Caruso Electric Corp.

National Labor Relations Board - Board Decisions

Sep 29, 2000

332 N.L.R.B. 519 (N.L.R.B. 2000)

CARUSO ELECTRIC CORP. 519
Caruso Electric Corporation and International
Brotherhood of Electrical Workers, Local Union
#86. Cases 3–CA–19704 and 3–CA–19777
September 29, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On March 21, 1997, Administrative Law Judge Judith
Ann Dowd issued the attached decision. The Respondent
filed exceptions and a supporting brief, 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 record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings,1 and conclusions and to adopt
the recommended Order which is modified to reflect the
amended remedy below.2

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We affirm the judge’s finding that the General Counsel has met his
burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), with respect to the
Respondent’s refusal to hire applicants Robert Swetman, Randall
Smith, Darryl Follette, and William Ruscher Jr. Specifically, we find
that the record establishes that the Respondent was hiring at the time
they applied for employment; the applicants had experience and train-
ing relevant to the announced or generally known requirements of the
position for hire (electricians); and that antiunion animus contributed to
the Respondent’s decision not to hire them. See FES, 331 NLRB No.
20, slip op. at 4 (2000). We also agree with the judge, for the reasons
stated by her, that the Respondent failed to satisfy its Wright Line bur-
den of showing that it would not have hired Swetman, Smith, Follette,
and Ruscher Jr. even in the absence of their union activity.
Contrary to our dissenting colleague, we agree with the judge that
the General Counsel satisfied his burden of establishing that the Re-
spondent’s hiring decisions during the relevant period were tainted by
antiunion animus. The judge credited employee Michael Mawn’s
testimony that the Respondent’s president, Jerry Caruso, directed him
to alter the date on his employment application from January 8, 1996,
to October 8, 1995, because, in September and October 1995, the Re-
spondent “had union people coming by filling out applications.” The
judge also found that the date on employee Wayne Gates’ application
was altered while it was in the Respondent’s possession. The Respon-
dent has offered no reason for altering the documents. Caruso’s in-
struction to Mawn to alter the date on his application was directly
linked to the Union. With respect to Gates’ application, while there is
no direct link to the Union, it follows the same pattern and therefore it
can be inferred, in the absence of any other explanation, that the altera-
tion was made for the same reason. The falsification of these dates in
response to the Union’s campaign is sufficient to establish animus. See
Pan American Electric, 328 NLRB 54 (1999). See also Ramada Inn,
172 NLRB 248 (1968).
AMENDED REMEDY
Having found that the Respondent engaged in unfair la-
bor practices in violation of Section 8(a)(1) and (3) of the
Act, the Respondent shall be ordered to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the purposes of the Act. Having found that
the Respondent unlawfully refused to hire Robert Swet-
man, Randall Smith, Darryl Follette, and William Ruscher
Jr., the Respondent shall offer them employment to the
positions for which they have applied and are qualified or,
if those positions are no longer available, to substantially
equivalent positions, without prejudice to their seniority or
other rights or privileges they might have enjoyed, and
make them whole for any loss of earnings and other bene-
fits computed on a quarterly basis as prescribed in F W.
Woolworth Co., 90 NLRB 289 (1950), and shall be re-
duced by net interim earnings, with interest computed in
accordance with New Horizons for the Retarded, 283
NLRB 1173 (1987).3
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge as modified
below and orders that the Respondent, Caruso Electric
Corporation, Rochester, New York, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 2(a).
“(a) Within 14 days from the date of this Order, offer
Robert Swetman, Randall Smith, Darryl Follette, and Wil-
liam Ruscher Jr. employment in the positions for which
they applied or, if those positions no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges to which they
would have been entitled absence the discrimination
against them.”
2. Insert the following as paragraphs 2(b) and (c) and
reletter the subsequent paragraphs.
“(b) Make Robert Swetman, Randall Smith, Darryl Fol-
lette, and William Ruscher Jr. whole for any loss of earn-
ings and other benefits suffered as a result of the discrimi-
nation against them in the manner set forth in the amended
remedy section of this decision.
“(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusal to hire
Robert Swetman, Randall Smith, Darryl Follette, and Wil-
liam Ruscher Jr., and within 3 days thereafter notify the
employees in writing that this has been done and that the
3 Because the number of applicants exceeds the number of available
jobs, it shall be determined in compliance which of the applicants
would have been hired for the openings. FES, supra.
332 NLRB No. 50
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 520
unlawful refusals to hire will not be held against them in
any way.”
3. Substitute the attached notice for that of the adminis-
trative law judge.

