Hard Hat Services, LLC

National Labor Relations Board - Board Decisions

Jun 12, 2018

366 NLRB No. 106 (N.L.R.B. 2018)

366 NLRB No. 106
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Hard Hat Services, LLC and International Brother-
hood of Electrical Workers, Local Union No. 98.
Case 04–CA–196783
June 12, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, KAPLAN, AND EMANUEL
On December 27, 2017, Administrative Law Judge
Robert A. Giannasi issued the attached decision. The
Respondent filed exceptions and a supporting brief. The
General Counsel and the Charging Party filed answering
briefs.
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 as modified and set
forth in full below.2
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. We shall order the
Respondent to offer Robert Weeks and Michael O’Leary
instatement in the positions for which they applied, or, if
such positions no longer exist, to substantially equivalent
positions. We shall further order the Respondent to
make Robert Weeks and Michael O’Leary whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against them. Backpay shall be com-
puted in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New
Horizons, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB
6 (2010). The duration of the backpay period shall be
determined in accordance with Oil Capitol Sheet Metal,

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 amend the judge’s remedy, modify the judge’s recom-
mended Order, and substitute a new notice to conform with our find-
ings here, our standard remedial language, and our decisions in Indian
Hills Care Center, 321 NLRB 144 (1996), and Excel Container, Inc.,
325 NLRB 17 (1997).
349 NLRB 1348 (2007). We shall also order the Re-
spondent to compensate Robert Weeks and Michael
O’Leary for their search-for-work and interim employ-
ment expenses regardless of whether those expenses ex-
ceed interim earnings. King Soopers, Inc., 364 NLRB
No. 93 (2016), enfd. in pertinent part 859 F.3d 23 (D.C.
Cir. 2017). Search-for-work and interim employment
expenses shall be calculated separately from taxable net
backpay, with interest at the rate prescribed in New Hori-
zons, supra, compounded daily as prescribed in Kentucky
River Medical Center, supra. In addition, for a period of
60 consecutive days, we shall order the Respondent to
include copies of the standard remedial notice with any
advertisements pertaining to any future job postings that
it issues either directly or through its agent, YourHR,
whether in written or electronic form.3 Finally, because
the Respondent’s unlawful conduct involved YourHR,
we shall order the Respondent to provide the Regional
Director with signed copies of the remedial notice for
posting by YourHR, if YourHR is willing, at all locations
where notices to its employees are customarily posted.
Abbott Northwestern Hospital, 343 NLRB 498 (2004).
ORDER
The National Labor Relations Board orders that the
Respondent, Hard Hat Services, LLC, Norristown, Penn-
sylvania, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Coercively interrogating employees about their un-
ion membership, activities, sympathies, and/or support.
(b) Refusing to hire or consider for hire employee-
applicants because of their union affiliation.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days of the date of this Order, offer em-
ployment to Robert Weeks and Michael O’Leary in the
positions for which they applied, or, if such positions no
longer exist, to substantially equivalent positions.
(b) Make Robert Weeks and Michael O’Leary whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the remedy section of the judge’s decision as
amended in this decision.
(c) Compensate Robert Weeks and Michael O’Leary
for the adverse tax consequences, if any, of receiving
lump-sum backpay awards, and file with the Regional
Director for Region 4, within 21 days of the date the

3 No party filed exceptions to the judge’s inclusion of this remedy.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to
the appropriate calendar years for each employee.
(d) Within 14 days of the date of this Order, remove
from Respondent’s files any reference to the unlawful
refusal to hire Robert Weeks and Michael O’Leary and,
within 3 days thereafter, notify them in writing that this
has been done and that the refusal to hire them will not
be used against them in any way.
(e) 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 rec-
ords 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.
(f) Within 14 days after service by the Region, post at
its Norristown, Pennsylvania facility, copies of the at-
tached notice marked “Appendix.”4 Copies of the notice,
on forms provided by the Regional Director for Region
4, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es, including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since February 27, 2017.
(g) For a period of 60 consecutive days, include a copy
of the attached notice marked “Appendix” with any ad-
vertisements for future job openings, whether issued di-
rectly or through its agent, YourHR, and whether in writ-
ten or electronic form.
(h) Within 14 days after service by the Region, sign
and return to the Regional Director for Region 4 suffi-

