Nelcorp

National Labor Relations Board - Board Decisions

Sep 21, 2000

332 N.L.R.B. 179 (N.L.R.B. 2000)

NELCORP 179
Nelson Electrical Contracting Corp. d/b/a Nelcorp
and International Brotherhood of Electrical
Workers, Local Unions 325 and 363, AFL–CIO.
Cases 3–CA–19035, 3–CA–19552, and 3–CA–
19067
September 21, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On April 21, 1997, Administrative Law Judge Steven
Davis issued the attached decision. The Respondent
filed exceptions and a supporting brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions3
and to adopt the recommended Order as modified.
The judge found, and we agree, that the General Coun-
sel met his initial evidentiary burden of showing that the
union affiliations of the applicants were a motivating
factor in the Respondent’s refusal to consider them for
hire and refusal to hire them. In this regard, we rely on
the fact that all of the employees who were refused per-
mission to file applications were wearing union insignia
at the time that they applied. We also rely on the judge’s
finding of animus as established by (1) the comments of
Foreman Alan Winters,4 who told an employee that the
Respondent did not want to hire “anybody union”;5 (2)
the comments of New York Project Manager Andrew
Stebner to employee Douglas Nelson advising him not to
talk to striking employees, or he would “get in trouble”;
(3) the fact that none of the applications in which the
applicants show a current, active union involvement was
considered; and (4) the Board’s prior finding of animus
in Nelcorp, 316 NLRB 625 (1995).6

1 On December 15, 1998, the Board granted a joint Motion to Sever
and Dismissed the Complaint in Case 3–CA–19788 pursuant to a non-
Board settlement agreement reached between the Respondent and
IBEW Local 26, AFL–CIO. Accordingly, the complaint allegations
regarding the Respondent’s Maryland jobsite are no longer before the
board, and the order and notice have been modified accordingly.
2 The judge found that the Respondent was obligated to offer striker
David Harageones a position based on his unconditional offer to return
to work on January 6, 1995. The judge concluded that the Respondent
failed to prove that he had been permanently replaced. The judge fur-
ther found that the Respondent violated Sec. 8(a)(1) and (3) of the Act
when, in mid-February, it unlawfully failed to recall David Harageones.
Neither the General Counsel nor the Charging Party argued that there
was a violation earlier, i.e., on January 6. Accordingly, we adopt the
judge’s findings and conclusions.
3 We agree with the judge that the General Counsel’s complaint alle-
gation concerning Anthony Salvatore is not barred by Sec. 10(b). As
the judge explained, Salvatore, who applied for work in October 1993,
again contacted the Respondent in May 1994. At that time he was told
that the Respondent still had his application on file and that he did not
need to update it. At no time was he ever expressly denied employ-
ment. Impliedly, he was told that his application was still under con-
sideration. His employment application therefore remained active
throughout the period of the Respondent’s implementation of the
unlawful hiring policy. See Great Lakes Chemical Corp., 298 NLRB
615 (1990).
4 The judge found that Alan Winters was the highest ranking repre-
sentative of the Respondent at the New York jobsite and that Winters
was the person whom the local union organizer, Stephen Rockafellow,
dealt with in his efforts to refer union employees. For example, in early
September 1994, Winters told Rockafellow that no employees were
needed. Again, in late September when Rockafellow arrived at the
jobsite with a number of Local 363 members seeking jobs, Winters told
Rockafellow that he did not need anyone, had no applications, and that
he had been instructed not to receive any applications. In December
1994, Winters accepted a job application and forwarded it to the Re-
spondent. Based on this conduct, it is reasonable to infer that he was an
agent of Respondent and would be aware of the Respondent’s hiring
criteria and would communicate his knowledge of an applicant’s union
affiliation to his employer. His knowledge of their union affiliations is
therefore attributable to the Respondent. Quality Control Electric, 323
NLRB 238 (1997). Given Winter’s apparent authority to deal with
employees applying for jobs at the New York jobsite, we may reasona-
bly attribute to the Respondent Winter’s statements concerning the
Respondent’s hiring policies. GM Electrics, 323 NLRB 125, 125–126
(1997). We therefore find it unnecessary to pass on Winter’s supervi-
sory status.
In adopting the judge’s finding of a discriminatory re-
fusal to hire, we also find that the applicants actually
applied for jobs and were qualified for jobs for which the
Respondent was hiring.7 Specifically, in September 1994,
the Respondent won a contract for work at a site in Lib-
erty, New York. The Union, upon learning this, sent its
organizer to the site to request job applications. Foreman
Alan Winters advised that he did not need any workers
and would not accept applications. Nevertheless, the
Respondent hired two unaffiliated journeymen electri-
cians in early September. In late September, despite be-
ing told again by Foreman Winters that he did not need
any workers, and would not accept applications, the Un-
ion submitted six job applications for qualified journey-

Based on the factors set forth by the judge, including, inter alia, that
Winters assigned work, made sure that employees were doing their
work, laid out work for electricians and directed them where to work,
Member Hurtgen, in agreement with the judge, would find that Winters
is a supervisor.
5 This comment is not alleged as unlawful.
6 In light of this evidence of animus, we find it unnecessary to rely
either on the receptionist’s remarks in a telephone conversation while
applicants John Schlott and Paul Schwatz were in the office or on the
timing of the Respondent’s use of subcontractor Radec.
7 In a refusal-to-hire case, the General Counsel has the burden of
showing that the Respondent was hiring, or had concrete plans to hire,
at the time of the alleged unlawful conduct; antiunion animus was a
motivating factor in the decision not to hire any of the applicants; and
the applicants had experience or training relevant to the announced or
generally known requirements. FES, 331 NLRB No. 20, slip op. at 4
and 7 (2000).
332 NLRB No.17
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 180
men electricians. Neither the Union nor the applicants
received any response. In early October, the Respondent
hired four journeymen electricians. None of their appli-
cations indicated any union affiliation. In early Novem-
ber, the Respondent advised another union affiliated ap-
plicant that it was not accepting job applications. In De-
cember, the Respondent placed an advertisement with the
New York Department of Labor for an experienced elec-
trician. Between December and February, while in pos-
session of numerous current union applications, the Re-
spondent hired three journeymen electricians with no
known union affiliation. In sum, during the period that
the Respondent advised the Union it had no openings, it
filled at least nine positions in New York for journeymen
electricians, while ignoring the applications of the nine
qualified union-affiliated journeymen electricians who
applied for jobs in New York. We find that this evi-
dence, together with the evidence of animus discussed
above, supports the judge’s finding of a discriminatory
refusal to hire.
We also find that the Respondent did not establish an
affirmative defense to the refusal-to-hire allegations un-
der Wright Line, 251 NLRB 1083, 1089 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), i.e., that the Respondent would have taken the
same action on the applications even in the absence of
the applicants’ union affiliations. In support of its de-
fense, the Respondent contended that, prior to the time
the union applicants applied, it had abandoned its policy
of receiving applications and chose to rely simply on
transfers of its current employees from other projects,
former employees, or “positive referrals from other
sources.” It also contends that it only wished to hire per-
sons proximately located to the jobsites in question. Like
the judge, we find no merit to these contentions, in light
of the evidence that the Respondent departed from its
purported “no applications” hiring policy and advertised
for journeymen in New York, hired individuals who
were not former employees, and hired without positive
referrals. With regard to the proximity-to-jobsite claim,
we note that Bill and Ron Gallagher, who had no appar-
ent union affiliation when they applied, were hired to
work on the University of Maryland jobsite, even though
they were located in New York; and the Respondent was
obviously not adhering to any proximity limitation when
it transferred employees from a project in one state to a
project in another.
We agree with the judge’s findings that the Respon-
dent’s hiring policy as applied here had a discriminatory
impact on union applicants. Because the issue of
whether that policy was inherently discriminatory was
not litigated, we disavow the judge’s findings to the ex-
tent that they may be read that way.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Nelson
Electrical Contracting Corp. d/b/a Nelcorp, Inc., End-
well, New York, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as modi-
fied.

1. Insert the following as paragraph 1(c).

“(c) Refusing to consider for employment and refusing
to employ the following:

Richard DiMaio Harold Doderer
Michael Ferranda Daniel Harageones
Richard McGinley Anthony Provenzano
Stephen Rockafellow Anthony Salvatore”
Herbert Spicer

2. In paragraph 2(c) change “22 discriminatees” to “9
discriminatees.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
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.

WE WILL NOT maintain in force and effect a hiring
policy whereby we will not accept written applications in
order to avoid hiring union applicants for employment.
WE WILL NOT fail and refuse to recall David Hara-
geones because of his activities in behalf of a labor or-
ganization.
WE WILL NOT refuse to consider for employment or
refuse to employ the following employees for employ-
ment:

Richard DiMaio Harold Doderer
Michael Ferranda Daniel Harageones
Richard McGinley Anthony Provenzano
Stephen Rockafellow Anthony Salvatore
Herbert Spicer

WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
NELCORP 181
WE WILL offer the individuals set forth above, em-
ployment in positions for which they applied or at-
tempted to apply or, if such positions no longer exist, to
substantially equivalent positions.
WE WILL make them whole for any loss of earnings
and other benefits that they may have suffered as a result
of the discrimination against them.
WE WILL recall David Harageones to his former posi-
tion of employment or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously en-
joyed.
WE WILL make him whole for any loss of earning
and other benefits suffered as a result of the discrimina-
tion against him.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to our unlawful fail-
ure to recall David Harageones, and of the unlawful re-
fusal to consider for employment and to employ the nine
discriminatees named above, and notify them in writing
that this has been done and will not be used against them
in any way.

NELSON ELECTRICAL CONTRACTING CORP.
D/B/A NELCORP
Thomas Sheridan and Robert Ellison, Esqs., for the General
Counsel.
Jeffrey Tait and John Domurad, Esqs. (O’Connor, Gacioch &
Pope), of Binghamton, New York, for the Respondent
Ellen Boardman, Esq. (O’Donoghue & O’Donoghue), of
Washington, D.C., for Local 26
Richard McPherson, of Binghamton, New York, for Local 325.
Stephen Rockafellow, of New City, New York, for Local 363.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. The following
charges and amended charges were filed and served in this
case. A charge and an amended charge in Case 3–CA–19035
filed on December 12, 1994, and March 27, 1995, respectively
by International Brotherhood of Electrical Workers, Local 325,
AFL–CIO (Local 325). A charge and an amended charge in
Case 3–CA–19067 filed on January 3 and April 20, 1995, re-
spectively, by International Brotherhood of Electrical Workers,
Local 363, AFL–CIO (Local 363). A charge and an amended
charge in Case 3–CA–19552 filed on August 10, 1995, and
February 8, 1996, respectively by International Brotherhood of
Electrical Workers, Local 325, AFL–CIO (Local 325). A
charge in Case 3–CA–19788 (designated Case 5–CA–25415)
filed on June 9, 1995, by International Brotherhood of Electri-
cal Workers, Local 26, AFL–CIO (Local 26) pursuant to which
the General Counsel issued an Order Transferring Case 5–CA–
25415 from Region 5 to Region 3, and designating it Case 3–
CA–19788.1
Based on the above charges and amended charges, Region 3
issued an amended consolidated complaint on February 12,
1996, which was further amended on May 16, 1996.2
The complaint alleges, essentially, that Nelson Electrical
Contracting Corp. d/b/a Nelcorp (Respondent) (a) maintained a
hiring policy pursuant to which it will not accept written appli-
cations, in order to avoid hiring union applicants for employ-
ment; (b) informed an employee that it would not hire union
members because they would create problems; (c) refused to
hire and/or refused to consider for hire 9 named employees in
1994, and 13 named employees in 1995; and (d) failed to recall
or reemploy its employee David Harageones.3
It is alleged that Respondent engaged in the discrimination
against the employees because those employees had, or Re-
spondent believed that they had joined, supported, or assisted
the Unions involved.
Respondent’s answer denied the material allegations of the
complaint, and asserted certain affirmative defenses. On June
25, 26, and August 19 and 20, 1996, a hearing was held before
me in Binghamton, New York.4
On the evidence presented in this proceeding, and my obser-
vation of the demeanor of the witnesses, and after consideration
of the briefs filed by General Counsel, Local 26, and Respon-
dent, I make the following5
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation, having its main office
and place of business at 2500 Watson Boulevard, Endwell,
New York, and doing business at various construction sites in
other States, has been engaged in the building and construction
industry as an electrical contractor performing mainly industrial
and commercial work. During the past year, Respondent has
provided services from its Endwell facility valued in excess of
$50,000 to other enterprises which are directly engaged in in-
terstate 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.
Respondent denies knowledge of the labor organization
status of Locals 26, 325, and 363. I find, based on the evidence
in the record, that the three Unions are organizations in which

