressive union adherents posed an especial and un-
precedented threat to Respondent and the way it conducted its
business. Thus, because of what the General Counsel describes
as a “serious organizational effort” by the Unions, Respon-
dent’s decision to not hire or even consider for hire the alleged

56 G.C. Br. 11.
57 I concur with the General Counsel as to the application of Town &
Country to cases such as the instant case. Clearly, the Supreme Court
has decided paid union member/employees are entitled to the protection
of the Act and may not be discriminated against in terms of hire for this
reason alone. Moreover, their paid status with the Union alone cannot
make them nonbona fide applicants for employment. Of course, it has
been long recognized that applicants are “employees” within the mean-
ing of the Act. Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941).
discriminatees herein was unlawfully predicated on their union
affiliation and involvement generally, and specifically because
of their clear and aggressive intent to organize Respondent’s
workers, something the Company has been able to avoid for
100 years. The General Counsel submits and argues that all the
reasons advanced by Respondent for not hiring these individu-
als are irrelevant. He argues that Respondent never intended to
hire them at all because of their union affiliation and their obvi-
ous and aggressive concerted (organizing) activities, suggesting
thus that the reasons advanced by Respondent for not hiring the
alleged discriminatees were pretextual.
2. The Respondent’s position regarding the nonhiring of the
IBEW and Sheet Metal Union applicants
Respondent’s denies that it violated the Act in anyway with
respect to the instant charge of discriminatory nonhiring of the
alleged discriminatees, principally on grounds that it merely
followed its usual policies, practices, and procedures in proc-
essing the applications actually received by the Company. In
essence, Respondent contends that its hiring agent treated the
union applications the same as all applications received during
the period in question.
Respondent argues that it legitimately employs a criteria for
eligibility for employment, often described as a process of
elimination, to reach a suitable employee match for the Com-
pany, and that these policies, practices and procedures were in
place prior to the time the alleged discriminatees made their
applications.
The criteria in effect and utilized by Hunt included the fol-
lowing business-related economic factors:

1. Availability of the position.
2. The qualification of the applicant for the position.
3. Comparison of budgeted wages with the current or
desired wages of the applicant.58
4. The interest of the employee in long-term employ-
ment (with the Company) as opposed to temporary work
for a short period.
5. Whether the applicant checked on his application.
6. Whether the person was licensed in his trade or
field.
7. Distance between the applicant’s residence and the
jobsite and his willingness or ability to travel to the job-
site.

Respondent argues that Hunt, by a self-described process of
elimination, considered and selected persons for interviews and
possible employment with the Company because they matched
her criteria. Regarding the employment criteria, I note that
Respondent/Hunt did not indicate whether any specific criterion
was weighted or scored higher or lower than another, or how or
whether a negative conclusion on one would affect the appli-
cants’ eligibility for employment. Thus, I assume that Hunt
was at liberty to apply the criteria to emphasize or de-
emphasize one element or the other as she saw fit.
Respondent asserts that it harbors no antiunion animus and
that the General Counsel failed to establish this crucial element.
As proof, Respondent cites its attempted and actual hiring of
six known union members, including IBEW and Sheet Metal
58 The Respondent produced the J. O. Mory job grade and structure
for the period covering calendar years 1994 and 1995–1996 in R. Exhs.
A and B.
J. O. MORY, INC. 619
union members, just prior to and during the period when the
IBEW made its applications in July 1994.59
Respondent contends that its lack of antiunion animus is also
demonstrated by its having treated union applicants better (per-
centage/numerically) than nonunion applicants. For instance,
during the Summer of 1994, it received applications from 13
known union members (of 150–200 total applications) and
hired or attempted to hire six of these, resulting in a 46-percent
hire rate. For the period covering October 1995 through No-
vember 1996, Respondent contends it received six union appli-
cations (the Sheet Metal Union alleged discriminatees) and
hired one, interviewed two, and attempted to interview two
others for possible hire. Thus, five of the six or 83 percent of
the union applicants were considered for hire. Nonunion appli-
cants did not fare as well in either period respectively.
Respondent further contends that it did not unlawfully refuse
to hire or otherwise discriminate against the alleged discrimina-
tees, because it applied its criteria equally to union and nonun-
ion applicants alike. As to the latter, it cites the examples of
five persons with no known union affiliation60 not hired by the
Respondent because their past or present wages were greater
than Respondent’s. Respondent asserts that Hunt was merely
following this established policy when she rejected the alleged
discriminatees here.
Respondent also noted that only on rare occasions did it util-
ize the services of referral services to employ persons in certain
skilled positions (electricians, plumbing, and carpenters), be-
cause of costs (hefty referral fees), and when it needed workers
only on a temporary basis.
Finally, Respondent contends that irrespective of the validity
of the hiring policies, practices and procedures, and the propri-
ety of Hunt’s application and implementation thereof, the al-
leged discriminatees were not in its view bona fide applicants
for employment. Respondent argues that the individuals were
not honestly and in good faith seeking to become employees of
J. O. Mory. Rather, by design, they were solely trying to organ-
ize Respondent’s workers, and the batched applications by
union members clearly wearing union insignia were part of a
plan to “entrap” Respondent into committing unfair labor prac-
tices.
In sum, Respondent contends that its decision not to hire cer-
tain alleged discriminatee applicants was based on legitimate
business reasons and, second, the applicants were not bona fide
applicants to employment.

