Germinsky Electrical Co.

National Labor Relations Board - Board Decisions

Aug 25, 2000

331 N.L.R.B. 1365 (N.L.R.B. 2000)

GERMINSKY ELECTRICAL CO. 1365
Germinsky Electrical Company, a Division of the
Germinsky Group, Inc. and Local 675, Interna-
tional Brotherhood of Electrical Workers, AFL–
CIO and Local 269, International Brotherhood
of Electrical Workers, AFL–CIO and Local 358,
International Brotherhood of Electrical Work-
ers, AFL–CIO and Local 456, International
Brotherhood of Electrical Workers, AFL–CIO
and Local 400, International Brotherhood of
Electrical Workers, AFL–CIO. Cases 22–CA–
21193, 22–CA–21196, 22–CA–21208, 22–CA–
21231, and 22–CA–21246
August 25, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
HURTGEN AND BRAME
On March 25, 1997, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Gen-
eral Counsel, the Charging Party, and the Respondent
filed exceptions and supporting briefs. Thereafter, the
Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted, and the complaint is dismissed.

Company’s president testified that it would not normally bid for
1 The General Counsel, the Charging Party, and the Respondent have
expressly and impliedly excepted to some of the judge’s credibility
resolutions. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. 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.
In affirming the judge’s finding that the Respondent did not unlaw-
fully refuse to consider and hire union applicants, we find it unneces-
sary to rely his metaphorical reference to surgeons and LPNs.
In adopting the judge’s dismissal of the complaint, Chairman Trues-
dale does not rely on the judge’s finding that the Respondent’s presi-
dent’s letters opposing the Union’s efforts to organize the Respondent
is not evidence of union animus because they were not alleged to be
violations of Sec. 8(a)(1). The Board has held that an employer’s anti-
union comments, while themselves protected speech, may nevertheless
establish animus toward its employees’ union activities. See Ross
Stores, 329 NLRB 573 (1999); and Lampi LLC, 327 NLRB 222 (1998).
Chairman Truesdale further notes that neither the General Counsel nor
the Charging Parties have argued in this case that the Respondent’s
policy or practice of not hiring applicants with high current wage histo-
ries was itself discriminatorily motivated, or that it was inherently
destructive of employee Sec. 7 rights. He therefore finds it unnecessary
to address those issues in this case.
In adopting the judge’s dismissal of the complaint, Member Hurtgen
does not rely on all of the judge’s reasoning. However, he finds that
the General Counsel failed to establish the requisite antiunion animus to
sustain the allegations of the complaint.
Bernard Mintz, Esq., for the General Counsel.
Maurice J. Nelligan, Esq., for the Respondent.
Gary A. Carlson, Esq., for the Charging Parties.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This
case was tried in Newark, New Jersey, on December 2 to 5,
1996. The charges and amended charges were filed by each of
the Unions on February 29, March 4, 11, 18, and 21, and April
10, 1996. A consolidated complaint and notice of hearing was
issued by the Regional Director for Region 22 of the National
Labor Relations Board on July 23, 1996. As amended at the
hearing, the complaint alleged as follows:

That during December 1995 and January through
March 1996, the Respondent refused to consider the fol-
lowing employees for employment and refused to hire
them:

Alex J. Bartolino Joseph Martin
Rhonda K. Browning Joseph A. Nalbone
William Bryan James P. O’Donnell Jr.
Paul Bulkivish Paul Plesnarski
Claude Sutton Richard Ziarnowski
John F. Donahue Frank Terelle
Susan Johnstonbaugh Charles Kovach
Andrew Kacvinski Steven J. Towle
James Kennovin Norman Whiteley1
FINDINGS OF FACT
I. JURISDICTION
It is admitted and I find that the Company is engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Unions are a labor organizations within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Company is engaged in the business of providing elec-
trical services. Although it does some construction work, most
of its work is in existing commercial or industrial spaces. In
the present case, for example, its two major jobs during the
relevant period were for a group of supermarkets owned by E.
G. Edwards and for a group of stores owned by Bradley’s, a
department store chain. In the former instance, the Company
was hired to change neon fixtures and bulbs in existing stores.2
In the latter case, the Company was hired to rearrange lighting
for displays.
The testimony of the Employer’s witnesses was that the elec-
trical services provided by the Company were in the middle
range of complexity. Their testimony was that the Company
does not require the number or type of electricians with the
types of skills and experience that journeymen would provide,
for example, in doing new construction. Although
acknowledging that the Company has people who are capable
of working on new construction, Bruce Germinsky, the
1 At the hearing, Local 338 moved to withdraw its charge with re-
spect to Michael Corroa and Mark Toth. I granted that motion.
2 This is called retrofitting. The market for this type of work was
created, to some degree, by rebates provided by New Jersey utility
companies to their customers if they changed their lighting systems to
make them more energy efficient. What is involved is putting in new
ballasts, installing reflectors and changing the neon bulbs.
331 NLRB No. 181
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1366
president testified that it would not normally bid for that type of
work.
As a general matter, the Company has a permanent work
force, which it tries to keep together. It is a nonunion contrac-
tor, although Germinsky testified that in the past it has done
some jobs where an arrangement was made with a local union
of the IBEW to have the work force split 50–50 between Ger-
minsky’s employees and electricians provided by a local IBEW
affiliate.
Bruce Germinsky testified that his grandfather founded the
Company and that he took over when his father retired in 1994.
Prior to returning to the Company, Germinisky had his own
electrical contracting Company called E. J. Alrich, which
worked under IBEW contracts. According to Germinsky, he
had a good relationship with the IBEW and had few problems
with them.
In 1994 Bruce Germinsky decided to wind down and close
E. J. Alrich so that he could give his full time and attention to
Germinsky Electrical. He thereupon became the president of
the Respondent company and took over its management.
Germinsky testified that he became aware in 1994 that the
IBEW was starting a campaign to organize the Company. He
testified that he was told by some of his employees that they
had been approached by Clem Vettone of Local 675 IBEW. He
also testified that he heard from some of the other IBEW busi-
ness agents that Germinsky Electrical was a “targeted” com-
pany. According to Germinsky, he heard that the IBEW was
trying to get his employees to sign union authorization cards
and he assumed that they would try to get an election. He also
testified that he was aware that some of his employees were
“salts” in that he knew that they were members of the IBEW
who had applied for jobs and had been hired.
Faced with the organizing efforts, Germinsky hired Nelligan,
a labor attorney. Germinksy testified that he took no retaliatory
actions against employees whom he knew or suspected were
members of the IBEW and made no other efforts to oppose the
organizing campaign. Germinsky testified that he told his
managerial staff to ignore the Unions and not to talk to employ-
ees about the Unions. There is, in fact, no evidence that the
Company, at any time, engaged in any unlawful conduct in
terms of threats, promises, interrogation, or retaliatory actions
against any of its employees who either were members of or
who supported the IBEW.
According to Germinsky, in the early part of 1995, he had a
meeting with Ray Greely a business agent of Local 252 IBEW
and with another business agent from a different local of the
IBEW. He states that they told him that the IBEW was going
to step up its union activity and that if Germinsky did not sign a
contract they were going to put his company out of business. In
response, Germinsky sent a letter to his employees dated May
5, 1995, which asserted that the IBEW was trying to coerce the
Company into signing a contract and that it was out to destroy
the Company if necessary. This letter was offered into evi-
dence as General Counsel’s Exhibit 8, presumably on the the-
ory that it showed antiunion animus. Given the context, I do
not reach this conclusion and I note that there is no allegation
that any statements contained in the letter are illegal under Sec-
tion 8(a)(1) of the Act.
On May 19, 1995, various of the locals of the IBEW wrote to
Germinsky claiming that they had information that Germinsky
Electrical was performing work of E. J. Alrich Electrical Con-
tractors Inc., and that Germinsky was formed in order to avoid
and circumvent the collective-bargaining agreements binding
on E. J. Alrich. Each of the letters made a demand for a large
amount of information about the operations of both companies
including their owners, employees, and customers.
The Company reasonably interpreted the letters as being part
of an effort to compel Germinsky Electrical and its employees
to be covered by the E. J. Alrich collective-bargaining agree-
ments. It sent a newsletter to its employees dated June 7, 1995,
which stated inter alia;

By now you are well aware that Local 675 has been
trying to organize our work force and it is evident . . . that
the union is not having much success. . . . Apparently, they
are frustrated and have shifted gears!
The IBEW has just given notice that it will attempt to
have its labor agreement extended to cover our work force
and become your bargaining representative. The union in-
tends to accomplish this through a rigged arbitration, with-
out any of our employees having any chance to vote in a
secret ballot election.
. . . .
Fortunately, you have rights in this matter and so does
the Company. We intend to assert those rights vigorously
and resist to the utmost this attempted, illegal takeover by
the union.

