Progressive Electric

National Labor Relations Board - Board Decisions

Mar 31, 2005

344 N.L.R.B. 426 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 52
426
Progressive Electric, Inc. and International Brother-
hood of Electrical Workers Local Union No. 265,
affiliated with International Brotherhood of
Electrical Workers, AFL–CIO. Case 17–CA–
18766R
March 31, 2005
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On November 18, 1997, Administrative Law Judge
Mary Miller Cracraft issued the attached decision.
Thereafter, on June 7, 2000, the National Labor Rela-
tions Board remanded this proceeding to the judge for
issuance of a supplemental decision. On August 23,
2000, the judge issued the attached supplemental deci-
sion. The Respondent filed exceptions, a supporting
brief, and a reply brief, and the General Counsel and the
Charging Party filed cross-exceptions, supporting briefs,
and answering briefs.1
The National Labor Relations Board has considered
the decision, the supplemental decision, and the record in
light of the exceptions, cross-exceptions, and briefs, and
has decided to affirm the judge’s rulings, findings, and
conclusions, as modified below, and to substitute a new
Order and notice for that recommended by the judge.2

1 The Respondent has requested oral argument. The request is denied
as the decision, supplemental decision, and briefs adequately present
the issues and arguments in this case.
2 The General Counsel requests that the Board reconsider its practice
of awarding simple interest on backpay and seeks that interest on
monetary awards be computed on a compounding daily basis. We find
that the present case is an inappropriate vehicle to reconsider current
policy and we shall, therefore, apply current Board precedent pertaining
to the computation of interest. Commercial Erectors, Inc., 342 NLRB
940 (2004).
When both a refusal to hire and a refusal to consider for hire viola-
tion are found, as here, the remedy for the refusal to consider violation
is subsumed by the broader refusal to hire remedy. Jobsite Staffing,
340 NLRB 332 (2003). However, as we have found that only seven
vacancies existed for the eight discriminatees, we shall order a refusal
to consider remedy for the single discriminatee who, at compliance, is
not instated. We shall also modify the recommended Order to include a
provision requiring the Respondent to remove from its files any refer-
ences to the unlawful refusals to hire and consider for hire.
Member Schaumber points out that the eight alleged discriminatees
appeared en masse at Respondent’s facility on March 29, 1996, after a
Union executive board decision on March 26 to “batch” Respondent.
They appeared armed with a video camera and tape recorder, and
filmed Respondent’s owner Neeman while they introduced themselves
as union members seeking work. In Member Schaumber’s view, such
actions may be viewed as inconsistent with a genuine interest in obtain-
ing employment. Under extant Board law, however, that issue is
largely irrelevant. In the absence of a three-member majority of the
Board willing to revisit the parameters of applicant status under FES,
Member Schaumber, for institutional reasons, applies existing prece-
dent for the purpose of deciding this case. He agrees that under current
For the reasons set forth by the judge, we find that the
Respondent violated Section 8(a)(3) and (1) by refusing
to consider applicants for employment, and by failing
and refusing to hire them, because of their union affilia-
tion.3
We also find, in agreement with the judge, that the Re-
spondent violated Section 8(a)(1) by threatening the loss
of employment if employees engaged in union activities
and by threatening to close its facility if employees se-
lected the Union as their bargaining representative.
However, we reverse the judge’s findings that the Re-
spondent violated Section 8(a) (1) in the following re-
spects.
1. The judge found that the Respondent unlawfully so-
licited employees to distribute a letter in opposition to
the organizing or “salting” efforts of the Union. During
a meeting between employees and the Respondent’s

Board law the judge properly found that Respondent violated 8(a)(3)
and (1) by refusing to consider for hire and to hire certain individuals.
3 The judge also found that the Respondent changed its hiring proce-
dures in violation of Sec. 8(a)(3) and (1) when on March 29, 1996, the
Respondent’s president, Randy Neeman, falsely told applicants that
they would be called in the future should a vacancy occur. Although
Neeman’s conduct supports the failure to consider and failure to hire
violations because it tends to show an intention not to consider the
applicants for employment, we find that Neeman’s false representation
was not a discrete “change” in hiring procedures violative of Sec.
8(a)(3). We also find that the Respondent’s placement of notices in its
window indicating that applications were not being accepted and, sub-
sequently, stating that applicants were to call Neeman were not discrete
changes violative under Sec. 8(a)(3) and (1). Each of these acts, to-
gether with the placing of blinds ads in the newspaper, were part and
parcel of the Respondent’s overall scheme to refuse to consider and
hire union applicants. In our view, the cease and desist order, entered
to remedy that overall violation, is sufficient to deter the repetition of
all such conduct.
In finding that the Respondent unlawfully changed its hiring prac-
tices by implementing the use of “blind” newspaper ads, our dissenting
colleague cites Starcon, Inc., 323 NLRB 977, 982 (1997), enfd. in
relevant part and remanded 176 F.3d 948 (7th Cir. 1999), and Ma-
siongale Electrical-Mechanical, 331 NLRB 534 (2000), affd. after
remand 337 NLRB 42 (2001), enfd. in part 323 F.3d 546 (7th Cir.
2003). The cases cited by our colleague are distinguishable. In Star-
con, the employer responded to a union salting campaign by severely
limiting the ability of volunteer union organizers to apply. Applica-
tions were accepted only on Mondays or Wednesdays between the
hours of 10 a.m. and 2 p.m. and could only be submitted in person. The
employer also routinely refused same day interviews to those who
managed to submit applications, necessitating multiple trips to its of-
fices in order to be considered for employment. Further, the employer,
in effect, hired over the telephone an individual who did not identify
himself as a union member, referring to the restrictive application rules
as “only red tape.” In Masiongale, the employer required an avowed
union applicant to submit to an in person background check with a
private detective during which he was questioned about his union back-
ground and affiliation. Subsequently hired nonunion employees were
not subjected to this requirement.
No evidence of this character exists in this case. The “blind ad” pro-
cedure was not disparately applied to union applicants, and it did not
limit the ability of any applicant to submit an application.
PROGRESSIVE ELECTRIC, INC. 427
president, Randy Neeman, employee David Richards
asked Neeman if employees could write letters indicating
their opposition to the Union. Neeman told the assem-
bled group of employees that a single letter signed by
everyone probably could be written, that he could neither
encourage nor discourage such an endeavor, that em-
ployees should “keep me out of it” if a letter was written,
and that the idea “sounds great.” Thereafter, employee
Richards prepared a letter—signed by employees—
indicating that the employees opposed the Union’s orga-
nizing efforts.
It is unlawful for an employer to coercively initiate or
solicit a petition or letter opposing unionization. Den-
tech Corp., 294 NLRB 924 (1989); Eastern States Opti-
cal Co., 275 NLRB 371, 372 (1985). Contrary to the
judge’s finding, however, the Respondent neither solic-
ited nor initiated the antiunion letter. Rather, the notion
of such a letter was initiated by employee Richards. Fur-
ther, Neeman expressly and openly told Richards that he
neither encouraged nor discouraged the letter and desired
to be kept out of the matter. In this context, Neeman’s
indication to Richards that he liked the idea does not ren-
der the discussion coercive. Bridgestone/Firestone, Inc.,
335 NLRB 941 (2001); Ernst Home Centers, 308 NLRB
848 (1992). Accordingly, we shall dismiss this allega-
tion of the complaint.4
Our colleague notes that Neeman told employees that
if he (Neeman) were left out of any letter writing, “it
would look a lot better.” We do not agree that this com-
ment rendered Neeman’s conduct unlawful. Neeman
realized that any involvement by him could be unlawful
and thus it would be “better”, i.e., lawful, if he were not
involved. We believe that Neeman, a nonlawyer, was
simply reflecting his understanding of the legal situation
in which he was thrust by virtue of the employee Rich-
ard’s question.
Our colleague also notes that Neeman said that Rich-
ards’ idea (for a letter) “sounded great.” In our view,
Neeman was permitted, under Section 8(c), to express his
antiunion opinion. This is particularly true where, as
here, Neeman made clear that he was not even encourag-
ing the idea of a letter.
Finally, our colleague notes that Neeman suggested
that a group letter might be more practical than individ-
ual letters. In our view, given the fact that the letter(s)
would be wholly voluntary, we find nothing unlawful in
Neeman’s practical suggestion.