4 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.”
cient copies of the notice for posting by YourHR, if
YourHR is willing, at all locations where notices to its
employees are customarily posted.
(i) Within 21 days after service by the Region, file
with the Regional Director for Region 4 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. June 12, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law 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 coercively question you about your un-
ion membership, activities, sympathies, and/or support.
WE WILL NOT refuse to hire or consider for hire em-
ployee-applicants because of their union affiliation.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer employment to Robert Weeks and Michael
HARD HAT SERVICES, LLC 3
O’Leary in the positions for which they applied, or, if
such positions no longer exist, to substantially equivalent
positions.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful refusal to hire Robert Weeks and Michael O’Leary,
and WE WILL, within 3 days thereafter, notify them in
writing that this has been done and that the refusal to hire
will not be used against them in any way.
WE WILL make Robert Weeks and Michael O’Leary
whole for any loss of earnings and other benefits result-
ing from our refusal to hire them, less any net interim
earnings, plus interest, and WE WILL also make such em-
ployees whole for reasonable search-for-work and inter-
im employment expenses, plus interest.
WE WILL compensate Robert Weeks and Michael
O’Leary for the adverse tax consequences, if any, of re-
ceiving lump-sum backpay awards, and WE WILL file
with the Regional Director for Region 4, within 21 days
of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the back-
pay awards to the appropriate calendar years for each
employee.
HARD HAT SERVICES, LLC
The Board’s decision can be found at
www.nlrb.gov/case/04-CA-196783 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
Edward J. Bonett, Esq. for the General Counsel.
Walter H. Flamm, Jr., Esq., for Respondent.
James E. Goodley, Esq., for Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge. This case
was tried in Philadelphia, Pennsylvania, on November 6, 2017.
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act by interrogating an employee about union
sympathies, and Section 8(a)(3) and (1) of the Act by refusing
and failing to hire employee applicants because of their affilia-
tion with, and activities on behalf of, the Charging Party Union
(hereafter, the Union). Respondent denied the essential allega-
tions in the complaint. After the trial, the General Counsel and
the Respondent filed briefs, which I have read and considered.1
Based on the filed brief and the entire record, including the
testimony of the witnesses and my observation of their de-
meanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Pennsylvania limited liability company with
an office located in Norristown, Pennsylvania, is engaged as an
electrical contractor in the construction industry. In conducting
its business operations during a representative 12-month period,
Respondent performed services valued in excess of $50,000
outside the Commonwealth of Pennsylvania. Accordingly, I
find, as Respondent admits, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of
the Act. I also find, as the parties stipulated (Tr. 7) that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Background
Sharon Modestine is the president and owner of Respondent.
Since January 2017, she has utilized a firm called Lott Re-
source Collaborative, which does business as YourHrDept or
YourHr, to effectuate the hiring of her electrician employees.
Tr. 104–105. YourHr, which has an office located at 31 South
Shirley Street, Shillington, Pennsylvania, is operated by Stacey
Atkinson, who is an admitted agent of Respondent for the pur-
poses of this case. Tr. 6–7, 21, 49, 127–128.
The Union is engaged in organizing and representing electri-
cian employees in its territorial jurisdiction. One of its organiz-
ing methods is to conduct a salting campaign, whereby it ap-
plies to nonunion employers on behalf of its members who are
seeking work. Those applicants are called salts. Union Organ-
izer James Reppert heads those campaigns. Tr. 10–11, 18.
Reppert has, in the past, answered ads posted by Respondent
and sent both overt salts (applicants whose applications explic-
itly state the applicant’s affiliation with the Union) and covert
salts (applicants whose applications make no mention of affilia-
tion with the Union) to Respondent. He is thus familiar with
Modestine—and she with him, or at least with the Union’s
salting efforts. Tr. 28–29, 109–119, G.C. Exh. 11.
One of the Union’s earlier organizing efforts involved the
employees of another electrical company in the area, Kiss Elec-
tric. The Union petitioned for an election in a unit of Kiss
Electric employees some 3 years ago. Kiss opposed the Union
and, in that connection, posted a batch of applications by union
salts submitted to Respondent and sent to Kiss. Tr. 90–94, 72–
77, 30–34. After an initial denial, hesitation and evasiveness on

1 The Charging Party filed a submission that indicated it joined in
the brief filed by the General Counsel.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the issue, Modestine admitted to sending the applications to
Kiss. Tr. 117–118.
As part of Kiss’s election campaign against the Union,
Modestine also gave a speech at a meeting of Kiss Electric
employees at the Kiss facility urging the employees to reject
the Union. Tr. 72–74. She identified herself as being with
Respondent and said that voting for the Union might result in
loss of work or in layoffs or discharges. Tr. 74–75.2
The above account of Modestine’s speech at Kiss is based on
the credible testimony of employee Maurice Samuels, who was
employed at the time by Kiss and attended the meeting at which
Modestine spoke. At the time he was not open about his affilia-
tion with the Union. Tr. 76. Samuels impressed me as a candid
witness, whose testimony about Modestine’s speech was
straightforward and specific. It was not directly put at issue on
cross-examination, although counsel for Respondent attempted
to impugn Samuels’s credibility by pointing out that his May
19, 2015 Board affidavit did not contain anything about the
Modestine speech. But that was understandable because the
affidavit was taken in connection with another salting case
involving Samuels and Respondent that was ultimately settled.
Tr. 83–89, R. Exh. 1, G.C. Exh. 9.
Indeed, Samuels’s testimony on cross-examination, which
was supported by his affidavit and confirmed elsewhere in the
record, enhanced his credibility. Much of that testimony was
about a salting effort by the Union with Respondent in May of
2015 and Modestine’s calls to Samuels, who, at that time, was a
union salt. Another union salt, Angelo Ercolino, confirmed that
he was called by Modestine in connection with the May 2015
union salting effort. Tr. 96–98. And Modestine herself testified
that she made frequent calls to applicants, who often hung up
on her. Tr. 105–106. Moreover, Samuels testified that, after
her speech at Kiss, Modestine approached him to remind him
that he had applied for a job with Respondent earlier and to tell
him she would have hired him. Tr. 75–76. Modestine, who
testified after Samuels, did not contradict Samuels’s testimony
on this point, thus further enhancing his credibility.
I do not credit Modestine’s testimony about the Kiss speech.
Modestine admitted speaking against the Union in the speech at
Kiss, but denied stating that employees would be laid off or
fired if the employees voted for the Union. According to
Modestine, she simply told the Kiss employees what happened
at a former company of hers. Tr. 116. Her testimony about the
speech was conclusory, without meaningful detail. And, as I
indicated above with respect to Modestine providing the appli-
cations of union salts to Kiss, her testimony on this issue was
hesitant and evasive, which reflects adversely on her reliability.
In addition, in my view, all of her testimony was infected by
the virulent union animus exhibited by her on the witness stand,
as I point out later in this decision.
Applicants for Positions with Respondent
In February 2017, Union Organizer Reppert answered a
blind ad for electricians that appeared on a website called Zi-
precruiter. The ad was placed on the website by YourHR,
which described itself as being “dedicated to helping employers

