American, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 2004

342 N.L.R.B. 768 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 76
768
American, Inc. and International Brotherhood of
Electrical Workers, Local 428, AFL–CIO. Case
31–CA–26247
July 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND MEISBURG
On January 14, 2004, Administrative Law Judge Lana
H. Parke issued the attached decision. The General
Counsel and the Charging Party each filed exceptions
and a supporting brief, and the Respondent filed an an-
swering 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
adopt the judge’s rulings, findings,1 and conclusions2 and
to adopt the recommended Order.
We agree with the judge’s dismissal of the allegations
that the Respondent refused to consider for hire and re-
fused to hire the nine union-affiliated applicants involved
in this case. Specifically, we agree that the General
Counsel failed to satisfy his burden of showing, as to
each allegation, that antiunion animus was a motivating
factor in the Respondent’s conduct. See FES, 331 NLRB
9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002).
The General Counsel’s attempt to establish unlawful
motivation rested heavily on employee Michael War-
holm’s testimony that Electrical Shop Manager David
Martin threatened that the Respondent would close its
electrical department before allowing it to be unionized.
However, Martin denied making such a statement, and
the judge found “no basis for crediting the testimony of
either Mr. Martin or Mr. Warholm over the other.” In
the absence of credited evidence that Martin made such a
threat, the judge properly refused to rely on it as evidence
of discriminatory motivation regarding the refusal to
consider and refusal to hire allegations. The judge, thus,
found no direct evidence of unlawful motivation, and
further found that the circumstances did not warrant an
inference that the Respondent was motivated by anti-

1 The General Counsel and the Charging Party have excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
2 We find it unnecessary to pass on the agency status of the Respon-
dent’s receptionist who denied employment applications to organizers
Larry Adams and Ronny Jungk.
union animus. Therefore, the judge properly dismissed
the 8(a)(3) allegations of the complaint.
Our dissenting colleague says that the judge discred-
ited Warholm and Martin. This is not the case. The
judge said that she lacked a basis for crediting one over
the other. Phrased differently, the judge weighed the
testimony of both, and concluded that the credibility of
the General Counsel’s witness did not preponderate over
that of the Respondent’s witness. Accordingly, the alle-
gations must be dismissed, because the General Counsel
has not carried his burden of establishing the alleged
violations by a preponderance of the evidence. See, e.g.,
Iron Mountain Forge Corp., 278 NLRB 255, 263 (1986)
(dismissing allegation that supervisor threatened to fire
employee for union activity where judge found nothing
to indicate one’s testimony was more believable).
Unlike our dissenting colleague, we see no need to re-
mand this case to the judge for her to reconsider her dis-
missal of the allegations. Our colleague asserts that the
judge did not explain her credibility determination.
However, as noted, the judge has explained that she had
no basis for crediting one over the other. In these cir-
cumstances, no useful purpose would be served by a re-
mand.
Nor do we find it appropriate to force the judge to
credit Warholm or Martin over the other when she has
candidly stated that she has no basis for doing so. The
Board relies on the judge, as the finder of fact, to make
determinations regarding the credibility of witnesses
whose testimony is in conflict. In this case, we find that
the judge has appropriately considered the credibility of
the two witnesses and made a determination, which we
accept, that she had no basis for choosing the testimony
of one witness over the other.
Also contrary to our dissenting colleague, we agree
with the judge that the circumstances surrounding the
Respondent’s failure to hire the nine applicants, even if
suspicious, are insufficient to warrant an inference that
the Respondent was motivated by antiunion animus. See
Dorey Electric Co., 312 NLRB 150, 151 (1993) (“Proof
of suspicious circumstances is not enough.”). Although
our colleague posits an answer to the question of the Re-
spondent’s motivation, such speculation cannot substitute
for proof by a preponderance of the evidence that the
Respondent was unlawfully motivated. In this case, the
General Counsel has failed to provide such proof, and
therefore we must dismiss the complaint allegations.
ORDER
The complaint is dismissed.