4 Employee David Cousins testified that Respondent’s foreman, Don
Hildreth, an agent of the Respondent, later told him that he could sign
the letter if he so desired. We find this exchange insufficient to estab-
lish that the Respondent coercively solicited employees regarding the
letter.
2. In the meeting with employees noted above, presi-
dent Neeman made reference to solicitations by union
representatives at or near the jobsite. The judge found
that the Respondent unlawfully instructed employees to
reject such solicitations. Contrary to the judge, we find
that Neeman’s remarks on this subject were noncoercive.
In discussing the presence of union organizers, Nee-
man initially told employees that “these guys [organiz-
ers] can come out and visit you during lunch and during
your non working time” but that they’re not allowed to
harass employees. He indicated that
if you want to listen to them, listen to ‘em, I don’t care.
As long as you’re during your lunch or during your
work break, fine go ahead. . . . do whatever you want. I
can’t tell you not to, okay . . . They can walk on a job
and do that. If you don’t want to listen, you can tell
them to shove it and leave or you can get on . . . a hold
of me.
Neeman told employees that they could tell organizers to
leave them alone and that “once you say that, you come out
and just say it, they’ll leave ya alone” but that “they have
every right to come approach ya, but once you tell ‘em to
stuff it, then they better leave you alone . . . they can’t fol-
low ya around at lunch.”
In short, Neeman told employees to expect union so-
licitations at work and that it was up to employees if they
wanted to talk to organizers during break time, but that
they could tell organizers to leave if they so desired. We
find nothing in Neeman’s remarks on this subject to be
coercive. On the contrary, his remarks simply left with
employees the decision whether or not to speak to union
organizers—comments that cannot reasonably be con-
strued as coercive in character.
Our colleague says that Neeman “instructed” employ-
ees to reject the union solicitation, and that he told em-
ployees that they “should” tell union representatives to
“stuff it.” The evidence is to the contrary. Neeman told
employees what the rights of the solicitors were, and told
employees of their right to reject the solicitations. He
told them that if they did so, the Union solicitors would
back off. We find nothing unlawful in Neeman’s telling
employees of the rights of solicitors and solicitees.
3. Neeman also discussed at this meeting the issue of
wage increases. The judge found that Neeman’s state-
ments unlawfully blamed the Union for the delay of an-
nual reviews. We disagree.
Neeman told employees that he had consulted legal
counsel regarding annual reviews, that he had to be care-
ful about suddenly giving out raises “to try to encourage
you to stay,” that things were held up initially because of
these concerns (“I got cold feet”) regarding the Union,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD428
but that “we’re gonna do what we typically always do
once a year.”
With regard to annual wage increases during an orga-
nizing campaign, employers are required, as a general
rule, to proceed with benefits as if a union was not on the
scene, that is, to maintain the status quo. Martin Indus-
tries, 290 NLRB 857 (1988). In his remarks to employ-
ees, Neeman indicated his intention to maintain the status
quo. Neeman prefaced his remarks by noting his concern
about any appearance of undue “encouragement” regard-
ing union matters but that the Respondent would main-
tain the status quo regarding wage increases. Neeman
made it clear that he was acting in accord with the advice
of legal counsel. The fact that the advice was premised
on the Union campaign does not render Neeman’s re-
mark unlawful. Although Neeman characterized the is-
sue as “bullshit” in reference to the Union, we find that
Neeman’s remarks, taken as a whole, did not coercively
place the onus on the Union regarding the subject of
wage increases. Indeed, Neeman emphasized that wage
increases “are supposed to happen” and would happen as
“we typically always do once a year.” In these circum-
stances, we find that Neeman’s remarks were not coer-
cive.
Remedial Matters
At the compliance stage, the parties may introduce evi-
dence as to how long a discriminatee would have worked
for the Respondent if he had not been unlawfully refused
hire. That evidence may lessen the backpay and may
eliminate the instatement order. We do not pass, at this
time, on these issues or on the respective burden of proof
as to these matters.
ORDER
The Respondent, Progressive Electric, Inc., Lincoln,
Nebraska, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening employees with closure of its facility if
they select the Union as their exclusive collective-
bargaining representative, and threatening employees
with loss of employment if they engage in activities on
behalf of the Union.
(b) Failing and refusing to consider applicants for em-
ployment and failing and refusing to hire them because
of their union affiliation.
(c) In any like related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) As determined in a subsequent compliance pro-
ceeding, instate Clinton Burge, Don Davids, Meryl Rich,
Fred Munch, Robert Codr, Jerry Chorowicz, Bill Rous-
san, and Jim Pelley to the seven available positions for
which they attempted to apply or, if those positions no
longer exist, to substantially equivalent positions, and
make them whole for losses sustained by reason of the
discrimination against them, to be computed in the man-
ner set forth in the remedy section of the judge’s supple-
mental decision.
(b) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusal to hire
and consider for hire the above-named discriminates and,
within 3 days thereafter, notify them in writing that this
has been done and that the unlawful actions will not be
used against them in any way.
(c) Within 14 days from the date of this Order, notify,
in writing, the above-named discriminatee, who in a
compliance proceeding is not instated to one of the seven
available positions, that any future job application will be
considered in a nondiscriminatory way and notify the
discriminatee, the Charging Party, and the Regional Di-
rector of future openings in positions that the discrimina-
tee applied or substantially equivalent positions.
(d) Preserve and, within 14 days of a request or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payments records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of the records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Lincoln, Nebraska, copies of the attached
notice marked “Appendix”5 Copies of the notice, on
forms provided by the Regional Director for Region 17,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
PROGRESSIVE ELECTRIC, INC. 429
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since March 29, 1996.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certificate of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
MEMBER LIEBMAN, dissenting in part.
Contrary to my colleagues, I would adopt the judge’s
findings that the Respondent violated Section 8(a)(3) and
(1) by placing “blind” advertisements for the discrimina-
tory purpose of screening out Union applicants and vio-
lated Section 8(a)(1) by soliciting employees to distribute
a letter in opposition to the Union’s organizing activities,
by coercively instructing employees to reject union so-
licitations, and by telling employees that wage increases
were delayed because of the Union.1
1. In April, May, and June 1996, the Respondent for
the first time ran “blind” newspaper ads that did not list
its office address and effectively concealed its identity
from prospective applicants. Previously, the Respon-
dent’s newspaper ads listed its address. This departure
from previous practice occurred after the onset of Union
activities. The Respondent furnished no business expla-
nation at the hearing for this sequence of events. Ac-
cordingly, in the context of other unlawful conduct, I
agree with the judge that this conduct was undertaken in
order to screen out union applicants and, therefore, vio-
lated Section 8(a)(3). Starcon, Inc., 323 NLRB 977, 982
(1997), enfd. in relevant part and remanded 176 F.3d 948
(7th Cir. 1999).2

1 I agree with my colleagues that the Respondent violated Sec.
8(a)(3) and (1) by failing to hire and to consider applicants for em-
ployment because of their Union affiliation and violated Sec. 8(a)(1) by
threatening employees with the loss of employment and by threatening
to close its facility if employees engaged in union activities. In ad-
dressing the evidence that may be adduced in the compliance proceed-
ing with respect to backpay and instatement, my colleagues cast doubt
on current law. I would not revisit the issue settled by Dean General
Contractors, 285 NLRB 573 (1987), as endorsed by the Board in FES,
331 NLRB 9, 14 (2000), enfd. 301 F.3d 83 (3d Cir. 2002).
2 I find it unnecessary to consider other allegations that the Respon-
dent unlawfully changed its hiring policies as they are cumulative to the
alleged change in running “blind” ads. At minimum, as my colleagues
agree, each of the acts found independently unlawful were part of the
Respondent’s overall scheme to refuse to consider and hire union appli-
cants. The placement of blind newspaper ads—after union organizing
began—clearly was designed to screen out union applicants who may
have been seeking employment with the Respondent by making it
impossible for them to know the identity of the employer offering the
advertised positions. This is effectively no different than the hurdles to
employment put in place by the employer in Starcon, Inc., supra. See
also Masiongale Electrical-Mechanical, 331 NLRB 534, 539 (2000)
2. As the judge found, the Respondent held a meeting
with employees on May 1, 1996. At the outset of the
meeting, the Respondent’s president, Randy Neeman,
told employees that a union adherent, who previously
had announced that he was on strike and now wanted to
return to work, was trying to cost employees their jobs
and “that’s why we have to put a stop to it.” This state-
ment unlawfully threatened employees with the loss of
employment in violation of Section 8(a)(1), as my col-
leagues agree.
In this context, Neeman went on to discuss the Union
and, later in the meeting, was asked whether employees
could write letters opposing the Union and standing be-
hind the company. Neeman then suggested that employ-
ees could write one letter and have everybody sign it. He
offered to furnish an address to send the letter, and he
told employees to mail the letter. As Neeman explained
to employees, this approach would “keep me out of it”3
and “it would look a lot better.” Neeman went on to sug-
gest that “if one of you guys want to get one of your
wives to type up a letter and go around . . . and have eve-
rybody sign it,” he would “verify” that employees could
do that. Neeman then noted that although he couldn’t
encourage or discourage employees “because I want to
stay separate,” he rhetorically asked employees: “do I
like the idea? I think it sounds great.”
In my view, Neeman was not merely a passive charac-
ter in this exchange, as the majority suggests. On the
contrary, Neeman gave employees detailed instructions
about the letter; he made it very clear that he was to be
kept out of it only to surreptitiously make it “look bet-
ter,” and he told employees that an anti-Union letter
“sounded great.” This was more than mere ministerial
aid regarding the letter, and it occurred in a context of
other unfair labor practices committed at the meeting.
Eastern States Optical Co., 275 NLRB 371 (1975). Ac-
cordingly, I would adopt the judge’s finding that the Re-
spondent’s solicitation violated section 8(a)(1).
3. At the May 1 meeting just discussed, Neeman de-
scribed the Union’s organizing tactics and told employ-
ees that they would not be “harassed out of your jobs” by
the Union. Neeman stated that this was a “pattern” on
the part of the Union, and he told employees that “you
know all you gotta do, it’s simple. When somebody
comes out and offers [you] a letter or says that a [Union]

