Modern Electric Co.

National Labor Relations Board - Board Decisions

Oct 30, 1998

327 N.L.R.B. 92 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 92
Modern Electric Co. and International Brotherhood
of Electrical Workers, Local 617, AFL–CIO.
Case 20–CA–27392
October 30, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On April 1, 1997, Administrative Law Judge Jay R.
Pollack issued the attached decision. The General Coun-
sel filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.
The judge dismissed allegations that the Respondent
violated Section 8(a)(3) and (1) of the Act by failing to
hire or to consider the employment application of union
organizer Bill Petros. He determined that the Respon-
dent’s actions were not motivated by antiunion consid-
erations. For the reasons set forth below, we disagree
with the judge’s analysis and conclusion regarding the
Respondent’s handling of Petros’ employment applica-
tion and find that the Respondent violated the Act by
failing to consider him for employment. In addition,
while we agree that Respondent’s failure to hire Petros
was not unlawful, we do so for reasons different from
those relied upon by the judge.
I. FACTS
The Respondent is an electrical contractor in the build-
ing and construction industry. In response to a July 7,
19961 newspaper ad for electricians, Petros telephoned
and then faxed his resume to the Respondent. Petros’
resume disclosed both his 27 years of electrical industry
experience and his position as an organizer with Interna-
tional Brotherhood of Electrical Workers, Local 617,
AFL–CIO (the Union). About a week later, Petros sug-
gested to fellow union member Merle Rogers that he also
apply for a job with the Respondent. Shortly thereafter,
Rogers, who did not disclose to the Respondent his union
affiliation, was hired as a foreman. On learning that the
Respondent hired Rogers, Petros telephoned the Respon-
dent to inquire as to the status of his application. The
Respondent’s project manager, Bruce Taber told him that
he could not locate his resume, so Petros faxed a second
one. Two days later, the Respondent advised Petros that
the position had been filled.
On August 11 and again in September, the Respondent
placed newspaper ads for electricians. Petros encouraged
union members to apply. In telephone conversations
with the Respondent’s office manager, two such appli-
cants, Robert Alano and C. D. Underwood, were asked
directly about their union affiliations.2 Neither was
hired. Instead, the Respondent hired one individual re-
ferred by a state employment agency and another appli-
cant whose resume indicated no current union member-
ship.

1 Dates refer to 1996 unless otherwise stated.
Not long after being hired by the Respondent, Rogers
openly began organizing efforts among his coworkers.
While aware of these activities, the Respondent’s owner,
George White, took no steps to interfere with his union
activities and developed a social friendship with Rogers.
After about 2 months, however, Rogers voluntarily left
his job, citing dissatisfaction with the Respondent’s hir-
ing practices. Rogers declined White’s entreaties that he
return to work for the Respondent.
II. THE JUDGE’S DECISION
Despite concluding that the Respondent’s owner,
White, had knowingly made certain self-serving and
false statements in his pretrial sworn affidavit regarding
the Respondent’s hiring practices,3 the judge found that
the Respondent, through project manager Taber, who
made the hiring decision, articulated credible reasons
relating to Rogers’ superior experience and qualifications
to warrant his being hired over Petros. Taber testified
that he was looking for “foremen-type people that could
run work,” who would be staying with the Respondent
for the duration of a project and possibly longer. Ac-
cordingly, he looked for applicants whose employment
history demonstrated a record of extended employment
with the same company, as indicative of their value to
those employers as “key” employees. Because Rogers’
resume showed an employment pattern indicating that he
had worked as a foreman for several companies, and had
worked for those companies for periods of at least 2
years, Taber concluded that he possessed the “key em-
ployee” quality that he was looking for. Taber testified
that, by contrast, Petros’ employment history, as dis-
closed in the resume that Petros sent when told that his
first resume could not be found, did not show the same
pattern, thereby making him less suited to the Respon-
dent’s needs. The judge credited Tabor’s testimony, and
determined that Rogers was hired for nondiscriminatory
reasons relating to his experience. Acknowledging that
the Respondent had unlawfully inquired into other job
applicants’ union affiliation, the judge nevertheless re-
jected the General Counsel’s contention that this was
evidence of animus, and concluded that the Respondent
2 The judge determined that the Respondent violated Sec. 8(a)(1) by
interrogating job applicants about their union affiliation. The Respon-
dent did not except to these findings, and we adopt the judge’s conclu-
sions.
