Oil Capital Electric

National Labor Relations Board - Board Decisions

Jul 31, 2002

337 N.L.R.B. 947 (N.L.R.B. 2002)

OIL CAPITAL ELECTRIC 947
Oil Capital Electric and International Brotherhood of
Electrical Workers, Local Union No. 584. Cases
17–CA–17290 and 17–CA–17418
July 31, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND BARTLETT
On May 19, 1997, Administrative Law Judge John H.
West issued the attached decision finding, inter alia, that
the Respondent violated Section 8(a)(3) and (1) of the
Act when it refused to hire union applicants; and violated
Section 8(a)(1) when it interrogated a job applicant. The
Respondent filed exceptions and a supporting brief. The
General Counsel filed partial exceptions, a supporting
brief, and a brief in support of the judge’s decision.
On May 11, 2000, the National Labor Relations Board
issued its decision in FES (A Division of Thermo Power) ,
331 NLRB 9 (2000), setting forth the framework for
analysis of refusal-to-hire and refusal-to-consider allega­
tions. On June 7, 2000, the Board remanded this case to
the judge for further consideration in light of FES includ­
ing, if necessary, reopening the record to obtain addi­
tional evidence on (1) the determination of whether there
were available job openings at the time the alleged dis­
crimination occurred and (2) whether the applicants had
training and experience relevant to the announced or
generally known requirements of the job openings.
On February 21, 2001, the judge, noting that the
Respondent and General Counsel each agreed that he
should not reopen the record for additional evidence or
exhibits, issued the attached supplemental decision af­
firming his conclusion that the Respondent violated Sec­
tion 8(a)(3) and (1) of the Act. The Respondent filed
exceptions and a supporting brief. The General Counsel
filed a supplemental brief with the postremand brief
submitted to the judge.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision, the supplemen­
tal decision, and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find­
ings,1 and conclusions only to the extent consistent with
this Decision and Order.
1 The Respondent and General Counsel 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.
This case arises in the context of a salting campaign
conducted by the Charging Party Union in an attempt to
organize the employees of the Respondent, an electrical
contractor with a facility in Tulsa, Oklahoma. From
January through June 1994, several union members
sought to apply for electrician positions with the Re­
spondent and were denied employment.
The judge found that the Respondent violated Section
8(a)(3) when it refused to hire 21 union applicants who
appeared en masse at the Respondent’s office to apply
for jobs. Additionally, the judge found that the Respon­
dent violated Section 8(a)(3) when it refused to hire
seven union applicants who individually sought to apply
for jobs at various times. Finally, the judge found that
the Respondent violated Section 8(a)(1) when it interro­
gated a union applicant about his and others’ union ac­
tivities. For the reasons stated below, we reverse the
judge’s findings that the Respondent violated the Act,
and shall dismiss the complaint in its entirety.
1. On March 1, 1994, a group of 21 union applicants 2
appeared en masse at the Respondent’s office to apply
for employment. The Respondent advised that it was not
accepting emp loyment applications.
After quoting the analytical framework of FES, the
judge summarily concluded that the General Counsel had
proven the three required elements of a refusal-to-hire
violation, i.e. (1) the Respondent was hiring at the time
of the alleged unlawful conduct, (2) the applicants had
experience relevant to the generally known requirements
of the positions for hire; and (3) antiunion animus con­
tributed to the decision not to hire the applicants. See
FES, supra at 12.
In its exceptions, the Respondent contends that the
judge erred in finding that the General Counsel carried
his burden of proving, as required by FES, that the “ap­
plicants had the experience or training relevant to the
announced or generally known requirements” of the jobs
for which they applied. Id. We find merit in the excep­
tion.
From January through June 1994, the Respondent was
seeking to hire, and did hire, approximately 34 journey-
men electricians and apprentice electricians. Clearly, the
“generally known requirements” of the available posi­
tions entailed some experience or training as a journey-
man or apprentice electrician. No party disputes this.
2 The 21 alleged discriminatees are Chris Arena, Roger Harris, Mile
Highwood, Dan Miller, Gerald Molloy, Jim Rogers, Dennis Lawrence,
Weldon Long, Lawrence Houser, Steve Morgan, Kenneth Nelson, Ron
Pitman, Roy Sheppard, Dana Benton, Bobby Risenhoover, Danny
Risenhoover, Dusty Oldham, Jerry Porter, Gary Ward, Jim Pitts, and
Charles Lackey Jr.
337 NLRB No. 150
948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Although the judge found that the applicants had ex­
perience relevant to the generally known requirements of
the positions for hire, he failed to refer to any evidence
supporting this finding. Our review of the record reveals
that, with but one exception, there is, in fact, no such
evidence. The union applicants did not testify at the trial.
Nor did the General Counsel provide any documentary
evidence as to their experience or training. The one ex­
ception concerns Charles Lackey Jr., whose employment
application was introduced into evidence not by the Ge n­
eral Counsel, but the Respondent. In its brief, the Re­
spondent concedes that Lackey possessed the requisite
experience or training. Despite the paucity of evidence
on this issue—a matter specifically raised in our remand
Order—the General Counsel elected to rest on the pre-
sent record and did not seek to adduce additional evi­
dence.
FES plainly places on the General Counsel the burden
to show the applicants’ relevant experience or training.
Here, there is simply no evidence to carry this burden
with respect to 20 of the 21 applicants. Therefore, with
respect to these 20 applicants, we find that the General
Counsel has not established one of the three critical ele­
ments of a discriminatory refusal-to-hire violation. With
respect to the 21st applicant (Lackey), we find, for the
reasons set forth in the next section of our decision, that
the General Counsel has not established a separate crit i­
cal element, i.e., that antiunion animus contributed to the
adverse employment action.3
Accordingly, we reverse the judge’s findings that the
Respondent violated Section 8(a)(3) and (1) when it re-
fused to hire the 21 union applicants.
2. The following union applicants sought employment
with the Respondent between January and March 1994:
Lonnie Turnipseed and Cecil Blackwood on January 12;
Larry Spencer on January 13; Kevin Stone on February
21; and John Bell and Larry Crouse on March 22.4 The
Respondent refused to hire them.
The judge found that the Respondent violated Section
8(a)(3) and (1) when it refused to hire these six individu­
als. In finding that the refusal to hire them was unlaw­
fully motivated, the judge relied on the following: (1)
the Respondent’s alleged interrogation of union applicant
Gary Stottlemyre II; (2) contrary to the Respondent’s
claim that it held applications for only 14 days, it kept
3 In light of these findings, Member Bartlett finds it unnecessary to
address whether FES correctly identified all the elements necessary to
establish a refusal-to-hire violation. Specifically, he finds it unneces­
sary to address whether, in order to establish a refusal-to-hire violation,
the General Counsel must also prove that the alleged discriminatees are
genuine or bona fide applicants.
4 A seventh applicant, Gary Stottlemyre II, is discussed infra.
some applications on file beyond 14 days; (3) the appli­
cants whom the Respondent hired “were known indi­
viduals in that they were referred . . . by a source or they
were former employees”; and (4) contrary to the testi­
mony of the Respondent’s president, the “not-taking-
applications” sign was not posted when Bell and Crouse
sought employment.
The Respondent has excepted to the judge’s finding of
these violations. For the reasons set forth below, we find
merit in this exception.
First, for the reasons stated in section 4 of this deci­
sion, we have found that the questioning of Stottlemyre
by the Respondent’s president, James Lewis, was not
coercive and therefore does not violate Section 8(a)(1) of
the Act. As such, Lewis’ questioning does not provide a
basis for finding animus with regard to the hiring deci­
sions. Moreover, the questioning occurred significantly
after the allegedly unlawful hiring decisions. The ques­
tioning occurred on June 7, 1994, 2-1/2 months after Bell
and Crouse sought employment, 3-1/2 months after
Stone sought employment, 4-1/2 months after Spencer,
Turnipseed, and Blackwood sought employment, and 3
months after Lackey sought employment. Under these
circumstances, Lewis’ questioning of Stottlemyre, even
if unlawful, cannot serve as evidence of unlawful moti­
vation for the earlier hiring decisions.
Second, the judge inferred unlawful motivation based
on his finding that, although the Respondent informed
the union applicants that their applications were valid for
only 14 days, it hired two nonunion applicants more than
2 weeks after they filed their applications. Contrary to
the judge, we find that the record does not contain
convincing evidence that the 14-day rule was applied in
such a disparate way as to support a conclusion of
unlawful discrimination.
The judge found that, of the 38 employees and fore-
men the Respondent hired between January and June
1994, 2 of them—Larry Tisdale and Richard Tweed—
were hired more than 2 weeks after they filed their appli­
cations. The judge, however, ignored the Respondent’s
legitimate explanations for these departures from the 14-
day rule. Under the Respondent’s affirmative action
program, minority applicants’ applications remain active
beyond 14 days. Tisdale was a minority applicant.
Tweed applied while he was attending a vocational
school that teaches special skills. The Respondent ac­
tively supports the acquis ition of these special skills,
which are not learned in apprenticeship schools.
The record shows that the Respondent’s treatment of
Tisdale’s application was consistent with its stated hiring
policy and that the Respondent provided a legitimate
business explanation for its treatment of Tweed’s appli-
OIL CAPITAL ELECTRIC 949
cation. Thus, we do not agree with the judge that the
hiring of Tisdale and Tweed provides evidence that the
Respondent’s 14-day rule was applied in such a disparate
way as to support a conclusion of unlawful discrimina­
tion. Rather, the record substantiates the Respondent’s
contention that its hiring policy is to accept employment
applications only when job openings are anticipated and
to maintain those applications in its files for 14 days,
except in instances provided for under its policy or for
legitimate business reasons.5
Third, the judge found that the Respondent’s practice
of hiring only former employees or persons referred by a
known source supported a finding of unlawful motiva­
tion. We disagree.
Contrary to the judge’s finding, the Board has held that
an employer may lawfully apply a policy of hiring only
former employees and persons referred by known indi­
viduals. See Kanawha Stone Co., 334 NLRB 235, 236–
237 (2001) (respondent rebutted Ge neral Counsel’s
prima facie case by showing that its hiring was consistent
with the policy of hiring only former employees, rela­
tives of employees, or referrals by employees).