(employer unlawfully changed hiring policies to discourage union
applicants by requiring applicants to be interviewed by a private inves-
tigator).
3 The majority relies on testimony that Neeman told the employers
that he could neither encourage nor discourage this endeavor. How-
ever, rote disclaimers are not effective to negate unlawful conduct.
See, e.g., Lutheran Retirement Village, 315 NLRB 103, 104 (1994).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD430
rep is gonna call you. . . just say I’ve had it, just leave me
alone. . . . You got to say it though, okay. You gotta say
it. . . . They have every right to come approach ya, but
once you tell ‘em to stuff it, then they leave you alone.”
I find, in agreement with the judge, that the Respon-
dent coercively instructed employees to reject union so-
licitations. In the context of other unfair labor practices,
as here, informing employees that the Union is trying to
harass them out of their jobs and that employees, there-
fore, should tell union representatives to “stuff it” sends a
message that lawful union activities will not be tolerated.
This message was certainly reinforced by Neeman telling
employees about the March 29 appearance of eight union
applicants and his stating “that’s why the sign’s out in
the door, says no applications taken.” Although the Re-
spondent also told employees that they could either ac-
cept or reject union solicitations if they so desired, that
employees reasonably could not take this disclaimer at
face value in this coercive context. See Cordin Trans-
port, 296 NLRB 237 fn. 3 (1989) (soliciting opposition
to the union violated Sec. 8(a)(1) when solicitation oc-
curred in coercive circumstances); Lutheran Retirement
Village, supra at 104.
4. Near the end of the May 1 meeting, Neeman
brought up the issue of wage increases. Neeman stated
that job reviews, which would lead to wage increases for
some employees, were supposed to happen back in Feb-
ruary. Neeman told employees, “[Y]ou know what, it
got held up, why? Because of this bullshit. Because I
gotta watch it, I can’t go all of a sudden start giving out
raises for no reasons to encourage you to stay. So I got
cold feet.”
I agree with the judge that the Respondent violated
section 8(a)(1) by telling employees that their annual
reviews were delayed. Although Neeman went on to tell
employees that he had conferred with legal counsel and
that wage increases would now happen as usual, he
clearly linked the delay in granting wage increases to the
onset of union activities. Employees could reasonably
interpret Neeman’s remarks as putting the onus on the
Union for lost wages between February and any prospec-
tive increases in the future. In this context, I find Nee-
man’s statement to be coercive. Grouse Mountain
Lodge, 333 NLRB 1322 (2001) (statement placing blame
on the union for delay of wage increase violated the Act).
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten you with closure of our facility
or loss of employment if you select International Broth-
erhood of Electrical Workers Local Union No. 265, af-
filiated with International Brotherhood of Electrical
Workers, AFL–CIO as your exclusive collective-
bargaining representative;
WE WILL NOT fail and refuse to consider applicants for
employment, or to hire applicants for employment, be-
cause of their union affiliation.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your rights
pursuant to Section 7 of the Act.
WE WILL make whole Clinton Burge, Don Davids,
Meryl Rick, Fred Munch, Robert Codr, Jerry Chorowicz,
Bill Roussan, and Jim Pelley for any losses they may
have suffered by reason of our refusal to consider them
for hire or our refusal to hire them and WE WILL offer
instatement to any of them who would have been hired
but for our unlawful refusal to consider them for hire and
to hire them. If the positions for which they attempted to
apply no longer exist, we will instate them to substan-
tially equivalent positions. Instatement shall be without
prejudice to seniority or any other rights or privileges to
which the discriminatees would have been entitled if we
had not discriminated against them.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful refusal to hire and consider for hire the applicants
listed above, and WE WILL, within 3 days thereafter, no-
tify them in writing that this has been done and that the
unlawful actions will not be used against them in any
way.
PROGRESSIVE ELECTRIC, INC. 431
WE WILL also notify, in writing, the applicant listed
above who is not instated because of the absence of a job
vacancy that any future job application filed by him will
be considered in a nondiscriminatory way and WE WILL
notify him of future vacancies.
PROGRESSIVE ELECTRIC, INC.
Lynette K. Zuch, Esq., for the General Counsel.
William A. Harding, Esq., Margaret E. Stine, Esq. (Harding,
Shultz & Downs), of Lincoln, Nebraska, for the Respon-
dent.
Michael J. Stapp, Esq. (Blake & Uhlig), of Kansas City, Kan-
sas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, Administrative Law Judge. This
case was tried in Lincoln, Nebraska, on June 30 and July 1
through 3, 1997. The complaint as amended alleges that Pro-
gressive Electric, Inc. (Respondent) violated Section 8(a)(1) of
the Act by interrogating, threatening, and soliciting employees,
and Section 8(a)(1) and (3) of the Act by changing hiring pro-
cedures and failing to consider and hire applicants because of
their activities on behalf of International Brotherhood of Elec-
trical Workers Local Union No. 265, affiliated with Interna-
tional Brotherhood of Electrical Workers, AFL–CIO (the Un-
ion). The underlying charge was filed by the Union on August
9, 1996,1 and amended on September 18. The complaint issued
on September 30 and was amended on May 13, 1997.
All parties were afforded full opportunity to appear, to intro-
duce relevant evidence, to examine and cross-examine wit-
nesses, and to argue the merits of their respective positions. On
the entire record, including my observation of the demeanor of
the witnesses, and after considering the briefs of counsel for the
General Counsel, the Charging Party, and Respondent, I make
the following
FINDINGS OF FACT2
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent, a corporation, is an electrical contractor in the
construction business. During the 12-month period ending May
31, Respondent purchased and received goods and services
valued in excess of $50,000 directly from points outside the
State of Nebraska. Respondent admits and I find that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. Respondent further admits and I
find that the Union is a labor organization within the meaning
of Section 2(5) of the Act.

1 All dates are in 1996, unless otherwise referenced.
2 Credibility resolutions have been made based upon a review of the
entire record and all exhibits in this proceeding. Witness demeanor and
inherent probability of the testimony have been utilized to assess credi-
bility. Testimony contrary to my findings has been discredited on some
occasions because it was in conflict with credited testimony or docu-
ments or because it was inherently incredible and unworthy of belief.
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent, a nonunion, construction industry electrical
contractor, was targeted by the Union for organizational pur-
poses. Randy Neeman, president of Respondent, and his father
Bill Neeman, secretary-treasurer of Respondent, maintain of-
fices at 3420 N. 35th Street Circle in Lincoln, Nebraska. Re-
spondent’s office manager is Sharyn Newton. Prior to March,
when Respondent required additional employees, it placed
advertisements in the Lincoln Journal Star, the local newspaper,
setting forth its street address and the hours it would be accept-
ing applications. In addition, Respondent asked current em-
ployees to refer applicants and sometimes posted flyers. From
February 3 to 16, the following advertisement, typical of Re-
spondent’s practice, appeared in the Lincoln Journal Star:
ELECTRICIAN/technician
must have two years exp in commercial wiring, conduit &
controls, exc indoor working cond. Vac., hol., & bonus.
Accepting applications. 8-4. M-F. 3420 N 35th St Cr
Jon Schafer, David Cousins,3 and Charles Randall responded
at separate times to the advertisement. Each of them was given
an employment application to complete and was hired by Re-
spondent.
Alleged Interrogation
Randall’s past association with the Union was apparent to
Respondent at the time he was hired on February 13. Randall
noted on his application that he had completed a Union appren-
ticeship and listed as past employers two unionized Detroit
companies as well as a nonunion employer in Waverly, Ne-
braska. Although the complaint alleges that Randy Neeman
interrogated Randall during the employment interview, I do not
find this violation. Rather, I credit the testimony of Randy Nee-
man that Randall himself initiated discussion of the Union and
that Neeman did not ask Randall about his Union membership.4
On Tuesday, March 12, Respondent received notice from
the Union that Randall was a member of the Union and would
be engaging in organizing activities.5 After learning about op-
portunities to be referred from the Union’s hiring hall, on
Thursday, March 21, employee Dave Munsinger announced to
other employees that he was joining the Union to get a better
job. Munsinger quit on Friday, March 22, and was immediately
referred to other work by the Union.
Alleged Change in Hiring Procedures by Failing to Accept
Employment Applications
On Friday, March 29, eight journeymen electricians went in
mass to Respondent’s facility equipped with a video camera

3 Cousins was asked to apply for this job by the Union.
4 This is a demeanor credibility resolution based upon the appear-
ance of the two witnesses before me. Of the two, I found that Randy
Neeman was able to recall the events with greater precision. His testi-
mony regarding this conversation was straight forward and without
embellishment.
5 A similar notice sent certified mail by the Union regarding Cousins
was refused by Respondent on March 30.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD432
and tape recorder. Each of them wore a Union jacket or cap.6
Randy Neeman arrived as the eight were disembarking from
their automobiles. One of the eight, Jim Pelley, business man-
ager and financial secretary of the Union, introduced himself to
Randy Neeman and stated that the men were Union members
who wanted to apply for employment. Randy Neeman asked
the men to wait outside. When he did not return, the men went
into the office and another of the eight, Bill Roussan, assistant
business agent and organizer, told Office Manager Newton that
the men were from the Union and would like to apply for work.
Randy Neeman appeared at this time and told the men that
he was not hiring or taking applications. He stated that he had
advertised several weeks prior to March 29 and had filled the
openings. He concluded, “So I would love to put you all on and
as soon as I get an opening I will give you guys a call.” Pelley
provided Randy Neeman with the names, addresses, and phone
numbers of the eight men appended to a letter stating that they
wished to be considered for employment. Randy Neeman testi-
fied that he had no intention of calling the discriminatees. He
told them he would call them in order to get them out of his
office and he threw away the list of names, address, and phone
numbers as soon as they left.
Alleged Change in Hiring Practice by Posting Notices
On Tuesday, April 2, Respondent posted the following no-
tice in its window:
Applications, as well as Names are
not being accepted at this time.
Video Cameras and recording devices
are prohibited.
Sales Reps. by appointment only.
When accepting applications, Respondent placed a sign in its
window stating
PROGRESSIVE ELECTRIC, INC.
Is now accepting applications for full-time apprentice electri-
cians
for commercial and industrial wiring.
If interested, call 466-4222 and ask for Randy.
Progressive Electric is an Equal Opportunity Employer with
excellent wages and benefits.
Alleged Change in Hiring Practice by Placing
Blind Advertisements
Respondent placed advertisements on April 18, May 31, and
June 13 which for the first time limited the date for submission
of resumes and described the positions in specific rather than
general terms. This, despite the fact that Randy Neeman classi-
fied all employees, journeymen and apprentices, as electricians.
Respondent’s name and address were not divulged in the adver-
tisements.

