Chugach Management Services

National Labor Relations Board - Board Decisions

Jul 30, 2004

342 N.L.R.B. 703 (N.L.R.B. 2004)

CHUGACH MANAGEMENT SERVICES
342 NLRB No. 69
703
Chugach Management Services, Inc. and Interna-
tional Brotherhood of Electrical Workers, Local
Union No. 558. Case 10–CA–32024
July 30, 2004
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH
On July 10, 2000, Administrative Law Judge Keltner
W. Locke issued a bench decision, which he corrected by
an erratum issued September 14, 2000. The Respondent
filed exceptions and a supporting brief. On July 1, 2002,
the Board, by unpublished order remanded this case for
the judge to make additional credibility determinations
and factual findings necessary to the evaluation of the
Respondent’s argument that it would have refused to hire
Anthony Jones even in the absence of his protected con-
duct. On September 24, 2002, the judge issued the at-
tached supplemental decision and order. The Respon-
dent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the supplemental decision
and the record in light of the exceptions and brief and has
decided to affirm the judge’s rulings, findings,1 and con-
clusions as modified and to adopt his recommended Or-
der as modified and set forth in full below.2
The complaint alleges that the Respondent violated
Section 8(a)(1) of the Act by failing and refusing to hire
Anthony Jones because of his protected activities during
his employment with the Respondent’s predecessor. The
judge found that, under the Board’s FES standard, the
General Counsel demonstrated discriminatory motivation
which the Respondent failed to rebut, and therefore that
the Respondent violated Section 8(a)(1) as alleged. 331
NLRB 9, 12 (2000), enfd. 301 F.3d 83 (3d Cir. 2002).
For the reasons discussed below, we agree.
I. FACTS
Since 1987, Anthony Jones has been employed—by
various contractors—as a high-voltage lineman at the
Army’s Redstone Arsenal near Huntsville, Alabama.

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 shall modify the judge’s recommended Order in accordance
with our decisions in Ferguson Electric Co., 335 NLRB 142 (2001),
and Indian Hills Care Center, 321 NLRB 144 (1996), as modified by
Excel Container, Inc., 325 NLRB 17 (1997). We shall also order the
Respondent to expunge from its files any reference to the illegal refusal
to hire. Central Storage and Transfer Co., 263 NLRB 806 (1982).
When Northrop Grumman acquired the contract to main-
tain the electrical system at Redstone Arsenal around
1994, it retained Jones as a high-voltage lineman. Jones
continued to perform such work until Northrop’s contract
expired in 1999.
During a significant portion of Northrop’s tenure as
the contractor at Redstone Arsenal, there was consider-
able conflict between the employees and management
with respect to the issue of overtime work and its as-
signment. In that regard, between 1996 and 1997, Jones
filed two grievances relating to the assignment of over-
time work, the second of which stemmed from North-
rop’s suspension of Jones following his refusal to work
overtime on a particular occasion. Jones was joined by
another employee, Jeff Creel, in this refusal. Ultimately,
in July 1997, Northrop and the Union executed a sup-
plemental overtime agreement, which purported to re-
solve many of the disputed overtime issues.3 Notwith-
standing the establishment of that agreement, Jones con-
tinued to complain to others about the overtime policy.
In 1999, Respondent Chugach replaced Northrop as
the contractor responsible for the maintenance of the
electrical system at Redstone Arsenal. At the time it
acquired the contract, the Respondent hired several of
Northrop’s former supervisors, including Rex Moss, who
had served as the supervisor of the high-voltage linemen.
Although Northrop employed ten linemen, the Respon-
dent decided that it could fulfill its operational needs by
employing only nine linemen.4 To determine which nine
linemen should be retained, the Respondent enlisted
Moss to interview the ten linemen and to make recom-
mendations regarding their suitability for employment
with the Respondent.
In conducting the interviews, Moss discussed with
each of the applicants the elements of the Respondent’s
job description for the lineman position, including the
requirement that the applicant occasionally work over-
time or in inclement weather. According to Moss, when
he discussed the requirements of the job description with
Jones, he responded that the job description “meant noth-
ing to him” and that he would “go by the Red Book,” a
reference to the collective-bargaining agreement between
the Union and Northrop. Following his interview with
Jones, Moss prepared an unfavorable recommendation.
In recommending against Jones’ hire, Moss indicated
that, inter alia, Jones “said he would not work overtime,
callouts, or on [sic] inclement weather” and also that
Jones “is very disruptive and tries to keep creating prob-

3 As part of that agreement, Northrop rescinded the prior disciplinary
action against Jones.
4 No party has alleged that the Respondent’s decision in this regard
was unlawfully motivated or otherwise improper.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 704
lem[s] with myself and the other linemen.” Jones was
the only lineman who received an unfavorable recom-
mendation from Moss.
The Respondent subsequently hired all of the former
Northrop linemen except for Jones.
II. DISCUSSION
We agree with the judge that the Respondent violated
Section 8(a)(1) of the Act by failing and refusing to hire
Anthony Jones because of his protected activities during
his employment with Northrop Grumman. As the judge
correctly found, the standard for assessing an allegedly
discriminatory refusal-to-hire was established in FES,
supra. In order to establish a discriminatory refusal-to-
hire violation, the General Counsel must establish:

(1) that the respondent was hiring, or had concrete
plans to hire, at the time of the alleged unlawful con-
duct; (2) that the applicants had experience or training
relevant to the announced or generally known require-
ments of the positions for hire, or in the alternative, that
the employer has not adhered uniformly to such re-
quirements, or that the requirements were themselves
pretextual or were applied as a pretext for discrimina-
tion; and (3) that antiunion animus contributed to the
decision not to hire the applicants.5

FES, 331 NLRB at 12. Once the General Counsel has met
his initial burden, the burden shifts to the respondent to
show that it would not have hired the applicants even in the
absence of their union activity or affiliation. Id.
We agree with the judge that the General Counsel met
his initial burden. To begin with, the Respondent was
clearly hiring. As the judge found, the fact that the Re-
spondent did not have a position for all of the linemen
formerly employed by Northrop Grumman is irrelevant
to the liability determination here.6
Regarding the second requirement, FES requires that
the General Counsel demonstrate that the applicant had
training and experience relevant to the requirements of
the position as posted by the employer. Id. at 13. We
agree with the judge that Jones clearly met this standard,
having already worked at the linemen position for several
years. Contrary to the Respondent’s argument and our
colleague’s dissent, Jones’ limitation on his willingness
to work overtime does not indicate that Jones lacked the
relevant training and experience.7

5 FES also applies to refusal-to-hire violations directed against pro-
tected concerted activity. Bo-Ty Plus, Inc., 334 NLRB 523, 529
(2001).
6 See FES, supra,331 NLRB 14.
7 Of course, under FES, the Respondent could utilize this argument
as part of its rebuttal to the General Counsel’s initial cases. 331 NLRB
at 14. We discuss this argument in that context, infra.
Finally, the General Counsel established that Jones’
protected conduct contributed to the Respondent’s deci-
sion not to hire him. Indeed, Moss admitted as much. In
effectively recommending that the Respondent not hire
Jones, Moss stated that Jones “is very disruptive” and
“tries to keep creating problem[s].” As Moss acknowl-
edged in an affidavit, these statements referred to Jones’
earlier refusal to work overtime (in concert with another
employee) and his encouraging other employees to join
the protest, as well as his later complaints.8 As the judge
found, Jones’ statement at the interview reminded Moss
of his previous protected activities, and Moss admittedly
relied on those activities in recommending against hiring
him. Accordingly, we find that the General Counsel has
met his initial burden under FES. Id.9
We also find that the Respondent did not meet its
Wright Line rebuttal burden. The reason that Moss gave
for recommending against hiring Jones was essentially
twofold: (1) Jones “said he would not work overtime,
callouts, or on inclement weather” and (2) Jones “is very
disruptive and tries to keep creating problem[s] with my-
self and the other linemen.” The second reason refers to
the overtime protests Jones organized while at Northrop.
As such, it relies expressly on conduct that is both pro-
tected and concerted and by definition cannot establish a
Wright Line defense.10 The first reason is not true (Jones
did not say he would not work overtime) and alludes,
although indirectly, to the same protected concerted ac-
tivity he engaged in while at Northrop. Indeed, Moss

8 Moss stated in his affidavit: “In the interview results section, I
commented that Anthony [Jones] is very disruptive and tries to keep
creating problems. This comment was not based on the interview, but
just from working with him for the past 5–10 years. A number of em-
ployees talking to me about Anthony griping is what I was referring to.
On one occasion, when Jeff Creel and Anthony refused to work over-
time, they encouraged other employees to back them and their efforts
and [to] refuse to work overtime. . . .”
9 Contrary to our dissenting colleague’s observation, we find that the
Respondent’s postviolation offer to submit the hiring decision to a
group of members to be selected by the Union is of no legal signifi-
cance (given the direct evidence of unlawful motivation) and was pre-
dictably unlikely to lead to a different result: it is hard to imagine that
the members selected by the Union would have decided to select Jones
over one of the nine already hired for the job, thereby depriving that
person of a job.
10 There is no dispute that Moss’ reference to Jones’ past “disrup-
tive” activity related to the overtime protests at Northrop. Contrary to
our dissenting colleague, we find that this past activity was protected
concerted activity since Jones engaged in it with another employee and,
in any case, with the purpose of enforcing a provision of the existing
collective-bargaining agreement. See Interboro Contractors, 157
NLRB 1295 (1966), enfd. 388 F.2d 495 (2d Cir. 1967), approved in
NLRB v. City Disposal System, 465 U.S. 822 (1984). In these circum-
stances, we find it unnecessary to decide whether the judge properly
held that Jones’ conduct during the interview was also protected under
Interboro.
CHUGACH MANAGEMENT SERVICES 705
acknowledged in his affidavit that his statements referred
to Jones’ earlier efforts to encourage other employees to
join his overtime protest. Neither of these reasons then
provides a legitimate business defense.
The dissent argues that a stated requirement for the
lineman position was a willingness to work overtime,
and Jones was the only applicant who refused to work
overtime (or placed limitations on his willingness). The
flaw in the dissent is that, according to the credited tes-
timony, Jones did not refuse to work overtime, callouts
or in inclement weather. Rather, he said that “he would
just go by the Red Book,” a reference to the collective-
bargaining agreement that governed his employment at
Northrop, including its supplemental overtime agree-
ment, which had resolved many of the overtime protests
that Jones had raised. Because the Respondent does not
argue that the Red Book permitted employees to refuse
to work overtime, Moss’ stated reason for not hiring
Jones is not correct.
Arguably, the Respondent might lawfully have refused
to hire Jones because he placed a limitation on his will-
ingness to work overtime (as the dissent contends), or
because he insisted on working in accordance with the
Northrop collective-bargaining agreement, which the
Respondent was not bound to adopt. The problem is that
the Respondent did not assert either of those reasons.
Moss stated only that Jones would not work overtime,
and since that it is not correct, the defense fails. The
Respondent’s rebuttal burden is to demonstrate that, in
the absence of Jones’ protected activity, it would have
refused to hire him for these reasons, “not merely that it
might have done so or that it had a right to do so.” Mid
Mountain Foods, Inc., 332 NLRB 251, 253 (2000), enfd.
11 Fed. Appx. 372 (4th Cir. 2001) (unpublished), citing
Cadbury Beverages, Inc. v. NLRB, 160 F.3d 24, 31 (D.C.
Cir. 1998).
In short, by invoking the Red Book at his interview,
Jones brought into play the overtime controversy at
Northrop, and its resolution by agreement with the Un-
ion. His reference was, of course, obvious to Moss who
supervised Jones at Northrop. The stated reasons for
Moss’ recommendation reflect that he considered Jones
an agitator (at least on the overtime issue) and therefore
not welcome. The fact that the Respondent was not
bound to that agreement is besides the point, because the
Respondent never stated that as a reason for refusing to
hire him.11

11 The Respondent subsequently adopted the collective-bargaining
agreement with the Union.
Our dissenting colleague further argues that it could have, in any
case, refused to hire Jones based on his alleged refusal to comply with a
legitimate job requirement, a willingness to work overtime. As dis-
Accordingly, we affirm the judge’s finding that the
Respondent discriminated against Jones because of his
earlier protected activities, and find that it violated Sec-
tion 8(a)(1) of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Chugach Management Services, Inc.,
Huntsville, Alabama, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to hire any job applicant because of that
applicant’s past protected concerted activities.
(b) In any like or related manner interfering with, re-
straining or coercing employees in 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 from the date of this Order, offer
Anthony Jones immediate and full instatement to the
position unlawfully denied him, or, if that position no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights and privi-
leges previously enjoyed.
(b) Make Anthony Jones whole for all losses he suf-
fered because of Respondent’s unlawful refusal to hire
him, in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest as prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusal to
hire, and within 3 days thereafter, notify Anthony Jones
in writing that this has been done and that the refusal to
hire will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Huntsville, Alabama, copies of the attached
notice marked “Appendix.”12 Copies of the notice, on

cussed above, we have found that the Respondent did not in fact rely on
this, or any other, legitimate job requirement in refusing to hire Jones.
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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 706
forms provided by the Regional Director for Region 10,
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 September 1, 1999.
(f) 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 com-
ply.