MEMBER HURTGEN, dissenting.
Under the test set forth in Wright Line,1 the General
Counsel must initially establish, inter alia, the element of
animus. I find that the General Counsel has not estab-
lished the element of animus, and, therefore, I would dis-
miss the complaint.
The testimony establishes a backdating of employment
applications. More specifically, the credited evidence
shows that Respondent Agent Jerry Caruso offered Mi-
chael Mawn a job on January 8, 1996. When Mawn
sought to write that date on his application, Respondent
told him to write October 8, 1995. Caruso explained to
Mawn that, in September and October, there had been
“union people coming in and filling out applications.”
The judge found that this incident shows animus. In
my view, it does not do so. The judge conceded that
“there is no way of ascertaining the exact details of
[Caruso’s] plan.” Indeed the evidence shows more con-
fusion than a plan. Mawn was not a union applicant.
Thus, the backdating of Mawn’s application to October 8
would seemingly have the effect of showing that a non-
union applicant was hired at a time when union appli-
cants were rejected. Surely, Respondent would not want
to create that impression.
In light of the foregoing, the judge was left to specula-
tion. She guessed that Caruso may have believed that
Mawn’s application, which shows a well-qualified non-
union electrician, would support Respondent’s position
that it declined to hire a number of union applicants be-
cause nonunion applicants were more experienced. But,
as noted, this was pure speculation. There is no showing
that Mawn was more qualified than the union applicants.
The judge also found animus in regard to the treatment
of Gates’ application. Gates filed an application on Sep-
tember 25, and he noted that date on the first page of the
application form. Thereafter, someone changed the date
from “9–25” to “8–25.” Assuming arguendo that Caruso
made the change, it is far from clear why he would do so.
Conceivably, Respondent might wish to show that it
filled the positions before September 19, the date on
which the union applicants began to appear. However, it
was not, and is not, Respondent’s contention that posi-
tions were filled before September 19. Again, we do not
know why Respondent would make such a change.

1 251 NLRB 1083 (1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert.
denied 495 U.S. 989 (1982).
As noted above, the judge could not explain what
Caruso had in mind.2 The judge suggested at one point
that “it may be that Caruso’s plan was simply ill con-
ceived.” Notwithstanding this uncertainty, the judge
based her finding of animus on these slender reeds. I
would let the record speak for itself. There is simply no
way of knowing, on this record, why the changes were
made. The fact that Caruso referred at one point to the
union applicants does not establish the reason for the
changes. As noted, the changes are not consistent with a
plan to mask an antiunion motive.
The cases relied on by the majority are clearly distin-
guishable. In Pan American Electric, 328 NLRB 57
(1999), there were numerous violations of Section
8(a)(1), showing antiunion animus on the part of the re-
spondent. These violations included the statement by the
project superintendent to applicants to backdate their
applications because he had “told [union guys] that I am
not taking any more applications.” In Ramada Inn, 172
NLRB 248 (1968), the respondent’s manager told an
applicant to backdate her application because “some
members of the Union had filled out an application
form.” Thus, in both cases, there was a clear deliberate
plan to make it falsely appear that applications were no
longer being taken or that nonunion applications had
been filed before the union applications. As discussed
above, the plan in the instant case is far from clear.
My colleagues say that the backdating in the instant
case is not simply relevant to the issue of animus but is
“sufficient to establish animus.” For the reasons dis-
cussed above, I disagree.
Since animus has not been shown, the General Counsel
has not established a prima facie case.3

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
violated the National Labor Relations Act and has or-
dered 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
2 Caruso did not testify because of a medical condition.
3 I do not condone the alteration of documents. I simply cannot say,
on this record, that the alterations show an antiunion animus.