1 Respondent’s answer admitted the service of the charges and
amended charges, but denied knowledge of the filing of those docu-
ments. My review of the original charges and amended charges estab-
lishes that all of them have been properly filed.
2 The original consolidated complaint was issued on April 21, 1995.
3 During the hearing, I granted General Counsel’s motion to dismiss
complaint allegations concerning Richard Anderson, Mark Edwards,
and Elliott Wagner.
4 Following the close of the hearing, Local 26 moved to admit cer-
tain documents into evidence pursuant to a procedure agreed upon
during the hearing. General Counsel, Local 26, and Respondent agree
to their admission in evidence, and I have received them as CP Exh. 2.
Respondent, however, does not concede their relevance.
5 General Counsel’s unopposed motion to correct the transcript in
certain respects is granted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 182
employees participate, and that they exist, in whole or in part,
for the purpose of dealing with employers concerning griev-
ances, labor disputes, and other terms and conditions of em-
ployment. In addition, the Board has found that Local 325 is a
labor organization. Nelcorp, 316 NLRB 625 (1995). I accord-
ingly, find and conclude that Locals 36, 325, and 363 are labor
organizations within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
This case involves the attempts of three local unions to ob-
tain employment from Respondent for the employees they rep-
resent. The jobsites are in New York and in Maryland.
Union members, and those seeking to become members
sought jobs with nonunion contractors. The Unions hoped to
organize the nonunion employers, and in that effort waived the
requirement prohibiting union members from working for non-
union companies. Pursuant to that policy, certain union mem-
bers, and others who sought jobs through the Union, applied for
work with Respondent.
General Counsel and the Unions allege that Respondent had
a predetermined policy not to consider for hire, and not to hire
any applicants referred by the Unions, and to avoid hiring, if
possible, any applicants who were union members. Respondent
argues that it considered for hire and hired any qualified appli-
cant, pursuant to its hiring policies, and that it did not discrimi-
nate against any applicant because of union affiliation.
The complaint alleges that Respondent discriminatorily re-
fused to hire and/or refused to consider for hire certain jour-
neymen electricians, beginning in June 1994. I have not consid-
ered in the discussion of those allegations any facts concerning
the hire of apprentices, laborers, or nonjourneyman electri-
cians.6
III. THE FACTS
A. The New York Jobsite
Union Applicants and Respondent’s Hiring
The complaint alleges that on June 12, 1994, Respondent re-
fused to hire and/or refused to consider for hire Daniel Hara-
geones, Anthony Salvatore, and Herbert Spicer, and that on
September 28, 1994, Respondent refused to hire and/or refused
to consider for hire Richard DiMaio, Harold Doderer, Michael
Ferranda, Richard McGinley, Anthony Provenzano, and
Stephen Rockafellow.
In October 1993, Anthony Salvatore, a member of Local
325, and a journeyman, visited Respondent’s Endwell, New
York office. He asked the receptionist if he could complete an
application for a job, and he was given one, which he filled out
and gave her. The application listed his union apprenticeship
training, and his work history, all of which was with union
contractors.
Herbert Spicer, a member of Local 325, and a journeyman,
testified that on April 3, 1994, he was given an application at
Respondent’s office, and the following day he submitted it with
a cover letter to the Company. The letter identified Spicer as a
union member. On April 13 and 18, Spicer called the office and

6 Hereafter, the term “journeyman” shall refer to journeyman electri-
cian, a skilled electrician.
said that he was available for work. He was told that no hiring
was being done at that time.
Daniel Harageones, a member of Local 325, and a journey-
man, testified that on April 10, he went to Respondent’s office,
asked for and received an application, and listed thereon his
union membership, union apprenticeship program, and his prior
employment, most of which were with union contractors. He
asked the receptionist if Respondent was hiring. She replied
that the Company had just obtained some contracts, would be
hiring soon, and that she would have the owner call. Thereafter,
Harageones called Respondent’s office frequently, each time
leaving his name and phone number with the receptionist. She
promised to return his call but he was not contacted.
In May 1994, Salvatore called Respondent and asked if he
could update his application. The receptionist responded that
they were no longer accepting applications. Salvatore explained
that he had already completed an application and simply
wanted to update it. She said that it would not be necessary,
since it would already be on file.
He was not contacted for a job. Thereafter, Salvatore noticed
a sign on the door stating that Respondent was not accepting
applications.
On about June 2, Daniel Harageones contacted Respondent,
and was told that the Company was not accepting applications.
He explained that his application was already on file, and that
he wanted to update it. The receptionist said that the Company
was not taking any applications, but that if his application was
on file, a representative would call. Harageones was not con-
tacted thereafter by Respondent.
On September 8, Respondent hired Michael Boyes. His ap-
plication, filed on September 2, stated that he had received
junior and master licenses following 4 years of training with the
Local 99, IBEW Electrical School in 1983, and worked for
Matco, a well-known union contractor, in 1986. Respondent’s
president, Mark Nelson, testified that he first became ac-
quainted with Boyes through their church activities, and he then
learned that he was an electrician, and through their conversa-
tions he was led to believe that Boyes was a union member.
Nelson knew that Project Manager Dean Rypkema sought to
hire an employee, and Nelson recommended his hire. Boyes
last worked in the electrical industry in 1986, and then left to
study for the ministry until his employment with Respondent.
On the same date, September 8, Respondent hired Michael
McCabe. The events leading up to McCabe’s hiring are as fol-
lows: McCabe had previously worked with Alan Winters at
Respondent’s jobsite in Liberty, New York. McCabe phoned
Project Manager Andrew Stebner and told him that he spoke to
Foreman Alan Winters at the Harris Hospital jobsite, and was
currently unemployed and seeking work. Stebner testified that
he was then thinking about hiring an electrician. Stebner called
Winters, and asked about his qualifications. Winters said that
McCabe had been a journeyman for a number of years, and had
worked for Ross Electric. Stebner then hired McCabe. At the
time that he hired him, his application was not available. Steb-
ner received the application after McCabe’s hire. The applica-
tion prominently indicates that McCabe participated in union
activities. It notes that he was a sergeant at arms for IBEW
Local 106, and his work experience lists no company names,
NELCORP 183
but bears the statement “all union experience, inquire Bernie
Merick, business agent.” 7
In mid-September 1994, Stephen Rockafellow, the organizer
for Local 363 who is also a journeyman, learned that Respon-
dent was performing work at Harris Hospital. He and John
Sager, another organizer, visited the site, introduced themselves
as union organizers to Job Foreman Alan Winters, and told him
that the Union had employees to refer to the job. They asked
when he would be hiring. Winters replied that no employees
were then needed, and he did not know when there ever would
be a need for workers.
On September 28, Rockafellow returned with Local 363
members Richard DiMaio, Harold Doderer, Michael Ferranda,
Richard McGinley, Anthony Provenzano, and Sager. Rockafel-
low told Winters that the men wished to apply for jobs, and
requested applications. Winters replied that he did not need
anyone, and had no applications. Rockafellow asked if he could
leave their names and phone numbers, and Winters refused,
saying that he had been instructed not to take any applications.
The Union apparently had blank application forms used by
Respondent, and the men went to the union office, where all of
them except Sager filled out applications. The applications
were sent to Respondent’s Endwell office with a cover letter
dated September 28, in which Rockafellow identified the appli-
cants as experienced journeymen and union members. The
letter and applications were sent by certified and regular mail.
The certified letter was returned, marked “refused.“ The Union
received no response to the mailing.
Also in September 1994, Rockafellow sent a letter to Re-
spondent, which stated that Respondent’s employee Michael
McCabe was a member of the Union who was involved in or-
ganizing Respondent’s employees. In October, McCabe went
on strike and picketed the jobsite. At the same time, union
member David Harageones was employed at the site. He had
been laid off by Respondent, and the layoff was alleged as an
unfair labor practice. In a prior proceeding, the Board dismissed
that allegation, but nevertheless Respondent recalled him to
work in September. Nelcorp, supra. He and McCabe picketed
the jobsite in October.
Employee Douglas Nelson, who was employed at the Harris
Hospital jobsite, testified that in early October, while Hara-
geones and McCabe picketed the jobsite, he was told by Steb-
ner that he should not speak to Harageones or McCabe because
he “could” or “would” get in trouble, and also that he should
stay away from them. Nelson further stated that in September,
he was instructed by Winters that when he picked up material
with Harageones in Respondent’s truck, he (Nelson) should not
permit Harageones to read any paperwork in the truck. Nelson
was also asked by Stebner, how long he believed that Hara-
geones would “last” on the job. Nelson did not reply, and Steb-
ner then said that he did not believe that Harageones would last
very long.
Nelson gave uncontradicted testimony that prior to his quit-
ting his employment in late September or early October 1994,