59 These individuals were:
1. Pat Garrett, member of Plumbers and Pipefitters Union
Local 166, hired by Respondent on May 18, 1994.
2. Pedro Mardini, member of Sheet Metal Union (Local 20),
hired on May 18, 1994.
3. Mark Leipold, member of Sheet Metal Union (local un-
stated), hired on July 26, 1994;
4. Paul Sauers, member of Plumbers and Pipefitters Union
(local not stated), hired on July 20, 1994.
5. Ronald Swangin, member of Sheet Metal Union (Local
20), hired in late August 1994.
6. Phillip Dirig, known member of the IBEW whom Hunt at-
tempted to interview on July 15, 1994; Dirig refused employment
because he was already employed.
60 These persons were Mel Nix, Bradley Hunter, John Fosnaugh,
Douglas Dirig, and Michael Pearson, whose applications were received
at various times during the period July 1994 through March 1, 1995.
E. Legal Analysis and Discussion
1. The Wright Line analysis
Preliminary to determining whether an employer has dis-
criminated against employees in violation of Section 8(a)(3) or
Section 8(a)(1) of the Act, the National Labor Relations Board
has held that the General Counsel must first make a prima facie
showing sufficient to support the inference that the protected
(organizing) activity of the employees was a “motivating fac-
tor” in the employer’s decision either to not hire them or not
even to consider them at all for employment. Once it is estab-
lished, the burden shifts to the employer to demonstrate that the
nonhiring would have taken place even in the absence of the
protected conduct. Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982); B E & K Construction Co., 321 NLRB 561 (1996).
An alleged discrimination in refusing to consider applicants
for hire, as with refusing to hire them, is discrimination in re-
gard to hire within the ambit of Section 8(a)(3). In a discrimi-
nation case, a prima facie case is made out when the evidence
shows that:

1. The employer is covered by the Act.
2. The employer at the time of the purportedly illegal
conduct was hiring or had concrete plans to hire employ-
ees.
3. That antiunion animus contributed to the decision
not to consider, interview, or hire an applicant.
4. That the applicant was a bona fide applicant.

NLRB v. Ultrasystems Western Constructors, 18 F.3d 251, 256
(4th Cir. 1994), enfg. in part, denying enforcement in part, and
remanding Ultrasystems Western Constructors, 310 NLRB 545
(1993), quoted in the Ultrasystems Western Constructors [II],
316 NLRB 1243 (1995); 3E Co., 322 NLRB 1058 (1997).
In the instant case, Respondent has admitted coverage under
the Act. It is also abundantly clear on this record that during
the relevant period, Respondent was hiring or, at the very least,
had concrete (though not without some variance) plans to hire
employees for electrician, sheet metal, and HVAC positions at
its several facilities during the period in question. The record
also clearly evinces Respondent’s knowledge that the IBEW
Unions and Sheet Metal Unions were making and submitting
applications for employment in response to these concrete hir-
ing efforts and that because of the nature of the submissions
thereof (batched by the IBEW) and (as a group with prominent
displays of union insignia by the Sheet Metal Union), the Re-
spondent was put on notice of the organizational (in part) na-
ture of these applications. This point of Respondent’s knowl-
edge of the protected activity of the Unions herein need not be
belabored. I also would conclude that in spite of their organiza-
tional motives, or their being employed by the Unions or oth-
ers, the alleged discriminatees’ qualifications for the position to
which they applied and their intention to accept employment
with the Respondent, for the most part are not seriously in dis-
pute.
Hunt was directly asked by Respondent’s counsel about her
(and ergo, the Respondent’s) policies and/or views of unions
and unionism. Hunt responded that during her tenure as per-
sonnel director at J. O. Mory, as a policy, she never set aside
union applications and always gave them the same considera-
tion as other applications. Hunt was not aware of any other
persons knowingly setting aside union applications. She also
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 620
was not aware of any policy or policies that had ever existed at
J. O. Mory whereby union individuals would be given different
consideration than all other applicants.
The General Counsel also incidentally elicited Hunt’s views
on unions at J. O. Mory in the context of the hiring of alleged
discriminatee Tafelski. Hunt said that Tafelski (sarcastically,
and perhaps provocatively) asked her at his interview if the fact
that he was a union organizer bothered her. Hunt’s response to
Tafelski was: “I finished by completing that, no, his union
affiliation did not make a difference to me but that my job was
to find the best match for the position that I was looking for and
part of that is for full-time work with J. O. Mory’s.” (Tr. 365.)
As discussed earlier herein, Respondent further asserts its
lack of any bias against or hostility toward unions or the par-
ticular union applicants here by proof of its having hired other
known union members both before and during the relevant
period, and its demonstration of union applicants having re-
ceived per capita better treatment than nonunion applicants.
However, Respondent’s arguments notwithstanding, I find that
it did not have a neutral attitude about unions. In fact, the clear
preference of J. O. Mory was not to have unions and union
contracts in place at its facilities for business and economic
reasons. The view was held by several of Respondent’s man-
agement employees. For instance, Gary Worman, employed at
J. O. Mory for 13-1/2 years, and currently its operations man-
ager at the Avilla sheet metal division and a former United
Auto Workers union member, testified at the hearing. Worman
was involved in the hiring process at J. O. Mory (he sat in on
interviews), but claimed that he had no say in whether the per-
sons were hired or not. On cross-examination by the General
Counsel, Worman was asked, among other things, his views on
unions operating under contract at J. O. Mory. Worman re-
sponded, “My personal opinion, I would rather not see a union
. . . . Because of our diversification.” In response to another
question by the General Counsel going to the point of whether
the existence of a union contract (at J. O. Mory) placed limita-
tions on the Company’s employees, Worman responded: “I
think it [a union contract] would be more limited on how we [J.
O. Mory] could deal with our customers [emphasis added].”
By way of followup, I asked Worman about his views on not
wanting to have unions at J. O. Mory because of the Com-
pany’s diversification, the effect of unions on the customers
and what he specifically meant by this. Worman in the follow-
ing exchange with me testified as follows regarding the issue of
diversification:

THE WITNESS: We have a lot of our employees that are
skilled in multiple trades that when a customer calls, in
many cases, we can send a person that can do several dif-
ferent trades and are [sic] licensed in several different
trades. We can better service that customer by sending
one person instead of three or four.
JUDGE SHAMWELL: I see. So, in other words, just to
understand, that if you were to get a job proposal that
called for, I guess, different types of trade, trade work,
your people are trained to do a number of those things and
one person or lesser number could do it. But if you had a
union, then you would have to send out a trades person for
each category called for on the job.
THE WITNESS: I believe that’s the way the union works,
yes.
JUDGE SHAMWELL: That’s your opinion.
THE WITNESS: Yes. [Tr. 278.]
Thus, as I understood Worman’s testimony, the existence of
unions and union contracts in particular would bring certain
economic disadvantages to the Company in the form of less
speedy and less efficient service to its customers.61
Harold Wasson, one of the alleged IBEW union discrimina-
tees, testified that during August 1994 while checking on the
status of his application, he spoke with Respondent’s vice
president, Michael Rowe. They discussed his application and
also talked in generalities about the Company and its opera-
tions. Wasson, first having introduced himself as the business
agent for the IBEW Union, asked Rowe if J. O. Mory had ever
considered “going union.” Rowe, according to Wasson, said
that he (Rowe) thought that with the way J. O. Mory was struc-
tured, that it (a union shop) would not work out, just the way
they (Respondent) handled their manpower. Michael Rowe
was present at the hearing. However, Respondent did not call
Rowe to rebut Wasson’s testimony in spite of Rowe’s being
readily available. 62 Consequently, Wasson’s version of the
conversation with Rowe is unrebutted. Thus, I would credit
this part of Wasson’s testimony on the issue of Respondent’s
views on unions.
Since Hunt routinely consulted with various Company su-
pervisors and foremen to ascertain whether a position was
available and sought their views on the “fit” of the applicant for
the position, 63 I would conclude that at the very least, she was
aware of the attitude of Respondent’s higher-ups and operations
managers regarding unions at J. O. Mory as she considered
various individuals for employment at the Company.
Thus, although Hunt denied in effect any particular hostility
to unions and may herself be free of such antipathy, it is none-
theless clear to me that the corporate view of unions at the
Company was negative, if not overtly hostile; and that this
negative view in all likelihood permeated all levels of the
Company’s hierarchy, including and especially the personnel
level. While Hunt was not a policymaker regarding hiring, she
certainly was the interpreter and implementor of such policies.
Hunt, in my view, must have been aware of the attitude and
feelings of the Respondent’s supervisors and managers because