CARUSO ELECTRIC CORP. 521
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT refuse to hire Robert Swetman, Ran-
dall Smith, Darryl Follette, and William Ruscher Jr. be-
cause they engaged in union or other protected activities.
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.
WE WILL, within 14 days from the date of the
Board’s Order, offer Robert Swetman, Randall Smith,
Darryl Follette, and William Ruscher Jr. employment in
the positions for which they applied or, if those positions
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges to which they would have been entitled absent
the discrimination against them.
WE WILL make Robert Swetman, Randall Smith,
Darryl Follette, and William Ruscher Jr. whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against them.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful refusal to hire Robert Swetman, Randall
Smith, Darryl Follette, and William Ruscher Jr., and WE
WILL, within 3 days thereafter, notify them in writing
that this has been done and that the refusals to hire will
not be used against them in any way.

CARUSO ELECTRIC CORPORATION

Ron Scott, Esq., for the General Counsel.
David W. Lippitt, Esq., of Rochester, New York, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
JUDITH ANN DOWD, Administrative Law Judge. This
case was heard in Rochester, New York, on October 15 and 16,
1996. Charges and amended charges were filed by the Interna-
tional Brotherhood of Electrical Workers, Local Union #86 (the
Union) on October 25 and December 7, 1995, and May 22 and
23, 1996. On May 24, 1996, the Regional Director for Region
3 of the National Labor Relations Board (the Board) issued an
order consolidating cases, consolidated complaint and notice of
hearing (complaint). The complaint alleges that Caruso Elec-
tric Corporation (the Respondent) violated Section 8(a)(3) and
(1) of the National Labor Relations Act (the Act) by discrimi-
natorily refusing to consider for employment and refusing to
hire the following employees between September 19 and De-
cember 31, 1995:

Robert Swetman Darryl Follette
Keith Huffman William Ruscher Jr.
James Lembach Randall Smith
Thomas Burke David Young

The Respondent filed an answer on June 4, 1996, denying the
commission of any unfair labor practices and raising an af-
firmative defense that certain allegations in the complaint are
untimely filed.
Prior to the commencement of the hearing, the General
Counsel moved to withdraw paragraph six of the complaint and
his unopposed motion was granted. During the hearing, the
parties were represented by counsel and were afforded full
opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence. On the entire record, includ-
ing my observation of the demeanor of the witnesses, and after
considering the briefs filed by the General Counsel and the
Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and place of busi-
ness in Rochester, New York, where it has been engaged in the
business of residential, commercial, and industrial electrical
contracting. Annually, Respondent purchases and receives at
its Rochester facility, goods valued in excess of $50,000 di-
rectly from points outside the State of New York. The com-
plaint alleges, the answer admits, and I find that at all material
times, Respondent has been engaged in commerce with in the
meaning of Section 2(2), (6), and (7) of the Act.
At all material times the Union has been a labor organization
within the meaning of Section 2(5) of the Act.1
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is an electrical contractor working in new and
remodeled buildings. At the time of the hearing the Respon-
dent employed approximately thirty-one full-time employees,
all of whom were electricians. At the time of the events de-
scribed below, the Respondent employed about forty electri-
cians. The Respondent’s employee complement fluctuates with
the demand for electrical work. Respondent is owned by two
brothers, Jerold (Jerry) and Robert Caruso. Jerry Caruso is the
president and Robert is the vice president of Respondent. Dur-
ing all relevant times and until March 18, 1996, Jerry Caruso
was in charge of the day to day management of Respondent,
including all hiring and firing. Robert Caruso was the project
manager for all of Respondent’s construction jobs. On March
18, 1996, Jerry Caruso suffered a heart attack and Robert
Caruso assumed full control of Respondent’s business. Jerry
Caruso did not appear at the hearing, citing medical advice that
testifying could have adverse health consequences for him.
B. The General Counsel’s Prima Facie Case
Section 8(a)(3) of the Act makes it an unfair labor practice to
discriminate in regard to hiring employees “to encourage or
discourage membership in any labor organization.” It is well
settled that applicants for employment are employees within the
meaning of the Act. Phelps Dodge Corp. v. NLRB, 313 U.S.
177, 185–186 (1941). It is also now settled that applicants for