MEMBER SCHAUMBER, dissenting.
I. INTRODUCTION
Contrary to my colleagues, I would dismiss the com-
plaint allegation that the Respondent violated Section
8(a)(1) of the Act by failing and refusing to hire Anthony
Jones for the position of high-voltage lineman. In my
view, the General Counsel did not meet his initial bur-
den, because he failed to show that Jones satisfied the
requirements for the lineman position, which included
occasional overtime work.1 Further, even assuming ar-
guendo that the General Counsel met that burden, the
Respondent presented sufficient evidence to demonstrate
that it would not have hired Jones even in the absence of
any protected activity.
II. ANALYSIS
A. General Counsel’s Initial Burden
To establish an unlawful refusal to hire, the General
Counsel must prove that (1) the Respondent was hiring,
or had concrete plans to hire, at the time of the alleged
unlawful conduct; (2) the applicant had experience or
training relevant to the announced or generally known
requirements of the position for hire; and (3) animus to-
ward protected activity contributed to the Respondent’s
decision not to hire the applicant. See FES, 331 NLRB
9, 12 (2000). In the instant case, the General Counsel

1 Whether Jones’ unwillingness to work the overtime required for
the position is viewed as rendering him not qualified for the position or
rendering his application not one for the position being offered, the
result would be the same, i.e., the Respondent did not violate the Act by
failing to hire him, so I need not expressly choose between the two in
this case.
has not demonstrated that Anthony Jones satisfied the
requirements of the lineman position for which the Re-
spondent was hiring. As set forth in the majority opin-
ion, when Supervisor Rex Moss interviewed the 10
Northrop linemen, he discussed with each of them the
Respondent’s job description, which included a require-
ment of occasional overtime work. According to Moss’
testimony, Jones was the only one of the 10 applicants
who indicated that he would not work overtime. Specifi-
cally, when Moss asked Jones whether he would be will-
ing to work overtime, Jones responded that the job de-
scription “meant nothing to him,” and that he would “go
by the Red Book,” a reference to the collective-bar-
gaining agreement between the Union and Northrop.2
Jones’ responses demonstrated that Jones did not satisfy
one of the requisite qualifications for the lineman posi-
tion.3
B. Respondent’s rebuttal evidence
Even assuming arguendo that the General Counsel pre-
sented sufficient evidence to satisfy his initial burden
under FES, however, I conclude that the Respondent
rebutted that showing, as the Respondent proffered evi-
dence demonstrating that it would not have hired Jones
even in the absence of his alleged protected activity. See
FES, 331 NLRB at 12. As discussed above, a willing-
ness to work overtime was a stated component of the job
description for the lineman position. Jones was the only
one of the lineman applicants who refused to work over-
time (or, at a minimum, placed limitations on his will-

2 Whether Jones’ comments constitute a complete refusal to work
overtime or merely a refusal to work overtime under any circumstances
that would be contrary to terms of the Union’s prior contract with
Northrop, as found by the judge, is immaterial. At a minimum, Jones
placed conditions on his willingness to work overtime, a requirement
for the lineman position. Further, it is undisputed that, at the time of
the interviews, the Respondent had not adopted Northrop’s collective-
bargaining agreement (or executed any other agreement) with the Un-
ion. Thus, irrespective of Jones’ purported belief to the contrary, the
Respondent was not—by contractual agreement or otherwise—
foreclosed from legitimately insisting on overtime work as a condition
of employment.
3 In my view, a necessary component of the General Counsel’s bur-
den under the second prong of the FES framework is a showing that the
applicant met the announced requirements for the position.
Further, I do not reach the issue as to whether the General Counsel
satisfied his burden of proving that the Respondent’s decision not to
hire Jones was motivated by animus toward protected activity. In that
regard, however, I make the following observation: The Respondent
offered to submit its hiring decision to a board consisting of three to
five members, to be selected by the Union, or by the Union and Re-
spondent jointly. Under the Respondent’s proposal, the board would
have ranked the 10 linemen following an evaluation of their respective
qualifications, and the Respondent thereafter would have hired the 9
highest-ranked candidates. Thus, the Respondent demonstrated its
willingness to unconditionally accept the determination of a neutral
panel.
CHUGACH MANAGEMENT SERVICES 707
ingness to work overtime). As reflected by Moss’ inter-
view notes, Jones’ rejection of that specified job re-
quirement served as the basis for the Respondent’s deci-
sion not to hire him. The very first line of Moss’ re-
marks supporting his recommendation that Jones not be
hired states that “[Jones] said he would not work over-
time, callouts or on [sic] inclement weather.” My col-
leagues contend that Jones did not say that he would not
work any overtime and, accordingly, the Respondent
could not lawfully defend its refusal to hire Jones on that
basis. My colleagues inappropriately elevate form over
substance. Although Jones may not have specifically
stated that he would never perform overtime work, it is
undisputed that Jones is the only one of the job appli-
cants who did not answer affirmatively when asked
whether he would be willing to work overtime or in in-
clement weather. Further, regardless of Jones’ precise
remarks, as is evident from Moss’ interview notes—on
which the Respondent relied in making its decision not to
hire Jones—Moss reasonably interpreted Jones’ re-
sponses to his questions as, at a minimum, an unwilling-
ness to work overtime in accordance with the Respon-
dent’s specifications.
In my view, it is axiomatic that an applicant’s repudia-
tion of a specified job requirement provides a legitimate
basis for the Respondent’s decision not to hire him for
the position at issue. Indeed, even the judge in this pro-
ceeding conceded that, if the Respondent possessed the
right to designate overtime work as a condition of em-
ployment, an applicant’s refusal to agree to the condition
could provide a legitimate justification for refusing to
hire that applicant. However, as the judge found that the
Respondent’s reliance on Jones’ refusal to work overtime
in a manner inconsistent with the terms of the Union’s
negotiated agreement with Jones’ predecessor employer
was a refusal to hire based on protected concerted activ-
ity, the judge concluded that the refusal to work overtime
could not constitute a legitimate basis for a denial of em-
ployment. As explained above (see fn. 1), however, the
Union did not have a contractual agreement with the Re-
spondent. Accordingly, any rights to which Jones may
have been entitled by virtue of the Respondent’s prede-
cessor’s agreement with the Union have no bearing on
the Respondent’s right to insist on compliance with its
valid job requirements.4

4 Contrary to my colleagues’ contention, the Respondent’s failure to
explicitly state that it was not bound to the Northrop-Union collective-
bargaining agreement does not preclude the Respondent from refusing
to hire Jones based on his refusal to comply with a legitimate job re-
quirement, even where such refusal was premised on a perceived right
emanating from that agreement.
III. CONCLUSION
In my judgment, since the General Counsel failed to
demonstrate that Jones satisfied the Respondent’s legiti-
mate requirements for the lineman position, he failed to
meet his initial burden to establish an unlawful refusal to
hire. However, assuming arguendo that the General
Counsel satisfied that burden, the Respondent has prof-
fered sufficient evidence to demonstrate that it would not
have hired Jones even in the absence of any protected
activity. For these reasons, I respectfully dissent.
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 obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail and refuse to hire any job applicant
because of his past protected concerted activities.
WE WILL NOT, in any like or related manner, interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by the Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, hire Anthony Jones to the high voltage electrical
lineman position or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or other rights and privileges previously en-
joyed.
WE WILL make Anthony Jones whole, with interest, for
wages and benefits lost because of our unlawful dis-
crimination against him.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to our unlaw-
ful refusal to hire, and within 3 days thereafter, notify
Anthony Jones in writing that this has been done and that
the refusal to hire will not be used against him in any
way.
CHUGACH MANAGEMENT SERVICES, INC.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 708
John Doyle, Esq., for the General Counsel.
William K. Harvey, Esq. and Gordon E. Jackson, Esq. (Jack-
son,Shields, Yeiser, and Cantrell), for the Respondent.
Jennifer T. Dewees, Esq. (Nakamura, Quinn & Walls, LLP), for
the Charging Party.
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. I heard this
case on June 15–16, 2000, and July 5–7, 2000, in Huntsville,
Alabama.1 After the parties rested, I heard oral argument, and
on July 10, 2000, issued a bench decision pursuant to Section
102.35(a)(1) of the Board’s Rules and Regulations, setting forth
findings of fact and conclusions of law. In accordance with
Section 102.45 of the Rules and Regulations,2 I certify the ac-
curacy of, and attach hereto as “Appendix A,” the portion of the
transcript containing this decision.3 The conclusions of law,
remedy, order, and notice provisions are set forth below.
CONCLUSIONS OF LAW
1. The Respondent, Chugach Management Services, Inc., is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Charging Party, International Brotherhood of Electri-
cal Workers, Local Union No. 338, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by re-
fusing to hire Anthony Jones for a position as high voltage
lineman.
4. The unfair labor practice described in paragraph 3, above,
is an unfair labor practice affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
5. The Respondent did not engage in the unfair labor prac-
tices alleged in the consolidated complaint not specifically
found herein.4

1 Respondent’s posthearing motion to receive R. Exh. 36 into evi-
dence is hereby granted, and R. Exh. 36 is received.
2 Sec. 102.45 of the Board’s Rules provides, in part, that “If the ad-
ministrative law judge delivers a bench decision, promptly upon receiv-
ing the transcript the judge shall certify the accuracy of the pages of the
transcript containing the decision . . . .” (Emphasis added.)
Typically, the administrative law judge will receive the transcript of
a bench decision within 2 to 3 weeks. When the transcript in this case
did not arrive within that time period, the Division of Judges staff made
inquiries to locate and obtain it. My office received the transcript on
August 23, 2000.
3 The bench decision appears in uncorrected form at pp. 1022
through 1044 of the transcript. The final version, after correction of
oral and transcriptional errors, is attached as App. A to this certifica-
tion.
4 I have found that although Respondent’s refusal to hire Anthony
Jones violated Sec. 8(a)(1) of the Act, by interfering with, restraining
and coercing employees in the exercise of Section 7 rights, the evidence
was insufficient to establish that this action discriminated against Jones
to discourage membership in a labor organization, within the meaning
of Sec. 8(a)(3) of the Act. The Respondent had recognized the Union
voluntarily and there is no evidence that Respondent intended to dis-
courage membership in it. Instead, Respondent sought to avoid hiring
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I recommend that it must be ordered to
cease and desist and to take certain affirmative action, de-
scribed below, designed to effectuate the policies of the Act,
including posting the notice to employees attached hereto as
Appendix B.
I recommend that Respondent be ordered to offer Anthony
Jones immediate and full instatement to the position it unlaw-
fully denied him or, if that position no longer exists, to a sub-
stantially equivalent position. I further recommend that Re-
spondent be ordered to make Anthony Jones whole, with inter-
est, for all losses he suffered because of Respondent’s unlawful
refusal to hire him.
On the findings of fact and conclusions of law herein, and on
the entire record in this case, I issue the following recom-
mended5
ORDER
The Respondent, Chugach Management Services, Inc., its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to hire any job applicant because of that appli-
cant’s assertion of a right under a collective-bargaining agree-
ment, or to interfere with, restrain, or coerce employees in the
exercise of rights guaranteed under Section 7 of the Act.
(b) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.
(a) Offer Anthony Jones immediate and full instatement to
the position unlawfully denied him or, if that position no longer
exists, to a substantially equivalent position.
(b) Make Anthony Jones whole, with interest, for all losses
he suffered because of Respondent’s unlawful refusal to hire
him.6
(c) Preserve and, within 14 days of 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 backpay due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its
place of business in Huntsville, Alabama, and at all other places
where notices customarily are posted, copies of the attached
notice marked “Appendix B.”7 Copies of the notice, on forms

an employee who had demonstrated an inclination to assert rights under
the collective-bargaining agreement.
5 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.
6 Backpay shall be computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as set forth in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
7 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-
CHUGACH MANAGEMENT SERVICES 709
provided by the Regional Director for Region 10, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees customarily are posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material.
(e) 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
Respondent has taken to comply.
APPENDIX A
JUDGE LOCKE: This is a bench decision in the case of
Chugach Services, Inc., which I will call the “Respondent,” and
International Brotherhood of Electrical Workers, Local Union
No. 558, which I will call the “Charging Party” or the “Union.”
The case number is 10–CA–32024. This decision is issued
pursuant to Section 102.35(a)(10) and Section 102.45 of the
Board’s Rules and Regulations.
The Complaint in this matter alleges that Respondent failed
and refused to hire Anthony Jones in violation of Sections
8(a)(1), and (3) of the National Labor Relations Act. For rea-
sons I will discuss, I find that Respondent’s refusal to hire
Jones violated Section 8(a)(1) of the Act. However I find the
evidence insufficient to establish a violation of Section 8(a)(3).
I will begin with a procedural history. The Union filed the
charge in this proceeding on October 20, 1999. After an inves-
tigation, the Regional Director of Region 10 of the National
Labor Relations Board issued a Complaint and Notice of Hear-
ing, which I will call the Complaint, on February 25, 2000.
In issuing the Complaint, the Regional Director acted on be-
half of the General Counsel of the National Labor Relations
Board, whom I will refer to as the General Counsel or the Gov-
ernment.
In its answer to this Complaint, and orally at hearing, the Re-
spondent has admitted certain allegations. Based upon those
admissions, and the record as a whole, I find that the General
Counsel has proven the allegations in Complaint Paragraphs 1,
2, 3, 4, 5, and 6. With respect to Complaint Paragraph 5, I find
that the name of the individuals in subparagraph (d) is Bill Tun-
still, rather than Bill Hostell.
More specifically, based upon Respondent’s admissions at
hearing, I find that during the period August 1, 1999, to Sep-
tember 30, 1999, Bill Scillian, Ray Stephenson, Rex Moss, and
Bill Tunstill were Respondent’s agents for the purpose of se-
lecting Respondent’s work force. Additionally, during this
period, Mr. Scillian was Respondent’s agent for the purpose of
entering into collective-bargaining agreement with unions rep-
resenting the workforce. Further, I find that since October 1,
1999, these individuals have been both supervisors and agents
of Respondent.

