Ambrose Electric

National Labor Relations Board - Board Decisions

Nov 22, 1999

330 N.L.R.B. 78 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 78
TNT Technologies Ltd, d/b/a Ambrose Electric and
Local 724, International Brotherhood of Electri-
cal Workers, AFL–CIO. Case 3–CA–20165–1
November 22, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On July 18, 1997, Administrative Law Judge Michael
A. Marcionese issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent 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 record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.
1. The complaint alleges that the Respondent violated
Section 8(a)(1) of the Act by attempting to exclude union
representatives from jobsites to which the Respondent
lacked the right to control access. The judge recom-
mended dismissal of this allegation. The General Coun-
sel has excepted, and we find merit in the exception.
On April 15, 1996, Union Organizer William Paley
saw one of the Respondent’s employees working on elec-
tric light poles in a church parking lot. Thinking that the
employee was employed by one of the Union’s signatory
contractors, Paley went over to talk to him. On learning
that the employee actually was employed by the Respon-
dent, a nonunion employer, Paley talked to him about the
benefits of union representation. Paley also helped him
with a problem he was having with a man-lift.
Peter Will, president of the Respondent, testified that
he learned of the April 15 episode the same day from the
employee involved. Will asked the employee if Paley
had touched the Respondent’s equipment, and the em-
ployee said that he had. The next day, in a telephone
conversation, Will told Paley that he would not allow
Paley to touch any of the Respondent’s equipment or to
be near the jobsite where it would create any kind of
safety concern. Will explained to Paley that he under-
stood that Paley had the right to talk to his employees
and that he was not blocking that right in any way. His
concerns, rather, were about his employees getting their
work done and being safe on the jobsite.2

1 The General Counsel has implicitly excepted to some of the
judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the
clear preponderance 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.
The complete citation to Belfance Electric, cited in the judge’s deci-
sion, is 319 NLRB 945 (1995).
By letter dated April 25, 1996, the Respondent’s attor-
ney informed Paley, in pertinent part, that:

It has been brought to my attention that you and other
organizers for IBEW Local 724 have been present at
several Ambrose Electric job sites in the Capital Dis-
trict during the past several months pursuing your ef-
forts to organize the Ambrose Electric work force.
Please be advised that the work force of Ambrose Elec-
tric is expected to devote their full energy and attention
to performance of their work during working hours. In
addition, it is my understanding that you have at-
tempted to participate in the work by “assisting” an
employee with a lift device on Hackett Boulevard
within the past two weeks. As you must be aware,
there are numerous concerns, including liability, which
are implicated by such conduct. In short, I must insist
that you limit your efforts to times other than working
hours and locations other than the job sites where
Ambrose Electric is performing contracts.
Should there be any questions in this regard, you
may feel free to call upon me. Otherwise your com-
pliance will be expected.

Paley did not communicate further with the Respondent or
the attorney, and he conceded that he had been able to con-
tact other employees of the Respondent at other locations.
The General Counsel contends that the April 25 letter
violated Section 8(a)(1). The judge disagreed. He noted
that when an employer attempts to prevent nonemployee
union representatives from exercising Section 7 rights on
private property, the Board first requires the employer to
demonstrate that it has a property interest that entitles it
to exclude individuals from the property.3 The judge
noted that the Respondent did not contend that it owned
the church property on which Paley had communicated
with the employee; rather, the Respondent was on the
property of another to do work it had contracted to do.
The judge further found no indication that the church, by
contracting with the Respondent, had intended to invite
third parties onto the property. He also found that, in any
event, the Respondent had at least a property right with
regard to the equipment the employee was using on the
jobsite and an interest in insuring that the employee was,
in fact, working. Finding, on those facts, that the Re-
spondent had met the threshold requirement of establish-
2 The foregoing is based on Will’s credited testimony.
3 Food for Less, 318 NLRB 646, 649 (1995), modified on other
grounds 95 F.3d 733 (8th Cir. 1996); Bristol Farms, 311 NLRB 437
(1993). Normally, an employer violates Sec. 8(a)(1) if it attempts to
exclude union representatives from property it does not own and to
which it does not control access, as long as the union representatives
are engaged in activity protected by Sec. 7. See, e.g., Bristol Farms,
311 NLRB at 438. The Union’s organizing activities were clearly pro-
tected by Sec. 7, and the Respondent does not contend otherwise.
330 NLRB No. 23
AMBROSE ELECTRIC 79
ing an exclusionary property right, the judge found that
the Respondent had not violated Section 8(a)(1) because
Paley admitted that he had been able to contact the Re-
spondent’s employees elsewhere.4
The judge went on to find that, assuming that the Re-
spondent lacked an exclusionary property right, it still
had not acted unlawfully. He found that the April 25
letter, read in the context of Will’s earlier telephone con-
versation with Paley, did not deny the Union access to
the Respondent’s employees, but merely limited access
to times and places at which the Respondent’s legitimate
concerns over safety, liability, and job performance
would not be compromised. He found that the limita-
tions imposed on Paley were not discriminatorily moti-
vated and were consistent with precedent allowing em-
ployers to limit solicitation to times at which employees
are not working.
Contrary to the judge, we agree with the General
Counsel that the Respondent’s letter violated Section
8(a)(1). To begin with, we find that the Respondent
failed to show that it had the right to exclude the Union
from any of its jobsites. In this regard, we do not agree
with the judge’s finding that the Respondent’s property
right with respect to its equipment and its interest in en-
suring that its employees were actually working consti-
tute such a showing.5 To be sure, the Respondent has a
legitimate interest in workplace safety and in its employ-
ees’ diligently working when they are supposed to be
working. It therefore is entitled to insist that third par-
ties, including union representatives, stay off of its
equipment and not interfere with its employees while
they are working, whether or not the Respondent has an
interest that would enable it to exclude others from the
jobsite altogether.6 Had the Respondent so limited its
restrictions, its letter would have been lawful.
But the letter went further than that. Instead of in-
structing the Union not to approach its employees while
they were actually working, it insisted that approaches be
made during times “other than working hours”—an ex-
pression that encompasses nonworking periods such as
lunch and coffee breaks, as well as actual working time,
and is presumptively invalid.7 The Respondent’s spatial
restriction on access is equally overbroad. Its letter in-
structs the Union to approach its employees only at “lo-
cations other than the job sites where Ambrose Electric is
performing contracts.” In the absence of further explana-
tion, this vague language could reasonably be construed
to mean that the Union was excluded from any property