1 Respondent orally amended its answer and so admitted at the hear-
ing.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 522
employment who are also union organizers retain their status as
statutory employees. NLRB v. Town & Country Electric, 116
S.Ct. 450 (1995). An employer violates Section 8(a)(3) of the
Act if it refuses to hire an applicant for employment because the
employee joined or assisted a union and engaged in concerted
activities, in order to discourage employees from engaging in
protected activities. Eldeco, Inc., 321 NLRB 857 (1996); Fluor
Daniel, 304 NLRB 970 (1991).
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F. 2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983), the Board enunciated the test to determine employer
motivation in cases of alleged discrimination. First, the General
Counsel must make a prima facie showing sufficient to support
the inference that protected conduct was a “motivating factor” in
the employer’s action. The burden then shifts to the employer to
demonstrate that the same action would have been taken notwith-
standing the protected conduct. Fluor Daniel, Inc., supra.
1. Knowledge
During the period from September 19 to December 5, 1995,
the Union sent the eight employees named in the complaint to
apply for jobs as electricians with the Respondent. These appli-
cants were instructed to acknowledge their ties to the Union and
to accept jobs if they were offered.
Of the eight alleged discriminatees, only Swetman and Follette
testified at the hearing. Swetman’s testimony bearing on the
subject of knowledge shows that he and certain other alleged
discriminatees wore clothing with union insignia when they ap-
plied for work with the Respondent. Follette testified that he and
three other union applicants—Randall Smith, William Ruscher
Jr., and Thomas Burke—came to Respondent’s office on No-
vember 2, 1995, and applied as a group. Smith, Ruscher and
Follette all stated on their applications that they were active in
union organizing. There was no evidence, however, that Jerry
Caruso personally observed any of the alleged discriminatees or
that Respondent’s office staff told Caruso about the applicants’
union insignia or association with union organizers. As noted
above, Jerry Caruso, who actually did all of the hiring during the
relevant period, did not testify. Under these circumstances, the
only clear evidence that Respondent had knowledge of the al-
leged discriminatees’ association with the Union is the informa-
tion contained in their employment applications.
The applications of five of the alleged discriminatees show
that they were paid or voluntary union organizers. David Young
and Robert Swetman indicated that they were currently employed
by the Union as organizers. Randall Smith, William Ruscher Jr.,
and Darryl Follette listed “union organizer” under additional
relevant information. The applications of Thomas Burke and
Keith Huffman are devoid of any overt reference to affiliation
with, or membership in, the Union. However, Burke listed prior
employment with Billiter Electric and Huffman acknowledged
that he had three years of training in the Union’s apprenticeship
program. Respondent’s witness, Robert Caruso, admitted that
Billiter Electric was well known as a union company and that that
Respondent would assume electricians who had worked there
would remain union members. Robert Caruso also testified that
the Respondent would assume that an employee who apprenticed
with the Union would remain a union member for life. The appli-
cation of James Lembach is devoid of any information that would
identify him as a union member, any history of employment with
known union companies, or any training in a union apprentice-
ship program. As discussed above, the fact that Lembach applied
at the same time as Swetman and may have worn a union jacket
is insufficient to demonstrate knowledge, without a further show-
ing that such information was conveyed to Jerry Caruso.
I find that the General Counsel established knowledge with re-
spect to all of the alleged discriminatees except James Lembach.
I recommend that the portion of the complaint alleging that the
Respondent discriminatorily refused to hire Lembach be dis-
missed.
2. Animus
In order to establish union animus the General Counsel elicited
testimony from employees Michael Mawn and Wayne Gates and
introduced their employment applications into evidence. Mawn
testified that he filed an employment application with the Re-
spondent on December 20,1995, and that he was called back to
talk to Jerry Caruso on January 8, 1996, at which time Caruso
offered him employment. Mawn stated that during the interview,
Caruso noticed that the front of the employee’s application was
undated and handed it to him to fill in the date. According to
Mawn, he began writing that day’s date, but after he put down
the numbers 1 and 8, Caruso stopped him and told him to alter
the figure 1 to a 10, and to write the date October 8, 1995, on the
front of the application. Mawn testified that Caruso told him that
in September and early October 1995, the Respondent had “had
union people coming by filling out applications.” Mawn’s appli-
cation contains no reference to the Union, to union apprentice-
ship, or employment with a known union contractor. The date at
the top of the first page of Mawn’s application shows a peculiarly
elongated 0, a fact which is consistent with Mawn’s testimony.
Gates testified that he filed an application with the Respondent
on September 25, 1995, and that he wrote the date September 25,
1995, on the first page of the application form. When the Gen-
eral Counsel showed Gates a copy of his application, Gates iden-
tified it and testified that he did not write the date on the front
page of the document which now shows August 25, 1995. The
date at the top of the first page of Gates’ application shows traces
of a figure 9 in the same position where the figure 8 now appears.
Respondent contends that Mawn was not a credible witness.
Contrary to Respondent’s contention, Mawn appeared to be quite
credible. He exhibited some initial confusion as to the dates he
came to Respondent’s office but I am satisfied that his memory
of his conversation with Caruso was clear and reliable. I also
perceive no compelling reason why Mawn would fabricate the
date change incident.
Respondent also contends that Caruso had no reason to alter
the dates on the front of Mawn’s and Gates’ applications because
the dates as altered do not help Respondent’s position. Specifi-
cally, Respondent argues that the change of date from January to
October on Mawn’s application would have the negative impact
on Respondent of showing an apparently nonunion applicant who
was hired at a time when a number of avowed union adherents
were not. Similarly, with respect to Gates’ application, Respon-
dent argues that the apparent date change from September to