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.”
Respondent has a contract with the United States Army to
maintain the electrical system at the Army’s Redstone Arsenal
near Huntsville, Alabama. It began performing services under
this contract on October 1, 1999. Before that time, another
contractor, Northrop Grumman, performed these services. I
will refer to Northrop Grumman simply as “Northrop.”
When Respondent replaced Northrop Grumman as contrac-
tor, it hired some of Northrop’s supervisors, including Rex
Moss, who supervised the high voltage linemen. Respondent
assigned to Moss the task of interviewing these linemen and
determining which ones he would recommend for hire.
Although Northrop employed ten high voltage linemen,
Chugach determined that it only needed to fill nine such posi-
tions. Therefore, at least one of the Northrop linemen would
not be hired.
Moss gave one of the linemen, Anthony Jones, an unfavor-
able recommendation. Although Respondent hired the other
eight high voltage linemen, it did not hire Jones. The govern-
ment alleges that Respondent discriminated against Jones be-
cause he asserted rights under a collective-bargaining agree-
ment, which Northrop had negotiated with the Union.
Chugach denies that Jones had engaged in any activity pro-
tected by the Act. Additionally, Respondent denies that it had
an unlawful motive and points to several facts which, it asserts,
demonstrate a lack of animus against the Union. Notably, Re-
spondent recognized the Union as the exclusive collective bar-
gaining representative of the linemen, and signed a contract
with the Union identical to that previously signed by Northrop.
In determining whether Respondent’s refusal to hire Jones
was unlawful, it is helpful to begin by reviewing Jones’ em-
ployment history. Beginning in 1986, Jones worked for con-
tractors performing services at the Redstone Arsenal. The first
contractor which employed Jones was Holmes and Narver. In
1987, while working for this contractor, Jones became a high
voltage lineman.
When Northrop obtained the contract to perform the same
services, it hired Jones as a high voltage lineman, and he con-
tinued to perform this work until the end of Northrop’s contract
in September 1999. During much of the time Jones worked for
Northrop the assignment of overtime caused conflicts between
the employees and management.
In 1996, Jones filed a grievance regarding allocation of over-
time. This grievance invoked Section 10.8 of the Union’s col-
lective-bargaining agreement with Northrop, which stated, in
part, as follows:

Before requiring employees to work overtime, the company
will request volunteers from among the employees in the sec-
tion in which overtime will be worked. Overtime will be al-
located as equally as possible among such employees . . . .

At step 4 of the grievance procedure, the Union sent an April
8, 1996 letter to Northrop’s program manager, stating in part,
“the Union feels the allocation process has not been used as
equally ‘as possible’, therefore, according to Article VII, Sec-
tion 7.2(d), the Union does hereby appeal. This contractual
procedure authorized a grievance committee consisting of un-
ion and company representatives to resolve the matter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 710
However, issues related to overtime continued to cause fric-
tion. One aspect of the overtime policy related to employees
not actually on duty, but on “standby” status. Northrop took
the position that the first two employees in line for mandatory
overtime were on such standby status, and had to inform the
company where they could be reached during non-duty hours.
On May 2, 1997, Northrop’s control room operator contacted
Jones while Jones was off duty, and advised him to report for
work to respond to a power outage. Jones replied, in effect,
that he had been drinking and was not able to perform high volt-
age work safely. Northrop considered Jones to have violated a
company rule and suspended him for three days.
Jones filed a grievance resulting in negotiations between the
Union and Northrop. In July 1997, the parties reached an
agreement which rescinded the suspension, and, more gener-
ally, established an overtime policy which both sides consid-
ered an improvement.
When Respondent replaced Northrop as contractor, it con-
tinued this overtime agreement. However, the Union and Re-
spondent do disagree to some extent on how this agreement
should be interpreted. The Union maintains that the agreement
does not provide for mandatory overtime. The Respondent
counters that although the agreement does not contain the word
mandatory, it does allow Respondent to require an employee to
work overtime under certain circumstances.
Before Respondent replaced Northrop as contractor, Jones
applied for a position as a high voltage lineman. Rex Moss,
who supervised Jones conducted the job interview. In accor-
dance with the Respondent’s admission, I find that in conduct-
ing this interview, and in making his recommendations regard-
ing employees to be hired, Moss was acting as Respondent’s
agent.
During the interview, Moss discussed the elements of the job
description for high voltage lineman. The job description lists a
number of special requirements, including the following, “May
occasionally be required to work overtime and in inclement
weather.”
According to Moss, several times during the interview, Jones
said that he did not go by the job description, but by the “red
book,” meaning the collective-bargaining agreement. Jones
gave similar, but not quite identical testimony, stating that
when Moss referred to the job description, Jones replied, “Well,
I just go by the bargaining agreement.”
After interviewing Jones, supervisor Moss wrote an unfavor-
able recommendation. It stated as follows:

When interviewed, Anthony said he would not work
overtime, callouts, or on inclement weather. Anthony was
very uncooperative, and did not want to answer any ques-
tions.
Anthony is very disruptive and tries to keep creating
problems with myself and the other linemen.
I recommend that Anthony not be rehired, and re-
placed with another lineman. Anthony does not put forth
any effort to help the company, or anyone else to make
this job easier for everyone. Anthony seems totally unsat-
isfied with his job and with company.”

Respondent did not offer Jones employment. The govern-
ment asserts that by failing to offer Jones employment, Re-
spondent interfered with, restrained, and coerced employees in
exercise of rights guaranteed in Section 7 of the National Labor
Relations Act and thereby violated Section 8(a)(1) of the Act.
The Complaint also alleges that this action constitutes discrimi-
nation against Jones in violation of Section 8(a)(3) of the Act.
It is helpful to review the legal standards for determining
when an employer’s refusal to hire a job applicant violates the
Act. The Board recently summarized these standards in FES,
331 NLRB No. 20 [9] (May 11, 2000). To establish a discrimi-
natory refusal to hire, the General Counsel must prove the fol-
lowing elements:

First that the Respondent was hiring, or had concrete
plans to hire at the time of the alleged unlawful conduct;
Second that the applicants had experience or training
relevant to the announced or generally known require-
ments of the positions for hire, or in the alternative, that
the employer has not adhered uniformly to such require-
ments, or that the requirements were themselves pretextual
or were applied as a pretext for discrimination; and
Third, that antiunion animus contributed to the deci-
sion not to hire the applicants.

Once the General Counsel has established these elements,
the burden will shift to the Respondent to show that it would
not have hired the applicants even in the absence of their union
activity or affiliation. If the Respondent asserts that the appli-
cants were not qualified for the positions it was filling, it is the
Respondent’s burden to show at the hearing on the merits that
they did not possess the specific qualifications that the position
required, or that others (who were hired) had superior qualifica-
tions and that it would not have hired them for that reason even
in the absence of their union support or activity.
I find that the evidence clearly establishes the first element.
It is undisputed that Respondent was planning to hire employ-
ees at the time Moss interviewed Jones. In fact, Respondent
did hire nine high voltage linemen.
Second, I find that the General Counsel has proven that
Jones met the requirements for the position of high voltage
linemen. The job description included the requirement of four
years’ experience as a journeyman high voltage lineman, and
Jones had about twelve years experience in that position.
The government must also establish that antiunion animus
contributed to the decision not to hire Jones. Both Jones and
Moss testified that during the job interview, Jones said that he
would go by the collective-bargaining agreement. Moss’s tes-
timony, which I credit, indicates that Jones made this comment
several times, in the context of a discussion of the job descrip-
tion. Thus, I conclude that Jones was communicating that the
negotiated agreement, rather than the job description, controlled
the assignment of overtime.
Jones’ statement carried considerable emotional freight, con-
sidering the history which he and Moss shared. Moss had been
Jones’s supervisor when Jones filed the two grievances con-
cerning overtime issues. These grievances implicitly chal-
lenged management’s authority to define, unilaterally, when it
CHUGACH MANAGEMENT SERVICES 711
could require a lineman to work at other than regularly sched-
uled times.
When Moss gave Jones an unfavorable recommendation, he
did not write that Jones stated that he would go by the collec-
tive-bargaining agreement rather than by the job description.
Rather, Moss wrote in the recommendation that Jones “said he
would not work overtime.” This statement either mischaracter-
izes or ignores the essence of what Jones told Moss, namely
that he would follow the negotiated contract. However, when
Moss wrote this recommendation, he was acting as Respon-
dent’s agent, and his knowledge of what Jones communicated
must be attributed to the higher management officials who
acted upon Moss’s recommendation.
I find that when Moss recommended that Jones not be hired,
he was motivated, at least in part, by Jones’ assertion that he
would follow the collective-bargaining agreement rather than
the job description. Moss had supervised Jones in 1986 and
1987, when Jones filed grievances regarding overtime policy,
and Moss certainly knew about the conflict accompanying
these grievances.
Respondent asserts that the agreement negotiated by North-
rop and the Union in 1987 laid to rest the conflicts concerning
overtime. Under this reasoning, Moss would not be afraid that
Jones would raise similar disputes if hired by Respondent.
In this regard Moss testified that after Northrop and the Union
reached agreement on overtime, he held a party to celebrate.
However, the conflict regarding overtime still had at least a little
life left. Thus, even at hearing, the Respondent and the Union
did not agree on whether overtime ever was mandatory.
Moreover, even if Union and Northrop had totally resolved
the overtime issue through their 1997 agreement, Jones’ insis-
tence that he would go by the “red book” could suggest that he
would raise conflicts with respect to other contractual matters.
Specifically, the term “red book” does not refer to the 1997
overtime agreement, but to the more general collective-
bargaining agreement between the Union and Northrop. This
contract, in evidence as Joint Exhibit 1, has a red cover.
Jones’ statement that he would follow the “red book” could
easily suggest that he would be raising other contractual issues
if Respondent hired him. Indeed, in his recommendation not to
hire Jones, Moss wrote, “Anthony is very disruptive, and tries
to keep creating problems with myself and the other linemen.”
This statement is fully consistent with the fear that Jones would
continue to insist upon rights under the contract.
The General Counsel contends that when Jones expressed an
intent to rely upon the collective-bargaining agreement, that
statement constituted protected activity. See Interboro Con-
tractors, 157 NLRB 1295 (1966), and NLRB v. City Disposal
Systems, Inc., 465 US 822 (1984). See also Union Carbide
Corp., 331 NLRB No. 54 [356] (June 21, 2000).
Respondent however, asserts that when Jones made the
statement about following the “red book,” he was claiming that
overtime was not mandatory under any circumstances, an issue
which he reasonably and honestly could not raise in view of the
1997 agreement which the Union and Northrop had reached on
this issue, an agreement which Respondent had adopted.
Therefore, Respondent argues, this statement was not protected
by the [A]ct.
Respondent’s argument is not persuasive. As noted in Frances
Building Cooperative, 327 NLRB No. 89 [485] (January 29,
1998), an employee does not have to be correct in his assertion
that a provision of the collective-bargaining agreement has been
violated. The Act protects an employee’s right to protest a con-
tractual violation so long as his complaint or action is based on a
reasonable and honest belief that his contractual rights have been
violated, and so long as this action is reasonably directed toward
enforcement of a collectively bargained right.
Even at the hearing in this matter, some three years after the
Union and Northrop reached the overtime agreement, the par-
ties spent considerable time eliciting testimony on whether
overtime could ever be mandatory. Respondent, in effect, con-
tends that this dispute is merely a matter of semantics, and that
it could require overtime even though the Union was unwilling
to use the word “mandatory” in its agreement. Of course, the
lawyers in this proceeding were very reasonable and honest
individuals, and if they cannot agree on whether the contract
provides for mandatory overtime, it would certainly not be
unreasonable or dishonest for an employee to raise a similar
issue. Therefore, I conclude that raising a contractual issue
about mandatory overtime would not, even now, exclude an
employee from the protection of the Interboro doctrine.
Moreover, Jones’ statement, which I find to be protected,
was that the would go by the “red book,” that is, by the collec-
tive-bargaining agreement rather than by the job description.
This statement is not limited to issues about overtime. The “red
book” addresses many other topics. The law certainly protects
an employee’s statement to the effect that the negotiated collec-
tive-bargaining agreement prevails over a unilaterally-drafted
job description. Discriminating against an employee because of
fear that the employee will assert any right under the collective-
bargaining agreement is unlawful.
In oral argument, Respondent suggested that the Act did not
protect Jones’ statement because evidence did not establish that
Jones was asserting anyone’s right but his own. However, the
evidence clearly establishes that when Jones filed his grievance
concerning overtime, the Union pursued this grievance vigor-
ously on behalf of all the linemen in the bargaining unit. Re-
spondent had no reason to believe that if Jones asserted another
right under the contract, the Union would be any less diligent.
In sum, I conclude that the General Counsel has established
the third element under the framework described in FES.
Therefore, I find that the burden shifts to the Respondent to
establish that it would not have hired Jones in any event.
About ten years ago, when both Jones and Moss were work-
ing as linemen for the contractor then providing services to the
Redstone Arsenal, they had an altercation in which Jones called
Moss a name, and Moss hit Jones. If the evidence established
that a lingering grudge would have prevented Moss from hiring
Jones under any circumstances, I would find that the decision
not to hire Jones did not violate the Act. In other words, I do
not sit in judgment regarding whether the decision met some
particular standard of fairness, or whether I would have made
the same decision. Rather, I only decide whether the officials
who did make the decision would have reached the same result
in the absence of any unlawful motivation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 712
However, the evidence does not establish that Moss carried a
grudge against Jones. Moss’s pretrial affidavit, in evidence as
General Counsel’s Exhibit 29, states, “Anthony and I had a
scuffle around 1990, but it had nothing to do with him not be-
ing rehired.” No evidence contradicts this assertion, and I find
it to be true.
At hearing, the Respondent elicited testimony from a number
of his linemen concerning their reluctance to work with Jones.
They painted a picture of Jones being unwilling to wear his
safety apparel, and less than attentive to his duties.
Their testimony may be relevant in two ways. If Moss relied
upon the opinions of these linemen in making his recommenda-
tion, then these opinions may constitute a lawful reason for
deciding not to hire Jones. In that event, I must determine
whether Moss would have made the same recommendation, not
to hire Jones, based on these opinions, and even if Jones had
not engaged in protected activity.
Additionally, the testimony of these linemen may be relevant
to the extent it corroborates the opinion which Moss reached
while supervising Jones’ work. For example, Moss testified
before Northrop got the contract to perform services at the Red-
stone Arsenal, both he and Jones had worked as linemen for the
previous contractor. When Northrop took over, it made Moss a
supervisor, and asked him to perform a role similar to that he
later performed for Chugach, namely, making recommenda-
tions as to which of the previous contractor’s linemen should be
hired.
Moss testified that he recommended Northrop not hire Jones
because of problems with Jones’ work. However, at the last
minute, Northrop’s higher management overruled this decision
and hired Jones anyway. Respondent argues that since Moss
did not recommend Jones for employment at this time, when
Jones had not engaged in protected activity, Moss would have
made the same decision for Chugach in 1999, regardless of
Jones protected activity.
This argument has considerable force. However, in evaluat-
ing it, I must determine as nearly as possible what Moss took
into account when he evaluated Jones for possible employment
by the Respondent.
The General Counsel contends that Moss’s pretrial affidavit
gives a more accurate picture of this decision making thought
process than does his testimony at hearing. Specifically, the
General Counsel argues that by the hearing date, Moss had
more time to come up with additional reasons for failing to hire
Jones, reasons that had not entered Moss’s mind at the time of
the decision.
The General Counsel introduced Moss’s affidavit into evi-
dence. Board decisions allow me to consider statements in this
document for the truth of the matters they assert, even though
the affiant made the statements outside the courtroom, and at a
time he was not subject to cross-examination. See Alvin J. Bart
& Co., 236 NLRB 242 (1978); St. John Trucking, 303 NLRB
723 (1991).
Additionally, in this case, Moss’s pretrial affidavit does not
constitute hearsay because he is an agent and supervisor of
Respondent. The statements he made in that capacity constitute
admissions of a party opponent within the meaning of Rule
801(d)(2) of the Federal Rules of Evidence.
Moss’s pretrial affidavit does not indicate that he failed to
recommend Jones for employment because of problems with
Jones’ work. Moss’s affidavit recounts that he had been Jones’
supervisor for 5 years and states, “I had never had any prob-
lems with his work, except for sometimes he was careless.
There were some linemen that he did not want to work with.
The only ones he wanted to work with were Tommy
Wooldridge and James Lane. I knew this because Anthony had
requested to work with those two as much as possible. There
was not anyone who requested not to work with Anthony.”
The statement that “there was not anyone who requested not
to work with Anthony,” is straightforward, and there is no rea-
son to believe that it resulted in miscommunication between the
affiant and the Board agent. Because Moss had been called
upon to explain his recommendation not to hire Jones, it would
appear likely that he would have mentioned in his affidavit any
instances in which another lineman had refused to work with
Jones.
Based on this statement in the affidavit, I cannot conclude
that Moss relied on the opinions of Jones’ fellow linemen in
recommending that Respondent not hire him. However, Moss
did report in his affidavit that Moss was sometimes careless,
and there is certainly reason to believe that Moss held this opin-
ion in good faith. The four other linemen who testified at the
hearing expressed similar opinions.
In his affidavit, Moss also explained the reasons he gave in
his written recommendation not to hire Jones. Examining his
explanation will help determine the extent to which Jones’
work problems and carelessness affected Moss’s recommenda-
tion. Moss’s affidavit states, in part, as follows:

During the interview, I specifically asked Anthony if
he would be willing (in reference to Job Description 5d) to
work overtime and in inclement weather. Anthony said
NO. It meant nothing to him, that he would go by the Red
Book. From those comments from Anthony, I based the
first comment of my interviewer comments.
I continued to ask him questions, and he would only
say that it didn’t matter to him, that he would just go by
the Red Book. No other employees referred to the Red
Book. The basis of my second statement that Anthony
was very uncooperative, and didn’t want to answer my
questions, was by his answering that he just wanted to go
by the Red Book on a number of occasions.
In the interview result section, I commented that An-
thony is very disruptive and tries to keep creating prob-
lems. This comment was not based on the interview, but
just from working with him for the past 5–10 years. A
number of employees talking to me about Anthony griping
is what I was referring to. On one occasion, when Jeff
Creel and Anthony refused to work overtime, they encour-
aged other employees to back them and their efforts and
refuse to work overtime. A number of employees, specifi-
cally Ralph Bates and Bobby Miller, Steve Pearson and
maybe others that I can’t recall, came to me to tell me
what Jeff and Anthony were saying and that they did not
support Anthony and Jeff in refusing to work overtime. It
was Anthony and Jeff’s refusal to work overtime that led
CHUGACH MANAGEMENT SERVICES 713
to their discipline and then led to the grievance that led to
the July 24, 1997 agreement.
Anthony kept picking on this mentioned agreement
about overtime. He came to me and he went to others and
complained. To the best of my recollection, after the
agreement had been signed, both Bobby and Ralph had
come to me because Anthony had been telling them it
needed to be changed, (the agreement). About a year after
the agreement was reached, when these complaints were
said Anthony never again refused overtime.

In the last sentence quoted, the word “said” appears to be a
typographical error. It appears more likely that the intended
word was “settled.”
At the bottom of this page of the affidavit appears an addi-
tional sentence, “These were the only times the employees
came to me, aggravated with Anthony’s complaints of the over-
time policy.” There is an arrow pointing towards this sentence,
with Moss’s initials beside the arrow.
Later, in the affidavit, Moss noted that other employees had
complained to him about hours, tools, and equipment, but that
Jones had not complained about anything but overtime and with
whom he worked it.
It is important to determine whether Moss recommended
against hiring Jones because he believed Jones would refuse to
work overtime, which would be a lawful reason for not hiring
him, or because he believed Jones would assert rights under the
collective-bargaining agreement, which is unlawful. According
to Moss’s affidavit, Jones said NO, meaning that he would not
work overtime.
However, it is difficult to take that statement at face value.
Elsewhere in the affidavit, Moss indicated that after Jones’
overtime complaints were settled, he did not again refuse to
work overtime.
Moreover, Moss’s affidavit explained that Jones kept refer-
ring to the “red book,” meaning the collective-bargaining
agreement, and that no other applicant referred to the “red
book.” Thus Moss certainly took into account that Jones was
aware of his contractual rights, and might assert them as he had
done previously.
Additionally, Moss wrote on his unfavorable recommenda-
tion that Jones was disruptive and tried to create problems.
Explaining the word “disruptive” in his affidavit, Moss reported
that Jones had encouraged other employees to refuse to work
overtime. Thus, Moss was referring to Jones’ exhorting other
employees to engage in concerted activity and/or to assert a
contractual right.
Clearly, in explaining why he gave Jones an unfavorable
recommendation, Moss focused on Jones’ references to the
collective-bargaining agreement, and to the times Jones urged
other employees to side with him on the overtime issue.
Most telling, I believe, is the comment in Moss’s affidavit
that Moss had received information from other employees that
Jones believed that the 1997 overtime agreement needed to be
changed. Based upon this information, Moss had reason to
conclude that if Respondent hired Jones, Jones would seek to
reopen an issue that Moss believed had been put to rest.
Indeed, from his own testimony, it is clear that when the Un-
ion and Northrop reached agreement on the overtime issue in
1997, Moss was so happy that he paid for a party out of his own
money. Needless to say, Moss would not have wished to hire
an employee whom he believed wanted to undo this agreement
he considered beneficial, and have the Union negotiate a new
one.
In sum, Moss’s affidavit suggests that when he recom-
mended against hiring Jones, his reasoning focused to a large
extent on the position Jones had taken on the overtime issue,
clearly an issue of contract interpretation, which the Union and
Northrop ultimately resolved. Similarly, Moss focused on what
he called “Anthony griping” about the overtime issue. Except
in unusual circumstances not present here, an employee griping
to other employees about a term or condition of employment is
engaged in activity protected by the Act.
The issue I must decide is a narrow one, namely, would
[S]upervisor Moss have made the same recommendation if
Jones had engaged in no protected activities. Respondent bears
the burden of proof on this issue, but I find that Respondent has
not carried its burden.
As Moss’s affidavit makes clear, thoughts about Jones’ pro-
tected activity permeated his decision-making process. I cannot
conclude that he would have made the same recommendation if
Jones had engaged in no protected activities, even though
Jones’ work as an employee had been less than perfect.
Therefore, I find that by refusing to hire Anthony Jones, the
Respondent interfered with, restrained, and coerced employees
in the exercise of Section 7 right[s], in violation of Section
8(a)(1) of the Act. The Complaint also alleges that this action
violated Section 8(a)(3) of the Act. However, I do not find the
evidence sufficient to establish a violation of 8(a)(3).
When I receive the transcript of this proceeding, I will pre-
pare a certification of Bench decision to which I will attach the
portion of the transcript supporting this decision.
This certification will also include provisions relating to
remedy order and notice. When that document is served on the
parties, the time for filing the appeal if any, will begin to run.
Thank you for your cooperation in this matter, the hearing is
closed.
APPENDIX B

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 ordered us to post and
abide by this notice.

Section 7 of the National Labor Relations Act gives employ-
ees the following rights:

To form, join, or assist labor organizations;
To bargain collectively through representatives of their
own choosing;
To engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection;
To refrain from any or all such activities.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 714
WE WILL NOT refuse to hire any job applicant because that job
applicant might assert a right under our collective-bargaining
agreement with the Union, or otherwise to interfere with, re-
strain, or coerce employees in the exercise of rights guaranteed
by Section 7 of the Act.
WE WILL NOT, in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL offer Anthony Jones immediate and full instatement
to the position we unlawfully denied him or, if that position is
no longer available, to a substantially equivalent position.

CHUGACH MANAGEMENT SERVICES, INC.

John Doyle, Esq., for the General Counsel.
William K. Harvey, Esq., Gordon E. Jackson, Esq. and Valerie
Barnes Speakman, Esq. (Jackson, Shields and Yeiser), of
Memphis, Tennessee, for the Respondent.
Jennifer T. Dewees, Esq. (Nakamura, Quinn & Walls, LLP), of
Birmingham, Alabama, for the Charging Party
SUPPLEMENTAL DECISION
KELTNER W. LOCKE, Administrative Law Judge. On July 10,
2000, I issued a bench decision in this matter. Following the
certification of that bench decision, Respondent filed timely
exceptions. On July 1, 2002, the Board issued a Decision and
Order Remanding Proceeding, which directed as follows:

The judge should make additional credibility determi-
nations and factual findings as are necessary to evaluate
the Respondent’s argument, as set forth in its brief, that it
would have refused to hire Anthony Jones even in the ab-
sence of his protected conduct.