2 The Union lost the election in the Kiss Electric unit. Tr. 76–77.
find a (sic) retain talented people in the construction industry.”
The ad, which was ultimately for electricians who would work
for Respondent, sought commercial service electricians, includ-
ing helpers, technicians and foremen. Among the job qualifica-
tions were the ability to read blueprints and to diagnose electri-
cal problems, and experience in commercial electrical work.
G.C. Exh. 2.
Reppert, with the authorization of the applicants, answered
the ad by posting the applications and profiles of union mem-
bers Robert Weeks, Michael O’ Leary, and Ryan Schillinger.
All three were looking for work and had the qualifications men-
tioned for the electrician’s position being advertised. The ap-
plications of Weeks and O’Leary prominently mentioned their
affiliation with the Union, making them overt salts. Schil-
linger’s application did not mention any union affiliation, mak-
ing him a covert salt. Again with the permission of Weeks,
O’Leary and Schillinger, Reppert set up email accounts that he
and the applicants could each access in order to receive and
answer communications about the applications. Tr. 11–16, 22–
24, 35–39, 44–48, 64–69.3
Weeks’s application prominently mentioned that he had, for
15 years, worked for “Various Electrical Contractors Local
Union 98 I.B.E.W.” It also mentioned that his latest employ-
ment, from 2013 to 2015, was as an electrician/technician with
Broadband Express of Endicott, NY. The application listed
specific qualifications that more than matched the qualifications
in the ad. G.C. Exh. 3, Tr. 38. The application was filed on
February 23 and first viewed by YourHR on February 24, 2017.
On February 27, YourHR sent a reply to Weeks, through Zipre-
cruiter, stating that his “experience does not match our current
needs.” YourHR later viewed Weeks’s application on March 9
and again on March 10. G.C. Exh. 4, Tr. 16–18. Weeks was
neither contacted for an interview nor hired by Respondent. Tr.
65–66.
O’Leary’s application listed his experience with “Various
Electrical Employers” in the last 2 years, but also listed Trinity
Generator & Electrical, Inc. as his employer from December of
2014 to April of 2016, along with a specific description of elec-
trician’s experience with that firm. He also listed another em-
ployer by name, although it was not an electrical contractor.
The application provided details of his electrical technician
training at the Kaplan Career Institute in Philadelphia.
O’Leary’s experience clearly more than met the qualifications
in the ad. Tr. 38. Finally, O’Leary specifically listed his affili-
ation with the Union. G.C. Exh. 7. His application was filed
on March 17, 2017 at 11:09 am and viewed by YourHR 9
minutes later that same day. It was viewed again by YourHR
on March 17, 20 and 27. G.C. Exh. 8. But O’Leary never re-
ceived a response from YourHR and was not contacted for an
interview or hired by Respondent. Tr. 37–38, 68–69.