7 Respondent states that Jason Shaw was hired on September 12 as a
journeyman, but Respondent’s record of hires, GC 22, and Shaw’s
application set forth that he was a laborer.
he heard Winters tell Stebner that he (Winters) would rather
hire Respondent’s employees from Binghamton, than hire any-
one in Sullivan County, “because of the union,” and that they
did not want “to hire anybody union.”
Harageones testified that on October 3, employee Nelson re-
ported that Stebner advised him not to talk to Harageones be-
cause it could cause some problems for him. Harageones told
Stebner that he was not happy that Stebner told workers not to
talk to him and McCabe. Stebner replied that Harageones is not
to discuss anything other than the job.8 Stebner testified, deny-
ing that he said that to Harageones, adding that he told him that
he could speak to any employees about anything at any time.
On October 7, Rypkema hired Martin Shaw. His application
does not list any union affiliation. Although Nelson testified
that he believed that Shaw worked for Respondent previously,
the only work experience listed on his application is that he
owned two electrical companies during his 10 years of experi-
ence.
On October 10, Respondent hired Bruce Streeter. His appli-
cation does not list any union affiliation.
On October 17, Rypkema hired Gary Sprouse, and assigned
him to the Nestle project, which is also located in New York.
His application, which does not list any union affiliation, lists
as a reference Randy Spafford, a journeyman hired by Respon-
dent in October 1992.
On the same day, Respondent hired B. Clark to work at the
Nestle project.
On November 7, Herbert Spicer inquired about a job, and
was told that no applications were being accepted. He had sub-
mitted an application in April.
Andrew Stebner, Respondent’s project manager in New
York, testified that, in early December 1994, he was seeking to
hire electrician’s helpers, not journeymen. He stated that he
asked his office manager to contact the New York State De-
partment of Labor employment service to see if any helpers
were available for work in the Sullivan County area.
As a result, an advertisement was placed through the em-
ployment service’s computer job listing service for the month
of December. The ad stated that Respondent sought an “experi-
enced commercial electrician” for full-time-work, for a job
lasting about 4 weeks at a salary of $12 per hour, but “wage
could be higher depending on experience.” Applicants were
directed to call Stebner for an appointment.
Stebner testified that the ad was placed in error, since an
electrician’s helper, and not an electrician, was sought. Never-
theless, Stebner conceded that the $12 wage set forth in the ad
was that for an electrician, not a helper. In any event, Stebner
testified that he hired a helper, Michael Smith. Respondent’s
records show that Smith, a laborer, was hired on December 12.
In contrast, it must be noted that President Nelson testified that
one journeyman was hired pursuant to the ad. I cannot credit
Stebner’s testimony in this regard. The ad is quite specific as to
Respondent’s needs for a journeyman, and Nelson’s testimony
confirms that at least one journeyman was sought, and hired
8 That testimony was offered only as background since Respondent’s
statements have been remedied by a Board settlement agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 184
pursuant to the ad. Accordingly, I find that Respondent adver-
tised for journeymen in the month of December.
On December 5, David Russo was hired. His application
states that he applied for a job as an electrician, and Respon-
dent’s list of employees compiled for this hearing states that he
was a journeyman, but his application states that he was last
employed as an equipment operator, and President Nelson testi-
fied that based on that information, he was not a journeyman.
On December 7, Eric Liepens, was hired by Respondent.
Stebner hired him on the phone, and knew him as a friend of
Winters, who was listed on his application as a reference.
Liepens completed his application after he was hired.
On about December 10, John Schlott and Paul Schwatz,
members of Local 363, and journeymen, went to Respondent’s
New York office, and asked for applications. The receptionist
directed them to look at the sign, which stated that no applica-
tions were being accepted. Schlott then told her that they were
from Sullivan County, and they heard that the Company was
looking for employees at the Harris Hospital job.
The receptionist then told them to wait, and not leave, as Re-
spondent was seeking employees in Sullivan County. She said
she would call her boss, and that they would be interviewed
after lunch. The two men went to lunch, and when they re-
turned, the receptionist called “him,” and while on the phone
looked at them, saying into the phone “uh-huh, maybe, could
be, possibly” and then hung up. She then told the two men that
“the boss” could not see them today, and that they would be
called. She took their names and phone numbers. They did not
reveal their union affiliation during the visit, and they were not
called by Respondent thereafter. However they called for work
the next week and were told that no employees were needed.
Four days later, on December 14, Francis Williams was hired
by Respondent, and was assigned to the Olean jobsite. Nelson
testified that he lived in Olean, and that Respondent gave pref-
erence in hiring for that job to employees who lived in that
area, after first considering transfers, and its employees who
were receiving unemployment insurance. Williams’ application
does not list any union affiliation, but bears the notation “Temp
4–6 wks.” In fact, Williams worked a total of 5 weeks, and was
laid off. Nelson denied knowing who made that notation, and
stated that Williams was not hired as a temporary employee.
On December 15, Rockafellow went to the jobsite with his
September 28 letter, the six applications, and the advertisement.
He told Winters that he understood that Respondent was adver-
tising for electricians. Winters replied that he was not aware of
that. Rockafellow answered that the six applicants were still
available for work, and he gave the applications to Winters,
who said that he would send them to the office. Two weeks
later, Winters told Rockafellow that he had sent the applica-
tions to Stebner. The Union received no response to the
applications.

One month later, Respondent engaged Radec Corp., a nonun-
ion electrical subcontractor, to perform electrical installation
work at the Harris Hospital project. Radec worked at the jobsite
from mid-January to mid-February 1995. From 2 to 5 Radec
electricians worked full time, and occasionally overtime for a
total of about 24 days. Stebner and Nelson testified that Re-
spondent used Radec rather than hiring employees at that time,
because they were needed for a temporary assignment, lasting 4
to 6 weeks, at a time when the project was about 50-percent
complete. Subcontracting made it easier to “manage” Respon-
dent’s employees since they would not have to put the new
hires on and off Respondent’s benefit plans during their short-
term employment. Radec had been used by Respondent in the
past, on the Carousel Mall project, which took place in about
1990.9
As set forth above, William Gallagher, was employed by Re-
spondent in 1990 in Watertown, New York, for about 7 months,
until December 1990. His foreman was Stebner. On February 2,
1995, Stebner phoned Gallagher and offered him a job. He had
had no contact with Stebner since late 1990.
Stebner testified that he called Gallagher because he recently
met an acquaintance who had employed, and then laid off Gal-
lagher, and he believed that Gallagher was available for work.
Stebner hired Gallagher on the phone and told him to report to
the New York office. When he arrived, he saw the sign, which
stated that no applications were being accepted. He asked the
receptionist about the sign, and mentioned that Stebner had
called him. The receptionist told him that the sign did not apply
to him since she knew him and knew that he was a hard worker.
He was given an application, which he completed, and an em-
ployee handbook. The next Monday he reported to work at the
St. Bonaventure job in Olean, New York, and worked there for
1 week.
In mid-February, Gallagher was sent to the Harris Hospital
job and worked there for 1.5 months. In mid-March, he was
laid off for 2 weeks, and then sent to work in Maryland, as set
forth, infra.
On July 10, Respondent hired Joseph Biesecker as the last
journeyman to work in New York. He was employed for a total
of 7 weeks. He had previously worked, in 1985, for a company
owned by Mark Nelson.
B. David Harageones
Harageones has been a member of Local 325 for 10 years. In
a prior Board proceeding, Nelcorp, supra, it was alleged that
Harageones was unlawfully laid off by Respondent because of
his union activities. The Board dismissed that allegation, but
found that Respondent violated Section 8(a)(1) of the Act by
prohibiting him from wearing a hat bearing the union’s logo.
The administrative law judge’s decision was issued on Septem-
ber 21, 1994. Following that decision, notwithstanding that
Respondent was under no obligation to recall or reinstate Hara-
geones, Respondent offered him a job at the Harris Hospital
site, which he accepted.
Harageones began work on about September 26. As set forth
above, on October 3, he was told by employee Douglas Nelson
that Stebner advised him not to speak to him or McCabe, and
he (Harageones) was told by Stebner that he should only dis-
cuss job matters. He immediately confronted Stebner and told
him that he was angry that Stebner told Nelson not to talk to
him.
9 Respondent also used union subcontractor John Kelly & Sons for
its high voltage work. However it was brought out that the only con-
tractors performing such specialized work are unionized.
NELCORP 185
One month later, on November 7, Harageones began a strike,
which he characterized as an unfair labor practice strike, and so
informed Respondent by letter, which was not produced at the
hearing. Union organizer McPherson sent a letter to Respon-
dent on December 2, advising it that Harageones is engaged in
a “protected lawful dispute” and is protesting the unfair labor
practices committed by the Company. President Nelson testi-
fied that Harageones went on strike.
On January 6, 1995, Harageones presented a letter to Re-
spondent, which stated that he has decided to end the unfair
labor practice strike, and offered to unconditionally return to
work under the same terms as he enjoyed before the strike.
On January 10 or 11, Harageones called the office and spoke
to Dean Rypkema, Respondent’s official, advising him that he
was still unemployed and seeking work. Rypkema replied that
there is a lot of work, but he did not know whether he would
employ him because he quit his employment. Rypkema said
that he would have to check with company locations across the
country to see if a job was available for him. Harageones in-
quired about the Harris Hospital job, and Rypkema said that
Respondent did not need any more employees there.
A few days later, Harageones phoned Respondent and was
told by Purchasing Agent Don Webber that a job was available
in Olean, New York, which was for a couple of weeks. That
jobsite was about 3.5 to 4 hours away from Harageones’ home.
Harageones replied that he wanted a position equivalent to the
one at Harris Hospital. Webber asked if he was refusing the
Olean job. Harageones answered that he was not but he wanted
an equivalent position, in which he could be home each night
with his family. Webber responded that he could only speak
about the Olean job.
On February 6, Harageones phoned Respondent, and told
Rypkema that he was still looking for work. Rypkema replied
that no work was available, and that the Olean job was filled.
On April 20, Harageones called Respondent and told the sec-
retary that he was available for work, and would accept any
position offered. He gave her his name and phone number, and
asked her to give that message to Rypkema.
Harageones called Respondent “numerous” times thereafter
but never spoke to Rypkema. Each time he left his name and
phone number and said that he was seeking employment. In late
May 1996, Harageones phoned Stebner and told him that he
was still looking for work. Stebner replied that he could not
help him.
C. The Maryland Jobsite
Union Applicants and Respondent’s Hiring
The complaint alleges that from January through May 1995,
Respondent refused to hire and/or refused to consider for hire
Tyrone Jackson, Thomas Gough, Kelly Simmons, Thomas
Barber, James Camba, John Kirscht, Michael Lee, John Mudd,
James Rapczynski, David Rohr, Joseph Ruiz, Monte Brown,
and Steve Williams.
In January or February 1994, Charles Graham, the Local 26
organizer, became aware that Respondent had obtained a con-
tract to perform electrical work at the University of Maryland
Plant Sciences Building.
In late April, Local 26 began an informational picket line
with signs stating that Respondent was unfair, and did not have
a contract with Local 26. The picketing, which was sporadic
until June, became a daily picket line in that month, and contin-
ued through November 1994.
On May 25, Graham sent a letter to Daniel Gambino, Re-
spondent’s Maryland project manager and vice president. The
letter, which was addressed to Respondent’s Hanover, Mary-
land office, informed Gambino that Local 26 was available to
supply experienced journeymen electricians and apprentices to
work at the jobsite. The letter notified Gambino that he would
be speaking to Respondent’s employees about being repre-
sented by Local 26.
Not having heard from Gambino, Graham sent another letter
on June 7, again offering to supply employees for the project.
Graham received no response to either letter.
In late July or early August, Graham, wearing a Local 26
jacket, saw Gambino and Job Foreman William Tyler at Re-
spondent’s job trailer. Graham testified that he asked Gambino
if Respondent was hiring electricians and Gambino replied that
he had to file an application at the company office. Graham
then said that he was a Local 26 organizer, to which Gambino
replied that the Company was not taking applications. Graham
asked when applications would be accepted. Gambino replied
that “all you union guys think that I have a crystal ball and
know when I’m going to be hiring.”
Gambino conceded that Graham at that time asked if Re-
spondent was hiring, and wanted to fill out an application.
Gambino testified that he “ignored” Graham. Gambino admit-
ted receiving letters from Graham, but did not respond because
he was not hiring at that time, and he was preoccupied with the
projects which were ongoing.
Gambino testified that on November 4, 1994, he hired jour-
neyman Kenneth Paul based upon Tyler’s recommendation.
Tyler told him that Paul used to work with a company that was
unionized, and that he had some affiliation with a union.
John Finn, a member of New York Local 325, testified that-
just prior to Thanksgiving 1994, he appeared at the jobsite
trailer, and asked Gambino and Project Manager Paul Campbell
if they were hiring. A sign on the trailer said that no applica-
tions were being accepted. They asked about his experience,
and he said he had been working in Binghamton, giving them
the name of a nonexistent contractor. He did not tell them the
name of the contractor, Gleason, for which he had been work-
ing since that company was a well-known union contractor.
Gambino asked if Finn heard of several contractors, which
he named. Finn denied knowing of those companies. They were
union contractors. Gambino told Finn that Respondent is a
“merit shop,” and that they would be hiring 10 people after
January 1. Gambino took his name and phone number.
On December 21, Graham sent another letter to Gambino,
again stating that the Union has qualified employees seeking
work, and requesting Respondent’s job qualifications and ap-
plication forms. No response was received.
On December 27, Gambino hired Thomas Wilson. Wilson’s
application stated that he worked for Fischback and Moore, a
union company, and also contained a 1982 certification of
completion of the joint apprenticeship program, which is run by
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 186
the IBEW and the electrical industry. His most recent employ-
ment was with Becon, a company whose union affiliation was
not known to Gambino.
Tyrone Jackson, a Local 26 member and journeyman, stated
that, upon Graham’s advice he visited Respondent’s office in
January 1995, wearing a Local 26 shirt.10 He saw a sign which
stated: “We are not accepting any applications for employ-
ment.” He nevertheless entered the office and asked the recep-
tionist for a job application. She asked who sent him. He said
he was just “wandering around.” She refused his request.
On January 23, Respondent hired John White. Campbell tes-
tified that he knew White before hiring him, since another em-
ployee, who worked for Respondent at its Kenner Army pro-
ject, recommended him. Campbell asked his secretary to call
White’s former employers. I cannot accept Campbell’s testi-
mony that White’s former employers, B E & K Construction,
and S W & B Construction were union contractors, since
Campbell received such information from his receptionist, and
not first hand. In addition, Union Agent Graham testified that
those companies were nonunion. Campbell also testified that he
knew that another of White’s prior employers, Fischback &
Moore, was a union company. I accept that testimony. Gam-
bino also gave positive testimony that Fischback was a union
company. White last worked for Fischback in 1990.
The following day, January 24, Respondent hired Francis
Hardesty. Gambino stated that he hired Hardesty upon a rec-
ommendation by employee Tom Wilson who received a bonus
for the successful recommendation. Hardesty’s application
notes that he had 4 years’ training at the Local 26 trade school.
Gambino stated that he was aware of Hardesty’s union affilia-
tion at the time he hired him. Gambino conceded that at the
time of hire, Respondent was not taking applications for em-
ployment. Union official Graham testified that Hardesty was a
member of Local 26 in about 1976, but had not been a member
since that time.
Less than 1 week later, on January 30, Gambino hired An-
thony Rosasco. Nothing on his application indicates a union
affiliation. According to Respondent’s records, he worked from
February to November 1995, when he was laid off.
On February 7, Graham, and Jerry Lozupone, a Local 26
business representative, went to Respondent’s office with un-
employed union members Thomas Gough and Kelly Simmons.
They all wore Local 26 shirts. The sign that Respondent was
not accepting applications was still posted.11 The men asked the
receptionist if they could complete applications for employ-
ment. She replied that the Company was not hiring or accepting
applications.
Graham asked Gambino, who was present at the time, if they
could complete applications. Gambino refused his request,
stating that the Company was not hiring. Graham persisted,
saying that since Respondent was on the job a long time, it
appeared that it should be hiring now. Gambino again said that
he was not hiring. Graham asked how Respondent did its hir-
ing, and asked for application forms. Gambino replied that it