AMERICAN, INC. 769
MEMBER LIEBMAN, dissenting.
I would remand this case to the judge to make a critical
credibility determination and to address record evidence
at odds with her dismissal of the complaint.
In March, April, and May 2003, the Respondent was
doing electrical work on an Albertson’s grocery store in
Bakersfield, California.1 The complaint alleges that the
Respondent unlawfully failed to consider for hire and/or
hire nine union-affiliated electrician applicants during
this time period. The key issue was one of unlawful mo-
tivation: whether the Respondent failed to consider or
hire the applicants because of their union affiliation. See
FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir.
2002).
The judge found that the General Counsel failed to
prove unlawful motive;2 that the Respondent harbored no
antiunion animus, lawfully sought less experienced ap-
plicants because they would be likely to accept an hourly
wage of $12–16 per hour (the Respondent’s targeted
wage range), and lawfully preferred applicants who had a
referral. The judge concluded that these were “neutral
hiring policies, uniformly applied,” and dismissed the
complaint. As the judge herself acknowledged, however,
“some facts have not been fully explained and might
even be considered suspicious” (ALJD 7: 44–47). I
agree.
The General Counsel elicited testimony from em-
ployee Michael Warholm that Electrical Shop Manager
David Martin admitted to Warholm that the Respon-
dent’s owner, Corwyn Oldfield, did not like the Union
and would probably shut down the electrical department
before allowing it to go union. Martin denied making
these statements. The judge, however, failed to resolve
this critical credibility conflict. Instead, she summarily
discredited both Warholm’s testimony and Martin’s de-
nial, and concluded that the General Counsel failed to
meet his burden of proof.
While a judge may dismiss an allegation because the
relevant, conflicting evidence is in equipoise,3 the judge
must provide some explanation, especially when making
key credibility determinations. Here, the judge simply
stated: “I find no basis for crediting the testimony of
either Mr. Martin or Mr. Warholm over the other.”

1 All dates are 2003 unless stated otherwise.
2 The judge found that the General Counsel established all the other
necessary elements of his case, as required by FES, supra: that the
Respondent was hiring, that the union-affiliated applicants had the
relevant experience, and that the Respondent did not seriously consider
them or hire them.
3 See, e.g., Iron Mountain Forge Corp., 278 NLRB 255, 263 (1986)
(dismissing allegation that supervisor threatened to fire employee for
signing union card).
The judge’s failure to resolve this conflict over critical
testimony is particularly problematic because of other
credited record evidence, which points to unlawful moti-
vation. To illustrate:

1) The Respondent hired nonunion applicant
Ronald McCamey over union-affiliated applicants
Larry Adams, Ronny Jungk, and John Benedict,
even though Adams, Jungk, and Benedict had less
experience;
2) The Respondent hired certain nonunion appli-
cants at wage rates substantially higher than its tar-
geted wage range, including Benny Jones and Ronald
Hicks at $19 per hour, but admittedly disregarded the
application of union-affiliated individuals using as-
sumptions as to their wage-rate expectancies;
3) Several of the union-affiliated applicants did
not demand specific wage rates and/or affirmatively
stated their willingness to negotiate wages; and
4) Nearly half of the nonunion applicants hired
did not have a referral, despite the Respondent’s
claim that it normally relied on referrals.

All of this evidence strongly suggests that the Respondent’s
hiring criteria were anything but “neutral” and “uniform.”
Perhaps most troubling, the Respondent was under
enormous pressure from the general contractor to assign
more workers to the jobsite as soon as possible. Despite
its stated preference for referrals, the Respondent ran
blind ads seeking electricians. Even so, it did not hire, or
even seriously consider, a single known union-affiliated
applicant, even though all were qualified and several
actually applied immediately after the general contractor
demanded more workers. If the Respondent was under
such pressure to hire (including Jones whom it hired at
$19 an hour), then why did it not offer jobs to Larry Ad-
ams and Ronny Jungk? And, of course, what legitimate
explanation can there be for denying applications to Ad-
ams and Jungk, who were responding to the blind ads,
and 15 minutes later giving one to Juan Jaimes? The
only apparent explanation is that Adams and Jungk were
wearing union insignia. Jaimes was not.
Given these questions and suspicious circumstances,
the only appropriate course is to remand the case to the
judge for further consideration of the record as a whole.