4 See Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992).
5 Cf. Food for Less, supra.
6 See, e.g., Great American, 322 NLRB 17, 21 (1996) (employer
lawfully excluded union handbillers from property not owned by the
employer, where the handbilling interfered with vehicular traffic, caus-
ing potentially dangerous traffic backups and interfering with custom-
ers’ access to the employer’s premises).
7 Our Way, Inc., 268 NLRB 394 (1983).
on which the Respondent was working, regardless of
proximity to the work being done or the equipment being
used. With respect to the church job, the Union could
reasonably interpret the Respondent’s letter as meaning
that its representatives were barred, not simply from the
immediate vicinity of the work in progress, but from be-
ing anywhere on the church property.8 Thus, if a lunch
wagon parked in the church parking lot, well away from
the Respondent’s equipment, and the Respondent’s em-
ployees patronized the wagon on their lunch hour, the
Union’s representatives reasonably could think that they
were precluded from speaking to the employees even
around the lunch wagon during their lunchbreak.
The judge was correct in analyzing the contents of the
letter in light of Will’s earlier statements to Paley over
the telephone. Even a facially overbroad no-solicitation
rule is only presumptively invalid; an employer may
show by extrinsic evidence that such a rule was commu-
nicated in such a way as to convey an intent to permit
solicitation during periods when employees are not ac-
tively at work.9 We cannot find, however, that Will’s
statements to Paley communicated any such intent. Will
told Paley specifically not to touch the equipment, and he
talked in general terms about his concern for safety and
for employees’ getting the work done. But he said noth-
ing about allowing the Union to approach employees
during their nonworking time, and he told Paley that he
was not allowed near the jobsite where it would create a
safety concern. Moreover, Will’s oral statements were
followed by the letter, which came from the Respon-
dent’s attorney. We find that a person, on receiving a
letter of that sort, would reasonably take the letter, and
not the earlier oral statements, to be the definitive version
of the Respondent’s position. Thus, even if we were to
find that Will’s statements would have been permissible
had the letter not been sent, we cannot conclude that they
mitigated the effect of the unlawful statements in the
letter.
In sum, having failed to establish an exclusionary
property interest with regard to its jobsites, the Respon-
dent was entitled to insist only that the Union’s represen-
tatives not touch or interfere with its equipment, and not
approach its employees while they were engaged in their
work duties. By going further than that, and insisting
that the union representatives stay off the jobsites en-
tirely and away from the employees even during their
8 See Laidlaw Transit, Inc., 315 NLRB 79, 82 (1994), in which the
Board found that a rule prohibiting solicitation and distribution on
“company property” was presumptively invalid because the expression
could be construed as including breakrooms or cafeterias where em-
ployees did not perform work activities. Here, the Respondent’s rule
was, a fortiori, overly broad in that it applied to entire jobsites that were
not even the Respondent’s property.
9 Our Way, Inc., 268 NLRB at 395 fn. 6.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 80
nonworking time, the Respondent violated Section
8(a)(1).10
2. The complaint also alleges that the Respondent vio-
lated Section 8(a)(3) by failing to hire, or to consider for
hire, five Union members who applied for jobs with the
Respondent. The judge found that the Respondent’s
failure to hire or consider any of the five applicants was
not caused in any way by their union affiliation. We
agree with the judge, despite our finding that the Re-
spondent violated Section 8(a)(1) as discussed above.
Although the Respondent’s letter contained an overly
broad denial of access to its employees, neither the letter
nor Will’s earlier statements to Paley indicate that ani-
mus against the Union was a motivating factor in the
Respondent’s hiring decisions. Indeed, Will assured
Paley that he understood that Paley had the right to talk
to the Respondent’s employees and that he was not at-
tempting to block that right. The Respondent’s only
concerns—over safety, liability, and work perform-
ance—were legitimate and clearly communicated. We
therefore find, in agreement with the judge, that the Gen-
eral Counsel failed to prove that animus against the ap-
plicants’ union affiliation was a motivating factor in the
Respondent’s failure to hire or to consider them, and we
affirm his recommended dismissal of the 8(a)(3) allega-
tion.11
AMENDED CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.