On July 9, 2002, Respondent filed a “Motion for Briefing
Schedule Pursuant to the Board’s Decision and Order Remand-
ing Proceeding.” By order dated July 24, 2002, I set August
16, 2002 as the deadline for filing briefs. Both the Respondent
and General Counsel have filed timely briefs, which I have
considered.
Background
The United States Army operates the Redstone Arsenal at
Huntsville, Alabama. It contracts with a private company to
maintain the base’s electrical system and, from time to time,
selects a new contractor to perform this service.
In 1999, Northrop Grumman (“Northrop”) was doing this
work when the Army decided to award the contract to Respon-
dent, which took over the duties on October 1, the start of the
Army’s fiscal year. Northrop employed 10 high voltage electri-
cal linemen, but Respondent decided it could do the job with only
9. It hired their supervisor, Rex Moss, and told him to make
recommendations concerning which linemen it should hire.
At that time, the alleged discriminatee, Anthony Jones, was
working for Northrop as a high voltage lineman under Moss’s
supervision. Moss interviewed Jones, as well as the other
linemen, but did not recommend that Respondent hire Jones. It
did not.
During Jones’ job interview, Moss referred to a job descrip-
tion for the high voltage lineman position. The job description
provided, in part, that the lineman occasionally could be re-
quired “to work overtime and in inclement weather.” When
asked about this requirement, Jones indicated that he would go
by the collective–bargaining agreement, rather than the job
description.
The subject of required overtime had been a bone of conten-
tion between the Union and Northrop. Finally, Northrop and
the Union had reached an agreement concerning when linemen
would have to work overtime.
This agreement reduced both the number of overtime dis-
putes and the stress level for all involved. However, the
agreement did not signify that labor and management had
reached a complete understanding. Even at the hearing in this
case, several years after the overtime agreement went into ef-
fect, the Union and management disagreed about Respondent’s
authority to make overtime mandatory.
Therefore, when Jones asserted in the job interview that he
would go by the collective–bargaining agreement rather than by
what the job description said about overtime, those words did
not endear him to Moss. As the first–line supervisor, Moss had
found himself at the unpleasant center of the overtime dispute,
where he had to deal both with the demands of higher manage-
ment and the conflicting demands of many linemen.
After analyzing the testimony and other evidence, I con-
cluded that when Jones indicated to Moss that he would follow
the collective–bargaining agreement rather than the description
of required overtime in the job description, Jones was engaging
in activity protected by the National Labor Relations Act. Fur-
ther, I concluded that animus engendered by this protected
activity had contributed to Moss’s recommendation, which
Respondent followed, not to hire Jones. Additionally, I con-
cluded that Respondent fell short of demonstrating that it would
not have hired Jones in any event, even in the absence of pro-
tected activity.
Scope of Remand
The Respondent’s brief raises some matters which appear to
lie outside the scope of the Board’s remand order. Whether I
can, or should, consider such issues depends on the Board’s
instructions to me when it remanded the case. Those specific
instructions, in turn, must be understood in the context of the
Board’s general procedures in deciding cases alleging an
unlawful refusal to hire, so it is helpful to begin with a brief
summary of that framework.
As the Board stated in FES, 331 NLRB 9 (2000), to establish
a discriminatory refusal to hire, the General Counsel must first
prove the following elements by a preponderance of the evi-
dence:
1. That the respondent was hiring, or had concrete plans to
hire, at the time of the alleged unlawful conduct;
2. That the applicants had experience or training relevant to
the announced or generally known requirements of the posi-
tions for hire, or in the alternative, that the employer has not
adhered uniformly to such requirements, or that the require-
ments were themselves pretextual or were applied as a pretext
for discrimination; and
3. That antiunion animus contributed to the decision not to
hire the applicants.
CHUGACH MANAGEMENT SERVICES 715
Once the General Counsel has made this initial showing, the
burden shifts to the Respondent to establish that it would not
have hired the applicant even in the absence of the applicant’s
union activity or affiliation.
In its remand order, the Board directed me to “make addi-
tional credibility determinations and factual findings as are
necessary to evaluate the Respondent’s argument, as set forth in
its brief, that it would have refused to hire Anthony Jones even
in the absence of his protected conduct.” Significantly, the
Board’s order did not instruct me to make any findings con-
cerning the matters falling within the General Counsel’s initial
burden of proof, listed above.
Absent any direction to reexamine the evidence presented by
the General Counsel to meet the government’s burden, I must
assume that the Board has not authorized me to revisit such
issues. Rather, I conclude that I have jurisdiction only to con-
sider whether the Respondent has rebutted the General Coun-
sel’s case by proving that it would not have hired Jones in any
case, regardless of protected activities.
For two reasons, I will examine these issues briefly. First,
even though a number of Respondent’s arguments concern
issues apparently outside the scope of the remand, a discussion
of them brings into sharper focus the issues which the Board
placed before me. Second, there remains the possibility that the
Board intended its remand instructions to have greater breadth.
In case the Board did intend for me to revisit issues pertaining
to the General Counsel’s case, the discussion below will pro-
vide such analysis.
Respondent’s Arguments Outside the Scope of the Remand
Respondent raised a number of arguments in its brief. The
subheadings below described the Respondent’s arguments. My
conclusions appear in the text.
I. RESPONDENT “WAS NOT HIRING”
In its brief, Respondent raises a number of challenges to the
elements falling within the General Counsel’s burden of proof.
Even if I were to consider these arguments, they are less than
persuasive.
For example, Respondent argues that the General Counsel
did not prove the first element, that Respondent was hiring, “in
that the Employer undisputedly intended to hire only nine line-
men, not ten.” This argument does not rest comfortably with
common experience. In many if not most instances, there will
be more job applicants than jobs.
Additionally, the argument rests on an incorrect understand-
ing of the General Counsel’s burden. The General Counsel
does not have to demonstrate that the employer intended to hire
every applicant, only that it intended to hire someone. It would
be strange to conclude that an employer seeking to fill 3 job
openings “was not hiring” because it could not offer work to all
7 candidates who applied.
II. THE GENERAL COUNSEL DID NOT PROVE THAT
JONES WAS “QUALIFIED”
Respondent’s brief also argues that the General Counsel did
not meet its burden of proving that Jones was qualified for the
position he sought. As Respondent frames this argument, the
issue falls outside the Board’s remand. However, I believe the
argument still warrants discussion for the following reasons:
1. The argument misconceives the way the Board allocated the
burdens of proof in FES. Therefore, some discussion of the ar-
gument is needed for clarity.
2. Respondent’s assertion that Jones did not meet it’s job re-
quirements leads to the issue of what requirements Respondent
lawfully could impose. This issue must be resolved because it
affects the ultimate question posed by the Board’s remand,
namely, whether Respondent would have refused to hire Jones
even in the absence of his protected activities.
First, Respondent’s misconception of the FES framework
will be addressed. Respondent argues that the General Counsel
bore the burden of proving that Jones was qualified and that the
General Counsel did not meet this burden. Respondent’s brief
discusses this argument under a subheading captioned “The
Board Did Not Meet Its Burden of Proving That Mr. Jones Was
Qualified for the Position for Which He Was Applying.” (In
context, it is clear that when Respondent used the term
“Board,” it was referring to the General Counsel.)
Respondent’s argument misapprehends the burden which
rests on the General Counsel. Under the FES test, discussed
above, the General Counsel does not bear the burden of proving
that the job applicant was “qualified.” Rather, under the second
prong of the FES test, the General Counsel must prove that the
“applicants had experience or training relevant to the an-
nounced or generally known requirements of the positions for
hire, or in the alternative, that the employer has not adhered
uniformly to such requirements, or that the requirements were
themselves pretextual or were applied as a pretext for discrimi-
nation” FES, 331 NLRB 9, 10 (2000).
On first reading, the Board’s test may appear to impose upon
the General Counsel the burden of demonstrating that an appli-
cant was qualified to do the job, but the word “qualified” does
not appear in the Board’s formulation. A careful reading leads
to the conclusion that the Board did not intend to require the
government to prove an applicant qualified. Rather, the Board
imposed on the General Counsel the burden of proving that the
applicant met the ostensible requirements of the position, that
is, the requirements which an employer held out either to the
public in general (as in a help wanted advertisement) or to the
job seekers when they applied.
Alternatively, the General Counsel may satisfy the second
element of the FES test by proving that the employer did not
follow the stated requirements or that these requirements were,
in effect, a sham to conceal unlawful discrimination. Neither of
these alternatives requires the government to prove an applicant
“qualified.” Therefore Respondent’s argument rests on an in-
correct assumption.
The Board does not sit as a creator and custodian of job quali-
fications in the way that the Académie Française exercises do-
minion over the French language. Rather, individual employers
determine what qualifications a job requires. In doing so, they
may be guided by local codes mandating, for example, that elec-
tricians be licensed, but neither the National Labor Relations Act
nor the Board’s Rules intrude upon an employer’s discretion to
establish the requirements for a particular job.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 716
Moreover, in an unfair labor practice case, the Board does
not set out to arbitrate what are the “true” qualifications for a
given position. It only sifts below the surface of job require-
ments when necessary to find out if antiunion animus lurks
underneath.
Under the Board’s FES formulation, the General Counsel
may prove the second element merely by showing a match
between the announced requirements of the position and the
applicant’s training and qualifications. This showing requires
less than proving that the applicant is “qualified” to do the job.
Thus, in FES, supra, the Board continues as follows:

If the respondent asserts that the applicants were not qualified
for the positions it was filling, it is the respondent’s burden to
show, at the hearing on the merits, that they did not possess
the specific qualifications the position required or that others
(who were hired) had superior qualifications, and that it
would not have hired them for that reason even in the absence
of their union support or activity.

The argument in Respondent’s brief apparently ignores this
allocation of the burdens of proof. Therefore, it is not persua-
sive.
III. JONES DID NOT MEET THE ESTABLISHED JOB REQUIREMENTS
This assertion, that Jones lacked the necessary qualifications,
does raise an issue within the scope of the Board’s remand,
because it sheds light on what Respondent would have done
with Jones’ application even in the absence of protected activi-
ties. The argument will be examined here, rather than later in
this decision, because Respondent raised it in connection with
Respondent’s related argument, discussed above, that the Gen-
eral Counsel failed to establish that Jones was qualified for the
position.
Respondent claims that Jones lacks two separate “qualifica-
tions” for the job. This deficit, Respondent argues, would dis-
qualify Jones from employment in any event.
A. Jones Was Not Qualified Because He Was Not “The Best”
First, Respondent contends that higher management in-
structed Supervisor Moss to pick the “best” linemen without
regard to seniority. Jones was not one of the “best” linemen,
Respondent argues, and therefore he failed to meet this “only
the best” qualification.
That argument appears rather circular, to say the least. It as-
sumes the fact which Respondent bears the burden of proving,
namely, that Jones was not among the “best.”
Additionally, because 10 applicants applied for jobs, and Re-
spondent hired 9 of them, asserting that Jones was not “the
best” is tantamount to saying that he was the worst. Respon-
dent bore the burden of proving either that Jones did not have
the specific qualifications for the lineman position or that the
other 9 applicants had superior qualifications. It cannot carry
this burden simply by claiming that Jones was not the “best.”
B. Jones Lacked Another “Qualification”—A Willingness
To Work Overtime
Respondent asserts that it had established a second qualifica-
tion for the lineman position and that Jones did not satisfy this
requirement, either. According to Respondent, this “qualifica-
tion” consisted of a willingness to work overtime as provided in
the job description which Supervisor Moss read to the appli-
cants. Thus, Respondent’s brief states:

Moss testified that he used the same format for interviewing
all ten linemen for employment with Respondent. He used
the job description which incorporated the qualification that
the applicant if hired must sometimes work overtime.

. . . .

Both Mr. Bates and Mr. Moss state that during his interview
Mr Jones said that he would not work overtime. It is undis-
puted that Mr. Moss viewed this to be an indication that Mr.
Jones did not meet one of the employment qualifications for
working for Respondent, Chugach.
[Respondent’s brief at pp. 12, 13 (emphasis added).]

Respondent’s argument—that one qualification for the line-
man position consisted of a willingness to work overtime—
appears reasonable standing alone, but it takes on a different
character in the context of another fact, notably, that the line-
men’s bargaining representative had negotiated an agreement
with management governing when these employees would
work overtime. To the extent that the unilateral policy diverges
from the bilateral agreement, requiring a job applicant to say
yes to the unilateral policy also forces him to say no to the ne-
gotiated benefit.
Respondent argues that during the job interview, Jones flatly
told Moss that he would not work overtime. To support his
assertion, Respondent cites the testimony of a witness to the job
interview, Ralph Bates:

Not only did Bates corroborate Moss’ recollection of Jones
refusing to work overtime, Bates also recalled that the ques-
tions that Moss asked Jones were the same questions that
Moss had asked him [Bates] when he was interviewed for
employment with Respondent. He specifically recalled Moss
reading to Jones (and to him (Bates)) the section of the job de-
scription dealing with, when required, being willing to work
overtime. Bates recalled that Jones told Moss that he couldn’t
make him “work no overtime.” [Tr. 930; 16–17.]
[Respondent’s brief at p. 12 (emphasis in original.]

Other parts of the record tell a different story. Bates was an
onlooker during the job interview, but both participants in that
interview—Moss and Jones—have stated that Jones made a
considerably different statement. Instead of flatly refusing to
work overtime, Jones told Moss that he would go by the collec-
tive–bargaining agreement.
Supervisor Moss took the witness stand twice during the
hearing, and he also provided a pretrial affidavit to the Board
agent investigating the unfair labor practice charge. Moss gave
this statement on January 10, 2000, almost 6 months before the
hearing began. The half year which elapsed between the affi-
davit and Moss’s testimony at hearing provided time in which
memories could fade. That time also allowed after–the–fact
rationales to crystallize even if such reasons had played no part
in the decision to reject Jones’ employment application.
For these reasons, Moss’s affidavit may provide a more ac-
curate and revealing account than his testimony at trial. To the
CHUGACH MANAGEMENT SERVICES 717
extent that his testimony conflicts with Moss’s earlier affidavit,
I credit the statements in the affidavit. In it, Moss described the
job interview with Jones as follows:

During the interview, I specifically asked Anthony [Jones] if
he would be willing. . .to work overtime and in inclement
weather. Anthony said NO. It meant nothing to him, that he
would go by the Red Book. From those comments from An-
thony I based the first comment of my interviewer comments.

I continued to ask him questions and he would only say that it
didn’t matter to him, he would just go by the Red Book. No
other employees referred to the Red Book. The basis of my
second statement, that Anthony was very uncooperative and
didn’t want to answer any questions, was by his answering
that he just wanted to go by the Red Book on a number of
questions.

