Kaminski Electric & Service Co.

National Labor Relations Board - Board Decisions

Sep 29, 2000

332 N.L.R.B. 452 (N.L.R.B. 2000)

DECISION OF THE NATIONAL LABOR RELATIONS BOARD 452
Kaminski Electric & Service Co., Inc. and Interna-
tional Brotherhood of Electrical Workers Local
1701 a/w International Brotherhood of Electri-
cal Workers, AFL–CIO. Cases 25–CA–23807
(1–2) and 25–CA–24059(1–3)
September 29, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On October 31, 1997, Administrative Law Judge
Robert T. Wallace issued the attached decision. The
General Counsel filed limited exceptions and a support-
ing 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 brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions,
except as set forth below, and to adopt the recommended
Order as modified and set forth in full below.
The issue presented on exceptions in this case is
whether the judge correctly dismissed an allegation that
the Respondent violated Section 8(a)(3) and (1) of the
Act by refusing to hire union-affiliated applicants Gerald
Frey and Gerald Snodgrass. For the reasons set forth
below, the Board has decided to remand this issue to the
judge for further consideration in light of the Board’s
recent decision in FES, 331 NLRB 9 (2000), which set
forth the framework for analysis of refusal-to-consider
and refusal-to-hire allegations. The remand may include,
if necessary, reopening the record to obtain evidence
required to decide the case under the FES framework.
The Respondent is a nonunionized electrical contractor
in Owensboro, Kentucky. From January 1 through 22,
1995,2 it advertised in a local newspaper for electricians.3
In early February, the Union forwarded to the Respon-
dent employment applications of five union members.
By letter to the Union dated February 13, the Respon-
dent’s president, Chester Kaminski (Kaminski), declined
to interview any of the five applicants.4 Kaminski stated,
however, that he would retain their applications on file in
case the Respondent’s circumstances changed. Kaminski
also stated that the Respondent preferred to conduct mat-
ters related to hiring directly with prospective employees.
Accordingly, he requested in his letter that in the future
individuals desiring employment apply in person at the
Respondent’s office.

1 No exceptions were filed to the judge’s findings that the Respon-
dent violated Sec. 8(a)(1) of the Act by promulgating and maintaining a
rule prohibiting employees from discussing their wages with other
employees, by admonishing and threatening employees with discharge
for discussing their wages with other employees, and by admonishing
an employee for discussing the Union with other employees while
working. Nor were any exceptions filed to the judge’s finding that the
Respondent violated Sec. 8(a)(3) and (1) by failing and refusing to
consider applicants for hire because of their affiliation with the Union,
by changing its hiring procedures and practices to avoid receiving
applications from union-affiliated applicants, by disciplining employees
for engaging in union activity, and by discharging employees because
of their union activity.
2 All dates hereinafter are in 1995 unless otherwise specified.
3 The Respondent hired Keith Fireline in the third week of January.
On February 17, Gerald Frey and Gerald Snodgrass ar-
rived at the Respondent’s office wearing hats and jackets
bearing the Union’s logo. They identified themselves to
Kaminski as journeymen electricians licensed in the
town of Owensboro and requested applications for em-
ployment. Kaminski told them that the Respondent was
not currently accepting applications. Later the same day,
Kaminski arranged to have the Kentucky Cabinet for
Workforce Development (the Kentucky Cabinet) refer
applicants to the Respondent for hire as helpers or jour-
neymen electricians. The Kentucky Cabinet subsequently
posted a job announcement for helpers and journeymen
electricians to work for the Respondent.
On February 22, Kaminski began interviewing appli-
cants referred by the Kentucky Cabinet. Richard Sparks
was among the applicants interviewed on February 22.
During the interview, Kaminski told Sparks that the Re-
spondent was hiring electricians and helpers for a project
which was expected to greatly increase its employee
complement. Specifically, Kaminski was referring to the
Respondent’s anticipated contract to perform a large
amount of electrical work at the Premium Allied Tool
jobsite (the PAT project).
Frey applied at the Kentucky Cabinet on March 21 for
employment as an electrician or helper. His application
clearly revealed both his qualifications for the positions
and his union affiliation. His application stated that he
was a journeyman electrician with 4 years of training
through the National Joint Apprenticeship Program. His
application also listed relevant work experience. For
references, Frey listed a union business agent and an or-
ganizer. The Kentucky Cabinet forwarded Frey’s appli-
cation to the Respondent, but the Respondent never con-
tacted Frey.
Sometime in March, the Respondent received notice
that its bid on the PAT project had been accepted. Be-
tween March 27 and late July, the Respondent made of-
fers of hire to approximately 23 new employees.5 Three
4 The Respondent’s failure to hire these individuals was not alleged
as a violation.
5 The Respondent hired Dalton Goodrich and Marvin Bickwermert
Sr. around the fourth week of March; James Bratcher, Richard Judge,
Clarence Wilkins, and Richard Bennet around the second week of
332 NLRB No. 42
KAMINSKI ELECTRIC & SERVICE CO. 453
were licensed electricians, the remainder helpers. James
Bratcher and David Cheek were among the three electri-
cians hired for the PAT project. Unlike Frey and
Snodgrass, neither Bratcher nor Cheek possessed an
Owensboro electrical license. Kaminski promised each
of them a raise if they would obtain a local license.6
The judge found that the Respondent violated Section
8(a)(3) of the Act by refusing to consider Frey and
Snodgrass for hire because of their union affiliation. He
further found that the Respondent committed additional
violations of 8(a)(3) by changing its hiring procedures to
have the Kentucky Cabinet, and later a local temporary
employment agency, refer prospective employees in or-
der to avoid more union-affiliated applicants. However,
in view of the fact that the Respondent did not hire any-
one between mid-January and mid-March, the judge
found that the Respondent did not “necessarily” violate
Section 8(a)(3) of the Act by refusing to hire Frey and
Snodgrass. The judge deferred to compliance the issue
of whether the Respondent would have hired Frey or
Snodgrass for subsequent openings, absent the discrimi-
natory refusal to consider.
We do not adopt the judge’s dismissal of the refusal-
to-hire allegation. As set forth below, an analysis of this
allegation under the standards set forth in FES shows that
the General Counsel has met his burden of establishing
the necessary elements of a refusal-to-hire violation, but
that a remand is necessary for the judge to make findings
regarding whether the Respondent would have not hired
Frey and Snodgrass in the absence of their union activity
or affiliation for job openings after mid-March.
In FES, the Board held that the General Counsel must
establish the following elements to meet its burden of
proof in a discriminatory refusal-to-hire case:

(1) that the respondent was hiring, or had concrete
plans to hire, at the time of the alleged unlawful con-
duct; (2) that the applicants had experience or training
relevant to the announced or generally known require-
ments of the positions for hire, or in the alternative, that
the employer has not adhered uniformly to such re-
quirements, or that the requirements were themselves
pretextual or were applied as a pretext for discrimina-
tion; and (3) that antiunion animus contributed to the
decision not to hire the applicants.7

April; Debbie Bryant, David Cheek, James Anderson, and Jeff Dono-
van around the fourth week of April; Marty Oberst, around the first
week of May; Gary Brown and Jeff Scott around the first week of
June; Anthony Brown, Richard Loyd, and John Gainor around the
second week of June; Tom Pickerell, David Carrico, Chad Fazio, and
Tim Therber around the third or fourth week of June; Claude Turner
around the first week of July; and Charlie Hawkins and Marvin Bick-
wermert Jr. around the third week of July.
6 The third electrician hired for the project was Marty Oberst. The
record does not reveal his qualifications.

We find that the above elements have been established
in this case. Thus, the record shows that on the same day
the Respondent rejected Frey and Snodgrass’ attempt to
apply for jobs as helpers and journeymen electricians, it
arranged to have the Kentucky Cabinet refer applicants
to it for those positions. Five days later, the Respondent
began interviewing applicants in anticipation of its future
hiring needs for the PAT project, and on March 21, Frey
submitted an application through the Kentucky Cabinet,
which was forwarded to the Respondent.8 Between
March 27 and late July, the Respondent hired at least 23
other applicants as helpers and electricians. These facts
demonstrate at least that the Respondent had concrete
plans to hire helpers and electricians when it refused
Frey and Snodgrass’ attempt to apply for those posi-
tions.9
The record also establishes that Frey and Snodgrass
had experience and training relevant to the positions for
hire. Both were journeymen electricians, licensed in the
town of Owensboro. Frey had worked as a licensed
journeyman since 1982, Snodgrass since May 1994.
Further, the record shows that the Respondent’s anti-
union animus contributed to its decision not to hire the
applicants. The Respondent’s animus is demonstrated by
the findings, not excepted to, that the Respondent unlaw-
fully refused to consider Frey and Snodgrass because of
their affiliation with the Union and that the Respondent
unlawfully changed its hiring practices in order to avoid
more union-affiliated applicants. Based on the forego-
ing, we find that the General Counsel has met his burden
of establishing the necessary elements of an unlawful
refusal to hire under the FES framework.

Once the General Counsel has established his case, the
burden shifts to the Respondent to demonstrate that it
would not have hired the applicants even in the absence
of their union activity or affiliation. In FES, the Board
held that the issue of whether the alleged discriminatees
would have been hired but for the discrimination against
7 FES, supra, slip op. at 4.
8 Although Frey was a licensed journeyman electrician, he stated on
his application that he was applying for a position as “an electrician or
helper.” According to Kaminski, he often hired applicants as helpers
who had a lot of electrical experience.
9 In his February 13 letter to the Union, Kaminski affirmatively
stated that he would retain on file applications submitted by union
members. Thus, we additionally note that had the Respondent followed
its usual procedures, Frey and Snodgrass’ applications would have been
either under active consideration by the Respondent or at least residing
in the Respondent’s files when the Respondent hired other applicants as
helpers and electricians.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 454
them must be litigated at the hearing on the merits.10
Although there was record evidence that the Respondent
hired helpers and electricians between March 27 and late
July, the judge made no findings with regard to whether
the Respondent met its burden of establishing that Frey
and Snodgrass would not have been hired even in the
absence of their union activity or affiliation. Indeed,
there was no necessity for the judge to make such find-
ings because, in accord with pre-FES cases, he left this
issue for compliance proceedings with respect to the re-
fusal-to-consider violation that he found. However, as
the Board stated in FES, “matters which can be litigated
at the unfair labor practice stage, must be litigated at that
stage and cannot be deferred to compliance.” FES, supra,
slip op. at 10.
Accordingly, we shall sever the refusal-to-hire allega-
tion from the rest of this proceeding and remand it to the
judge for further consideration of whether, under FES,
the Respondent has demonstrated that it would not have
hired Frey and Snodgrass for job openings after mid-
March, even in the absence of their union activity or af-
filiation. This remand shall include, if necessary,
reopening the record to obtain evidence required to
decide the case under the FES framework. We shall also
sever and remand the refusal-to-consider violation, even
though no exceptions were filed to that finding, because
the remedy we would order for that violation would be
subsumed within the remedy for a refusal-to-hire viola-
tion.11
None of the judge’s remaining findings implicate our
decision in FES, nor have the parties excepted to these
findings. Accordingly, as there is no reason to delay the
resolution of those issues pending the outcome of the
limited remand we are ordering, we shall issue a final
Order with respect to the remaining violations found by
the judge.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Kaminski Electric & Service Co., Inc.,
Owensboro, Kentucky, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Interfering with, restraining, or coercing its em-
ployees in the exercise of the rights guaranteed them by
Section 7 of the Act by promulgating and maintaining
rules prohibiting employees from discussing wages with
other employees; admonishing employees and threaten-
ing them with discharge for discussing wages with other
employees; and admonishing employees for discussing
the Union while working.

10 FES, supra, slip op. at 4.
11 We are not remanding the refusal-to-consider violation itself for
further consideration by the judge.
(b) Disciplining and discharging employees because
they engaged in union activity.
(c) Discriminatorily changing its hiring procedures and
practices to avoid receiving applications from union-
affiliated applicants.
(d) 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 from the date of this Order, offer
James Bratcher and David Cheek full reinstatement to
their former positions or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
(b) Make James Bratcher and David Cheek whole for
any loss of earnings and other benefits they may have
suffered by reason of the discrimination against them.12
(c) Within 14 days from the date of this Order, remove
from its files any and all references to the unlawful disci-
pline and discharges of James Bratcher and David
Cheek, and within 3 days thereafter notify them in writ-
ing that this has been done and that the discipline and
discharges will not be used against them in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(e) Within 14 days from the date of this Order, resume
accepting applications and interviewing job applicants at
its Owensboro, Kentucky facility.
(f) Within 14 days of service by the Region, post at its
Owensboro, Kentucky facilities and all current jobsites
and mail to all former employees employed at prior job
sites and to named discriminatees, copies of the attached
notice marked “Appendix.”13 Copies of the notice, on
forms provided by the Regional Director for Region 25,
after being signed by the Respondent’s authorized repre-
12 Backpay shall be computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as set forth in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
13 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.”