10 We recognize that the complaint alleges only an unlawful attempt
to deny the Union access to property, not specifically to the Respon-
dent’s employees. But of course the problem was that Paley had gone
on the church property to talk to one of the Respondent’s employees.
The issue of access to property is thus inextricably bound up with the
issue of access to employees, as the Respondent’s statements to the
Union make clear. Indeed, access to the jobsites would be useless
unless the Union could contact the employees during nonworking time.
Moreover, both matters were fully litigated at the hearing. We there-
fore find that the Respondent’s temporal restriction, as well as the
spatial one, was unlawful.
11 Because we agree with the judge that antiunion animus was not a
factor in the Respondent’s employment decisions, we find it unneces-
sary to decide whether he correctly found that the Respondent lacked
knowledge of applicant Edward Ruede’s union affiliation. However,
we disavow the judge’s discussion to the extent that it suggests that
employer knowledge of an applicant’s union affiliation cannot be in-
ferred from an employment application that shows previous employ-
ment with union contractors. BE & K Construction Co., 321 NLRB 561
(1996), does not stand for that proposition.
Although we agree with the judge that, in the circumstances pre-
sented here, the Respondent’s reliance on screening criteria such as
applicants’ previous wage rates and duration of employment is not
evidence of antiunion animus, there may be other circumstances in
which the Board could draw a different conclusion. See, e.g., Norman
King Electric, 324 NLRB 1077 (1997).
3. By attempting to deny union representatives access
to its employees on jobsites to which it lacked the right
to control access, during nonworking time and on por-
tions of such jobsites where the representatives would
not pose a threat to safety or interfere with the Respon-
dent’s equipment or with its employees in the perform-
ance of their job duties, the Respondent violated Section
8(a)(1) of the Act.
4. The Respondent has not violated the Act in any
other manner encompassed by the complaint.
REMEDY
Having found that the Respondent engaged in unfair
labor practices as described above, we shall order it to
cease and desist and to take certain affirmative action
necessary to effectuate the policies of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, TNT Technologies Ltd, d/b/a Ambrose
Electric, Latham, New York, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Attempting to deny union representatives access to
its employees on jobsites to which it lacked the right to
control access, during nonworking time and on portions
of such jobsites where the representatives would not pose
a threat to safety or interfere with the Respondent’s
equipment or with its employees in the performance of
their job duties.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facility at Latham, New York, copies of the attached
notice marked “Appendix.”12 Copies of the notice, on
forms provided by the Regional Director for Region 3,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since April 25, 1996.
12 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.”
AMBROSE ELECTRIC 81
(b) 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.

WE WILL NOT attempt to deny union representatives ac-
cess to our employees on jobsites to which we lack the
right to control access, during nonworking time and on
portions of such jobsites where the representatives would
not pose a threat to safety or interfere with our equipment
or with our employees in the performance of their job
duties.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.

TNT TECHNOLOGIES LTD, D/B/A AMBROSE
ELECTRIC

Alfred M. Norek, Esq., for the General Counsel.
Robert L. Adams, Esq., for the Respondent.
Timothy M. Paley, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. This
case was tried in Albany, New York, on May 12, 1997. The
charge was filed July 8, 1996, and the complaint was issued
November 8, 1996.
1
The complaint alleges, and Respondent denies, that Respon-
dent violated Section 8(a)(1) of the Act, on or about April 25,
by seeking to exclude representatives of the Charging Party
Union from jobsites on which Respondent lacked the right to
control access; and Section 8(a)(1) and (3) of the Act by refus-
ing to hire and/or consider for hire five named employee-
applicants on various dates in March .
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, with its principal office and
place of business in Latham, New York, is an electrical con-
tractor in the building and construction industry. Respondent
annually provides services valued in excess of $50,000 to other

1 All dates are in 1996 unless otherwise indicated.
enterprises, such as Golub Corporation and Freihofer Baking
Company, which are directly engaged in interstate commerce.
The Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. Based on the parties’ stipulation at the hear-
ing, I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Denial of Access
On April 15, William Paley, the Union’s organizer, came
across one of Respondent’s employees working on electric light
poles in a church parking lot on Hackett Boulevard.2 Paley
testified that he stopped to talk to the employee because he
thought it was one of the Union’s signatory contractors. Upon
learning that he was an employee of Respondent, Paley spoke
to him about the benefits of union representation. Paley also
helped the employee to stabilize a man-lift which was stuck in
the mud. When Paley returned to his office, there was a mes-
sage for him that Respondent’s president, Peter Will, had called
on the afternoon of April 15 and wanted Paley to call him back.
When Paley returned Will’s call, on April 16, Will told Paley
that he had to stay away from Respondent’s employees. Paley
testified further that Will told him that he was thinking of be-
coming signatory with the Union but that Paley had “f—ed the
whole deal up.” Thereafter, Paley received a letter dated April
25 from Respondent’s attorney advising Paley that it had been
brought to his attention that Paley and other organizers for the
Union had been present on several of Respondent’s jobsites,
seeking to organize Respondent’s employees and that Paley had
attempted to participate in the work of Respondent’s employees
by “assisting” an employee with a lift device on Hackett
Boulevard. Respondent’s attorney then stated in the letter:

As you must be aware, there are numerous concerns, includ-
ing liability, which are implicated by such conduct. In short, I
must insist that you limit your efforts to times other than
working hours and locations other than the job sites where
Ambrose Electric is performing contracts.