The “Red Book” is the collective–bargaining agreement be-
tween the Union and Northrop. When Jones described the job
interview, he did not indicate that he told Moss that he would
go by the “Red Book.” Instead, Jones testified that he told
Moss that he would go by the collective–bargaining agreement.
However, the message communicated would be the same.
In his affidavit, Moss capitalized both letters of the word
“no” in recounting that “Anthony said NO” to the question of
whether he would work overtime. However, I do not conclude
that Jones refused to work overtime in such a flat and absolute
manner.
The next sentence in Moss’s affidavit (after “Anthony said
NO”) contains a pronoun without an obvious antecedent: “It
meant nothing to him, that he would go by the Red Book.” The
meaning of the sentence depends on the meaning of the word
“it.” That meaning is clarified by the history which Jones and
Moss shared.
Both had worked for Northrop, Respondent’s predecessor at
the Redstone Arsenal. During that period, mandatory overtime
had been a major point of contention between management and
the Union representing the linemen. During this conflict, Su-
pervisor Moss was, of course, aligned with management, and
Jones was a vocal critic of Northrop’s overtime policy.
After some unsuccessful attempts, the Union and manage-
ment negotiated an agreement which established an overtime
policy acceptable to both sides. This agreement replaced an
overtime policy which a manager had issued unilaterally, and it
relieved much of the tension.
During the job interview for employment with Respondent,
Supervisor Moss did not pull out the negotiated agreement and
ask Jones if he would be willing to work overtime in accor-
dance with its terms. Rather, he referred to a job description
which Respondent presumably prepared unilaterally.
It appears likely that Jones, a union supporter, would be sus-
picious of any management attempt to impose an overtime
policy unilaterally, particularly considering the great effort it
had taken the Union and management to reach a workable
compromise on this issue. Asking a union supporter to pledge
fealty to a document which apparently undermined the bargain-
ing process evoked both suspicion and anger.
In this context, Jones’ adamant reply that “it” meant nothing
to him, that he would go by the “Red Book,” takes on a clear
meaning. “It” referred to the unilaterally—imposed overtime
policy embodied in the job description. By asserting that the
unilaterally—adopted policy meant nothing to him and that he
would go by the “Red Book,” Jones was decrying the perceived
attempt to circumvent the bargaining relationship and undo the
negotiated agreement.
Jones’ protest, that he would adhere to the collective–
bargaining agreement, hardly constituted a flat or absolute re-
fusal to work overtime. Instead, it was only a refusal to work
overtime in a manner inconsistent with the negotiated agree-
ment. Moss, a veteran of the struggle to achieve such a negoti-
ated overtime agreement, reasonably would understand Jones’
meaning.
Therefore, I reject Respondent’s argument that Jones was not
qualified because he would not work overtime. Based on
Jones’ testimony and Moss’s pretrial affidavit, both of which I
credit, I find that Jones only refused to work overtime which
would be inconsistent with the negotiated agreement.
The question remains, could Respondent lawfully require a
job applicant to agree to work overtime in this manner. If Re-
spondent had the right to set such a condition of employment,
an applicant’s refusal to agree to the condition could well be a
legitimate justification for refusing to hire that applicant. This
issue merits a thorough analysis, and will be addressed later in
this decision.
IV. JONES DID NOT ENGAGE IN PROTECTED AND/OR
CONCERTED ACTIVITY
Under the General Counsel’s theory of this case, Jones en-
gaged in protected activity when he told Supervisor Moss, dur-
ing the job interview, that he would go by the collective–
bargaining agreement rather than the overtime requirement in
the unilaterally imposed job description. In essence, the Gen-
eral Counsel argues, Jones was asserting a right arising out of
the collective–bargaining agreement and such an assertion con-
stitutes protected activity under the doctrine articulated in In-
terboro Contractors, 157 NLRB 1295 (1966), and approved by
the Supreme Court in NLRB v. City Disposal Systems, 465 U.S.
822 (1984).
In its brief, Respondent vigorously challenges the applicabil-
ity of the Interboro doctrine to statements made by an applicant
during a job interview. Jones had no reasonable basis to insist
upon following the collective–bargaining agreement, Respon-
dent argues, because Respondent was not then a party to the
contract. Rather, the collective–bargaining agreement to which
Jones referred bound the previous employer, Northrop. Not
until later did Respondent adopt the agreement.
Before examining Respondent’s argument, one point should
be stressed. Although the General Counsel focused on Jones’
statement during the job interview, the record clearly estab-
lishes that Jones engaged in other protected activity as well.
Supervisor Moss knew about this earlier protected activity at
the time he conducted the job interview with Jones. In rec-
ommending that Jones not be hired, Moss characterized Jones
as “very disruptive . . .” Moss explained in a pretrial affidavit
that when he wrote that Jones was “disruptive,” he was refer-
ring to an occasion when Jones and another employee “refused
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 718
to work overtime [and] encouraged other employees to back
them and their efforts and refuse to work overtime.”
Jones and the other employee certainly were engaging in
concerted activity when they refused to work overtime and
when they encouraged other employees to support their posi-
tion. Although Respondent disciplined Jones for the refusal, it
later rescinded this discipline after the Union and management
negotiated an agreement clarifying the overtime procedure.
The record does not establish that Jones and his fellow
worker were engaging in a partial strike on this occasion when
they refused to work overtime, and I conclude that their activi-
ties were protected as well as concerned. Moss’s reference to
these “disruptive” activities in his recommendation against
hiring Jones clearly signifies that Jones’ protected activity af-
fected Moss’s recommendation.
Jones’ remark during the job interview—that he would go by
the collective–bargaining agreement—must be viewed in the
context of his earlier protected activity. It also should be con-
sidered in light of other information which Moss had received
from some of Jones’ fellow employees. In his affidavit, Moss
recounted that after the union and management had entered into
the overtime agreement—presumably ending an unpleasant
situation—two employees reported to Moss that Jones was not
satisfied:

Anthony [Jones] kept picking on this mentioned agreement
about overtime. He came to me and, he went to others and
complained to the best of my recollection, after the agreement
had been signed both Bobby and Ralph had come to me be-
cause Anthony had been telling them it needed to be changed
(the agreement).

It had been difficult enough for the Union and management
to achieve a workable agreement concerning overtime. After
they ultimately succeeded, Moss accepted the resulting com-
promise and had little appetite for opening this controversial
issue again. Now that the wound was healing, Moss could not
have been happy to learn that Jones still wanted to pick at it.
During the job interview, when Moss heard Jones insist that
he would follow the collective–bargaining agreement, not the
job description, it almost certainly reminded Moss of Jones’
previous protected activities. More than that, Jones’ adamancy
left little doubt that he would continue to be as assertive in the
future as he had been in the past. Moss took notice and, in his
negative recommendation, wrote not only that Jones was “dis-
ruptive” but also that he “tries to keep creating problem[s]. . . .”
Clearly, Moss’s recommendation to reject Jones did not de-
scribe Jones’ protected activities in the past tense. Rather, it
stated that Jones is “very disruptive” and that he tries to keep
creating problems.
Even if Jones’ statement that he would “go by the contract”
does not constitute protected activity under the Interboro doc-
trine, discussed below, it certainly refreshed Moss’s recollec-
tion that Jones had engaged in protected activity in the past.
Jones’ words—and the conviction with which he spoke them—
made Jones’ past protected activity a matter of current concern.
For the reasons stated below, I conclude that the Interboro
doctrine did protect Jones’ statement during the job interview,
but even if it did not, I would still find that Moss considered
Jones’ past protected activities in making the recommendation
to reject him. Based on the wording of this recommendation,
and the explanation of it which Moss gave in his pretrial affida-
vit, I conclude that the government has established a clear con-
nection between Jones’ past protected activities and Respon-
dent’s decision not to hire him.
Although I have concluded that the government need not rely
on the Interboro doctrine to establish protected activity in this
case, this doctrine merits further discussion because of Respon-
dent’s substantial arguments that it should not be applied here.
The Interboro doctrine represents an exception to the general
principle that two or more employees have to be involved in an
activity for it to be deemed “concerted” and therefore protected
by the Act. The Interboro exception flows logically from the
concerted nature of the collective–bargaining process.
Section 7 of the Act expressly gives employees the right to
engage in “concerted activities for the purpose of collective
bargaining or other mutual aid or protection.” 29 U.S.C. Sec-
tion 157 (emphasis added). An employee’s insistence that
management follow the terms of the negotiated agreement
benefits the entire bargaining unit, not merely the single em-
ployee who asserted the contractual right. In effect, such an
assertion of a contractual right continues the activity which
employees began in concert when they negotiated the contract,
and it merits the protection of the Act. Obviously, the right to
bargain collectively would mean little if an employee could be
disciplined or discharged for seeking the fruits of that collective
bargain.
Nonetheless, Respondent argues that the Interboro doctrine
does not apply to the present facts because at the time of his job
interview, Jones only was asserting a right arising out of a con-
tract between his Union and his current employer, Northrop, and
not a right arising out of an agreement between the Union and
Respondent. Although the Respondent does not cite specific
authority to support this argument, its brief states as follows:

The error in his Honor’s holding lies in his disregard for the
fact that the Interboro doctrine applies to situations in which
an employee of an employer makes protestations concerning
an existing collective bargaining agreement between the em-
ployer and the union, and to which the employee is a benefi-
ciary. In this case Mr. Jones was not an employee of Respon-
dent, and there was no existing contract between the union
and the Respondent to which Mr. Jones was a beneficiary. In
other words, Mr. Jones was not complaining about an existing
collective bargaining agreement involving Respondent as was
the case in Interboro. If the Interboro doctrine applied as his
Honor found, all applicants for employment could refuse to
agree to meet the qualifications of the hiring employer and in-
stead state that they would only meet the qualifications pre-
scribed in their former employer’s union contract; then when
the employer refused to hire the applicant, the applicant could
claim protection under the Act for not being hired due to the
fact that they had referenced a union contract. Needless to
say, if that were the law, there would be millions of dissatis-
fied applicants making claims under the NLRA.
[Respondent’s brief at pages 14–15 (emphasis in original).]

CHUGACH MANAGEMENT SERVICES 719
Respondent’s argument, quoted above, appears to mix to-
gether two separate concepts which should be considered sepa-
rately. The first concerns whether Jones engaged in protected
activity. The General Counsel bears the burden of proving this
fact.
The second concept concerns when an applicant’s refusal to
work under proffered conditions of employment constitutes a
legitimate business reason for refusing to hire him. Such an
issue would arise only after the General Counsel has estab-
lished the initial three elements of the FES test, forcing Re-
spondent to shoulder the burden of proving that it would have
taken the same action in any event, even in the absence of pro-
tected activity.
The two concepts get mixed together in Respondent’s argu-
ment because when a job applicant insists on working under the
terms of the previous employer’s collective–bargaining agree-
ment, that insistence also entails a refusal to work under the
new conditions set by the hiring employer. If the Interboro
doctrine protects the applicant’s right to invoke the collective–
bargaining agreement of another employer, Respondent con-
tends, it necessarily empowers the applicant to do what a job
applicant has never been able to do before, namely, dictate the
working conditions offered by the hiring employer.
Respondent’s argument would carry considerable force if the
Interboro doctrine really allowed such a result. However, the
doctrine carries built–in safeguards to prevent it from being
abused in this manner. Under the Interboro doctrine, an em-
ployee’s assertion of a collectively–bargained right will enjoy
the Act’s protection only if he “has a reasonable and honest
belief that his contractual rights are being violated” and only if
his action “is reasonably directed toward enforcement of a col-
lectively bargained right.” Francis Building Corp., 327 NLRB
485 (1998).
When these safeguards are applied to the hypothetical situa-
tion described in Respondent’s brief, the result is obvious.
Should a stranger walk into a company’s personnel office, ap-
ply for a job, and then insist that this job pay the same wage
rate a previous employer had paid under a collective–
bargaining agreement, the applicant may enjoy a good laugh
but he will not enjoy the protection of the Interboro doctrine.
Under these facts, he clearly would not have a reasonable and
honest belief that his contractual rights were being violated.
Similarly, his insistence on the former wage rate would not be
reasonably directed to the enforcement of a collectively bar-
gained right.
The Interboro safeguards are so stringent that one may won-
der if the doctrine could ever apply during a job interview.
When, if ever, would a person applying for a job with a new
company have a reasonable expectation that his previous em-
ployer’s collective bargaining agreement would apply?
At least one situation comes to mind. It involves an em-
ployer which takes over another employer’s operations at a
particular location. If the bargaining unit remains unchanged
under the new employer, and if a majority of the employees in
this bargaining unit had been employees of the previous em-
ployer in the same bargaining unit, then the new employer must
recognize the union which represented those unit employees.
Ordinarily, though, the new employer will not be obliged to
continue in effect the previous terms and conditions of em-
ployment Rather, it may set the initial terms and conditions of
employment unilaterally.
However, this general rule has an exception. In certain in-
stances, the law requires the new employer to continue in effect
the terms and conditions enjoyed by the bargaining unit em-
ployees in their previous employment. The Supreme Court
explained when this exception arises:
Although a successor employer is ordinarily free to set initial
terms on which it will hire the employees of a predecessor,
there will be instances in which it is perfectly clear that the new
employer plans to retain all of the employees in the unit and it
which it will be appropriate to have him initially consult with
the employees’ bargaining representative before he fixes terms.
NLRB v. Burns Security Services, 406 U.S. 272, 294–295
(1972). See also Galloway School Lines, 321 NLRB 1422
(1996); Canteen Co., 317 NLRB 1052 (1995).
In the present case, Respondent took over the operations per-
formed by Northrop at the Redstone Arsenal. Although North-
rop employed 10 high voltage linemen in the bargaining unit,
Respondent decided it only needed 9, but all of those 9 came
from the Northrop bargaining unit.
These facts certainly would be consistent with a finding that
Respondent, as a “perfectly clear” Burns successor, had a duty
not only to recognize the Union but also to continue in effect
the terms and conditions of employment which the linemen
enjoyed while working at Northrop. Indeed, Respondent did
adopt the collective–bargaining agreement which the Union had
entered into with Northrop, although Respondent took this ac-
tion after it had decided which linemen to hire.
The complaint in this case does not allege that Respondent
was a “perfectly clear” Burns successor to Northrop. In fact, it
does not allege that Respondent was any kind of successor.
Because the successorship issue was not fully litigated, I make
no findings concerning Respondent’s possible status as a suc-
cessor to Northrop. However, it is not necessary to make such
a successorship finding to determine whether or not the Inter-
boro doctrine should protect the comment which Jones made
during his job interview.
Whether or not the Interboro doctrine applies does not turn
on Respondent’s status as a successor. Rather, it depends on
the employee’s reasonableness and honesty in asserting a col-
lectively–bargained right. Specifically, the Interboro safe-
guards limit this doctrine to instances in which the employee
has a reasonable and honest belief that his contractual rights are
being violated. Likewise, the Interboro doctrine only protects a
statement which is reasonably directed to enforcing a collec-
tively–bargained right.
In most job interviews, there would be no reason for an ap-
plicant to believe a previous employer’s collective–bargaining
agreement had any relevance to the new employer’s ability to
specify the terms of employment. In the present case, however,
the total circumstances made it reasonable for Jones to believe
that both the bargaining unit and the terms and conditions of
employment would continue unchanged.
It should be stressed that the Interboro doctrine does not re-
quire that Jones be right, only that his belief is reasonable and
honest. Thus, the Board has stated:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 720

the employee does not even have to be correct in his assertion
that the collective–bargaining agreement has been violated for
his activity to be protected. As long as the employee’s com-
plaint or action is based on a reasonable and honest belief that
his contractual rights are being violated and is reasonably di-
rected toward enforcement of a collectively bargained right,
he is entitled to the protection of the Act.
[Francis Building Corp., 327 NLRB 485 (1998).]