For the same reasons discussed above, I do not think that this
letter or the statements contained therein evince an intention or
predisposition to engage in unlawful conduct vis-à-vis the
Company’s employees or the Union.
Germinsky testified about another meeting in June 1995 that
he had with certain representatives of the IBEW, wherein they
made it clear that they wanted the Company to sign a statewide
contract covering all of its employees and that they no longer
would agree to compromise arrangements as described above
where in circumstances where Germinsky worked on unionized
projects, he could hire a portion of his work force from the
local union and have the other portion being his own employ-
ees.
In the autumn of 1995, the Company was requested to sub-
mit a proposal to E. G. Edwards for retrofit work on 28 stores
in New Jersey to commence on January 1, 1996, and to be com-
pleted in about 7 weeks; the deadline being forced by the
application process for utility rebates. Germinsky testified that
he decided to make a proposal for 17 of the 28 stores as the
entire job was too big for his own work force. He testified that
the work involved (1) removing and replacing existing flores-
cent lamps; (2) retrofitting, which means removing and replac-
ing ballasts and installing reflectors; and (3) altering the light
pattern by adding or removing fixtures. According to Germin-
sky, the first of these functions is low-skill work and essentially
amounts to changing light bulbs. He testified that the second
aspect involves moderate electrical skill and that the third as-
pect requires the most skill.
In relation to the E. G. Edwards job, Germinsky testified that
he figured that it would require a total of 42 people consisting
of 7 crews who would work at seven sites at any given time.
Each crew would consist of a leadman who would be a regular
Germinsky employee who would be assisted by one or two
electricians. The remaining people in each crew would consist
of laborers or helpers who did not need to have electrical skills.
According to Germinsky, at about the same time, he got a
call from Bradley’s, which wanted Germinsky to reset the light-

GERMINSKY ELECTRICAL CO. 1367
ing in about 54 stores to commence in January 1996 and to be
completed in about 10 weeks. As Bradley’s was an old and
good customer, Germinsky testified that he could not turn down
this work even though it meant that doing both jobs at overlap-
ping times would be beyond the Company’s existing work
force.
Germinsky testified that he decided to hire additional work-
ers on a temporary basis to enable the Company to do these two
jobs. As a consequence, the Company placed advertisements in
a number of newspapers and put Carmen Grimaldi, its manager
of estimating, in charge of hiring these additional people. The
advertisements were run in local papers at various times and
presumably reflected a need for people in a particular locality at
a particular time. The advertisement was first run in the Tren-
ton Times on January 13, 1996, and was last run in that same
the Star Ledger, the Bergen Record, the Asbury Park Press, and
the Home News & Tribune. The advertisement read:

Established electrical contractor seeks electricians and experi-
enced apprentices with a strong background in renovation and
new installation. We offer competitive compensation and ex-
cellent benefits. For confidential consideration, FAX resume
to (800) 788–4324 or call (908) 412–3518.

The Charging Parties, learning from Local 675 and its salts,
that the advertisement came from Germinsky, decided to have
various of their members apply for jobs. In this connection, the
local unions sought out volunteers to apply for the jobs, albeit
in one instance, Local 456 Business Manager Francis Leake
sent in the resumes of five of his members without first talking
to them. All of the resumes were sent in pursuant to the
IBEW’s salting program, which, among other things, allows an
IBEW member to work for a nonunion company only under
each local union’s salting proposal. The IBEW’s salting pro-
gram, which is nationwide in scope, is described in the Re-
spondent Exhibit 3 entitled, “Union Organization In the Con-
struction Industry.” Although it is not necessary to discuss the
implications of this manual in the context of this particular
case, I do note that there are instructions to employees hired as
salts which might raise substantial issues under NLRB v. Elec-
trical Workers Local 1229, 346 U.S. 464 (1953); and Crystal
Linen Service, 274 NLRB 946, 948 (1985).3
A. Local 269 IBEW
Local 269’s jurisdiction covers Mercer County, which in-
cluded Trenton, New Jersey.
On January 14, 1996, Richard Aicher, a representative of
Local 269 faxed three resumes to the phone number listed in
the advertisement. The transmission report shows that they
were received on the same date. The resumes were for Joseph
Nalbone, Walter Marciante, and Alex Bartolino, all of whom
are journeymen. The resumes were accompanied by a cover
letter from Charles L. Marciante, the Union’s business man-
ager, who wrote that the three union electricians were highly
qualified for the jobs advertised and were available for immedi-
ate employment. The letter went on to state that they were
volunteer organizers.