Although the letter invited Paley to contact Respondent’s attor-
ney if he had any questions, Paley had no further contact with
Respondent or its representatives. Paley conceded on cross-
examination that he has had access to Respondent’s employees,
in public places during nonwork times, since receiving the
April 25 letter.
Will testified that he learned of the incident on Hackett
Boulevard from the employee involved when the employee
returned to Respondent’s shop. According to Will, he asked
the employee if Paley touched the equipment because of con-
cerns over insurance and liability. When the employee said that
Paley did, Will called Paley immediately. Paley was not in but
returned the call the next day. Will’s version of this conversa-
tion is that he told Paley that he was not allowed to touch any
of Respondent’s equipment or be near a jobsite where it would
create a safety concern. Will further testified that he told Paley
he understood that Paley had a right to talk to Respondent’s
employees and that he did not want to block Paley in any way,
but that Will was concerned about his employees getting their
2 Peter G. Will, Respondent’s president, testified that Respondent
had been hired by the church to change or fix a light in the parking lot.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 82
work done and being safe on the job and about protecting the
site. Will then had his attorney send the April 25 letter to
Paley.
I credit Will’s testimony regarding this conversation. In
light of the undisputed evidence that Respondent had previ-
ously declined voluntary recognition, I find it incredible that
Will would have told Paley that he was considering becoming
signatory. I find it more likely that Will was concerned about
Paley’s having touched his equipment and talked to his em-
ployee while the employee was working and that he expressed
those concerns to Paley. The fact that these are the same con-
cerns expressed in the April 25 letter from Respondent’s attor-
ney further supports the credibility of Will’s testimony.
The complaint alleges that Respondent denied the Union ac-
cess to jobsites over which Respondent lacked the right to con-
trol access, in violation of Section 8(a)(1) of the Act. This
allegation is based solely on the April 25 letter from Respon-
dent’s counsel to Paley. The General Counsel argues on brief
that “absent a property right, a general contractor may not deny
access to a job site by union officials seeking to communicate
with its employees.” This argument overstates the law regard-
ing the rights of nonemployee union organizers to communicate
with employees at work while they are working.
The cases relied on by the General Counsel to establish a
violation here are inapposite. In Payless Drug Stores, 311
NLRB 678 (1993), the Board relied on California law to find
that the owners of a shopping mall have no right to deny access
to individuals seeking to handbill customers of the mall. In
CDK Contracting Co., 308 NLRB 1117 (1992); and C. E.
Wylie Construction Co., 295 NLRB 1050 (1989), the general
contractor at a construction site was found to have no right to
deny union representatives access to the site to communicate
with employees of subcontractors whom the union represented.
The subcontractors in both cases had collective-bargaining
agreements with the union granting access to unit employees
and job sites to administer the agreement and police it. The
Board reasoned that by inviting the subcontractors onto the site,
the general contractor subjected whatever property rights it had
to the terms of the subcontractors’ agreements with the unions.
None of these factors are present here. There is no evidence in
the record regarding New York law defining the property rights
of a contractor hired to do work on another’s property. There is
no contention that the Union was the designated collective-
bargaining representative of Respondent’s employees, or had
any agreements with Respondent or the owner of the parking
lot granting it rights of access beyond those enjoyed by the
general public.
The lead case defining the rights of nonemployee organizers
to access to an Employer’s unrepresented employees is still
NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956). In that
case, the Supreme Court distinguished between the rights of
employees to engage in union activity on an employer’s prem-
ises and the rights of nonemployees, holding that an employer
cannot be compelled to allow distribution of union literature by
nonemployees on his property except in those circumstances
where the employees are beyond the reach of reasonable efforts
to communicate with them. More recently, in Lechmere, Inc. v.
NLRB, 502 U.S. 527 (1992), the Court reaffirmed its interpreta-
tion of the Act as drawing a substantive distinction between the
union activities of employees and those of nonemployee organ-
izers, and upheld an employer’s right to exclude nonemployee
organizers except in certain limited circumstances.3 The Board,
in applying Babcock & Wilcox and Lechmere, has required the
Employer to make a threshold showing that it had a property
interest which would entitle it to exclude individuals even ab-
sent Section 7 activity. Bristol Farms, 311 NLRB 437 (1993).
The Board generally looks to state law to determine the nature
and extent of the Employer’s property rights.
In this case, there is no dispute that Respondent did not own
the church parking lot where Paley communicated with Re-
spondent’s employee and assisted him in freeing the stuck
equipment. Rather, Respondent was on the property of another
for the limited purpose of carrying out the work it contracted to
do for the owner. There is no indication that the property
owner, by hiring Respondent, intended to invite third parties
onto its property. Moreover, Respondent had at least a property
right with respect to the equipment which was located on the
jobsite and an interest in ensuring that employees it assigned to
perform work at the site were in fact working.4 I find that these
interests meet the threshold showing required by Bristol Farms
as a predicate to triggering the Lechmere analysis. Applying the
principles of Lechmere to the facts here, there is no violation
because Paley admitted that he has had access to Respondent’s
employees since receiving the April 25 letter. Thus this is not
one of those rare circumstances where inaccessibility makes
ineffective reasonable attempts by the Union to communicate
with Respondent’s employees. Lechmere, supra at 537.
Moreover, even were I to find that Lechmere did not apply to
this case, I would still not find a violation of Section 8(a)(1) in
the April 25 letter from Respondent’s attorney. When read in
light of Will’s credited version of the April 16 telephone con-
versation, the letter does not deny access, but merely limits
access as to time and place. Will specifically acknowledged in
his conversation with Paley that the Union had a right to com-
municate with Respondent’s employees and assured Paley that
he did not want to interfere with that right. Rather, he ex-
pressed his legitimate concerns regarding safety and liability
issues associated with union representatives talking to employ-
ees on worksites while they were working and assisting Re-
spondent’s employees in performance of work tasks. The limi-
tations imposed on Paley by Respondent are consistent with
precedent allowing an Employer to limit union solicitation to
times when employees are not engaged in work activities. As
there is no allegation or evidence that Respondent was dis-
criminatorily motivated in promulgating these limitations, Re-
spondent did not violate the Act by its attorney’s April 25 let-
ter.