6 At a Union meeting on March 26, it was determined that the execu-
tive board would “batch” on Respondent on March 29. The eight
“batch” applicants included Jim Pelley, business manager and financial
secretary; Bill Roussan, assistant business agent and organizer; Clinton
Burge, president; Don Davids, recording secretary; Meryl Rich; Fred
Munch; Robert Codr; and Jerry Chorowicz.
Alleged Failure to Consider and Hire
By letter of April 23, Pelley advised Respondent that the
eight union members continued to desire consideration for em-
ployment.7 Similarly, on June 24, Respondent was advised that
the eight union members continued to desire to be considered
for employment and wanted information regarding any efforts
which they must undertake in order to be considered for em-
ployment.8 A similar letter was submitted on July 19.9 The
Union did not receive a response to these letters. There is no
dispute that these letters were refused by Respondent and re-
turned to the Union. I find, nevertheless, that Respondent re-
ceived these letters by fax. Randy Neeman testified that he did
not recall the letters. Despite this lapse of memory, I credit the
testimony presented by the General Counsel regarding Respon-
dent’s receipt of the faxed letters.
On March 27, 1997, Respondent was advised that the eight
union members who had attempted to apply for work on March
29 continued to be interested in employment as journeymen or
apprentice electricians. Although the Union received no re-
sponse to its letters of April 23, June 24, and July 19, by letter
of April 4, 1997, Respondent rejected the renewed request to
file applications for employment stating it was not accepting
applications at that time. None of the eight has ever been con-
tacted or hired by Respondent.
Alleged Threat of Closure if Employees Select the Union
On April 8, while working at a jobsite at the University of
Nebraska Dental College, Job Foreman Don Hildreth spoke to
employees David Cousins and Don Schmidt stating that Randy
Neeman had characterized Randall as the “bad apple in the
barrel, and he [Randy Neeman] didn’t want any union crap
around here.” Hildreth continued, “[I]f the Unions got into
Progressive, that Progressive would lose their [University of
Nebraska at Lincoln] contracts, and they would go out of busi-
ness . . . because they couldn’t afford the Union wages and
benefits.” Assuming agency or supervisory status, this state-
ment constitutes an unlawful threat to close the facility if em-
ployees select the Union as their exclusive collective-
bargaining representative.10

7 The letter of April 23 was refused and returned. The letter was also
transmitted by fax. The Union’s records indicate the fax was sent and
received at 3:41 p.m. on April 23.
8 The original letter dated June 14 was returned. The letter was
transmitted by fax on June 24 and received by Respondent on that date.
9 This letter was also transmitted by fax.
10 I specifically reject Respondent’s argument that Hildreth’s state-
ment is protected free speech pursuant to Sec. 8(c) which provides that
expression of views, argument or opinion is not evidence of an unfair
labor practice if such expression contains no threat of reprisal or force
or promise of benefit. Respondent’s argument ignores the obvious
factual problem that Hildreth did not couch the statement as a matter of
personal opinion. Moreover, Respondent has failed to show that the
statement was based on objective facts. Accordingly, the statement
lacks any basis for constituting a mere analysis of the probable conse-
quences of unionization. Respondent’s alternative argument, that there
is no evidence that any employee was actually restrained or coerced by
the statement, is misplaced. The statement has been evaluated in light
of what a reasonable employee would have understood. This objective
test, utilized by the Board, renders it unnecessary to probe the subjec-
PROGRESSIVE ELECTRIC, INC. 433
Respondent contends that this statement is not attributable to
it because Hildreth is not an agent or supervisor within the
meaning of Section 2(11) or (13) of the Act. I find that Hil-
dreth’s statement was attributable to Respondent. When Cous-
ins began working for Respondent, Randy Neeman assigned
Cousins to work with Hildreth whom Randy Neeman described
as “running a few jobs for him.” Randy Neeman told Cousins
that if Cousins had any questions, he should ask Hildreth.
Randy Neeman described Hildreth’s’ duties as overseeing the
projects. This manifestation by Respondent to employees cre-
ated a reasonable basis for employees to believe that Hildreth
was reflecting company policy and speaking for Respondent.
See, e.g., G M Electrics, 323 NLRB 125, 128 (1997), and cases
cited therein.
On April 26, Randall announced that he was officially on
strike because Respondent would not pay him union wages.
Randall unconditionally offered to return to work on April 30.
On May 1, after telling Randall that they were treating Ran-
dall’s “strike” of April 26 as a voluntary quit, 11 Randy and Bill
Neeman met with the remaining employees.
Alleged Threat of Loss of Employment for Engaging in Union
Activities
Randy Neeman began the meeting by telling the assembled
employees that Randall was trying, “to cost all you guys your
jobs . . . and that’s why we have to put a stop to it.“ This state-
ment constitutes an unlawful threat of loss of employment if
employees engage in activities on behalf of the Union. In rele-
vant part, Randy Neeman continued, “[W]e’re going to talk
about this dirty word . . . UNION . . . okay! Let’s talk about
unions. Are we for it, Bill and I? NO! Are you guys for it. I
don’t want to know. Okay! I can’t ask ya, but I can give ya my
opinion on it.”
Alleged Instruction to Rejection Solicitations by the Union
Randy Neeman continued addressing the employees on May
1 by referencing harassment stating, “I don’t know if you guys
know it. We had eight of ‘em show up out here with video
cameras and they tried to get on, hire on out here. That’s why
that sign’s out in the door, says no applications taken.” He con-
tinued, later that the Union might visit employees during lunch
and during nonworking time but if employees were working,
the employees could tell the Union, “to shove it and get out of
there anytime you want.” He reiterated, “As long as you’re
during your lunch or during your work break, fine go ahead . . .
I . . . do whatever you want. I can’t tell you not to, okay. . . . If
you don’t want to listen, you can tell them to shove it and leave
or you can get . . . a hold of me. . . .” At a later point, Randy
Neeman stated,
I already know what [the Union] is gonna throw at us. It’s a
pattern. They’ve only got so much to work with and . . . that’s

tive feelings of each and every employee who was present. Whether the
coercion succeeded or failed is irrelevant. Rather, if the conduct rea-
sonably tended to interfere with the free exercise of Sec. 7 rights, taking
into account the relevant factual context, a violation will generally be
found.
11 There is no allegation that this treatment of Randall violates the
Act.
why I’m preparing you guys a little bit. . . . now you guys are
not gonna get harassed out of your jobs. No way! You know
all you gotta do, it’s simple. When . . . somebody comes out
and offers ya a letter or say a rep. is gonna call you, a rep. is
gonna send this, just say I’ve had it, just leave me alone.
That’s it! Once you say that, you come out and just say it,
they’ll leave ya alone. . . . You got to say it though, okay! You
gotta say it. . . . They have every right to come approach ya,
but once you tell ‘em to stuff it, then they better leave you
alone.
These statements constitute unlawful instruction to employees
to reject solicitations by the Union.
Alleged Solicitation to Distribute a Letter in Opposition to
the Union
Employee Dave Richards asked Randy Neeman if the em-
ployees could write letters stating that they did not want to
belong to the Union and give the letters to Randy Neeman indi-
cating they were standing behind him. Randy Neeman re-
sponded,
If they’re individually wrote. You could probably have one
letter wrote and have everybody sign it and I . . . don’t know,
I . . . I would probably just soon give you an address and have
one of ya mail it off . . . okay . . . to keep me out of it. It
would look a lot better. . . . And I . . . I can’t encourage that or
discourage that because I want to stay separate. Do I like the
idea? I think it sounds great!
This constitutes an unlawful solicitation of employees to voice
their opposition to the Union and to the union activities of other
employees in the form of a letter signed by all employees.12
Allegedly Informing Employees that Annual Reviews were
Delayed Due to Union Activities
Randy Neeman then turned his attention to job reviews. He
stated in relevant part,
. . . . job reviews were supposed to happen in February . Okay,
uhm, some got raises, some didn’t get raises, all that good
stuff and, you know what, it got held up, why? Because of
this bullshit. Because I gotta watch it, I can’t go all of a sud-
den start givin’ out raises for no reasons to try to encourage
you to stay. So I got cold feet. I didn’t want to end up in court
saying well god you guys you sent out and offered this money
to these guys to stay and not join our organization. So I got
legal counsel on that and since I have documentation, it is
time and it is wrote up and it’s supposed to happen. We can
make it happen. So we’re gonna do what we typically always
do once a year. Uh, one on one. Now job reviews is where it’s