The judge provided no rationale for why, in the cir­
cumstances of this case, we should find that the Respon­
dent’s policy (hiring only former employees or persons
referred by a known source) was instituted or applied to
avoid hiring union applicants. The record fails to support
such a finding. As we discuss below, the Respondent, in
fact, hired a number of union applicants.
Finally, the judge found, contrary to the testimony of
President Lewis, that a sign reading, “APPLICATIONS
ARE NOT BEING ACCEPTED AT THIS TIME” was not
posted when Bell and Crouse sought employment (em­
phasis in original). Based on his finding that Lewis “was
less than truthful” about why Bell and Crouse were not
allowed to submit applications, the judge inferred an
unlawful motive.6
5 It appears from documentary evidence in the record that the Re­
spondent hired a third individual, Jamie Knight, more than 14 days
after he filed his application. There is no explanation for this apparent
departure from the 14-day rule. Neither the General Counsel nor the
judge made reference to Knight’s hiring.
Even assuming that Knight’s hiring represented an unexplained de­
parture from the 14-day rule, such an isolated occurrence over the
course of 5 months is simply not sufficient evidence to establish unlaw­
ful motivation. J. O. Mory, Inc., 326 NLRB 604, 605 (1998) (one
unexplained departure from legitimate hiring policy did not prove dis­
parate treatment or pretext).
6 The sign was posted when Spencer and Stone sought employment.
Based on discrediting Lewis’ testimony, the judge found that the sign
was not posted when Bell and Crouse sought employment. Although
the judge did not mention their testimony, Turnipseed and Blackwood
also testified that the sign was not posted when they sought employ­
ment.
In the circumstances of this case, we do not agree. The
record demonstrates that since March 1990, after the
Respondent became a nonunion contractor, the Respon­
dent hired at least six applicants7 whose applications
showed union affiliation. All six of these applicants
listed on their applications that they participated in the
Union’s apprenticeship program and, of those, three
listed union employers in their work histories. Several of
these applicants were hired during the January to June
1994 period covered by the General Counsel’s com­
plaint. Given the Respondent’s repeated hiring of union
applicants, the Respondent’s untruthful claim concerning
the “not hiring” sign is not sufficient to warrant the infer­
ence that it unlawfully refused to hire employees because
of their union support or activities.
In sum, we find that the record, fairly considered as a
whole, does not support the judge’s conclusion that the
Respondent’s hiring decisions were unlawfully moti­
vated. Accordingly, we reverse the judge’s finding that
the Respondent violated Section 8(a)(3) and (1) when it
refused to hire the six alleged discriminatees.8
3. On June 7, 1994, Gary Stottlemyre II went to the
Respondent’s facility seeking employment. The Re­
spondent did not hire Stottlemyre. The judge found that
the Respondent violated Section 8(a)(3) and (1) when it
refused to hire Stottlemyre. The Respondent has ex­
cepted. We find merit in the exception.
In his supplemental decision, the judge reiterated his
finding of a violation, even though, as he observed, the
record shows that the Respondent did no hiring on or
after June 7, 1994, when Stottlemyre applied. Citing
footnote 16 in the FES decision, the judge stated that the
General Counsel would have the “opportunity to demo n­
strate at the compliance stage when Stottlemyre would
have been hired to fill an opening.”
The judge’s reliance on footnote 16 in FES is mis­
placed. As an initial matter, FES clearly requires the
General Counsel to show at the hearing that there was at
least one available opening in order to find a refusal to
hire violation. FES, supra at 12. Footnote 16 addresses
the situation where the General Counsel has established
the existence of available openings, but the number of
discriminatees exceeds the number of available openings.
In footnote 16, the Board makes clear that the General
Counsel may refer to compliance “which of the discrimi-
7 The six union-affiliated applicants and their dates of hire are as fol­
lows: Wayne Clark in March 1990, Virgil Holloway in July 1993,
Bernard Gardipe in September 1993, Terry Clark and Vaughn Bearden
in January 1994, and Bill Fryar in March 1994.
8 For these same reasons, we conclude that the General Counsel has
not established that antiunion animus contributed to the refusal-to-hire
Lackey, the 21st applicant discussed above.
950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
natees would have been hired to fill the available open­
ings” only “where the number of discriminatees exceeds
the number of available openings.”
Here, as the judge recognized, the Ge neral Counsel has
failed to show that there were any openings when Stot­
tlemyre applied or thereafter. Thus, because the General
Counsel failed to establish the critical element of an
available opening for Stottlemyre, we reverse the judge’s
finding that the Respondent violated Section 8(a)(3) and
(1) by refusing to hire Stottlemyre.9
4. The judge found that the Respondent unlawfully in­
terrogated Stottlemyre on June 7, 1994. The Respondent
excepts to this finding. For the reasons that follow, we
agree with the Respondent that the questioning of Stot­
tlemyre was not coercive.
On June 7, 1994, when Stottlemyre came to the Re­
spondent’s facility to seek employment, he spoke to the
Respondent’s president, James Lewis. Lewis said that
Stottlemyre’s name sounded familiar to him and asked if
Stottlemyre’s father was a union member. Stottlemyre
answered, “[Y]es.” Later in the conversation, Stottle­
myre said he needed work. Lewis then asked why the
Union was not helping him. Stottlemyre replied that the
Union had expelled him from its apprenticeship program
when he was incarcerated for a crime involving drugs,
and that the Union refused to reinstate him upon his re-
lease from prison.
We recognize that M. J. Mechanical Services, 324
NLRB 812 (1997), states that “questioning a job appli­
cant about his union preferences during a job interview is
inherently coercive and unlawful.” We note the apparent
tension between this statement and the general rule that
the issue of whether a given questioning is coercive is to
be decided on the basis of all the surrounding circum­
stances. See Rossmore House, 269 NLRB 1176 (1984),
affirmed sub nom. Hotel Employees Local 11 v. NLRB,
760 F.2d 1006 (9th Cir. 1985); Sunnyvale Medical
Clinic, 277 NLRB 1217 (1985). We do not resolve the
issue concerning the validity of the above statement in
M. J. Mechanical. Rather, accepting at face value that
statement, we do not believe that it applies to the conduct
in the instant case. The first question herein was about
the union membership of the applicant’s father, not the
applicant himself. The second question simply asked
why the Union was not assisting the applicant. Thus, the
questioning does not fall within the intended scope of M.
J. Mechanical.
Furthermore, the questioning has not been shown to be
coercive under Rossmore House. Given the reversal of
9 The complaint did not allege, and the judge did not find, that the
Respondent unlawfully refused to consider Stottlemyre for employ­
ment. Accordingly, we do not pass on that issue.
the judge’s 8(a)(3) findings, including his finding that the
Respondent unlawfully refused to hire Stottlemyre, there
is no background of discrimination. Further, as we em­
phasize in our decision, there is no showing of employer
hostility to union activity. With respect to the nature of
the information sought, the first question concerning
Stottlemyre’s father represented little more than idle cu­
riosity prompted by Lewis’ recognition of the name. In
addition, there is nothing in the second question to sug­
gest that Stottlemyre reasonably would be coerced. As
stated above, that question, as reasonably perceived, was
aimed only at ascertaining why the Union was not help­
ing Stottlemyre secure work. Stottlemyre truthfully re­
sponded that his drug conviction resulted in his expulsion
from the union apprenticeship program. Under all the
circumstances, we find that the Respondent’s questioning
of Stottlemyre was not coercive. Accordingly, we shall
dismiss the complaint allegation that Lewis unlawfully
interrogated Stottlemyre.
ORDER
The complaint is dismissed.
MEMBER LIEBMAN, dissenting in part.
I join my colleagues in reversing the judge’s findings
that the Respondent unlawfully refused to hire 28 job
applicants. However, unlike my colleagues, I would
adopt the judge’s finding that the Respondent unlawfully
interrogated job applicant Gary Stottlemyre II, given the
nature of the questions asked and the setting in which
they were posed.
On June 7, 1994, Stottlemyre went to the Respondent’s
facility seeking employment. He spoke to James Lewis,
the Respondent’s president. Lewis remarked that Stot­
tlemyre’s name sounded familiar to him and asked if
Stottlemyre’s father was a union member. Stottlemyre
answered, “[Y]es.” Later in the conversation, Stottle­
myre said that he needed work. Lewis then asked,
“Couldn’t [Stottlemyre’s] Union help him?” Stottlemyre
replied that the Union had expelled him from its appren­
ticeship program when he was incarcerated for a crime
involving drugs, and the Union refused to reinstate him
upon his release from prison.
Under Board law, it is well settled that questioning a
job applicant about his or her union affiliation and pref­
erences during a job interview is inherently coercive and
unlawful. M. J. Mechanical Services, 324 NLRB 812,
816 (1997).1
My colleagues contend that Lewis’s questions do not
fall within the scope of M. J. Mechanical Services. In
1 My colleagues emphasize that they are not overruling M. J. Me­
chanical.
OIL CAPITAL ELECTRIC 951
parsing Lewis’s statements, however, they overlook the
pivotal fact that
an employment interview is not an abstract discussion
forum, or an occasion for chance or casual conversa­
tion, but is a session of serious import at which the em­
ployer deals with matters, and propounds correspond­
ing inquiries, designed to determine the suitability for
employment, in the employer’s eyes, of the applicant
being interviewed.
Bendix-Westinghouse Automotive Air Brake Co., 161
NLRB 789, 792 (1966) (citation omitted).
Here, Lewis’s conversation with Stottlemyre about
employment with the Respondent was tantamount to a
job interview. During the conversation, Lewis ques­
tioned Stottlemyre about his father’s and his own rela­
tionship with the Union.
These questions were inherently coercive. First, with
respect to Lewis’s question about Stottlemyre’s father’s
Union affiliation, a job applicant could reasonably inter­
pret this question as an employer’s way of extracting
information about his own union affiliation, preferences,
or sympathies. Second, Lewis’s question regarding the
Union’s “help” with Stottlemyre’s employment search is
directly related to Stottlemyre’s relationship with the
Union and his ability to obtain employment. A job ap­
plicant would reasonably construe the question to mean
that his relationship with the Union is a relevant consid­
eration in the employer’s hiring decision. The question
invites the applicant to disavow any affiliation with the
union and, absent any disavowal, suggests that the af­
filiation would be disqualifying and employment not
available. Accordingly, the Respondent’s interrogation
of Stottlemyre was inherently coercive and violated Sec­
tion 8(a)(1) of the Act.2
Francis A. Molenda, Esq., for the General Counsel.

