Northside Electrical Contractors

National Labor Relations Board - Board Decisions

Aug 31, 2000

331 N.L.R.B. 1564 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1564
Northside Electrical Contractors, Inc. and Interna-
tional Brotherhood of Electrical Workers, Local
Union No. 153a/W International Brotherhood of
Electrical Workers, AFL–CIO. Cases 25–CA–
24492 and 25–CA–24961
August 31, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On September 19, 1997, Administrative Law Judge
Jerry M. Hermele issued the attached decision. The
General Counsel filed exceptions and a supporting brief.
The Charging Party filed limited exceptions and a sup-
porting brief. The Respondent filed cross-exceptions and
a supporting brief. The Respondent also filed an answer-
ing brief to the General Counsel’s exceptions and the
Charging Party’s limited exceptions. The Charging Party
filed an answering brief to the cross-exceptions. The
Respondent filed a reply brief. Finally, the International
Brotherhood of Electrical Workers filed a brief as amicus
curiae, and the Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and record in
light of the exceptions, cross-exceptions, and briefs, and
has decided to affirm the judge’s rulings, findings,1 and
conclusions,2 and to adopt the recommended Order, as
modified.3

1 The General Counsel and Charging Party have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
We note that there are no exceptions to the judge’s finding that un-
fair labor practice charges based on the alleged interrogations of union
applicant Jesse Martinez in February and March 1996 are barred by
Sec. 10(b).
2 We adopt the judge’s conclusion that the General Counsel met the
initial burden of proving discriminatory motivation for the Respon-
dent's refusal to hire three union applicants, but that the Respondent has
proved that it would not have hired them, for legitimate reasons, even
in the absence of their union affiliation. We note that the judge’s analy-
sis of the refusal-to-hire allegations is consistent with the Board’s deci-
sion in FES, 331 NLRB No. 20 (2000), which issued subsequent to the
judge’s decision.
Neither the General Counsel nor the Charging Party has argued that
the Respondent’s policy of not hiring applicants with high current wage
histories was itself discriminatorily motivated. The Board has held that
such a policy can be a legitimate justification for a refusal to hire, in the
absence of evidence that it has been applied in a disparate manner to
avoid hiring union applicants. See Wireways, Inc., 309 NLRB 245
(1992). Although the International Brotherhood of Electrical Workers,
AFL–CIO has filed an amicus brief arguing that such a policy is inher-
ently destructive of employees’ Sec. 7 rights, the General Counsel did
not make that allegation and did not litigate the case on that theory, and
the Charging Party does not make the argument either. We therefore
decline to address it in this case. Member Liebman has previously
stated her view that Wireways could be undermining the enforcement of
the Act in the construction industry, and that a reexamination of that
decision is warranted. See Benfield Electric Co., 331 NLRB No. 77,
slip op. at 3 fn. 6 (2000). Nevertheless, because neither the General
Counsel nor the Charging Party has argued in this case that Wireways
should be reexamined, she agrees with her colleagues that that issue
should be left for another day.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified below, and orders that the Respondent, North-
side Electrical Contractors, Inc., Elkhart, Indiana, its of-
ficers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following as paragraph 1.
“1. Cease and desist from
(a) Discriminatorily laying off employees because of
their union activities.
“(b) In any like or related manner, interfering with, re-
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.”
2. Substitute the following for paragraph 2(d).
“(d) Within 14 days after service by the Region, post at
its facility in Elkhart, Indiana, copies of the attached no-
tice marked “Appendix.10” Copies of the notice, on forms
provided by the Regional Director for Region 25, after
being signed by the Respondent’s authorized representa-
tive, 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 no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall mail, at its own expense, a copy of the
notice to all current and former employees employed by
the Respondent at any time since June 14, 1996.”
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