10 The union shirts bore a readily identifiable IBEW logo.
11 Whenever Graham visited the office thereafter the same sign was
posted.
was none of Graham’s business how hiring was performed, and
refused to provide applications. Graham gave Gambino his
business card, and asked him to call when he needed employ-
ees.
Three days later, on February 10, Gambino hired Jeffrey
Marsh. Nothing on his application refers to a union affiliation.
He worked about 1 month.
On February 14, Graham sent a letter to Gambino advising
that Local 26 had an “active organizing campaign in progress,”
and that his employees would be solicited by volunteer organ-
izers and union members.
On February 16, Gambino hired Joseph Harmon. He was re-
ferred by his brother Jim Harmon, a journeyman, who had been
employed by Respondent since September 1993. Joseph
Harmon’s application does not list any union affiliation.
On March 22, Bruce Messinese, was hired by Gambino. His
application and resume do not list any union affiliation. He
worked for Respondent for 10 months, until December 1995.
Five days later, on March 27, Gambino hired Brian Poe. He
worked for Respondent for 9 months. Nothing on his applica-
tion or resume indicates that he was affiliated with a union.
William Gallagher was employed by Respondent at its New
York jobsite in February and March 1995. Following a layoff
of 2 weeks, he was told that work was available in Maryland.
He called Gambino, who he had known from his employment
with Respondent in 1990. Gambino asked his qualifications,
and hired him. Gallagher began work in Maryland on March
29. He had no union affiliation at the time of his hire.
On April 3, Robert Helms, was hired by Gambino. His appli-
cation does not list any union affiliation.
On April 6, Graham again visited Respondent’s office, with
unemployed union members Thomas Barber, James Campbell,
John Kirscht, Michael Lee, John Mudd, James Rapczynski,
David Rohr, and Joseph Ruiz. They all wore union shirts and
hats. Graham told the receptionist that they were present to
apply for jobs. She replied that the Company was not hiring at
that time, and not accepting applications. Graham asked for,
and received permission to write a list of names, addresses, and
phone numbers of those present. He asked, and she agreed that
when hiring was undertaken, they would be called. Graham
mentioned that the men were all qualified journeymen.
Four days later, on April 10, John Gianotti, was hired by
Gambino. His application and resume do not indicate that he
was affiliated with a union, and his current employer was set
forth as B E & K, which was a nonunion company. His resume
lists as a reference John Ey, a current employee of Respondent
who was hired in November 1993, and worked for it at Mary-
land jobsites.
On the same day, April 10, Ronald Gallagher was hired upon
a recommendation from his brother, William, who had begun
work on March 29. Ronald had worked for Gambino at another
job in 1990. Gambino called him, told him that he remembered
him from the prior job, and hired him.
On April 12, Isaac Barrett went to Respondent’s jobsite
trailer at union official Graham’s suggestion, and asked em-
ployee Scott Lehet about a job. Lehet phoned William Tyler,
the job foreman, and according to Barrett, Lehet may have been
joking but told Barrett, before Tyler arrived, that the Company
NELCORP 187
would not hire anyone from the union because they believed
that doing so would “cause problems for the job.” Although
Barrett testified that he did not know if Tyler was present when
Lehet made that comment, it is clear that he was not because
this conversation occurred when Lehet was calling Tyler on the
radio, and thus Tyler was not present. Employee William Gal-
lagher stated that he was present during a similar conversation
between Barrett and Lehet which occurred 2 days after Barrett
was hired.
When Tyler arrived at the trailer, Barrett told him that he
was new to the area, seeking work, and wanted to complete an
application. Tyler replied that the Company was not hiring.
Barrett handed Tyler his resume, which listed all nonunion
contractors, and asked for an application. Tyler kept the re-
sume, gave him an application, and said that he would call him
in a day or two.
The following day, April 13, Barrett called Tyler, and asked
if he looked at his resume. Tyler said he had and that Barrett
would be hired. In fact, Tyler spoke with Gambino about Bar-
rett’s qualifications and resume. Tyler recommended Barrett’s
hire, and Gambino agreed. Tyler asked Barrett to report for
work the following Monday, April 17. Barrett worked on the
project for 1 year. When he was laid off he was offered a posi-
tion in Virginia, but rejected the offer. At the time of his inter-
view and hire, Barrett was not a member of Local 26, and did
not mention the fact that he was referred by the Union.
John Finn, who as set forth above, testified that he visited the
jobsite in November 1994, and was questioned concerning his
prior employment, had not been contacted by Respondent, and
on April 14, 1995, he again visited the jobsite. Campbell told
him that Respondent was not accepting applications, and had
just hired six men.12 Campbell asked if he contacted Respon-
dent’s main office in New York. Finn said that he had not.
Campbell gave him the address and phone number.
On May 15, Timothy Shiflett, was hired by Gambino. Noth-
ing on his application indicates that he was affiliated with a
union.
On May 17, Monte Brown and Steve Williams, union mem-
bers and journeymen, visited Respondent’s office, wearing
union shirts. They asked the receptionist to speak to someone
about a job, for permission to file an application, and to leave
their names and phone numbers. Their requests were denied.
On May 30, Randall Foster, was hired by Respondent.
Campbell testified that during his interview of Foster, Foster
told him that his prior work involved the shutdowns of nuclear
plants and paper mills. Foster identified the contractors, who
Campbell knew to be union companies. Campbell then hired
Foster. Foster’s application noted that he had 20 years’ experi-
ence, but it did not list any companies for which he had
worked.
In late May or late June, William Gallagher recommended
Neal Dupont for hire. Gambino called him, but he was not
hired.
On July 31, Earl Burdette, was hired by Gambino, who testi-
fied that he was asked by the foreman for a union insulation