KAMINSKI ELECTRIC & SERVICE CO. 455
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to the named discriminatees, and all current employees
and former employees employed by the Respondent at
any time since February 17, 1995.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the issues of
whether the Respondent violated Section 8(a)(3) and (1)
of the Act by refusing to consider and/or hire union-
affiliated applicants are severed from the rest of this pro-
ceeding and remanded to the administrative law judge for
appropriate action as set forth above. The administrative
law judge shall prepare a supplemental decision setting
forth credibility resolutions, findings of fact, conclusions
of law, and a recommended Order, as appropriate on
remand. Copies of the supplemental decision shall be
served on all parties, after which the provisions of Sec-
tion 102.46 of the Board’s Rules and Regulations shall
be applicable.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights

To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed them
by Section 7 of the Act by promulgating and maintaining
rules prohibiting employees from discussing wages with
other employees; admonishing employees and threaten-
ing them with discharge for discussing wages with other
employees; and admonishing employees for discussing
the Union while working.
WE WILL NOT discipline or discharge employees be-
cause they engaged in union activity.
WE WILL NOT discriminatorily change our hiring
procedures and practices to avoid receiving applications
from union-affiliated applicants
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer James Bratcher and David Cheek
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make James Bratcher and David Cheek
whole for any loss of earnings and other benefits they
may have suffered by reason of the discrimination
against them, with interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any and all refer-
ences to our unlawful discipline and discharges of James
Bratcher and David Cheek, and WE WILL, within 3 days
thereafter, notify them in writing that this has been done
and that the discipline and discharges will not be used
against them in any way.
WE WILL, within 14 days from the date of the
Board’s Order, resume accepting applications and inter-
viewing job applicants at our Owensboro, Kentucky fa-
cility.

KAMINSKI ELECTRIC & SERVICE CO., INC.
Miriam C. Delgado, Esq. and Raifael Williams, Esq., for the
General Counsel.
William G. Craig, Esq., for the Respondent.
Gary Osborne, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT T. WALLACE, Administrative Law Judge. I
heard this case on January 8, 9, and 10, 1997, in Owensboro,
Kentucky. The orders consolidating cases and consolidated
complaints issued on August 17, 1995, and July 31, 1996, as
amended at hearing. They are based upon unfair labor practice
charges filed by the International Brotherhood of Electrical
Workers Local 1701, a/w International Brotherhood of Electri-
cal Workers, AFL–CIO (IBEW Local 1701, the Union, or the
Charging Party) on March 20, July 3, and October 25, 1995.
The complaints allege that Kaminski Electric & Service Co.,
Inc. (Respondent or Kesco) violated Section 8(a)(3) and (1) of
the Act by discriminatorily failing and refusing to hire or con-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 456
sider for hire certain applicants for employment, by discrimina-
torily changing its hiring practices, by promulgating rules pro-
hibiting employees from discussing their wage rates with other
employees and disciplining and threatening with discharge
employees who violated that rule or otherwise engaged in union
and protected concerted activities, and by discriminatorily dis-
charging employees and/or failing and refusing to reinstate
unfair labor practice strikers upon their unconditional offers to
return to work. Respondents timely filed answers deny the
commission of any unfair labor practices.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the Respondent and the General Counsel, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, with its office and place of
business in Owensboro, Kentucky, is engaged in the service,
repair, and installation of electrical and heating, ventilating, air-
conditioning, and refrigeration equipment. In the 12-month
period ending February 28, 1995, Respondent, in the course of
its business operations, performed services valued in excess of
$50,000 both for enterprises located outside the Common-
wealth of Kentucky and for enterprises located within that
Commonwealth which were directly engaged in interstate
commerce. Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. UNFAIR LABOR PRACTICES
A. Background
Kesco is a never-unionized electrical contractor. Its president
is Chester Kaminski (Kaminski); other officers include his wife
and sons, Joseph and Christopher.
Kesco’s normal employee complement is about five electri-
cians and helpers. In late March or early April 19952 it secured
a contract to perform work at the Premium Allied Tool jobsite
(the PAT site). That contract, the largest Kesco had ever under-
taken, required that it expand its work force to as many as 24
electricians and helpers. The PAT project lasted from April
until October. Joseph Kaminski (Joseph) was the Kesco’s on-
site supervisor.
B. Union Contacts and Applications
Kesco began advertising for electricians in a local newspaper
at the start of 1995; the ads ran from January 1 through 22.
According to Kaminski, Kesco was seeking only one electri-
cian.3 In about the same period of time, Gary Osborne, the or-
ganizer for IBEW Local 1701, offered Kesco the Union’s ser-
vices in providing electricians. Kaminski declined his offer,
telling Osborne that he preferred to do the hiring himself. Ke-
sco hired Keith Fireline in the third week of January; Dalton
Goodrich and Marvin Bickerwert Sr. were the next employees
hired. They came on the third week of March.

1 The General Counsel’s unopposed motion to correct the transcript
is granted.
2 All dates hereinafter are 1995 unless otherwise specified.
3 Counsel for the General Counsel introduced the advertisements,
GC Exh. 41, stating that they were for “a position or positions.” The
ads which are highlighted in that exhibit, list box numbers, not named
employers, and seek “electricians-3 yrs experience in construction or
licensed.” Other ads in each of the papers seek a single “electrician for
local company,” listing a different box number. That the call for “elec-
tricians,” rather than the call for a single electrician, was Kesco’s is
implied by the highlighting but not established on this record.
On February 3, Kaminski issued a memorandum regarding
“efforts or rumors of efforts” of union organizational activity.
In it, he promised compliance with applicable laws but warned
that union activity would not shield employees who violate
company rules, policies, and procedures. He also advised that
they were not required to “join, talk with or otherwise partici-
pate in union organizing activities.” He invited

[a]ny employee who considers himself or herself harrassed
[sic] or otherwise subjected to inappropriate behavior [to] re-
port same to ME and I, with the assistance of professional ad-
visers, will take immediate and proper action. [Emphasis in
original.]

On February 8, Osborne sent employment applications of
three journeymen electricians, Michael Likens, Alan Rafferty,
and Timothy Blandford, to Kesco. On February 10, Osborne
submitted two more applications, those of David Carrico and
Glenn McCann. In his cover letters he stated:

Enclosed, please find . . . . Employment Applications from
members of the I.B.E.W. Each of these applicants have [sic]
. . . . experience in the trade,4 are residents of this area, have
passed a Journeyman examination given by a duly constituted
Construction Local Union or have certified as Journeymen by
a Joint Apprenticeship & Training Committee and are willing
to work under the same terms and conditions which you have
extended to other employees who are qualified in the trade.