Member Hurtgen does not agree with the finding of the judge in sec.
20 of his decision that the statement by Respondent’s president, Phillip
Dorries, that a union “takes away the Employer, employee relation-
ship,” shows antiunion animus. Rather, Member Hurtgen finds that
such expressions are privileged speech under Sec. 8(c) of the Act, and
thus may not be used as “evidence of an unfair labor practice.”
3 We shall modify the recommended Order and notice to include
specific injunctive provisions for the Respondent's unlawful layoff of
employees Martinez and Wenger and to correct a date in the contingent
provision for mailing the notice.
331 NLRB No. 166
NORTHSIDE ELECTRICAL CONTRACTORS 1565
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 discriminatorily lay off employees be-
cause of their union activities.
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.
WE WILL make Jesse Martinez and David Wenger
whole for any loss of pay they may have suffered by rea-
son of their discriminatory layoff on June 14, 1996.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our records any reference to the
unlawful layoffs of Jesse Martinez and David Wenger,
and WE WILL, within 3 days thereafter, notify them in
writing that this has been done and that the layoffs will
not be used against them in any way.
NORTHSIDE ELECTRICAL CONTRACTORS, INC.
Miriam C. Delgado, Esq., for the General Counsel.
M. Scott Hall, William Hopkins Jr., and Mark Kittaka, Esqs.
(Gallucci, Hopkins & Theisen), of Fort Wayne, Indiana, for
the Respondent.
Carl Shaffer, of Walkerton, Indiana, for the Charging Party.
DECISION
I. STATEMENT OF THE CASE
JERRY M. HERMELE, Administrative Law Judge. This is
a “salting”1 case involving Northside Electrical Contractors,
Inc. (Northside), a small electrical contracting company in Elk-
hart, Indiana. The charges lodged by the Union, the Interna-
tional Brotherhood of Electrical Workers, Local No. 153, con-
cern four discrete events: (a) Northside’s discriminatory failure
to hire three union applicants—Carl Shaffer, Todd Ashby and
Paul Weidler—in January 1996; (b) Northside’s improper inter-
rogation of union applicant Jesse Martinez in February and
March 1996 before his eventual hiring in April 1996; (c) the
June 1996 promulgation of a no-solicitation rule and a threat-
ened reprisal by Northside; and (d) the June 1996 layoffs and
July 1996 “discharges” of Martinez and another union em-
ployee, David Wenger. The Union’s first charge against North-
side was filed on February 22, 1996, and later amended on
October 4 and December 13, 1996.
On January 31, 1997, the General Counsel filed its com-
plaint, followed by Northside’s answer of February 14, 1997.
This case took three days to try, from June 2–4, 1997, in South
Bend, Indiana, with the General Counsel and Respondent each
calling eight witnesses. Finally, briefs were filed by both par-
ties on July 7, 1997.
II. FINDINGS OF FACT
Northside’s electrical contracting business generated at least
$50,000 in interstate commerce in the year preceding the Gen-
eral Counsel’s complaint (GC Exh. 1(i)). As noted above, this
is a small company, founded in 1985, owned equally by its

1 In short, the term “salting” means a union’s overt, or covert, entry
into a nonunion company to organize that company. Apparently, the
term is analgous to “salting a mine” or “salting the books”—the intro-
duction of foreign material to exaggerate the amount of ore in a mine or
data in accounts. See Tualatin Electric, 312 NLRB 129 (1993).
president, Philip Dorries, and his wife and office manager Lib-
bey Dorries (Tr. 18–19). Northside has never been unionized
and performs small residential to commercial electrical work
with an average of four employees (Tr. 23–28). Philip Dorries
does the hiring, of people he directly knows, from recommen-
dations of people he knows, or through short newspaper adver-
tisements (Tr. 32–33, 49, 232–233). Prospective employees fill
out an application, which Dorries typically keeps for only short
periods of time (Tr. 35). Dorries looks for experienced as well
as inexperienced people, as long as they are “neat” looking with
good work habits (Tr. 28). Northside’s wage scale is well be-
low the 1996 union journeyman rate of approximately $22 per
hour (Tr. 53–58, 133). Specifically, since 1994 the highest
starting salary paid a new employee is $12 per hour, with the
average starting salary at $7.37 per hour. From September
1994 to December 1996, Northside has employed 15 people,
with an average tenure of about seven months (R. Exh. 4).
The company’s layoff policy is based on seniority, with the
last hired the first in line to be laid off. However, before mid-
1996, the only significant layoff, other than for a day or two,
was Randy Schug in January 1966 for about three weeks (Tr.
40–41, 47). And in the company’s history, Dorries has fired
just two employees (Tr. 667). The company has written on-the-
job conduct, attendance and safety policies (R. Exhs. 44–48).
There is also an unwritten rule that employees can talk about
nonwork topics, on the job, as long as work is not interfered
with (Tr. 48).
Carl Shaffer, a journeyman inside electrical wireman, is the
assistant business manager and organizer for the International
Brotherhood of Electrical Workers, Local 153, in South Bend,
Indiana (Tr. 109). In attempting to organize nonunion compa-
nies, Shaffer utilizes the process of “salting,” which encom-
passes three steps. First, qualified union members apply to
work at nonunion firms as openly union members, making the
prevailing union wage. Second, union members apply covertly
as nonunion applicants understating their wage history. Any
such successful applicants would be subsidized by the union for
the difference between the company’s nonunion wage rate and
the prevailing union wage. Third and finally, the union mem-
bers visit the nonunion company’s jobsite to talk to the com-
pany’s employees and hand out prounion literature (Tr. 488,
496–502, 532).
Shaffer began his organizing campaign at Northside in early
1996. Based on a December 31, 1995 help wanted ad run by
Northside in the local newspaper, seeking an “experienced
electrician,” (GC Exh. 18),2 Shaffer visited Northside’s office
on January 17, 1996. He also brought with him two other un-
ion members—Todd Ashby and Paul Weidler—to apply for the
job. All three applicants wore union caps and buttons and filled
out the application forms, describing their most recent wage
history of $22.50 per hour. Afterwards, Dorries interviewed
Shaffer before lunchtime and Shaffer explained that he would
attempt to organize Northside during nonworking hours. Only
Shaffer received an interview but he did not receive a job offer.
In sum, Dorries did not take these applications seriously be-
cause the $22-per-hour wage histories were way above his
Company’s lower wage scale. Nevertheless, he never asked
Shaffer if he would accept a lower wage rate. And because it
was near lunch and he had a pending appointment, Dorries
2 Identical ads were also placed by Northside in other local newspa-
pers in December 1995 and January 1996 (GC Exs. 40–45).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1566
believed it pointless to interview the other two (Tr. 50–58; 114–
117).3 Two nonunion people were hired, though, in January
and February 1996—Randy Schug and Michael Beall (R. Exhs.
4, 31; GC Exh. 32).
With Step 1 complete, Shaffer commenced Step 2 in Febru-
ary 1996. Northside changed its newspaper ad in late January
1996 to look for an “electrician’s helper.” (GC Exh. 46). So,
Shaffer sent union member Carey Schloemer over to Northside
on February 13, 1996 to fill out a job application. Schloemer
did not disclose his status as Local 153’s business agent, nor
did he wear any union attire (Tr. 287–290). But he did list his
most recent job wage as $22 per hour (GC Exh. 33). Schloe-
mer got an interview with Dorries who asked whether he could
accept a salary of $7 per hour. Schloemer said yes. However,
Schloemer never received a job offer from Dorries (Tr. 291–
293).
Next, Shaffer sent union member Jesse Martinez on February
16, 1996 (Tr. 317). Martinez filled out an application stating
that he made $18 per hour at his most recent job which ended in
1995 (R. Exh. 5). He did not disclose his union status. As with
Schloemer, Dorries discussed a salary of around $8 per hour.
According to Martinez, Dorries stated that he was not interested
in hiring union people. Dorries liked Martinez’s appearance
but no job offer was extended at that time because Dorries was
headed out on vacation (Tr. 69, 318–321). However, Dorries
denies that the subject of unions came up in this interview (Tr.
625). After Dorries’ return, Martinez called him which led to a
second interview on March 29, this time in Dorries’ truck while
visiting several Northside jobsites. Because Shaffer had filed
an unfair labor practice charge against Northside on February
20, 1996 (GC Exh. 1(a)), Dorries asked Martinez whether he
could work with union people, to which Martinez responded
yes. At this point, Dorries hired Martinez at $9 per hour (Tr.
322–325).
Michael Beall’s employment with Northside lasted for only
11 days in February 1996 and Randy Schug was on layoff in
March 1996. Dorries called Schug to ask whether Schug had
any objection to hiring a new employee—Martinez. Schug had
no objection (Tr. 546-547, 642). Schug’s layoff ended in
March and Martinez started work on April 3, 1996 (Tr. 326).
Then, in May, Shaffer sent David Wenger, another union jour-
neyman inside wireman, to apply covertly at Northside as a
nonunion worker. Martinez recommended Wenger as well and
Dorries hired him to start on May 14, 1996, at $7.50 per hour,
which was below the $12 per hour that Wenger listed in his
application as his most recent salary (R. Exh. 20; Tr. 72–75,
395–399). In the meantime, Dorries hired a nonunion appli-
cant, Federico Avendano, on April 15, 1996, at $6.50 per hour
(R. Exh. 4).
According to Dorries, the quality of Martinez’s work was
only “fair” (Tr. 71). Also, just one month into the job, Marti-
nez had missed five of 25 employment days (R. Exh. 49). As
for Wenger, senior employee John Bishop, as well as Dorries,
was not particularly pleased with his work performance either
(Tr. 75–76). Moreover, Wenger was often late for work, poorly
dressed, was doing personal phone calls, and was leaving job
sites without permission (Tr. 578, 593). In sum, Dorries did not
view Wenger as a long-term employee and, as such, never