3 The rights of nonemployee union organizers to access to an em-
ployer’s premises and employees is not to be confused with the rights
of such organizers to be free from discrimination when they become
applicants for employment. See NLRB v. Town & Country Electric,
516 U.S. 85 (1995).
4 It is established Board law that an employer may limit the union
solicitation rights of employees to those periods during the workday
when the employees are properly not engaged in performing work
tasks, provided it does not discriminate between protected activities and
other forms of solicitation. See, e.g., Beth Israel Hospital, 437 U.S. 483
(1978); Our Way, Inc., 268 NLRB 394 (1983). Certainly, non-
employee union organizers have no greater rights to engage in such
solicitation.
AMBROSE ELECTRIC 83
B. Refusal to Hire and/or Consider for Hire
Paley, the Union’s organizer, testified that he attempted to
organize Respondent’s employees in 1995, after being ap-
proached by one of Respondent’s employees. He wrote to Re-
spondent’s president, Will, on May 24, 1995, requesting a
meeting to discuss recognition. Such a meeting was held on
June 1, 1995, at the Union’s office. Paley and representatives
of two adjacent locals of the same International Union advised
Will that a majority of his employees were interested in union
representation and discussed the advantages of union recogni-
tion to the Company. Will was noncommittal at this meeting,
requesting additional information from the unions which was
subsequently submitted. Another meeting was held several
weeks later, again without any agreement by Will to recognize
the Union. Paley did not testify as to any further contact with
Respondent, despite his testimony that Will told Paley at the
last meeting that he would get back in touch with the unions.5
Will admitted meeting with Paley and other union representa-
tives in response to Paley’s May 24, 1995 letter and generally
corroborated Paley regarding the substance of the meetings.
However, Will testified further that he contacted Paley in the
early fall of 1995 to inform Paley that Respondent chose not to
go union. According to Will, Paley replied that Respondent
might as well go union because Paley was either going to make
Will a union signatory or find a way to get rid of him. Paley
did not specifically deny this conversation, but he generally
denied ever threatening to get Will. I credit Will’s testimony
over Paley’s general denial. I find Paley’s omission of any
testimony regarding the ultimate resolution of his 1995 organiz-
ing efforts suspect and Will’s account of the conversation in
early fall of 1995 generally more reliable.
Paley further testified that, on March 12 or 13, he saw a job
order from Respondent at the New York State Job Service of-
fice, soliciting applications for the position of electrician at the
rate of $8/hour, up to $12/hour, depending on experience, with
benefits. The job was described as full-time and permanent. No
specific educational requirement was listed. The job order did
indicate that 12 months’ experience was required. The job
summary indicated that Respondent sought someone to plan,
layout, install and repair wiring, electrical fixtures, apparatus
and control equipment; that because Respondent operated a 24-
hour service, the job would include on-call work after hours
and on weekends. The prospective employees were also re-
quired to have their own tools. The job order directed inter-
ested applicants to contact Peter Will. Paley testified that, as
unemployed members came into the Union’s office, he asked
them if they would be interested in making application to Re-
spondent because Respondent was hiring. Several members in
fact filed applications, as will be discussed infra.
Paley testified that he himself went to Respondent’s office
and submitted an application with a copy of his resume. The
application is dated March 15. On the application, Paley stated
that he had an Associate’s degree in electrical construction and
maintenance from Hudson Valley Community College and
finished second in his class in the Local Union’s apprenticeship
program. He identified himself as a union organizer, with
“great knowledge of the needs of my fellow electricians and
employers.” His resume lists his current employment as the

