R.G. Burns Electric Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1998

326 N.L.R.B. 440 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 440
R. G. Burns Electric, Inc. and International Brother-
hood of Electrical Workers, Local 840. Case
3-CA-18261
August 27, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX
AND LIEBMAN
On November 29, 1995, Administrative Law Judge
Jesse Kleiman issued the attached decision. The Re-
spondent filed exceptions, a supporting brief, and a re-
quest for oral argument, and the General Counsel filed an
answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record1
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.3
The judge found that the Respondent violated Section
8(a)(3) and (1) by refusing to hire eight journeyman elec-
tricians because of their Union affiliation. The Respon-
dent excepts, contending, inter alia, that the allegations
of discrimination are time barred by Section 10(b) of the
Act.4 The Respondent argues that because Union Assis-
tant Business Agent Ray McDermott admitted that he
had suspicions as early as February 1993,5 following the
electricians’ applications for employment the prior No-
vember, that the Respondent was refusing to hire Union-
affiliated electricians, McDermott’s knowledge of the
Respondent’s unfair labor practices preceded the 10(b)
period relevant to the charge filed November 26. There-
fore, the Respondent argues that the allegations and the
charge are time barred.

1 On consideration of the record, including the exceptions and briefs,
the Respondent’s request for oral argument is denied as the record
before us adequately presents the issues and positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 363
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 We shall modify the judge’s conclusions of law, recommended Or-
der, and notice to conform to the judge’s finding that the Respondent
violated Sec. 8(a)(3) and (1) by refusing to hire the eight applicants.
We note that the complaint alleged solely refusal to hire violations, the
case was litigated on this theory of a violation, the judge throughout his
discussion of the alleged unfair labor practices refers to the violations
as refusals to hire, and the judge’s recommended remedy reflects a
finding of refusal to hire violations. We accordingly have deleted the
judge’s reference to the Respondent’s refusal to consider these appli-
cants for hire.
We shall also modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144 (1996),
and Excel Container, Inc., 325 NLRB 17 (1997)
Chairman Gould would find that both refusal to consider and refusal
to hire theories of violation were fully litigated before the administra-
tive law judge. Based on the evidence presented, he would adopt the
judge’s findings that the Respondent both refused to consider and re-
fused to hire applicants Sherman Soles, William Snyder, Jack Fran-
cisco, Craig Andrews, Robert Ryan, Richard MacGill, and Kevin
Radka. See Casey Electric, 313 NLRB 774 (1994). With regard to
applicant Kenneth Lumb, however, the credited evidence indicated that
the Respondent had contacted the Union for information regarding
Lumb’s qualifications. Consequently, Chairman Gould would find that
the evidence did not establish a refusal to consider violation as to
Lumb, but solely a refusal to hire violation.
We agree with the judge’s findings and conclusion that
the allegations are not time barred and, for the following
reasons, we find no merit to the Respondent’s excep-
tions.6
McDermott’s testimony was that he “strongly sus-
pected” as of February 1 that the Respondent had hired
electricians and believed by that summer that the union
applicants would not be hired. The judge found that
McDermott first documented in his log, on May 26, that
he saw a new man working for the Respondent and, al-
though the Union was aware of other individuals,
McDermott did not know if this particular person or the
others he had observed were new employees or simply
transferred from another of the Respondent’s projects.
Knowledge of such facts would not necessarily give the
Union clear and unequivocal notice, however, that the
Respondent had rejected the union applicants and had
hired nonunion employees from outside its own em-
ployee roster, into the jobs for which the union applicants
had applied. The Respondent had never expressly denied
the discriminatees employment, but rather gave them
assurances that they did not need to file new applications
because it was the Respondent’s policy to retain all ap-
plications for 2 years. Thus, the Respondent’s imple-
mentation of an unlawful hiring policy was not clear
even after new faces—individuals unknown to the un-
ion—appeared on the Respondent’s worksite.7
As the judge correctly found, the November 26 charge
would be timely even if the Union had the requisite clear
and unequivocal notice of the unfair labor practice by
May 26. In order to avoid establishing a misleading
precedent, however, we make the additional finding that
the Union did not in fact have such notice until August
16. We find notice as of that date on the basis of
McDermott’s admission that on August 16, in a tele-
phone conversation with Richie McPherson, a union or-
ganizer with Local 325 in Binghamton, New York,
McDermott learned that the Respondent had hired two
new people, one of whom was a Paul Benkovitz from
4 Sec. 10(b) states in pertinent part that “[N]o complaint shall issue
based on any unfair labor practice occurring more than six months prior
to the filing of the charge with the Board.”
5 All dates are in 1993 unless otherwise indicated.
6 We find it unnecessary to rely, however, on the judge’s application
of the fraudulent concealment doctrine.
7Great Lakes Chemical Corp., 298 NLRB 6l5 fn. 2 (1990).
326 NLRB No. 41
R. G. BURNS ELECTRIC 441
Binghamton who was hired on August 10. Therefore,
while McDermott had “suspicions” on May 26, his
knowledge of the Respondent’s hiring actions first came
as a result of McPherson’s information on August 16,
less than 4 months before the charge was filed.
We recognize that notice for the purpose of the 10(b)
limitation period may be found even in the absence of
actual knowledge if a charging party has failed to exer-
cise reasonable diligence, i.e., the 10(b) period com-
mences running when the charging party either knows of
the unfair labor practice or would have “discovered” it in
the exercise of “reasonable diligence.” Oregon Steel
Mills, 291 NLRB 185, 192 (1988). We agree with the
judge that McDermott exercised “reasonable diligence,”
given his efforts to find out if in fact the people he ob-
served at the Respondent’s jobsite were new hires.
The record evidence shows that not only did McDer-
mott keep the Respondent’s worksite under frequent sur-
veillance and document his observations, but it also re-
veals McDermott’s efforts to find out the truth by using
his inside sources at the Respondent’s jobsite to provide
him with the answers, although he was unsuccessful. It
took a chance telephone call from McPherson, however,
to provide McDermott with concrete evidence.8
Accordingly, we agree with the judge’s conclusion that
the Respondent has failed to carry its burden of showing
that the Union’s charge was untimely under Section
10(b).
AMENDED CONCLUSION OF LAW
Substitute the following for Conclusion of Law 3.
“3. The Respondent violated Section 8(a)(3) and (1)
of the Act by refusing to employ, because of their union
affiliation and activities on behalf of the Union, Sherman
Soles, William Snyder, Jack Francisco, Craig Andrews,
Robert Ryan, Kenneth Lumb, Richard MacGill, and
Kevin Radka.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as