Rodolfo L. Fong Sandoval, Esq., for the General Counsel.
Steven R. Williams, Atty., of Visalia, California, for the Re-
spondent.
Duane W. Moore, Assistant Business Manager, of Bakersfield,
California, for the Charging Party.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 770
DECISION
STATEMENT OF THE CASE
LANA H. PARKE, Administrative Law Judge. This matter was
tried in Bakersfield, California, on December 3, 2003,1 upon an
amended complaint and notice of hearing (the complaint) is-
sued November 10 by the Regional Director for Region 31 of
the National Labor Relations Board (the Board) based upon
charges filed by the International Brotherhood of Electrical
Workers, Local 428, AFL–CIO (the Union.) The complaint
alleges American Incorporated (Respondent)2 violated the Na-
tional Labor Relations Act (the Act).3 Respondent denied all
allegations of unlawful conduct.
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with an office and place of busi-
ness in Visalia, California (Respondent’s office), has been en-
gaged in the performance of construction services at jobsites
located in California. Respondent annually purchases and re-
ceives in California goods valued in excess of $50,000 directly
from points outside the State of California. Respondent admits,
and I find, it has at all relevant times been an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act, and the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Refusal to Consider and Failure to Hire Em-
ployment Applicants
During March through May, Respondent provided construc-
tion services at two jobsites in Central California: Albertsons
Market in Bakersfield and Albertson’s Market in Clovis (the
Albertsons Bakersfield and Albertsons Clovis jobsites, respec-
tively). On February 28 through March 6, Respondent ran help
wanted advertisements for electricians in two newspapers, the
Bakersfield Californian and Visalia Times Delta. In the former
newspaper, the advertisement in the March 5 edition read:

ELECTRICIANS
3 YRS MIN EXP. INDUS-
TRIAL/COMMERCIAL PROJECTS.
559–651–1776

In the following circumstances, the following individuals
submitted employment applications to Respondent. As noted
below, Respondent did not offer employment to nine of them
(the Applicants):

1 All dates herein are 2003 unless otherwise specified.
2 Respondent was formerly named American Air. The parties agreed
that testimonial references to “American Air” are references to Re-
spondent.
3 At the hearing counsel for the General Counsel amended the com-
plaint to allege Respondent unlawfully refused to hire the seven indi-
viduals named in par. 7(a) of the complaint and to include 8(a)(1) alle-
gations of prohibition against employees discussing the Union and
threat of business closure.

Larry Adams (Mr. Adams) and Ronny Jungk (Mr.
Jungk): Mr. Adams is a representative of the Union, and
Mr. Jungk is a representative of IBEW Local 100 in
Fresno, California (IBEW Local 100). After seeing Re-
spondent’s help-wanted advertisement for electricians in
the Bakersfield Californian on March 3, Mr. Adams tele-
phoned the listed number, mentioned the advertisement,
and was told to come to Respondent’s office and fill out an
application. Mr. Adams arranged with Mr. Jungk and
Juan Jaimes (Mr. Jaimes) to travel to Respondent’s office
the following day. On March 4, Mr. Adams and Mr.
Jungk, wearing IBEW-inscribed shirts, drove to Respon-
dent’s offices. Leaving Mr. Jaimes in a parked vehicle
about a block away, Mr. Adams and Mr. Jungk went into
the office and asked a woman at the counter for applica-
tions, saying they were answering a newspaper ad. The
woman said Respondent was not taking applications right
then, but she would take their information and call them.
Mr. Adams said he had called earlier and had been told to
fill out an application. The woman said she was just tak-
ing down names.4 Mr. Adams left his resume. The re-
sume stated he was currently employed as an organizer for
the Union and that his objective was, “To obtain a position
. . . performing electrical construction as a Journeyman
Electrician and to educate and organize employees into the
I.B.E.W.”
Mr. Jungk faxed Respondent his resume later that day
with an IBEW Local 100 cover sheet. Mr. Jungk’s resume
noted he was employed by IBEW Local 100.5 Both Mr.
Adams and Mr. Jungk would have taken positions with
Respondent if offered.
On April 16, Mr. Adams telephoned Mr. Martin, said
he had not heard from Respondent and asked if they were
still hiring. Mr. Martin said work was slow, but he would
review Mr. Adams’ application and call him. Mr. Adams
said he was not able to leave an application but had left his
resume. Mr. Martin asked him to fax his resume, which
Mr. Adams did along with a transmittal sheet bearing the
Union’s name and logo. No one from Respondent thereaf-
ter contacted Mr. Adams.
On April 16 and 28, Mr. Jungk left voice mail mes-
sages for Mr. Martin regarding his resume but received no
response.
Mr. Jaimes: On March 3, after Mr. Jungk and Mr.
Adams were denied an opportunity to submit applications
to Respondent, they asked Mr. Jaimes to see if he could do
better. Mr. Jaimes, who wore no clothing identifying him
as affiliated with IBEW, went to Respondent’s office and
returning about 15 minutes later, reported he had been able