Not only was Jones’ belief honest and reasonable, it proved
to be prophetic. As noted above, Respondent signed the same
collective–bargaining agreement which Northrop had entered
into with the Union.
Moreover, it was fully reasonable for Jones to raise the sub-
ject of the collective–bargaining agreement during the job in-
terview and to insist that the negotiated terms be applied.
When Supervisor Moss asked Jones to agree to the overtime
terms in the job description, it forced the issue. Jones had to
make a choice then and there, either to abandon the contractual
right and agree to the Respondent’s terms, or to invoke the
negotiated agreement. His choice, speaking up, was reasonably
directed to enforcement of the contractual right which would
have been lost had he kept silent.
In sum, I conclude that the Interboro doctrine applied to this
situation. Therefore, contrary to the argument in Respondent’s
brief, Jones’ assertion that he would go by the collective–
bargaining agreement constituted protected activity.
V. THE GENERAL COUNSEL DID NOT PROVE ANIMUS
Respondent advances a number of arguments to support its
contention that the General Counsel failed to prove the element
of animus. Noting that it hired union stewards, Respondent’s
brief asserts

There is no record evidence indicating that those applicants,
especially union stewards (who typically file more grievances
than any other bargaining unit employee), would be less likely
to assert their collective bargaining rights under a new con-
tract that would be signed by Respondent than they had been
with the predecessor, yet they were hired!

Respondent’s brief then identifies two employees who had filed
grievances during their employment with Northrop, but whom
Respondent hired nonetheless.
Additionally, Respondent argues that Supervisor Moss, who
recommended against hiring Jones, had done Jones a favor in
1999 when the lineman had to be absent from work for a surgi-
cal procedure. According to Respondent’s brief, Moss helped
Jones arrange his time off so that he still would be eligible for
holiday pay.
Respondent also notes that other employees had made com-
plaints about conditions of employment at Northrop but Re-
spondent hired them nonetheless. Further, Respondent points
to a statement in Jones’ pretrial affidavit which indicated that
Jones believed that Moss did not recommend that Respondent
hire Jones because of an incident in which Moss hit Jones.
In thus disputing that the General Counsel established ani-
mus, Respondent is raising an issue outside the scope of the
Board’s remand. In sending the case back for further consid-
eration, the Board did not direct me to reconsider whether or
not the General Counsel met its burden of proof. In essence,
the Board told me to examine whether Respondent had rebutted
the General Counsel’s case by showing that it would not have
hired Jones even in the absence of protected activity. Because
the Board did not instruct me to reconsider whether the gov-
ernment had established the requisite elements under FES, I
will discuss Respondent’s “lack of animus” arguments only
briefly.
Respondent’s argument that it hired others who had filed
grievances, including union stewards, must be considered in
light of the total circumstances. Respondent had decided it
needed nine high voltage linemen and decided to hire them
from Northrop’s workforce at the Redstone Arsenal. Since
Northrop employed only 10 high voltage linemen, Respondent
necessarily would be hiring all but one of them.
In that circumstance, Respondent could not have rejected
every single lineman who had filed a grievance. If it hired all
but one of the predecessor’s linemen, it certainly could not
divide that applicant pool into one group of employees who had
filed a grievance and another group of employees who had not.
Additionally, Respondent’s argument assumes that the gov-
ernment must prove that Respondent reacted with similar hos-
tility to every grievance, regardless of the subject matter. Yet
the Board, drawing on its specialized expertise in the field of
labor relations, may note that from an employer’s perspective,
not every grievance will cause the same amount of grief. Some
grievances concern rather unemotional matters, such as routine
payroll errors, while other grievances press “hot buttons” by
raising issues which have produced contention in the past.
The mandatory overtime issue fell into the latter category. It
had caused considerable controversy, even anguish, before
finally being put to rest by the 1997 memorandum of under-
standing. Moss reacted with animus, I concluded, not because
he considered it likely that Jones would file a grievance (that is,
“any old grievance”), but because he feared Jones would resur-
rect the mandatory overtime issue.
Moss was concerned not only that Jones might file a griev-
ance, but that he would rally other employees to challenge the
overtime policy. Such action, of course, also is protected by
the Act.
Moss’s worry that Jones would engage in such activity be-
comes clear from an examination of his written recommenda-
tion that Respondent not hire Jones and of his pretrial affidavit.
In his recommendation that Jones be rejected for employment,
Moss wrote that “Anthony is very disruptive and tries to keep
creating problem[s] with myself and the other linemen.” In his
pretrial affidavit, Moss explained what he meant by this com-
ment:

In the interview results section, I commented that Anthony is
very disruptive and tries to keep creating problems. This
comment was not based on the interview, but just from work-
ing with him for the past 5–10 years. A number of employees
talking to me about Anthony griping is what I was referring
to. On one occasion, when Jeff Creel and Anthony refused to
work overtime, they encouraged other employees to back
them and their efforts and refuse to work overtime.

CHUGACH MANAGEMENT SERVICES 721
This statement leaves no doubt that Moss considered it “dis-
ruptive” when Jones and another employee refused to work
overtime and “encouraged other employees to back them . . .”
Such actions, however, lie at the heart of concerted activity for
mutual aid or protection protected by Section 7 of the Act.
Because Moss referred to Jones’ past “disruptive” activity in
the recommendation not to hire him, I must conclude that Moss
took such activity into account. This conclusion leads, in ef-
fect, to a simple and undeniable syllogism: Moss based his
decision to reject Jones, at least in part, on Jones’ past activi-
ties. Such activities were protected by law. Therefore, Jones’
protected activities affected Moss’s recommendation against
employing him.
The term “animus” provides a convenient way to refer to
unlawful motivation based on protected activities. However, in
cases involving an employment decision based on mixed mo-
tives, it is more precise to say that the General Counsel bears
the burden of proving a link or nexus between an employee’s
protected activity and the adverse employment action he suf-
fered.
Moss’s recommendation not to hire Jones, read together with
Moss’s explanation of that recommendation in his pretrial affi-
davit, clearly establishes such a nexus. Therefore, I must reject
Respondent’s argument that the General Counsel did not carry
the government’s burden of proof on this issue.
Respondent’s brief further asserts that Moss only recom-
mended that Respondent reject Jones’ application, but that a
higher official, Scillian, made the actual decision. Respondent
argues that Moss’s motivation cannot be imputed to Scillian.
For reasons discussed later in this decision, the evidence es-
tablishes that Moss actually made the employment decision and
that Scillian merely “rubber stamped” it. Moreover, Scillian
clearly made Moss an agent of Respondent by telling him, as
recounted in Moss’s affidavit, to interview the linemen and “to
pick the best people I had.” In carrying out this instruction,
Moss clearly acted within the scope of his authority as an agent.
His actions and motives in doing so may be imputed to the
Respondent.
In challenging the evidence of unlawful motivation, Respon-
dent’s brief refers to a statement in Jones’ pretrial affidavit
indicating that Jones believed that Moss rejected him for em-
ployment because of an altercation which took place a number
of years earlier, before Moss became a supervisor. As Jones
explained this incident, Moss erroneously believed that Jones
had called Moss an uncomplimentary name, and hit Jones.
Moss’s own statements regarding his motivation, appearing
in both the written recommendation not to hire Jones and in
Moss’s pretrial affidavit, constitute admissions which are more
probative than Jones’ speculation. Jones cannot read Moss’s
mind. Only Moss could do that. Therefore, I conclude that
Moss acted for the reasons he stated in the documents he
signed.
Additionally, if Moss had hit Jones without justification, as
Jones asserted, that incident would just as likely instill in Moss
a sense of guilt, rather than an urge to hurt Jones further. Such
a sense of guilt would be consistent with another incident de-
scribed in Respondent’s brief, when Jones had to undergo sur-
gery. At that time, Moss helped Jones preserve his holiday
leave.
Whether or not guilt motivated this act of kindness by Moss,
doing Jones such a favor when he was sick does not rule out the
possibility that Moss would later recommend against hiring
Jones because of Jones’ protected activities. Helping Jones
preserve his leave would not expose management to any un-
pleasant experience, but hiring Jones could result in more “dis-
ruptions” from Jones’ protected activities. In other words,
Moss had no reason not to help Jones with his holiday leave,
but Moss did have a reason—albeit an unlawful one—to rec-
ommend against hiring him.
In sum, were I to revisit the issue of unlawful motivation, I
would still conclude that the General Counsel had carried the
government’s burden of proof.
Respondent’s Rebuttal Arguments
The arguments discussed above pertain primarily to issues
within the General Counsel’s burden of proof. Respondent
raises several arguments in to support a conclusion that it
would have refused to hire Jones in any event. These will be
considered in the order they appear in Respondent’s brief.
VI. HIGHER MANAGEMENT LACKED KNOWLEDGE
Respondent contends that although Supervisor Moss inter-
viewed Jones, a higher management official, Billie H. Scillian,
actually made the decision not to hire Jones. Respondent fur-
ther argues that Scillian did not know that during the job inter-
view, Jones told Moss he would follow the provisions in the
collective–bargaining agreement (the “red book”) concerning
overtime.
Because this actual decision–maker was unaware of Jones’
comment, Respondent contends, antiunion animus did not enter
into the decision not to hire Jones. “Even if the [“red book”]
comment was protected,” Respondent’s brief asserts, “Moss’
knowledge that Jones made such a comment cannot be imputed
to Scillian.”
In one sense, this argument does not appear to fall within the
scope of the Board’s remand. The General Counsel bore the
burden of establishing that antiunion animus contributed to the
decision not to hire Jones, and to prove this point, the govern-
ment necessarily had to demonstrate that Respondent knew or
believed that Jones had engaged in protected activity.
On the other hand, it might also be considered as a rebuttal
argument. By proving that the person who made the decision
to reject Jones did not know about Jones’ protected activity,
Respondent is also proving that Respondent would have made
the same decision even in the absence of protected activity.
Protected activity not known by management obviously would
not affect management’s decision.
To the extent that the argument may be considered a chal-
lenge to the finding that the General Counsel carried the gov-
ernment’s initial burden, I must reject it as outside the scope of
the remand. However, it will be considered in the rebuttal con-
text.
At the outset, it should be stressed that Jones’ comment dur-
ing the job interview—that he would follow the collective–
bargaining agreement—is not his only protected activity. As
discussed above, he also engaged in concerted activities to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 722
protest the predecessor’s overtime policy and to enlist other
employees in that protest.
Moss clearly was aware of this earlier protected activity, be-
cause he described it in his pretrial affidavit. Presumably, Re-
spondent would argue that the General Counsel has failed to
establish that Moss informed Scillian about this protected activ-
ity as well. For two reasons, Respondent’s argument is un-
availing. As a matter of law, Supervisor Moss’s knowledge
clearly is imputable to Respondent. As a matter of fact, Moss
made the actual decision to reject Jones, and Scillian merely
rubber–stamped it.
Respondent does not dispute that it assigned to Moss the task
of interviewing job applicants and recommending which Re-
spondent should hire. Moss’s superior, Scillian, gave him this
assignment: “I asked him to identify the best people,” Scillian
testified, “and rank them.”
The record clearly demonstrates that Moss made effective
recommendations. In performing this hiring function, Moss
acted as Respondent’s supervisor and agent within the meaning
of Section 2(11) and 2(13) of the Act. As the Board stated in
Dobbs International Services, 335 NLRB 972 (2001), “It is
well–established that a supervisor’s knowledge of union activi-
ties is imputed to the employer.” See, e.g., Dr. Phillip Megdal,
D.D.S., Inc., 267 NLRB 82 (1983). In addition, an employer is
bound by the acts and statements of its supervisors whether
specifically authorized or not. See, e.g., Dorothy Shamrock
Coal Co., 279 NLRB 1298, 1299 (1986), enfd. 833 F.2d 1263
(7th Cir. 1987); Holiday Inn–Glendale, 277 NLRB 1254, 1261
(1985).”
Moreover, the record establishes and I find that essentially,
Scillian “rubber stamped” Moss’s hiring recommendations and
effectuated them without independently investigating the quali-
fications of the high voltage linemen Moss had interviewed.
The following exchange during Scillian’s cross–examination
illustrates his minimal involvement in the selection process:

Q. Can you tell us which, if any, qualifications Mr.
Moss said that Mr. Jones lacked?
A. Oh, gads. No.

In these circumstances, it makes little difference whether
Scillian knew about Jones’ comment that he would follow the
collective–bargaining agreement. As a practical matter, Re-
spondent had given Moss full authority to act as its agent in
determining which linemen to hire and which to reject. Re-
spondent must take responsibility for the motive of its agent in
carrying out this assignment.
VII. OTHER REASONS FOR REJECTING JONES
A. Asserted Safety Concerns
Respondent contends that even if Jones had made no refer-
ence to the “red book” (collective–bargaining agreement) dur-
ing the job interview, Moss would not have recommended him
for hire. In its brief, Respondent further argues as follows:

Your Honor disregards reasons given by the Respondent, as
corroborated by Jones’ fellow union members, for not hiring
Jones, which included the fact that Moss and other persons
did not want to work with Jones because they believed him to
be an unsafe worker. These fellow employees of Jones ex-
pressed their opinion that they did not want to work with
Jones and most assuredly preferred not to perform any “hot
work” involving high voltage lines.