3 For example, at p. 16 of the manual, an employee who successfully
obtains employment as a salt is supposed to report the company’s cus-
tomers to the union so that the union can go to these customers and
“guarantee” that the use of the salt’s employer will result in labor prob-
lems on their projects. Thus, in the absence of majority status and/or in
the absence of a collective-bargaining relationship, salts are required to
provide information to the union so that it can convince and/or pressure
potential customers not to do business with the company that hires the
salts.
Although testifying that members who agree to work as salts
are told that they should accept employment at the terms of-
fered by the employer, neither the cover letter nor the resumes
indicate that these journeymen were willing to work at reduced
wages and benefits. In this regard, a journeyman electrician
earns about $28 per hour under the IBEW collective-bargaining
agreements (exlusive of other benefits), whereas the people
who were hired by the Company in this case, were offered
wages between $8 and $21 per hour. (See table below.)
The Company did not respond to the faxed resumes and did
not call any of the three individuals. The Union, for its part,
did not follow up after sending the resumes and neither did the
three men. It should be noted that all three journeymen were
retired at the time their resumes were sent, in the sense that they
were collecting IBEW pensions and were not registered with
the hiring hall for employment. Aicher testified that notwith-
standing their status as pensioners, they could have worked
without losing their pension payments. None of these three
individuals testified in this case.
B. Local 675
Having learned of the advertisement, Local 675 sought vol-
unteers amongst its out of work members to apply for employ-
ment at Germinsky.
On January 17, 1996, the Union faxed resumes of Claude
Sutton, James O’Donnell, and Frank Terrelle. On January 22,
it faxed a resume of Paul Bulkivish. All of these people were
journeymen and their resumes clearly indicated that they were
affiliated with Local 675.
None of these people were contacted by the Company. Nei-
ther the Union nor any of these individuals followed up after
their resumes were sent.
The evidence also indicates that Susan Johnstonbaugh faxed
a resume to the Company on January 16, 1996, which indicated
that she was a member of Local 675. She was not contacted by
the Company and she did not follow up on her resume.
Richard Ziarnowski, who is an instructor in the Local Un-
ion’s Joint Apprenticeship program, testified that he faxed his
resume on January 17, 1996. He testified that he (unlike the
others), followed up by calling the Company on January 18 and
19. In this regard, Ziarnowski testified that on January 19,
1996, he spoke to a man named Carmen (Grimaldi) who said
that he was very busy and hadn’t had a chance to review the
resumes. Ziarnowski testified that on January 20, Carmen
called him back and said that he had received his resume and
would get back to him. According to Ziarnowski, he had an-
other phone conversation with Carmen and they discussed the
kind of electrical work being done by the Company. According
to Ziarnowski, he would have accepted any job and would have
accepted any wage offered. He did not, however, tell this to.
Grimaldi, and in fact, his resume states that he was looking for
a supervisory position. This was, according to Ziarnowski, the
last conversation he had with Carmen and he was not hired or
offered employment.
C. Local 358
This local is located in Perth Amboy, New Jersey, and its
business manager is Joseph Jennings. Instead of sending re-
sumes himself, he told various members that they should either
call or send their own resumes to Germinsky. These were as
follows:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1368
Joseph Martin testified that on January 15, 1996, he
called and spoke to Carmen. He states that he told Car-
men of his qualifications and in response to a question,
listed 3 contractors that he had worked for in the past. (All
three being union contractors). Martin states that Carmen
asked what kind of wages he was looking for, to which he
said; “whatever you pay qualified journeymen electri-
cians.” According to Martin, Carmen said that he was in-
terested and that he would call back. Martin states that
Carmen never did call back. Martin did not send a resume
to the Company and did not make any other follow up ef-
forts to get this job. During the conversation, Martin did
not tell Carmen that he was affiliated with the IBEW.