4 Martin credibly testified that Respondent’s policy is always to ac-
cept an application. I find this instance to be an unexplained aberration.
5 Jungk was then and through the time of the hearing employed as an
organizer of IBEW Local 100. Based on later conversations Jungk
testified to between him and Butch Oldfield (Oldfield), Respondent’s
owner, Oldfield was clearly aware of Jungk’s union employment.
AMERICAN, INC. 771
to submit an application. Later, Respondent hired
Mr. Jaimes to work at the Bakersfield Albertsons jobsite.6
Robert McKee, Mark Lewis, John Lewis, and Frank
Hoffman III: These four applicants, members of IBEW
Local 570 in Tuscon, Arizona, were looking for electrical
construction work in California. They signed an out-of-
work list at IBEW Local100 in Fresno, California, and Mr.
Jungk suggested they apply at Respondent. When, on
April 3, the four reported to Respondent’s office as a
group, two of them were wearing IBEW-inscribed cloth-
ing. They filled out and submitted applications to Re-
spondent, which indicated their union affiliations.7 Robert
McKee, Mark Lewis, and John Lewis recontacted Re-
spondent and left voicemail messages but were unable to
speak to any manager or supervisor. Respondent hired
none of them.
Robert McKee, Mark Lewis, and John Lewis were
unwilling to take any position less than journeyman.8
Robert McKee did not expect to be paid the contract scale
of approximately $27.00 an hour. The lowest previous
salaries of Robert McKee, Mark Lewis, John Lewis, and
Frank Hoffman III as noted on their applications were
$18.15, $17.00, $18.20, and $18.25 respectively.
Troy Guynn (Mr. Guynn): Mr. Guynn requested a job
referral from IBEW Local 100. The union representative
told him Respondent was hiring. Mr. Guynn, who planned
to be a union organizer on the job if hired, faxed a resume
to Respondent, the cover page of which was on the letter-
head of IBEW Local 100 and stated, in pertinent part:

I was made aware that you are bidding a lot of prevail-
ing wage projects in the Tulare County area. I have
worked on a lot of this type of work. I have over 30
years experience in the electrical field in commercial
and industrial applications. I know if given the chance
I would be an asset to your company. Thank you for
your consideration.9