8 This case is distinguishable from Moeller Bros. Body Shop, 306
NLRB 191 (1992). In that case, a complaint alleging noncompliance
with the collective-bargaining agreement was found barred because the
violations should reasonably have been discovered by the charging
party union more than 6 months before the charge was filed. The
Board found due diligence lacking because the alleged contractual
violations were evident upon observation of the workplace and the
charging party union had possessed, but never exercised, the right to
appoint a shop steward. Further, its business agents had rarely visited
the facility, although apparently entitled to do so.
Member Liebman agrees with her colleagues and the judge that the
November 26 charge was timely even if the Union had clear and un-
equivocal notice of the unfair labor practice on May 26 when assistant
business agent McDermott saw a “new man” working for the Respon-
dent. Member Liebman finds it unnecessary to rely on her colleagues’
additional rationale that the Union did not, in fact, have such notice
until August 16 when McDermott learned that the Respondent had
hired two new people.
modified and set forth in full below and orders that the
Respondent, R.G. Burns Electric, Inc., Phelps, New
York, its officers, agents, successors, and assigns, shall.
1. Cease and desist from
(a) Refusing to employ Sherman Soles, William Sny-
der, Jack Francisco, Craig Andrews, Robert Ryan, Ken-
neth Lumb, Richard MacGill, and Kevin Radka because
of their union application and activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Sherman Soles, William Snyder, Jack Francisco, Craig
Andrews, Robert Ryan, Kenneth Lumb, Richard Mac-
Gill, and Kevin Radka employment in positions for
which they applied or, if those positions no longer exist,
to substantially equivalent positions.
(b) Make Sherman Soles, William Snyder, Jack Fran-
cisco, Craig Andrews, Robert Ryan, Kenneth Lumb,
Richard MacGill, and Kevin Radka whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in
the remedy section of the decision.
(c) Within 14 days from the date of this Order, remove
from its files any references to the unlawful refusal to
employ the eight discriminatees named above, and within
3 days thereafter notify them in writing that this has been
done and that the unlawful conduct will not be used
against them in any way in the future.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay and other benefits due under the terms of this Order.
(e) Mail a copy of the attached notice marked “Appen-
dix”9 to the last known address of Sherman Soles, Wil-
liam Snyder, Jack Francisco, Craig Andrews, Robert
Ryan, Kenneth Lumb, Richard MacGill, and Kevin
Radka. Copies of the notice on forms provided by the
Regional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be mailed
by the Respondent immediately upon receipt thereof.
(f) Sign and return to the Regional Director for Region
3, sufficient copies of the notice for posting by the Un-
ion, if it is willing at its office and meeting halls, includ-
ing all places where notices are customarily posted.
(g) Within 14 days after service by the Region, post at
its Phelps, New York facility, copies of the attached no-
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 442
tice marked “Appendix.” Copies of the notice, on forms
provided by the Regional Director for Region 3, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since November 26, 1993.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT refuse to employ Sherman Soles, Wil-
liam Snyder, Jack Francisco, Craig Andrews, Robert
Ryan, Kenneth Lumb, Richard MacGill, and Kevin
Radka because of their union application and activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Sherman Soles, William Snyder, Jack Fran-
cisco, Craig Andrews, Robert Ryan, Kenneth Lumb,
Richard MacGill, and Kevin Radka employment in posi-
tions for which they applied or, if those jobs no longer
exist, to substantially equivalent positions.
WE WILL make Sherman Soles, William Snyder, Jack
Francisco, Craig Andrews, Robert Ryan, Kenneth Lumb,
Richard MacGill, and Kevin Radka whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, less any interim earnings,
plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any and all references to
the unlawful refusal to employ the eight applicants
named above, and WE WILL, within 3 days thereafter,
notify each of them in writing that this has been done and
that this will not be used against them in any way in the
future.
R. G. BURNS ELECTRIC, INC.

Rafael Aybar, Esq., for the General Counsel.
Luther C. Nadler, Esq., for the Respondent.
Ray McDermott, Union Representative, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JESSE KLEIMAN, Administrative Law Judge. Upon the basis
of a charge filed on November 26, 1993, by International
Brotherhood of Electrical Workers, Local 840 (the Union), a
complaint and notice of hearing was issued on January 31,
1994, against R. G. Burns Electric, Inc. (the Respondent), alleg-
ing that the Respondent violated Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act). By answer dated Feb-
ruary 11, 1994, the Respondent denied the material allegations
in the complaint and asserts that the unfair labor practice charge
filed in this case is time barred by Section 10(b) of the Act
because the events occurred more than 6 months prior to the
filing of the charge with the Board and service upon the Re-
spondent. The Respondent also maintains therein that “neither
the complaint nor the amended complaint are based on the
charge.”
A hearing was held before me on November 2 and 3, 1994,
in Rochester, New York. Subsequent to the close of the hear-
ing, the General Counsel and the Respondent filed briefs.
On the entire record and the briefs of the parties, and upon
my observation of the witnesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Respondent, at all times material, is and has been a cor-
poration with an office and place of business in Phelps, New
York engaged in operation as an electrical contractor. The
Respondent annually in the conduct of its business operations
purchases and receives at its various worksites and at its Phelps,
New York facility goods and materials valued in excess of
$50,000 directly from points outside the State of New York. I
therefore find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local 840,
is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint and amendments thereto allege, in substance,
that the Respondent violated Section 8(a)(3) and (1) of the Act
by discriminatorily refusing to hire the following individuals
R. G. BURNS ELECTRIC 443
because of their affiliation with and activities on behalf of the
Union: Sherman Soles, William Snyder, Jack Francisco, Craig
Andrews, Robert Ryan, Kenneth Lumb, Richard MacGill, and
Kevin Radka, and to discourage its employees from engaging
in similar activities. The Respondent denies these allegations.
A. The Evidence
The Respondent is an electrical contractor founded in 1984
and based in Phelps, New York, and handles commercial and
industrial construction, outside line work, and process controls
and computers. The company was started by Robert G. Burns,
its president, and his wife. Ray McDermott testified that when
he assumed the position of assistant business agent and organ-
izer for the Union in August 1992, he noted that the Respon-
dent had about four projects going within the Union’s jurisdic-
tional area and whose employees McDermott might seek to
organize for the Union. One project was the Women’s Rights
Building in Seneca Falls, New York, and the others being three
schools, “Cody Stanton, Minors Academy and Frank Knight.”
In November 1992, McDermott saw an advertisement in the
Finger Lakes Times Newspaper soliciting applications from
electricians with 3–5 years of industrial and commercial ex-
perience. While the advertisement did not name the employer,
McDermott recognized the return address as being that of the
Respondent.
Regarding this advertisement, the Respondent’s president,
Robert G. Burns, testified that one of the Respondent’s electri-
cal construction projects was a five-story office building in
Syracuse, New York, under a joint ventureship arrangement
with another contractor, Associated Electric. The joint venture
required that each party provide 50 percent of the manpower
required for the job. Burns stated that in late October 1992, the
Respondent realized that Associated Electric was not providing
its adequate share of the manpower required under the joint
venture agreement. Since this project had a deadline of the
third week in January 1993 for the completion of 3-1/2 floors,
the Respondent decided in November 1992 to place an adver-
tisement in the newspaper for electricians in order to have a
pool of available manpower should it become necessary to add
workers to this project in December 1992 if the problem with
Associated Electric continued. In response to the employment
advertisement, several individuals, both union and nonunion
members completed employment applications with the Re-
spondent.
Subsequently, McDermott informed several unemployed un-
ion members about the advertisement so that they could apply,
specifically: Horace Daniels, Sherman Soles, William Snyder,
Craig Andrews, Jack Francisco, Kenneth Lumb, Robert Ryan,
Richard McGill, and Kevin Radka, all electricians who met the
minimum qualifications required by the advertisement.
McDermott testified that after these union members applied for
employment at the Respondent’s office, individually or in
groups between November 9, 10 and 11, 1992, they then re-
turned to the union hall and reported to him what the Respon-
dent was offering as to wages and benefits, etc. The testimony
of Soles, Lumb, Radka, and Daniels was consistent with that of
McDermott regarding this.
Sherman Soles testified that he and three other journeyman
electricians from the Union (Snyder, Andrews, and Francisco)
applied in person at the Respondent’s office in response to the
advertisement, with McDermott’s consent. Soles and perhaps
two of the other union members were wearing hats with the
Union’s name thereon. The Respondent’s project manager,
Charles Binder, told them that the job paid about $14 per hour
and included health and retirement benefits and asked them if
they would have a problem with the Union working for a non-
union contractor. After completing a job application they re-
turned to the union hall and advised McDermott as to what had
occurred. Having received no communication from the Re-
spondent regarding his application for employment for some
time, and concerned in the spring of 1993 about being hired,
Soles telephoned the Respondent in July 1993, and was in-
formed by the Respondent’s secretary that the Respondent was
not currently hiring, but was keeping his employment applica-
tion on file. Soles was never contacted by the Respondent
thereafter.
Soles also testified that he would have accepted employment
by the Respondent even as an apprentice if the pay rate was
within reason, and that it was not unusual for journeyman elec-
tricians to accept lesser-paying jobs when work was hard to
obtain. Soles also related that it is not uncommon for an elec-
trical contractor not to hire during the winter months but begin
hiring in June or July when more projects usually begin.
Kenneth Lumb testified that he and another union member,
Robert Ryan, went to the Respondent’s office and completed
employment applications after McDermott had informed them
about the Respondent’s employment advertisement. After ask-
ing the Respondent’s secretary if she knew where the job loca-
tions were, and being told that it might be in Syracuse, New
York, they left the Respondent’s office. A few days later,
McDermott asked Lumb if he had been contacted by the Re-
spondent about a job and Lumb responded that he had not.
When Lumb asked McDermott what brought on the inquiry,
McDermott told him that the Respondent had contacted Union
Business Agent Larry Davis at the union hall asking about
Lumb’s qualifications and whether they could contact him con-
cerning this job. McDermott testified that Davis advised
Binder that Lumb was fully qualified for the position with the
Respondent and McDermott documented that Binder told Davis
that he would call Lumb, but actually never did so. Lumb
added that McDermott told him that the Respondent expressed
interest in him because he had worked as a foreman for an elec-
trical contractor named Sullivan Electric.
Lumb related that he returned to the Respondent’s office
about 1 week later and asked about the status of his employ-
ment application. The Respondent’s secretary, Brook Robin-
son,1 told Lumb that she had no information regarding his ap-
plication nor whether the Respondent had filled any positions.
When the Respondent failed to call Daniels after 30 days,