3 On cross-examination of Reppert, counsel for Respondent suggest-
ed that Weeks and O’Leary were journeymen electricians and Schil-
linger was only a helper. But he conceded that the ad made no such
distinction (Tr. 43). Moreover, Reppert testified that Weeks and
O’Leary had done helpers’s work in the past and were qualified as
helpers. Tr. 41–45. Weeks and O’Leary confirmed that testimony
about their past work as helpers. Tr. 65, 68.
HARD HAT SERVICES, LLC 5
Schillinger’s application listed his qualifications and his
work experience for the last 7 or 8 months with JMA Commu-
nications as a technician/helper doing electrical work, as well
as his earlier employment as a dishwasher and food preparation
worker. G.C. Exh. 5. His qualifications met the qualifications
in the ad, but he had less education than was listed on his appli-
cation. Tr. 23, 38. His application was filed on March 1 and
first viewed by YourHR on March 6, 2017. It was viewed
again by YourHR on March 9 and on March 10. G.C. Exh. 6,
Tr. 24–25.
Schillinger’s Interview and Hire
Schillinger alone of the three salts was given an interview for
the ad placed by Respondent. He testified that he was contact-
ed by Atkinson of YourHR asking him to come in to its offices
on March 16, 2017, which he did. Tr. 48–49. Atkinson had
him fill out a formal application then introduced him to a wom-
an who identified herself as “Susan.” That was not her real
name. It was Sharon Modestine, who actually conducted the
interview. Tr. 49, 50, 53. Modestine asked Schillinger several
preliminary questions about his experience. Then she asked
whether his father was in the electrician’s union. Schillinger
answered, untruthfully, that he was not, that he was a carpenter.
In fact, Schillinger’s father is a member of the Union. Then,
Modestine asked whether his father was in the Carpenter’s
union; Schillinger again answered untruthfully, that his father
was not. He answered untruthfully to these questions because
he felt uncomfortable. Tr. 49–50. Modestine continued asking
questions about whether he was in any apprentice program and
about the family name of his girlfriend. Modestine also asked
about whether the employer named on his application, JMA,
was an open or closed shop employer. When Schillinger re-
sponded that he was not familiar with the term, Modestine ex-
plained that those terms meant union or nonunion. Schillinger
then answered that JMA was nonunion. Tr. 50–51. Modestine
also asked whether Schillinger was familiar with the term,
“prevailing wage,” which she described as referring to jobs
where a union sets the prevailing wage for a particular area.
Throughout the interview, Modestine mentioned that her com-
pany was nonunion. The interview ended when Modestine told
Schillinger that he would receive a call if he was hired. Tr. 51–
52.4
Modestine admitted that Schillinger was hired. Tr. 125. At-
kinson called him a couple of days after the interview to offer
him a job with the Respondent at $12 per hour and to fill out
the final paper work with someone in Atkinson’s office. Tr. 52.
He thereafter reported the interview and his job offer to Rep-
pert, who showed him a picture of Modestine, and that is when
Schillinger identified Modestine as the person who called her-
self Susan in the interview. Schillinger thereafter received an