He asked that Kaminski notify him if the applications were
deficient in any way “so that remedial action may be taken” and
suggested that the employer contact them through the Union
office.5
Each of the applicants had noted that his current or most re-
cent hourly wage was $18.30 per hour, presumably the union
scale. Only one, McCann, was currently unemployed. Each
application revealed ties to the Union.
Kaminski acknowledged receipt of the applications on Feb-
ruary 13. In his response, he disclaimed any discriminatory
intent but stated:

I am not able to give much credibility to your statement
that the applicants “are willing to work under the same terms
and conditions” upon which we extend employment to others.

. . . this Company does not have any interest in interviewing
prospective employees who, although qualified, have current
employment elsewhere in the community at a substantially
higher wage than we pay like-qualified employees.

4 The first three applicants each had 15 or more years experience;
each of the last two had at least 4 years’ experience.
5 Each letter was copied [cc] to the NLRB Regional Office.

KAMINSKI ELECTRIC & SERVICE CO. 457

He rejected them all but promised to retain the applications
on file and to contact them if Kesco’s circumstances changed in
the future.

Finally, Kaminski stated:

Hereafter, if you truly believe an individual might desire em-
ployment with our Company, please have the individual come
to our office and make application, personally, completing the
usual procedures we use in the employment process. You will
recall that you asked me once whether we desired to use your
organization to obtain employment applications or to fill va-
cancies in our work force. I said at that time that our small or-
ganization conducts these activities directly with the prospec-
tive employees and that will continue to be our policy.

On February 17, Gerald Frey and Gerald Snodgrass, both
members of Local 1701, appeared at Kesco’s office, after Os-
borne suggested that they make application there. They walked
in, wearing hats and jackets openly bearing the Union’s logo.
They asked Kaminski if they could complete applications and
stated that they were qualified electricians, licensed locally and
willing to work for Kesco. Kaminski told them that he was not
accepting applications at that time.6
That same day, after Frey and Snodgrass reported their lack
of success at the Kesco office, Osborne replied to Kaminski’s
earlier letter. He assured Kaminski that his applicants were
“ready, willing and able to work under the same terms and
conditions that you presently offer your employees.” He also
assured Kaminski that he expected each applicant who was
currently employed to be unemployed by week’s end.
With respect to Kaminski’s statement that applicants Os-
borne believed to be truly desirous of employment should come
down and make personal applications, Osborne noted that he
sent two sincere applicants, Frey and Snodgrass, in to do just
that. He asked that, if Kesco had changed its hiring procedures,
Kaminski notify him of the procedures now required. If, how-
ever, Frey and Snodgrass were denied applications because of
their open union affiliation, Osborne stated, Kesco was in viola-
tion of the Act.
C. New Hiring Procedures
On February 17, after Frey and Snodgrass had unsuccess-
fully attempted to make application, Kaminski went to the Ken-
tucky Cabinet for Work Force Development7 to request that
that agency receive applications for Kesco and then refer the
applicants to him.8 Thereafter, Kaminski referred all applicants
who showed up at his door to an individual at the Kentucky
Cabinet. There, applications were completed and referred back
to Kaminski.

6 Kaminski testified at one point, Frey and Snodgrass came in at a
point in time when he was trying to get his employees off to their vari-
ous assignments, when the only company representatives present were
himself and his secretary. Subsequently, he explained the difference in
the treatment accorded these putative applicants and Bratcher, then a
nonunion affiliated applicant (discussed in greater detail, infra), stating,
“[T]hey came in and interfered with the progress of work at hand.”
7 Apparently, this is a division of, or another name for, the Kentucky
Department of Human Resources.
8 He did this, he claimed, because he had seen signs posted in other
area businesses announcing that applications were received through this
agency and, he said, it “occurred to me that it would be a lightening the
load of my handling and receiving of applications.” It was, he claimed
in his affidavit, “not meant to be our only exclusive way of hiring indi-
viduals. It would just give me a valid reason for not having to deal with
people at our front door when I was trying to do something else.” I
believe that his subsequent explanation of why he sought workers
through a “Temp” agency, discussed infra, is more indicative of his
motivation.
When Richard Sparks was laid off by a union contractor on
February 21, Osborne suggested that he go to the Kentucky
Cabinet office where there was a posting of jobs for electri-
cians. He did so9 and, without completing an application, was
referred by that agency to Kesco for an interview.10 He ap-
peared for his interview with Kaminski the following day, hav-
ing donned his union-logo adorned jacket and hat. During that
interview, in which his job skills were both discussed and dem-
onstrated, he completed an application wherein the references
to his IBEW apprenticeship and employment by union contrac-
tors further revealed his union ties. He heard nothing further
from Kesco.
In a March 7 letter, Kaminski informed Osborne of Kesco’s
use of the Kentucky Cabinet office for the referral of appli-
cants. He assured Osborne that “[I]nvolvement in organization
or other labor union activities is not and will not be a considera-
tion, affirmatively or negatively, with respect to any applica-
tion.”
Beginning in early April, Kaminski also went to a “temp”
agency, Temporary Professionals, Inc. (TPI) for the referral of
electricians. He explained his motivation, saying, “After having
told Gary [Osborne] that I didn’t want his help, I didn’t want to
advertise again in the newspaper and [have] him presume that I
needed his help again . . . . I had already told him I didn’t want
his help and I didn’t want him to presume I needed his help
. . . . I told him I preferred to hire people myself and not have
his help to hire people.” He also testified that using TPI “was a
non-public way of having employees at my fingertip . . . . then I
wouldn’t have to advertise in the paper. And I wouldn’t have a
deluge of either on-site visitors or mail applications.”
While the electricians referred by TPI were paid and insured
by TPI and were ostensibly TPI’s employees, each was inter-