3 In his affidavit, White stated that he did not receive Petros’s re-
sume until after Rogers was hired and, thus, the position Petros sought
had already been filled. In his testimony at the hearing, however,
White admitted that that statement was false. In addition, the judge
determined that White’s assertion, made both in his affidavit and re-
peated on the stand, that he had tried without success to reach applicant
Alano by telephone, was untrue.
327 NLRB No. 25
MODERN ELECTRIC CO. 93
did not violate the Act by its disposition of Petros’ appli-
cation and dismissed the allegations of unlawful refusal
to consider and unlawful refusal to hire Petros.
In his exceptions, the General Counsel asserts, inter
alia, that the judge erred (1) by failing properly to con-
sider evidence of Respondent’s union animus and (2) by
failing to analyze the failure-to-consider allegation sepa-
rately from the failure to hire allegation. We find merit
in these contentions.
III. ANALYSIS
The judge’s fundamental error was in failing to distin-
guish between the two separate Section 8(a)(3) allega-
tions involved in this case: first, that the Respondent un-
lawfully failed to consider Petros for employment and
second, that the Respondent unlawfully failed to hire
Petros. While the judge refers to each allegation sepa-
rately and sets forth the facts relative to both aspects, he
nevertheless fails to analyze them individually. Rather
than examining the events of this case sequentially, as
they actually occurred, the judge viewed the evidence in
hindsight and assessed the situation retrospectively. By
so doing, he melded the two allegations, and, on finding
that sound business reasons justified the hiring of
Rogers, instead of Petros, summarily dismissed the fail-
ure to consider allegation as well. We find, for the rea-
sons set forth below, that the Respondent unlawfully
failed to consider Petros for employment because of his
union affiliation, but that the Respondent has neverthe-
less demonstrated at the hearing that, had it considered
Petros’ application, it would have hired Rogers based on
objective, lawful considerations.
Petros sent his resume to the Respondent in early July.
He got no response. About a week later, Rogers applied
for a job with the Respondent, and was hired. Thereaf-
ter, Petros spoke by telephone to Taber, who told him he
had not seen Petro’s resume and that he could not locate
it in the company files. Petros then faxed Taber another
copy of his resume, but was subsequently informed that
the position had been filled. Contrary to his pretrial affi-
davit, White admitted at the hearing that he had received
Petros’ resume, and he did not contradict Taber’s testi-
mony that Taber had not seen it at the time Petros called.
From this evidence it is clear that White made timely
consideration of Petros’ application for employment im-
possible by not giving Petros’ resume to Taber, the hiring
official. White admitted that he had concerns about hir-
ing union workers.4 In addition, it is established and
unchallenged that the Respondent’s office manager un-
lawfully asked job applicants about their union status.
Thus, it is reasonable to infer that when White received
Petros’ resume, he immediately rejected the application
because of the information regarding Petros’ union posi-
tion. Inasmuch as Rogers had already been hired by the

4 White explained that he was concerned about union employees
leaving the Respondent if a union job opened up elsewhere.
time of Petros’ telephone conversation with Taber,
White’s action denied Petros the opportunity to be con-
sidered for that job. Accordingly, we reverse the judge
and find that the Respondent, through White’s admitted
actions, unlawfully failed to consider Petros’ July appli-
cation for employment because of his affiliation with the
Union.