12 In fact, six men had been hired during the period March 22 to
April 10, 1995.
company at the jobsite to consider hiring Burdette. Gambino
interviewed Burdette and hired him. Gambino stated that he did
not know whether any of the companies listed on Burdette’s
application were organized.
On August 24, Oscar Cavin, was hired by Respondent. His
application does not list any union affiliation.
On August 30, Finn went to Respondent’s New York office,
and told the receptionist that he was seeking work, and had
been referred by Campbell and Gambino. The receptionist told
him to leave his name and phone number, which he did. There-
after, Finn was not contacted by Respondent. He never men-
tioned his union affiliation to any company representative. Both
Campbell and Gambino deny speaking with Finn at any time.
On October 2, Billy Boutwell, was hired by Gambino. His
application lists as a reference employee Tom Wilson, and does
not mention any union affiliation.
On December 5, Graham sent a letter to Gambino, advising
him that Local 26 was engaged in an “active” organizing cam-
paign, and that employees Isaac Barrett and William Gallagher
would be speaking to their coworkers in an effort to interest
them in representation by that union.
On February 19, 1996, Richard Maines, was hired by Gam-
bino. His application stated that he worked for 18 years for a
company, which was affiliated with Local 26. Gambino looked
at his application while interviewing him. His application
shows that he last worked for that union company in 1990, and
had worked since then for two other companies whose union
status was not testified to.
Gambino testified that he hired employees with known union
affiliations. Thus, in July 1993, Scott Lehet was hired. Lehet
worked with Local 26, but Gambino was aware that Lehet was
outspoken in his opposition to unions. In September 1993, Re-
spondent hired Jim Harmon, who was known to be an appren-
tice with Local 26. In November 1994, Gambino hired Kenneth
Paul. Gambino was told by Tyler that Paul used to work with a
unionized company.
Gambino testified that he was not aware of any employee he
hired since January 1995, other than Maines, whose application
reflected that he was a union member or was working for a
union contractor.
Payroll records establish that Respondent employed subcon-
tractor Bopat Electric Co. as a subcontractor to perform work at
the University of Maryland jobsite. Such work took place each
week from March 5 through May 21, 1996. From five to eight
Bopat electricians, who worked under Respondent’s supervi-
sion, were employed for varying hours each workday during
that period of time.
D. Evidence of Manpower Shortages at the Maryland Project
On February 29, 1996, Curtis Harris, the vice president of
Tompkins Builders sent a letter to Respondent, in which he
refers to previous correspondence in which he requested that
Respondent increase its manpower. In response to the prior
letters, Gambino advised that Respondent would increase its
personnel by six people on February 26. He advised Gambino
that six would not be adequate for Respondent to “keep up with
the pace of the project,” and he told Gambino that even with the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 188
six men, Respondent would have to work Saturdays to avoid
delaying the progress of the job.
Harris’ letter continues that when the six additional men did
not appear by February 28, he phoned Respondent’s office and
warned that it would be held responsible for all damages if the
project was not completed by May 25. Also on February 28,
Gambino told Harris that he was attempting to obtain additional
manpower. Harris warned that Respondent’s work on the pro-
ject “was falling further behind” and that Harris could not let
the project be delayed while Respondent “searched” for addi-
tional personnel. Also that day, Harris was informed that Gam-
bino “located another source of manpower” and that five men
would be at the jobsite on February 29. Only four arrived. Har-
ris concluded that he considered Respondent’s “manpower
levels to be clearly inadequate to prevent serious project delay.”
Harris suggested that Respondent work 10-hour shifts 6 days
per week “to overcome your current and past delays.”
Respondent’s president, Nelson, replied by letter of March 1,
conceding that “we agreed to bring in some additional men to
help you accelerate the project and subsequently failed to get
them on the day promised,” but noted that he believed that
Respondent’s progress at the site has been equivalent to the
progress of the overall job.
Thereafter, in a series of communications between May 28
and August 12, Tompkins accused Respondent of not having
adequate manpower and supervision on the job, and failing to
meet deadlines for the completion of its work, and threatening
to assess liquidated damages against it. In response, Respon-
dent asserts that it always met its deadlines, but that Tompkins’
mismanagement of the project, and failures of other trades to
complete their work hampered Respondent’s progress in its
work.
Employee William Gallagher testified that in mid-June 1995,
he heard Gambino tell Tyler that there might be a need for
more employees. Tyler responded that he did not want to hire
employees only for a couple of weeks and then lay them off.
E. Respondent’s Hiring Policies
Respondent’s president, Mark Nelson, testified that in early
1994, he directed that signs be placed in all its offices and job-
site locations, which stated that “we are not accepting any ap-
plications for employment.” Prior to that time, Respondent
accepted applications for employment. Nelson stated that the
decision to place the signs was not motivated by a desire to
avoid union applicants.
Rather, the decision was made because Nelson believed that
the receipt and filing of applications was not “productive” in
that the applications became stale quickly if they were not fol-
lowed up within 1 or 2 weeks, and the applications of those
who were qualified were of no use if not followed up quickly
because they usually found jobs elsewhere. Further, Respon-
dent’s Endwell, New York office is located near an IBM facil-
ity which had laid off many employees recently, and many
unqualified applicants had applied for work, which was becom-
ing a “bother.”
Respondent’s hiring policy consists of the following: (a)
there must be a need for employees, and Respondent must be
hiring; (b) other jobsites are checked to see if employees can be
transferred to the job at which workers are needed; (c) employ-
ees who were laid off and receiving unemployment insurance
are contacted to see if they are available for work; and (d) in-
quiries are made among Respondent’s employees, and at the
jobsite to see if anyone knew electricians looking for work in
the area. If the prospective employee is referred by someone
who can vouch for his work and character and give a “positive
referral,” he would be seriously considered for employment.
Respondent offers a monetary recruiting bonus to its em-
ployees if they (a) recommend a personal acquaintance who is
seeking work and (b) the person is hired.
Gambino testified that Respondent hires on a referral basis,
and although Union Agent Graham was referring employees to
it, he (Gambino) must know and trust the referring party. Since
Gambino did not know Graham, he did not know that the elec-
tricians he referred were qualified. Gambino conceded that he
knew that the employees Graham referred were union mem-
bers, and he also thought that if he hired them they would at-
tempt to organize his employees. Nevertheless, Gambino in-
sisted that his hiring decisions were not made in order to avoid
unionization of the Company. He stated that he has hired union
affiliated employees in the past, and seeks only employees who
are willing and able to work.
Gambino explained his hire of Isaac Barrett upon the basis
that Barrett appeared at the jobsite at the right time. Tyler re-
viewed his resume there, spoke to Gambino about his qualifica-
tions, and recommended his hire. Gambino conceded that he
hired Barrett notwithstanding that Barrett was not a former
employee, and had no referral, and no contact with anyone in
Respondent.
Project Manager Campbell testified in this connection that in
order to trust such a referral, it must be from someone he knew.
In this connection workers who occasionally appeared at the
jobsite unannounced, who would be considered for employ-
ment if they arrive at a time when Respondent is seeking help.
IV. ANALYSIS AND DISCUSSION
A. The Supervisory Status of Tyler and Winters
The complaint alleges, and Respondent denies that William
Tyler and Alan Winters are statutory supervisors.
Mark Nelson, Respondent’s president, testified concerning
its hierarchy. Directly below the president, and reporting to him
are Respondent’s project managers who are in overall charge of
the various jobsites at which the Company performs work.
Those project managers are Paul Campbell, Daniel Gambino,
Dean Rypkema, and Andrew Stebner. Their responsibilities
include managing the projects, developing budgets, staffing the
job, purchasing materials, and scheduling the work.
The next level of authority is the job foreman. The foreman
is a journeyman who is selected, according to Gambino, on the
basis of the technical nature of the project, and the availability
of personnel qualified to act as foreman. The person best able
to act as foreman, considering the complexity of the work to be
performed, is assigned to the position. Campbell added that the
foreman is selected based upon his experience, knowledge, and
leadership ability. A journeyman may be a foreman on one job,
and a regular worker on the next job.
NELCORP 189
The foreman works under the direction of the project man-
ager, and ensures that the project is performed the way the pro-
ject manager directs. The foreman makes sure that the electri-
cians have the material they need, and that they are performing
their assignments. The foreman coordinates the progress of the
job with the project manager. Gambino testified that the fore-
man is in charge of day-to-day productivity, scheduling, and
coordination with other trades, and makes sure that the electri-
cians have work to perform. The foreman makes up the daily
work schedule, and the project manager together with the fore-
man “works out” the weekly schedule. Campbell stated that the
foreman is responsible to “implement” the work schedule.
The personnel files of Tyler and Winters stated that they
both attended supervisors’ conferences on planning in the fall
of 1994.
The foreman receives an additional dollar per hour in pay
while he serves in that capacity. He receives no other monetary
or other benefits.
Nelson testified that the foreman has no authority to hire,
fire, layoff, or discipline the employees, and that Tyler and
Winters have not performed any of those functions. He stated
that all hiring is done by the project managers, and that dis-
charge and discipline are performed by either himself or the
project manager. However, Nelson noted that the foremen may
have recommended someone for hire who they knew, but that
their recommendation would be treated the same as any other
recommendation from any other person.
Gambino testified that the Maryland job began in June 1993.
He stated that for the first few months thereafter, he was pre-
sent at the jobsite only intermittently, not even once per week.
Then he moved to Maryland, and in 1995 was at the jobsite
perhaps three times per week. Later, in early to mid-1995, he
was there every day. On those days that he was not at the job-
site, he was in contact with it by phone two or three times per
day.
Gambino testified that Tyler recommended Barrett’s hire.
Gambino was not at the site at that time, and Tyler spoke to
Gambino, advising him of Barrett’s qualifications, and review-
ing his resume. Gambino approved Tyler’s recommendation.
Gambino further stated, however, that other employees had
recommended that various people be hired, and that he did not
give Tyler’s recommendation any greater weight because he
was a foreman. It should be noted, however, that Tyler appar-
ently ignored Respondent’s policy regarding not accepting
applications by giving Barrett an application. Not only did
Gambino not reprimand Tyler for this, he approved Tyler’s
recommendation of Barrett.
With respect to discipline, Gambino testified that Tyler could
recommend discipline of an employee, but that he would have
to “clear it” with him. Gambino stated that Tyler recommended
the immediate discharge of an employee for insubordination
and poor productivity. Gambino discussed the matter with Ty-
ler, and then Gambino spoke with the worker and resolved the
problem. Gambino told Tyler that he wanted to give the em-
ployee another chance, and he was retained. In another in-
stance, Tyler told Gambino that an employee was a poor
worker and had a bad attitude, and requested that he and Gam-
bino speak to the worker. Tyler wanted to give the employee
another chance and retain him, but during the discussion the
worker did not show any indication that his attitude would im-
prove. Gambino then decided to, and did fire him on the spot.
With respect to discipline, Barrett testified, however, that he
saw Tyler criticize employees on at least two occasions. In one
incident, he ordered an electrician to work on exterior lighting.
The man protested, saying he was not wearing sufficiently
warm clothing. Tyler directed that he either go out and do the
job or go home. The man complied. In another instance, Tyler
told a worker who made a mistake in roughing in, to look at the
blueprints and architect’s drawings.
A case cited by Nelson, the discipline of Peter Gambino, the
brother of Daniel, does not prove the point. At that time, Peter
was the foreman on a two-man job. His poor work habits and
attitude became known to Nelson who spoke to him about those
matters. Obviously, since Peter was the foreman, the only per-
son who could discipline him was brother Daniel the project
manager, or Nelson. Nelson also noted that he spoke to em-
ployee Tom Wilson about his poor work performance.
Employee Barrett stated that Tyler asked the workers about
their progress on various job assignments, and if they had any
problems. He did not regularly work with his tools, but did a
small amount of electrical work from time-to-time. He carried a
radio and a clipboard. He occasionally gave Barrett directions
concerning the work, and assigned him to various jobs. Tyler
attended job meetings with the general contractor, and the other
subcontractors.
Barrett added that he requested time off on two or three oc-
casions, following the “job rule” that if 1 day’s notice was
given, the employee could take time off. Barrett also testified
that Gambino directly supervised employees on the job, and
that toward the end of the job, Tyler told Barrett that he (Tyler)
would “supervise” the bottom three floors of the project, and
Gambino would supervise the top three. There were 25 to 28
electricians on the job at that time. That procedure was fol-
lowed.
Ronald Gallagher testified that he saw Tyler twice per day,
during which time he examined the work being done, and made
sure that everyone was performing their assignment. Tyler also
conducted weekly job meetings, at which the job’s progress
was discussed. He asked the employees to work more quickly.
William Gallagher testified that when he reported to work,
he went over the job with Tyler, who showed him the blue-
prints, and assigned him to work. Gallagher went to Tyler with
questions about the work, and requests for time off.
With respect to layoffs, Gambino testified that he, and not
Tyler, determined who would be laid off. Gambino recom-
mended layoffs of specific persons to Tyler, and asked for his
opinion on Gambino’s selections, which were based upon Gam-
bino’s assessment of the worker’s productivity. Gambino and
Tyler “jointly agreed” on who they believed were the least and
most productive workers, and who therefore deserved to be
retained.
Gambino testified that Tyler had no power to authorize the
performance of overtime work. In fact, according to Gambino,
Tyler recommended additional overtime on several occasions,
which Gambino rejected. Gambino investigated the situation at
the jobsite in order to determine whether overtime work was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 190
needed. Gambino offered suggestions, such as transferring
other workmen to the area where they were needed, in order to
avoid the expenditure of overtime wages.
Gambino testified that a foreman does not have the inde-
pendent authority to authorize time off. However, if for exam-
ple an employee needed to take one hour off to see a dentist,
the foreman could authorize that time off, but he could not
approve the employee’s taking a day off. In such a case, and
also when vacation time is requested, the worker completes a
form and gives it to his “immediate supervisor, the job foreman
. . . . Tyler” who sends it to the project manager, and then to the
accounting department.
Nelson stated that the foremen work with their tools depend-
ing upon the size of the project. On a small job, they worked
almost exclusively with their tools, but as the job grew in num-
ber of employees employed, the responsibilities of the foreman
increase in terms of ensuring that the workers complete their
assignments. Accordingly, on such a job, the foreman does less
work with his tools. Gambino testified that in the beginning of
the job, Tyler spent about 70–80 percent of his time working
with his tools, but as the job progressed and more employees
were employed there, he worked with his tools only 10 percent
of the time. Toward the end of the project, he worked more
with his tools.
The foreman has no special insignia on his uniform indicat-
ing his title. He had access to a company truck, which he drives
to and from the jobsite, and which is used on the site by others,
including laborers who bring material to the work area. He, as
well as other electricians, and laborers use radios on the job to
communicate with other workmen on the site, and also to coor-
dinate operations with other trades.
Andrew Stebner was the project manager for the New York
projects, including Harris Hospital. The foreman for that pro-
ject was Alan Winters. Stebner testified that Winters worked
with his tools 95 percent of the time. Stebner, who was at the
jobsite two times per week depending upon the status of the 6-
day-per-week job, set the manpower levels for the project, en-
suring that enough workers were present to complete the pro-
ject on time. Stebner managed other projects at the time of the
Harris Hospital job, and stated that when he was not present,
Winters was the only foreman on the job.
William Gallagher, David Harageones, and Douglas Nelson
were employed at Harris Hospital. Gallagher, who worked at
that job for 1.5 months, testified that since the job was under-
manned, Winters worked with his tools 95 percent of his time.
He also checked on the employees, making sure that they were
performing the work assigned. Nelson, who worked at that job
for 3 to 5 months, stated that Winters “ran the job,” making
assignments of work, and making sure that the employees were
doing their work. He estimated that Winters spent 50 to 60
percent of his time working with his tools.
David Harageones testified that at his meeting with Respon-
dent’s attorney, Rypkema, President Nelson, and Stebner, he
was told that he was assigned to the Harris Hospital job, at
which Winters was the “boss” on the job, and to whom he
would report directly. Harageones further stated that Winters
laid out all the work for the electricians, and directed them
where to work, and what jobs to work on. He assigned Hara-
geones to a job upon his arrival at the jobsite. Winters did lay-
out work, as did other journeymen. Harageones asked questions
of Winters concerning the work. He also received permission
from Winters to leave work early a couple of times. Winters
once asked Harageones to work overtime and Harageones re-
fused, without any discipline being imposed for his refusal.
In addition, when subcontractor Radec was on the job, Win-
ters completed and submitted payroll sheets for Radec’s em-
ployees, certifying that they had worked the number of hours
set forth thereon, and authorizing payment for their services.
The evidence is clear that Tyler and Winters are statutory
supervisors.
The Board has found that such electrical foremen are super-
visors where they perform the same duties as did Tyler and
Winters. Thus, Tyler and Winters were the highest ranking
representatives of management at the jobsite, and when the job
increases in size, they spend most of their time, according to
Nelson and Gambino, making sure that the employees are do-
ing their work. Garney Morris, Inc., 313 NLRB 101, 114
(1993).
Tyler and Winters also had the authority, which they exer-
cised, to assign and responsibly direct other employees. They
checked the employees’ work, and asked the workers to correct
improperly performed jobs. They also permitted employees to
leave work early if given advanced notice. They also repre-
sented management and attended job meetings with the general
contractor and other subcontractors. Meisner Electric, 316
NLRB 597, 599–600 (1995); Debber Electric, 313 NLRB
1094, 1096 (1994).
Employees were told that they were to work under the direc-
tion of the foreman, and Gambino referred to Tyler as the “im-
mediate supervisor” of the employees. In addition, the foreman
coordinates the work with other trades, makes sure that the
work gets done, and keeps time records, including daily work
schedules. Although there was evidence that Gambino reversed
Tyler’s recommendations as to discipline, there is other evi-
dence, which I credit, that Tyler told an employee to do a cer-
tain job or leave the project. His judgment was also sought by
the project manager, as to which employees should be retained
or laid off. The additional $1 per hour is also evidence that the
foreman had a higher status among the employees. Windemul-
ler Electric, 306 NLRB 664, 666 (1992).
I accordingly find and conclude that Tyler and Winters are
supervisors within the meaning of Section 2(11) of the Act.
B. The Alleged Violation of Section 8(a)(1) of the Act
The complaint alleges that on about April 24, 1995, at the
Maryland jobsite, Respondent acting through Tyler, informed
an employee that Respondent would not hire union members
because they would create problems.
The evidence, as set forth above, does not establish that Ty-
ler made such a comment to Barrett. Rather, employee Scott
Lehet told Barrett, prior to Tyler’s arrival at the trailer, that the
company would not hire anyone from the union because they
believed that doing so would “cause problems for the job.”
Lehet has not been alleged as an agent or supervisor of Re-
spondent. Barrett characterized Lehet’s duties as “for the most
part a regular journeyman.” He occasionally carried a radio, but
NELCORP 191
many journeymen did so, and he occasionally assumed Tyler’s
duties in his absence, which was no more than three or four
times, during which times he took attendance, and asked Barrett
if he had enough work for the day. William Gallagher testified
that when he first arrived at the job “they” told him that Lehet
was his foreman. Nevertheless, he gave no evidence as to Le-
het’s responsibilities.
Under these circumstances, I cannot find that Lehet was an
agent or supervisor of Respondent, and I will dismiss this alle-
gation of the complaint.
In his brief, General Counsel urges that I find a violation of
Section 8(a)(1) of the Act in employee Douglas Nelson’s testi-
mony that in late September or early October 1994, he heard
Winters tell Stebner that he (Winters) would rather hire Re-
spondent’s employees from Binghamton, rather than hire any-
one in Sullivan County, “because of the union,” and that they
did not want “to hire anybody union.” This was not alleged in
the complaint as a violation of the Act, and in fact during the
hearing, General Counsel stated that Nelson’s testimony was
offered only as evidence of background and Respondent’s mo-
tivation, and that he sought no findings of violations or remedy
for such statements.
In any event, no details were given of the circumstances sur-
rounding this conversation, including whether Winters or Steb-
ner reasonably believed that Nelson could hear their conversa-
tion, and whether the remark was intended to be heard by Nel-
son. In the absence of such evidence, I cannot find that the
comment violated Section 8(a)(1) of the Act.
However, I find that Winters’ remark constitutes evidence of
Respondent’s illegal motive in refusing to consider the union
applicants for hire.
C. Respondent’s 10(b) Argument
As set forth above, on October 18, 1993, Salvatore com-
pleted an employment application at Respondent’s premises. In
May 1994, he asked to update his application and was told that
that was not necessary, since it would remain on file, and that
Respondent was no longer taking applications.
On April 4 and 10, 1994, Spicer and Daniel Harageones, re-
spectively, completed and filed applications with Respondent.
In early June 1994, Harageones called the office and advised
the receptionist that he wished to update his application, which
was on file. She said that if his application was still on file, she
would have the owner call him.
In November 1994, Spicer called Respondent’s office, indi-
cating his continued interest in a position, and the fact that he
had applied in April, and had not been hired, but employee
Martin Shaw had been hired. The receptionist said she was not
accepting applications, but that she would have someone call
him.
The complaint alleges that Salvatore, Spicer, and Harageones
were refused hire and/or refused consideration for hire on June
12, 1994.
Respondent argues that the charge in Case 3–CA–19035,
filed on December 12, 1994, was untimely filed with respect to
Harageones, Salvatore, and Spicer. The charge alleges that
certain employees were not hired or refused consideration for
hire because of their membership or activities in behalf of Lo-
cal 325.
In order for the charge to be timely filed, the alleged unlaw-
ful activity must have taken place on or after June 12, 1994.
Respondent contends that inasmuch as the three individuals all
testified that they originally applied for work prior to June 12,
and were not hired at that time, the charge was therefore un-
timely filed.
General Counsel argues that although the applications were
made outside the Section 10(b) period, their applications were
“continuing in nature” and that every refusal to hire is a sepa-
rate violation, and each time there is a discriminatory refusal to
hire, a separate, actionable unfair labor practice occurs.
Local 26 argues that Harageones, Salvatore, and Spicer were
all told that their applications would remain on file and nothing
further needed to be done to revive them, and that Respondent’s
failure to consider them each time it filled its hiring needs con-
stitutes an unfair labor practice, and that each time Respondent
hired a journeyman other than those three men, it was in effect
refusing to hire them.
Section 10(b) of the Act provides that “no complaint shall is-
sue based upon any unfair labor practice occurring more than
six months prior to the filing of a charge with the Board . . . .”
The charge here was filed on December 12, 1994. The 6-
month period would ordinarily begin to run on June 12, 1994.
The Board has not adopted the continuing violation theory in
respect to the facts above, where applications remain on file.
South East Coal Co., 242 NLRB 547, 550–552 (1979).
Rather, as the Board stated in Great Lakes Chemical Corp.,
298 NLRB 615 fn. 2 (1990):