5 Despite its claim of majority support among Respondent’s employ-
ees, the Union apparently did not pursue its organizing drive as there is
no evidence a petition was ever filed by the Union with the NLRB.
Union’s organizer and past employment as an instructor in the
Union’s apprentice training program and as an electrician with
union contractors, including several specializing in fire alarm
and security system installation and maintenance. Paley testi-
fied that he was also required to take a brief written examina-
tion. He got the application and test from the secretary in the
office, later identified as Respondent’s office manager, Diane
Logan, and he returned the completed documents to her. He did
not have an interview nor talk to Will at that time.
According to Paley, he telephoned Respondent on or about
March 29 and spoke to Will about the status of his application.
Paley testified that Will asked him if he was still with the Un-
ion and Paley replied that he was. Will then said he didn’t have
any work for Paley inside, but if something came up, “we could
talk.” Paley responded that he wasn’t applying for an inside
position, that he was applying for the electrician’s job Will was
advertising for. Will told Paley he was overqualified for that
position, to which Paley replied: “I’m an electrician, and you’re
looking for help, and I would be interested in taking that posi-
tion.” Paley did not testify to any further response from Will,
but it is undisputed that he was not hired by Respondent. Will
testified that he telephoned Paley within days of receiving his
application. According to Will, he asked Paley why Paley was
applying to work for Respondent in light of his current position
with the Union that did not require Paley to work in the field.
Paley replied that he was interested in working in the field and
that he would work for Respondent for any amount of money.
These two accounts of the conversation are generally consis-
tent, despite some variation in the parties’ recollections. It is
significant that, based on Paley’s own recollection of the con-
versation, Will did not refuse to consider Paley, despite his
apparent suspicions regarding Paley’s intentions in applying for
a field position. On the contrary, Will told Paley, “we could
talk” if something came up which matched Paley’s qualifica-
tions.
As noted above, Paley advised unemployed members of the
Union about the job order and invited them to apply to Respon-
dent. Six members in fact applied, four of whom are alleged
discriminatees who testified at the hearing.6 All four testified
that Paley informed them that Respondent was hiring when
each had visited the union hall in search of work. They gener-
ally denied being given any specific instructions by Paley re-
garding how to fill out their applications. Each testified he was
out of work at the time he applied and would have accepted a
job at $8/hour if offered by Respondent. All four witnesses
testified to similar experiences when they went to Respondent’s
offices to apply for work on various dates in March. Three of
the four were given applications and a brief test to fill out by
Logan. The fourth, Edward Ruede, received his forms from a
gentleman identified as Brian Painter whose position with Re-
spondent was not disclosed. They completed these forms in a
small room off the lobby and returned the applications to Logan
or Painter, as the case may be. None were interviewed or had
any discussion with a representative of Respondent about their
qualifications, the nature of the job or the compensation being
offered by Respondent and none was contacted by Respondent
thereafter. Only one of the four, Ruede, followed up his appli-
cation with a phone call. Ruede testified that he called Re-
6 Paley identified two other members who applied, Brian Brown and
Tom Powers. Neither is alleged as a discriminatee and the General
Counsel specifically disavowed any claim on behalf of these applicants.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 84
spondent’s office on two occasions and inquired of Logan as to
the status of his application. The first call was approximately a
week after he applied at which time he was told no one had
been hired yet and that they would get back to him. His last
call was about 1-1/2 months later when he was given a similar
response and was also informed that his March application was
still good. In both instances, the information given to Ruede
was correct, as the record shows that no one was hired until late
May.
Frank Muia and David Haggerty were 3d-year apprentices
who had been out of work approximately 1 month when they
applied. Each had earned $10.50/hr. at his last job with the
Union. They went to Respondent’s office together on March
13. Both were wearing IBEW hats at the time. The only indi-
cation of union membership or activity on their applications is
their identical reference to “Local 724 3d-year apprentice” in
response to a question regarding “specialized training, appren-
ticeship, skills, and extra-curricular activities.” Although both
testified that they had experience performing the kind of work
Respondent did, this is not clear from their applications. Muia
and Haggerty took their tests together in the room off the lobby.
They specifically denied discussing their answers or copying
from one another. Logan testified, as a witness for Respondent,
that she heard Muia and Haggerty talking while they were fill-
ing out the forms. She did not recall what they were saying.
She also testified that, while Muia and Haggerty were taking
the test, she had to go into the room to put a folder away and
observed that one of the test was pointed facing the back wall,
not in a position one would expect if someone were writing on
it. She did not testify that she observed them copying from one
another or otherwise cheating. Logan testified she informed
Will of her observations later that day.
Will testified that he reviewed Muia’s and Haggerty’s appli-
cations and tests shortly after Logan informed him of her suspi-
cions. By comparing their answers to various questions, he
reached the conclusion that they had cheated on the test. At the
hearing, Will cited specific examples where the answers on
both tests are not only identical, but are not the answer one
would typically expect to find. The undersigned reviewed tests
of other applicants which are in evidence and these generally
corroborate Will’s testimony that the answers which are identi-
cal on Muia’s and Haggerty’s tests are not the answers rou-
tinely given to those questions. This lends credibility to the
testimony of Will and Logan that Muia and Haggerty, at the
very least, consulted with one another and helped each other on
the test. Will testified that he did not give any further consid-
eration to hiring Muia and Haggerty because of his belief that
they had cheated and therefore could not be trusted to represent
Respondent in dealings with its customers.7 I find this explana-
tion credible.
Ruede is a journeyman electrician with 10 years’ experience.
When he applied on March 8, he had been out of work for ap-
proximately 4 months and his unemployment benefits were
running out. There is no specific reference to the Union or
union membership anywhere on his application, although he
reports “4 years training JATC” in the space for specialized