With regard to the Respondent’s failure to hire Petros,
there is credible record evidence, however, establishing
that the Respondent was looking for an applicant whose
experience would qualify him as a “key employee.” As
set forth above, Taber at the hearing compared the rela-
tive qualifications of Rogers and Petros, as well as the
qualifications of certain other applicants. As the judge
describes, Taber’s testimony relating to Petros’ qualifica-
tions vis a vis Rogers sets forth objective, lawful consid-
erations which would have caused the Respondent to
select Rogers rather than Petros, had a timely comparison
between the two been made. For this reason, we con-
clude that the General Counsel has not established that
the Respondent has unlawfully failed to hire Petros. We
therefore dismiss the allegation of unlawful failure to
hire.
AMENDED REMEDY
We have found that the Respondent has engaged in
certain unfair labor practices, we shall order that it cease
and desist therefrom, and take certain affirmative action
deemed necessary to effectuate the policies of the Act.
We have found that the Respondent violated Section
8(a)(3) and (1) of the Act by refusing to consider Bill
Petros for hire. Accordingly, if it is shown at the com-
pliance stage of this proceeding that the Respondent
would have hired Petros to another job opening had his
application been fairly considered, we shall order the
Respondent to offer Petros employment in that position
and make Petros whole for the discrimination found. If
such position no longer exists, the Respondent shall be
required to offer Petros a position substantially equiva-
lent to that for which he would have been hired. See
generally B E & K Construction Co., 321 NLRB 561
(1996). Any backpay found owing shall be computed on
a quarterly basis as prescribed in F.W. Woolworth Co.,
90 NLRB 289 (1950), and shall be reduced by net in-
terim earnings, with interest computed in accordance
with New Horizons for the Retarded, 283 NLRB 1173
(1987).
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, Modern Electric Company, San Mateo,
California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 94
(a) Interrogating job applicants about their union af-
filiation.
(b) Discouraging union activity by refusing to consider
employees for hire 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 in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act
(a) If it is shown at the compliance stage of this pro-
ceeding that the Respondent, but for its discrimination,
would have hired Bill Petros to a job that became avail-
able subsequent to his July 1996 application, the Re-
spondent shall offer Petros employment in that position
and make him whole for the discrimination found and, if
that position no longer exists, offer him a position sub-
stantially equivalent to that for which he would have
been hired, in the manner set forth in the amended rem-
edy section of this decision.
(b) Within 14 days from the date of this Order, notify
Bill Petros in writing that any future job applications will
be considered in a nondiscriminatory manner.
(c) Within 14 days after service by the Region, post at
its facility in San Mateo, California, copies of the at-
tached notice marked “Appendix.”5 Copies of the notice,
on forms provided by the Regional Director for Region
20, 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. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail at its own expense, a copy of the No-
tice to all current employees and former employees em-
ployed by the Respondent since July 8, 1996.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 20 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.

5 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.”
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
concerted activities.

WE WILL NOT discourage union activity by refusing
to consider employees for hire because of their union
affiliation.
WE WILL NOT interrogate employee-applicants about
their union membership or union sentiments.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL within 14 days of the Board’s Order, notify
Bill Petros in writing that any future job applications will
be considered in a nondiscriminatory manner.
If it is established that, but for our discrimination, we
would have hired Bill Petros to a job that became avail-
able subsequent to his July 1996 application, WE WILL
offer Petros employment in that position and make him
whole for the losses he suffered as a result of our dis-
crimination, and if that position no longer exists, WE
WILL offer him a position substantially equivalent to
that for which he would have been hired.

MODERN ELECTRIC CO.

Lucile R. Rosen, Esq., for the General Counsel.
Deborah Wilder, Esq. (Deborah Wilder & Associates), of Bur-
lingame, California, for the Respondent.
Bill Petros, Organizer, of San Mateo, California, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at San Francisco, California, on February 20, 1997.