6 Upon counsel for the General Counsel’s representation that Jaimes
had returned to Mexico and was unavailable, I received his Board affi-
davit into evidence for limited purposes. Jaimes’s affidavit testimony
is that several hours after submitting his application, Jeff Hansen, Re-
spondent’s project manager, telephoned him and told him to report to
the Bakersfield Albertson’s jobsite for testing the following day, which
I accept.
7 Respondent’s clerical employees accommodated the four by mak-
ing a room available to them where they could sit at a table while filling
out the applications.
8 John Lewis testified he was not applying as an apprentice, having
already served his time in that position but if he could make $20 an
hour he guessed he could accept an apprentice job.
9 The prevailing wage projects to which Guynn referred are those
funded by public monies, which require employees to be paid “prevail-
ing wages.” No clear evidence was adduced as to what prevailing
wages were in the area, but the parties essentially agreed such wages
were at least the equivalent of the union contract wage and benefit
package, which for journeymen electricians was about $27 an hour.
Respondent generally promoted current employees to prevailing wage
jobs, as a way of rewarding them.
Respondent never called Mr. Guynn although he left
manager voice mail messages for Mr. Martin on April 3,
16, 28, and May 12.
John Benedict (Mr. Benedict): On April 7, wearing a
Local 100 vest and tee shirt, Mr. Benedict filled out a jour-
neyman electrician application at Respondent’s office,
which noted his approved apprenticeship through IBEW.
The secretary said she would put the application on Mr.
Martin’s desk. The secretary left the office briefly and upon
returning said Respondent was not hiring electricians at that
time. On April 28 and May 8, Mr. Benedict left voice mail
for Mr. Martin requesting callbacks but received no re-
sponse. Mr. Benedict would not have taken any job other
than the journeyman position he had applied for.
Doug Ackerman (Mr. Ackerman): Mr. Ackerman’s
application dated April 16 was received into evidence. It
noted he was an 8-year member of IBEW with 18 years of
electrician experience. His lowest previous rate of pay
was $22.00. Mr. Martin could not recall having received
the application. No further evidence was adduced regard-
ing Mr. Ackerman.

Michael Warholm (Warholm) worked on the Albertsons Ba-
kersfield site for a few days in March as a nonsupervisory
leadman. He left Respondent’s employ to enter an apprentice-
ship program. On his last day of work, March 27, he spoke to
Martin in the Visalia office at about 2 to 2:30 p.m.10 Martin
asked him not to tell other workers about his plans, as he did
not want “to start a wildfire throughout the workers.” Warholm
asked Martin why the Company could not go Union. Accord-
ing to Warholm, Martin said, “Oldfield did not like the union
and did not want the electrical department to go union; he
would probably shut down the electrical department of the
company before that happened.” Martin denied ever telling
anyone Oldfield would rather shut down the electrical unit than
go Union, although he knows Oldfield does not want Respon-
dent to be union signatory because he believes it would inhibit
flexibility. I find no basis for crediting the testimony of either
Martin or Warholm over the other. The General Counsel bears
the burden of proving unlawful statements and/or animus.
Since I cannot resolve credibility in favor of the General Coun-
sel’s witness, I cannot find the alleged statements to have been
made.
On March 31, Ronny Jungk called Oldfield and asked to set
up a meeting to discuss the advantages of Respondent going
Union, saying good electricians were hard to find, and the Un-
ion could provide him with manpower. Oldfield said he was
not interested, that the Union had nothing to offer the Com-
pany, which was not set up to go Union. Jungk said he knew
Respondent was bidding Sequoia Regional Cancer Center and
asked how Respondent intended to power it. Oldfield said a lot
of his projects would be finishing up at that time, and he would
transfer employees. Oldfield said he had learned Jungk had put
in an employment application and asked, “Are you not busy . . .
are you not the [union] business manager?”

10 Martin put the meeting a few days later. I do not find it necessary
to resolve this testimonial conflict.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 772
Jungk said he wanted the job to show Oldfield how good un-
ion electricians were, how he could benefit from a pool of
qualified manpower, and that he wanted to organize Respon-
dent’s employees. Oldfield said he was not interested in the
Union or what the Union had to offer.
On May 12, Jungk spoke to Oldfield by telephone. He con-
gratulated him on getting the Sequoia Regional Cancer Center
contract. He told Oldfield Respondent would probably need
more manpower once the job started, that the Union could pro-
vide such manpower, and that he still wanted a job. Oldfield
said, “That is never going to happen.” Oldfield asked if the
Union was not busy. Jungk said the Union could draw in elec-
tricians from all over the United States, and if Respondent went
signatory, the Union could supply qualified manpower. Old-
field said, “Well, like I said, that will never happen.”11
B. Respondent’s Evidence
According to Martin, Respondent’s hiring preference is to
recruit employees from referrals by other employees including
foremen. Respondent rarely places help-wanted advertisements
in newspapers. In late February, the general contractor at the
Albertsons Bakersfield site directed Respondent to provide
more electricians by the following week. To meet the request,
Respondent needed to add about eight employees to its site
complement and to that end placed advertisements in Bakers-
field and Visalia newspapers. In response to the advertise-
ments, Respondent received several dozen applications. In
accordance with his normal practice, Martin cursorily reviewed
the applications but did not make return calls to all applicants
because of time constraints. According to Martin, within 1 to 2
days after placing the advertisement, the openings were filled.
In reviewing the applications/resumes submitted for the ad-
vertised positions, Martin looked for entry level employees
with 2 to 4 years’ experience because Respondent wanted to
pay a commensurate wage, i.e., $12–$16 an hour. He believed
union-affiliated employees were generally looking for higher
wages than the range Respondent was willing to pay. Martin
denied refusing to consider union-affiliated applicants for em-
ployment, but he believed their desired wage scale would be
unacceptable.
During relevant times, Respondent hired the following em-
ployees on the following dates at the hourly wage rates12 and
classifications listed:

Rodrick
Martinez

March 4

$9.00

electrician/laborer
Mr. Jaimes March 713 14.00 electrician
Benny Jones unknown 19.00 electrician
Chris Portillo March 10 6.75 electrician/laborer
Brice Souza March 10 electrician/apprentice

11 There is no evidence to justify a conclusion that Oldfield’s re-
sponse meant anything more than that he was unwilling to sign an 8(f)
contract with the Union.
12 Evidence regarding wage rates was not introduced for all employees.
13 Company records show Jaimes as hired on March 7. He signed
his I-9 on March 5.

Ronald
McCamey

March 10

15.00

Electrician
Michael
Hicks

March 10

14.00
electrician
Ronald
Hicks

March 10

19.00

electrician
Richard
Rivera

March 13

15.00

electrician
Troy Bridges March 31 electrician
Alfonso
Ibarra

April 7

10.00

electrician/apprentice
Adam Wyatt April 11 12.00 electrician/laborer
Jose
Benavides

April 21

electrician
Michael
Herring

April 30

electrician
Adam
Palmer

May 27

electrician/laborer
Paul Gayler June 3 electrician14
Rick Aleman June 6 electrician/laborer
Steve
Wroten

June 13

electrician/laborer
Patrick
Mossey

June 16

electrician

Although Respondent preferred to hire pursuant to employee
referrals, Respondent hired Jaimes, Chris Portillo, Rodrick
Martinez, Troy Bridges, Benny Jones, Ronald McCamey, and
Adam Wyatt other than through referrals.
According to Oldfield, Respondent has no problem with the
Union and considers union-affiliated employees to be generally
highly trained and, mostly, knowledgeable. Because Respon-
dent provides services in multiple trades, Respondent may ask
its employees to perform varied tasks, e.g., electrical work,
pour concrete, hang duct, sheet metal work, and, therefore,
becoming union signatory would not be a “good fit” for the
Company.
III. DISCUSSION
A. Alleged Independent Violations of Section 8(a)(1)
By amendment at the hearing, counsel for the General Coun-
sel alleged Respondent violated Section 8(a)(1) of the Act by
prohibiting employees from discussing the Union and by threat-
ening business closure if employees engaged in union activity.
Both allegations arise from Warholm’s testimony of a con-
versation he had with Martin, wherein Martin assertedly asked
him not to tell other workers of his entering an apprenticeship
program and allegedly said Oldfield would probably shut down
the electrical department of the Company before he went Un-
ion. Even assuming such statements constituted violations of
the Act, as I am unable to conclude Martin made them, I cannot
find any independent violations of Section 8(a)(1) of the Act,
and I shall dismiss these allegations.