Frank B. Wolfe III, Esq. (Nichols, Wolfe, Stamper, Nally, Fallis

& Robertson), of Tulsa, Oklahoma, for the Respondent.
2 I note that this violation occurred significantly after the Respon­
dent’s hiring decisions regarding Lonnie Turnipseed, Cecil Blackwood,
Larry Spencer, Kevin Stone, John Bell, Larry Crouse, and Charles
Lackey. Therefore, it does not provide persuasive evidence that those
earlier refusal-to-hire decisions were unlawfully motivated. See Upper
Great Lakes Pilots, Inc., 311 NLRB 131, 136 (1996).
With respect to the applicants named above, at best it might be ar­
gued that the reasons cited by the judge as evidence of unlawful moti­
vation provide a basis to suspect unlawful motivation. Mere suspicion
falls short of establishing unlawful motivation, however. See NLRB v.
Columbian Enameling & Stamping Co., 306 U.S. 292, 300 (1939)
(“[s]ubstantial evidence . . . is more than a scintilla, and must do more
than create a suspicion of the existence of fact to be established”).
Thomas F. Birmingham, Esq. (Birmingham, Morley,
Weatherford & Priore), of Tulsa, Oklahoma, for the Charg­
ing Party.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. The charge in
Case 17–CA–17290 was filed by the International Brotherhood
of Electrical Workers, Local Union No. 584 (Union) on March
24, 1994, and the charge in Case 17–CA–17418 was filed by
the Union on June 1. The latter was amended once and the
former was amended twice. A consolidated complaint (com­
plaint) was issued on August 31, 1994, alleging that Oil Capital
Electric (Respondent) violated Section 8(a)(1) of the National
Labor Relations Act (Act), by interrogating job applicants in
June 1994 concerning their union membership, activities and
sympathies, and the union membership activities and sympa­
thies of others, and Section 8(a)(1) and (3) by refusing to em-
ploy specified job applicants on specified dates during the pe­
riod between January and June 1994 because they formed,
joined or assisted the Union and engaged in concerted activi­
ties, and to discourage employees from engaging in these ac­
tivities. Respondent denies violating the Act as alleged.
On the entire record, including my observation of the de­
meanor of the witnesses, and after due consideration of the
briefs filed by the General Counsel and the Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, maintains an office and place of
business in Tulsa, Oklahoma, and has been engaged in the con­
struction industry as an electrical contractor. The complaint
alleges, the Respondent admits and I find that at all times mate-
rial herein, Respondent has been engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
In Oil Capital Electric, 308 NLRB 1149 (1992), the National
Labor Relations Board (Board) ordered the Respondent, upon
request, to recognize and bargain collectively with the Union as
the exclusive collective-bargaining representative with respect
to certain of Respondent’s employees. It was pointed out by
the administrative law judge in that case, that Respondent was
an active member of the National Electrical Contractors Asso­
ciation (NECA); that between 1972 and 1987 Respondent was a
party to a series of 8(f) prehire collective-bargaining agree­
ments between the Union and NECA; that in 1987 Respondent
unilaterally implemented the terms of NECA’s last offer and
the Union engaged in a strike against Respondent and other
NECA members; that later in 1987 the Union unanimously won
an election with respect to Respondent’s employees and the
Board issued a certification that the Union was entitled, under
952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Section 9(a) of the Act to exclusive representation rights for the
purposes of collective bargaining among certain of Respon­
dent’s employees; and that subsequently Respondent withdrew
its recognition of the Union. As pointed out by General Coun­
sel on brief, in 1993 the United States Court of Appeals for the
Tenth Circuit denied enforcement of the Board’s Order.
During the period involved here, Respondent at times posted
a sign in its reception area which indicated “APPLICATIONS
ARE NOT BEING ACCEPTED AT THIS TIME” (emphasis in
original). James Lewis, Respondent’s president, testified that if
Respondent had a need for someone the sign would be taken
down and that while normally the sign would be taken down for
a day and put back up the following day there were occasions
when the sign was taken down in the morning and put back up
the afternoon of that same day. Lewis also testified that Re­
spondent, unlike a union contractor which can use the union
hall to have employees referred to a job, relies on present em­
ployees to refer applicants, the yellow pages, other non-union
contractors which are faced with a reduction-in-force, Respon­
dent’s supervisors, newspaper ads, vo-tech schools, recruiters
who participate in Respondent’s affirmative action program,
the ABC apprenticeship school which faxes out a list of names
of apprentices who are available to work for ABC member
contractors, customers, the unemployment office, and walk-ins
which account for over 50 percent of its applicants. Further,
Lewis testified that the purpose of the sign was to provide Re­
spondent with a supply of applications that would be current or
rather people who were currently interested in employment;
that another reason for having the sign posted was that there
was a lack of staffing at Respondent; that he conducted the
interviews of the applicants; that when he was out of town,
normally the sign was posted; and that Respondent has stead­
fastly enforced its policy to not take applications when the sign
is posted.
It appears that sometime in the fall of 1993, Respondent
hired Bernard Gardipe who indicated on his application for
employment, Respondent’s Exhibit 3, that one of his past em­
ployers was Local Union 444, IBEW from 1976 to 1984. On
cross-examination Lewis testified that the three most recent
employers which Gardipe listed on his application were non-
union contractors.
On January 7 Respondent hired Huey Bryant. Lewis testi­
fied that when he telephoned the employers listed on Bryant’s
application he was told by a person who identified himself as
Bryant’s uncle that Bryant “moves around quite a bit and he
likes to work union.”
On January 12 Robert Lon (Lonnie) Turnipseed, who has
been a member of the IBEW for over 15 years, filed an applica­
tion for employment with Respondent. When called by Gen­
eral Counsel Lewis testified that, as indicated by General
Counsel’s Exhibit 32, he wrote in the special comments section
of the evaluation regarding this application that “no educational
background provided, provide[d] only (1) years experience
history and no [certificate of degree of Indian blood] C.D.I.B.
card.” Lewis also testified that he wrote on the application
“Industrial Experience—Linder A/A hanger #6”; that Linder is
a union contractor; that Turnipseed listed as educational back-
ground the JATC apprenticeship which is the union apprentice-
ship; and that in reviewing this application he was concerned
about applicant’s prior wage rate which exceeded what Re­
spondent paid its journeymen. This applicant was not hired.
Turnipseed testified that he is a member of the Union; that he
went to Respondent’s facility on January 12; that Charles
Lackey or Tom Quigley at the Union told him to go to Respon­
dent and fill out an application when the job he was working on
was just about over and there was not a lot of work on it; that
he arrived at Respondent’s facility at about 9 a.m.; that he
asked the receptionist at Respondent if he could fill out an ap­
plication; that she got Lewis who gave him an application to fill
out; that after he filled out his application he turned it in and
Lewis came out, they went to a conference room and Lewis
asked him about a prior employer, namely Linder & Associates,
on a job at hanger 6 at American Airlines; that Lewis asked
twice about Linder & Associates which is a union contractor;
that Lewis asked him if he had a CDIB card because Respon­
dent had a job in Tahlequah, Oklahoma, called Talking Leaves
for the Cherokee tribe; that he did not have a CDIB card; that
Lewis asked him about the job he was just finishing, Home
Depot, where he worked for Lenore Rogers, which is not a
union contractor; that he believed that he put the wages he
earned at prior jobs on his application; that he put his union
apprenticeship program on the application; and that he was not
hired by Respondent. On cross-examination Turnipseed testi­
fied that it was his understanding that Respondent lost the bid
on the aforementioned American Airlines hanger to the com­
pany that he worked for; and that when Lewis discussed a
CDIB card he said that at the time he was only hiring for the
Talking Leaves job in Tahlequah. Subsequently, Turnipseed
testified that on his application he listed Tom Quigley and
Charlie Lackey as references. When called by Respondent
Lewis testified that he made an error on Turnipseed’s evalua­
tion sheet in indicating that no educational background was
provided; that he spoke with Turnipseed late in the morning or
in the early afternoon; that Turnipseed did fill out an applica­
tion and Respondent was taking applications on that particular
day; that he told Turnipseed that Respondent was looking for
an employee with a CDIB card for the Talking Leaves project;
that he discussed the Linder/American Airlines hanger job with
Turnipseed because Respondent had bid on that job; that one of
the requirements of the Talking Leaves project was a CDIB
card; and that at that time he was looking for a journeyman.
On January 12 Cecil Blackwood filed an application with the
Respondent. Lewis testified that he wrote in the special com­
ments section of the evaluation form, General Counsel’s Ex­
hibit 33, that “inadequate information provided[.] Past em­
ployee—rated below average[.] Very slow—low production.”
Lewis also testified that he was concerned that this applicant
was paid more by prior employers than Respondent pays. This
applicant was not hired. Blackwood testified that he is a Native
American, specifically a Cherokee, and has a CDIB card; that
he worked for Respondent for 2 weeks in 1983 or 1984 under a
supervisor named Pollack when Respondent was a union con-
tractor; that he went to Respondent’s place of business around 4
p.m. on January 12; that he told Lewis that he wanted to fill out
an application for the Cherokee nation job in Tahlequah; that
Lewis gave him the application, saying that he had a man com-
OIL CAPITAL ELECTRIC 953
ing from Muskogee that day and if he did not show, Lewis
would call Blackwood; that he told Lewis that he was a union
member; that he had been laid off that day from Thompson
Control; that when he worked for Respondent in 1983 or 1984
he was not formally evaluated or told by any supervisor that his
production was low or that he was working very slow; that
when he was laid off by Thompson Control he went to the Un­
ion and Tom Quigley suggested that he go to Respondent and if
he got a job, he should go to work; that the last time he worked
for a nonunion contractor was in 1965 and that contractor took
his shop and men into the Union; that Lewis looked at the ap­
plication in his presence and Lewis signed the application; and
that as Lewis went over the application he did not indicate to
Blackwood that the application was inadequate as far as the
information that Blackwood was providing. When called by
Respondent Lewis testified that he reviewed Blackwood’s ap­
plication and he told Blackwood that Respondent was looking
for a journeyman for the Talking Leaves project; that Black-
wood had a CDIB card; that Blackwood said he was interested
in working on the Talking Leaves project; that Blackwood lived
about 1-1/2 hours from Tahlequah; that he told Blackwood that
he was going to interview another person who was coming
from Muskogee, Terry Clark, for the job and if that did not
work out, he, Lewis, would contact Blackwood; that Terry
Clark had worked for Respondent before and lived near Tahle­
quah; that he saw Terry Clark about 5 p.m. on January 12 and
offered him the job; that Terry Clark had the capacity to be a
lead person and he was not sure if Blackwood, who was quali­
fied for the job, had that capacity; that Blackwood had worked
for Respondent twice previously when it was a union contractor
and his production was deficient; that Respondent’s foreman
Bill Kuykendall told him regarding the second time that
Blackwood was very competent, had a lot of experience but he
worked really slow; and that at the time foremen were part of
the bargaining unit and therefore they were reluctant to issue
written reprimands. Lewis further testified that Blackwood
never had any attendance problems when he worked for Re­
spondent and he never disciplined Blackwood; and that he did
not tell Blackwood that he was looking for a working foreman
and that was not a criteria.