On August 8, 1996, International Brotherhood of Electrical Work-
ers, Local 617, AFL–CIO, (the Union) filed the charge alleging
that Modern Electric Co. (Respondent) committed certain viola-
tions of Section 8(a)(3) and (1) of the National Labor Relations
Act.. The charge was amended on November 22. On November
27, 1996 the Regional Director for Region 20 of the National
Labor Relations Board issued a complaint and notice of hearing
against Respondent, alleging that Respondent violated Section
MODERN ELECTRIC CO. 95
8(a)(3) and (1) of the Act. Respondent filed a timely answer to the
complaint, denying all wrongdoing.
The parties have been afforded full opportunity to appear, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, and to argue orally. The parties waived the filing of briefs.
On the entire record, from my observation of the demeanor of
the witnesses, and having considered the arguments of the parties,
I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a sole proprietorship owned by George White,
with an office and principal place of business in San Mateo, Cali-
fornia. Respondent is engaged as an electrical contractor in the
building and construction industry. During the calendar year end-
ing December 31, 1995, Respondent purchased and received
goods and materials valued in excess of $50,000 from suppliers
located within California, each of which suppliers received these
goods and materials directly from points outside the State of Cali-
fornia. Accordingly, Respondent admits and I find that Respon-
dent is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The parties stipulated and I find that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
As stated above Respondent is an electrical contractor located
in San Mateo, California. In anticipation of a commercial project
for the Marriott Corporation, Respondent took out a classified
advertisement in The San Francisco Examiner for Sunday, July 7.
In this case, the General Counsel alleges that Respondent failed to
consider the resume of, and refused to hire, Bill Petros a paid
union organizer, because Petros was identified as a union member
and organizer. Further, the complaint alleges that Respondent
unlawfully interrogated employees regarding their union member-
ship or affiliation. Respondent denies the commission of any
unfair labor practices. Further, Respondent contends that it has no
animus against union members and has hired union members in
the past. It contends that it did not hire Petros because another
applicant had a more impressive work history. Finally, Respon-
dent contends that any questioning of employees was not coercive
and was motivated by legitimate business reasons.
Petros telephoned the Respondent’s San Mateo office the day
after finding the July 7 advertisement. He faxed his resume shortly
after telephoning the office. Petros applied for work under a prac-
tice known as “salting” whereby a union local authorizes its mem-
bers to work for a nonunion employer in order to organize the
employees of the nonunion employer. Petros testified that he
intended to organize Respondent’s employees and to demonstrate
to Respondent the advantages of hiring skillful union employees.
Petros applied for work as journeymen electrician and foreman.
He listed the Union as his present employer and as past employers
certain union construction contractors. Approximately a week
after Petros faxed his resume to Respondent, Petros suggested that
Merle Rogers, another union member, apply for work in response
to Respondent’s advertisement. Rogers was hired by Respondent
as a foreman.
After Petros learned that Rogers had been hired by Respondent,
he called Respondent to check on his own employment opportuni-
ties. Petros spoke with Bruce Taber, Respondent’s estimator-
project manager. Taber told Petros that he would check to find
out what had happened with Petros’ resume. Taber later called
Petros and said that he could not find Petros’ resume. Petros then
faxed Taber a second copy of his resume. Petros called back a
couple of days later and was told that the position had been filled.
Petros was not again contacted by Respondent.
Respondent placed advertisements for electricians in August
and September and Petros suggested that union members apply.
Employee Robert Alano called Respondent in August after being
advised by Petros that Respondent was advertising for electricians.
Alano spoke to Janet McEntee, Respondent’s office manager.
McEntee asked Alano about his work experience and whether he
was willing to travel. McEntee asked Alano, “Are you affiliated
with the union?” Alano expressed surprise at that question and
McEntee responded that she was just reading from the form and
that she had to ask these questions. In fact, McEntee was reading
from a form composed by White that asked, “Are you affiliated
with any unions?” Alano answered “yes” and McEntee marked
his response on the form. Alano was asked whether he had a
resume he could fax to Respondent. Alano said he did and faxed a
resume that same day. Alano was not called for an interview.