61 Worman provided the following example of the problem unions
presented to the Company:
THE WITNESS: I am trying to think of a good example here. If
we have, say, a customer call and he has got a machine broke
down, he doesn’t know why that machine is broken down. Do we
send an electrician, a millwright, a mechanic? What do we send
because the way I understand the union works, you would have to
send an electrician, a mechanic or whatever until you found out
what the problem with the machine if the customer didn’t know.
We have employees that can go out and trouble shoot the me-
chanical, the electrical, the hydraulics, whatever.
JUDGE SHAMWELL: And if you had to give
. . . .
THE WITNESS: Speedier service. [Tr. 279.]
62 Rowe’s presence at the hearing during the taking of Wasson’s tes-
timony caused something of a stir, because I had invoked the witness
sequestration rule before any testimony was taken. Fortunately, at the
time of my discovery of his presence and because little else other than
Wasson’s testimony related to him, I was not required to impose any
sanctions. However, because of the issue, I noted that Rowe was avail-
able on each day of the hearing.
63 Respondent called Edward Harpel, a company shop supervisor at
its Avilla facility for the past year and before that a shop foreman.
Confirming Hunt’s testimony, Harpel testified that while Tammy
(Hunt) does the hiring, he has some say in hiring at J. O. Mory with
regard to people hired for the Avilla facility. (Tr. 258–259.)
J. O. MORY, INC. 621
she regularly consulted with them as part of her job; and it
seems from my personal observation of Worman, who un-
abashedly stated his views, this attitude was far from a com-
pany secret.
Given that J. O. Mory did not prefer to have unions and un-
ion contracts, this, in and of itself, does not establish necessar-
ily an antiunion animus. In fact, Respondent has the right to
work nonunion as long as it does not discriminate in its hiring
practices. Wireways, Inc., 309 NLRB 245 (1992). Clearly, it
must be proven that the Company acted on antiunion feeling or
attitude in failing to hire or consider for hire the union adher-
ents. Wright Line, supra. The Respondent’s (discriminatory)
motive, therefore, is determinative and is a precondition to
finding a violation of Section 8(a)(3). The 3E Co., 322 NLRB
1058 (1997).
As is often the case in many Wright Line cases, animus is
difficult to establish. Circumstantial evidence, according to
Board law, may be relied on to infer discriminatory motivation
on the part of the employer. Thus, the trier of fact may look at
all of the surrounding circumstances, including the timing of
the employer’s conduct,64 whether the employer has selectively
enforced its existing or newly created policies;65 the employer’s
disparate treatment of employees;66 the employer’s failure to
investigate incidents on which the employer relied;67 and shift-
ing employer explanations of policies68 to prove animus.
Aside from the animus issue, Respondent contends that the
General Counsel cannot establish a prima facie unfair labor
charge in a refusal to hire case by proving that there were
merely some job vacancies applied for by union organizers and
that an employer harbored animus against union applicants,
citing NLRB v. Fluor Daniel, Inc., 102 F.3d 818 (6th Cir.
1996).
In Fluor Daniel, the Sixth Circuit stated that:

It cannot be an unfair labor practice merely for an employer to
harbor animus against union members applying for jobs that
do not exist or have already been filled, or for which they are
not qualified. If such conduct were an unfair labor practice,
then the mere entertainment and expression of anti-union
animus would constitute an unfair labor practice. Indeed, this
is the NLRB’s position . . . . Such a holding does not comport
with the requirements of Section 8(a)(1) and (3) of the Act.
There is no interference with, restraint, or coercion of appli-
cants in the exercise of their protected rights when an em-
ployer, even with anti-union animus, rejects applicants who
are in fact unqualified or for whose particular services the
employer simply has no need. Therefore, no violation of Sec-
tion 8(a)(1) exists in these circumstances. Similarly, there is
no “discrimination in regard to hire” in this situation in viola-
tion of Section 8(a)(3). Refusal to consider an applicant out
of improper motive, without more, is not a violation of Sec-
tion 8(a)(1) or (3) of the Act. [Id. 832–833.]