3 Nor did Dorries retain these three applications, despite his belief
that “I don’t think that this is the end of this.” (Tr. 59). Instead, the
three applications “disappeared.” (Tr. 63).
bothered to confront Wenger about these matters (Tr. 623, 648–
649). According to Martinez and Wenger, though, Dorries told
both of them that they were doing fine (Tr. 327–329, 402).
However, Dorries did have a talk with Wenger about personal
phone calls (Tr. 404).
Martinez and Wenger were also on the Union’s payroll while
working for Northside (R. Exh. 25; Tr. 352). Also, Shaffer
wrote to one of Northside’s nonunion employees, Randy Schug,
about the benefits of joining the Union (R. Exs. 10–11). On
Wenger’s first day at work, May 14, 1996, Shaffer visited a
Northside jobsite and handed out prounion leaflets to the em-
ployees while they were working (Tr. 400–401). Dorries asked
him to leave so as not to disrupt their work (Tr. 63–64, 119).
May and June 1996 were wet months in South Bend, Indiana
(R. Exh. 23). As a result, there were significant slowdowns at
two jobsites that Northside had planned to work on (Tr. 454–
466). According to Dorries, therefore, he decided during the
week of June 3–7 that layoffs of Martinez and Wenger were
necessary. Again according to Dorries, because he tried to find
other work for his employees the week of June 10–14, he de-
layed telling anyone about layoffs (Tr. 81). Northside records
reveal the following hours worked by employees:

Week Employee Hours

May 20–24 John Bishop 38-1/2
Randy Schug 40
Jesse Martinez 40
David Wenger 22
May 27–31 John Bishop 40
Randy Schug 36-1/2
Jesse Martinez 39-1/2
David Wenger4 28-1/2
June 3–7 John Bishop 40
Randy Schug 40
Jesse Martinez5 31
David Wenger 39
Curtis Duttenhaver 40
June 10–14 John Bishop 40
Randy Schug 32
Jesse Martinez 30-1/4
David Wenger 37-1/4
Curtis Duttenhaver 39-1/2
Tom Dorries 39-1/2