Employee C.D. Underwood also called Respondent seeking
employment in August. Underwood was also asked whether he
was affiliated with any unions. Underwood answered yes. Not-
withstanding Underwood’s affirmative response, White called
Underwood for an interview. White spoke to Ramona Under-
wood, C.D. Underwood’s wife. White asked Ms. Underwood
whether her husband was looking for work. He also asked
whether the Underwoods were new to the area. Ms. Underwood
stated that they traveled to different areas following the work.
White asked if Underwood was in the union and Ms. Underwood
answered that he was. White told Ms. Underwood that he had
problems with union employees quitting his jobs when work be-
came available in the union hiring hall. According to Ms. Under-
wood, White said he would call again. According to White, he
asked that Underwood call him back. White did not call again and
Underwood did not call White back.
George White, Respondent’s owner, testified that he has hired
approximately six union members during the past 6 years. The
position for which Petros applied was filled by a union member
named Merle Rogers. Respondent did not know Rogers was a
union member at the time it hired him. However, shortly after his
hire, Rogers began actively organizing for the Union. He wore
union shirts and insignia at work and attempted to recruit mem-
bers for the Union. Notwithstanding Rogers’ open union organiz-
ing efforts, he and White became friends. White took Rogers to
several football games and allowed Rogers to store certain of his
belongings in White’s garage. In September, Rogers voluntarily
left Respondent’s employ claiming that he was striking in protest
of Respondent’s hiring practices. White attempted to convince
Rogers to return to work and to finish the job for which he had
been hired. Rogers did not respond.
Bruce Taber, Respondent’s estimator and project manager, tes-
tified that he believed Rogers’ resume was more impressive than
that of Petros. Taber based his belief on the fact that Rogers had
worked as a foreman for several companies and that he had
worked for these companies for 2 years or longer. Taber testified
that this pattern showed that Rogers’ previous employers had
considered him a key employee and had tried to move him from
job to job so as to keep him with the companies. According to
Taber, Petros’ resume did not show the same pattern. He con-
cluded that Petros’ previous employers did not consider Petros to
be a key employee. Since he was hiring someone to “run the job”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 96
for 3 or 4 months, Taber felt that Rogers would be a better choice
than Petros.
In July, Respondent also hired an employee, Tim Hassan, who
had been referred by the State Employment Development De-
partment. Hassan had been referred by the State prior to Petros’
application for employment. Respondent hired only one of six
employees referred by the State.
In August, when Respondent again advertised for electricians, it
was in fact looking for apprentice electricians. In October, it hired
employee Terry Weiss. Weiss had an impressive resume. With
her application, Weiss submitted certain certificates and letters of
recommendation. Included in Weiss’ certificates were documents
showing that she had taken courses given by joint union-employer
programs. She also included a letter offering her the opportunity
to join another local of the IBEW.
White gave a pretrial affidavit in which he stated that he did not
receive Petros’ resume until after the position had been filled. At
the hearing, White had to admit that his pretrial statement was
false. I draw the inference that this was not an inadvertent error
but rather a misstatement in an attempt to avoid liability in this
case. Further, in his pretrial statement White stated that he had
attempted to call union applicant Alano but that no one answered
the phone and that there was no message machine. After Alano
testified that he had an answering service, White testified that he
must have had the wrong number because he got a recording that
the number was no longer in service. I do not credit White’s affi-
davit or trial testimony on this point. Rather, I find that White did
not call Alano for an interview.
An administrative law judge may conclude that a witness who
intentionally testified falsely to a material fact may have also testi-
fied falsely as to other facts. However, I am not required , in all
circumstances to consider such a witness unworthy of believe. I
may accept so much of White’s testimony as I believe to be true
and reject only such part as I conclude is false.