1 At the hearing, the General Counsel moved to amend par. V of the
complaint to allege as an agent of the Respondent an unnamed individ-
ual believed to be a secretary. There is sufficient evidence in the record
to show that this individual was Brook Robinson. Robinson was hired
in late 1992 to do general clerical work and answer questions on the
telephone. In about March 1993 her duties were expanded to include
payroll processing and other duties of a comptroller. In Diehl Equip-
ment Co., 297 NLRB 504 ( 1989), the Board held that a receptionist-
bookkeeper was an agent of the employer, since the employer had
placed her in a position in which she had apparent authority to provide
information and to answer questions relative to application forms. In
Benjamin Coal Co., 294 NLRB 572 (1989), the Board reached a similar
finding. For the reasons set forth hereinafter, I grant the General Coun-
sel’s motion to amend par. V of the complaint and also find that Robin-
son was an agent of the Respondent within the meaning of Sec. 2(13) of
the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 444
Daniels believed that the Respondent had filled the position.
Daniels also testified that McDermott did not say the Respon-
dent had asked Davis for references regarding himself and that
Davis had refused to answer the Respondent’s questions with
respect to his qualifications.
Regarding this, Robert Burns testified that he requested
Charles Binder to contact the Union and obtain references for
Lumb in order to obtain knowledge as to Lumb’s work abilities,
reliability, attitude, etc. Binder called the Union’s business
manager, Davis but Davis, according to Binder, refused to pro-
vide any information other than that Lumb was a union mem-
ber. The Respondent considered this inadequate information on
which to consider Lumb for employment. When Lumb visited
the Respondent’s office thereafter, there was no one in author-
ity there to speak with him and he left. Since Lumb became
employed a few weeks later and on and off thereafter, he never
checked back for employment with the Respondent.
Kevin Radka testified he and another union member, Richard
MacGill went to the Respondent’s office to fill out employment
applications after seeing the Respondent’s newspaper adver-
tisement and with the Union’s acquiescence. While filling out
the applications, Binder asked them why union members were
applying for positions with the Respondent. Radka responded
that they were out of work and needed jobs. After completing
their application Radka and MacGill left. The Respondent
never contacted Radka for employment. Radka added that by
about April or June 1993, he realized that the Respondent was
not going to hire him although he would have been willing to
accept even an apprentice position or similar paying position
because he needed a job.
Horace Daniels testified that he went to the Respondent’s of-
fice in November 1992 to fill out an employment application
after McDermott informed him about the Respondent’s em-
ployment advertisement. Binder, whom Daniels had previously
worked with for a nonunion electrical contractor named Carroll
& Keavney, and at a time when Daniels was not a union mem-
ber, told Daniels that there were no positions available at the
time. However, Daniels completed the application and submit-
ted his resume, then he left.
A few days later Daniels was called to an interview with
Burns. Burns noted that both he and Daniels had worked for a
nonunion electrical contractor named R. MacDonald Electric.
Daniels testified that he believed that he was being interviewed
for a journeyman electrician’s position since they discussed
Daniels’ electrical licenses in Rochester and Syracuse. Daniels
stated that Burns was unclear as to the job duties for which he
was being interviewed and that Burns mentioned 2–3 jobs.
Daniels never disclosed to Burns that he was a union member
and in fact the subject of unions never arose. Daniels related
that Burns never offered him a position although they discussed
wage rates but differed on the amounts for the position of
“bucket trucks.” Daniels added that he would have taken any
job offered to him because he was out of work and at the wage
rate mentioned by Burns.
Burns testified that he was seeking to hire Daniels for a
lineman position which involves working with high voltages on
outside distribution systems and poles and in bucket trucks.
Burns told Daniels about a project in Syracuse, New York, and
made references to a bucket truck. Burns stated that he would
have hired Daniels if they had reached an agreement on a satis-
factory wage rate.2
Burns testified that within a few weeks after placing the ad-
vertisement in the Finger Lakes Times newspaper the Respon-
dent’s joint venture partner, Associated Electric, began to pro-
vide its share of the required manpower for the Syracuse pro-
ject, the project deadline was met, and the Respondent began to
lay off people in the second or third week of January 1993.
Thus the Respondent did not hire any of the individuals who
had completed employment applications in November 1992 in
response to the newspaper advertisement.
McDermott testified that after the union members had ap-
plied for work at the Respondent’s office, he continued his
organizing activities at the Respondent’s worksites and kept
notes regarding this. In April or May 1993, McDermott ob-
served employees working for the Respondent whom he was
unfamiliar with but was uncertain as to whether these employ-
ees were new hires or employees transferred by the Respondent
from other projects. Additionally, McDermott noted that the
Respondent was bringing in new men on the job through July
20, 1993, “at different times trying to confuse the issue” as to
whether these men were new hires or employees transferred
from different projects. McDermott related that it was not until
August 1993, that he learned with certainty that the Respondent
had hired new electricians when he was told by Richard
McPhearson, a union organizer for the IBEW, Local 325 in
Binghamton, New York, that the Respondent had hired two
electricians, Paul Benkowitz and Todd Spencer.
On August 16, 1993, McDermott was contacted by Michael
Brown, former project manager for the Respondent, in an effort
to join the Union. Thereafter, Brown called McDermott again
on August 19, September 15, and October 4, 1993 regarding his
interest in becoming a union member. McDermott testified that
in or about December 1993, Brown told him that through dis-
cussions with other of the Respondent’s supervisors while he
worked for the Respondent, he knew that the Respondent had
no intention of hiring any union applicants. However, Brown
gave him no information regarding the identity or timing of any
new electricians hired by the Respondent. Moreover, McDer-
mott appeared quite confused regarding the date of this conver-
sation with Brown regarding the year it took place but finally
testified that it occurred in December 1993 not 1992. Notwith-
standing McDermott’s confusion about the date, the evidence
indicates that the year was 1993, since McDermott’s notes re-
flect that Brown first spoke to him on August 16, 1993, while
inquiring about becoming a union member. McDermott added
that he strongly suspected as of February 1, 1993, that the Re-
spondent had hired electricians and believed by the summer of
1993 that the union applicants would not be hired.
Regarding Michael Brown, the General Counsel alleges in
the complaint that Brown is a supervisor within the meaning of
Section 2(11) of the Act and an agent of the Respondent within
the meaning of Section 2(13) of the Act when employed by the
Respondent during the relevant period herein. The Respondent
denies this allegation.
Section 2(11) of the Act provides:

2 In his employment application Daniels stated that the desired posi-
tion was “Electrician/Lineman.” Daniels’ resume lists as his career
objective a position in the field of Journeyman Line Construction
and/or Electrical Mechanics. Line work and electrical construction
work are different with line work being the higher-paying position.
R. G. BURNS ELECTRIC 445
The term “supervisor” means any individual having authority,
in the interest of the employer, to hire, transfer, suspend, lay
off, recall, promote, discharge, assign, reward, or discipline
other employees, or responsibility to direct them, or to adjust
their grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such author-
ity is not of a merely routine or clerical nature, but requires
the use of independent judgment.

To qualify as a supervisor, it is not necessary that an individual
possess all of these powers. Rather possession of any one of
them is sufficient to confer statutory status. NLRB v. Bergen
Transfer & Storage Co., 678 F.2d 679 (7th Cir. 1982). How-
ever, consistent with the statutory language and legislative in-
tent, it is well recognized that Section 2(11)’s disjunctive listing
of supervisory indicia does not alter the essential conjunctive
requirement that a supervisor must exercise independent judg-
ment in performing the enumerated functions. H.S. Lordships,
274 NLRB 1167 (1985).
An employee does not become a supervisor merely because
he gives some instructions or minor orders to other employees.
NLRB v. Wilson-Crissman Cadillac, Inc., 659 F.2d 728 (6th
Cir. 1981). Nor does an employee become a supervisor be-
cause he has greater skills and job responsibilities or more du-
ties than fellow employees. Federal Compress Warehouse Co.
v. NLRB, 398 F.2d 631 (6th Cir. 1968). Additionally, the exis-
tence of independent judgment alone will not suffice for “the
decisive question is whether [the employee has] been found to
possess authority to use independent judgment with respect to
the exercise . . . of some one or more of the specific authorities
listed in Section 2(11) of the Act.” Advance Mining Group,
260 NLRB 486 (1982). Moreover, in connection with the au-
thority to recommend actions, Section 2(11) of the Act requires
that the recommendations must be effective.
The burden of proving that an employee is a “supervisor”
within the meaning of Section 2(11) of the Act, rests on the
party alleging that such status exists. RAHCO, Inc., 265 NLRB
235 (1983). I believe that the evidence in this case establishes
that Michael Brown was a “supervisor” within the meaning of
Section 2(11) of the Act when he worked for the Respondent at
the material times relevant herein.
The uncontroverted testimony of Brown shows that he
worked for the Respondent from the spring of 1992 through
early August 1993. His last position with the Respondent was
as project manager. Brown was given a business card,3 and his
duties consisted in coordinating clients, purchasing material,
scheduling manpower and working on designs. Brown was
paid on a salary basis (about ($40,000 per year) as was Charles
Binder, an acknowledged supervisor, although at a slightly
lesser salary, while electrician employees are paid by the hour.
Brown also received a 5-percent lump-sum profit-sharing bonus
at year’s end which other supervisor received. Brown had an
expense account for meals and mileage which only Burns, Pie-
trezykowski (Respondent’s vice president), and Supervisor
Binder had, although electrician employees were sometimes
given mileage reimbursement. Brown had his own office with
desk, telephone, filing cabinet, lap top computer, and printer as
did Burns, Pietrezykowski, and Binder, all acknowledged su-
pervisors.
Brown testified that in the course of his duties as project
manager he supervised about 8–10 employees and that he had