12 Employee David Richards prepared a letter on the day following
this meeting stating that the employees of Respondent did not care for
the Union and did not want letters from the Union or to be visited by
the Union. The letter concluded, “Here is a list of co-workers and
GOOD electricians that can and will VOTE the Union down.” The
letter was signed by eight individuals including foreman Hildreth.
Cousins testified that in fact Hildreth told him that the letter was in the
office and if Cousins wanted to sign it, he could go to the office. This
also constitutes soliciting employees to send a letter in opposition to the
Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD434
gonna be you come in, sit down and talk to Bill and I and tell
us what you like, what you dislike.
These remarks constitute unlawfully informing employees that
their annual reviews were delayed as a result of their activities
on behalf of the Union.
Alleged Threat of Bodily Harm for Engaging in
Union Activities
On that same day, Cousins overheard Scott Johnson, Re-
spondent’s estimator and an avid recreational hunter, state to
Hildreth and employee Joe Tyler that if he could get within a
quarter mile of Randall he could take him out and Randall
would never know what hit him. Johnson agreed that he made
this statement but explained that in the context, the statement
could only be understood as a joke and, in the worst case, as a
threat of bodily harm to Randall because of his personal dislike
for Randall and for Randall’s work performance. I find that a
reasonable listener would have understood the contextual na-
ture of Johnson’s statement. Accordingly, I find that the state-
ment does not constitute a threat of bodily harm for engaging in
activities on behalf of the Union. It is therefore unnecessary to
determine the contested legal issue of whether Johnson is a
supervisor or agent of the Respondent.
Analysis: Alleged Change in Hiring Practices and
Failure to Consider and Hire
In order to demonstrate that Respondent changed its hiring
procedures and failed to consider or employ the batch appli-
cants in violation of the Act, the General Counsel must first,
“persuade that antiunion sentiment was a substantial or moti-
vating factor in the challenged employer decisions. The burden
of persuasion then shifts to the employer to prove its affirma-
tive defense that it would have taken the same action even if the
employees had not engaged in protected activity.” Manno Elec-
tric, 321 NLRB 278, 280 fn. 12 (1996); Wright Line, 251
NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393, 398–404 (1983).
The parties disagree on the scope of the complaint allegation
regarding change in hiring procedures. The complaint alleges
that, “On or about March 29, 1996, Respondent changed its
hiring procedure by failing and refusing to accept employment
applications from applicants.” It was initially clear to all parties
that this allegation encompassed not only (1) refusal to allow
the batch applicants to file applications on March 29 but also
(2) the notice of April 2 stating that Respondent was not accept-
ing applications. Following the close of General Counsel’s
case-in-chief, counsel sought permission to formally amend the
complaint allegation to make it clear that the change in Re-
spondent’s advertising procedures of April, May, and June in
which “blind” ads were utilized was also encompassed. I de-
nied the motion to amend13 but admonished Respondent that

13 The General Counsel specifically amended the complaint prior to
the hearing in order to conform the pleadings to the evidence which
was anticipated. Although the complaint allegation regarding failure to
accept employment applications could have been similarly clarified, the
General Counsel did not attempt to do so until after the close of its
case-in-chief. When the General Counsel announced that the April,
the General Counsel and the Charging Party might nevertheless
seek resolution of this issue on the merits by arguing that it was
encompassed within the pleadings as closely connected to the
existing allegations and fully litigated at the hearing. Addition-
ally, I informed Respondent that if it required additional time in
which to prepare a defense to these allegations, I would con-
sider such a request. However, no such request was made.
Relying on my refusal to allow the formal complaint
amendment, Respondent has moved to strike the General Coun-
sel’s and the Charging Party’s briefs to the extent they contain
argument regarding the April, May, and June “blind” ads. This
motion is denied. Utilizing the two-part test cited by Respon-
dent and the General Counsel,14 I find that the change to
“blind” ads is closely connected to the subject matter of the
complaint15 and was fully litigated.16
Turning to the merits of the change in hiring procedures al-
legations, I find there is ample evidence of activity, knowledge
and animus,17 and, accordingly, conclude that the General
Counsel has persuaded that antiunion sentiment was a motivat-
ing factor in Respondent’s change in hiring procedures regard-
ing the batch applicants.
Respondent defends its alleged changes in hiring procedures
by reference to its policy of not accepting applications when it
is not hiring. There is, in fact, no evidence that Respondent was
hiring. If Respondent had simply refused to take applications
on March 29, there would not be a violation. However, Re-
spondent did more. Respondent told the applicants that it would
call them when openings occurred. This constituted a change in
hiring procedures and had the effect of luring the applicants
into complacency. Randy Neeman testified that even as he
spoke those words, he had no intention of contacting the appli-

May, and June “blind” ads were intended to be included within the
scope of the allegation regarding change in hiring procedures, Respon-
dent, understandably, expressed surprise. As this was the first mention
that the “blind” ads were being litigated as a change in hiring proce-
dures, I denied the motion as unjust.
14 Hi-Tech Cable Corp., 318 NLRB 280 (1995), and Pergament
United Sales, 296 NLRB 333, 334 (1989), enfd., 920 F.2d 130 (2d Cir.
1990). There is no question that the allegation is additionally closely
related to the underlying charge.
15 The complaint alleges change in hiring procedures on March 29
by failing and refusing to accept employment applications. There is no
dispute that this allegation encompassed both the refusal to take em-
ployment applications on March 29 and the posting of a sign at Re-
spondent’s facility on or about April which stated that Respondent was
not hiring and was not taking applications. The “blind” ads were also a
change in hiring procedures. These ads were placed within a three-
month period following March 29. There is, accordingly, a close con-
nection between the allegation wet forth in the complaint and the alle-
gation regarding the “blind” ads.
16 For instance, Respondent was put on notice regarding the “clarifi-
cation” of this allegation during testimony of its first witness. Although
the formal motion to amend was denied, Respondent was aware that the
issue would nevertheless be litigated as closely connected. Respondent
presented evidence and cross examined witnesses regarding this con-
duct. Under these circumstances, the issue has been fully litigated.
17 In addition to the 8(a)(1) statements already found, I note that
Randy Neeman referred to the Union as a “bunch of dummies” and
used the phrase, “Mr. Asshole Union Rep.,” when addressing assem-
bled employees.
PROGRESSIVE ELECTRIC, INC. 435
cants. In fact, he told them he would call them in order to get
them out of his office and he threw away the list of their names,
addresses, and phone numbers immediately.
Respondent defends its actions by reference to the video
camera which the alleged discriminatees brought to Respon-
dent’s facility. Respondent claims that trade secrets might be
made available to competitors through video camera surveil-
lance and, additionally, Randy Neeman claimed that his father,
Bill Neeman, was in fragile health due to a heart condition and
he was concerned that the video cameras would upset his fa-
ther. Respondent’s evidence fails to convince me that its ac-
tions were not motivated at least in part by antiunion sentiment.
No specific trade secrets were enunciated and Bill Neeman’s
composure on the video appears friendly and without evidence
of nervousness or upset. Accordingly, I find that Respondent
changed hiring procedures on March 29 by telling the prospec-
tive applicants that they would be called when a vacancy oc-
curred at least in part because of the union activity of the al-
leged discriminatees.
Following the events of March 29, Respondent placed a sign
in its window stating that applications and names were not
being accepted. When hiring, a different sign advised appli-
cants to telephone Randy Neeman. This constituted a change in
hiring practices in that no signs had been present prior to March
29 and it was previously unnecessary to telephone Randy Nee-
man in order to file an application during periods of time when
Respondent was accepting applications. As noted, the record
indicates substantial animus toward the Union. Moreover,
Randy Neeman specifically told employees that the signs were
the result of the eight batch applicants appearing with video
cameras and a recording device. I find that this change in hiring
procedures was motivated in part by a desire to screen out un-
ion applicants. Accordingly, I find the changes violative of
Section 8(a)(1) and (3) of the Act.
Respondent also changed its advertising practice by placing
“blind” ads in April, May, and June which specifically limited
the dates when applications would be accepted and concealed
Respondent’s identity. There is no evidence of any business
reason for this change. Under the circumstances, I find that this
change was made in order to screen out union applicants.
In addition, I find that the General Counsel has persuaded
that antiunion sentiment was a motivating factor in Respon-
dent’s failure to consider the eight batch applicants for em-
ployment. Certainly, the union membership of these applicants
was well advertised. Respondent’s animus for the Union is
replete in the record. Randy Neeman told the batch applicants
that they would be considered when he had work. The batch
applicants renewed their request to be considered but Respon-
dent thereafter hired other applicants. There is no evidence that
Respondent considered the eight batch applicants. Respondent
claims the batch applicants were not considered because it re-
tains applications for only 45 days. Whether or not this is true is
irrelevant as these applicants were not allowed to file applica-
tions and were specifically told they would be considered when
the Respondent had vacancies.18 Moreover, the Union renewed