(R. Exhs. 17, 18, 19, 40). Federico Avendano’s employment
lasted only from April 15 to May 9, 1996. Dorries then hired
Curtis Duttenhaver, on June 3, 1996. Dorries’ son, Thomas,
was hired on June 10, 1996, at a starting salary of $5 per hour
and is still a Northside employee (R. Exh. 4).
On June 14, 1996, the chess game between the Union and
Northside reached critical mass. That Friday morning Martinez
presented Dorries with an undated letter from Shaffer disclosing
that “David Wenger and Jesse Martinez, Jr. are now members of
IBEW Local 153” and that they would stay on as employees to
organize the Company (GC Exh. 16; Tr. 331). Dorries was
shocked at receiving the letter from Martinez because he genu-
inely liked him as an employee and was disappointed that he
would switch allegiance to the Union. As explained supra, how-
ever, he was less surprised about Wenger, whom he viewed as a

4 Only Wenger failed to receive 8 hours’ holiday pay for Monday,
Memorial Day, May 27, 1996. It is unknown why.
5 Martinez took a vacation day on June 7, 1996.
NORTHSIDE ELECTRICAL CONTRACTORS 1567
as a temporary employee (Tr. 622–623). According to Marti-
nez, Dorries then told his men that there would be “no union talk
during working hours,” (Tr. 332); a statement Dorries denies
ever making (Tr. 621). Wenger was late for work that morning
and did not attend the Martinez-Dorries meeting (Tr. 407). Mar-
tinez added that Dorries also “may” have said that he was going
to watch Wenger’s time more closely upon receiving the letter
(Tr. 332). However, John Bishop and Randy Schug both denied
ever hearing Dorries tell the employees that they could not talk
about the Union (Tr. 554, 572–575).
Both Martinez and Wenger performed their work that day,
June 14, but at the end of the day Dorries informed both men,
plus Curtis Duttenhaver, that they were laid off for two weeks
due to “lack of work” caused by the wet spring job slowdown.
Dorries added, though, that recalls would be possible in the
next two weeks. According to Dorries, he had already decided
on the layoffs one week earlier but had not told either man,
hoping for an upswing in work (Tr. 79–81, 335). Also that day,
Dorries was ready with a letter dated June 14, 1996, to Wenger
complaining about his tardiness (GC Exh. 35). But it was not
delivered to him because of the layoff that same day and Dor-
ries’ reluctance to pile on bad news. According to Dorries, it
was prepared before June 14, but his wife was late in typing it
up (Tr. 245–249, 601–602).
Beginning the week of June 17, 1996, only John Bishop re-
mained as an employee, working just 36-1/2 hours that week.
Randy Schug was also laid off that week (R. Exh. 41; Tr. 88,
553). On Friday of that week, June 21, Dorries recalled Marti-
nez for 7-1/2 hours of work (R. Exh. 41; Tr. 336). Because
Shaffer had decided to start picketing Northside’s jobsites,
Martinez alerted Shaffer as to his recall so that Shaffer knew
where to picket (Tr. 383). Work picked up a little the week of
June 24, with Bishop working 39-1/2 hours, Schug 26 hours,
and Tom Dorries 6-1/2 hours (R. Exh. 42). Martinez elected
not to return for any more sporadic hours, declining even to
respond to Dorries’ second recall request (Tr. 85, 337–339).
Moreover, Martinez decided not to respond to a certified letter
from Dorries, dated July 9, 1996, inquiring about his “inten-
tions . . . for work.” Also, the letter stated that “if I don’t hear
from you within 48 hours of receipt of this letter I will assume
that you have no intention of returning to work here.” (R. Exh.
2.) But Martinez had already secured another job—on June 24,
1996—at a union organized employer (Tr. 387), without even
telling Dorries. As for Wenger, Dorries also sent him an iden-
tical July 9, 1996 certified letter (R. Exh. 1). Likewise, Wenger
never responded and had also gotten another job by then (R.
Exh. 21). Indeed, Wenger picketed the jobsite he had worked
at on June 27, 1996—his first and last “recall” day of work with
Northside (Tr. 408–410, 434).
On June 28, 1996, Shaffer visited Northside to apply for a
job again, with a set of three different people. This visit came
after sending Dorries a letter on June 18, 1996, in which he
expressed concern about Northside’s downturn in work (R.
Exh. 6). But Shaffer was told that Northside was not acccept-
ing new job applications (Tr. 120). In July, however, work
began to pick up, according to Dorries (Tr. 630). For the 4-day
week of July 1–5, John Bishop and Randy Schug each worked
32 hours, and Tom Dorries worked 33 (R. Exh. 43).
Shaffer filed another unfair labor practice charge with the
Board on September 26, 1996, regarding the layoff and termi-
nation of Martinez and Wenger (GC Exh. 1(c)). He filed yet
another charge on December 13, 1996, claiming that Northside
improperly interrogated applicants for employment about their
union sympathies before hiring them, and promulgated an im-
proper no-solicitation rule on June 14, 1996 (GC Exh. 1(e)–
(g)). Shaffer was busy filing charges in 1996 against nonunion
companies: there were at least two other such companies on his
list that year (Tr. 14–44; R. Exhs. 8–9). Finally, after the Gen-
eral Counsel’s January 31, 1997 issuance of a complaint against
Northside, Shaffer visited the company yet again on February
14, 1997, to apply for work (R. Exh. 7). This marked his 12th
or so job application to various nonunion companies; none of
which resulted in a single offer (Tr. 146). Also in February,
Wenger telephoned Libbey Dorries asking about work in order
to “plug up” Northside’s hiring processes (Tr. 411–412, 444).
Pursuant to Dorries’ lawyer’s advice, however, Northside sent
Wenger a letter inviting him to file another job application (GC
Exh. 36; Tr. 250–252).
III. ANALYSIS
A. Failure to Hire and/or Consider for Hire January
1996 Applicants
The General Counsel contends that Dorries’ “only possible
reason” for refusing to interview Ashby and Weidler, and refus-
ing to hire Shaffer, on January 17, 1996, was Dorries’ union
animus. Respondent counters that, as mere job applicants and
union organizers, these three individuals are not “employees”
of Northside under the Act entitled to protection under Section
8(a)(3). Alternatively, Respondent argues that their $22-per-
hour wage history is the reason they were not interviewed or
hired.
Clearly, an employer violates Section 8(a)(3) if he refuses to
hire a qualified job applicant because of that applicant’s union
membership or sympathies. Phelps Dodge Corp. v. NLRB, 313
U.S. 177 (1941). Thus, an employer must evaluate each appli-
cant in a nondiscriminatory manner. Shawnee Industries, 140
NLRB 1451 (1963), enf. denied on other grounds 333 F.2d 221
(10th Cir. 1964). Further, once a prima facie case of discrimi-
nation has been shown, an unfair labor practice is established
unless the employer can prove that the applicants would still
not have been hired absent the discriminatory motive. NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
Turning to the facts of this case, the General Counsel has estab-
lished its prima facie case of an unfair labor practice regarding
Dorries’ refusal to hire Shaffer, Ashby, and Weidler. Specifically,
the following six criteria, as set forth in NLRB v. Fluor Daniel, Inc.,
102 F.3d 818, 832 (6th Cir. 1996), have been met:

(1) The employer is covered by the Act;
(2) The applicants are covered by the Act;
(3) The applicants applied for the job and were quail
fied;
(4) Despite their qualifications the applicants were not
hired;
(5) Antiunion animus contributed to Dorries’ decision
not to hire the applicants; and
(6) The job remained open and Dorries continued to
seek applicants from persons with the applicants’
qualifications.

In analyzing these criteria, Northside is mistaken that NLRB
v. Town & Country Electric, 516 U.S. 85 (1995), stands for any
proposition other than the clear classification of Shaffer,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1568
Ashby, and Weidler as “employees” under the Act.6 The only
other of the six criteria in contention is number (5): whether
Dorries’ antiunion animus contributed to his decision not to
hire any of the three individuals. The record evidence estab-
lishes, however, that Dorries possessed a degree of antiunion
animus and that it so contributed to his decision. At the outset,
he admitted that a union “takes away the Employer, employee
relationship.” (Tr. 651). Further, Dorries’ actual conduct indi-
cated more than a mere dislike of unions. For example, he
never bothered to ask Shaffer whether he would accept a salary
less than his $22-per-hour journeyman rate. Also, Dorries
never granted Ashby nor Weidler interviews despite their pres-
ence in the office.
However, the preponderance of the record evidence shows
that Dorries’ main reason for declining to hire these three indi-
viduals had nothing to do with their union status.7 Rather, it
was the current $22 per hour wage histories of Shaffer, Ashby,
and Weidler which torpedoed their chance of receiving job
offers. At the outset, the record is clear that Northside is a
small company which, since 1994, has paid a maximum starting
salary of $12 per hour, and an average starting salary of $7.37
per hour (R. Exh. 4). Thus, these three applicants’ current
wage histories, openly disclosed as union members, did not fit
Northside’s business operation. While Dorries failed to grant
interviews to Ashby and Weidler, it is undisputed that he had a
pending appointment at the conclusion of Shaffer’s interview.
Moreover, Northside’s case is bolstered by Dorries’ February
13, 1996 interview of Carey Schloemer, who sought work as a
nonunion, $22-per-hour applicant, and never received an offer.
Thus, the Schloemer interview shows that the prime disqualifi-
cation for working at Northside was a high wage history, not
union membership. Further, Dorries has hired union people in
the past: Douglas Gfell, for example in 1995 (R. Exh. 50).
Finally, although Dorries did hire one individual in 1995 with a
high salary history of $42,000—Ray Roberts (GC Exh. 28)—
that individual, unlike Shaffer, Ashby and Weidler, was out of
work for 1 year and settled on a starting salary of just $6.50 per
hour (R. Exh. 4). And it was the same story with Jesse Marti-
nez from Dorries’ perspective: a reported salary history of $18
per hour but a period of 8 months of unemployment.
Addressing several points made by the General Counsel, it is
first incorrect that “Dorries testified he was concerned that
Shaffer’s Union activities would cause problems” for North-
side. Rather, a complete reading of Dorries’ testimony reveals
that the reason he failed to hire Shaffer was his “$22.50 an
hour” wage, not his union affiliation (Tr. 106). Second, the
General Counsel incorrectly states that Dorries had a “stan-
dard” policy of interviewing all job applicants; the record is
silent on the question of whether such a policy existed. Third,
unlike NLRB v. Fluor Daniel, Inc., supra, Dorries did not reject
all three applicants for interviews that day. Fourth, too much is
made of the “panicking” of Dorries’ secretary upon the arrival
of Messrs. Shaffer, Ashby and Weidler on January 17, 1996.
As an initial matter, the secretary, Sheila King, never testified.