7 On cross-examination, Will acknowledged that he did not volun-
teer this reason when he gave an affidavit as part of the investigation of
the charge. I find that this oversight does not undermine the credibility
of Will’s testimony at the hearing because his testimony is corroborated
by an objective comparison of Muia’s and Haggerty’s tests.
skill, etc. He was not wearing a union hat or other identifying
apparel which would have revealed his union membership or
sympathies. The last two jobs he listed under experience were
short-term jobs in Pittsburgh and Buffalo, paying $23.70 and
$21.90/hour respectively. Unlike Muia and Haggerty, Ruede
did specifically identify the kind of work he did at each job
listed and further stated on his application: “have worked resi-
dential, commercial and industrial for ten years. [h]ave seen
and done about everything.” Although the General Counsel
argues that Ruede’s union affiliation would be apparent from
the names of employers he’d worked for, I find insufficient
evidence that Respondent had knowledge of Ruede’s union
membership, activities or sympathies based on the application
alone. See BE & K Construction Co., 321 NLRB 561 fn. 2
(1996).8
Terrance Ray is a journeyman electrician with 14 years’ ex-
perience. When he applied on March 18, he had been out of
work for about 2 months and his unemployment benefits also
were running out. In the section of the application for “addi-
tional information you feel may be helpful to us in considering
your application,” Ray wrote: “union electrician out of work,
no unemployment will work for or at any rate, or time.” Al-
though Ray testified that he had experience in residential and
service work, and had long-term employment in his past, his
application does not contain this information.
Will testified that he placed the job order, as well as a news-
paper advertisement, in early March because he anticipated a
job in Saratoga which was expected to start in the spring. Ac-
cording to Will, he had been told he was the low bidder and
assured by the contractor that he had the job. It was his belief
that he would need six to eight electricians with construction
experience and helpers to staff this job. Although the record
shows that he received approximately 25 applications and re-
sumes in response to the March solicitation, he did not hire
anyone at that time because the Saratoga job never material-
ized.
Will conceded on cross-examination that another purpose in
advertising for electricians in March was to build up a pool of
applicants and to see what was available in the Capital District
labor market in the event he had openings in the future. Such
openings in fact occurred in May, when Respondent hired three
individuals to fill two positions as service technician.9 Will
described this position as someone who would respond to calls
from residential and commercial customers for service. The
employee would be given three or four calls to make in a day
and was responsible for assessing the situation, estimating the
job, negotiating a price with the customer and collecting pay-
ment. The work required no more than a basic knowledge of
electrical work. According to Will, service work was the ma-
jority of its business in 1996.
Will testified that, although the need for a service technician
was different than the need which led him to solicit the applica-
tions received in March, he reviewed those applications in or-
der to fill these positions rather than place a new ad or job or-
der. He was looking for someone with a broad range of knowl-
8 Because Ruede is named in the charge filed by the Union on July 8
and served on Respondent the same day, Respondent clearly had
knowledge by that date.
9 The first individual hired for this position, Christensen, was termi-
nated after about 1 week because, according to Will, he had overstated
his qualifications.
AMBROSE ELECTRIC 85
edge and experience who could do service work, as well as
construction, and could work alone. He also sought someone
who could interact with customers and be trusted to negotiate
and collect payment on behalf of Respondent. Will testified
that when he reviewed the applications, he generally looked at
the experience section first, but considered the overall picture
of the applicant, including education, special training, duration
of employment with past employers, and current wage rate.
With respect to the latter factor, Will testified that, based on
experience, an individual would not be happy or last in a job if
they were required to accept much less than they were used to
earning.
The first two service technician’s hired were selected from
the March applications. The first, Michael Christensen, was
hired because he reported experience working as an appliance
repairman and troubleshooter for retail appliance stores. Will
testified that this was similar to the service work that Respon-
dent did. As noted above, Christensen was terminated in about
a week when it became apparent he had overstated his qualifi-
cations. According to Will, Christensen was not capable of
performing independently in the field. Will testified that he
hired Geoffrey Goyette to replace Christensen based on
Goyette’s education and training, his experience primarily in
residential work and the continuity of employment with his two
previous employers. Will conceded that Goyette had been
earning more than Respondent was offering, but also noted that
he was seeking employment after having to relocate to the Al-
bany area because of his wife’s job transfer. It is noted that
Goyette specifically identified his last employer as “non-union”
on his application. The individual hired for the other service
technician position was not selected from the pool of March
applications. Jerry Cecchini was a walk-in who filed his appli-
cation on May 28 and was hired to start on May 30. Contrary
to Will’s testimony, it appears more likely that Cecchini was
hired to replace Christensen because of the timing of his appli-
cation in relation to Christenson’s termination. Moreover, the
undisputed evidence establishes that Goyette had already been
hired before Christensen’s termination. There is no evidence
that Will considered any of the March applicants before hiring
Cecchini.
The record reflects that Respondent next hired someone on
August 5. Will testified that he hired Jerry Montoya for an
electrician position at $12/hour based on a recommendation
from a longtime employee. Montoya had not applied in re-
sponse to the March advertisement. Although Will testified
that he had no specific job opening at that time, he testified at
another point that he had interviewed Andrew Desrosiers in
July and called in Bob Kwiatkowski for an interview on July
20. Desrosiers was eventually hired as an electrician at
$13/hour on October 28, while Kwiatkowski did not show up
for his interview. Both individuals submitted applications in
response to the March advertisement. I find, contrary to Re-
spondent’s assertion, that Respondent did review at least some
of the March applications in July before hiring Montoya.
Respondent did not hire again until October when he hired
two helpers with little or no electrical training or experience at
$8/hour. According to Will, these positions were entry level
jobs for someone to essentially carry material to a job and assist
the electrician. Helpers, unlike service technicians, would
never be sent out alone. Will testified credibly that in hiring
employees, he likes to maintain a mix of experienced electri-
cians who can do any kind of work, less experienced individu-
als who can independently handle service calls and raw em-
ployees he can train in the business from scratch, with helpers
falling into the latter category.
Neither of the individuals hired as helpers in October had
applied in March. Their applications were submitted shortly
before the positions were filled. There is no evidence that Re-
spondent considered any of the March applications before hir-
ing these two helpers.
As noted above, Desrosiers was the next individual hired by
Respondent. Desrosiers had applied in response to the March
advertisement and was interviewed in July, but not hired at that
time. Will testified that he was impressed with Desrosiers
qualifications, in particular his management and computer ex-
perience and decided to keep him in mind if he had another
opening in the future. Desrosiers was the last of the March
applicants to be considered for, or hired by Respondent. Al-
though Respondent hired two helpers, a service technician and
an electrician in 1997, all individuals hired had applied about
the time Respondent was seeking to fill these positions. There
is no evidence that Respondent considered any of the March
applicants to fill these positions. Will testified that he generally
considers an application as active for about 6 months. This
testimony is consistent with the practice demonstrated by the
evidence in the record.10
As noted above, Will did not consider Haggerty or Muia for
any positions because they were suspected of cheating. These
were the only two union applicants whose level of training and
experience and earnings history were most like the individuals
Respondent sought for service technicians. Although Will
testified that he had no specific recollection of reviewing the
applications of Ruede and Ray before the hearing, he testified
that he did not consider hiring them essentially because of their
prior wage rates listed on the applications, which was consid-
erably higher than Respondent was willing to pay for a service
technician. Will also testified that their applications did not
indicate any long-term employment nor disclose their employ-
ment history beyond the last year. Finally, in Ruede’s case,
Will testified that the type of work identified on his application,
i.e., work on construction and in factory settings, was not the
type of work Respondent generally performed. With respect to
Paley, Will testified that he did not consider hiring him for the
service technician job or any other openings because of his past
experience with Paley in 1995. As noted above, Will credibly
testified that Paley had threatened to get rid of his business if
Respondent did not become a union contractor. Will reasona-
bly believed that Paley could not be trusted as an employee to
interact with Respondent’s customers in the best interests of
Respondent.
As with all cases turning on employer motivation, the Gen-
eral Counsel here must make a prima facie showing sufficient
to support the inference that protected conduct was a “motivat-
ing factor” in Respondent’s refusal to hire and/or consider for
hire the five alleged discriminatees. Only upon such a showing
does the burden shift to Respondent to establish that it would
have taken the same action even in the absence of protected
conduct. Fluor Daniel, Inc., 304 NLRB 970 (1991); Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982). The essential elements