On the morning of January 13 Larry Spencer Jr., who has
been a member of the IBEW since 1990, went to Respondent
looking for employment. He testified that at the time he was an
apprentice and he did not have a job; that Lackey suggested that
he “put in” an application with Respondent; that at Respon­
dent’s facility he asked the receptionist if he could apply for the
Talking Leaves job; that she pointed to a sign and said that
Respondent was not taking applications at the time; that the
receptionist then said, “[w]ait a minute. Let me—I’ll go back
and talk to Jim Lewis for a second”; that he is a Native Ameri­
can, had a CDIB card and is a Kansas Kickapoo; that Lewis
came out to the reception area and talked with him; that Lewis
asked him if he was a journeyman or an apprentice and he told
Lewis that he, Spencer, was an apprentice; that Lewis then
asked him if he was attending the ABC School and he said that
he was not but rather he was attending the JATC again at
IBEW; that Lewis then pointed to a sign and said that Respon­
dent was not taking applications; that when Lewis then asked
him his qualifications he told him he had been working as an
apprentice for 4 years; and that Lewis then said that his project
manager on the job said that Respondent did not need any help
at the time and Spencer could check back later if he wanted to.
On cross-examination Spencer testified that he taped his con­
versation with Lewis without telling Lewis; that he gave the
tape recording of his conversation with Lewis to Lackey; that
he told Lewis that he, Spencer, was applying for the Talking
Leaves job; that he did not stay in touch with Lewis although
Lewis said that Respondent might need some help “down
there” in the future; that he has worked for a nonunion contrac­
tor in the past and he received an exemption from Lackey so
that he would not be fined; that the job he had after applying at
Respondent was with a nonunion contractor and he used a tape
recorder, with the knowledge and approval of the Union, with
that employer; and that he tape recorded his interview with his
next employer, which was a nonunion contractor and when he
was laid off from that job he went to work for a union contrac­
tor. On redirect, Spencer testified that Lewis did not ask about
his CDIB card and he did not tell Lewis about it. Subsequently,
Spencer testified that Lewis first pointed to the aforementioned
sign right after he told Lewis, in answer to a question, that he,
Spencer, was attending the JATC. When called by Respondent
Lewis testified that he did have a discussion with Spencer in the
lobby of Respondent’s facility one morning in January; that the
“APPLICATIONS ARE NOT BEING ACCEPTED AT THIS
TIME” sign was posted; that during the conversation he asked
Spencer if he was an ABC apprentice and Spencer said that he
was with the JATC; that the reason that he asked Spencer about
the ABC apprentice was because he, Lewis was thinking about
Talking Leaves which required an indentured apprentice; that
he told him to stay in touch because he was a potential candi­
date for the Talking Leaves project in that Spencer had a CDIB
card and he was an indentured apprentice. Lewis further testi­
fied that there was discussion after Spencer indicated that he
was in JATC but he was not sure when he advised Spencer of
the sign; and that at the end of the conversation he urged
Spencer to check back with Respondent.
On or about January 13 Respondent hired Terry Clark.
Lewis pointed out that on page 3 of his application, Respon­
dent’s Exhibit 5, Terry Clark listed IBEW apprentice school.
Also Lewis testified that Terry Clark previously worked for
Respondent when it was a signatory or union contractor and its
employees were required to be members of the Union.
On January 17 Virgil Holloway left Respondent’s Talking
Leaves project to take a better paying job. Holloway testified
that Lewis said at the time that Respondent needed employ­
ees—“all the help he could get”—for the Talking Leaves pro­
ject. Lewis testified that at this time the Talking Leaves project
was in a period of growth and when Blackwood came to Re­
spondent looking for a job the Talking Leaves project was in
the same period of growth.
According to General Counsel’s Exhibit 34, on January 21
James Kevin Stone filed an application with the Respondent.
Lewis testified that he wrote in the special comments section of
the evaluation form, General Counsel’s Exhibit 34, “has been
receiving higher wages than . . . [Respondent] pays[.] May be
unstable—like to travel to high paying out of town jobs.”
954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lewis also testified that in 1994 Respondent had out of town
jobs. The date on the application, January 21, 1994, has been
crossed out and February 21, 1994 written on the application.
Also the supplement to the application form, which is signed by
Lewis, is dated “2/21/94.” Lewis testified that he did not fill
out the evaluation forms at the time of the applications.
On January 22 Respondent hired William Scott. Lewis testi­
fied that, as indicated on General Counsel’s Exhibit 3, Scott
was referred by Respondent’s supervisor, George Tracy.
On January 28 Respondent hired Scott Koons. Lewis testi­
fied that, as indicated by General Counsel’s Exhibit 4, Koons
was referred by the apprenticeship director of ABC, Mike Tay­
lor.
On January 29 Respondent hired Vaughn Bearden. Lewis
testified that, as indicated by General Counsel’s Exhibit 5, one
of the reasons Bearden was hired was that he was referred by
Fluor Daniels, which is a merit shop contractor, and he received
a strong rating by Respondent’s former employee Jim Powell.
According to General Counsel’s Exhibit 2, on January 31, Re­
spondent hired Vaughn Bearden. Lewis pointed out that
Bearden’s application, Respondent’s Exhibit 5, indicates under
school JATC apprentice training.
On February 9 Respondent hired Rodney Rooks. Lewis tes­
tified that, as indicated by General Counsel’s Exhibit 6, Rooks
had a good reference by apprenticeship director (ABC) and
Rooks lists as his source ABC.
On February 21 at about 10 a.m. James Kevin Stone, who
had been a member of the IBEW for 5 years, went to Respon­
dent’s facility and asked a lady, apparently the receptionist, if
Respondent had any work. He testified that she told him to
come back at 1 p.m.; that when he went back at 1 p.m. he saw a
sign posted indicating that Respondent was not taking applica­
tions; that at 1 p.m. he had a conversation with Lewis; that he
spoke with Lewis about the work situation in Tulsa; that he
filled out an application; that Lewis said that he had work com­
ing up in Texas and Lewis asked him if he would be interested
in traveling; that he told Lewis that he would travel; that Lewis
asked him about his training and he, Stone, indicated that he
had gone to Vo-Tech; that he discussed with Lewis that fact
that he had worked with Respondent before after it was no
longer a union shop; and that he was not hired. On cross-
examination Stone testified that he did not tell Lewis that he
was tape recording the conversation; that he used the Union’s
equipment, which was supplied by Lackey, to do the recording;
that he took the tape back to the union hall; that he was unem­
ployed when he went to Respondent looking for a job; that he
did not tell Lewis that he was in the Union and he did not know
that Lewis would know that the first company he, Stone, listed
on his application was union; that company was a small con-
tractor; that he did not believe that there was anything in his
application which would have tipped Lewis off that he, Stone,
was in the Union; that he did not go to the IBEW apprentice
school; that he and Lewis discussed the fact that he, Stone,
worked for Respondent before and he put this on the first page
of the application; and that although the application asks for the
applicant’s last four employers, he did not list an employer in
Texas which apparently was one of his last four employers. On
redirect Stone testified that when he worked for Respondent in
the past he never received any disciplinary warnings, write-ups,
or suspensions; that when he was talking with Lewis he used
“union terms” in that he said “time” and “scale.” Lewis testi­
fied that Stone submitted his application on February 21; that
when Stone filled out his application the “APPLICATIONS
ARE NOT BEING ACCEPTED AT THIS TIME” sign was not
posted; that he reviewed Stone’s application with him in the
conference room; that regarding the past employers listed on
the application, he did not know if Burwich Electric is union or
nonunion, he knew Cherokee Electric and M. C. Electric are
nonunion; that nothing on the application communicated to him
that Stone ever had any affiliation with any union; that he chose
Dick over Stone because he believed that Dick was better quali­
fied; that at the time of the application he did not realize that on
page one of the application Stone indicated that he had worked
for Respondent in the past; that Stone did not list Respondent in
the employment history on the application; that Stone indicated
that he was going to stay in the area so traveling was not a ma­
jor concern; that he referred to Stone’s traveling in his evalua­
tion of Stone, namely, “may be unstable—like to travel to high
paying out of town jobs” because willingness to travel is a plus
if Respondent has an out of town job but a minus if the appli­
cant is willing to leave the employ of Respondent to travel to
another job. On cross-examination Lewis testified that Stone’s
traveling made him unstable and his prior wages were too high
at other employers and those were considerations but the pri­
mary consideration was a comparison with the past history of
Dick.
On February 21 Richard Tweed submitted an application,
General Counsel’s Exhibit 30. Lewis testified that he remem­
bered that the sign regarding applications was not posted at that
time; and that he had a discussion with Tweed. Tweed was
hired on May 9, 1994. As set forth on his application, the
source was ABC. On the evaluation Lewis wrote “will be
available when school is out.”
On February 25 Respondent rehired Jackie Dick. Lewis tes­
tified that, as indicated by General Counsel’s Exhibit 7, Re­
spondent will rehire when it needs a journeyman wireman.
When called by Respondent Lewis testified that Dick had a
track record with Respondent in that foreman Gary Cheney
gave Dick a good performance evaluation when Dick worked
for Respondent in 1992; that he went with the personally
proven track record; and that he chose Dick over Stone because
of Dick’s track record with Respondent.