Respondent’s argument must be taken very seriously. High
voltage linemen work in a very dangerous profession and they
work in teams; one person’s safety depends considerably on his
partner’s attentiveness to safety. If Respondent had indeed
been concerned about Jones’ dedication to safety, such concern
would constitute a legitimate and substantial reason, unrelated
to protected activity, for rejecting him. Therefore, the testi-
mony of linemen who had worked with Jones should be exam-
ined carefully.
Lineman Steve Pearson, who had worked with Jones while
both were employed by Northrop, testified that he had seen
Jones work without using safety equipment. Pearson also said
that for safety reasons, the linemen are supposed to work in
teams but that Jones sometimes had gone out by himself to
make a repair without waiting for his partner to arrive.
Another lineman, Jerry Butler, described an instance in
which he experienced difficulty working well with Jones. Ac-
cording to Butler, he and another lineman were “in the air,” that
is, working in a bucket lift, and Jones was below, operating the
truck. Jones was controlling a hoist to lift a switch weighing
400 to 500 pounds, but, Butler testified, did not respond well to
the signals from the men in the bucket. “[W]e’d give him a
signal and he’d go the other way,” Butler explained. “We
couldn’t communicate with him what we wanted, or he just was
going to do what he wanted to do. I don’t know.”
Butler had not worked around high voltage with Butler, but
Butler testified that he did not believe that Jones was qualified
to work on energized wires. “I wouldn’t work high voltage
with him,” Butler said, “unless my job was threatened.”
Another lineman, Ralph Bates, testified “If I had my druthers
. . .there’s people down there that I’d rather work with as An-
thony [Jones].” However, when asked if he had ever observed
Jones working on “hot work” (energized lines) with other peo-
ple, Bates answered, “I probably have, but I can’t recall for
sure.”
Moreover, Bates had not worked with Jones on any “hot
work” other than “hot stick work,” which involves using an
insulated pole to throw a circuit breaker or perform some other
action. Such “hot stick work,” Bates explained, was “not near
as dangerous as gloves on” work closer to the energized line
itself.
Citing this testimony, Respondent’s brief argues that it rebuts
the General Counsel’s case. However, the testimony of these
linemen must be considered in light of an admission in Super-
visor Moss’s pretrial affidavit. In this January 10, 2000 state-
ment, Moss reported that although Anthony Jones preferred to
work with certain other linemen, “There was not anyone who
requested not to work with Anthony.”
Based on Moss’ affidavit, which I credit, I reject the Re-
spondent’s suggestion that Moss did not recommend Jones for
hire because other employees refused to work with him. In-
deed, the record does not establish that Moss paid much atten-
CHUGACH MANAGEMENT SERVICES 723
tion at all to safety issues when he recommended that Jones
should not be hired.
As discussed above, because the General Counsel estab-
lished the initial three elements set forth in the FES test, Re-
spondent bears the burden of proving that it would have re-
jected Jones’ for employment regardless of his protected activ-
ity. It should be stressed that in deciding whether a respondent
has carried this burden, the Board examines what criteria the
decisionmaker actually used at the time of the decision.
Should a respondent later come up with some other justifica-
tion for rejecting the applicant, based on some factor not actu-
ally considered at the time of the decision, such an ex post facto
rationale will not rebut the General Counsel’s case, no matter
how reasonable the new criterion may appear to be.
Stated another way, if a disqualifying condition discovered
after the hiring decision has any relevance, it pertains to the
appropriateness of a reinstatement remedy, not to the issue of
liability. See generally McKennon v. Nashville Banner Pub-
lishing Co., 513 U.S. 352 (1995); Opryland Hotel, 323 NLRB
723 (1997). Therefore, if the decision–maker testifies that he
would not have selected an applicant because of a particular
factor, but the evidence shows that he attached little weight to
that factor at the time he made the choice, then his testimony
does not satisfy Respondent’s burden of showing that it would
have made the same decision even in the absence of protected
activity.
My analysis of the record leads to the conclusion that Moss
was not concerned about Jones’ safety practices at the time
Moss interviewed him and recommended he not be hired. My
reasoning begins with the assumption that when a supervisor
conducts a job interview, the supervisor asks the applicant
questions about matters the supervisor considers important.
Conversely, the job interviewer generally does not ask ques-
tions about matters which are not relevant to the hiring deci-
sion.
When Moss interviewed Jones, he did not focus on whether
or not Jones would be a safe worker. Instead, Moss asked
Jones whether he would be willing to work overtime in accor-
dance with the job description. Moss’s questions during the
interview strongly suggest that safety concerns played little or
no role in his decision that Jones should be rejected.
By the same logic, I conclude that if Moss truly had been
concerned that Jones was an unsafe worker, Moss would have
mentioned that fact in his recommendation that Jones should
not be hired. This recommendation says nothing about safety.
It does not criticize Jones for any safety infraction or unsafe
practice. It does not raise any of the safety concerns that Re-
spondent sought to develop at hearing through the testimony of
fellow linemen. Instead, it recommends against Jones because
he is “very disruptive,” a conclusion Moss reached because of
Jones’ early concerted activities.
The way Supervisor Moss conducted the job interview, and
the way he wrote the recommendation against hiring Jones,
strongly suggest that safety considerations played little or no
part in that decision. Other evidence points to this same con-
clusion.
If Respondent had rejected Jones’ application because he
was unsafe, presumably Respondent would have mentioned this
concern earlier, when a Board agent investigated the unfair
labor practice charge. Significantly, Respondent’s November
22, 1999 position letter to the Board agent did not assert a
safety justification. This letter, signed by Program Manager
Scillian, stated, in part:

Based on the company’s assessment of the ten High Voltage
Electrician/Linemen interviewed for the nine Linemen spaces,
Mr. Jones, the subject of referenced charge, exhibited a capa-
bility to perform the tasks and functions of his clarification
that was significantly less than the other applicants.

It would have been easy for Respondent to include a refer-
ence to safety along with the words “High Voltage,” and obvi-
ously, such a juxtaposition would carry considerable persuasive
force. However, Respondent did not. I must conclude that a
safety justification had not yet occurred to Respondent, and
therefore was not present at the time it rejected Jones for em-
ployment. Therefore, Respondent has not carried its burden of
establishing that it would not have hired Jones even if he had
not engaged in protected activity.
B. Other Asserted Work Problems
In arguing that Jones would not have been hired in any
event, Respondent’s brief focuses on contentions that Jones did
not follow good safety practices. As discussed above, the posi-
tion statement which Respondent submitted during the investi-
gation of the unfair labor practice charge did not raise a safety
issue, but it did claim that Jones’ work was not as good as that
of the other linemen.
Moss’s affidavit did raise some questions about the quality
of Jones’ work. Thus, Moss stated “I had never had any prob-
lems with his work except for sometimes he was careless.”
Additionally, Moss’s affidavit stated as follows:

Based solely on work quality, my recommendation would
have been the same that Anthony not have been retained, be-
cause Anthony would stand back, try not to do as much work
as the other employees. One example of Anthony’s work
quality occurred about three years ago when we were install-
ing a light post and he knowingly used the wrong sized nut
because he did not have the correct size on his truck. This
caused the whole crew to lose 3 or 4 hours worth of work. I
did not discipline him at the time.

For several reasons, I conclude that Respondent has failed to
establish that it would not have hired Jones because of the qual-
ity. For one thing, the fact that Moss, in his affidavit, did not
give a more current or more serious example of problems with
Jones’ work suggests that he had to look hard to find any prob-
lem at all.
Moreover, even assuming that Respondent established that
Jones’ work was less than perfect, that fact alone does not carry
the burden of proving that Respondent would not have hired
him because of performance problems. Such a conclusion can
be reached only by comparing any deficiencies in Jones’ work
with that of the linemen whom Respondent hired.
For example, Moss’s affidavit points to an instance, about
three years earlier, when Jones used the wrong sized nut. Such
a peccadillo might cause Respondent to reject Jones’ applica-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 724
tion if all the linemen it did hire had absolutely perfect records.
On the other hand, if any of these other nine linemen had a
more serious blemish on his record, then Jones’ problem with
the wrong–sized nut would not explain why Respondent hired
the other lineman rather than Jones.
The record does indicate that at one point, Jones received
discipline for making slurs concerning other workers. Even
though these incidents were rather remote in time, they might
indeed constitute a nondiscriminatory reason for rejecting Jones
in favor of other job applicants.
However, to make such a determination, it is necessary to
consider more than Jones’ own conduct. His actions cannot be
judged in isolation but only by comparison to the disciplinary
records and prior conduct of the linemen who were hired.
Under the FES test, which applies to allegations of discrimi-
natory refusal to hire, a respondent’s rebuttal burden is analo-
gous to that of a respondent defending against a discriminatory
discharge allegation evaluated under the framework of Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982). In both situations, a
respondent has the burden to come forward with more than just
general assertions that the alleged discriminatee didn’t measure
up. As the Board stated in Lampi LLC, 327 NLRB 222 (1998):

To establish an affirmative defense under Wright Line to a
discriminatory discharge allegation, an employer must do
more than show that it had reasons that could warrant dis-
charging the employee in question. It must show by a prepon-
derance of the evidence that it would have done so even if the
employee had not engaged in protected activities. In assessing
whether the Respondent has established this defense regard-
ing [the alleged discriminatee’s] discharge, we do not rely on
our views of what conduct should merit discharge. Rather we
look to the Respondent’s own documentation regarding [the
alleged discriminatee’s] conduct, to its “Personnel Policy”
handbook, and to the evidence of how it treated other em-
ployees with recorded incidents of discipline.

A preponderance of the evidence in this case fails to estab-
lish that Respondent would have failed to hire Jones in any
event, regardless of his protected activity.
Credibility
In its brief, Respondent vigorously argues that Jones’ testi-
mony should not be credited. However, based upon my obser-
vations of the witnesses, I conclude that Jones made a sincere
effort to tell the truth. At one point during his testimony, Jones
went through his pretrial affidavit and identified portions which
were incorrect. These discrepancies appear to have been inad-
vertent, and Jones’ willingness to point them out is consistent
with my impression that he made an earnest attempt to be accu-
rate.
In this regard, Jones’ account of his interview with Supervi-
sor Moss does not differ markedly from Moss’s version. Ac-
cording to Moss, Jones said that he would rely on the “Red
Book.” According to Jones, he said he would go by the collec-
tive–bargaining agreement. Since the “Red Book” is, in fact,
the collective–bargaining agreement, this minor variation does
not impugn the testimony of either witness.
Although I conclude that Jones’ testimony is reliable, it
should be emphasized that it is not necessary to rely on it to
find a violation. The most telling evidence consisted of Super-
visor Moss’s pretrial affidavit and his written recommendation
that Jones not be hired. Moss is Respondent’s supervisor and
agent, and statements in his pretrial affidavit constitute admis-
sions binding on the Respondent. Based on those admissions, I
find that Respondent violated Section 8(a)(3) and (1) of the Act
by refusing to hire Anthony Jones, as alleged.
CONCLUSIONS OF LAW
1. The Respondent, Chugach Management Services, Inc., is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Charging Party, International Brotherhood of Electri-
cal Workers, Local Union No. 338, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act on
about September 1, 1999, by failing and refusing to hire An-
thony Jones for a position as high voltage lineman and thereaf-
ter unlawfully has continued to fail and refuse to hire Anthony
Jones.
4. The unfair labor practice described in paragraph 3, above,
is an unfair labor practice affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
5. The Respondent did not engage in the unfair labor prac-
tices alleged in the consolidated complaint not specifically
found herein.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I recommend that it must be ordered to
cease and desist and to take certain affirmative action, de-
scribed below, designed to effectuate the policies of the Act,
including posting the notice to employees attached hereto as
Appendix A.
I recommend that Respondent be ordered to offer Anthony
Jones immediate and full instatement to the position it unlaw-
fully denied him or, if that position no longer exists, to a sub-
stantially equivalent position. I further recommend that Re-
spondent be ordered to make Anthony Jones whole, with inter-
est, for all losses he suffered because of Respondent’s unlawful
refusal to hire him.
[Recommended Order omitted from publication.]