3 Only management and supervisors had business cards.
the authority to discipline employees or effectively recommend
such action which it appears he did. Brown recommended
wage increases for employees which were effectuated, attended
supervisory meetings, and interviewed and recommended the
hiring of some employees although Burns had the final say on
hiring electricians. Brown also trained employees in their job
duties and inspected their work to insure that proper specifica-
tions were met.
Brown testified that throughout his employment with the Re-
spondent he suggested that the Respondent hire union electri-
cians but that Burns and Pietrezykowski vehemently opposed
this and wanted the Respondent to remain nonunion, maintain-
ing that there never would be a union at the Respondent’s facil-
ity. According to Brown, Pietrezykowski made it clear to him
that the subject of employing union members was closed and
should not be raised again. Burns’ testimony supported that of
Brown somewhat. Burns testified that while Brown had pro-
posed hiring union electricians he opposed this because he had
worked as a nonunion electrical contractor for 35 years and
wanted to continue this way. Burns also testified that he was
opposed to signing a collective-bargaining agreement with a
union and that he told his employees that he will never sign a
bargaining contract nor be affiliated with a union. However,
also in his testimony and that of Binder, they asserted that the
Respondent would hire union members when necessary.
Brown related that in November or December 1992, he no-
ticed four men in the Respondent’s office filling out employ-
ment applications. Binder told Brown that these men were
union members applying for work. When Binder informed
Burns that union members were seeking employment with the
Respondent, Burns replied that “there would be no chance that
those gentlemen would be hired.”
Burns testified that in the spring or summer of 1993, Burns
informed Binder, Brown, and the Respondent’s foremen elec-
tricians at a meeting that they should watch the employees to
prevent their passing company information to union’s and out-
siders. Burns also issued a letter to employees directing them
not to discuss company matters with outsiders on pain of disci-
pline, verbal warning, or direct censure. Burns stated that out-
siders included union organizers.
Brown testified that the Respondent’s general practice when
seeking employees, was to solicit applications through em-
ployment advertisements. In the spring or summer 1993 the
Respondent received three substantial contracts and Brown
suggested that the Respondent advertise for skilled electricians
in the Rochester newspapers. Pietrezkowski raised concerns
about this for fear of receiving more applications from union
members. Thereafter Binder told Brown that the Respondent
had placed an advertisement in a Rochester newspaper and that
Pietrezykowski had directed Binder to use his personal P.O.
box in Geneva, New York in order to disguise the Respondent’s
identity from the Union to discharge union members’ applica-
tions and to save the cost of purchasing a Rochester P.O. box.
Brown related that he left the Respondent’s employ in the
first week in August 1993. On about August 19, 1993, he con-
tacted McDermott about becoming a union member. Accord-
ing to Brown towards the end of October 1993, McDermott told
him that the Union was in the process of filing an unfair labor
practice charge with the Board against the Respondent and
therefore in December 1993, he told McDermott about the dis-
cussions he had had with the Respondent’s owners and supervi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 446
sors regarding their refusal to hire union members and their
antiunion animus.
Burns testified that he received numerous applications re-
garding the Respondent’s November 1992 employment adver-
tisement. Burns admitted that he had knowledge that the al-
leged discriminatees herein who applied in response to the ad-
vertisement were union members. Burns stated that of the un-
ion members who applied the Respondent had only considered
Lumb for employment. Brown testified that after the employ-
ment application appeared in the Finger Lakes Times Newspa-
per in Geneva, New York, in November 1992, the Respondent
hired at least 11 employees. The Respondent hired Scott Wor-
muth (apprentice) on November 19, 1992, Stephen Fox (ap-
prentice) on January 14, 1993, and James Van Damme (appren-
tice). Burns explained that if the Respondent does not meet the
proper ratio of journeymen to apprentices, it would pay appren-
tices at the journeyman wage rate under state or Federal re-
quirements.
Regarding journeymen electricians, Burns testified that on
January 13, 1993, the Respondent hired Daniel Cochran as a
journeyman electrician to also perform service work on ma-
chinery as well. Burns did not know Cochran and did not know
whether he was referred for the job by anyone. The Respon-
dent hired Paul Benkovitz as a journeyman electrician on July
22, 1993, to work on the Keith Clark Corporation project in
Sydney, New York, which ran from December 1992 through
about March 1994. Burns stated that Benkovitz had worked for
the Respondent previously. Also hired was Todd Spencer in
early August 1993, and Scott Kornbau in November or Decem-
ber 1993 as journeymen electricians, both having been referred
to the Respondent for employment by former or current em-
ployees.
Burns also testified that the Respondent additionally hired
several employees as “helpers.” On February 13, 1993, the
Respondent hired Thomas LaPlant as a helper. Burns stated
that LaPlant had previously worked for Associated Electric, a
nonunion electrical contractor, and had been recommended for
employment by one of the Respondent’s foremen. However,
Brown testified that LaPlant worked for the Respondent on the
Keith Clarke Corporation project in Sydney, New York, per-
forming the duties of a journeyman electrician such as pulling
wire and installing conduit and devices.
Burns stated that on April 26, 1993, the Respondent hired
Gino Caruso as a helper to work with journeymen electricians
installing electrical systems, pipes, wires, and fixtures and de-
vices, having been recommended for the job by his brother who
works for the Respondent. However, Brown testified that Gino
Caruso was a foreman at Omni Systems in Fairport, New York,
and that foremen perform the job duties of journeymen electri-
cians. The Respondent also hired Thomas Zugehoer as a helper
on June 26, 1993. According to Burns, Zugehoer had the same
job duties as Gino Caruso, working with journeymen electri-
cians installing electrical systems, pipes, wires, and fixtures and
devices, all tasks that a journeyman electrician performs.
Zugehoer was hired on the basis of an employment application
which he submitted on March 5, 1992, but had sought employ-
ment with the Respondent frequently thereafter. Burns related
that the Respondent had no fixed policy as to the length of time
it would keep employment applications but would keep jour-
neymen electrician applications on file in order to hire from
them. Burns also testified that the Respondent hired Dave Pad-
dock on July 27, 1993, as a helper, but it appears that Paddock
performed merely routine jobs such as cleaning up, carrying
tools, and drilling holes through walls.
Moreover, as recorded by McDermott in his notes of No-
vember 24, 1993, when he discussed the Union’s intent to file
unfair labor practice charges against the Respondent with Gene
Adams, a union representative in Buffalo, Adams advised him
“that even though I’m late in filing the charge, I should go
ahead and file it anyway.”
B. Analysis and Conclusions
1. Credibility
Based upon a careful analysis of the testimony of the wit-
nesses and the evidence presented herein, my observation of the
demeanor of the witnesses, the weight of the respective evi-
dence, established or admitted facts, inherent probabilities and
reasonable inferences which may be drawn from the record as a
whole, I tend to credit the account of what occurred as given by
the General Counsel’s witnesses except for Burns. Gold Stan-
dard Enterprises, Inc., 234 NLRB 618 (1978); V & W Castings,
231 NLRB 912 (1977); Northridge Knitting Mills, Inc., 223
NLRB 230 (1976). Their testimony was given in a forthright
manner and was generally corroborative and consistent with
each others. While McDermott’s testimony regarding the date
when Brown advised him of the Respondent’s antiunion moti-
vation in December 1993 showed initial confusion as to the
year it occurred, still I found that this seemed to be actual con-
fusion on his part rather than deceit, and his testimony other-
wise seemed reliable and corroborated by other testimony in the
record. This is not to say that I found the testimony of Burns
totally unbelievable. However, his testimony in some key re-
spects was inconsistent. It is not unusual that based upon the
evidence in the record, the testimony of a witness may be cred-
ited in part, while other segments thereof are discounted or
disbelieved. Jefferson National Bank, 240 NLRB 1057 (1979),
and cases cited therein. As for Binder’s testimony, it appeared
inconsistent at times and contradicted in part by that of Burns.
Moreover, Brown’s testimony as a witness for the General
Counsel was supported in part by that given by Burns whose
position was assumable to be hostile to that of the General
Counsel and the failure by the Respondent to call Pie-
trezykowski as a witness to refute some of Brown’s testimony
attributed to him by Brown gives rise to the presumption that
his testimony would have been adverse to the Respondent’s
position. Additionally, based upon the demeanor of the wit-
nesses and other facts in the record, I found the General Coun-
sel’s witnesses more credible.
2. The 10(b) period
Section 10(b) of the Act provides “That no complaint shall
issue based upon any unfair labor practice occurring more than
6 months prior to the filing of the charge with the Board and the
service of a copy thereof upon the person against whom such
charge is made . . . .” Section 10(b) is a statute of limitations
and is not jurisdictional in nature. It is an affirmative defense
which must be pleaded and if not timely raised, is waived.
Federal Management Co., 264 NLRB 107 (1982). Moreover,
the burden of proving such an affirmative defense rests
squarely upon the party asserting it. Kelly’s Private Care Ser-
vice, 289 NLRB 30 (1988). While the running of the limita-
tions period can begin only when the unfair labor practice oc-
curs, Section 10(b) is tolled until there is either actual or con-
structive notice of the alleged unfair labor practice. Mine
R. G. BURNS ELECTRIC 447
Workers Local 17, 315 NLRB 1052 (1994); Pinter Bros., 263
NLRB 723 (1982). As the Board stated in Leach Corp., 312
NLRB 990, 991 (1993):