9 The implication of the record is that Sparks had not disclosed his
union affiliation when he first appeared at the Kentucky employment
office. He testified that, for his return for the interview at the Kentucky
Cabinet office, he put on his jacket and hat with the union logos. Even
if he had disclosed his union affiliation to the State agency’s clerk when
he first appeared there, such a disclosure would not inure to Respon-
dent’s benefit unless I were to assume that Kaminski had enlisted that
agency in a plan to discriminate, or that the agency took it upon itself to
notify employers when applicants professed union support. I am unwill-
ing to make such assumptions.
10 Initially, Sparks was told that while Kesco would be interviewing
applicants at 1 p.m. on that day, all of the available times were already
booked. He was subsequently called to an interview when there was a
cancellation. In the course of that interview, Kaminski told him that he
was hiring for a job that would greatly increase Kesco’s employee
complement and that some of those hired might be retained after that
job was completed. His credibly offered testimony is unrebutted.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 458
viewed by Kaminski and each was required to sign an ac-
knowledgment of temporary status, as discussed below.
In early April, Kesco began requiring those employees it
hired, and those referred from TPI, to sign acknowledgments
that they were temporary employees. This was, he claimed,
based upon his counsel’s advice as the best way to minimize
unemployment insurance costs. The forms state that the appli-
cant was being considered for “TEMPORARY
EMPLOYMENT to work for a period which is expected to be
less than SIXTY (60) days,” for work primarily on the PAT
jobsite. (Emphasis in original.) They refer to a stated start and
completion date for the employment which was to be “the time
Kesco requires temporary employees in addition to its perma-
nent employees”); however, Kaminski did not fill in the ex-
pected completion dates on the lines provided on the forms.
D. Hiring
Respondent’s compilation of its hiring reveals that, after it
had hired Goodrich and Bickerwert Sr. in the latter half of
March, it next hired R. Judge, C. Wilkins, and R. Bennett, all
during April. It then hired James Bratcher.
Bratcher had heard that Kesco might be hiring and dropped
in at its office about mid-April. He asked Kaminski if any help
was needed. Kaminski interviewed Bratcher at that time and
offered him employment at $9 per hour with the promise of a
raise to $10 if he took the State’s journeyman examination.
Bratcher was then directed to the Kentucky Cabinet office to
complete an application. After complying, his application was
returned to Kesco by facsimile transmission and Bratcher was
told that his employment would depend on Chester Kaminski’s
discussions with Joseph Kaminski. Later that same day,
Kaminski told Bratcher to report to the shop the next day.
Among the forms completed at that time was the acknowledg-
ment of the temporary nature of his employment, as described
above. From that form, and from his conversation with
Kaminski, Bratcher was aware of the limited duration of the job
for which he was hired. He knew that it would be only a few
months; the form spoke of an expectation that it would be less
than 60 days but he was not given any specific cutoff or termi-
nation date.
Bratcher had been a union member in the 1960s and 1970s;
he was not affiliated with any union when he applied for work
with Kesco and there was no discussion of unions when he was
interviewed. He and Kaminski had known each other for many
years and had worked together 30 years ago.
Respondent’s next three hires, in late April or early May,
were D. Bryant, J. Anderson, and M. Oberst. The first two ap-
parently came through the Kentucky Cabinet office; Oberst was
referred by TPI.
About April 25, Bratcher told David Cheek that Kesco was
hiring. Cheek appeared at Kesco’s office, seeking to complete
an application. He was referred to the Kentucky Cabinet where
he filled out the application and submitted it with a resume. He
was called in to the Kesco office on the following day, inter-
viewed by Kaminski and offered a job at $9 per hour with an
assurance of a raise of an undisclosed amount if he applied for
his journeyman’s license.
Cheek had been a union member from 1981 to 1986. He be-
lieved that he discussed his past relationship with the union in
his interview. He was told that the job was temporary and
signed the acknowledgment of his temporary status. He had no
recollection that any outside limit on the term of his employ-
ment was stated.
Respondent took on 13 more employees for the PAT job af-
ter Cheek. Of these, eight were referrals by TPI, according to
TPI’s invoices for their services. The remainder came through
the Kentucky Cabinet; there was no consistent procedure. Thus,
Timothy Thurber called Kaminski and was referred by him to
the State’s employment office while Thomas Pickerill, was sent
by Kaminski’s secretary to TPI as the only place from which
they were hiring.11
David Carrico is a union member who was sent to TPI, along
with a Mike Williams, by Osborne. They made appointments
for June 16 and appeared there wearing shirts bearing IBEW
logos and buttons identifying them as union organizers. TPI’s
representative, David Owens, greeted them with the query,
“Are we being recorded?” They assured him that their meeting
was not being recorded and Owens told them that anything he
had was at substantially lower wages than they were used to.
They told him that they understood that and, when Williams
was asked why he would want such a job, he stated that it was
better than being unemployed, which was his then-current
situation. Owens said that the work might not be electrical;
Williams said he would take anything but Carrico told Owens
that he only wanted work as an electrician. They submitted
applications.
On June 20, Osborne wrote TPI, pointing out that he had sent
Carrico and Williams “to help you with your man power needs
for electricians.” He described their qualifications, assured
Owens that any union activity in which they might engage
would be conducted within legal parameters and would not
interfere with their productivity and “reserve[d] the right to
bring . . . . [TPI’s] failure or refusal [to consider them for em-
ployment] to the attention of the National Labor Relations
Board.”
Owens called both Carrico and Williams on June 21 and re-
ferred them to the Kentucky Cabinet office to complete applica-
tions. They complied on June 22, again wearing the Union-
sponsored tee shirts and organizer buttons. Owens called Car-
rico again on June 23 and told him to report to Kesco for an
interview on June 23.12 Carrico appeared, attired as he had been
at TPI and at the State office, met with Kaminski, demonstrated
a job skill (pipe bending), was hired and was assigned to a job-
site at the Owensboro airport for the day. He asked and was
told that his rate of pay would be determined by TPI and that
the job was temporary. After one day at the airport, he was
assigned to the PAT jobsite.

11 Pickerill asserted that the secretary first referred him to the Ken-
tucky Cabinet but then referred him to TPI after inquiring about
whether he had worked on union or nonunion jobs. The secretary, who
disputes asking this question, is not alleged to be a supervisor or agent
on Respondent’s behalf and I need not resolve this insignificant credi-
bility issue.
12 The record does not reveal what, if anything, happened to Wil-
liams.