18 On February 20, Jerry Hiestand applied for work. He was not
hired at that time. However, he was hired on May 17 as an HVAC
its request for employment during periods of time when “blind”
ads were advertising vacancies.19 Because I reject Respondent’s
reasons for refusal to consider the applicants, I find that Re-
spondent has violated Section 8(a)(1) and (3) by failing to con-
sider the applicants for employment. Cf., Delta Mechanical,
323 NLRB 76, 81 (1997) (failure to consider applicant was
consistent with uniformly applied policy of refusal to accept
applications unless the company was hiring); Industrial Con-
struction Services, 323 NLRB 1037 (1997) (no violation in
failure to consider 17 job applications faxed to company when
company’s express and uniformly applied policy prohibited
consideration of faxed job application).
Respondent defends failure to hire the “batch” applicants on
various grounds including (1) an assertion that Pelley and Rou-
sann had not worked recently with their tools and therefore
were not qualified applicants; (2) the testimony of alleged dis-
criminatee Chorowicz that he would have to know what job
was being offered before he could decide whether he would
accept an offer; and (3) the assertion that five of the eight ap-
plicants were not truly available for work because they were
employed elsewhere and Respondent’s policy would have pre-
cluded hiring them away from their current employers.20 Be-
cause Respondent did not consider any of these applicants, the
remedy herein will require that they be considered. If it is de-
termined in a subsequent compliance proceeding that Respon-
dent would have hired any of the applicants it refused to con-
sider, these arguments may be relevant. However, at this stage
of the proceedings, the arguments are premature. See, e.g., B E
& K Construction Co., 321 NLRB 561 (1996); Refrigeration
Systems Co., 321 NLRB 1085 (1996); Ultrasystems Western
Constructors, 316 NLRB 1243 (1995).
CONCLUSIONS OF LAW
1. By threatening employees with closure of its facility if
they selected the Union as their exclusive collective-bargaining
representative, threatening employees with loss of employment
if they engaged in activities on behalf of the Union, soliciting
employees to speak to other employees in opposition to the
Union, instructing employees to reject solicitations by the Un-
ion, soliciting employees to distributed a letter in opposition to
the Union and union activities of other employees, and suggest-
ing the form of this communication, and informing employees
that their annual reviews were delayed as a result of their activi-
ties on behalf of the Union the Respondent has violated Section
8(a)(1) of the Act.

installer after responding to a “blind” ad. His prior application had been
retained in Respondent’s files. Accordingly, were it necessary to exam-
ine this defense on the merits, I would not find it uniformly applied.
19 Specifically, a blind ad was placed on April 18 limiting submis-
sion of resumes through May 1. On April 23 the Union expressed con-
tinued interest in employment on behalf of the eight “batch” applicants.
A “blind” ad on May 31 was followed by a letter of June 14 from the
Union. The “blind” ad of June 13 was followed by a letter of July 19.
Although neither the June 14 or July 19 letters arrived within the time
limits set in the “blind” ad, the June 14 letter was timely for the June 13
ad.
20 Many employees of Respondent were employed by other employ-
ers at the time Respondent hired him. Accordingly, the record does not
indicate uniform application of this policy.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD436
2. By changing its hiring procedures and by failing and re-
fusing to consider the eight “batch” applicants for employment
and to employ them, the Respondent has violated Section
8(a)(3) of the Act.
3. These unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
Specifically, Respondent will be ordered to consider for em-
ployment and to hire Clinton Burge, Don Davids, Meryl Rich,
Fred Munch, Robert Codr, Jerry Chorowicz, Bill Roussan, and
Jim Pelley. Those discriminatees whom Respondent would
have hired for job openings that existed from March 29, 1996,
to date, shall be made whole, with interest, for any loss of earn-
ings and other benefits suffered as a result of the discrimination
against them. Backpay shall be computed on a quarterly basis
as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest computed in accordance with New Horizons for
the Retarded, 283 NLRB 1173 (1987). Questions concerning
the number of jobs that would have been available during the
period of discriminatory conduct and the use of remedial pref-
erential hire lists are reserved for determination in the compli-
ance phase of this proceeding. Starcon, Inc., 323 NLRB 977
(1997); B E & K Construction Co., 321 NLRB 561, 562 (1996);
Ultrasystems Western Constructors, 316 NLRB 1243 (1995).
[Recommended Order omitted from publication.]
Lynette K. Zuch, Esq., for the General Counsel.
William A. Harding, Esq., Margaret E. Stine, Esq. (Harding,
Shultz & Downs), of Lincoln, Nebraska, for the Respon-
dent.
Michael J. Stapp, Esq. (Blake & Uhlig), of Kansas City, Kan-
sas, for the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, Administrative Law Judge. This
case is before me on remand from the Board. Originally, the
case was tried in Lincoln, Nebraska, on June 30 and July 1
through 3, 1997. On November 17, 1997, I issued my decision
finding that Progressive Electric, Inc. (Respondent) violated
Section 8(a)(1) of the Act by interrogating, threatening, and
soliciting employees, and Section 8(a)(1) and (3) of the Act by
changing hiring procedures and failing to consider and hire
applicants because of their activities on behalf of International
Brotherhood of Electrical Workers Local Union No. 265, affili-
ated with International Brotherhood of Electrical Workers,
AFL–CIO (the Union).1
Thereafter, timely exceptions and cross-exceptions were
filed. On May 11, 2000, the Board issued FES, 331 NLRB 9
(2000), setting forth a framework for analysis in refusal-to-hire

1 The underlying charge was filed by the Union on August 9, 1996,
and amended on September 18, 1996. The complaint issued on Sep-
tember 30, 1996, and was amended on May 13, 1997.
and refusal-to-consider cases. By order of June 12, 2000, the
Board remanded this case to me for further consideration in
light of FES. By order of June 22, 2000, I requested that the
parties herein set forth their positions regarding the remand, the
impact of FES on the facts of this case, and their respective
positions regarding whether the 1997 record was sufficient to
decide the issues presented.
The parties submitted written position statements regarding
these matters. All parties agree that the 1997 record is sufficient
to decide the issues on remand. On the entire record, including
my observation of the demeanor of the witnesses,2 and after
considering the position statements on remand filed by all
counsel, I make the following
FINDINGS OF FACT
I. FRAMEWORK FOR ANALYSIS
A. Refusal to Consider
In FES, the Board set forth the following elements of a dis-
criminatory refusal to consider violation:
To establish a discriminatory refusal to consider, . . .
the General Counsel bears the burden of showing the fol-
lowing at the hearing on the merits: (1) that the respondent
excluded applicants from a hiring process; and (2) that an-
tiunion animus contributed to the decision not to consider
the applicants for employment.3
Once the General Counsel shoulders the initial burden in a
refusal-to-consider case, the burden shifts to the respondent, “to
show that it would not have hired the discriminatees to fill
those openings even in the absence of its earlier refusal to con-
sider them on the basis of their union activity or affiliation.”4
B. Refusal to Hire
The Board set forth the elements of a discriminatory refusal-
to-hire violation as follows:
To establish a discriminatory refusal to hire, the Gen-
eral Counsel must . . . first show the following at the hear-
ing on the merits: (1) that the respondent was hiring, or
had concrete plans to hire, at the time of the alleged
unlawful conduct; (2) that the applicants had experience or
training relevant to the announced or generally know re-
quirements of the positions for hire, or in the alternative,
that the employer has not adhered uniformly to such re-
quirements, or that the requirements were themselves pre-
textual or were applied as a pretext for discrimination; and
(3) that antiunion animus contributed to the decision not to
he applicants.5