On March 1 a group of about 25 individuals came to Re­
spondent’s facility and indicated that they wanted to apply for
work. Lewis testified that on that particular day the sign was
up and Respondent was not taking applications; that he was not
sure if the individuals in this group were wearing Union para­
phernalia; and that he did not give them applications and none
were hired by Respondent. Charles Lackey testified that he,
Mike Blanchard, who is a organizer, Tom Quigley, who is the
Union’s business agent, and 20 to 22 other people all of whom
are IBEW members, went to Respondent’s facility; and that this
visit was captured on videotape, General Counsel’s Exhibit 35.
Lewis testified that when he told the group that “[w]e are shut
down right now” he meant that Respondent was shut down on
taking applications.
OIL CAPITAL ELECTRIC 955
On March 1 Virgil Holloway went to the Talking Leaves
project in Tahlequah and spoke with Respondent’s job supervi­
sor, who told him that he had to speak with Lewis who did all
of the hiring. Holloway testified that he telephoned Lewis who
said that he would not rehire Holloway because he left him at a
time when he needed all of the help he could get, he “had done
him wrong by leaving . . .” he had burned his bridges and what
goes around comes around; that originally he was hired by
Respondent in July 1993 to work on the Talking Leaves pro­
ject; that he is a Native American (a Cherokee) and has a CDIB
card; that in January he left to take a better paying job in Den­
ver, Colorado; that he became a member of the Union in May
1993; that while he worked for Respondent he discussed the
Union with employees at noon at the jobsite or after work; and
that he kept union stickers on the seat of his car. On cross-
examination he testified that when he left the Talking Leaves
job there was a lot of work there; and that he was not threatened
or disciplined for talking to the employees about the Union. On
redirect Holloway testified that when he hired on with Respon­
dent he told his job supervisor, Cheney, that since the Talking
Leaves project was only 40 hours a week, he, Holloway, might
take a job involving overtime if one came up. Subsequently
Holloway testified that he told his supervisor, Cheney, in Janu­
ary that the reason he was leaving was because he had a chance
to earn quite a bit more money; that no one in management ever
said anything to him about the fact that he was discussing the
Union with other employees at the project; and that Cheney did
ask him if he was a member of the Union. Lewis testified that
Respondent has a practice that if an employee leaves a project
of Respondent like Holloway did to work for more money, then
that employee would not be rehired for Respondent’s project
because it would negatively impact the morale of those who
stayed on the project; and that Respondent has taken this same
approach with other named individuals.
On March 2 Respondent hired Michael Johnson. Lewis tes­
tified that, as indicated by General Counsel’s Exhibit 8, John-
son was highly recommended by someone who works for Re­
spondent.
On March 3 Respondent rehired David Calhoun. Lewis tes­
tified that, as indicated by General Counsel’s Exhibit 10, this
individual also worked for Fluor Daniel.
On March 4 Respondent hired Robert Reece. Lewis testified
that, as indicated by General Counsel’s Exhibit 11, Reece listed
as his referral source ABC.
On March 7 Respondent hired Thomas Suttles. Lewis testi­
fied that, as indicated by General Counsel’s Exhibit 12, Tho-
mas’ educational background was with ABC.
On March 9 Respondent hired Daniel Williams. Lewis testi­
fied that, as indicated by General Counsel’s Exhibit 13, Wil­
liams was referred by Respondent’s employee K. Cooper and
the applicant received a strong rating from J. Hunt of Heritage
Electric which is in the ABC.
On March 9 Respondent hired Richard Brockunier. Lewis
testified that, as indicated by General Counsel’s Exhibit 14, this
applicant was referred by the ABC fax system. Lewis also
testified that ABC would fax names of people who were in their
apprentice program.
On March 10 Respondent hired Bill Fryar. Lewis pointed
out that Fryar’s application, Respondent’s Exhibit 6, lists
IBEW apprenticeship school and lists Wayne Clark as the per-
son who referred him.
On March 14 Respondent rehired Richard Stratton. Lewis
testified that, as indicated by General Counsel’s Exhibit 15,
Respondent’s supervisor rated Stratton very high.
On March 21 Respondent hired Chad Clopton. Lewis testi­
fied that, as indicated by General Counsel’s Exhibit 16, the
applicant was going to attend the ABC apprenticeship school
and he was referred by Steve Cox, who is a supervisor at A &
A Electric. Lewis was not sure if A & A Electric was a mem­
ber of ABC.
On March 21 John Bell, who had been in the Union since
1976, went to a jobsite of Respondent at the University Center
at Tulsa. Bell testified that he spoke with a John Buss in Re­
spondent’s trailer, asking him if he, Bell, could make an appli­
cation; that Buss told him that he, Bell, needed to go to Re­
spondent’s office; that he went to Respondent’s facility but
Lewis was not there and the receptionist told him that it might
be better to catch Lewis the next morning; and that he did not
recall seeing any signs posted when he was in the office.
On March 22 at about 8 a.m. Bell went back to Respondent’s
facility. He testified that he was with Lawrence Crouse; that
Lewis came to the reception area and asked them what they
wanted; that they told Lewis that they wanted to apply for the
job at the University Center; that Lewis said that Respondent
was not taking applications at that time because it was getting
ready to lay off at the end of the month; that Lewis said that
Respondent was slowing down; that although they asked for
one, Lewis did not give them applications to fill out, indicating
that applications were only good for 14 days; and that he was
not hired by Respondent. On cross-examination Bell testified
that he surreptitiously tape recorded the conversation he had
with Lewis; that he has worked for Respondent; that he did not
recall whether there was a sign up when he went to Respon­
dent’s office on March 22; and that Lewis did not say that Re­
spondent had jobs over at “OSU” or that jobs were ready to
come out with one at Sheffield Steel. On redirect Bell testified
that he worked for Respondent in about 1979; and that at the
time Respondent was a union contractor. Crouse testified that
he has been a member of the IBEW for 30 years; that he was a
journeyman in 1994; that he had worked for Respondent in
1984 or 1985 when it was a union contractor; that he did not
see any signs at Respondent’s office; that he asked Lewis for an
application and Lewis said that he was not accepting applica­
tions; that he was wearing his union insignia on a pencil and
possibly a hat; and that he did not get hired at Respondent. On
cross-examination Crouse testified that when he and Bell asked
the secretary about employment she said something about she
would have to see and she left the room. Lewis testified that he
told Bell and Crouse that he “[a]nticipated reduction in person­
nel.” When called by Respondent Lewis testified that the sign
which indicated that applications were not being taken was
posted in the lobby on March 22; that he had a discussion with
Bell and Crouse in the lobby; that he recognized Crouse who
had worked for Respondent several times; that he told Bell and
Crouse, “[W]e’re kind of betwixt and between, that it looks like
956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
there’s maybe a possibility that we may have a down . . . [turn]
and we may have to reduce some of our people in the foresee-
able future”; and that he mentioned some projects that might
come up like Sheffield Steel. Further Lewis testified that at the
time of this conversation Respondent had two jobs, American
Airlines and “Oxy” that were scheduled for completion but
both of them were pushed back; that during June Respondent
did not add any additional people and Respondent had attrition;
that the reduction that he had anticipated in late March was
pushed back to the first of August; and that he did not say in
March 22 that people were being laid off and no one was laid
off at that time. On cross-examination Lewis testified that he
told Bell and Crouse that there was a possibility of things slow­
ing down; that it was possible that Respondent was going to be
laying off people; and that as pointed out by Respondent’s Ex­
hibit 11 and as set forth below notwithstanding the fact that
Lewis told Bell and Crouse on March 22 that there was a possi­
bility of layoffs, Respondent hired a number of additional peo­
ple in March, April, and in May.
On March 24 Respondent hired Timothy Wier. Lewis testi­
fied that Weir was hired on March 21; that, as indicated by
General Counsel’s Exhibit 17, Wier was referred by Alliance
Electric which is an ABC contractor and it was indicated that
he would attend the ABC apprenticeship school. “Hired
3/21/94” is written at the top of Weirs application and the
evaluation has a date of “3/21/94” but General Counsel’s Ex­
hibit 2 and Respondent’s Exhibit 11, both of which were
drafted by Respondent, give March 24 as the hire date.
On March 24 Respondent hired Kirk Shirley. Lewis testified
that, as indicated by General Counsel’s Exhibit 18, Shirley was
referred by Fluor Daniels and he had a high rating from Jim
Powell, who was a former employee of Respondent.
On April 1 Respondent rehired Terry Davis. Lewis testified
that, as indicated by General Counsel’s Exhibit 20, Respondent
will rehire whenever it needs experienced journeymen wire-
men.
On April 4 Respondent hired Larry Tisdale. Lewis testified
that, as indicated by General Counsel’s Exhibit 9, Larry Tisdale
was recruited by Respondent’s former employee Danny
Tisdale, to support Respondent’s affirmative action program.
On April 4 Respondent hired Anthony Samuel. Lewis testi­
fied that, as indicated by General Counsel’s Exhibit 19, Samuel
was referred by former employee Danny Tisdale. Lewis also
testified that Samuel was hired March 27.
On April 5 Respondent rehired James Powell, Lewis testified
that, as indicated by General Counsel’s Exhibit 22, Powell was
a past employee of Respondent.
On April 13 Respondent hired Martin Smemoe. Lewis testi­
fied that, as indicated by General Counsel’s Exhibit 23, this
applicant was referred by ABC fax system.
On April 13 Respondent hired Jim Passmore. Lewis testified
that, as indicated by General Counsel’s Exhibit 21, Passmore
was recruited by Respondent’s Don Branch and Passmore was
an excellent employee for Respondent previously. When called
by Respondent, Lewis testified that Passmore’s application,
Respondent’s Exhibit 8, indicates that Passmore worked in Las
Vegas, Nevada, and Lewis was of the opinion that most of the
work done in that area is done by union contractors. Also,
Lewis pointed out that Passmore’s application listed
JATC/IBEW under school indicating that he completed 4 years;
that Passmore had previously worked for Respondent when it
was a union contractor; and that Passmore indicated in the ap­
plication that he was a disabled Vietnam veteran, which is
something that Respondent tries to be sensitive about.
On April 16 Respondent hired Jamie Knight. Lewis testified
that, as indicated by General Counsel’s Exhibit 24, this appli­
cant was referred by Terry Clark, who is one of Respondent’s
supervisors.