14 Paul Gaylor’s application shows his prerespondent hourly wage
was $8.50.
AMERICAN, INC. 773
B. Respondent’s Failure to Hire Employment Applicants
The General Counsel alleges that Respondent refused to con-
sider for hire or hire the applicants. In such cases, the General
Counsel bears the burden under FES15 of showing that Respon-
dent was hiring at the time the applicants applied for employ-
ment, that the applicants had experience and training relevant to
the requirements of the positions for hire, and that antiunion
animus contributed to Respondent’s decision not to consider or
to hire them. The General Counsel has met its burden as to the
first two elements.
As to the third element, “the allegations of unlawful dis-
crimination . . . must be supported by affirmative proof estab-
lishing by a preponderance of the evidence that the Respon-
dent’s conduct was unlawfully motivated.” Ken Maddox Heat-
ing & Air Conditioning, 240 NLRB 43, 44 (2003). The sum of
the credible evidence is that the applicants, openly union-
affiliated, sought employment with Respondent, and Respon-
dent neither seriously considered them for employment nor
hired them. Those facts, without more, do not constitute af-
firmative proof of unlawful motivation. The applicants were
not alone in not being seriously considered or hired. Respon-
dent received a large response to its employment advertise-
ments and did not have the time or need to peruse each applica-
tion. Accordingly, most individuals applying with Respondent
during the relevant time period received the same treatment as
the applicants, e.g., had their applications either disregarded or
briefly reviewed with no follow up by Respondent. No direct
evidence shows Respondent’s failure to hire the applicants was
motivated by antiunion considerations. Counsel for the General
Counsel does not argue and authority does not support any
contention that Respondent’s desire to hire employees at lower
wages than the ranges established by area union contracts is
unlawful. Respondent’s presumption that applicants with ex-
tensive and highly paid prior work experience are likely to want
higher wages than Respondent is willing to pay is likewise
lawful. Further, Respondent’s preference in employing indi-
viduals referred by existing employees is a legitimate policy.
Ken Maddox Heating & Air Conditioning, supra at 44, and
cases cited at footnote 4.
It is true that some facts have not been fully explained and
might even be considered suspicious. Thus, Adams and Jungk,
overtly union-affiliated, were not given applications when they
went to Respondent’s office on March 3, whereas some min-
utes later, Jaimes, covertly union affiliated, was given one.
Further, Benny Jones with 17 years of experience and Ronald
Hicks, with many years experience, were hired during the rele-
vant time period at $19 per hour, both having rates and experi-
ence above the range Respondent desired. As to Benny Jones,
Respondent explained he happened to be at the right place at

15 331 NLRB 9 (2000), affd. 301 F.3d 83 (3d Cir. 2002).
the right time when he walked onto the jobsite seeking work
after Respondent had received a 48-hour notice from the gen-
eral contractor to additionally man the job. As to Ronald
Hicks, Respondent hired him as the senior member of a fa-
ther/son team who had worked for many years with several of
Respondent’s employees, thus following Respondent’s lawful
referral policy. Respondent knew of the Hicks, pere and fils,
and of their capabilities and considered Ronald Hicks to be
underpaid at $19 an hour.
Notwithstanding the anomalies in Adams and Jungk’s at-
tempted applications and in the hiring of Jaimes, Benny Jones,
and Ronald Hicks, I cannot infer anti union animus or other
unlawful motivation from the circumstances. No supervisor or
agent of Respondent was involved in refusing to give applica-
tions to Adams and Jungk. A month later Robert McKee, Mark
Lewis, John Lewis, and Frank Hoffman III, also overtly union
affiliated, were not only given applications but accommodated
by being provided a place to fill them out. Even assuming dis-
parate treatment was accorded Adams and Jungk in the applica-
tion process, it cannot redound to Respondent’s discredit in the
absence of supervisor or agent involvement. Regarding the
hiring of Jaimes, even a cursory examination of his application
shows him to fit within Respondent’s hiring policy parameters.
Jaimes had a little over 2 years experience; his highest pay rate
was $15; he stated a readiness to do laborer as well as electrical
work, and he attached a letter of recommendation from a for-
mer employer. As to the hiring of Benny Jones and Ronald
Hicks, Respondent’s willingness to go beyond its preferred
experience and wage range in special instances cannot, by it-
self, establish unlawful motive. There is no direct evidence of
antiunion animus and no evidence Respondent’s failure to hire
the applicants was not the fortuitous result of “neutral hiring
policies, uniformly applied [citation omitted]” Ken Maddox
Heating & Air Conditioning, supra at 44 (2003). Accordingly,
I conclude the General Counsel has not met its burden under
FES, supra, of showing antiunion animus contributed to Re-
spondent’s decision not to consider or to hire the applicants,
and I shall dismiss this allegation.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended16
ORDER
The complaint is dismissed.

16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.