6 While the Supreme Court did not reach the ultimate question of
whether an unfair labor practice occurred in that case, they held that an
“employee . . . does not exclude paid union organizers.” 516 U.S.,
supra at 98.
7 Therefore, it is unnecessary to address Northside’s contention that
the appropriate standard of proof for its affirmative defense on this
charge is less than a preponderance of the evidence—only a “legitimate
business justification” standard.
Also, Dorries explained that it was unusual for three applicants
to arrive simultaneously at their small office for interviews for
one advertised job (Tr. 105). Thus, it cannot be concluded that
a corporate panic ensued because of the arrival of three openly
union applicants that day.
In summary, Philips Dorries’ decision not to hire Shaffer,
Ashby and Weidler was not as pure as the driven snow. North-
side has always been a nonunion company and Dorries intends
to keep it that say. However, the preponderance of the record
evidence regarding this particular January 1996 incident estab-
lishes that Dorries’ decision was based on a legitimate business
reason, unrelated to union animus, and therefore not a violation
of Section 8(a)(3). See Wireways, Inc., 309 NLRB 245 (1992).
B. Interrogation of Martinez
This issue concerns the two interviews of Jesse Martinez
conducted by Dorries in February and March 1996, and
whether Dorries improperly interrogated Martinez about his
union sympathies. Of course, unbeknownst to Dorries at the
time, Martinez was a union member applying as a salt for a job
at Northside. The General Counsel’s theory is that because of
the record evidence establishing Dorries’ union animus, “it can
be inferred that Dorries would interrogate job applicants as to
their Union membership, activities and sympathies in order to
exclude Union members from his work force.” Northside’s
defense rests on the assertion that no prohibited interrogation of
Martinez occurred and, moreover, that this aspect of the com-
plaint should be dismissed as untimely filed.
This issued of alleged interrogation presents a stark factual
disagreement between the parties. Specifically, Dorries denied
that the subject of unions came up in the February 16, 1996
interview of Martinez, while Martinez testified that Dorries
proclaimed that union members were not welcome to work at
Northside. As for the second interview of Martinez on March
29, 1996, both parties agree that Dorries brought up the subject
of unions, but Northside explains that Dorries did so only to put
Martinez on notice that Shaffer had filed an unfair labor prac-
tice charge against the company on February 20, 1996.
It is unnecessary to resolve the discrepancies between the
two versions of the two interviews because Northside is correct
on its procedural argument: the December 13, 1996 charges
(GC Exh. 1(e)) regarding the alleged interrogations of February
16 and March 29, 1996, are barred by Section 10(b) of the Act.
This “statute of limitations” provides that “no complaint shall
issue based upon any unfair labor practice occurring more than
six months prior to the filing of the charge with the Board. . . .”
Here, the first mention of any improper interrogation by Dor-
ries occurred 8-1/2 and nearly 10 months, respectively, after the
alleged incidents. By way of summary, Shaffer’s first charge,
filed promptly in February 1996, concerned Dorries’ refusal to
hire Shaffer, Ashby and Weidler in January 1996. Shaffer’s
second charge, filed in September 1996, concerned the June
1996 layoff of Martinez and Wenger. That, of course, would
have been the logical vehicle to allege the interrogation of Mar-
tinez, who was already long gone from Northside’s employ.
But, without any explanation or justification in the record, the
interrogation charge was not filed until December 13, 1996.
The General Counsel contends that the December 1996 charges
are permissible because they “are related to” the original
charges and “grow out of them while the proceeding is pending
before the Board.” NLRB v. Fant Miller Co., 360 U.S. 301
(1959), citing National Licorice Co. v. NLRB, 309 U.S. 350
NORTHSIDE ELECTRICAL CONTRACTORS 1569
(1940). Further, the General Counsel contends that this De-
cember 1996 amendment comports with the criteria of Nickles
Bakery of Indiana, 296 NLRB 927 (1989), permitting late
amendments where:

(1) the allegations involve the same legal theory as the
timely filed allegations;
(2) the allegations arise from the same factual circum-
stances or sequences of events; and
(3) the Respondent would raise similar defenses to
both allegations.