4 On cross-examination, Schillinger admitted that two items on his
application were untrue: that he attended North Montco Tech Center
and his job duties at his last job. Tr. 56–57. But his uncontradicted
testimony is that Modestine never asked questions about those matters,
and, when she asked about his experience as an electrician, he said he
had “minor experience.” Tr. 57–58. There is no evidence on this record
that Respondent contacted the Tech Center or the employers listed on
his application to verify the accuracy of his representations.
email directing him to report for work at one of Respondent’s
jobs. He felt uncomfortable doing so and thus was a no-call,
no-show. Tr. 52–55. His discomfort regarding the experience
with Respondent did not preclude him from later taking other
nonunion jobs. Tr. 54–55.
Sharon Modestine denied that she “interrogate[d]” Schil-
linger about his “union sympathies” during the interview Tr.
103. She repeated that on cross-examination, although she
admitted she may have, in the past, asked whether someone
was union or nonunion. Tr. 108–109. But, in many respects,
her testimony supported that of Schillinger, although she gave
hers a different slant. Modestine did, for example,
acknowledge bringing up Schillinger’s father and asking what
he did and whether he worked for an open shop. She also testi-
fied that she told Schillinger that her company was an open
shop and she explained the difference “between open shop and
union,” as well as how “prevailing wage” works. Tr. 101–103.
She did not deny asking Schillinger if his former employer,
JMA, was a union shop; instead she testified that she did “not
recall” asking that question. Tr. 106–107. Modestine further
testified that she asked about Schillinger’s girl friend’s father.
Tr. 101. She also acknowledged, on cross-examination, that
she identified herself as “Susan” during the interview, as Schil-
linger testified. Tr. 105.
Stacey Atkinson also testified about the interview, insofar as
she could hear what happened from where she was “at the desk
next door,” adjoining space separated by a partial barrier she
called a half wall or a “demi-wall.” She was doing other work
on her computer while the interview took place. Tr. 135–136.
She denied hearing Modestine ask Schillinger any questions
about his union affiliation. Tr. 136. She did recount what she
heard in a general but seemingly rehearsed way. She corrobo-
rated some parts of Modestine’s testimony, but not others. Tr.
136–139.
With respect to the interview, I credit the testimony of Schil-
linger, who impressed me as an honest and forthright witness,
and whose testimony on this issue, as elsewhere in his testimo-
ny, was direct and detailed. As indicated, Schillinger’s testi-
mony was, in some respects, corroborated by Modestine, con-
firming its reliability. I do not credit the testimony of Modes-
tine and Atkinson to the extent that it differs from his. Their
testimony did not mesh in an understandable way and I found
Atkinson’s testimony not reliable. I doubt that, in the circum-
stances, Atkinson could overhear all of the interview conversa-
tion, especially given her physical separation and her admission
that she was doing other work at the time. Nor, in these cir-
cumstances, is it likely she would remember it as precisely as
she asserted when testifying. At one point she testified she
could remember “bits and pieces” of the interview. Tr. 138.
Modestine’s testimony on this matter was not as clear and di-
rect as Schillinger’s. Moreover, I have discussed Modestine’s
unreliability as a witness in my earlier discussion of her testi-
mony concerning her activity with respect to Kiss Electric. I
found her testimony about the interview similarly unreliable.
Credibility With Respect to Respondent’s Hiring Decisions
I also find that the testimony of both Modestine and Atkin-
son was not credible to the extent that it attempted to show lack
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of discrimination in the handling of the applications of Weeks,
O’Leary and Schillinger.
Atkinson testified that she did not view the applications of
Weeks and O’Leary at the time they were received by YourHR.
Tr. 131. She did speculate that they were screened by her assis-
tant at the time who is no longer employed, and “disqualified
off the top.” Tr. 128–131. According to Atkinson, her assistant
or whoever does the initial screening of the applications follows
certain written criteria. But, even though such written criteria
exist, Respondent did not provide them in this case. Tr. 131–
134. Nor was the assistant or whoever initially screened the
applications called to testify in this proceeding. Atkinson did
testify that, once she first saw the Weeks and O’Leary applica-
tions—after the charges were filed in this case, she immediately
saw why they were disqualified.5 She testified that the mention
of “various electrical contractors” in the applications of Weeks
and O’Leary was a problem because she would not know who
to call to check the applicant’s work history. Tr. 131–133,
143–145, 158–159.
I reject Atkinson’s testimony. In the first place, Atkinson’s
after-the-fact speculation is suspect because Respondent never
provided either the witness who initially handled the applica-
tions or the written criteria governing how the applications
were to be handled. Moreover, in context, Atkinson’s testimo-
ny virtually admits that union considerations entered into the
decision to disqualify the two applications of the overt union
salts. Weeks’s application, which was viewed first, clearly tied
the term “various electrical contractors” with the Union since it
was immediately followed by the name of the Union. When
O’Leary’s application came in several weeks later, the term
“various electrical contractors” had the same connotation,
which was confirmed by his specific mention of his union affil-
iation later in the application. Nor, to the extent it was intended
as a benign reason for the disqualification, was Atkinson’s
explanation about her assessment of the term “various electrical
contractors” believable. As shown above, the applications of
Weeks and O’Leary did list the specific names of employers, as
did Schillinger’s application. Indeed, there is nothing in the
record to show that Respondent even called the employers
listed by Schillinger, thus refuting any notion that mention of
the names of employers in the application was crucial either for
an interview or even hiring. In addition, documentary evidence
shows that the applications of Weeks and O’Leary were viewed
by YourHR several different times, casting doubt on Atkinson’s
testimony that those applications were disqualifying on their
face. Finally, as an objective matter, the applications clearly
show that Weeks and O’Leary met the qualifications set forth
in the ad to which they were responding. Indeed, they were
more qualified, certainly in terms of experience, than was
Schillinger, who was hired. All of this, together with Atkin-
son’s unreliable testimony about the interview, leads me to
reject her testimony with respect to her treatment of the salt
applications as not credible.
I have already discredited Modestine’s testimony as it relates
to the Kiss Electric speech and the interview with Schillinger,

5 The charge in this case was filed on April 13, 2017. G.C. Exh.
1(a).
also citing her hesitancy and evasiveness at another point in her
testimony. In addition, Modestine’s testimony revealed a deep-
seated animus against the Union, which I find infected her en-
tire testimony in this matter. This not only rendered her testi-
mony generally unreliable, but also bore on her motive in mak-
ing hiring decisions. When asked initially on cross-
examination what she thought of the Union, Modestine an-
swered “I think they’re great.” Tr. 108. But, after being shown
a website article from Philly.com/business, dated November 11,
2016 and titled, “Electricians union’s tactic for organizing sub-
urbs,” documenting her opinion of the Union, she soon changed
her view. In lengthy and rambling testimony that can only be
described as a tirade against the Union, she acknowledged the
accuracy of several unflattering statements she made in the
article about the Union and its method of sending salts to or-
ganize companies like hers. For example, in the article, she
called the salting program a “scam,” whereby “[y]ou might
have one opening and they flush you with six applicants. If you
hire one, they’ll file charges on the other five.” She stood by
that statement on the witness stand, displaying a deep
knowledge about how salting works, obviously from previous
experience. Tr. 109–112. She also called the Union a “cartel”
that eliminated competition. Tr. 113–115. See also G.C. Exh.
11.6
B. Discussion and Analysis
The Section 8(a)(1) Violation
In determining whether an employer’s questioning of em-
ployees about union activity violates Section 8(a)(1) of the Act,
the Board considers whether, in all the circumstances, the ques-
tioning would reasonably tend to restrain, coerce or interfere
with Section 7 rights, which include the right of employees to
engage in or refrain from engaging in union activities. Scheid
Electric, 355 NLRB 160 (2010), and cases there cited. The
leading court case in this area (Bourne v. NLRB, 332 F.2d 47,
48 (2nd Cir. 1964)) lists the following relevant factors to be
considered in determining whether the questioning is coercive:
(1) The background, i.e., is there a history of employer hostil-
ity and discrimination?
(2) The nature of the information sought, e.g. did the interro-
gation appear to be seeking information on which to base tak-
ing action against individual employees?
(3) The identity of the questioner, i.e. how high was he in the
company hierarchy?
(4) Place and method of interrogation, e.g. was employee
called from work to the boss’s office? Was there an atmos-
phere of “unnatural formality?”
(5) Truthfulness of the reply.
Also among the factors considered is whether the employee is
an open union supporter. Scheid Electric, cited above, 355
NLRB at 160. Questioning about union matters in the context
of a job interview, particularly in the face of an employer’s
union animus, is considered coercive. See Zarcon, Inc., 340