10 Although Desrosiers was hired more than 6 months after he ap-
plied, Will considered him for hire and interviewed him within 6
months, deciding to keep him in mind for the next opening.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 86
of a prima facie case are protected activity, knowledge of that
activity by Respondent, animus, timing, and, in a refusal to hire
case, the availability of jobs for the applicants. Bay Electric,
Inc., 323 NLRB 200 (1997); WestPac Electric, 321 NLRB
1322, 1346 (1996); Bay Control Services, 315 NLRB 30
(1994). In Fluor Daniel, supra, the Board noted that motive
may be inferred from the total circumstances proved and that,
under certain circumstances, animus will be inferred in the
absence of direct evidence. Having considered the evidence in
the record and the inferences which might reasonably be drawn
from this evidence, I find that the General Counsel has not
established that the union membership or activity of any of the
applicants had anything to do with their not being hired, or
considered for hire.
At best, the General Counsel established that these five indi-
viduals, four of whom identified themselves with union affilia-
tions on their applications, applied for jobs with Respondent in
response to an advertisement for electricians and that none were
hired. The record also establishes that no one else was hired in
response to that advertisement because the job for which Re-
spondent sought electricians did not materialize. Several
months later, when Respondent hired individuals to fill a dif-
ferent position than that previously advertised, it reviewed ap-
plications submitted at the same time as the discriminatees and
hired individuals without any union affiliation. There is also
evidence that Respondent reviewed and considered applications
received in March to fill other positions in August and October,
but that none of the discriminatees were hired for these posi-
tions. However, there is no evidence in the record that Respon-
dent bore animus against the union. At most, the credited evi-
dence establishes that Respondent refused to voluntarily recog-
nize the Union a year earlier and requested that the union or-
ganizer limit his contacts with Respondent’s employees to
times and places when they are not working. It has been held
that an Employer’s refusal to enter into a prehire agreement
does not establish animus. See Fluor Daniel, Inc., supra at 976.
Moreover, based on my findings above regarding the allegedly
unlawful denial of access, there is no independent violation of
Section 8(a)(1) which would establish animus.
The General Counsel argues that animus and unlawful moti-
vation are established by the pretextual nature of the reasons
advanced by Respondent’s president Will for hiring nonunion
as opposed to union applicants. In making this argument, the
General Counsel cites only a few of the criteria mentioned by
Will in his testimony, i.e., earning history and education and
training. However, in his testimony, Will cited a number of
factors he considered in reviewing applications, none of which
was determinative, and further testified credibly, as to the dif-
ference between the positions of helper and service technician,
which comprised the bulk of the hiring after March, and the
electrician position advertised in March. Paley, Ruede, and
Ray were clearly overqualified for service technician and
helper, when compared to the individuals whom Respondent
hired to fill these positions. Will’s testimony that an individual
used to earning $20/hour or more will be unhappy in a position
paying $8–10/hour and is not likely to remain with Respondent
is credible. Certainly, none of the individuals hired as a service
technician or helper had as big a discrepancy between their
prior earnings and the salary offered by Respondent. As noted
above, the asserted reason for refusing to consider hiring Muia
and Haggerty for service technician or any other position, has
been found not to be pretextual.
The General Counsel also concedes that, of 25 applications
received in response to the March advertisement, including
those of the 5 alleged discriminatees, only 3 were ever hired,
and a fourth was called for an interview. With the exception of
Desrosiers, all individuals hired after May applied at the time
Respondent was hiring and there is no evidence that Respon-
dent considered any of the March applicants in filling these
positions. This is similar to the “gate hiring” practices found
not to be discriminatory in other cases. See Dockendorf Elec-
tric, Inc., 320 NLRB 4, 7–9 (1995); Bay Control Services, su-
pra, 315 NLRB at 35. Thus, there is no evidence that any of the
five union applicants were treated differently than others who
applied at the same time. Based on the totality of circum-
stances, I am unable to find that the union affiliation of the five
alleged discriminatees played any part in Respondent’s review
or consideration of their applications. Industrial Construction
Services, 323 NLRB 1037 (1997); Bay Electric, supra at fn. 1;
Belfance Electric, supra.
CONCLUSION OF LAW
The Respondent has not violated the Act in any manner en-
compassed by the complaint.
[Recommended Order for dismissal omitted from publica-
tion.]