CARUSO ELECTRIC CORP. 523
August would not help Respondent because the alleged discrimi-
natees in the case did not begin to file applications until Septem-
ber 19, 1995. Respondent also argues that Caruso would have
altered the date on the last page of the applications as well as the
first, if he intended to deceive Board agents who were investigat-
ing the allegations of this complaint.
Since Jerry Caruso was not available to testify, there is no way
of ascertaining the exact details of his plan. It may be that Caruso
believed that Mawn’s application, which shows a well qualified
but apparently nonunion electrician, would support Respondent’s
position that it declined to hire a number of union applicants
because the more experienced candidates happened to be nonun-
ion employees. With respect to the inconsistent dates on the first
and last pages of the altered applications, Caruso may have in-
tended to remove the last page and substitute an undated copy.2
It may also be that Caruso’s plan simply was ill conceived. In
any event, the credited evidence shows that Caruso was responsi-
ble for the date alteration on Mawn’s application and that the date
on Gates’ application was altered during a time when it was in
the exclusive possession of the Respondent. The credited evi-
dence further shows that Caruso essentially told Mawn that he
wanted the date changed on the employee’s application because
he hoped to manipulate Respondent’s statistics concerning the
hiring of union and nonunion employees.
I find this evidence sufficient to show that Respondent’s hiring
decisions during the relevant period were tainted by union ani-
mus. The burden therefore shifted to the Respondent to show
that it refused to hire the seven remaining alleged discriminatees
for nondiscriminatory reasons.
3. Respondent’s rebuttal evidence
Respondent contends, inter alia, that although it declined to
hire the alleged discriminatees, it did not do so for antiunion
reasons, as demonstrated by the fact that it hired other employees
who had union backgrounds similar to those of some of the al-
leged discriminatees. The record evidence supports the Respon-
dent’s contention to the extent that of the approximately eleven
employees hired during the relevant period, at least three had
admitted ties to the Union. The evidence shows that Respondent
hired Theodore Kowalczyk, whose application reflects employ-
ment with known union contractor Gonzalez Electric; Craig
Roberston, who completed the Union’s 4-year apprenticeship
program; and Anthony Reale, who had 5 years of employment
with known union contractor Billiter Electric, a 22-year associa-
tion with the Union, and 4 years of teaching in the Union’s ap-
prentice program. This evidence rebuts the presumption of dis-
crimination, at least with respect to alleged discriminatees Keith
Huffman and Thomas Burke, whose only association with the
Union was employment by a known union contractor or training
in the Union’s apprentice program. Indeed, the applications of
Kowalczyk and Robertson, both of whom were hired by the Re-
spondent, are essentially indistinguishable with respect to union
background from the applications of Keith Huffman and Thomas
Burke, who allegedly were refused employment because of their
association with the Union. Moreover, successful applicant An-
thony Reale’s application shows a much closer association with
the Union than either alleged discriminatees Huffman or Burke.