64 Farm Fresh, 301 NLRB 907 (1991); Kellwood Co., 299 NLRB
1026 (1990).
65 ABF Freight System, 304 NLRB 585 (1991), enfd. sub nom.
Miera v. NLRB, 982 F.2d 441 (10th Cir. 1992), affd. 145 LRRM 2257
(1996).
66 In-Terminal Services Corp., 309 NLRB 23 (1992); Harsco Corp.,
304 NLRB 729 (1991).
67 Estes Nursing Facility-Oak Knoll, 301 NLRB 659 (1991).
68 Associated Services for the Blind, 299 NLRB 1150 (1990).
Thus, Respondent argues that even if animus against the union
applicants here was proven, the General Counsel, nonetheless,
must show that there were certain jobs available for them, not
merely the existence of some jobs; the General Counsel must,
in essence, match a qualified applicant with an available posi-
tion in order to make out a prima facie case in a hiring case.
Fluor Daniel at 833.
I would distinguish Fluor Daniel and find that the holding
there is not applicable here. First, as the Sixth Circuit acknowl-
edged, its reasoning possibly conflicts with the established and
Board-sanctioned Wright Line approach to 8(a)(1) and (3) is-
sues. Second, the facts of Fluor Daniel are inapposite to those
of the present case. Notably, in the instant case, while the
numbers of actual positions available is not precisely known, it
is clear on the record that in certain relevant categories, posi-
tions were definitely and readily available and that Respondent,
by its own statements and actions, clearly needed to fill them.
The credible evidence indicates that at various times, the Re-
spondent was swamped with work. Also, there is a little or no
dispute as to the qualifications of the IBEW and Sheet Metal
applicants for these jobs. Third (and probably most impor-
tantly), Respondent here has been allowed to present proof to
support its affirmative defenses in the unfair labor practice
stage of the proceedings. This is in direct contrast to the factual
circumstances of Fluor Daniel, where it was not clearly estab-
lished that there were positions actually available for 43 volun-
tary union organizer applicants and, moreover, the Company
was not allowed to present its defense until the compliance
stage of the proceedings. These elements are simply not pre-
sent in the instant case. Moreover, by creating an additional
element requiring a showing that certain jobs were available in
a refusal to hire case by the General Counsel, Fluor Daniel
seems to make an unwarranted departure from established
Board law and procedure in the refusal to hire area. Accord-
ingly, I decline to follow and apply it to the instant matter.69
2. The defenses of the Respondent
If the General Counsel makes its prima facie case, the Re-
spondent must affirmatively prove that the nonhiring of the
69 In a recent case, Architectural Glass & Metal Co. v. NLRB, 107
F.3d 26 (1997), the Sixth Circuit reiterated its holding in Fluor Daniel
and stated that in a refusal to hire case, the General Counsel’s prima
facie case consists of proving:
(1) that the employer is covered by the Act; (2) that the applicant is
covered by the Act; (3) that the applicant actually applied for a job and
was qualified for a job for which the employer is seeking applicants; (4)
despite his qualifications the applicant was not hired; (5) anti-union
animus contributed to the decision not to hire an applicant; and (6) after
his rejection, the position remained open and the employer continued to
seek applications from persons with the applicant’s qualifications. [Id.
at 4.] [Emphasis added.]
The court in Architectural Glass at. 4 (as it did in Fluor Daniel) de-
fended its newly articulated prima facie test against claims of conflict
with Wright Line, by noting that it (the new prima facie test) only ap-
plied in cases involving hiring, not discharge or other discrimination in
other terms or conditions of employment against those already holding
a position. The Court went on to note that after the General Counsel
has established a prima facie case of union-based discrimination, the
burden shifts to the employer to articulate some legitimate nondis-
criminatory reason for the employer’s rejection of the applicant. Again,
I would distinguish Architectural Glass factually from those of the
instant case. Additionally, this newly minted text departs virtually from
established Board law, and I decline to follow it.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 622
alleged discriminatees would have taken place even in the ab-
sence of protected activity.
Assuming arguendo, that the General Counsel has made out
a prima facie case, Respondent asserts that it had no discrimina-
tory motive in not hiring the union members here.
Respondent maintains that it merely followed its normal and
ordinary business procedures, employed and implemented its
hiring criteria as to all applications received by it (union and
nonunion) and made appropriate hiring decisions. Respondent
contends that pursuant to its hiring policies, operating as a
process of elimination, persons were considered or not consid-
ered for interviews; some were attempted to be called for inter-
views and some applicants were reached, others were not; some
applicants agreed to be employed, others declined. This was
the hiring process at work. As a consequence, some union
applicants, including some of the alleged discriminatees, were
considered for hire or attempted to be hired or were actually
hired, and some of the alleged discriminatees were not consid-
ered for hire.
Respondent contends that neither the union status of the al-
leged discriminatees nor their obvious organizational activities,
to wit, “salting,”70 were the motivating or even contributing
factors in its decision not to hire them.
Clearly, the linchpin of Respondent’s defense is the validity
of its employment criteria and Respondent’s good faith and
nondiscriminatory application thereof. I would concede that
Respondent’s employment criteria seems facially valid, and is
reasonably and plausibly connected to its legitimate business or
economic reasons and concerns.
This said, if Respondent demonstrates that these policies and
practices (along with the other elements of the criteria) were
validly and honestly employed by Hunt as she considered the
applicants; that these policies and practices, etc., were not mere
pretexts employed to discriminate, then the Respondent has met
its burden under Wright Line.
F. Discussion and Conclusions Regarding the Remaining
Alleged Discriminatees
1. The IBEW alleged discriminatees
As previously discussed in the IBEW individual cases sec-
tion of this decision, Respondent variously offered several and
differing reasons for not hiring the individual union members
Closson, Adams, T. Geary, M. Geary, Clayton, McCann, and
Wasson. However, the critical and perhaps guiding criterion
utilized by Hunt in not hiring them was the wage criterion.
Hunt, in rejecting these persons for hire, determined that each
one was either currently earning or in past jobs had earned sub-
stantially more than Respondent budgeted for the advertised