See also Redd-I, Inc., 290 NLRB 1115 (1988). Northside
agrees with the General Counsel’s legal criteria but comes to an
opposite conclusion.
As noted supra, the Presiding Judge agrees with Northside’s
resolution of this issue. First, the General Counsel’s complaint
alleges a Section 8(a)(1) violation regarding the interrogation of
Martinez, while alleging an 8(a)(1) and 8(a)(3) violation
regarding the refusal to hire Shaffer, Ashby and Weidler.
Hence, different legal theories apply to the two alleged
violations. Second, the two charges involve two distinct sets of
people; one set of three people not hired at all (and two of three
not interviewed at all), and Martinez who was interviewed
twice and ultimately hired. Moreover, it is sophistry for the
General Counsel to contend that both charges “are part of the
employers’ overall plan to resist employees’ unionization. . . .”
Jennie-O Foods, 301 NLRB 305 (1991). If that is indeed the
only standard, virtually every late-filed amendment would be
permitted. Lastly, Northside’s defenses to the two sets of
charges are quite different. Thus, it is concluded that the
alleged interrogations first raised in GC Exh. 1(e) are time-
barred by Section 10(b). Accordingly, paragraph 5(a)(i) and
(ii) of the Complaint will be dismissed.8
C. June 1996 No-Solicitation Rule and Threatened Reprisal
The genesis of these alleged 8(a)(1) violations lies in Marti-
nez’s presentation of the “coming out” letter to Dorries on the
morning of June 14, 1996, in which the union status of Marti-
nez and Wenger was formally revealed. According to Marti-
nez, Dorries’ reaction to this disclosure was his immediate
promulgation of a “no union talk during working hours” rule;
the first such Northside rule barring talking about anything.
The General Counsel theorizes that this antisolicitation rule was
clearly in retaliation for the letter presented by Martinez. As
for the reprisal aspect of the complaint, the General Counsel
contends that Dorries also threatened to watch Wenger’s time
more closely upon receiving the letter. Northside contends that,
aside from being disappointed in Martinez’s “defection” to the
Union, Dorries promulgated no such antiunion-talking rule, nor
threatened anything about Wenger. Moreover, Respondent
argues that these alleged matters are likewise time-barred under
Section 10(b) of the Act. Specifically, although they were first
raised in a charge dated December 13, 1996, just within the six-
month period following June 14, 1996, they were not mailed
until December 16, 1996 (GC Exh. 1(g) and (h)).
At the outset, this Section 10(b) analysis yields a different
result. Again pursuant to the criteria of Nickles, the events of
June 14, 1996, are all interconnected and stem from Martinez’s
presentation of the union letter to Dorries that morning. Ac-
cording to the General Counsel, that triggered the antiunion