KAMINSKI ELECTRIC & SERVICE CO. 459
Of those hired by Kesco or by TPI for Kesco since late
March, and required to sign the temporary employment ac-
knowledgments, five worked beyond 60 days: Dalton Goodrich
(late March to the end of August), Marvin Bickerwert Sr. (late
March to sometime in 1996), Marty Oberst (hired in late April
and still employed as of the date of the hearing), Gary Brown
(hired in May and still employed as of the date of the hearing),
and Jeff Donovan (May through mid-August). Oberst and
Brown are now deemed regular full time employees.
E. Bratcher and Cheek—Pay Raises, Reprimands,
and Terminations
Kesco had few fixed practices regarding wage increases;
raises were granted on the basis of periodic appraisals or when
requested by an employee. Generally, raises were in the range
of 50 to 75 cents per hour and signified satisfaction with the
work performed, skills, and attendance. New regular hires were
generally told that they would have to prove satisfactory for 90
days and temporary employees that they would be evaluated at
the end of 60 days for continued employment. If retained, they
would get a raise.
As previously noted, Bratcher and Cheek started work at $9
per hour. About May 11, after he had been working only a cou-
ple of weeks, Cheek asked Kaminski for a $3-per-hour raise,
stating that he was having trouble “making it” at $9 per hour.
Kaminski said that he would have to check with his son, Jo-
seph. On May 15, Cheek reiterated his request, seeking an an-
swer by noon. Shortly before that time, Chester Kaminski re-
turned to Cheek and told him that his request was granted.
Bratcher, who had never requested a raise, got a $3-per-hour
increase at the same time. These raises, Kaminski said, were
warranted by the fact that they had both been making $12 per
hour before their Kesco employment. In granting the increases,
Kaminski recalled telling them not to discuss their wages with
their fellow employees because he “didn’t want to create an
avalanche” of other employees seeking similar raises, to “keep
it confidential.”13
Notwithstanding whatever it was that Kaminski’s directed,
when the subject of wages came up at lunch among the em-
ployees on May 16, Cheek told others that he was being paid
$12 per hour. Later that day, Kaminski repeated to Bratcher
that he “didn’t want this to escalate,” that he didn’t believe it
was Cheek’s or his fault and that “he was going to have to let
somebody go.” Cheek, who was approaching them at that mo-
ment, heard the statement.14

13 The employees do not recall him making this statement. They re-
call only that Kaminski said that “he didn’t want this to escalate.”
Cheek took this to mean that Kaminski did not want Cheek to ask for
more money. Bratcher did not glean any meaning from it. It is clear
from subsequent events that Kaminski intended whatever he told them
to be a prohibition against discussions of their wage rates with their
fellow employees.
14 Chester Kaminski denied telling either of them that he was going
to fire them for talking about the raises or that he had said anything to
the effect that he would have to let someone go because other employ-
ees had started to ask for raises. Rather, he claimed, if he said anything
about letting anybody go, it was in the context of the “morale prob-
lem[s]” and “big headache” he anticipated from having to explain why
he could not give everyone a $3 raise. I find both Bratcher and Cheek
more candid and accurate in their recollections than Chester Kaminski;
I also find his explanation to make little sense and to sound more like
an admission of a threat than a denial.
After that conversation (according to Cheek’s recollection),
Cheek and Bratcher sought out Osborne to inquire about repre-
sentation. He gave them union literature to distribute and union
tee shirts and organizer buttons to wear. They began wearing
the union garb on May 18, picketed the PAT site briefly on that
day with signs asserting that Kesco paid low wages, and, from
May 22 to 26, distributed the handbills before and after work
and during the lunchbreak.
On May 26, Kaminski issued a memo, essentially identical to
the one he had issued on February 3, concerning the organizing
activities.
At some point, Kesco’s electricians began to work Saturdays
on the PAT project.15 Bratcher acknowledged that he knew, in
May, that such work was expected.16 Cheek and Bratcher failed
to show up for work on Saturday, May 27. Believing that no
work would be scheduled on the Saturday of the long Memorial
Day weekend, they had also failed to call in to report their ab-
sences 30 minutes before the start of the shift, as is required by
Respondent’s rules.
About June 1, Kaminski came to Bratcher and Cheek at the
PAT site with a ledger book containing notations concerning
their purported conduct. He presented Bratcher with a page
stating:

(1) Disclosure of Information about Rate Increase of $3.00
Granted 15 May to Delwin.

(2) Failure to Call In 30 Min Before Shift Time on Saturday
27 May 1995 Absent.

Cheek was presented with a page setting out those same two
purported violations along with a third:

(3) Organizing Activity on Company Time.

They were asked to initial each entry, and did so. This is the
procedure, which Kaminski uses to reprimand employees; oth-
ers have been so reprimanded, including for violations of the
call-in rule.
With respect to the reprimand of Cheek for allegedly orga-
nizing on company time, the record is clear that Respondent
permits its employees to engage in all manner of conversations
while they are working. Kaminski testified that another em-
ployee had told him “what was going on . . . that David Cheek
had buttonholed Delwin Cheek [a distant relative] and was
discussing the Union.” While no time interval was indicated to
Kaminski, he took that to mean that Cheek “was interfering
with the job progress.” Cheek credibly denied having any
lengthy conversations about the Union while working or having
any union-related discussions, which interfered with the work.
That testimony is uncontradicted by any probative testimony.

15 Chester Kaminski, after a review of Company records, testified
that regular Saturday work began in late June. He later testified that
Saturday work may have been required in April, May, and June; he did
not check with his son, Joseph, who was the supervisor on the site, and
Joseph did not testify.
16 Cheek, however, claimed that he had never been told that Satur-
days were a scheduled workday.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 460
Kaminski never questioned David Cheek about the alleged
incident.
On June 10, a union meeting was held in Cheek’s home. Os-
borne, Bratcher, Cheek, and several other employees attended.
On June 16, in what was asserted to be a protest against the
reprimands issued them about June 1, Bratcher engaged in a
strike, carrying picket signs proclaiming that Kesco had com-
mitted unfair labor practices.17 He picketed for about an hour;
Cheek did not join him in that picketing on that first day. While
he was picketing, Kaminski told him that June 16 would be his
last day of work and that Cheek’s last day would be June 23.
Kaminski also told him to turn in various items of Company
property.18
Bratcher and Cheek picketed together, from the start of the
workday on June 17. While they were picketing, Kaminski
drove up, with his sister, and gave each of them a form to sign.
The form given to each asked, “What’s Happening?” and
stated:

Accordingly with our temporary employment agreement,
your last day will be June 16th. [Bratcher, June 23rd for
Cheek]. Do you want to work or not?
It’s your choice: Yes_____No_____

James Bratcher [David Cheek]

Both refused to sign and Kaminski so noted on each letter.
Upon his refusal, Cheek credibly testified, Kaminski asked him
to turn in his keys, hard hat, and other equipment.
On June 21, Bratcher and Cheek returned to the jobsite and
told Joe Kaminski that they were offering to return to work,
“unconditional[ly]” Joe left them to go and call his father.
When he returned, he told them that someone would be contact-
ing them.
Kaminski acknowledged that his son had told him of their
offers to return to work. He purportedly told Joe that
“Bratcher’s time had expired” and that “Cheek’s time had ex-
pired or was about to” and, therefore, he didn’t see any point in
re-employing them.19
Respondent never contacted either Bratcher or Cheek in re-
gard to their offers to return to work. Most of the employees
hired for the PAT project were terminated at its conclusion.
Some, however, were offered regular employment.