6 In the article, Modestine was identified as Sharon Ponticello, the
owner of Hard Hat. She acknowledged that Ponticello was her married
name and she is presently divorced. Tr. 103.
HARD HAT SERVICES, LLC 7
NLRB 1222 (2003), enfd. 118 F. Appx. 113 (8th Cir. 2005);
and Facchina Construction Co., 343 NLRB 886 (2004), enfd.
180 Fed. Appx. 178 (D.C. Cir. 2006). See also Sproule Con-
struction Co., 350 NLRB 774, fn. 2 (2007) (specifically men-
tioning as a crucial factor that the applicant was seeking to
conceal his union support or affiliation).
Applying the above principles to the facts set forth in my
credited findings, I find that the circumstances of the Schil-
linger interview clearly show coercive interrogation. The set-
ting of the questioning was an employment interview in the
offices of the hiring entity and the questioning was done by
Respondent’s owner. The applicant was not a known or open
union supporter; indeed, he wanted to conceal his union views.
Moreover, the questioning went beyond the legitimate bounds
of a normal interview, the applicant’s experience and qualifica-
tions, and probed into union-related matters, as it did when
Modestine brought up whether Schillinger’s father was in the
electrician’s union or any union, whether his former employer
was an open shop or a union shop, and whether he knew about
the term “prevailing wage,” which she explained as essentially
union wages. Such questioning clearly implied that union con-
siderations would indeed enter into the hiring decision if an-
swered in a certain way. Schillinger rightly felt uncomfortable
with the union-related questions and answered some untruthful-
ly lest he ruin his chances of being hired—a significant factor
showing the coercive nature of the questioning. Finally, the
questioning must be assessed in the context of Modestine’s past
dealings with the Union, her knowledge of its salting program,
and her manifest hostility against the Union. Viewed in that
context, I find that Modestine tailored her questions in an at-
tempt to ferret out covert union salts. In these circumstances,
the questioning was coercive and violative of Section 8(a)(1) of
the Act.7
The Section 8(a)(3) and (1) Violations
Employee applicants have Section 7 rights under the Act,
even though they are sponsored by unions and even though
they may be salts. They cannot therefore be discriminated
against in hiring because of their union affiliation and an em-
ployer who engages in such discrimination violates Section
8(a)(3) and (1) of the Act. NLRB v. Town & Country Electric,
516 U.S. 85 (1995). See also Tradesmen International, Inc.,
351 NLRB 579 (2007).
In FES, 331 NLRB 9, 12 (2000), supplemental decision 333