On April 25 Respondent hired Joe Meadors. Lewis testified
that, as indicated by General Counsel’s Exhibit 25, this appli­
cant was referred by Bill Jones of Allen Electric, which is a
member of ABC.
On May 5 Respondent hired William Berger. Lewis testified
that, as indicated by General Counsel’s Exhibit 31, the appli­
cant was formerly employed by Respondent.
On May 9 Respondent hired Donald Scott Thomas. Lewis
testified that, as indicated by General Counsel’s Exhibit 26, this
applicant was referred by Respondent’s employee Joe Mead­
ows and Allen Electric, which as indicated above, is a member
of ABC.
On May 9 Respondent hired Jerald Phipps. Lewis testified
that, as indicated by General Counsel’s Exhibit 27, this appli­
cant’s source was Respondent’s employee Bill Rodden.
On May 9 Respondent hired Richard Tweed. As noted
above, Tweed filed his application on February 21. Lewis testi­
fied that, as indicated by General Counsel’s Exhibit 30, this
applicant was to attend apprenticeship school, that the school
was the ABC school and, as noted above, that the source that
this applicant lists is the ABC school.
On May 11 Respondent hired Gregory Espinosa. Lewis tes­
tified that, as indicated by General Counsel’s Exhibit 28, this
applicant was referred by Don Stafford of C & D Electric,
which is an agency employer, and applicant had 4 years with
the ABC apprenticeship program.
On May 25 Respondent hired Nakia Brownfield. Lewis tes­
tified that, as indicated by General Counsel’s Exhibit 29, this
applicant was recommended by Respondent’s supervisor
George Tracy.
On June 7 Gary Stottlemyre II, who had been a member of
the IBEW for 7 years, went to Respondent’s facility and asked
for an application even though he saw a sign posted which indi­
cated “APPLICATIONS ARE NOT BEING ACCEPTED AT
THIS TIME.” He testified that the secretary asked him to wait
a minute; that she left and Lewis came out and approached him;
that he introduced himself to Lewis and said that he was there
to fill out an application for employment; that Lewis said the
name sounded familiar to him and Lewis asked him if his father
was a member of the Union; that he answered yes to Lewis’
question and Lewis asked him if he had other family members
who were electricians; that when he told Lewis he needed a job
Lewis said “couldn’t . . . [his] union help . . . [him]”; that he
told Lewis that he was dropped from the Union’s apprentice-
ship program upon his return from being incarcerated for pos­
session of marijuana with intent to distribute; that Lewis re­
ferred him to the sign which indicated that Respondent was not
accepting applications; that Lackey told him to apply at Re-
OIL CAPITAL ELECTRIC 957
spondent; and that he did not fill out an application at Respon­
dent and he was not hired by Respondent. On cross-
examination Stottlemyre testified that he was sentenced to
prison for 5 years for selling dangerous drugs; that he was on
parole at the time of his discussion with Lewis; and that his
father is a State representative but he did not recall discussing
this with Lewis. Lewis testified that the “APPLICATIONS
ARE NOT BEING ACCEPTED AT THIS TIME” sign was
posted that day; that the receptionist told him that Stottlemyre
demanded to talk to someone; that he pointed the sign out to
Stottlemyre; that Stottlemyre said that he needed a job to get
into the Union and his father was a State Representative; that he
did not ask Stottlemyre about his father, grandfather, or uncle
being a member of the Union; and that Stottlemyre brought up
the subject of the Union.
Lewis testified that the National Labor Relations Board re-
quested Respondent to prepare an evaluation sheet to show how
it rated applicants so that the Board could evaluate Respon­
dent’s evaluation process. The evaluation sheet was received
as Respondent’s Exhibit 10.
On January 11, 1996, Lackey applied for a position with Re­
spondent, Respondent’s Exhibit 9. Lewis points out that the
application lists the Union as a past employer and gives a job
title of organizer. Lewis testified that when Respondent hired
Lackey he was pretty well established as a charging party, an
organizer for the Union, and the former president of the Union.
B. Analysis
Paragraph 5 of the complaint alleges that about June 7, Re­
spondent, by Lewis, at the facility, interrogated job applicants
concerning their union membership, activities and sympathies,
and the union membership, activities and sympathies of others.
General Counsel, on brief, contends that Respondent’s sole
witness, Lewis, is not a credible witness and that where there is
a conflict in testimony, resolutions should be made in favor of
General Counsel’s witnesses; and that Lewis’ questioning of
Stottlemyre about whether his father and other members of his
family are members of the Union was unlawful. Respondent,
on brief, argues that Stottlemyer’s belligerence with the recep­
tionist extended to Lewis whom Stottlemyre threatened with his
politically-connected family if Lewis did not give him a job;
and that the testimony of Lewis should be credited. Lewis is
not a credible witness in that even after viewing the videotape
he was incapable of admitting what everyone present heard him
say on the tape. Contrary to Lewis’ assertion he did not say
that the application process was shut down. Lewis specifically
said, “[w]e’ve got jobs shut down.” In other words, after see­
ing his image and hearing his words he was willing to testify
that he said something other than what was on the videotape.
Under these circumstances, the testimony of Stottlemyre is
credited. Stottlemyre did not threaten Lewis. The receptionist
did not testify so we have only Lewis’ testimony that Stottle­
myre was belligerent to her. As noted above, in other situations
the receptionist went to Lewis when someone came to Respon­
dent’s facility looking for a job and the no application sign was
posted. It is not asserted that on those occasions the reception­
ist went to Lewis because the person looking for a job was
belligerent. In other words, there was a practice of the recep­
tionist going to Lewis and Lewis speaking to someone looking
for a job when the sign was posted. When Lewis asked the
questions which Stottlemyre testified about Respondent vio­
lated the Act as alleged in the complaint.
Paragraph 6(a) of the complaint alleges that about January 13
Respondent refused to employ job applicant Larry Spencer Jr.
General Counsel, on brief, contends that only after Spencer
answered Lewis indicating that he was a union apprentice did
Lewis point to the no applications sign; that Spencer fell victim
to a new weapon in the merit shop contractor’s arsenal, the “no
applications sign”; and that the sign was effectively used to
keep Spencer from filling out an application. Respondent, on
brief, argues that it is irrelevant when Lewis pointed to the sign
and made a statement for a number of reasons, namely, Spencer
testified that the sign was posted, Lewis considered Spencer a
potential candidate for the Talking Leaves job and urged him to
stay in touch and Lewis sought a journeyman wireman and not
an apprentice when he hired Terry Clark on January 12.
The “APPLICATIONS ARE NOT BEING ACCEPTED AT
THIS TIME” sign is no more than a screening tool. Notwith­
standing its presence, time and time again the receptionist went
in and spoke with Lewis when someone came looking for a job.
Lewis would then speak with the person. If the sign meant
what it said and if it was meant to serve its ostensible purpose,
there would be no need for the receptionist to go in the back
and have Lewis come out to the lobby. Other than Stottlemyre,
Respondent is not taking the position that Lewis came to the
lobby because the person seeking a job was belligerent or asked
to see him. As stated by the Board in Fluor Daniel, Inc., 311
NLRB 498 (1993):
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
set forth its test for cases alleging violations of the Act turning
on employer motivation. First, the General Counsel must
make a prima facie showing sufficient to support the infer­
ence that protected conduct was a “motivating factor” in the
employer’s action. The burden then shifts to the employer to
demonstrate that the same action would have taken place
notwithstanding the protected conduct. It is also well settled,
however, that when a respondent’s stated motives for its ac­
tions are found to be false, the circumstances may warrant an
inference that the true motive is an unlawful one that the re­
spondent desires to conceal. The motive may be inferred
from the total circumstances proved. Under certain circum­
stances, the Board will infer animus in the absence of direct
evidence. That finding may be based on the Board’s review
of the record as a whole. [Footnotes omitted.]
Contrary to the argument of Respondent on brief, it is relevant
when Lewis pointed to the sign and made a statement. Spencer
testified that the sign was posted. Lewis conceded this. There
was no apparent reason for Lewis to speak to Spencer other
than to screen him. Lewis testified that on January 12 the Talk­
ing Leaves project was in the same period of growth as when
Holloway left the project on January 17, when Lewis told Hol­
loway that he needed employees—“all the help he could get.”
This conflicts with Lewis statement to Spencer that the project
manager on the job said that Respondent did not need any help
958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
at the time. Spencer was never told that he was a potential
candidate for the Talking Leaves job. He was only told to stay
in touch because Respondent might need some help “down
there.” With his questions Lewis found out that Spencer was
union. Although the argument has not been made, Lewis was
not questioning Spencer to find out if he could fill a journey-
man’s position vis-à-vis an apprentice position at Talking
Leaves. Lewis testified that the evening before he talked with
Spencer he, Lewis, hired Terry Clark for a journeyman’s posi­
tion. With respect to future positions, Lewis never fully ex­
plained why he would take an application from Richard Tweed
on February 21, hold the application, and hire Tweed on May 9.
It appears that Tweed’s circumstances involved schooling.
Nonetheless, such treatment is disparate in that if Respondent
was truly considering Spencer for future employment at Talk­
ing Leaves, why did it not accord the same opportunity to
Spencer as it did to Tweed. Lewis found out that Spencer was
affiliated with the Union. With few exceptions, which are
treated below, those hired by Respondent during the involved
period were known individuals in that they were referred to
Respondent by a source or they were former employees of Re­
spondent. In my opinion, this, along with the above-described
unlawful interrogation which shows antiunion animus, is suffi­
cient to support a prima facie case. General Counsel has estab­
lished that Respondent unlawfully refused to hire Spencer.
Respondent has not shown a business justification for the re­
fusal. Respondent violated the Act as alleged in paragraph 6(a)
of the complaint.