70 Respondent argues that the Unions here employed a “modus oper-
andi” designed to invite rejection of union applicants by Respondent
and to entrap it into committing an unfair labor practice. I take this
“modus operandi” to refer to the salting technique, clearly employed
here. The Board has not ruled that this technique is unlawful; Respon-
dent points to no authorities invalidating salting. I have reviewed the
decision (unpublished) of Goodless Electric Co., JD–22–95, March 2,
1995, cited by Respondent presumably in support of its position on the
salting issue. In Goodless, (retired) Administrative Law Judge William
F. Jacobs determined that the union applicants under the facts and
circumstances of that case were not bona fide applicants. However, his
ruling was not predicated on the organizational activities of the appli-
cants, but because they were basically incompetent for work or unquali-
fied for the jobs they sought. Salting was not the issue.
positions. She concluded primarily and essentially on this
ground that these seven would not make a good match for em-
ployment at J. O. Mory.
It is noteworthy that Hunt never attempted to contact the
IBEW seven to discuss/investigate the issue of wages or other
aspects of their application, including the Company’s change of
hiring policy, their qualifications (their licensure or journey-
man’s status), their experience or other relevant background
matters. Hunt also did not, in my view, give much, if any, con-
sideration to the applicants’ rechecking on the status of their
applications, a criterion on which she seemed to place great
emphasis in her testimony. However, it is not the place of the
trier of fact to second guess Respondent or its agents in the
creation, interpretation and implementation of its legitimate
business activities, including its hiring policies and practices.
Also, it is not my place to criticize or evaluate Respondent or
its agents in the performance of their jobs. However, it is
clearly with the purview of the trier of fact to determine in a
refusal to hire case whether Respondent and its agents have
unlawfully and discriminatorily applied even colorably legiti-
mate policies or have performed their jobs in such a way as to
deny rights guaranteed under the Act. Thus, generally, all poli-
cies, rules and practices must be applied in a nondiscriminatory
fashion and must be promulgated for nondiscriminatory rea-
sons.
I have carefully examined the entire record herein, but with
particular attention to all of the applications of record of the
various union and nonunion seekers of employment with J. O.
Mory during the relevant period to determine if Respondent’s
rejection for hire of the remaining seven IBEW applicants was
unlawfully discriminatory or based on a fair and equitable ap-
plication of Respondent’s criteria. As I have noted earlier
herein, the critical issue here in my view is whether Respondent
failed to hire these union adherents out of an antiunion animus
per Wright Line, supra.
I have concluded that Respondent did violate the Act in not
hiring applicants comprising the IBEW group because of Re-
spondent’s discriminatory and disparate treatment of the IBEW
seven. I would find and conclude that the reasons given by
Respondent for not hiring them were essentially pretextual in
nature.
Preliminarily, I agree with the General Counsel’s characteri-
zation of this case as being one in which both Unions had in
part set out very aggressively to organize Respondent’s opera-
tions. Thus, especially during the summer and fall of 1994 in
particular, Respondent was especially on the alert for union
organizational attempts, and being of a mind that the presence
of a union would be disruptive of the way it preferred to con-
duct its business, girded its loins to frustrate and defeat the
IBEW’s efforts. It is clear on this record that Respondent’s
wage criterion—the policy against hiring persons who were
then employed and/or making wages substantially higher than
Respondent paid—was principally employed pretextually to
reject the IBEW alleged discriminatees.
I have come to this conclusion by examining the contempo-
raneously submitted application of a union affiliated electrician,
Phillip Dirig, and comparing the way he was treated by Re-
spondent with the treatment of the Closson IBEW group. Ac-
cording to his application, Phillip Dirig applied to Respondent
for an electrician’s position on July 18, 1994. Dirig indicated
on his application that he could start work immediately, that he
was “open” (to negotiation) regarding salary desired, but he
J. O. MORY, INC. 623
was currently employed, so Respondent could not make inquiry
of his present employer. Dirig indicated that he had completed
the (union) Joint Apprenticeship Training Committee (JATC),
but had not partaken of any special studies and held no license.
Dirig, at the time of his application, was working for a union
contractor (Shambaugh) and making union scale as a journey-
man inside wireman. Dirig’s stated reason for wanting to leave
his present job was to make more money (highly unlikely under
Respondent’s wage structure). Dirig’s employment history
clearly indicated that he was used to making union scale on all
prior jobs listed. It is undisputed that union scale wages were
substantially higher than Respondent’s wages.
Hunt testified that she received Dirig’s application and knew