17 The signs and apparently the instructions for picketing, were pro-
vided by Osborne.
18 Chester Kaminski did not dispute Bratcher’s testimony regarding
this June 16 conversation. He acknowledged asking whether Bratcher
(and, he claimed, Cheek, who was not there according to both employ-
ees) would work. Bratcher was a candid witness who demonstrated a
good memory of the facts, and I credit him.
19 He also testified that Joe may have offered to have them come and
speak to him. They should have come to him, Chester Kaminski said,
because when he had spoken to them on June 16, he “offered them to
go back to work” and, “if they chose to go back to work, then [he
thought] it’s up to them to see [him]” about doing so.
F. Analysis
1. Refusal to hire or consider for hire
The complaint alleges that Respondent discriminatorily
failed and refused to hire or consider for hire Frey and
Snodgrass, the two union member applicants who appeared at
the Kesco office on February 17.20 I find that Respondent dis-
criminatorily refused to consider them for hire, in that it refused
to accord these overtly union-affiliated and ostensibly qualified
and sincere applicants the same privileges it was according at
that same time to applicants who did not appear to be union-
affiliated, i.e., the opportunity to submit applications and be
interviewed. Inasmuch as Respondent did not hire anyone be-
tween mid-January and mid-March, I do not find that there was
necessarily a discriminatory refusal to hire.21
In reaching this conclusion, I note that, only four days ear-
lier, Kaminski had told the union’s organizer that, “if you truly
believe an individual might desire employment with our Com-
pany, please have the individual come to our office and make
application personally.” Following Osborne’s instructions, Frey
and Snodgrass did precisely as Kaminski had directed, only to
have their efforts summarily rebuffed. Moreover, Kaminski’s
animus toward them is revealed in his unsupported accusation
that they, unlike others who received interviews or were di-
rected to someone who would take their applications, “came in
and interfered with the progress of work at hand.” There was
no evidence of interference.
Animosity and inconsistency is further revealed in
Kaminski’s almost immediate resort, after union-member ap-
plications and applicants began to appear at his door, to the
device of requiring all applicants to go through the Kentucky
Cabinet, discussed in greater detail infra. And, it is revealed in
his willingness to interview applicants, including Sparks,22 only
four days later, at the Kentucky Cabinet office, in preparation
for what he described to Sparks as significant future hiring. It is
further revealed by the fact that, notwithstanding both of the
foregoing actions, Kaminski had misled Frey and Snodgrass by
telling them that Kesco was not accepting applications, thereby
discouraging them from making further efforts to apply.
The foregoing evidence of union activity, knowledge, and
Respondent’s animus (which is further revealed in other con-
duct described hereinafter), viewed together with Respondent’s
inconsistent conduct, establishes that the employees’ protected
conduct was a motivating factor in the refusal to consider them
for hire.
Kaminski’s only explanation for his casual dismissal of Frey
and Snodgrass was that he was busy at the moment they ap-
20 No similar allegations are made with respect to the mailed-in ap-
plications or the walk-in application by Sparks.
21 See Casey Electric, 313 NLRB 774 (1994). I shall leave to com-
pliance the determination of which of these discriminatees, if either,
would have been hired had Respondent not discriminatorily refused to
accept their applications and/or interview them. H. B. Zachry Co., 319
NLRB 967 (1995).
22 That Sparks came in to the interview wearing the union jacket and
hat does not require a different conclusion. A refusal to interview him
at that juncture would simply have made Respondent’s discriminatory
motivation too obvious.

KAMINSKI ELECTRIC & SERVICE CO. 461
peared. His preoccupation with getting his small crew off to
their assignments may have justified a delay before providing
them with applications and/or interviewing them; however,
they could easily have been told to wait, or to come back later.
It does not justify the out-of-hand rejection and misleading
information, concerning Respondent’s hiring posture which
they received. I find that General Counsel has sustained his
burden of establishing, by a preponderance of the evidence on
the record as a whole, that Respondent failed and refused to
consider Frey and Snodgrass for employment. Respondent’s
evidence fails to rebut that conclusion.23
2. Kesco’s new hiring procedures
Within days of having received the first union-sponsored ap-
plications and applicants, Respondent adopted a new policy,
one requiring that applicants first go to the Kentucky Cabinet to
submit applications. It subsequently purported to remove itself
even further from the hiring process by arranging for TPI to
provide electricians on a contract basis. I find that the General
Counsel has met its burden of establishing that discrimination
was a motive for these actions. In so finding, I note that
Kaminski had, only shortly before the first, told the Union’s
organizer that his services in providing employees was unnec-
essary because Kaminski preferred to do it himself. He reiter-
ated that position only nine days before enlisting the aid of the
Kentucky Cabinet, stating, “[O]ur small organization conducts
these activities [receiving applications and interviewing] di-
rectly with the prospective employees and that will continue to
be our policy.” (Emphasis added.)
A virtual “smoking gun” as to motivation, moreover, is re-
vealed in Kaminski’s explanation for going to TPI for electri-
cians. He had already found out that his use of the Kentucky
Cabinet did not adequately insulate him from union-referred
applicants. Recourse to TPI was a means of hiring, which he
admittedly believed, would allow him to deny the Union
knowledge that he was hiring and keep it from offering him
employees.
Respondent’s claim that it adopted these procedures to
lighten its burden with respect to the hiring process does not
withstand scrutiny. When employees came to him through ei-
ther the Kentucky Cabinet or TPI, Kaminski continued to re-
view applications and interview. He even interviewed those
electricians who were employed by TPI. Respondent, more-
over, offered no evidence to indicate any diminution in the
number of applications it handled. General Counsel has met his
burden of proof on discriminatory motivation. Respondent has
failed to rebut that evidence.
3. Bratcher and Cheek
Employee discussions about their wages is an “inherently
concerted activity clearly protected by Section 7 of the Act.” It
is a violation of Section 8(a)(1) to promulgate a rule prohibiting
such discussions, advise employees that such discussions are
prohibited, inform employees that they had violated such a rule
or to discipline employees for doing so.24