Paragraph 6(b) of the complaint alleges that about January
12 Respondent refused to employ job applicants Lonnie Tur­
nipseed and Cecil Blackwood. General Counsel, on brief, con-
tends that the term “merit employers” has been described as
nothing more than a “buzz” word for a nonunion shop, “anti­
thetical to any form of contractual relationship with traditional
building trade unions,” J. E. Merit Constructors, 302 NLRB
301, 304 (1991); that the Board has noted that it would be in-
consistent with the goals of a merit shop employer to “open its
doors with equanimity to qualified craftsmen who overtly
manifested an intention to organize . . . .” Town & Country
Electric, 309 NLRB 1250, 1263 (1992); that in the instant mat­
ter the Respondent established a screening system which made
it virtually impossible to knowingly hire a union applicant; that
Respondent’s hiring list is replete with references from its own
employees, supervisors, other ABC contractors, the ABC fax
system and the well known nonunion contractor Fluor Daniel;
and that under these circumstances, Turnipseed and Blackwood
did not stand a chance. Respondent, on brief, argues that at the
time Talking Leaves was the only project for which Respondent
was hiring, the job requires a CDIB card and Turnipseed did
not have the card; that General Counsel’s argument that Tur­
nipseed was rejected because he worked for a union contractor
at American Airlines has no merit in logic or evidence; that
Terry Clark was chosen over Blackwood because Terry Clark
possessed qualifications that were superior to Blackwood’s,
namely, Clark was a working foreman and he lived closer to the
job than Blackwood; that Lewis demonstrated that he consid­
ered Blackwood without discriminatory motivation when he
told Blackwood he would hire him if Clark was not selected for
the job; that the Act never intended to give preferential treat­
ment to an individual because of protected activity; and that
General Counsel’s argument that Blackwood should have been
hired because of his known union affiliation fails because the
successful applicant was also known to be union affiliated.
In my opinion General Counsel has made a prima facie case
with respect to Turnipseed in that he has shown that Turnipseed
engaged in protected activity, Respondent knew and there is
antiunion animus on the part of Respondent. Respondent has
come forward with a business justification, namely, Turnipseed
does not have a CDIB card and on January 12 the only job that
Respondent was hiring for was Talking Leaves, which required
such a card. But there is a flaw in Respondent’s position in that
Respondent could have held the application until it had a need
for a journeyman who did not have a CDIB. According to Re­
spondent’s Exhibit 11 such a need arose on January 31, a little
over 2 weeks after Turnipseed submitted his application.
Again, Respondent, in effect, held Tweed’s application for over
2-1/2 months before hiring him. This is disparate treatment.
Respondent has not demonstrated that it would have taken the
action it did regarding Turnipseed absent his protected activity.
General Counsel also made a prima facie case regarding
Blackwood in that he has shown that Blackwood engaged in
protected activity, Respondent knew and there is antiunion
animus on the part of Respondent. Respondent has come for-
ward with a justification. However, Respondent was not faced
with just making a choice between Blackwood and Terry Clark.
According to Respondent’s Exhibit 11 it hired a journeyman for
the Talking Leaves project on February 14. Again, Respon­
dent, in effect, held Tweed’s application for over 2-1/2 months
before hiring him. It could have held Blackwood’s. To do
otherwise amounts to disparate treatment. Respondent has not
demonstrated that it would have taken the action it did regard­
ing Blackwood absent his protected activity. Respondent vio­
lated the Act as alleged in paragraph 6(b) of the complaint.
Paragraph 6(c) of the complaint alleges that about February
21 Respondent refused to employ job applicant Kevin Stone.
General Counsel, on brief, contends that Respondent’s merit
shop considerations entered the picture and Stone was rejected
for hire because he had been receiving higher wages at a prior
union employer than Respondent was willing to pay; that the
Board has recognized that the listing of prior union employers
and “of pay at union scale” is a clear indication of the union
background of applicants, Ultrasystems Western Constructors,
310 NLRB 545 fn. 2 (1993); and that Lewis’ implausible de­
scriptions of Stone’s travel being a positive and a negative fac­
tor underscore the unlawful motivation displayed by Lewis.
Respondent, on brief, argues that Stone had previously worked
for Respondent but did not so state this on his application; that
Lewis’ confidence that the no application sign was not posted
on February 21 is corroborated by the application completed by
Tweed on the same day; that the $19.25 wage rate earned by
Stone in Colorado Springs would not put Lewis on notice that
Stone worked for a contractor which was union because it
could have involved the prevailing wage rate work since it was
in Colorado Springs where the Air Force Academy is located;
and that Stone did not believe that there was anything on his
OIL CAPITAL ELECTRIC 959
application which would have tipped Lewis off that he, Stone,
was in the Union.
Contrary to Respondent’s assertion on brief, Stone did indi­
cate on his application that he had previously worked for Re­
spondent. Stone did not include Respondent in the employment
history portion of the application but he did indicate on the
front of the application, in answer to questions on the applica­
tion, that he worked for Respondent in the past and he gave the
years. Lewis testified that he chose Dick over Stone because of
Dick’s track record with Respondent. Lewis also testified that
he overlooked Stone’s indication on the front of his application
that he had worked for Respondent before. Stone testified that
he discussed his past employment at Respondent with Lewis
when he, Stone, submitted the application. Stone is credited.
However, Lewis did not compare the track records of Stone and
Dick. Why? Stone is also credited with respect to the
“APPLICATIONS ARE NOT BEING ACCEPTED AT THIS
TIME” sign being posted when he returned at 1 p.m. on Febru­
ary 21. Lewis is not a credible witness. And the receptionist
was not called by Respondent. This raises a second question.
Why did Lewis take Stone’s application when the sign was up?
Perhaps it was done because Tweed’s application was taken
while the sign was up. Tweed was an ABC referral and he was
not going to be immediately hired. In other words, his applica­
tion was not taken in terms of filling an immediate need. His
application would not have been taken because the sign was
down. The sign was up that day. And when Lewis was faced
with Stone wanting to submit an application he decided to take
it. Stone submitted his application on February 21. Dick sub­
mitted his application on February 25. More than once in the
evaluation of Stone Lewis referred to Stone working at high
wage or high paying jobs. Additionally, Stone testified that he
used “union terms” in his conversation with Lewis in that he,
Stone, said “time” and “scale.” In my opinion Lewis had suffi­
cient reason to suspect that Stone was union. Whether he acted
on this suspicion or made further inquires does not matter.
General Counsel has made a prima facie showing regarding
Stone in that it has been demonstrated, in my opinion, that Re­
spondent proceeded with the understanding that Stone was with
the Union. Also, as noted above, there is antiunion animus on
the part of Respondent. On the other hand, Respondent has not
come forward with a business justification since it alleges that
it chose Dick over Stone because of the former’s track record.
Respondent refused to compare the track records of these two
at Respondent. Consequently track records at Respondent were
not the determining factor. Additionally, Respondent hired two
journeymen the first week of March. Respondent does not
satisfactorily explain why it did not hold Stone’s application
and consider him for those positions. In addition to holding
Tweed’s application it is noted that Respondent also held an-
other apprentice’s application, Larry Tisdale, for over a month.
Respondent violated the Act as alleged in paragraph 6(c) of the
complaint.
Paragraph 6(d) of the complaint alleges that about March 1
Respondent refused to employ job applicant Virgil Holloway.
General Counsel, on brief, contends that Holloway was not
rehired because he was Union and he talked about the Union at
the Talking Leaves project; and that this was made clear by the
comments of Lewis regarding the people who he did hire in that
Jackie Dick was rehired with the notation that Respondent will
rehire when needing journeymen help and Terry Davis was
rehired with the notation that the Respondent will rehire experi­
enced journeymen wirers whenever needed. Respondent, on
brief, argues that Holloway’s last moment interrogation allega­
tion regarding Cheney is not worthy of belief; that even if Hol­
loway’s supervisor illegally interrogated him, there was no
retaliation by the supervisor or any evidence that it was made
known to Lewis; that Lewis had a pattern and practice of hiring
applicants with union affiliation and Lewis hired Lackey, the
union’s organizer; that Lewis also has an uncontested practice
of not rehiring employees who leave a job before the job is
completed; that Holloway’s testimony regarding what Lewis
said demonstrates conclusively that Lewis’ decision was moti­
vated by Holloway’s early departure from the job, not any pro­
tected activity that may or may not have occurred on the job.
Cheney did not testify to deny that he asked Holloway if he
was a member of the Union. Holloway’s testimony on this
point is credited. General Counsel does not have to prove that
Lewis was told. Cheney’s knowledge is imputed. The fact that
Respondent hired Lackey carries no weight since this occurred
in 1996 well after Lackey filed a charge in this proceeding
(March 1994). Holloway left the Talking Leaves project on
January 17. According to Respondent’s Exhibit 11, Respon­
dent did not hire another journeymen wireman for the Talking
Leaves job until February 14, almost a month later. And it
appears that Respondent chose not to consider Blackwood, who
submitted an application 5 days before Holloway left, for the
vacated position. Lewis did not deny that at one point he indi­
cated that applications are good for 14 days. If Lewis did not
consider Blackwood to replace Holloway, was Lewis really
considering Blackwood, notwithstanding what he told Black-
wood, for a position on January 12? Respondent was not left in
a lurch by Holloway’s departure. General Counsel has made a
prima facie case in that he has shown that Holloway engaged in
union activity, Respondent knew and there is antiunion animus
on the part of Respondent. Respondent has come forward with
a business justification in that Lewis cited other specific in-
stances where Respondent would not rehire employees who left
the job and later tried to return. While Respondent does rehire,
it was not shown that any of those rehired were rehired under
circumstances similar to those involved here, namely, an em­
ployee’s departure to take a higher paying job with the em­
ployee telling management that was the reason he was leaving.
Paragraph 6(d) of the complaint will be dismissed.
Paragraph 6(e) of the complaint alleges that about March 1
Respondent refused to employ job applicants Chris Arena,
Roger Harris, Mile Highwood, Dan Miller, Gerald Molloy, Jim
Rogers, Dennis Lawrence, Weldon Long, Lawrence Houser,
Steve Morgan, Kenneth Nelson, Ron Pitman, Roy Sheppard,
Dana Benton, Bobby Risenhoover, Danny Risenhoover, Dusty
Oldham, Jerry Porter, Gary Ward, Jim Pitts, and Charles
Lackey Jr. General Counsel, on brief, contends that members
of the group wore the clear markings of the Union and Michael
Blanchard introduced them as union electricians; that none of
the men present were allowed to apply and none were hired;
that the list of hires by the Respondent shows that at the time
960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
this group of union electricians was told jobs are shutdown,
Respondent was actively hiring journeymen and apprentices;
and that three journeymen and six apprentices were hired be-
tween March 1 and 22. Respondent, on brief, argues that nei­
ther Blanchard nor anyone else announced to Lewis that the
group was union affiliated and Lewis testified without contra-
diction or rebuttal that he did not remember union parapherna­
lia; that there is no testimony that the group was wearing union
indicia on March 1 and that it was observed by Lewis; and that
Respondent has submitted uncontradicted and unrebutted testi­
mony that the same action would have taken place notwith­
standing protected activity.