2 Credibility resolutions have been made based upon a review of the
entire record and all exhibits in this proceeding. Witness demeanor and
inherent probability of the testimony have been utilized to assess credi-
bility. Testimony contrary to my findings has been discredited on some
occasions because it was in conflict with credited testimony or docu-
ments or because it was inherently incredible and unworthy of belief.
3 FES, supra at 15.
4 FES, supra at 17.
5 FES, supra at 12 (footnotes omitted).
PROGRESSIVE ELECTRIC, INC. 437
Once the General Counsel sustains the initial burden in a re-
fusal-to-hire case, “the burden will shift to Respondent to show
that it would not have hired the applicants even in the absence
of their union activity or affiliation.”
II. ORIGINAL DECISION
In my original decision, I found, inter alia, that Respondent
had violated the Act by failing to consider eight “batch” appli-
cants for employment. The conclusion of law recited, “By
changing its hiring procedures and by failing and refusing to
consider the eight ‘batch’ applicants for employment and to
employ them, the Respondent has violated Section 8(a)(3) of
the Act.” The proposed remedy stated, “Specifically, Respon-
dent will be ordered to consider for employment and to hire
[the eight ‘batch’ applicants].” Respondent’s defenses to failure
to hire were rejected:
Because Respondent did not consider any of these ap-
plicants, the remedy herein will require that they be con-
sidered. If it is determined in a subsequent compliance
proceeding that Respondent would have hired any of the
applicants it refused to consider, these arguments may be
relevant. However, at this stage of the proceedings, the ar-
guments are premature.
III. ARGUMENT ON REMAND
A. Counsel for the General Counsel
Counsel asserts that the original decision found and the re-
cord evidence reflects that Respondent excluded the eight batch
applicants from the hiring process and that antiunion animus
contributed to the decision not to consider these applicants for
employment. Moreover, counsel asserts that Respondent did
not prove that it would not have considered the applicants even
in the absence of their union activity or affiliation. Counsel
notes that Respondent’s claim that it only retained applications
for 45 days was rejected because it was not uniformly applied.
Moreover, counsel points to the Union’s renewal of the re-
quests for consideration for employment throughout the rele-
vant period. Counsel asserts that the appropriate remedy based
upon these findings is a cease and desist remedy and a require-
ment that the discriminatees be considered for future openings
in accord with nondiscriminatory criteria. Counsel also requests
an order notifying all parties of future openings.
With regard to the failure to hire allegation, counsel for the
General Counsel notes that the record credibly reflects that
Respondent was hiring because it hired eight employees be-
tween May 17, 1996, and March 10, 1997. Counsel asserts that
all of the batch applicants were experienced journeymen elec-
tricians with state and city electrical licenses and were qualified
for the announced vacancies. Counsel asserts that the record is
replete with examples of antiunion animus and that the original
decision correctly found that antiunion sentiment was a moti-
vating factor in Respondent’s treatment of the batch applicants.
Counsel avers that Respondent did not show that it would not
have hired the applicants even in the absence of their union
activity. Counsel notes that applicants with inferior qualifica-
tions were, in fact, hired. Counsel also asserts that Respondent
has failed to show that any of the applicants were not qualified
for specific positions. Counsel seeks a cease-and-desist order
and an order offering the eight discriminatees immediate in-
statement to the positions for which they applied, or if those
positions no longer exist, to substantially equivalent positions,
as well as a make-whole remedy.
B. Charging Party
Counsel for the Charging Party notes that the original deci-
sion already finds that Respondent excluded the “batch” appli-
cants from the hiring process and that antiunion animus con-
tributed to the decision not to consider these applicants. Coun-
sel requests that the discriminatees be instated with backpay to
openings arising during or after the hearing. As to refusal to
hire, counsel asserts that the record amply demonstrates that
Respondent was hiring, or had concrete plans to hire, at the
time of the unlawful conduct. Counsel argues that the record
reflects that the eight applicants had the experience or training
relevant to the announced or generally known requirements.
Finally, counsel requests that in the event a finding is made that
there was not an opening for all of the applicants, the compli-
ance hearing should be used to determine which of the appli-
cants should have been hired for the available openings.
C. Respondent
Counsel for Respondent asserts that this is solely a refusal to
hire case. Counsel contends that the complaint, as amended,
does not allege refusal to consider. As to refusal to hire, Re-
spondent argues that counsel for the General Counsel did not
meet the burden of proving that Respondent discriminatorily
refused to hire the eight applicants. Respondent notes a finding
in the original decision that there was no evidence that it was
hiring on March 29 when it refused to take applications from
the eight alleged discriminatees. Counsel argues, moreover, that
Respondent kept applications on file for 45 days only and there
is no evidence of any job openings within the 45-day period
following March 29. In addition, Respondent denies that it
received any letters from the Union renewing interest on the
part of the applicants for future job openings.
Counsel also contends that there is insufficient evidence to
prove that the applicants were qualified for any open positions.
Counsel notes that two of the eight applicants had not worked
with the tools of the trade since assuming positions in the Un-
ion. Moreover, Respondent advertised for ladder rack installers
in May and June 1996, and for apprentices in the spring of
1997. These positions paid far less than typically earned by a
journeyman electrician. Respondent asserts its right to refuse to
hire applicants who are overqualified for its open positions.
IV. ANALYSIS ON REMAND
A. General Counsel’s Initial Burden—Refusal to Consider
The amendment to the complaint dated May 13, 1996, al-
leges at paragraph 6(b) that, “Respondent has failed and refused
to consider for employment and to employ the following em-
ployee-applicants for employment. . . .” It is clear, accordingly,
that the pleadings encompass not only a refusal to hire allega-
tion but also a refusal to consider allegation. I reject Respon-
dent’s argument to the contrary. Consistent with my findings in
the original decision and in agreement with counsel for the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD438
General Counsel and counsel for the Charging Party, I find that
Respondent excluded the eight applicants from the hiring proc-
ess and that antiunion animus contributed to the decision not to
consider the applicants for employment.
B. General Counsel’s Initial Burden—Refusal to Hire
There is no evidence that Respondent was hiring or had con-
crete plans to hire on March 29 when the eight applicants pre-
sented themselves for hire. However, I have previously found
that Respondent told the applicants that they would be consid-
ered for future openings and that the Union renewed the appli-
cants’ request to be considered for future employment by letters
or faxes of April 23, June 24, July 19, 1996, and March 27,
1997. During this period, Respondent hired eight employees:
one HVAC/Energy management system installer, three ladder
rack installers, one apprentice electrician, and three electricians.
Based upon this evidence, I find that Respondent had concrete
plans to hire electricians and apprentice electricians during the
period from March 29, 1996, through March 27, 1997, the same
period of time that the eight applicants expressed interest in
employment with Respondent.
Moreover, I find that the eight batch applicants had experi-
ence or training relevant to the announced or generally known
requirements of the positions for hire. Each of them was a li-
censed journeyman electrician capable of performing general
electrical work, HVAC installation and ladder rack installation.
Seven of the eight applicants were graduates of an IBEW 4-
year apprenticeship program6 and all were licensed as journey-
men electricians by the State of Nebraska. Consequently, I find
that each of the applicants had the experience or training rele-
vant to the announced and generally known requirements of
each of the openings.7 Finally, I have previously found that
antiunion animus contributed to the decision not to consider the
applicants for hire and I find that it extended to refusal to hire
these applicants as well.
C. Respondent’s Burden—Refusal to Consider and
Refusal to Hire
Whether defending refusal to hire or refusal to consider, Re-
spondent’s burden is to show that it would not have hired the
applicants even in the absence of their union activity. The
Board further explained,
If the respondent asserts that the applicants were not
qualified for the positions it was filling, it is the respon-
dent’s burden to show, at the hearing on the merits, that
they did not possess the specific qualifications the position
required or that others (who were hired) had superior
qualifications, and that it would not have hired them for
that reason even in the absence of their union support or
activity. In sum, the issue of whether the alleged discrimi-
natees would have been hired but for the discrimination

6 Roussan is the only exception to this statement. However, he was
licensed and worked as a journeyman electrician for 30 years at the
time of his application.
7 See GM Electrics, 323 NLRB 125, 128 fn. 13 (1997), cited with
approval in FES, 331 NLRB at 12–13.
against them must be litigated at the hearing on the mer-
its.8
Respondent asserts that it would not have hired the appli-
cants in any event, even in the absence of their union activity.
Specifically, Respondent asserts that some of the applicants did
not possess the specific qualifications the position required and
as to others, that those hired were better qualified for the par-
ticular jobs. Respondent notes that two of the applicants had not
worked as electricians for a number of years.9 Respondent also
notes that one of the alleged discriminatees admitted that he
might not have taken a job with Respondent depending on the
pay which was offered. Finally, Respondent asserts that some
of the applicants were overqualified for the jobs it filled.
1. HVAC/Energy management system installer
On May 17, 1996, Respondent hired Jerry Hiestand in re-
sponse to its April 18, 1996, advertisement for “HVAC/EMS
Installers/Programmer, min 4 yrs experience.” Hiestand pos-
sessed a State of Nebraska Class A Electrical License. He listed
his prior employment as journeyman electrician 1992–1996 and
electrical technician 1989-1992. The resume which he submit-
ted with his application for employment with Respondent indi-
cates that his current position involved HVAC/Energy Man-
agement System installation, commissioning, programming,
and customer training for commercial control systems. His
resume further explained that his experience with systems in-
cluded Johnson Controls, Landis & Gyr, Air Link, Climate
Master and company-engineered systems. Hiestand was hired
at a rate of $13.75 per hour as an energy management systems
technician.
Respondent hired Hiestand in anticipation of being awarded
a contract with University of Nebraska to perform energy man-
agement system installation. Prior to hiring Hiestand, Respon-
dent did not have any personnel specifically trained in the area
of energy management system installation or operation, or spe-
cifically trained in motor control or programmable logic con-
trollers. Respondent’s president Neeman explained that he
wanted an employee who knew this field, “like the back of their
hand” rather than someone with only sporadic experience in the
area. In Neeman’s view, the job required skills and experience
or training over and above that of a licensed journeyman elec-
trician.
Although Respondent was eventually the lowest bidder on
the University contract, Respondent was notified by letter of
June 14, 1996, that the University would not be awarding the
contract after all. Hiestand worked until July 9, 1996, and then
quit. He was not replaced because the position was created in
anticipation of a contract with the University which, “did not
work out.”
While the General Counsel and the Charging Party assert
that any of the eight applicants possessed qualifications supe-
rior to those of Hiestand, Respondent contends that it would not

8 FES, supra, 331 NLRB at 12.
9 Jim Pelley, business manager and financial secretary of the Union,
had not worked on a jobsite since June 1987 and assistant business
agent and organizer William Roussan had not worked as a journeyman
electrician since September 1995.
PROGRESSIVE ELECTRIC, INC. 439
have hired any of the eight applicants in any event because
Hiestand had superior qualifications. The record reflects that
while the eight applicants were able to competently study blue-
prints to determine where motors for HVAC and other equip-
ment should be placed, were able to install power feeds and
control wiring systems, and occasionally read technical manu-
als describing the functioning of such pieces of equipment in
order to connect power properly to such systems, none of the
eight applicants had 4 years of experience installing, program-
ming, commissioning and training customers on such systems. I
find that Hiestand had such experience10 and accordingly, in
agreement with Respondent, find that it would not have hired
any of the eight applicants for this position even in the absence
of their union support or activity.
2. Ladder rack installers
On May 31 and June 13, 1996, Respondent placed adver-
tisements for “LADDER RACK Installer. Good carpentry skill
required.” Neeman explained that he wanted good carpentry
skills to ensure installation in a neat and orderly fashion. He
described “ladder rack” work as “hard and dirty work.” Three
employees were hired to perform this work. Christopher Stuart
was hired on June 10, 1996, as a ladder rack installer earning
$7.50 per hour. His prior experience included insurance sales
and store manager at a video rental store. Mike Standley was
employed on June 20, 1996, as a ladder rack installer with an
initial rate of $7 per hour. His prior experience included plumb-
ing and Keno writing. Curtis Williams was hired on June 24,
1996, as a ladder rack installer earning $7 per hour. His prior
experience was radiological controls shift supervisor.
Each of the eight applicants was able to plan and install
raceway systems. Cable trays or ladder racks are a component
of these systems. Each of these applicants could calculate the
necessary bends, saddles and offsets needed to install conduit in
the system. Each of them could plumb and level the system and
cut holes in concrete, if necessary, to run the conduit through
the system. In addition, Roussan worked as a carpenter while in
the Army and in 1996, he built a new house and a dog kennel.
None of the successful applicants had any prior experience with
“ladder rack” installation or carpentry.11 I find that Respondent
has failed to prove that those hired had superior qualifications
to the applicants. Because the number of qualified applicants