7 This case is distinguishable from Oil Capital Sheet Metal, 349
NLRB 1348, 1355 fn. 31 (2007), in which a Board majority found no
unlawful interrogation where the respondent asked an applicant “in
passing” if the applicant’s former employer was union and the applicant
answered truthfully. Here, on the other hand, Modestine’s questioning
about union matters was systematic, and Schillinger answered some
questions untruthfully, fearing a truthful answer would jeopardize his
chances of being hired. Nor was there, in Oil Capital, the strong evi-
dence of union animus and the history of dealing with the Union and its
salting program that is present here. Indeed, this case is much stronger
in favor of a violation than Facchina and Zarcon, cited above, which
the Board majority in Oil Capital recognized as properly decided, but
nevertheless distinguished. This case is also much stronger than
Sproule Construction, cited above, which was decided after Oil Capi-
tal.
NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002), the Board
set forth the following analytical framework for refusal-to-hire
allegations:
To establish a discriminatory refusal to hire, the General
Counsel must, under the allocation of burdens set forth in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), first show the
following at the hearing on the merits: (1) that the respondent
was hiring or had concrete plans to hire, at the time of the al-
leged unlawful conduct; (2) that the applicants had experience
or training relevant to the announced or generally known re-
quirements of the positions for hire . . . ; and (3) that antiunion
animus contributed to the decision not to hire the applicants.
If the General Counsel meets his burden and the respondent
fails to show that it would have made the same hiring deci-
sions even in the absence of union activity or affiliation, then
a violation of Section 8(a)(3) has been established. The ap-
propriate remedy for such a violation is a cease-and-desist or-
der, and an order to offer the discriminatees immediate in-
statement to the positions to which they applied or, if those
positions no longer exist, to substantially equivalent positions,
and to make them whole for losses sustained by reason of the
discrimination against them. (footnotes omitted).8
Under Wright Line, the General Counsel must satisfy an ini-
tial burden of showing by a preponderance of the evidence that
the employee’s protected or union activity was a motivating
factor in a respondent’s adverse action. If the General Counsel
meets that initial burden, the burden shifts to the respondent to
show that it would have taken the same action even absent the
employee’s protected activity. The respondent does not meet
its burden merely by showing that it had a legitimate reason for
its action; it must persuasively demonstrate that it would have
taken the same action in the absence of the protected conduct.
And if the respondent’s proffered reasons are pretextual—either
false or not actually relied on—the respondent fails by defini-
tion to meet its burden of showing it would have taken the ac-
tion for those reasons absent the protected activity. See Pro-
Spec Painting, Inc., 339 NLRB 946, 949 (2003).
A showing of pretext also supports the initial showing of an-
imus and discrimination. See Wright Line, supra, 251 NLRB at
1088 n.12, citing Shattuck Denn Mining Corp. v. NLRB, 362
F.2d 466, 470 (9th Cir. 1966) (where a respondent’s reasons are
false, it can be inferred “that the [real] motive is one that the
[respondent] desires to conceal—an unlawful motive—at least
where . . . the surrounding facts tend to reinforce that infer-
ence.”). Moreover, a trier of fact may not only reject a wit-
ness’s testimony about his or her reasons for an adverse action,
but also find that the truth is the opposite of that testimony.
Pratt (Corrugated Logistics), LLC, 360 NLRB 304, 314 (2014),
citing NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962).
Applying the above principles, I find that Respondent re-
fused to hire employee-applicants Weeks and O’Leary because
of their affiliation with the Union, as clearly stated on their

8 The FES decision also sets forth a similar analytical framework for
refusal-to-consider allegations. 331 NLRB at 15. The complaint in this
case, however, only involves refusal-to-hire allegations.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
applications. Respondent does not assert a valid business rea-
son for not hiring Weeks and O’Leary. Its only defense, based
on Atkinson’s testimony, is that their applications were “dis-
qualified off the top” and were never considered because the
applications listed, among former employers, a category of
“various electrical contractors.” However, as I have indicated
above, I reject that defense, based on my credibility determina-
tions.
There is no doubt that Respondent had openings for electri-
cians and was seeking to hire at the time of the application of
Weeks and O’Leary. There is also no doubt that they were
qualified for the positions advertised by Respondent. Those
aspects of the FES test were thus satisfied here.
The General Counsel has also established that the failure to
hire Weeks and O’Leary was motivated by their union affilia-
tion. As shown above in my factual findings, Respondent’s
owner, Sharon Modestine, coercively interrogated an employee
applicant about union matters that clearly indicated her intent to
screen out applicants with union connections. The discrimina-
tion was plain. Respondent interviewed and hired an employee
applicant, Ryan Schillinger, whose application did not show
affiliation with the Union. At about the same time, it did not
interview or hire two other well-qualified applicants, Weeks
and O’Leary, who did mention their affiliation with the Union
on their applications. Indeed, Weeks and O’Leary had better
qualifications than Schillinger. Moreover, as indicated above, I
discredited Atkinson’s testimony about how she and her office
handled the applications of Weeks and O’Leary. With that
credibility determination, I also find that the Respondent’s al-
leged reliance on the “various electrical contractors” language
in the applications of Weeks and O’Leary to disqualify them
was, in the context of that language indicating union contrac-
tors, an effective admission of discrimination. In any event,
even if not considered an effective admission of discrimination,
Atkinson’s attempted benign explanation, as shown above in
my credibility determination, was not credible and therefore a
pretext. Thus, I am comfortable in believing the opposite of
Atkinson’s story, namely that she, as Respondent’s agent, did
indeed make distinctions based on whether applications men-
tioned union affiliation or not. Modestine’s union animus is
well-documented, not only by her antiunion speech at Kiss
Electric, but also by her testimony on the witness stand, which
was related to the Union’s salting program and her past experi-
ence with it. All of this evidence strongly supports the infer-
ence, which I make, that Respondent rejected Weeks and
O’Leary and refused to hire them because of their affiliation
with the Union. In these circumstances, I find that, by failing
and refusing to hire Weeks and O’Leary, Respondent violated
Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. By coercively interrogating an employee about union ac-
tivities, sympathies or affiliation, Respondent violated Section
8(a)(1) of the Act.
2. By discriminatorily refusing to hire employee-applicants
Robert Weeks and Michael O’Leary because of their affilia-
tion with the Union, Respondent violated Section 8(a)(3) and
(1) of the Act.
3. The above violations constitute unfair labor practices
within the meaning of the Act.
REMEDY
Having found that Respondent discriminatorily refused
to hire certain individuals as indicated above, I shall order
the Respondent to offer them instatement and make them
whole for any loss of earnings and other benefits they
may have suffered as a result of the unlawful discrimina-
tion against them. Any backpay shall be computed in accord-
ance with F.W. Woolworth Co., 90 NLRB 289 (1950), plus
interest, as prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010). The duration of the
backpay period shall be determined in accordance with Oil
Capital Sheet Metal, 349 NLRB 1348 (2007). Search for work
and interim employment expenses shall be paid in accordance
with King Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in
pertinent part 859 F.3d 23 (D.C. Cir. 2017); and tax compensa-
tion and Social Security reporting shall be made in accordance
with AdvoServ of New Jersey, Inc., 363 NLRB No. 143, slip op.
at 1 (2016).
Respondent shall also be ordered to post the usual notice.
Because the violations were committed through the actions of,
and at the separate business location of, YourHR, Respondent’s
agent, the notice shall also be posted at the business location of
YourHR. In addition, the violations in this case involved job
applicants and the refusal-to-hire violations were effectuated
through the use of web-site advertisements for job openings.
Thus, the notice in this case must also be addressed to job ap-
plicants and its posting must account for web-site advertising.
Accordingly, I shall also order that, to the extent that Respond-
ent advertises for future job openings, either directly or through
its agent, YourHR, and whether it is through a website posting
or by other means, any such advertisement shall include a copy
of the notice. Each time such advertisements are posted or
publicized, Respondent and/or its agent, YourHR, shall post or
attach the notices alongside those advertisements for a total of
60 days of such postings or publications.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended9
ORDER
Respondent, Hard Hat Services, LLC, its officers, agents,
successors and assigns, shall
1. Cease and desist from
(a) Interrogating employees or employee-applicants about
union activities, sympathies or affiliation.
(b) Refusing to hire or consider for hire employee-applicants
because of their union affiliation.
(c) 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.