Paul Plesnarski testified that he called on January 15, 1996, and
spoke to Carmen. (GC Exh. 13 is Plesnarski’s phone bill show-
ing that he made a call to this number on that date.) Plesnarski
testified that Carmen asked if he was a journeyman and he re-
sponded that he was. He states that Carmen asked what kinds
of work he did and he told Carmen that he did new, old, and
retrofit work. According to Plesnarski, Carmen asked if he
could also be a leadman and he said yes. Plesnarski listed two
of his past employers, one of which, National On-Site Person-
nel, he states is a hiring agency that sends out temporary work-
ers to nonunion employers. Plesnarski testified that pay was
not discussed and that he was not asked to submit a resume. He
testified that nothing was said either by himself or Carmen
about unions. Plesnarski states that from what Carmen said, he
understood that Carmen was going to interview a group of peo-
ple. He states that he did not send in a resume because he
thought that he would receive an invitation to interview and
that he could bring in a resume at that time. This was the last
contact between Plesnarski and the Company and Plesnarski
did not follow up after this phone conversation. It should be
noted that there is nothing in Plesnarski’s testimony that would
indicate that Carmen Grimaldi would have known that he was a
member of the IBEW.
Norman Whitely testified that he called and spoke to some-
one he could not identify. He states that he asked how much
the Company was paying and the person said that it depended
on his qualifications. Whitely states that this person asked him
to send in a resume and he did so on the following day by mail.
There is no question but that anyone looking at his resume
would realize that he was affiliated with the IBEW. He did not
indicate, however, that he was willing to accept wages below
what a journeyman normally gets. Whitely was never con-
tacted by anyone from Germinsky and he made no further ef-
forts to follow up on his resume.
James Kennovin testified that he had his mother fax in his
resume on January 16, 1996. Although his resume does not
indicate that he is affiliated with the IBEW, it does list five
union contractors at which he worked as a journeyman. He
testified that he left two messages at the Company’s answering
machine and received a beeper message that someone from the
Company had tried to contract him. Kennovin never managed
to get in touch with anyone from the Company and the Com-
pany did not, thereafter, get in touch with him.
Andrew Kacvinski Jr. testified that he called the Company
on February 7, 1996, and spoke to Carmen for about 4 or 5
minutes. He states that he told Carmen that he was a member
of Local 358 and had completed his apprenticeship. Kacvinski
testified that he told Carmen that he had worked for union and
nonunion employers and that Carmen asked him to send in a
resume, which he did immediately. (He states that he called
Carmen later in the day and Carmen acknowledged that he
received the resume.)
Kacvinski testified that on February 10 he called Carmen
who said that he should send another resume because he
couldn’t find Kacvinski’s resume among the pile that he had.
Kacvinski faxed his resume to the Company on February 12
and called Carmen to confirm that it had been received. That
was the last contact between Kacvinski and Carmen or anyone
else from the Company. It is noted that according to Kacvinski,
there was no discussion of pay in any of these conversations,
and he did not say that he was willing to accept whatever the
Company was willing to offer.
D. Local 456
Francis Leake, the assistant business manager, testified that
he saw the advertisement on January 16 and faxed the resumes
of five of his journeyman members to the Company on January
18, 1996.
Leake states that the five people had gone through the
COMET program and had volunteered to apply for jobs as
salts. He sent in resumes for Rhonda Browning, John Donahue,
Charles Kovach, Steven Towle, and another member named
Marciano who is not alleged as a discriminatee in this case. Of
the first 4, the resumes of Browning and Towle indicate on
their face, an affiliation with the IBEW, whereas the affiliation
of the other two might be inferred from their listed employment
history.
Of the group, Browning was the only member who was out
of work when their resumes were sent in. The others were
actively employed at the time, but Leake asserts that they
would have left their employers to work at Germinsky if they
had been offered jobs. In this regard, he testified that he has an
arrangement with union contractors to give leaves of absence to
his members if they volunteer to engage in salting activity. I
should also note that. Leake sent in the resumes of Towle and
Donahue before telling them that he was doing so. (He states
that they had previously given him permission to do this.) He
states that he told Browning and Kovach that he was sending in
their resumes on the same day that he sent them and that they
said this was okay with them.
The Company did not respond to any of these resumes and
there is no evidence that either the Union or the individual
members followed up after their resumes were sent.
E. Local 400
By letter or fax dated January 24, 1996, Bill Bryan a jour-
neyman member sent his own resume to the Company, which
indicates in its body that he was affiliated with Local 400
IBEW. He also sent a cover letter, which stated: “I am ready,
willing and able to go to work immediately, at your conditions
and rate.” Assuming that this was sent by letter and placed in
the mail on that date, it would probably have been received
anywhere from Friday, January 26 to Wednesday, January 31.
What is unusual about this letter in relation to all of the other
resumes is that. Bryan is the only one who made it clear that he
would be willing to accept a job at the Company’s wages and
conditions.
The Company did not respond to Bryan’s resume and he did
not follow up on it either.
In addition to the above, the General Counsel presented a
witness, Joseph Camporeale, who applied for a job at Germin-