It is also firmly established that the 10(b) period commences
only when a party has clear and unequivocal notice of the vio-
lation of the Act. E.g. Desks, Inc., 295 NLRB 1, 11 (1989).
“Further, the burden of showing such clear and unequivocal
notice is on the party raising the affirmative defense of Sec-
tion 10(b).” Chinese American Planning Council, 307 NLRB
410 (1992).

The Respondent, who timely raised such a defense in its an-
swer and at the trial alleges in its brief, “Here, the charge was
filed November 26, 1993, which means that it was untimely if
the events charged occurred and were known to the Union prior
to May 27, 1993.” The General Counsel asserts as alleged in
the complaint that the Union was without knowledge of the
Respondent’s continuous unfair labor practice until about De-
cember 1993 and therefore the filing of the instant charge was
in fact timely.
The evidence herein shows that the Union Official McDer-
mott first documented in his log that he saw a new man work-
ing for the Respondent on May 26, 1993. McDermott’s notes
also show that the Union was aware of additional employees
being hired by the Respondent, whether as apprentices or jour-
neymen, about which McDermott testified that he did not know
if such individuals were new employees or simply transferred
from another of the Respondent’s projects.4 I do not believe
that mere knowledge of such a fact would necessarily put the
Union on “clear and unequivocal notice” that the reason why
the Respondent had not hired Union applicants was because of
their union affiliation.
The Board in Brown & Sharpe Mfg. Co., 312 NLRB 444
(1993), noted that it has consistently applied the doctrine in
Holmberg v. Ambrecht, 327 U.S. 392, 397 (1946), which holds
that if a party “has been injured by fraud and remains in igno-
rance of it without any fault or want of diligence or care on his
part, the bar of the statute does not begin to run until the fraud
is discovered.” In addition, the Board held that it agrees with
the standard in Fitzgerald v. Seamans, 553 F.2d 220, 228 (D.C.
Cir. 1977), holding that deliberate concealment of material
facts toll the Federal statutes of limitations until a party discov-
ers or with due diligence should have discovered the basis of
the lawsuit. There is sufficient evidence in the record to con-
clude that the Respondent deliberately sought to conceal from
the Union its intent to unlawfully not hire any journeyman elec-
trician with Union affiliation and to solicit applications for
employment excluding any Union members.
Additionally, even if, on May 26, 1993, the Union had clear
and unequivocal notice of the Respondent’s unlawful motive
for refusing to hire the Union applicants, the charge herein
would still be deemed timely filed. MacDonald’s Industrial
Products, 281 NLRB 577 (1986); Section 102.111 of the
Board’s Rules and Regulations, as amended.
The Respondent further alleges that “in this case the charge,
the complaint, and the amended complaint all allege different
events . . . the Board does not have ‘carte blanche to expand the
charge as they might please, or to ignore it altogether.”‘ NLRB

4 It should be noted that the Respondent had instructed its employees
not to discuss with “outsiders” the Respondent’s business and that this
included speaking to union representatives.
v. Fant Milling Co., 360 U.S. 301, 309 (1959); Reebie Storage
& Moving Co., 313 NLRB 510, 511 (1993). At the hearing the
General Counsel moved to amend paragraph VI of the com-
plaint over the objection of the Respondent. For the following
reasons I grant the General Counsel’s motion to amend para-
graph VI of the complaint to change the date on which the Re-
spondent allegedly began to discriminate against the union
applicants. Counsel for the General Counsel stated that in
drafting the complaint, he relied on the Respondent’s assertion,
during the investigative stage of this proceeding, that it first
hired an individual in April 1993. However, after reviewing
the subpoenaed documents the day before the hearing, counsel
for the General Counsel learned that the Respondent hired an
apprentice (Scott Wormuth) on November 19, 1992.
Under the test enunciated in Redd-I, Inc., 290 NLRB 1115
(1988), the amendment sought by the General Counsel was
closely related to the timely filed charge. They both involve
the same legal theory and the same section of the Act (refusal
to hire discriminatees because of their union affiliation in viola-
tion of Section 8(a)(3); they both arose from the same sequence
of events (Union member’s applications submitted in Novem-
ber 1992)); and the Respondent raised the same or similar de-
fenses to this allegation. Moreover, I offered the Respondent
additional time to prepare its case after the General Counsel’s
motion was made, but the Respondent did not seek such addi-
tional time. Children’s Mercy Hospital, 311 NLRB 204
(1993). The Respondent has failed to establish that it would be
prejudiced in any way because of the granting of the General
Counsel’s motion. Also see Reebie Storage & Moving Co.,
supra, in which the Board held that the only requirement is that
there be a legally sufficient relationship between the subject
matter of the charge and the complaint.
From all of the above, I find and conclude that the Respon-
dent has not met its burden of proof and therefore I find and
conclude that the complaint allegations under consideration are
not time barred under Section 10(b) of the Act.
3. The alleged 8(a)(1) and (3) violations
The complaint alleges that the Respondent violated Section
8(a)(1) and (3) of the Act by refusing to hire employee-
applicants Sherman Soles, Jack Francisco, Robert Ryan, Rich-
ard MacGill, William Snyder, Craig Andrews, Kenneth Lumb,
and Kevin Radka because they formed, joined, or assisted the
Union and engaged in concerted activities and to discourage
membership in a labor organization.
Section 8(a)(3) of the Act makes it an unfair labor practice
for an employer to discriminate “in regard to hire or tenure of
employment or any term or condition of employment to en-
courage or discourage membership in any labor organization.”
Under the test announced in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), and approved by the Supreme Court in NLRB
v. Transportation Management Corp., 462 U.S. 393 (1983), a
discharge is violative of the Act only if the employee’s pro-
tected conduct is a substantial or motivating factor for the em-
ployer’s action. If the General Counsel carries his burden of
proving unlawful motivation, then the burden then shifts to the
employer to demonstrate that the same action would have taken
place notwithstanding the protected conduct. Also see, J. Huiz-
inga Cartage Co. v. NLRB, 941 F.2d 616 (7th Cir. 1991).5
5 An employer cannot simply present a legitimate reason for its ac-
tions but must persuade by a preponderance of the evidence that the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 448
However, when an employer’s motives for its actions are found
to be false, the circumstances may warrant an inference that the
true motivation is an unlawful one that the employer desires to
conceal. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466
(9th Cir. 1960). The motive may be inferred from the total
circumstances proved. Moreover, the Board may properly look
to circumstantial evidence in determining whether the em-
ployer’s actions were illegally motivated. Associacion Hospital
del Maestro, 291 NLRB 198 (1988); White-Evans Service Co.,
285 NLRB 81 (1987); NLRB v. O’Hare-Midway Limousine
Service, Inc., 924 F.2d 692 (7th Cir. 1991). That finding may
be based on the Board’s review of the record as a whole.
ACTIV Industries, 277 NLRB 356 (1985); Heath International,
196 NLRB 318 (1972).
It is well established that it is unlawful for an employer to re-
fuse to hire an applicant because of his union affiliation. Casey
Electric, 313 NLRB 774 (1994); Phelps Dodge Corp. v. NLRB,
313 U.S. 177 (1941). The Board may prove discrimination in
regard to hire as a violation of Section 8(a)(3) of the Act by
showing: (1) that the employer is covered by the Act; (2) that
the employer at the time of the purportedly illegal conduct was
hiring or had concrete plans to hire employees;6 (3) that anti-
union animus contributed to the decision not to consider, inter-
view, or hire an applicant; and (4) that the applicant was a bona
fide applicant. See NLRB v. Transportation Management
Corp., 462 U.S. 393, 401 (1983); Zachry, 886 F.2d at 70 (4th
Cir. 1989); J.E. Merit Constructors, 302 NLRB 301 (1991).
The essence of the violation is that the employer discriminated
with antiunion animus in regard to its decision whether to hire
an employee, for the purpose of discouraging union activity.
It is clear from the evidence that the Respondent was aware
that all the alleged discriminatees were union members, i.e., all
the union members’ applications clearly reflected that they
were affiliated with the Union and Burns admitted that the Re-
spondent had knowledge that the alleged discriminatees herein
were all union members. Moreover, there is no question that
the Respondent harbored antiunion animus. For example,
among other instances in the record, whenever the subject of
hiring union electricians was raised by Brown, Burns, and Pie-
trezykowski (Respondent’s management) stated that the Re-
spondent was a nonunion electrical contractor and that there
would never be a union at the facility; Burns admitted that he
has told employees that the Respondent would never sign a
collective-bargaining agreementand did not want to be affili-
ated with a union;7 in November 1992, in response to Binder
advising Burns that the union members had applied for em-
ployment with the Respondent, Burns stated “there would be no
chance that those gentlemen would be hired”; and the Respon-
dent’s attempt in the summer of 1993 to discourage union
member electricians from applying for jobs with the Respon-
dent in response to its advertisement in a Rochester newspaper