8 See par. 30, below, however, for a resolution of the Dorries v. Mar-
tinez credibility matter.
rule and reprisal remark from Dorries, as well as the layoffs of
Martinez and Wenger at the end of that workday. Thus, the
antisolicitation and reprisal charges, although received by
Northside just over six months after June 14, 1996, clearly
relate to the layoff charge which was timely filed. Accord-
ingly, they will be considered.
Dealing first with the alleged threat to watch Wenger’s time
more closely, it is significant that Martinez only testified that
Dorries “may” have said it. Indeed, Wenger admitted that he
was in fact late for work that morning. Therefore, given Dor-
ries’ credibly offered denial, the record evidence does not sup-
port a conclusion that Dorries threatened Wenger, via Martinez
or anyone else, in retaliation for receiving the letter on June 14.
Turning to the alleged antisolicitation rule, only Martinez testi-
fied that Dorries promulgated it. Dorries flatly denied issuing
such a rule, and he was backed up by two of his employees,
John Bishop and Randy Schug. In this regard, if Dorries really
wanted to stifle the organization of his company, on learning
that Martinez and Wenger were now union members, he argua-
bly would have told Bishop and Schug of this no-talking rule.
Moreover, no such written rule was issued, as was Dorries’
practice regarding other on-the-job conduct. So, that leaves
Martinez’s uncorroborated testimony. But if it comes down
solely to a choice of believing Martinez or Dorries, the record
contains no extrinsic evidence of untruthfulness by Dorries.
However, the same cannot be said of Martinez, who falsified
his Northside job application and testified that he would “per-
haps” lie in order to salt for the union (Tr. 353–354). In sum,
the General Counsel has failed to prove by a preponderance of
the evidence that Dorries violated Section 8(a)(1) on June 14,
1996, with an anti-solicitation rule or threatened reprisal.
D. Layoffs and Discharges of Martinez and Wenger
Again, the General Counsel must establish that the employer’s
union animus was a motivating factor in the decision to lay off
Martinez and Wenger. If this is established then the Respondent
has the burden of proving that the layoffs would have occurred
anyway, for permissible reasons. Wright Line, 251 NLRB 1083
(1980). The presiding judge concludes that the General Counsel
has met its burden. As already discussed, there is abundant evi-
dence of Dorries’ desire to keep Northside nonunion, albeit insuffi-
cient evidence so far to sustain a violation of the Act. That
changes, however, with this allegation of the General Counsel.
First, the plain fact is that the timing of the layoffs of Martinez and
Wenger—the same day as their revelation as union members—is
highly suspicious. See NLRB v. Rain-Ware, Inc., 732 F.2d 1349,
1354 (7th Cir. 1984). Although Dorries claimed that these layoffs
were in the works for at least several days before June 14, there is
no evidence to corroborate this self-serving explanation. Second,
the affirmative defense of a work slowdown caused by the wet
spring is unpersuasive. In this regard, Northside failed to produce
any evidence about its business cycles from 1983 to 1995. Surely,
it was wet before in Indiana and/or other general contractors ex-
perienced work slowdowns. Without the complete picture of
Northside’s 15-year business cycles, it is impossible to conclude
whether the spring of 1996 was an anamoly necessitating the layoff
of half its workforce on the same day. Third, it is highly illogical
that if Dorries was indeed worried about a falling workload the
week of June 10, he would have hired another employee on June
10: his son Thomas. In sum, Northside’s proffered defense does
not establish, by a preponderance of the evidence, that Martinez
and Wenger were laid off for a permissible reason.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1570
Turning to the second of the General Counsel’s allegations,
there is no evidence of a “discharge” of Martinez and Wenger.
Indeed, Northside had an established business practice of tem-
porary layoffs, as evidenced by Randy Schug’s short-term idle-
ness in March 1996. Nor was there any constructive discharge,
which is defined as a burden imposed on an employee by an
employer which “must cause, and be intended to cause, a
change in his working conditions so difficult or unpleasant as to
force him to resign.” Crystal Princeton Refining Co., 222
NLRB 1068, 1069 (1976). Here, Dorries recalled Martinez for
work for one day the week after the layoff, and attempted to do
for one day the second week. Wenger was recalled for one day
during that second week also. The General Counsel character-
izes these recalls as “sporadic. . . designed to cause them to
look for employment elsewhere. . . .” While both men indeed
found work elsewhere—Martinez on June 24 and Wenger
around that time as well—the Presiding Judge concludes that
both Martinez and Wenger voluntarily resigned from North-
side, at the very latest during the week of July 9, 1996, when
they failed to respond to Dorries’ certified letters inquiring
whether they intended to come back to work. Moreover, these
relatively short two-week layoffs were not accompanied by
other adverse changes in the employment of Martinez and Wenger
to force their resignations. Compare Norris Concrete Materials,
282 NLRB 289 (1986); Boyles Galvanizing Co., 239 NLRB 530
(1978). Further, the similar short-term layoff of Randy Schug on
June 14—his second of the year—did not cause him to leave. In
sum, there was no discharge, constructive or otherwise, of Mar-
tinez or Wenger. Rather, with their Northside organizational
efforts at an apparent end, Martinez and Wenger unilaterally
resigned upon being temporarily laid off. See Central Casket Co.,
225 NLRB 362 (1976). As such, their “hasty self-help action”
does not warrant relief, such as reinstatement, under the Act.
Groves Truck & Trailer, 281 NLRB 1194 (1986).
IV. CONCLUSIONS OF LAW
1. The Respondent, Northside Electrical Contractors, Inc., is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union, the International Brotherhood of Electrical
Workers, Local Union No. 153, a/w International Brotherhood
of Electrical Workers, AFL–CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. The General Counsel has failed to prove its allegations at
paragraph 6(a) and (b) of the complaint that Respondent vio-
lated Section 8(a)(1) and (3) of the Act in refusing to hire or
consider for hire Carl Shaffer, Todd Ashby, and Paul Weidler.
4. The complaint’s interrogation allegations at paragraph
5(a)(i) and (ii) are dismissed pursuant to Section 10(b) of the
Act.
5. The General Counsel has failed to prove its allegations at
paragraphs 5(a)(iii) and (iv), and 5(b) and (c) regarding anti-
solicitation and threatened reprisals.
6. Pursuant to paragraphs 6(c), (e), and 8, of the complaint,
Respondent violated Section 8(a)(1) and (3) of the Act by lay-
ing off its employees, Jesse Martinez and David Wenger, on
June 14, 1996. However, pursuant to paragraph 6(d), the Gen-
eral Counsel has failed to prove that Respondent discharged
Jesse Martinez or David Wenger.
7. The unfair labor practices of Respondent described in
paragraph 6, above, affect commerce within the meaning of
Section 2(6) and (7) of the Act.
ORDER
Accordingly, IT IS ORDERED that Respondent, Northside
Electrical Contractors, Inc., Elkhart, Indiana, its officers,
agents, successors, and assigns, shall9
1. Cease and desist from, in any like and related manner, in-
terfering 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) Make Jesse Martinez and David Wenger whole for any
loss of pay they may have suffered by reason of their unlawful
layoffs, to be computed as set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
(b) Preserve and, within 14 days of a request, make available to
the Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Within 14 days from the date of this Order, remove from its
files, any reference to the unlawful layoffs, and within 3 days
thereafter notify the former employees in writing that it has done so
and that it will not use the layoffs against them, in any way.
(d) Within 14 days after service by the Region, post at its fa-
cility in Elkhart, Indiana, copies of the attached notice marked
“Appendix.”10 Copies of the notice, on forms provided by the
Regional Director for Region 25, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous 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 involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since February 20,
1996.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
3. IT IS ORDERED that the complaint is dismissed insofar
as it alleges violations of the Act not specifically found.

9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions and recommended
Order shall, as provided in Section 102.48 of the Rules, be adopted by
the Board and all objections to them shall be deemed waived for all
purposes.
10 If this Order is enforced by a judgment of a United States Court of
Appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”