GERMINSKY ELECTRICAL CO. 1369
sky and was not a member of the IBEW or any of the Charging
Party locals.
F. The Testimony of Joseph Camporeale
Camporeale testified that he received his apprenticeship
training at Local 3 IBEW in New York, but moved to Florida
before becoming a journeyman. He states that he relocated to
New Jersey in January 1996 and when he saw the advertise-
ment, he called and spoke to Carmen. According to Campo-
reale, he was asked about his experience and said that he had
done retrofits for florescent bulbs and ballasts, which was the
job that the Company was doing for E. G. Edwards. Campo-
reale testified that when he asked for $20 per hour, Carmen said
that he didn’t think that this would be a problem given Campo-
reale’s experience.
Thereafter, Camporeale was interviewed by Carmen on Feb-
ruary 8, 1996, and on his application Carmen Grimaldi wrote
that he considered offering him a job at $17.50 per hour. Ac-
cording to Camporeale, Carmen asked if he had been a Local 3
apprentice and he responded that this was where he got his
training. After discussing his move to Florida and his work
there, Camporeale states that Carmen said; “[Y]ou’re’ not a
member of the Union anymore?” Camporeale states that he said
that he was not, and that Carmen said that he would get back to
him over the weekend. Camporeale also testified that he told
Carmen that if he didn’t get $20 per hour, he might as well stay
in Florida and not have to buy a coat.
According to Camporeale, Carmen did not call, and he man-
aged to get an offer from another company for $17.50 per hour.
He states that when he called Carmen and told him of the other
offer, Carmen said that he could offer only $15 per hour. Cam-
poreale told Grimaldi that if Germinsky matched the other
company’s offer, he would rather work there. In response,
Carmen said that he could not match the offer and wished him
luck.
Frankly I do not think that Camporeale’s testimony tends to
show much of anything for either side. On balance, the import
of his testimony was that he was offered employment but in-
sisted on receiving more than the Company was willing to offer
for the particular job at issue. When he later came back with a
counteroffer to work for $17.50 an hour, Carmen told him that
the Company’s best offer would be $15 per hour. At most, this
evidence tends to show that Carmen refused to offer an amount
of money, which was acceptable to a man who once was, but
was no longer affiliated with the IBEW. The fact that in dis-
cussing Camporeale’s past work experience there was some
talk about the fact that he had learned his trade through an
IBEW apprenticeship program hardly indicates anything un-
usual. Nor is the testimony that Carmen asked if he was still
affiliated with the IBEW anything other than innocuous.
G. The Employer’s Position
Carmen Grimaldi testified that because of the unusual situa-
tion of having this overload of work due to the simultaneous
contracts for two large jobs, he was given the additional task of
interviewing and hiring a temporary work force to handle this
overflow. He testified that the advertisements were placed in
several newspapers over a period of about 2 months and that he
answered phone calls and reviewed resumes when he could find
time to be in his office. He testified that there were about 300
inquiries made for these jobs, of which about 200 were resumes
faxed into his office. According to Grimaldi, he spent a mini-
mal amount of time reviewing each of the resumes because of
the press of his other work. He states that the success of a par-
ticular applicant was determined, to some degree, not only by
his or her resume and interview, but by the luck of timing or
persistence. That is, if suitable resumes came in during a week
when people were needed, the people who sent in their resumes
at that time had a better chance of being interviewed and hired.
Grimaldi testified that the jobs were either helper jobs or
middle level electrical jobs. That is, none of the jobs required
the full knowledge or experience of an electrical journeymen
and some of the jobs required no electrical experience at all. In
this respect, Grimaldi testified that he intended to offer, and did
in fact offer wages and benefits at rates which were far below
what a journeyman would normally receive. He also testified
that he was not interested in hiring journeyman who, in his
opinion, would be overqualified.
The parties stipulated to a list of people who were hired by
the Company and who were assigned to work on the E. G. Ed-
wards jobs. This was General Counsel’s Exhibit 20 and it
showed:

Name Date of
Hire
Rate Termination
Date
Anthony Vella 12/6/95 13.50 2/19/96
John Hickey 12/11/95 17.50
Paul Gayda 12/18/95 8.00
M Oettinger 1/10/96 15.00 3/8/96
Charles Frank 1/16/96 10.50 4/1/96
Sergio Duarte 1/17/96 11.00 4/5/96
T. Delessio 1/18/96 15.00 5/20/96
David Johnson 1/19/96 13.50 1/31/96
Ernest Bagley 1/22/96 10.00
D. Cedrone 1/22/96 8.50 3/8/96
W. Frangiole 1/22/96 11/00 3/15
Marvin Horak 1/22/96 12.00
David Pisko 1/22/96 15.00 3/8/96
R. Imkemeier 1/29/96 10.50 (He left and
returned)
S. Kilpatrick 1/29/96 13.00 5/31/96
Dan Lowe 1/30/96 10.00 1/31/96
D. Costello 2/12/96 9.00 2/29/96
Joe Fales 2/14/96 16.00 3/15/96
Robert Lengen 2/26/96 17.00 5/31/96
W. Jennings 2/29/96 21.00 4/18/96
T. Kaprosch 3/4/96 14.00

