Salem Electric Co.

National Labor Relations Board - Board Decisions

Aug 31, 2000

331 N.L.R.B. 1575 (N.L.R.B. 2000)

SALEM ELECTRIC CO. 1575
Salem Electric Company, Inc. and Options Tempo-
rary Employment Service, Inc. and Local 342,
International Brotherhood of Electrical Work-
ers, AFL–CIO
Salem Electric Company, Inc. and Local Union 342,
International Brotherhood of Electrical Workers,
AFL–CIO. Cases 11–CA–16141, 11–CA–16328,
and 11–CA–16696
August 31, 2000
DECISION AND ORDER REMANDING
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On November 21, 1997, Administrative Law Judge
Richard J. Linton issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief, and
Respondent, Salem Electric Company, Inc. filed a brief
answering the General Counsel’s exceptions.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings, and conclusions2 only to the
extent consistent with this Decision and Order Remanding.
This case primarily involves the General Counsel’s al-
legations that Respondent, Salem Electric Company, Inc.
(Salem) unlawfully refused to hire and to consider for
hire 66 individuals who were members of the Charging
Party Union and who applied for work with Salem as
electricians during 1994 and 1995. Additionally, the
General Counsel alleged: that Salem unlawfully failed to
reinstate two former economic strikers to their prestrike
jobs or to substantially equivalent ones; that Salem and
Respondent, Options Temporary Employment Service,
Inc. (Options), as joint employers, unlawfully refused to
hire three union members; and that Salem and Options
each violated Section 8(a)(1) in different instances.
We have decided to remand this case to the judge on
three broad, potentially related grounds. First, because
we reject the judge’s 10(b) rationale for dismissing the
striker-reinstatement allegations, we remand these con-
tentions for the judge to make findings and recommenda-
tions on the substantive unfair labor practice question.
Second, we reverse the judge’s finding that the General
Counsel failed to establish that Salem and Options are
joint employers, and we remand for the judge’s further
consideration of this and related issues. Finally, we re-
mand the refusal-to-hire/refusal-to-consider allegations
involving the 66 union members for the judge’s further
consideration in light of our recent decision in FES, 331
NLRB No. 20 (2000).