B. The Failure to Consider Petros for Hire
The General Counsel alleges that Respondent failed to hire or
even interview Petros because of his affiliation with the Union.
In Wright Line, Inc., 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
announced the following causation test in all cases alleging viola-
tions of Section 8(a)(3) or violations of 8(a)(1) turning on em-
ployer motivation. First, the General Counsel must make a prima
facie showing sufficient to support the inference that protected
conduct was a “motivating factor” in the employer’s decision.
Upon such a showing, the burden shifts to the employer to dem-
onstrate that the same action would have taken place even in the
absence of the protected conduct. The United States Supreme
Court approved and adopted the Board’s Wright Line test in NLRB
v. Transportation Corp., 462 U.S. 393, 399-403 (1983).
As the Board stated in Big E’s Foodland, 242 NLRB 963, 968
(1979):

Essentially, the elements of a discriminatory refusal to
hire case are the employment application, the refusal to
hire each, a showing that each was expected to be a union
supporter or sympathizer, and further showings that the
employer knew or suspected such sympathy or support,
maintained an animus against it, and refused to hire the
applicant because of such animus.

The General Counsel argues that this is a case where the Re-
spondent failed to even consider Petros for employment, i.e., dis-
criminating against the employee in the earliest stage of the hiring
process. As will be discussed more fully herein, the General
Counsel must establish that Petros’ resume was not considered for
reasons proscribed by the Act.
In this case, there is no dispute that Petros submitted a resume
and was not hired. In fact, Respondent filled the position by hir-
ing Rogers without even interviewing Petros. Petros’ resume
clearly indicated that he been employed as a union organizer for
over 3 years. Thus, it is undenied that Respondent’s agents knew
that Petros was a union organizer. Petros’ resume also revealed
over 27-year experience as a foreman and journeyman electrician.
It is unquestioned that the General Counsel must establish un-
lawful motive or union animus as part of his prima facie case. If
the unlawful purpose is not present or implied, the employer’s
conduct does not violate the Act. Abbey Island Park Manor, 267
NLRB 163 (1983); Howard Johnson Co., 209 NLRB 1122
(1974). However, direct evidence of union animus is not neces-
sary to support a finding of discrimination. The motive may be
inferred from the totality of the circumstances proved. Fluor
Daniel, Inc., 311 NLRB 498 (1993); Associacion Hospital del
Maestro, 291 NLRB 198, 204 (1988). The General Counsel has
produced no evidence that Respondent harbored any animus
against the union or hiring union members. Rather the record
reveals that Respondent hired union members in the past and hired
Terry Weiss during the same timeframe at issue here. White be-
friended union organizer Merle Rogers and attempted to convince
Rogers to return to the job after Rogers voluntarily left the job.
The General Counsel argues animus from the fact that employ-
ees were asked whether they were affiliated with any union.
However, there is no evidence of animus against those applicants
that answered affirmatively. Employee C. D. Underwood had
indicated he was affiliated with the IBEW and still received a
phone call from White. Weiss submitted a recommendation from
another local of the IBEW with her resume. She was hired by
Respondent. Merle Rogers was permitted to fill a 1-day vacancy
with a union member friend of his. The record is further devoid of
evidence of any antiunion statements by Respondent’s supervisors
or that the union was ever discussed with employees. There was
no evidence of Employer action after it learned of Rogers’ orga-
nizing. White invited Rogers to football games notwithstanding
the fact that Rogers was attempting to organize his company.
After Rogers “went on strike,” Respondent attempted to convince
him to come back to work.
The failure to hire Petros does not violate Section 8(a)(3) if it is
motivated by legitimate and substantial business reasons. NLRB
v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). If the unlaw-
ful purpose is not present or implied the employer’s conduct does
not violate the Act, even if it is unjustified or unfair. Howard
Johnson Co., 209 NLRB 1122 (1974). The issue is the em-
ployer’s motive and the burden is on the General Counsel, Laid-
law Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir.