At one point during the conversation which was captured on
the videotape Lewis, in addressing the spokesman of the group,
said “Mike, Mike Blanchard.” This would indicate either that
Lewis knew the individual or that Lewis had previously been
given the name of the individual. The video does not have
Blanchard giving his name to Respondent’s personnel. But
there is a gap in the tape in that when Lewis first appears in the
tape he is standing at the counter. With each preceding repre­
sentative of Respondent they are shown on the tape entering the
room and walking up to the counter. It is possible that during
the gap in the tape Blanchard introduced himself to Lewis.
Nonetheless, at the end of the tape Lewis is heard telling those
in the lobby to save the video because he was going to have it
subpoenaed. At this point Lewis did not ask who he would
subpoena. He knew who was occupying his lobby that day.
General Counsel has made a prima facie case in that he has
established that those seeking to submit applications on March
1 were affiliated with the Union, that Lewis knew this and there
is antiunion animus on the part of Respondent. Respondent has
not come forward with a business justification in that it had in
the past taken an application when the “APPLICATIONS ARE
NOT BEING ACCEPTED AT THIS TIME” sign was up. As
pointed out by General Counsel and Respondent’s Exhibit 11,
during the 20 days following what occurred on March 1, Re­
spondent hired a number of individuals. Yet it did not hire any
of the individuals who asked to submit an application on March
1. Respondent held the applications of other individuals and, as
noted, at one point Lewis testified that applications are good for
14 days, yet it was unwilling to hold the applications of those in
its lobby on March 1. Respondent violated the Act as alleged
in paragraph 6(e) of the complaint.
Paragraph 6(f) of the complaint alleges that about March 22
Respondent refused to employ job applicants Lawrence Crouse
and John Bell. General Counsel, on brief, contends that while
Lewis told Crouse and Bell that he anticipated a reduction in
personnel, between March 24 and May 25 Respondent hired 14
people, including 8 journeymen; and that those who were hired
were referred by Fluor Daniel, the ABC fax system, ABC
members and supervisors of the Respondent. Respondent, on
brief, argues that Lewis had the “no application” posted be-
cause he legitimately feared a pending reduction in force; and
that he was subsequently proven to be incorrect is irrelevant
and typical, and not surprising in the construction industry.
In the past when the sign was up Lewis referred to the sign
when telling union members that applications were not being
taken. He is seen doing this on the videotape. Lewis did not
testify that he did that here. Rather, Lewis conceded that he
told Bell and Crouse that he anticipated a reduction in person­
nel. As concluded above, Lewis is not a credible witness. Bell
is credited. Lewis told Bell and Crouse that he was getting
ready to lay off at the end of the month. Just as he did while
being videotaped on March 1, he was less than truthful in de-
scribing Respondent’s situation at the time. The
“APPLICATIONS ARE NOT BEING ACCEPTED AT THIS
TIME” sign was not up on March 22. Respondent’s reception­
ist was not called to testify on this point. As conceded by Lewis
on cross-examination, Respondent hired one person later in
March, six in April, and six in May. Lewis also did not deny
that he told Bell and Crouse that applications were good for 14
days. That being the case, Respondent filled two journeymen
wire positions on April 1 and April 5. If Bell and Crouse had
been allowed to submit applications on March 22, these two
positions would have fallen within the 14 days specified by
Lewis. Crouse was wearing a union insignia where it could be
seen by Lewis. General Counsel has made a prima facie case in
that he has shown that Bell and Crouse were engaged in pro­
tected activity, with the union insignia in front of him Lewis
was aware that he was dealing with the Union and there is anti-
union animus on the part of the Respondent. Lewis is not cred­
ited with respect to the “APPLICATIONS ARE NOT BEING
ACCEPTED AT THIS TIME” sign being posted. And once
again he was less than truthful in giving his reason for refusing
to even allow Bell and Crouse to submit applications. Respon­
dent has not shown a business justification for its refusal to hire
Bell and Crouse. Respondent violated the Act as alleged in
paragraph 6(f) of the complaint.
Paragraph 6(g) of the complaint alleges that about June 7
Respondent refused to employ job applicant Gary Stottlemyre.
General Counsel, on brief, contends that Stottlemyre was con-
fronted with the same no application sign and effectively
screened out by the Respondent in violation of the Act. Re­
spondent, on brief, argues that according to Respondent’s Ex­
hibit 11, Respondent accepted no applications on June 7 or at
any time thereafter “to the remainder of the month”; and that if
Stottlemyre is credited, Respondent has met its burden by dem­
onstrating the same action would have taken place notwith­
standing any protected conduct in which Stottlemyre may have
engaged.
General Counsel has made a prima facie case in that he has
shown that Lewis knew that Stottlemyer was union and there is
antiunion animus on the part of the Respondent. On the other
hand, Respondent has not come forward with a sufficient busi­
ness justification in that at least one application had been taken
while the no application sign was up, according to Respon­
dent’s policy applications are “good” for up to 14 days, and, as
noted above, Respondent has held applications for an extended
period of time before hiring the individual. Lewis testified
about the fluctuations in the involved business. Fluctuations
can go either way. With respect to why Lewis ended up speak­
ing to Stottlemyre when the sign was up, the receptionist did
not testify and therefore we have only Lewis’ testimony that
Stottlemyre demanded to see someone. As noted above, in my
opinion Lewis is not a credible witness. Stottlemyre testified
that he saw the “APPLICATIONS ARE NOT BEING
OIL CAPITAL ELECTRIC 961
ACCEPTED AT THIS TIME” sign but since he drove “all the
way out there” he asked if he could fill an application out.
According to Stottlemyre’s testimony, the secretary “just said
‘Wait a moment, please,’ and she left and then Mr. Lewis ap­
peared,” Stottlemyre’s testimony is credited. Again, Lewis
came out to the lobby to screen the individual. Even though
Stottlemyre spoke about being dropped from the Union’s ap­
prenticeship program after Lewis asked if Stottlemyre’s Union
could help him, Lewis told him he could file charges against
the Union. Lewis resolved that Stottlemyre was union. And
because of that Lewis resolved not to hire Stottemyre. Respon­
dent has not shown that absent Stottlemyre’s union affiliation
Respondent would have refused to hire him. Respondent vio­
lated the Act as alleged in paragraph 6(g) of the complaint.
With respect to the assertion that during the first 6 months of
1994 Respondent did hire five individuals who gave some indi­
cation of union affiliation, it is noted that with respect to Huey
Wayne Bryant we only have the testimony that someone who
identified himself as Bryant’s uncle said, “[w]ell, yeah, he’s a
good—he’s a good, hard worker . . . [t]he only thing about
Wayne, he likes—he moves around quite a bit and he likes to
work union”; that Lewis is not a credible witness and this hear-
say is not entitled to any weight; that Respondent’s employee
Robert Wayne Clark referred Terry Clark and Bill Fryar, both
of whom previously worked for Respondent in 1992 and 1990,
respectively, which is subsequent to the time that Respondent
ceased being a party to an agreement between the Union and
NECA; that Lewis testified that in 1994 before Terry Clark was
rehired, Wayne Clark did not say anything about Terry Clark’s
affiliation with the Union; that no employment history was
introduced regarding Vaughn Bearden who worked for Re­
spondent in 1978 and 1979; and that the fifth individual, Jim
Passmore, was hired after Lackey filed the charge in 17–CA–
17290 on March 24 alleging that since January 1, Respondent
refuses to employ applicants who are known union sympathiz­
ers. Neither these nor others cited by Respondent, i.e., the hir­
ing of Lackey in 1996, demonstrate that union electricians have
been employed even though Respondent has become a merit
shop contractor. The electricians Respondent employs are care-
fully screened and those who Lewis perceives to be actively
affiliated with the Union are screened out. Those union affili­
ated electricians hired after the above-described charge was
filed in March 1994, demonstrate only that when Respondent
was faced with additional charges of unfair labor practices did
it start to hire union affiliated electricians.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Sections 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by in­
terrogating a job applicant concerning his union membership,
activities and sympathies, and the union membership, activities
and sympathies of others.
4. The Respondent violated Section 8(a)(3) and (1) of the
Act by refusing to employ job applicants Larry Spencer Jr.,
Lonnie Turnipseed, Cecil Blackwood, Kevin Stone, Chris
Arena, Roger Harris, Mile Highwood, Dan Miller, Gerald
Molloy, Jim Rogers, Dennis Lawrence, Weldon Long, Law­
rence Houser, Steve Morgan, Kenneth Nelson, Ron Pitman,
Roy Sheppard, Dana Benton, Bobby Risenhoover, Danny Ris­
enhoover, Dusty Oldham, Jerry Porter, Gary Ward, Jim Pitts,
Charles Lackey Jr., Lawrence Crouse, John Bell, and Gary
Stottlemyre II.
5. The aforesaid unfair labor practices are unfair labor prac­
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
6. Except as found herein, Respondent otherwise is not
shown to have engaged in conduct violative of the Act as al­
leged in the complaint.
REMEDY
Having found that Respondent engaged in certain unfair la­
bor practices, I shall recommend that it be ordered to cease and
desist therefrom and that it take certain affirmative action set
forth below to effectuate the policies of the Act.
Having found that the Respondent unlawfully discriminated
against 28 job applicants, it will be recommended that Respon­
dent offer them employment to positions at projects in the
Tulsa, Oklahoma area, and Respondent shall make the 28 job
applicants whole for any loss of earnings and other benefits
they may have suffered as a result of the Respondent’s unlaw­
ful discrimination against them, from the date they applied for
employment, to the date that the Respondent makes them a
valid offer of employment. Such amounts shall be computed in
the manner prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), and shall be reduced by net interim earnings, with in­
terest computed in accordance with New Horizons for the Re­
tarded, 283 NLRB 1173 (1987).
Other considerations regarding the Remedy and the specifics
of the relief granted must wait until the compliance stage of the
proceeding as indicated in Dean General Contractors, 285
NLRB 573 (1987).
[Recommended Order omitted from publication.]