because the [applicants] were not expressly denied employ-
ment and each of their employment applications continued to
be on file throughout the period of implementation of the
unlawful hiring policy, the Charging Party had no clear and
unequivocal notice of the 8(a)(3) unfair labor practices within
6 months of the filing of the charge.

Similarly, here the applicants were not expressly denied em-
ployment. Salvatore and Harageones were told that it was not
necessary to update their applications, impliedly being told that
their applications were still under consideration, and in addi-
tion, Harageones and Spicer were told that a company represen-
tative would contact them.
Accordingly, I find, in accordance with Great Lakes, that
since they had not received outright rejections of employment,
and by receiving assurances that their applications were still
under review, and that a company agent would call them, the
Union was not placed on notice, prior to the tolling of the 10(b)
period, that the Act had been violated. I therefore reject Re-
spondent’s argument that the complaint allegations concerning
Daniel Harageones, Salvatore, and Spicer should be dismissed.
D. David Harageones
The complaint alleges that Respondent failed to recall or re-
employ David Harageones because of his union activities.
As set forth above, Harageones was reinstated following a
Board decision, which found that his layoff was not unlawfully
motivated. He testified that upon hearing in October 1994, from
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 192
Douglas Nelson that Stebner told employees not to speak to
him, he began an unfair labor practice strike 1 month later, on
November 7. It is clear that whether or not it was an unfair
labor practice strike, he engaged in protected activity by strik-
ing. President Nelson conceded that Harageones engaged in a
strike.
In its brief, the Union argues that inasmuch as Harageones
engaged in an unfair labor practice strike in protest of Respon-
dent’s order that other employees not speak to him, he was
entitled to an offer of reinstatement upon his January 6, 1995,
unconditional offer to return.
First, there is no complaint allegation that Harageones was
engaged in an unfair labor practice strike. No unfair labor prac-
tices have been alleged or proven with respect to the remarks
made to Douglas Nelson. As discussed, infra, General Counsel
stated that he was not seeking a finding of violation as to such
statements.
Nevertheless, even if no unfair labor practice is alleged or
proven, or if the alleged unfair labor practice allegation, if filed,
was dismissed, the striker becomes an economic striker and is
entitled to an offer of reinstatement upon his unconditional
offer to return to work. Martel Construction, 311 NLRB 921,
927 (1993).
Upon Harageones’ offer to return which was made on Janu-
ary 6, 1995, Respondent became obligated to offer a position to
him, unless it could prove that it had permanently replaced him.
He had not been permanently replaced since William Gallagher
was hired in early February, and in mid-February, was assigned
to the Harris Hospital job, which was the location at which
Harageones worked prior to his strike.
I accordingly find and conclude as alleged in the complaint
that Respondent unlawfully failed to recall or reemploy David
Harageones in mid February 1995.
E. The Refusals to Hire and/or Consider for Hire the
Union Applicants
The legal standard for determining whether an unlawful fail-
ure to hire or consider for hire union applicants is as follows:
Essentially, the elements of a discriminatory refusal to hire
case are the employment application by each alleged discrimi-
natee, the refusal to hire each, a showing that each was or might
be 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. Big E’s Foodland, Inc.,
242 NLRB 963, 968 (1979).
In addition, the test set forth in Wright Line, 251 NLRB 1083
(1980), must be met. Under that test, the General Counsel must
first make a showing sufficient to support the inference that
protected conduct was a motivating factor in the employer’s
action. Such a showing includes the facts that the employer
possessed knowledge of the employees’ protected activities,
and animus toward such activity. The burden then shifts to the
employer to demonstrate that it would have taken the same
action notwithstanding the protected conduct. Such a test is
applicable here. Fluor Daniel, Inc., 311 NLRB 498 (1993).
F. The New York Jobsite
Respondent’s knowledge of the union affiliation of the ap-
plicants is amply demonstrated. Thus, in October 1993,
Salvatore’s filed application listed his union affiliation. Simi-
larly, the applications of Spicer and Daniel Harageones, filed in
April 1994, listed their union affiliations.
On September 28, 1994, Rockafellow mailed applications of
the other named alleged discriminatees to Respondent’s office.
The certified letter was marked refused, but the package sent
regular mail was apparently received, as it had not been re-
turned to the Union. Further, on December 15, Rockafellow
handed the applications to Winters at the jobsite. Those appli-
cations, being forwarded by the Union, were sufficient to pro-
vide Respondent with knowledge of the Union affiliations of
the applicants. Eldeco, Inc., 321 NLRB 857, 870 (1996); Fluor
Daniel, Inc., supra; Ultrasystems Western Constructors, 310
NLRB 545 fn. 2 (1993).
Respondent argues that it did not have to accept or consider
the applications because of its posted policy of not accepting
applications for employment, and therefore should not be
charged with knowledge of the union affiliations of the appli-
cants. However, as will be shown, infra, that policy was not
adhered to, and I find that it was utilized in order to provide a
basis for its discriminatory failure to consider union applicants.
A finding that Respondent possessed union animus may be
found in this record. Thus, the Board has found that, in viola-
tion of Section 8(a)(1) of the Act, Respondent by project man-
ager Rypkema, prohibited an employee from wearing a union
cap, and threatened to take civil and criminal action against
Local 325 representative McPherson for entering onto property,
which Respondent did not control. Nelcorp, supra. It must also
be noted that in that case, Respondent was not found to have
violated the Act by laying off and refusing to recall employee
David Harageones. Respondent’s animus toward the Unions in
the past provides support for a finding of animus here. Manno
Electric, Inc., 321 NLRB 278, 280 (1996).
In addition, employee Douglas Nelson gave credited testi-
mony that he was told by Stebner that he should not speak to,
and should stay away from David Harageones and McCabe
who were picketing the jobsite, because he may get in trouble.
Nelson also gave credited, uncontradicted testimony that he
heard Winters tell Stebner that he would rather hire Respon-
dent’s employees from Binghamton than others from Sullivan
County because of the union, and that they did not want to hire
“anybody union.”
When the record of hires is analyzed in light of the (a) efforts
of the union applicants to be considered or hired and (b) the
actual hiring done, no other conclusion may be drawn than
discriminatory hiring practices were in place to thwart and pre-
vent the hire of union affiliated applicants.
Thus, in October 1993, union applicant Salvatore applied for
a job, and in April 1994, union applicants Spicer and Daniel
Harageones completed and filed applications.
In early September, Respondent hired Boyes and McCabe.
Boyes came to Nelson’s attention as a fellow church member,
and had last worked as a union electrician 8 years before, when
he left the electrical industry to study for the ministry. McCabe
had previously worked with Winters on another project. The
NELCORP 193
testimony was not clear as to whether McCabe’s extensive
union employment history and position in Local 106 was
known to Winters or Stebner at the time of his hire. His
application, which listed that information only became
available to Stebner after his hire.
In mid-September union organizer Rockafellow told Winters
that union applicants were available for hire, and later that
month, on September 28, brought applicants to the jobsite.
Winters said that he did not know when or whether any em-
ployees would be hired. At about that time, employee Nelson
overheard Winters tell Stebner that they did not want to hire
“anybody union.”
Nevertheless, within the next three weeks, Respondent hired
four employees, Shaw, Streeter, Sprouse, and Clark. None of
their applications lists any union affiliation.
Thus, Respondent hired four employees with no known
union affiliation shortly after being advised that union appli-
cants were available.
Three weeks later, on November 7, Spicer called Respondent
and asked about a job, reminding the receptionist that his appli-
cation had been on file since April. He was told that no applica-
tions were being accepted.
In early December, an advertisement, for journeymen was
then placed, pursuant to which, according to president Nelson,
one journeyman was hired. That person may have been Eric
Liepens, who was hired on December 7. His application did not
list any union affiliation. Russo was also hired, on December 5.
As set forth above, there is a question as to whether he was a
journeyman. Also, during the one-month period that the adver-
tisement ran, journeyman Williams was hired. Thus, Respon-
dent hired at least two journeymen during the time the ad was
in effect.
Thus, after Winters told Rockafellow that he did not know
when or whether employees would be hired, Respondent hired
employees with no known union affiliation, and ran an adver-
tisement for employees during which period additional employ-
ees, also having no known union affiliations, were hired.
On December 10, Schlott and Schwatz, without revealing
their union affiliations, were first told that no applications were
being accepted, but then when they said they were from Sulli-
van county, were encouraged to wait for the “boss” to interview
them, as the employer sought to hire such applicants. In a
phone conversation between the receptionist and the “boss,” the
receptionist, in looking at the applicants, and then saying
“maybe, possibly, could be,” implied that the person she was
speaking to was inquiring about their union affiliation.
In GM Electrics, 323 NLRB 125 (1997), the Board found
that a receptionist’s phone comments concerning job appli-
cants, that “I know he’s union. They’re all union” (a) were
coercive in violation of Section 8(a)(1) of the Act, (b) indicated
“adverse treatment“ of union applications, and (c) were proof
of animus sufficient to support a prima facie showing that the
applicants’ union affiliations were a motivating factor in the
employer’s failure to hire them.
Here, there is no allegation that the receptionist’s statements
violated the Act, and I would not so find. The evidence in this
case is not as strong as in GM, but a fair inference may be made
that the comments made here by the receptionist, although not
expressly identifying them as union members, reflected a con-
cern by the speaker that they might have union affiliations. This
is especially so considering that they were initially told that the
employer sought to hire workers from Sullivan County, told to
wait for the boss for an interview, but then following this con-
versation were abruptly dismissed.
On December 14, Williams, was hired by Respondent. His
application does not list any union affiliation.
On December 15, Rockafellow hand delivered six applica-
tions to Winters. In early February, 1½ months later, Respon-
dent hired William Gallagher, a person who had worked for it 4
years earlier.
During January and February 1995, Respondent employed a
substantial number of employees from subcontractor Radec
who worked full time during a 1-month period. Although Re-
spondent employed subcontractors in the past, the timing of its
use of Radec here is suspicious. Thus, only 1 month before,
Rockafellow presented Respondent with union applicants who
were ready to work. Those six applicants could have performed
the work done by the two to five Radec electricians. Respon-
dent’s reason for not hiring full-time employees, that the job
was 50-percent complete, and the remainder of the assignment
was for only a 4-to-6 week period, does not ring true, since (a)
Williams, whose application bears a notation “temp 4–6 wks,”
was employed for 5 weeks, beginning on December 14, and
laid off and (b) William Gallagher, who began work in mid-
February, was employed for about 6 weeks and then laid off.
The above evidence establishes the elements required for
General Counsel’s prima facie showing that the union appli-
cants’ union affiliations were a motivating factor in Respon-
dent’s failure to consider them for employment. Wright Line,
supra. Thus, the affiliations were known to Respondent in the
applications which were completed at its office, forwarded to
its office, and hand delivered to Winters. Respondent’s animus
is established as set forth in the prior case, and the comments
by supervisor Winters. Further, the fact that none of the appli-
cations in which the applicants evidenced a current, active
union involvement was considered is “sufficient to warrant an
inference of animus against union members and sympathizers.”
Eldeco, Inc., supra at 870.
G. The Maryland Jobsite
Respondent’s knowledge of the union affiliation of the ap-
plicants who are named in the complaint is well established. As
set forth above, each of the named individuals appeared at Re-
spondent’s offices either alone or in the company of union or-
ganizer Graham, and all wore union shirts, and on the April 6
visit, those present wore union hats. Casey Electric, 313 NLRB
774, 785–786 (1994); AJS Electric, 310 NLRB 121, 125
(1993). See the above discussion of Respondent’s animus.
The Union first made its presence known during picketing in