same action would have taken place even in the absence of the pro-
tected conduct. T & J Trucking Co., 316 NLRB 771 (1995); GSX
Corp. v. NLRB, 918 F.2d 1351 (8th Cir. 1990).
6 The evidence herein establishes that the Respondent had plans to
hire for some positions and certainly in retaining journeyman electri-
cian applications, and concrete plans to hire journeymen electricians for
the near or subsequent future.
7 Based on such a statement, the Respondents’ employees could rea-
sonably draw the inference that any attempts by them to seek represen-
tation by a union would not only be futile, but would be considered
negatively by Burns. Waco, Inc., 273 NLRB 746 (1984).
by using Binder’s personal P.O. box in Geneva, New York, to
disguise the identity of the Respondent as the potential em-
ployer.8
I therefore find and conclude that the General Counsel has
made a prima facie showing sufficient to support the inference
that protected conduct was a “motivating factor” in the Re-
spondent’s decision to not hire any of the union applicants.
Wright Line, supra. Under Wright Line, the burden now shifts
to the Respondent to show that the same action would have
taken place notwithstanding the union applicants’ union affilia-
tion.
The Respondent contends that it failed to hire any of the un-
ion applicants who filed employment applications in response
to its November 1992 advertisement in a newspaper because
the need for journeymen electricians had dissipated when its
partner in a joint venture, Associated Electric, met its commit-
ment to supply its share of such employees at a Syracuse pro-
ject and the Respondent therefore did not hire anyone at the
time. Even if this is true, the Respondent’s admitted animus
towards the Union and its commitment not to hire union jour-
neymen electricians would violate the Act since the essence of
the violation of Section 8(a)(3) of the Act is that the employer
discriminated with antianimus in regard to its decision whether
to hire an employee, for the purpose of discouraging union
activity.
In KRI Constructors, 290 NLRB 802, 812 (1988), the Board
stated:

[T]he Act is violated when an employer fails to consider an
application for employment for reasons proscribed by the Act
and the question of job availability is relevant only with re-
spect to the employer’s backpay obligation. [Quoting
Shawnee Industries, 140 NLRB 1451, 1452-1453 (1963).]

Therefore, “final determination of job availability and possi-
ble backpay liability will be properly left to compliance.”
Apex Ventilating Co., 186 NLRB 534 fn. 1 (1970).

The Act speaks unambiguously of discrimination “in regard to
hire” and case law has extended the Act’s coverage to appli-
cants for a position of employment, since that is the only way
discrimination in regard to hire can be neutralized. The above
case involved the construction industry as is true in the instant
case and the record establishes herein that applications for hire
were ordinarily retained for purposes of hire by the Respon-
dent, thus the decision not to hire for reasons proscribed by the
Act, even where the immediate need for the journeymen elec-
tricians was over, would still constitute a violation of Section
8(a)(3) and (1) of the Act unless the Respondent could establish
by a preponderance of the evidence that even if the antiunion
animus was a contributing factor in its treatment of the appli-
cants, they would not have been hired because of other legiti-
mate nondiscriminatory reasons. Wright Line, supra.
However, the Respondent also asserts that it did not hire the
union applicants, since it has a policy of hiring individuals who
are referred or recommended by one of its current or previous
8 Additionally, in the spring or summer of 1993, Burns held a meet-
ing with Binder, Brown, and the Respondent’s foremen electricians
wherein he instructed them to watch the other employees to make sure
they were not passing on information to “unions and outsiders,” and in
a letter to employees from Burns, the employees were admonished not
to speak to Union organizers about company information upon threat of
discipline if they did.
R. G. BURNS ELECTRIC 449
employees. The facts in this case clearly shows that the Re-
spondent’s real reason for not hiring the union applicants was
because of their union affiliation and its other reasons raised as
justification for its conduct appears pretextual, asserted in an
effort to conceal its true intent to unlawfully discriminate
against them.
The record evidence shows that the Respondent keeps jour-
neyman electrician applications on file for future employment.
Burns admitted as such, Robinson told Soles in July 1993 that
he did not have to fill out another employment application be-
cause the Respondent kept them on file for a number of years,
and Burns testified that he had hired Zugehoer on July 26,
1993, based upon an employment application he had submitted
on March 5, 1992. Accordingly, despite the Respondent’s as-
sertion that in November 1992 it only sought applications for a
single project in Syracuse, New York, the record shows that
applications are kept on file and are used for future hiring
needs.
Moreover, the Respondent hired 11 individuals to perform
electrical tasks and other duties on its construction sites. On
January 13, 1993, the Respondent hired Cochran, as a journey-
man electrician. Burns admitted that he did not know Cochran
beforehand nor whether he was referred to the Respondent by
anyone. Additionally, while Burns testified that Cochran was
hired for his pneumatic piping skills which does not involve
electrical tasks, Brown testified that Cochran was a foreman
performing journeymen electrician work on one of the Respon-
dent’s jobsites.
The Respondent also hired Zugehoer, whom Burns admitted
had not been referred or recommended by anyone, but had
rather referred himself. Yet Lumb had returned to the Respon-
dent’s office to inquire about employment subsequent to his
filing an employment application in November 1992, but was
not hired. Regarding Lumb, Burns alleged that he was inter-
ested in hiring Lumb because he had worked as a foreman for
Sullivan Electric in Phelps, New York. Burns instructed Binder
to call Davis at the Union to inquire about Lumb’s qualifica-
tions, notwithstanding that Lumb had not even listed Davis as a
reference on his application. While Binder testified that Davis
refused to give him any information, McDermott’s credited
testimony is that Davis told Binder that Lumb was qualified
and Binder said he would contact Lumb but never did. The
Respondent never attempted to contact any of the references
listed by Lumb on his application including Sullivan Electric.
Also applicant Robert Ryan, who had listed on his application
that he had worked as a foreman for Sullivan Electric and ap-
plicant Craig Stevens who also had listed Sullivan Electric as a
former employer, were never contacted by the Respondent for
employment.
Of additional significance is the fact that Burns interviewed
Daniels for a position. Daniels’ application for employment
did not disclose that he was a union member. Burns testified
that he was unaware of this. The firms Daniels listed for prior
employment showed that he worked for at least two nonunion
electrical contractors whom the Respondent was familiar with,
R. MacDonald Electric and Carroll & Keavney. Burns stated
that he would have hired Daniels but for their failure to reach
agreement on wages. In contrast, the Respondent having
admitted knowledge of the discriminatees union membership,
did not hire or even interview any of those union applicants.