2 I note that four of the application forms submitted by employees
who were hired by the Respondent have no signature or date on the last
page.
I therefore find that the Respondent rebutted the General
Counsel’s prima facie case with respect to alleged discriminatees
Keith Huffman and Thomas Burke. I recommend that the com-
plaint be dismissed with respect to Huffman and Burke.3
The remaining five alleged discriminatees are Robert Swet-
man, Darryl Follette, William Ruscher Jr., Randall Smith, and
David Young. As noted above, all of these employees stated on
their applications that they were union organizers. Respondent’s
evidence showing that it hired employees who had a history of
association with the Union, employment with a known union
contractor, or training in a union apprenticeship program is insuf-
ficient to rebut the presumption of discrimination with respect to
these admitted union organizers. An employer may be willing to
hire employees who have had even an extensive union back-
ground, but still discriminate against employees who declare that
they are organizers.
Respondent contends that it declined to hire Swetman because
of inconsistencies on his various employment applications. With
respect to the remaining alleged discriminatees, Respondent con-
tends that during the 30-day period each of their applications
remained open, other employees, who acknowledged no associa-
tion with the Union, were hired because they had better qualifica-
tions.4
Robert Swetman—Respondent contends that it refused to hire
Swetman because he gave inconsistent answers to the question
on the application form inquiring whether the applicant had ever
been convicted of a felony. The record evidence shows that on
an application filed prior to September 19, Swetman checked the
“no” box, but on his September 19 application, Swetman marked
the “yes” box. Swetman responded “no” to the felony conviction
question on his October 10 and December 5 applications. The
Respondent elicited testimony from Robert Caruso indicating
that Respondent’s general practice is to review all prior employ-
ment applications filed by applicants, to check for consistency.
Caruso stated that inconsistent answers with respect to the felony
conviction question would be considered very serious.
Even assuming arguendo, that Respondent has a general prac-
tice of reviewing every previous application filed by the em-
ployee to check for inconsistencies, there is no evidence concern-
ing when that practice began, whether Jerry Caruso followed that
practice, or, more importantly, whether Jerry Caruso relied upon
Swetman’s inconsistent answers as a basis for failing to hire him.
Respondent also fails to explain why it places such importance
on inconsistent answers, particularly in light of the fact that it is
3 I find it unnecessary to rule on the Respondent’s contention that the
complaint was untimely filed under Sec. 10 (b) of the Act with respect
to Huffman and Lembach, since I have recommended dismissal of the
complaint allegations regarding them on other grounds. If the Board
declines to adopt these recommendations, I would find that the Re-
spondent’s 10(b) argument is without merit for the reasons stated in the
brief for the General Counsel.
4 Respondent had a written policy of holding applications open for
no more than 30 days. After that time the employee was required to
file a new application. In his brief, the General Counsel does not dis-
pute that the Respondent applied such a policy and does not allege that
it was discriminatory.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 524
relatively easy to check a wrong box in a series of “yes” and
“no” answers. Respondent does not contend that it checks prior
applications only for inconsistent answers to the felony convic-
tion question. Apparently, any inconsistency, even with respect
to a relatively innocuous question such as whether the employee
is currently on layoff status, would be of concern to the Respon-
dent. This policy concerning inconsistent answers contrasts
sharply with Respondent’s willingness to overlook other flaws in
employee applications, such as incomplete answers to employ-
ment history and failure to sign or date the last page of the appli-
cation form.
Swetman is a highly qualified electrician who holds a master’s
license and had 15 years’ experience as an electrician at the time
he filed the applications at issue here. With the possible excep-
tion of Reale, whose employment history on his application is
incomplete, none of the applicants hired by the Respondent dur-
ing the period relevant to the complaint had as much electrical
work experience as Swetman. Robert Caruso testified that the
Respondent considers experience to be a very important factor in
making hiring decisions. Moreover, in its brief, Respondent
argues that it made a number of hiring choices by selecting the
most experienced applicant. In short, the Respondent allegedly
rejected a thoroughly experienced electrician for work simply
because he checked a wrong box on one of his various applica-
tions. At the very least, it is reasonable to assume that if Jerry
Caruso was actually concerned about Swetman’s inconsistent
answers to the felony conviction question, he would have called
Swetman in and asked him to explain his answers. Accordingly,
I find that Respondent’s stated reason for failing to interview or
hire Swetman is pretetual.5
Smith, Ruscher, and Follette—Randall Smith, William
Ruscher Jr., and Darryl Follette all filed applications on Novem-
ber 2, 1995. During the 30-day period the applications of Smith,
Ruscher, and Follette were active, the Respondent hired Anthony
Reale, Luis Alayon, Simon Kirkland, and James Banker. Re-
spondent contends that all of the employees it hired while the
applications of the three voluntary organizers were pending had
more electrical experience. The evidence shows that Randall
Smith and William Ruscher each had about 2 years’ experience
as electricians. Darryl Follette had approximately 1-1/2 years’
experience.
Turning to the applications of the employees Respondent
hired, Anthony Reale had substantial electrical experience and
taught in the Union’s apprentice program. More importantly,
Reale’s application also shows that he had previously worked for
the Respondent as a supervisor. Luis Alayon’s application, on
the other hand, shows that he had no previous electrical work
experience. Simon Kirkland’s application shows a total of eight
years’ experience in electrical maintenance and electrical work.
James Banker had been employed for about 1 year as an electri-
cian at the time that he was hired by Respondent and his previous
experience had been 2 years as the owner of a home improve-
ment company and 6 years’ experience in carpentry and electrical
work.