23 Atlanta Motor Lines, 308 NLRB 909, 915 (1992); Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert denied
455 U.S. 989 (1982).
Kaminski intended to promulgate such a rule, at least with
respect to the raise given Bratcher and Cheek, in mid-May,
when he told them that he “did not want this to create an ava-
lanche (or escalate).” As it is the reasonably anticipated effect
of an employer’s statements, not their intent, which determines
whether they are coercive and, since the employees did not hear
or understand his admonition, I find no violation at that mo-
ment. However, Kaminski’s subsequent actions, repeating the
nonescalation statement in the context of a threat that, because
the wages were disclosed, someone would have to be fired, and
then issuing reprimands to both employees for have made such
disclosures, are clearly acts which interfere with, restrain, and
coerce employees in the exercise of Section 7 rights and thus
violative of Section 8(a)(1).
The timing of those reprimands, 2 weeks after the fact but
only days after they had openly engaged in union activities,
gives rise to an inference that those reprimands were motivated
by their union activity. Respondent offered no coherent expla-
nation for the delay in issuance and, accordingly, I find that
they were issued because of that union activity and thus viola-
tive of section 8(a)(3).
I also find the reprimand of Cheek for “Organizing activity
on Company time” violative of Section 8(a)(3) and (1). Re-
spondent permitted all manner of employee conversations at
work; it offered no evidence that Cheek had engaged in any
conversations, which interfered with the work other than a
hearsay statement that Cheek had “buttonholed” someone.
Even that was not investigated and Kaminski did not question
Cheek about the alleged infraction before issuing the repri-
mand. Moreover, Cheek credibly denied having impeded the
work by any such discussions. Even if Kaminski had a good
faith belief that Cheek had engaged in improper union activity,
his conduct is violative. This issue is governed by the Burnup
& Sims and Rubin Bros. Footwear line of cases, which pro-
vides:

Where an employee is disciplined for having engaged in mis-
conduct in the course of union activity, the employer’s honest
belief that the activity was unprotected is not a defense if, in
fact, the misconduct did not occur. NLRB v. Burnup & Sims,
379 U.S. 21 (1964); Rubin Bros. Footwear, Inc., 99 NLRB
610 (1952).

While I am suspicious of Respondent’s motive in reprimand-
ing Bratcher and Cheek for their failure to call in before absent-
ing themselves on Saturday, May 27, I find that, on the record
as a whole, the inference of discriminatory motivation as to
those warnings is not warranted. Thus, I note that Bratcher was
aware that Saturday work was expected; the failure to show up,
or call in, on that particular Saturday was caused by a misun-
derstanding regarding the holiday weekend. I also note that
Respondent had issued similar reprimands to other employees
for the same infraction on other dates and that this reprimand,
unlike the one for disclosing their wages, followed immediately
upon knowledge of the infraction.
24 Automatic Screw Products Co., 306 NLRB 1072 (1992).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 462
On June 16, avowedly in protest of the foregoing conduct,
Bratcher and Cheek went on strike. Kaminski came to them,
asked them if they were going to work and, when they refused,
terminated them. To the extent that a Wright Line analysis is
called for in such circumstances, I am compelled to find that
General Counsel has shown, by at least a preponderance of the
evidence, that they were terminated for engaging in that strike,
a statutorily protected activity.
Respondent, however, contends that they were terminated
because their periods of temporary employment were up, not
because they struck. Its contentions in this regard are not per-
suasive. The temporary employment forms, which they had
signed, stated that the employment was “expected to be less
than SIXTY (60) days.” They did not say that the employment
would not exceed 60 days. Indeed, the employees’ tenure was
tied not to a fixed period of time but rather to the duration of
the project for which they were hired. Thus, the acknowledg-
ment went on to state, “Applicant will work primarily on the
contract with PREMIUM ALLIED TOOL which requires
KESCO to employ temporary work [sic] for whom KESCO
will not have permanent employment positions.” The form
called for the inclusion of an “expected commencement and
completion” date, which was the “period being the time
KESCO requires temporary employees.” However, in no case
was the “Expected Finish Date” placed upon the form. Kesco’s
employees worked on the PAT site until October.
Moreover, of the employees required to execute the ac-
knowledgments, five worked beyond 60 days and two became
regular employees. Given the quality of their work, as evi-
denced by the extraordinary pay raises they had received, there
is every likelihood that Bratcher and Cheek would also have
been retained, at least through the end of the PAT project.
Nothing in the terms of their hire, and certainly not the forms
they signed, mandated that they be terminated on any given
date. The letter Kaminski gave each of them as they picketed
even asked, “Do you want to work or not? It’s your choice.”
Thus, they were asked to choose between striking and dis-
charge and were discharged when they chose to continue their
strike.
Accordingly, I find that they were discharged on June 16 be-
cause of their union activity, in violation of Section 8(a)(3).25

25 Bratcher and Cheek made an unconditional offer to return to work
on June 21. Given the circumstances of their discharges, I find it un-
necessary to reach the issue of whether the strike in which they were
engaged was in protest of unfair labor practices or converted at the
moment of their discharges to an unfair labor practice strike.
CONCLUSIONS OF LAW
1. By promulgating, maintaining, and advising employees
about rules prohibiting employees from discussing their wages
with other employees, by reprimanding and threatening em-
ployees with discharge for discussing their wages with other
employees, and by reprimanding an employee for discussing
the union while working the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and Section 2(6) and (7) of the Act.
2. By failing and refusing to consider union-affiliated job
applicants for hire, by changing its hiring procedures and prac-
tices to avoid receiving applications from union-affiliated job
applicants, by disciplining employees because they had en-
gaged in union activity and by discharging employees because
of their union activity, the Respondent has violated Section
8(a)(3) and (1).
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged employ-
ees, it must offer them reinstatement and make them whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987). The Respondent may introduce evidence, at the com-
pliance stage of this proceeding, concerning how long James
Bratcher and David Cheek would have remained employed and
whether or not they would have been among those retained in
its permanent work force. If Respondent establishes at the
compliance stage that they, or either of them, would not have
been retained to or beyond the end of the PAT project, Respon-
dent’s obligation will be to consider them eligible for employ-
ment on future projects, on application, on a nondiscriminatory
basis. Evidence may be considered both concerning Respon-
dent’s reinstatement obligations toward them and the date when
its backpay liability toward them may have terminated. See
Dean General Contractors, 285 NLRB 573, 574 (1987).
In like vein, it shall be a matter for compliance to determine
whether Gerald Frey and/or Gerald Snodgrass would have been
hired, and how long they would have been retained, if the Re-
spondent had interviewed them applying nondiscriminatory
hiring criteria. See H. B. Zachry Co., supra.
[Recommended Order omitted from publication.]