The Respondent’s claim that some of the individuals hired
after November 1992 were not journeymen electricians, but
were hired as helpers is also suspect. Brown testified that LaP-
lant, Caruso, and Zugehoer performed work that a journeyman
electrician routinely performed, and Cochran, Benkovitz,
Spencer, and Kornbau were hired as journeyman electricians
after November 1992.
As indicated hereinbefore, it is unlawful for an employer to
refuse to hire an applicant because of his union affiliation.
Casey Electric, supra. In Fluor Daniel, Inc., 304 NLRB 970
(1993), the Board, in holding that an employer had discrimina-
torily and purposely failed either to consider the applications
of, or offer employment to, any of the discriminatees therein,
because of their union affiliation or sympathies, found it sig-
nificant that the applicants who were offered employment had
weak or nonexistent union affiliations and that many had
worked for nonunion employers previously.
The Board noted:

We find it reasonable to infer that it was not just coin-
cidental that all those applicants who displayed union af-
filiation were refused employment while those who were
hired did not display union affiliation. We conclude that
such blatant disparity is sufficient to support a prima facie
case of discrimination.

Also in Fluor Daniel, Inc., supra, the Board held that the em-
ployer therein discriminatorily refused to hire applicants who
demonstrated strong union affiliation, the employer’s stated
motives for rejecting the applicants were false and pretextual.
Lott’s Electric Co., 293 NLRB 297 (1989); Continental Radia-
tor Corp., 283 NLRB 234 (1987); San Angelo Packing Co., 163
NLRB 842 (1967).
In view of all of the circumstances present in this case, with
the reasons advanced by the Respondent to support its failure
and refusal to hire the union applicants being found to be pre-
textual and fraught with unlawful and discriminatory motiva-
tion in violation of the Act, I find that the Respondent has not
met its burdenunder Wright Line of rebutting the General
Counsel’s prima facie case. It is well settled that when a false
reason is advanced “one may infer that there is another reason
(an unlawful reason)” for the employer’s action. Shattuck
Denn Mining Corp. v. NLRB, supra. Therefore, I find and con-
clude that the Respondent violated Section 8(a)(3) and (1) of
the Act when it failed and refused to hire the Union applicants
herein because of their union affiliation.9
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section III,
above, found to constitute unfair labor practices occurring in
connection with the operations of the Respondent described in
section I, above, have a close, intimate, and substantial relation-
ship to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
9 Also, in AJS Electric, 310 NLRB 121 (1993), the Board held that
an employer’s failure and refusal to hire well-qualified union applicants
because of its belief that it would lead to the unionization of its em-
ployees was unlawful. The Board held similiarly in J.L. Phillips Enter-
prises, 310 NLRB 11 (1993); Tyger Construction Co., 296 NLRB 29
(1989).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 450
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effec-
tuate the policies of the Act.
Having found that the Respondent unlawfully discriminated
against the following job applicants: Sherman Soles, William
Snyder, Jack Francisco, Craig Andrews, Robert Ryan, Kenneth
Lumb, Richard MacGill, and Kevin Radka, the Respondent
shall be ordered to offer them employment to the same or sub-
stantially equivalent positions at other projects, and to make
them whole for any loss of earnings and other benefits they
may have suffered as a result of the Respondent’s unlawful
discrimination against them, from the date they applied for
employment, to the date that the Respondent makes them a
valid offer of employment. Such amounts shall be computed in
the manner prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), and shall be reduced by any net interim earnings, with
interest computed in accordance with New Horizons for the
Retarded, 283 NLRB 1173 (1987). The recommended Order
should be subject to resolution at the compliance proceeding of
the issues outlined in Dean General Contractors, Inc., 285
NLRB 573 (1987). Casey Electric, 313 NLRB 774 (1994).
Since the Respondent engaged in hiring discrimination, a make-
whole remedy is appropriate, subject to the Dean General Con-
tractors’ conditions. Sunland Construction Co., 309 NLRB
1224 (1992); Fluor Daniel, Inc., supra. Consistent with the
Dean General Contractors’ decision, the Respondent will have
the opportunity in compliance to show that, under its customary
procedures, the eight applicant’s positions would not have been
transferred to another project, and that no backpay and hiring
obligation exists beyond the time when any project as to which
discrimination occurred was completed. Casey Electric, 313
NLRB 774, 775–776 (1994). Because of the nature of the un-
fair labor practices found herein, and in order to make effective
the interdependent guarantees of Section 7 of the Act, I recom-
mend that the Respondent be ordered to refrain from in any like
or related manner abridging any of the rights guaranteed em-
ployees by Section 7 of the Act. The Respondent should also
be required to post the customary notice.
CONCLUSIONS OF LAW
1. The Respondent, R. G. Burns Electric, Inc., is now and
has been at all times material, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union, International Brotherhood of Electrical
Workers, Local 840, is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) an (3) of the Act
by refusing to consider for employment and/or refusing to em-
ploy, because of their union affiliation and activities on behalf
of the Union, Sherman Soles, William Snyder, Jack Francisco,
Craig Andrews, Robert Ryan, Kenneth Lumb, Richard Mac-
Gill, and Kevin Radka.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]