10 In making this finding, I have not relied upon the testimony of Jim
Hines, manager control systems division, facilities management, Uni-
versity of Nebraska.
11 None of the applications or resumes of the successful applicants
refers to any carpentry experience. Neeman thought that Stuart might
have mentioned carpentry experience during their interview but he was
somewhat uncertain about this. Moreover, Neeman agreed that Stuart
probably did not know what a ladder rack was at the time he was hired.
Neeman’s uncertainty regarding this fact diminishes the probity of his
testimony. Consequently, I am unable to find that Stuart had superior
carpentry skills to those of the eight unsuccessful applicants. Neeman
could not recall whether Standley or Williams mentioned any carpentry
skills during their interviews. Moreover, I note that Respondent’s ad-
vertisements were “blind,” and could potentially have been worded to
obfuscate the identity of the employer. Neeman’s explanation regarding
the need for carpentry skills in ladder rack installation was somewhat
weak and I discount the carpentry requirement on that basis.
(8) exceeds the number of available jobs (3), a backpay and
instatement remedy is appropriate for 3 of the applicants. The
compliance proceeding is the appropriate forum for determin-
ing which of the eight applicants must be offered backpay and
instatement.12
Respondent argues that it was privileged to reject the eight
applicants on the basis of overqualification. This argument is
presumably directed to the ladder rack positions and perhaps to
the apprentice electrician positions. Respondent’s president,
Randy Neeman, testified that he had indeed rejected the appli-
cation of Jerry Hiestand for previous electrician vacancies be-
cause Hiestand was overqualified for these positions. Hiestand
applied for work on February 20, 1996. Charles Randall and
Jon Schafer were hired on February 20, 1996, while David
Cousins and Don Virts were hired on March 4, 1996. Randall,
Schafer and Cousins had journeyman electrician certification
and at least 4 to 12 years experience in the field.13 Hiestand’s
application is comparable to those of Randall, Schafer, Cousins
and Virts and, I conclude that he was not rejected due to “over-
qualification.” Rather, it appears that his experience was
somewhat specialized in the controls area. Respondent was
planning to bid on a contract in this area for the University and
held Hiestand’s application for future reference based on his
specialized background. Accordingly, I reject Respondent’s
argument regarding “overqualification” as a basis for rejection
because the argument is not based upon Respondent’s past
conduct.
3. Apprentice electrician—May 27, 1996
From March 22 to May 26, 1996, Respondent utilized the
services of Steve Baumli as a contract “apprentice electrician.”
Baumli’s actual employer, Advantage Personnel, was paid for
Baumli’s services. Advantage Personnel is owned by Neeman’s
mother. On May 27, 1996, Baumli became a direct employee of
Respondent. No actual job vacancy was advertised. At some
point after converting to employee status, Baumli was assigned
“ladder rack” installation work. I have already found that each
of the eight applicants was qualified to perform this work.
Baumli’s prior experience included 6 months as an electro-
mechanical technician responsible for maintenance of two gas
turbine generation facilities, 6 years with Nebraska Public
Power District including over 2 years as an “As-Built Drafts-
man,” just under 2 years as an electrician, and 1 year as gas
turbine technician. He also listed experience as ground crew
foreman responsible for coordinating work on utility pole in-
spection and retreatment. He had an associate degree in electri-
cal technology and a bachelor’s degree in industrial technology
and business administration.
All of the applicants had considerably more experience than
Baumli in electrical work. For instance, Munch has worked as a
journeyman electrician since 1960. Roussan became a jour-
neyman in 1966 and worked as a journeyman electrician until
1995 when he became assistant business agent and organizer.

12 See FES, 331 NLRB at 14.
13 Cousins’ application indicates 12 years experience in electrical or
maintenance work. Randall’s application indicates 4 years experience
as well as completion of 4 years joint apprenticeship training. Schafer’s
application indicates 4 years of electrical work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD440
Pelley, Chorowicz,14 Burge,15 and Rich16 completed IBEW
apprenticeship training in 1973 or 1974 and, with the exception
of Pelley, have worked as journeyman electricians since that
date. Pelley ceased working as a journeyman electrician in
1987 when he became business manager and financial secretary
of the Union. Pelley performed ladder rack work occasionally,
as did all electricians. For a period of 4 months, Pelley per-
formed exclusively as a ladder rack installer. Davids17 became
a journeyman electrician in 1989 and Codr18 became a jour-
neyman electrician in 1993.
I find that Respondent had a job vacancy on May 27, 1996,
and it has not shown that it would have hired Baumli on May
27, 1996, over the other applicants. Because the number of
qualified applicants (8) exceeds the number of available jobs
(1), a backpay and instatement remedy is appropriate for only
one of the applicants. The compliance proceeding is the appro-
priate forum for determining which of the eight applicants must
be offered backpay and instatement for this position.19
4. Electricians—January 1997
On January 21, 1997, Respondent advertised for “part-time
Apprentice Electrician, 3 years experience required, with 2
years in Commercial/Industrial applications.” On January 23,
1997, a similar advertisement for “part-time Apprentice Elec-
trician” stated, “Commercial Experience Mandatory.” On Janu-
ary 27, 1997, Respondent hired Jamie Clarke as an “electrician”
at a rate of $9.50 per hour, and Frank Nuno as an “electrician”
at a rate of $9 per hour. Clarke listed 4 years of experience as
an apprentice electrician with some commercial experience.
Nuno listed 3 plus years experience as an apprentice electrician
with some experience installing new electrical equipment in a
high school. No specific reference to commercial experience is
made in his job history or resume.
On March 5, 1997, Respondent advertised for “Full-time
Apprentice Electrician, 2+ Years Commercial Experience man-
datory.” On March 10, 1997, Respondent hired Greg Simons as
an “electrician” at an initial rate of $10 per hour. Simons listed
about 5 years experience as an apprentice electrician in com-
mercial, residential, and industrial areas.
I find that Respondent has not shown that it would have
hired Clarke, Nuno, and Simons over the other applicants.
None of the successful applicants possessed the experience of

14 Chorowicz had been a foreman at Commonwealth Electric since
July 1992. Although he stated that it was possible he might not have
accepted any job depending on the pay, he modified this position by
limiting the answer to minimum wage or above. He stated that he
would have accepted any job in order to organize the employees. I do
not find that Chorowicz removed himself from consideration for em-
ployment by making these statements.
15 Burge has worked for Commonwealth Electric for 10 years and at
the time of the hearing was a foreman.
16 At the time of the hearing, Rich was a service technician with
Commonwealth Electric. He had occupied that position since July
1987.
17 Davids has worked at ABC Electric since 1988 and at the time of
the hearing was job foreman.
18 Codr worked at ABC as a job foreman at the time of the hearing.
19 See FES, 331 NLRB at 14.
the eight applicants.20 Moreover, none of the successful appli-
cants had the depth of skill of the eight unsuccessful applicants.
Because the number of qualified applicants (8) exceeds the
number of available jobs (3), a backpay and instatement rem-
edy is appropriate for only three of the applicants. The compli-
ance proceeding is the appropriate forum for determining which
of the eight applicants must be offered backpay and instatement
for these positions.21
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. The appropriate remedy for failure
to consider the applicants includes consideration for future
openings in accord with nondiscriminatory criteria. Because I
have already performed this consideration for a one-year period
following the initial unlawful refusal-to-consider and found that
there were seven actual job losses, it is unnecessary to defer
this to the compliance proceeding and it is unnecessary to order
consideration for future openings. It is similarly unnecessary to
order Respondent to notify the discriminatees, the charging
party, and the Regional Director of future openings in positions
for which the discriminatees applied or substantially equivalent
positions. With regard to the refusal-to-hire violations, the
compliance proceeding is the appropriate forum for determin-
ing which of the eight discriminatees must be offered backpay
and instatement for the seven available jobs. Respondent must
offer those discriminatees immediate instatement to the posi-
tions to which they applied or, if those positions no longer ex-
ist, to substantially equivalent positions, and must make them
whole for losses sustained by reason of the discrimination
against them. Backpay shall be computed on a quarterly basis
as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest computed in accordance with New Horizons for
the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]

20 Had the job openings been advertised as “electrician” rather than
“apprentice electrician” vacancies, I would be inclined to exclude
Roussan and Pelley from consideration because their most recent ex-
perience was somewhat dated. However, because the jobs were adver-
tised at the apprentice level, Roussan and Pelley’s absence from the
field would not be detrimental.
21 See FES, 331 NLRB at 14.