5 On November 27, 1996, counsel for the General Counsel filed a
notice of motion and motion to reopen the record and statement in
support thereof. On December 4, counsel for the Respondent filed a
statement in opposition. The grounds for the motion to reopen are that
Robert Swetman was not asked during the course of the hearing
whether or not he had been convicted of a felony. The motion asserts
that if the question had been asked, Swetman would have denied any
such conviction.
The motion to reopen the record is denied. Respondent does not
contend in its brief that Swetman was actually convicted of a felony, it
merely asserts that Swetman gave inconsistent answers to this question
on his various applications. The inconsistent answers are evident from
the face of the applications themselves. I therefore find it unnecessary
to reopen the record for the purpose of taking further testimony, since
Swetman’s proffered denial of any felony conviction is irrelevant to the
issues in this case.
Hirees Reale and Kirkland had significantly more electrical
experience than Smith, Ruscher, or Follette. I therefore find that
the decision to hire Reale and Kirkland, rather than any of the
union organizers, was not discriminatorily motivated.
Alayon was hired although he had no previous electrical ex-
perience or training. Respondent contends that it hired Alayon
for an entry level position because it preferred to hire totally in-
experienced employees for such positions. Respondent offered no
evidence to suggest that it was hiring for particular positions with
different skill levels. Thus, the Respondent offered no job de-
scriptions or list of duties that coincided with any of the jobs it
filled. However, even assuming, arguendo, that the job for which
Alayon was hired was an entry level position, none of the three
union organizers were so experienced that they could reasonably
considered overqualified for an entry level position. There is also
no reason to believe that the applicants would not have accepted
an entry level job if it had been offered. Moreover, Respondent’s
contention that it preferred to hire totally inexperienced employ-
ees for entry level jobs contradicts its other stated policy of
choosing experienced employees over inexperienced.
James Banker allegedly was hired because he was more ex-
perienced than Smith, Ruscher, or Follette. Banker’s application
shows that although he had a longer employment history than any
of the three union organizers, he had only been working as an
electrician for 1 year and his other experience was more general-
ized. Smith, Ruscher, and Follette had worked exclusively as
electricians. Accordingly, their more specialized, if less exten-
sive experience, was at least comparable to that of Banker.
I find that the Respondent discriminated against Smith,
Ruscher, and Follette by failing to interview or hire these em-
ployees because they engaged in union organizing activities.
David Young—Young applied for work with the Respondent
on December 5, 1995. Young’s application shows approximately
6 years’ experience as an electrician, 3 of them as an electrical
foreman. Young also is a licensed master electrician. For the 3
years immediately preceding his application, Young was em-
ployed as an organizer for the Union.
After Young filed his application with the Respondent, the lat-
ter hired William Schell. The Respondent’s stated reason for
hiring Schell rather than Young is that Schell was already work-
ing for the Respondent as an independent contractor and his work
was well known to the Respondent. Schell apparently did not file
an application with Respondent, so there is no evidence reflecting
on his experience and background. Since current employment
with the Respondent is an objective basis for preferring Schell
over Young, I find that there are no grounds for finding that the