April 1994, which continued through November 1994. Thereaf-
ter, the Union made contact with Respondent through corre-
spondence, and a personal contact between Graham and Gam-
bino, which occurred in the summer of 1994.
Hiring began in early November 1994, with the hire of Ken-
neth Paul. Tyler recommended him to Gambino, who testified
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 194
that Tyler said Paul was formerly employed by a unionized
company, and had some union affiliation.
Thereafter, in late November, union member Finn, who did
not acknowledge his union affiliation, was closely questioned
by Gambino and Campbell about his prior experience, specifi-
cally asking about certain named, union contractors.
Respondent hired Wilson on December 27, 1994, who had
listed a union company as his employer prior to his last em-
ployment, and also noted that he completed a union apprentice-
ship program 12 years earlier.
The union applicants first made their presence known in
January 1995, when Jackson visited Respondent’s office wear-
ing a union shirt. He was denied the opportunity to file an ap-
plication.
On January 23, Respondent hired John White, whose current
employment was with nonunion companies. He last worked for
union employer Fischback in 1990. The next day it hired
Hardesty, whose application notes 4 years’ training at the Local
26 trade school, but had not been a member of that union since
1976. On January 30, Respondent hired Rosasco. His applica-
tion does not indicate any union affiliation.
One week later, on February 7, union applicants Gough and
Simmons appeared at Respondent’s office wearing union shirts.
Gambino refused their requests to file applications, and told
them that Respondent was not hiring.
Nevertheless, 3 days later, Gambino hired Marsh. Nothing
on his application indicates that he had a union affiliation. One
week later, on February 16, Gambino hired Joseph Harmon.
His application does not list any union affiliation, but he was
referred by his brother, an employee of Respondent. About 1
month later, on March 22, Gambino hired Messinese. His ap-
plication lists no union affiliation. Five days later, on March 27,
Gambino hired Poe. His application lists no union affiliation.
Two days later, William Gallagher began work, having been
offered work from the New York jobsite. Five days later, on
April 3, Gambino hired Helms. His application lists no union
affiliation.
On April 6, union applicants Barber, Campbell, Kirscht, Lee,
Mudd, Rapczynski, Rohr, and Ruiz appeared at Respondent’s
office wearing union shirts, and requested applications. The
receptionist told them that Respondent was not hiring at that
time. She agreed to call them when hiring was being done.
Nevertheless, 4 days later, on April 10, Gambino hired
Gianotti, whose application does not indicate any union affilia-
tion, but includes as a reference a current employee. On the
same day, Ronald Gallagher was hired upon the recommenda-
tion of his brother, William. Two days later, on April 12, non-
union employee Barrett inquired about a job at the jobsite. Al-
though Tyler told him that Respondent was not hiring, Barrett
presented Tyler with a resume, which listed all nonunion con-
tractors. The following day, Barrett was told he was hired. One
month later, on May 15, Shiflett was hired by Gambino. Noth-
ing on his application shows a union affiliation.
Two days later, on May 17, union applicants Brown and
Williams were denied an opportunity to file applications at
Respondent’s office.
Thereafter, Respondent hired Foster, Burdette, Cavin, Bout-
well, and Maines.
As set forth above, notwithstanding that available manpower
was available through the Union, it appears that its project was
severely undermanned as set forth in the correspondence be-
tween the general contractor and Respondent. In response to
that shortage of employees, Respondent employed a subcon-
tractor with a significant number of electricians, who worked
under Respondent’s supervision each week from March 5
through May 21, 1996.
The above facts establish that General Counsel has made a
prima facie showing that the union applicants’ affiliations were
a motivating factor in Respondent’s refusal to consider them for
hire. Thus, all of the employees refused permission to file ap-
plications wore union insignia when they attempted to file ap-
plications at Respondent’s office. Although no applications
were in fact filed, “actual application is not required, however,
where applying would be futile.“ Sunland Construction Co.,
311 NLRB 685, 686 (1993).
Here, applications were prohibited from being filed by Re-
spondent as part of its hiring policy. As will be discussed, infra,
that hiring policy was designed to thwart union affiliated appli-
cants from being hired, and was alleged, and I find that it was
unlawful.
Thus, as shown above, Respondent refused to consider the
union affiliated applicants, and instead hired others. General
Counsel’s prima facie showing is supported by the fact that on
February 7, Gambino informed union applicants that Respon-
dent was not hiring, whereas a little more than 2 weeks later it
hired two workers, and continued to hire thereafter. This false
reason provides added basis for General Counsel’s case.
I accordingly find that General Counsel has made a prima
facie showing of discrimination pursuant to Wright Line.
H. Respondent’s Defense
Respondent abandoned its policy of receiving applications
for employment because of the substantial amount of man-
power available, and the fact that applications become stale
after a short period of time.
Nevertheless, Respondent resorted to advertising for jour-
neymen in New York, and employed subcontractors who per-
formed the same work as its employees could have performed
in both the New York and Maryland locations. If employees
were as readily available as Respondent claims, it would not
have had to utilize either advertisements or subcontracted
workers.
Rather, the evidence is clear that Respondent ended its pol-
icy of accepting applications for employment at a time when
the Union was actively organizing, and seeking to have em-
ployees represented by it apply for work with the Company.
Thus, Respondent concedes that it accepted applications in the
past. Indeed, applications were filed until April 10, 1994, at
Respondent’s office.
General Counsel argues that Respondent changed its policy
because of the issuance of the complaint against it in the prior
case, 316 NLRB 625. That complaint was issued on February 8,
1994, based upon charges filed in November and December
1993. General Counsel contends that the policy was changed,
because at that time, the Unions’ attempts to organize it were
NELCORP 195
well known, and Respondent sought to avoid hiring union
members.
Respondent asserts that it began its no-application policy in
early 1994 because of an abundance of manpower, and because
applications, when on file, become stale. It claims it substituted
this method of obtaining applicants with a procedure whereby it
first attempts to transfer employees, and then considers its own
out-of-work employees, and then seeks positive referrals from
other sources.
Those methods, if used exclusively, would support Respon-
dent’s defense. However, as noted, Respondent departed from
this policy by seeking employees from other sources—
advertisements, and employing subcontractors at a time when it
was short of personnel, who performed work which could have
been done by its own workers. I accordingly find that Respon-
dent’s refusal to accept written applications for employment
was designed to prevent the receipt of applications from union
applicants.
Further evidence of its unlawful hiring policy are the facts
that it appears to be a closed system. If employees are unavail-
able from its other work sites or from those receiving unem-
ployment insurance, Respondent seeks employees from refer-
rals from its own workers, and others at the jobsite. An em-
ployee will be hired by this method, only if he is referred by
someone who can attest to his work and character and give a
“positive referral.”
By virtue of this policy, the “effect of this system was to pre-
clude union members from employment.” Eldeco, supra at 870.
It is unlikely that Respondent’s current employees would rec-
ommend an active union adherent, and “the practical effect of
[these] criteria was to preclude employment by union mem-
bers.” D.S.E. Concrete Forms, 303 NLRB 890, 897 (1991).
Moreover, the “positive” referral is quite subjective. It could
only be given by someone known as a person of trust to the
individual doing the hiring. Such policy had as its effect, that
union applicants would not be referred. Gambino at first con-
ceded that Union Agent Graham’s attempts to have union ap-
plicants hired constituted referrals, but then said that he must
know the referring party.
Moreover, that policy was not honored at times in the hiring
process. Thus, as set forth above, employees were hired at both
locations where there was no evidence that they were former
employees or that their hire was as a result of a positive refer-
ral, and at least one employee was hired through an advertise-
ment which ran for 1 month.
In addition, Barrett was hired at the jobsite, after appearing
there, first being told that no applications were being accepted,
and then being hired after presenting a resume listing no union
affiliations. Respondent attempts to justify Barrett’s hire as a
permissible “gate hire.” Dockendorf Electric, 320 NLRB 4, 16
(1995). However, gate hiring was not a part of Respondent’s
hiring policy. Indeed, if it was, Respondent would have consid-
ered for hire the union applicants who appeared at the New
York jobsite in late September, just prior to the hire of three
other nonunion affiliated employees in the next 4 weeks.
Respondent argues that it possessed no union animus as
illustrated by its treatment of David Harageones.
7).
Following a hearing in which it was found that Harageones
was not unlawfully laid off because of his union activities, as
alleged, Respondent offered him employment, which he ac-
cepted. Respondent was under no obligation to offer reinstate-
ment to Harageones, but nevertheless it did so at a time when it
knew of his union affiliation. I agree that this is some evidence
of a nondiscriminatory attitude on Respondent’s part. However,
Respondent’s later treatment of Harageones, which I find to be
an unfair labor practice, undermines Respondent’s allegedly
neutral hiring policy.
Respondent further argues that its hiring policy was non-
discriminatory because it hired employees with known union
connections or affiliations. First, the fact that some employees
with union affiliations were hired does not mean that Respon-
dent did not discriminate against others. J. S. Alberici
Construction Co., 231 NLRB 1030, 1041 fn. 5 (197
As to those employees Respondent claims it hired who had
union affiliations, there is a significant difference, in kind, in
the types of their union involvement as compared to the union
connection of those referred by the Union.
Thus, Boyes’ work for a union company took place years be-
fore his employment with Respondent, and was before he left
the industry. Wilson was employed most recently with a com-
pany, whose union affiliation was not identified, but his em-
ployment prior to his current job was with a union company,
and his union training was 14 years prior to his employment by
Respondent. Maines last worked for a union contractor 6 years
before his hired by Respondent. Gambino’s testimony that
Burdette was affiliated with a union because a foreman of a
union company recommended him is not persuasive. Similarly
unpersuasive is the claim that Kenny Paul was affiliated with a
union based only on Tyler’s telling Gambino that Paul used to
work for a union company. Hardesty had not been a union
member for more than 20 years.
Likewise, Foster’s only claimed union affiliation was that, at
the time of his hire, he requested time off to work for contrac-
tors performing nuclear plant shutdowns. The contractors were
known union companies. Nevertheless, the contractors were not
named, and his application did not list any contractors at all. In
addition, the hire of Manning was testified by Campbell, to the
effect that he believed Manning said he had some training with
a union affiliation, consisting of being in a union apprenticeship
program for 2 months and then leaving because he was dissatis-
fied with the union.
In the above instances, the employees involved had union af-
filiations or connections to some degree, but their union in-
volvement was weak, remote, and not current or active. Fluor
Daniel, Inc., 304 NLRB 970, 971 (1991). Particularly when
compared to the applicants presented by the Union, whether at
the jobsite or in its offices, there is a significant difference be-
tween the union commitment of the employees hired by Re-
spondent, and the vocal, active union referred applicants turned
away at the door. Fluor Daniel, Inc., 311 NLRB 498, 500
(1993).
I accordingly find and conclude that Respondent has not met
its burden of proving that it would have refused to consider the
union applicants in the absence of their union affiliations.
Wright Line, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 196
CONCLUSIONS OF LAW
1. Respondent Nelson Electrical Contracting Corp. d/b/a
Nelcorp, is an employer within the meaning of Section 2(2),
(6), and (7) of the Act.
2. International Brotherhood of Electrical Workers, Locals
36, 325, and 363, AFL–CIO are labor organizations within the
meaning of Section 2(5) of the Act.
3. By maintaining in force and effect a hiring policy whereby
Respondent will not accept written applications in order to
avoid hiring union applicants for employment, Respondent has
violated Section 8(a)(1) of the Act.
4. By refusing to consider for hire the following employees,
Respondent violated Section 8(a)(1) and (3) of the Act:

Richard DiMaio Harold Doderer
Daniel Harageones Richard McGinley
Stephen Rockafellow Anthony Salvatore
Tyrone Jackson Thomas Gough
Thomas Barber James Camba
Michael Lee John Mudd
David Rohr Joseph Ruiz
Steve Williams Michael Ferranda
Anthony Provenzano Herbert Spicer
Kelly Simmons John Kirscht
James Rapczynski Monte Brown

5. By failing to recall its employee David Harageones, Re-
spondent violated Section 8(a)(1) and (3) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 8(a)(1) and (3) of the Act.
THE REMEDY
It having been found that the Respondent has committed cer-
tain unfair labor practices, it will be recommended that it be
ordered to cease and desist therefrom, and to take certain reme-
dial actions intended to effectuate the policies of the Act.
The complaint alleges that Respondent refused to hire and/or
refused to consider the applicants for hire. Under the facts as
established here, where the applicants were denied employment
for discriminatory reasons, employees had been hired to fill
positions which were available, Respondent departed from its
past method of obtaining employees by refusing to accept writ-
ten applications, and hiring so as to avoid hiring the Union
applicants, and the 22 applicants were all journeymen who
were not shown to be unqualified for the positions to which
they applied, and that none were actually hired, I find that a
discriminatory refusal to hire in violation of Section 8(a)(1) and
(3) has occurred. Casey Electric, 313 NLRB at 775; Ultrasys-
tems, supra.
It having been found that Respondent unlawfully refused to
employ the individuals listed above, it is recommended that
Respondent be ordered to offer them employment and make
them whole for any loss of earnings they may have suffered, as
determined in compliance proceedings, in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987), and that the duration of the remedy be left
to the compliance stage of the proceeding. Casey Electric, 313
NLRB 774, 775 (1994); Eldeco, Inc., 321 NLRB 857, 858
(1996); Dean General Contractors, 285 NLRB 573 (1988). It
having been found that Respondent unlawfully refused to recall
David Harageones to employment, it is recommended that Re-
spondent recall him to employment, and make him whole, as
set forth above.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended 13
ORDER
The Respondent, Nelson Electrical Contracting Corp., d/b/a
Nelcorp, Endwell, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Maintaining in force and effect a hiring policy whereby it
will not accept written applications in order to avoid hiring
union applicants for employment.
(b) Failing and refusing to recall David Harageones because
of his activities in behalf of a labor organization
(c) Refusing to consider for employment, and refusing to
employ the following employees for employment:

Richard DiMaio Harold Doderer
Daniel Harageones Richard McGinley
Stephen Rockafellow Anthony Salvatore
Tyrone Jackson Thomas Gough
Thomas Barber James Camba
Michael Lee John Mudd
David Rohr Joseph Ruiz
Steve Williams Michael Ferranda
Anthony Provenzano Herbert Spicer
Kelly Simmons John Kirscht
James Rapczynski Monte Brown

(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Offer the individuals set forth above, employment in po-
sitions for which they applied, or attempted to apply or, or if
such positions no longer exist, to substantially equivalent posi-
tions, and make them whole for any loss of earnings and other
benefits that they may have suffered as a result of the discrimi-
nation against them, as forth in the remedy section of this deci-
sion.
(b) Recall David Harageones to his former position of em-
ployment or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed, and make him
whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him, in the manner set forth
in the remedy section of this decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful failure to recall David

13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
NELCORP 197
Harageones, and of the unlawful refusal to consider for em-
ployment and to employ the 22 discriminatees named above,
and notify them in writing that this has been done and 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 pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its fa-
cility in Endwell, New York copies of the attached notice
marked “Appendix.“14 Copies of the notice, on forms provided

14 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-
by the Regional Director for Region 3, after being signed by the
Respondent‘s authorized representative, shall be posted by the
Respondent immediately upon receipt 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 altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since December 12, 1994.

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.“