1969). The General Counsel must establish an unfair labor prac-
tice by a preponderance of the evidence. See Wright Line, supra.
The General Counsel must show discriminatory motive or unlaw-
ful intent existed. NLRB v. Consolidated Diesel Electric Co., 469
F.2d 1016 (4th Cir. 1972); Clothing Workers v. NLRB, 564 F.2d
434, 440 (D.C. Cir. 1977). The Board requires proof of unlawful
motivation or animus as part of the General Counsel’s prima facie
case. Abbey Island Park Manor, 267 NLRB 163 (1983); Class
Watch Strap Co., 267 NLRB 276 (1983). Here there is no evi-
dence to rebut Taber’s testimony that Rogers was chosen because
his resume was more impressive than that of Petros. Taber chose
MODERN ELECTRIC CO. 97
Rogers because he believed Rogers had been considered a key
employee by his previous employers and would be better suited
for running the job than Petros.
The General Counsel argues that the false reason for the failure
to hire Petros, contained in White’s pretrial statement supports an
inference that the motive is an unlawful one which the Respondent
wishes to conceal. See Shattuck Denn Mining Corp. v. NLRB,
362 F.2d 466, 470 (9th Cir. 1966); Abbey’s Transportation Ser-
vices, 284 NLRB 698 (1987); First National Bank of Pueblo, 240
NLRB 184 (1979).
While White’s false statements do raise a concern, I find that
evidence offset by Taber’s credible reasons for choosing Rogers
over Petros for the position at issue. Taber’s explanation for hir-
ing Rogers instead of Petros was that he had been able to work as
a foreman on a regular basis. Rogers’ previous employers had
employed him for substantial periods of time. Taber believed that
such an employment record indicated that Rogers’ previous em-
ployers had viewed him as a key employee and had attempted to
find work for Rogers so that he would remain with their compa-
nies. Further, in view of the evidence of neutrality towards union
activity, I find White’s pretrial statement insufficient to support a
case of an unlawful refusal to hire.
Based on all of the above, I find that the General Counsel has
failed to establish a prima facie case that Respondent was moti-
vated by union considerations and acted upon union considera-
tions in failing to hire or interview Petros. An affirmative show-
ing that an employer lacks animus against the union constitutes a
good defense. Sun Coast Foods, 273 NLRB 1642, 1644 (1985);
Goodyear Tire & Rubber Co., 312 NLRB 674 (1993).
Assuming arguendo that a prima facie case had been estab-
lished the burden shifts to Respondent to establish that the same
action would have taken place in the absence of the employee’s
protected conduct. Thus, even assuming arguendo that the Gen-
eral Counsel had established a prima facie case, the totality of the
evidence preponderates in a finding of a failure to prove that Re-
spondent was motivated by unlawful union considerations in not
interviewing or hiring Petros.
C. The Unlawful Interrogations
The undisputed evidence shows that Respondent’s office man-
ager, following a form composed by White, routinely asked job
applicants whether they were affiliated with any unions. The
answers were then recorded on the form. The employees were not
given any explanation or reason for the question. Further, the
employees were not given any assurances that no reprisals would
be taken against employees with union affiliations. In these cir-
cumstances, employees could reasonably fear that an affirmative
response would adversely affect their job prospects. Accordingly,
I find that Respondent violated Section 8(a)(1) of the Act. GM
Electrics, 323 NLRB No. 14 (1997); Adco Electric, 307 NLRB
1113, 1116–1117 (1992).
CONCLUSIONS OF LAW
1. The Respondent, Modern Electric Co., is an employer en-
gaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union, International Brotherhood of Electrical Workers,
Local 617, AFL–CIO, is a labor organization within the meaning
of the Act.
3. Respondent has violated Section 8(a)(1) of the Act by in-
terrogating job applicants as to their union affiliations.
4. Respondent has not otherwise violated the Act as alleged in
the complaint.
[Recommended Order omitted from publication.]