that he was affiliated with a union by his reference to the JATC,
and because he was employed at a known union contractor,
Shambaugh Electric. Hunt contacted Dirig on July 25, 1994,
about employment with the Company but did not hire him,
because Dirig advised her that he was already working.
Clearly, Hunt would have hired Dirig if he were not already
employed, and Respondent admits as much. The question beg-
ging for an answer is what makes Dirig, employed at the time
of his application, used to making more money then Respon-
dent claims it budgeted for the position, holding a journey-
man’s card (but unlicensed) and clearly a known union mem-
ber, a worthy candidate for employment at J. O. Mory while at
the same time the Closson IBEW group (with similar and even
superior qualifications individually) unsuitable for employ-
ment. The obvious answer to me is that the Closson IBEW
group clearly showed its organizers’ hand; they were out in part
to organize the Company. Dirig presented no such obvious
threat. Thus, Dirig gets a favorable nod; the Closson group is
rejected. In this light, I would conclude that Hunt decided not
to hire the Closson IBEW group not for the reasons she stated,
but because of their union affiliation and their clear attempt to
engage in protected activity—organizing the J. O. Mory em-
ployees. Accordingly, while legitimate on their face, I would
conclude that with respect to the IBEW group, Hunt’s stated
reasons were really pretexts, mere disguises for her real and
unlawful motive to frustrate the organization of J. O. Mory’s
employees by the Closson adherents.
In so finding a violation, I am not unmindful that Respondent
utilized its wage criterion to reject certain other applicants,
namely, Michael Pearson, Mel Nix, Bradley Hunt, John Fos-
naugh, and Douglas Dirig during the months the Closson group
made its applications. Significantly, however, Hunt testified
that she did not know from their applications or otherwise,
whether these individuals were affiliated with any unions.
I am also aware that Respondent hired other persons known
to be union members during the spring and summer (July
1994), namely, Pat Garrett, Pedro Mardini, Mark Leipold, Paul
Sauers, and Ronald Swangin, which would serve to counter a
claim of union animus. However, I note that Garrett, Mardini,
and Leipold, at the time of their applications and ultimate hir-
ing, did not reveal to Respondent their organizational intentions
or objectives.
Sauers and Swangin were hired and evidently engaged in no
organizational or other concerted activities. In fact, Swangin’s
application indicated that he had left one of his former jobs,
because he was “tired of working for [the] Union,” an attitude
clearly compatible with Respondent’s. Thus, on the record,
these afore-mentioned union members did not present to Re-
spondent the same “in-your-face” organizing threat as did the
IBEW group.
2. The remaining Sheet Metal Union alleged discriminatee:
Kelly Ullery
Ullery testified that he had been a member of the Sheet
Metal Union for approximately 5 years and is a fourth year
apprentice; in October 1995, he was in his third year of appren-
ticeship.
Ullery became aware of Respondent’s hiring through local
newspapers and submitted an application71 in person at Re-
spondent’s South Milford facility. At the time of his applica-
tion, he was in the company of fellow union members Tafelski,
Anspaugh, two Fort Wayne apprentices whose names he could
not remember72 and Kereszturi, all of whom were prominently
wearing various union paraphernalia. Ullery was wearing a
baseball cap with the Union’s insignia on it. Ullery at the time
was employed by the Sheet Metal Union (and continues in its
employ, position unknown).
Ullery submitted his application to the receptionist and was
told by her that Hunt was responsible for hiring. After submit-
ting his application, Ullery called Respondent’s South Milford
office to check on his application on a once-per-day basis for
approximately 1 week, but was never able to contact Hunt.
Ullery was told on those occasions that Hunt was out of the
office, and he left messages for her to return his call. To his
knowledge, Ullery was never contacted by the Respondent
regarding his application.
Hunt explained why Ullery was not offered an employment
opportunity at the Company. First, the positions as advertised
were not actually filled by the Respondent73 although she had
indeed interviewed other persons for the position. Second,
Hunt stated that Ullery was currently then employed (by the
Union). Third, Ullery was from the South Bend area which in
her view (geographically) would not make him a good match,
considering where the Company did most of its work. And,
fourth, the advertised position was for a residential installer
and, based on Ullery’s application, his experience appeared to
be in commercial installation. On this point, Hunt went on to
explain that one’s experience in one area or the other of a trade
was important to the Company in terms of costs primarily in the
area of training, which in turn impacts on the specific job in
question.74 Regarding the jobs for which employees were be-
ing sought, Hunt explained that the Company was looking for
“lead people” who would be able to run the job with (presuma-
bly) no or the least amount of additional training. Although
Hunt did not personally interview Ullery, she was asked the