The evidence shows that after April 1996 the Company hired
only four new employees for its electrical division. But these
jobs would not have been to fill the needs required by the E. G.
Edwards and Bradley’s jobs.4
In looking at the evidence noted above, one can see that
there were 17 individual hired during the period that the adver-
tisement was run and after the Unions or their members applied
for the jobs in question. Of the jobs filled, about eight were
helper or apprentice jobs, requiring little or no electrical experi-
ence. And the remainder were electrician jobs that required
lesser skills than a journeyman. In all cases, the wage rates and

4 These were John Pettock hired on August 13, 1996, at $16 an hour
and left on August 14, 1996; Joseph Restton hired August 5, 1996, at
$12 an hour and left on August 9, 1996; Clement White hired on July
29, 1996, at $7 an hour and left on August 26, 1996; and Bruce Wolp
hired on October 16, 1996, at $11 an hour and who was still employed
at the time of the hearing.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1370
benefits offered, were far below the normal pay rate for an
IBEW journeyman.
The evidence shows that of the approximately 300 people
who inquired about these jobs, there were 17 people who were
interviewed and hired after the advertisements first appeared.5
and 24 who were interviewed and not hired. (GC Exh. 22 is a
group of resumes and applications which the parties stipulated
constituted the group of people who were interviewed for the
positions in question and who were not offered jobs.) Of this
group, four had sent in resumes or had been interviewed before
the advertisements were run. (Presumably, the Company had
their resumes on file and decided to interview them before put-
ting advertisements in the papers.)
Obviously, one of the defining differences between the peo-
ple who were interviewed and the people who are the alleged
discriminatees in this case and who were not interviewed is that
none of the interviewed group expressly indicated any union
affiliation. But this is also true of some of the alleged discrimi-
natees whose union affiliation was not apparent or might only
be inferred from their listed past employment. By the same
token, there were more than another 200 people whose resumes
or calls were received and who were also not interviewed.
Unless Grimaldi had decided to interview every person who
either called or sent in a resume, if he had chosen to interview
about 40 to 45 people completely at random, the probability
would be that some, but only a small minority of the alleged
discriminatees would have been interviewed.
The fact that. Grimaldi chose not to interview every appli-
cant was, in my opinion, a rational decision given the other
work that had to do. Moreover, it would be rational to not
spend time interviewing those people whom one could rea-
sonably anticipate would not likely accept employment at the
wages and benefits that were being offered. Nor is it unreason-
able not to interview a person for a job which he or she is obvi-
ously overqualified. (For example offering to interview a jour-
neyman for a helper’s job is like offering to interview a surgeon
for a job as an LPN.)
III. ANALYSIS
The facts show that for several years the IBEW has unsuc-
cessfully tried, by various means, to gain a collective-
bargaining relationship with the Respondent. The Company
has countered the Union’s efforts in a legal and appropriate
manner and has never engaged in any conduct which could be
interpreted as constituting coercive conduct vis-à-vis its em-
ployees.6
Notwithstanding the total lack of evidence to show that the
Company has ever manifested any inclination to discriminate
against employees because of their union membership, activi-
ties, or sympathies, the General Counsel contends that the
Company refused to consider for employment and/or refused to
hire certain individuals who applied for work because of their
affiliation with the listed unions. This contention has no merit
in my opinion, and should be rejected.

5 Based on the evidence, it seems that Anthony Vella, John Hickey,
Paul Gayda, and M. Oettinger, were hired to work on the E. G. Ed-
wards jobs before the advertisements appeared in the newspapers.
6 In dismissing the allegation that an employer unlawfully refused to
hire job applicants, the Board, in Big E’s Foodland, Inc., 242 NLRB
963 fn. 3 (1979), noted that the lack of evidence showing antiunion
animus was an important consideration in determining the employer’s
motive. See also VOS Electric, Inc., 309 NLRB 745 (1992).
In Wireways, Inc., 309 NLRB 245 (1992), the Board, al-
though finding that the Respondent violated Section 8(a)(1) of
the Act by prohibiting the distribution of union literature by
employees and by an isolated threat of discharge, nevertheless
agreed with the administrative law judge’s conclusion that the
evidence was insufficient to establish that in failing to hire any
of the union job applicants, the company had violated Section
8(a)(3) of the Act. As noted by the judge, id. at 251–252:

The General Counsel must prove by a preponderance
of the record evidence that Respondent in its failure to hire
the alleged discriminatees was motivated by the union ac-
tivity subject to the causation test of Wright Line, 251
NLRB 1083 (1980). Union activity includes affiliation,
active or inactive union membership and past employment
with union contractors. His evidence must show that the
alleged discriminatees made applications for positions,
that Respondent refused to hire such applicants, that Re-
spondent knew the applicants were union members or sus-
pected they were union members and that Respondent
harbored animus against union members or sympathizers
and refused to hire the alleged discriminatees because of
its animus.

The General Counsel’s case boils down to evidence that (a)
the Respondent advertised for a number of jobs; (b) that the
Unions either sent resumes on behalf of some of their members
or encouraged their members to send resumes or call the Re-
spondent and (c) that the Respondent did not respond. As
noted above, there was no evidence of antiunion animus.
Moreover, unlike such cases as KRI Constructors, 290 NLRB
802 (1988); and AJS Electric, 310 NLRB 121 (1993), there is
no direct evidence showing that the employer’s refusal to hire
was motivated by the job applicant’s union affiliation. (In both
of those cases, the employer’s agents made written notations on
job applications which, in effect, admitted the illegal motiva-
tion.)
The evidence shows that, at most, there were 17 people hired
for the advertised jobs after the Unions either filed resumes or
their members called or submitted resumes on their own. The
submitted resumes showed that they were journeymen electri-
cians, and except for one instance, none of these people indi-
cated that they would be willing to accept less money than what
they were used to earning. The fact is that the jobs being filled
by the Respondent did not require journeymen skills and did
not pay journeymen wages. Indeed, a substantial number of the
jobs involved were helper jobs paying $11 or less, and the oth-
ers were electrician jobs requiring few of the skills required of a
journeyman.
Grimaldi was given the responsibility of interviewing and
hiring people for these positions and this was in addition to his
normal responsibilities. He credibly testified that he spent very
little time considering each resume and that he called in for
interviews only a small proportion of the people who either
called or sent in resumes. Grimaldi testified that he did not
want to hire journeymen for nonjourneymen jobs because such
people would be, in his opinion, overqualified for the work.7
7 In Bay Control Services, 315 NLRB 30 (1994), the Board dis-
missed the allegation that the respondent refused to hire union appli-
cants. The Board stated (id. at fn. 2):
In adopting the judge’s finding . . . we stress that, as the judge
found, there was no showing that there were jobs available for
new hires on those dates. Thus, although BCS at other times did

GERMINSKY ELECTRICAL CO. 1371
He also testified that there were other additional reasons not to
interview to the particular people who are alleged as discrimi-
natees in the present case, none of which I can say are demon-
strably false or pretextual in nature. For example in the case of
Bill Bryan, Grimaldi testified that this man’s resume indicated
a possiblity of instability evidenced by the large number of
employers he had over a short period of time. And although
not specifically explicated by Grimaldi, it would not be irra-
tional, given the number of people in the applicant pool, to
refuse to interview individuals who would not be likely to ac-
cept positions at wage rates and terms which would be far be-
low what they were used to getting.8

hire some applicants who, like the union members here, appeared
at the jobsite seeking work, the General Counsel has failed to es-
tablish that BCS needed employees on the specific days that the
union members sought work. Furthermore, BCS’ primary em-
ployment need on the project was to fill low-paying helper jobs
and BCS had a policy, based on past experience, against hiring
overqualified employees such as the journeymen electricians al-
leged as discriminatees here.
8 See, for example, Sierra Realty Corp. v. NLRB, 82 F.3d 494 (D.C.
Cir. 1996).
In my opinion, the General Counsel has not presented suffi-
cient evidence to make out a prima facie showing of discrimi-
natory intent. Moreover, even if it could be said that such a
showing was made, I think that the Respondent has established
that it considered the alleged discriminatees for employment,
(to the extent that Grimaldi received their resumes or spoke to
them on the phone), and that he decided not to interview them
for non discriminatory reasons.
CONCLUSION OF LAW
The employer has not violated the Act in any manner as al-
leged in the complaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended9
ORDER
The complaint is dismissed.
9 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.