9 If no exceptions are filed, as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be waived for all purpos-
es.
HARD HAT SERVICES, LLC 9
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Offer instatement to Robert Weeks and Michael O’Leary
to the positions for which they applied, or, if these positions
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights and privileges
to which they would have been entitled had they not been
discriminated against.
(b) Make Robert Weeks and Michael O’Leary whole, with
interest, for any loss of earnings and other benefits suffered as
a result of the discrimination against them, in the manner set
forth in the remedy section of this order.
(c) Compensate Robert Weeks and Michael O’Leary for the
adverse consequences, if any, of receiving lump backpay
awards, and file with the Regional Director of Region 4, within
21 days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the backpay
awards to the appropriate calendar years for each employee.
(d) Compensate Robert Weeks and Michael O’Leary for their
search-for-work and interim employment expenses regardless of
whether those expenses exceed interim earnings.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all
other records, including an electronic copy of such records
if stored in electronic form, necessary to analyze the amount
of back pay due under the terms of this Order.
(f) Within 14 days after service by the Region, post, at its
Norristown, Pennsylvania facility, copies of the attached notice
marked “Appendix.”10 Copies of the notice, on forms provid-
ed by the Regional Director for Region 4, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
employees are customarily posted. Copies of such notice
shall also be posted and maintained, as mentioned above, at
the location of Respondent’s agent, YourHR, in Shillington,
Pennsylvania. In addition to physical posting of paper notic-
es, the notices shall be distributed electronically, such as
email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent, or YourHR, customarily
communicates with employees by such means. 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 Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former em-

10 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
National Labor Relations Board” shall read “Posted pursuant to a
Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board.”
ployees employed by the Respondent at any time since April
13, 2017.
(g) If and when the Respondent advertises for future job
openings, either directly or through its agent, YourHR, and
whether it is through a website posting or by other means, any
such advertisement shall include a copy of the notice set forth
above. Each time such advertisements are posted or published,
Respondent and/or its agent, YourHR, shall post or attach a
copy of the notice alongside those advertisements for a total of
60 days of such postings or publications.
(h) 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.
Dated at Washington, D.C., December 27, 2017.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT interrogate or question employees or employ-
ee-applicants about union activities, union affiliation or union
sympathies.
WE WILL NOT refuse to hire or consider for hire employee-
applicants because of their union affiliation.
WE WILL NOT, in any like or related manner, interfere with,
restrain, or coerce employees in the exercise of the rights
listed above.
WE WILL offer instatement to Robert Weeks and Michael
O’Leary to the positions for which they applied, or if these
positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other rights
and privileges to which they would have been entitled had
they not been discriminated against.
WE WILL make Robert Weeks and Michael O’Leary whole,
with interest, for any loss of earnings and other benefits suf-
fered as a result of our discrimination against them.
HARD HAT SERVICES, LLC
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/04-CA-196783 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.