CARUSO ELECTRIC CORP. 525
Respondent discriminated against Young by refusing to interview
or hire him.6
CONCLUSIONS OF LAW
1. Respondent Caruso Electric Corporation is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the National Labor Relations Act.
2. International Brotherhood of Electrical Workers, Local Un-
ion #86 is a labor organization within the meaning of Section
2(5) of the Act.
3. Between the dates of September 19 and December 31,
1995, Respondent violated Section 8(a)(3) and (1) of the Act by
refusing to hire employment applicants Robert Swetman, Randall
Smith, William Ruscher Jr., and Darryl Follette because they
engaged in union activities.
4. Except as found above, the Respondent did not engage in
any of the unfair labor practices set forth in the complaint.
REMEDY
Having found that the Respondent engaged in certain unfair
labor practices, I recommend that the Respondent be ordered to
cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having violated Section 8(a)(3) and (1) of the
Act by refusing to hire certain employees for discriminatory rea-
sons, it is recommended that they be offered immediate employ-
ment in the positions for which they have applied and are quali-
fied, to the extent vacancies exist, and they shall be made whole
for any earnings lost by reason of the discrimination against
them, from the date of the refusal to hire to the date of a bona fide
offer of employment. As a caveat, however, it is noted that the
make-whole remedy is not to exceed the earnings appurtenant to
the vacancy actually filled by the Respondent on the date of dis-
crimination. Thus, it is recommended that, where multiple dis-
crimination findings derive from a single job, the status quo ante
shall be restored limiting the individual backpay entitlements on
a proportionate basis. Moreover, in all instances, sums due shall
be computed on a quarterly basis as prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), and shall be reduced by net
interim earnings, with interest computed as specified in New
Horizons for the Retarded, 283 NLRB 1173 (1987). All rein-
statement and backpay recommendations are subject to the pro-
cedures discussed in Dean General Contractors, 285 NLRB 573
(1988), and Haberman Construction Co., 236 NLRB 79 (1978).
On these findings of fact and conclusion of law and on the en-
tire record, I issue the following recommended7

6 On November 22, 1996, counsel for the Respondent filed a notice
of motion to correct transcript which was not opposed by counsel for
the General Counsel. The motion is granted except as follows: Re-
spondent’s item 5, which seeks to correct p. 20, L. 21 by changing the
words “for a” to “the” is denied. The words “for a” should be corrected
to “of a.” Respondent’s item 9 is granted and p. 144, L. 5 is corrected
as moved and it is further corrected to add the word “it” after the word
“that.” Respondent’s item 12, seeking to correct p. 146 should properly
refer to p. 164, and is granted as to p. 164, L. 19.
7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
ORDER
The Respondent, Caruso Electric Corporation, Rochester, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging union activity by refusing to hire employees
because they engaged in union or other protected concerted ac-
tivities.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Robert
Swetman, Randall Smith, Darryl Follette, and William Ruscher
Jr. employment for the type of work for which they applied and
qualify or, if nonexistent, to substantially equivalent positions,
and make whole these employees for any loss of earnings and
other benefits suffered as a result of the discrimination against
them, with interest, in the manner set forth in the remedy section
of the decision.
(b) 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 records, timecards, personnel
records and reports, and all other records necessary to analyze the
amount of back-pay due under the terms of this Order.
(c) Within 14 days after service by the Region, post at its facil-
ity in Rochester, New York copies of the attached notice marked
“Appendix.”8 Copies of the notice, on forms provided by the
Regional Director for Region 3, after being signed by the Re-
spondent’s authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be take 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 current employees and former employees employed by the
Respondent at any time since October 25, 1995.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
ResRespondent had take to comply.

8 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.”