71 Ullery’s application is G.C. Exh. 20.
72 Presumably, Starnes and Till.
73 Hunt’s reasons for the nonfilling of these positions at this time—
October 1995—have been discussed earlier, infra.
74 Ambrose Dean Polly, Respondent’s division manager at its Fort
Wayne facility, testified at length on the substantial differences be-
tween commercial and residential sheet metal installation and related
work. Respondent’s Fort Wayne facility does primarily residential
work. Gary Worman, Respondent’s operations manager at the Avilla
sheet metal division, also testified to material differences in commercial
and residential sheet metal installation. The testimony of these two
persons in this area was unrebutted. Accordingly, I would conclude
that commercial sheet metal experience is not clearly fungible with
residential sheet metal experience (and vice versa) and that Hunt could
reasonably consider the lack of residential sheet metal experience as a
disqualifying criterion for purposes of hiring.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 624
following question by Respondent’s counsel (Tr. 343) regard-
ing Ullery and alleged discriminatee Tafelski:75

Q. Did Mr. Tafelski and Mr. Ullery, did they have any
experience in residential based on the applications of both
of them and the interview that you had with Mr. Tafelski?

Hunt responded:

Based on the interview that I had, he had electrical
wiring which would be residential but most of his sheet
metal work would have been in commercial work.

Respondent’s counsel asked Hunt a followup question:

And did that play any decision or would it have played
any decision in whether you would have hired him or not
or considered hiring him?

Hunt responded, “Yes sir, it would have.”
Again, although not entirely clear to me, Hunt seemed to be
speaking only of Tafelski and not Ullery. Thus, as to Ullery’s
residential experience or lack of it and its bearing on her deci-
sion not to hire him, Hunt did not clearly and responsively ad-
dress the issue in her testimony.
I have examined carefully Ullery’s application (G.C. Exh.
20) on which he lists three former employers and corresponding
positions of “fabricator—one position, and “installer”—two
positions. The application is devoid of any reference to the
nature of the work called for by these positions. Furthermore,
there is nothing in the application, or the record as a whole,
which would identify Ullery’s prior work as residential or
commercial; or that the employers listed by Ullery were “resi-
dential” or “commercial” concerns. Therefore, I would con-
clude that Hunt was mistaken in determining that Ullery did not
have residential sheet metal experience. Hunt also rejected
Ullery at least in part because she felt that his residence in
South Bend made him a poor match geographically for em-
ployment with the Company. Ullery was not interviewed and,
of course, was not asked about his willingness (or ability) to
travel to a remote site, as were the other interviewed applicants.
Considering that commuting (even substantial distances) is a
fact of the modern workaday world (and this may be the rule in
the construction industry), Hunt may not be on solid ground in
assuming that an individual seeking employment will not ac-
commodate himself to a required commute. However, I will
not second guess Hunt on this point.
Hunt also cited as a reason for not hiring Ullery, the Com-
pany’s decision not to fill the advertised positions in October
1995. However, I note that Hunt re-called other Sheet Metal
union members in February and March 1996 when the Com-
pany’s business improved, and it is particularly noteworthy that
Kereszturi was later re-called and hired in November 1996, in
spite of his experience being primarily in commercial sheet
metal. Finally, Hunt considered Ullery’s then-current employ-
ment as a reason to disqualify him for employment. Hunt
knew, of course, that Ullery was a Sheet Metal Union em-
ployee.
Hunt’s handling of Ullery’s application, which appears to
conform generally with the Respondent’s employment criteria,
except for the wage criterion, is flawed. However, Hunt

75 The matter of residential versus commercial experience as an em-
ployment criterion was also at issue in the case of alleged discriminatee
Tafelski.
clearly, in my view, made her decision to reject Ullery on mis-
taken belief or erroneous information. Moreover, she took no
steps to investigate or verify the matters on which she evidently
placed great reliance in rejecting Ullery.
In spite of what I see as a basically flawed handling of Ul-
lery’s application by Hunt, I cannot glean from her treatment of
him a discriminatory motive. Clearly, she was of a mind over a
period of time to hire most of the members of the Sheet Metal
applicants, and actually took steps to hire them. It cannot be
denied that five of the six Sheet Metal applicants were honestly
considered for employment and one of whom, the prime mover
of the organizing effort, was actually hired by Respondent. I
cannot, based on the facts and circumstances surrounding his
application, conclude that Ullery was not hired by Hunt
because of unlawful discrimination. Accordingly, I would
dismiss the complaint as to him.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act.
2. The Unions are labor organizations within the meaning of
Section 2(5) of the Act.
3. By refusing to consider for employment and/or refusing
to hire the following IBEW members named in the complaint
(Case 25–CA–23625),

1. Michael Closson
2. Harley Adams
3. Timothy Geary
4. Michael Geary
5. Roger Clayton
6. Russell McCann
7. Harold Wasson

Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (3) of the
Act.
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that the Respondent violated Section 8(a)(1)
and (3) of the Act by refusing to consider the above applicants
for employment, I shall order Respondent to consider them for
hire and to make whole those discriminatees, whom the Re-
spondent would have hired, for any losses sustained by reason
of the discrimination against them, including amounts they
would have earned on other jobs to which Respondent subse-
quently would have assigned them. If it is shown at the com-
pliance stage of this proceeding that the Respondent, but for the
discrimination, would have assigned any of these discrimina-
tees to present jobs, the Respondent shall hire those individuals
and place them in positions substantially equivalent to those for
which they applied. 3E Co., 322 NLRB 1058 (1997). Backpay
shall be computed on a quarterly basis as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), and shall be reduced by
net interim earnings, with interest computed in accordance with
New Horizons for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]