1 Respondent Salem Electric Co. also filed a motion to strike the
General Counsel’s exceptions, asserting a failure to conform to Sec.
102.46(b)(1) of the Board’s Rules and Regulations. The motion is
denied because the exceptions are in substantial compliance with the
requirements of the rule. See, e.g., America’s Best Quality Coatings
Corp., 313 NLRB 470 fn. 1 (1993), enfd. 44 F.3d 516 (7th Cir. 1995),
cert. denied 515 U.S. 1158 (1995).
2 In light of our decision to remand this case, we find it unnecessary
to consider at this time the judge’s finding that Respondent Salem
Electric’s 8(a)(1) interrogation was “de minimis” and did not merit a
remedial order.
1. The 10(b) issue
Electricians Jeffrey Wyatt and John Reece were hired
by Salem in June 1994 as “top helpers.” Top helper is
Salem’s highest apprentice-electrician classification, in
terms of both requisite skills and wages. There are four
lower apprentice classifications, i.e., “first-year” through
“fourth-year” apprentice. On October 4, 1994, Wyatt and
Reece initiated an economic strike against Salem; at that
time both were making $10.30/hour as top helpers. On
December 21 the Union relayed to Salem an uncondi-
tional offer to return to work on behalf of the two strik-
ers. On December 23 Salem informed the Union that
both individuals, now former economic strikers, had
been permanently replaced during the strike. Subse-
quently, although Salem continued to hire electricians,
no reinstatement offers were ever made to Reece or
Wyatt. The Union filed an unfair labor practice charge on
September 18, 1995, claiming that Salem unlawfully
refused to reinstate the former strikers.
As more fully detailed by the judge, Wyatt and Reece
testified at the unfair labor practice hearing that they had
heard rumors in late December and through the end of
January 1995 that Salem was hiring. In fact, Salem hired
three apprentice-electricians during that January. The
judge found that the rumors of Salem’s hiring activity
heard by Reece, Wyatt, and presumably the Union, trig-
gered an obligation to verify whether Salem had unlaw-
fully failed to offer the former strikers reinstatement to
the jobs being filled. He concluded that they were put on
notice as of January 1995 when Salem in fact hired three
apprentices, that the Respondent conceivably was violat-
ing the Act, and that the 6-month limitation period pro-
vided in Section 10(b) began to run at that time. Because
the Union filed the unfair labor practice charge after the
perceived 10(b) period had terminated, the judge found
the charge untimely, and he dismissed the complaint al-
legation that Salem had discriminated against the former
strikers without reaching the merits.
Once economic strikers have made unconditional of-
fers to return to work, they are entitled to reinstatement
to their former positions, or to substantially equivalent
ones, as the positions become available. See, e.g., Medite
of New Mexico, Inc., 314 NLRB 1145, 1146 (1994), enfd.
72 F.3d 780 (10th Cir. 1995). Generally, a vacant position
requiring lower skills and providing lower pay than the
former striker’s prestrike job is not substantially equiva-
lent. See, e.g., Rose Printing Co., 304 NLRB 1076 (1991);
Western Steel Casting Co., 233 NLRB 870 (1977); and
NLRB v. Oregon Steel Mills, 47 F.3d 1536, 1540 (9th Cir.
1995), enfg. 300 NLRB 817 (1990). An employer’s fail-
331 NLRB No. 172
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1576
ure or refusal to offer reinstatement when appropriate va-
cancies occur violates Section 8(a)(3) and (1). See gener-
ally, Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414
F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970).
If the employer’s failure to offer appropriate vacancies
is the keystone of a Laidlaw violation, the 10(b) limita-
tions period for such a violation cannot, as a matter of
logic, begin to run before an appropriate vacancy occurs.
Moreover, as with any 10(b) defense, notice of the occur-
rence of an alleged unfair labor practice, whether actual
or constructive, must be clear and unequivocal; the bur-
den of proving such notice is on the party raising a 10(b)
affirmative defense. See, e.g., Strick Corp., 241 NLRB
210 fn. 1 (1979). In this case, Salem had the burden of
proof on the 10(b) question.
The essence of the judge’s 10(b) analysis is his finding
that Salem filled three apprentice positions in January
1995—a time when Reece, Wyatt, and the Union had
some information that Salem was hiring. In the judge’s
view, it was at this point that the Union could have al-
leged that Salem failed to offer reinstatement to the two
former strikers, and thus, it was at this point that the 6-
month period began to run. However, the record estab-
lishes that these three apprentice positions paid $8 per
hour, $6.90 per hour, and $6.30 per hour respectively. At
the time Reece and Wyatt went on strike they were top
helpers—top-level apprentices—making $10.30 per
hour. The three January vacancies appear to have been
lower-level apprentice positions, with lower skill re-
quirements and considerably lower pay. They do not
appear to have been substantially equivalent to the for-
mer strikers’ prestrike positions; certainly Salem has not
established that they were. These positions have not been
shown appropriate for the reinstatement of either indi-
vidual. Accordingly, any “notice,” regardless of its qual-
ity, that Reece, Wyatt, or the Union may have had con-
cerning Salem’s filling of these positions cannot serve to
start the 10(b) period, because no demonstrable unfair
labor practice occurred at that time.
Overall, Salem offered no evidence that the former
strikers or the Union were properly on notice at any time
before March 18, 1995—6 months prior to the filing of
the charge—that their prestrike positions or substantially
equivalent ones had been filled. Therefore, Salem’s as-
serted 10(b) defense is without merit. Medite of New
Mexico, supra at fn. 2. We will remand the 8(a)(3) allega-
tions involving Reece and Wyatt to the judge for findings
and recommendations on the substantive issues.
2. The joint-Employer issue
As the judge more fully relates in his decision, al-
though Salem’s usual practice was to hire long-term,
permanent electricians, there were times when its busi-
ness needs required the use of temporary employees.
During May and June 1994, Salem contracted with Op-
tions, a temporary employment agency, for referral of
temporary electrician-employees. The judge found that
under their contract, temporary electricians were referred
to Salem’s worksite at its request from an existing pool
of individuals already interviewed and hired by Options.
Salem paid Options the agreed hourly rate for each re-
ferred employee; Options paid the temporaries their
wages and benefits while they were on referral. Salem
provided day-to-day oversight and directed the work of
the referred employees while they were on its jobsite. In
the event of a work problem with a temporary employee,
Salem had the authority to advise the employee in an
effort to correct the problem. However, Salem did not
often exercise this authority. More often, if a temporary’s
work was unsatisfactory, Salem would request that Op-
tions remove him from the worksite and refer another in
his place, and Options would comply.
The relevant allegations of the complaint state that in
June 1994 Options and Salem, as joint employers, unlaw-
fully refused to hire three electrician-applicants because
of their union membership. The judge did not reach the
question of Salem’s liability for these alleged unfair la-
bor practices, however, because he concluded that Salem
was not a joint employer of the temporaries referred by
Options and utilized by Salem. He found that the contrac-
tual arrangement between the two parties and the worksite
employment conditions of the referred employees re-
flected the standard of the temporary-worker industry.
Therefore, in the judge’s view, Options was the temporary
employees’ sole employer, their “employing entity,” while
Salem was merely the “operating entity” at the worksite.
Concluding that the General Counsel had not made a suf-
ficient showing that Salem was a joint employer, he
granted Salem’s mid-hearing motion to dismiss the re-
fusal-to-hire allegations above to the extent they included
Salem.3 The judge considered it unnecessary, therefore, for
Salem to offer a defense to the joint-employer contention,
and he precluded litigation to this extent.
We find that the judge’s “standard-of-the-industry”
analysis for joint-employer allegations involving tempo-
rary employment agencies is contrary to Board prece-
dent. In Riverdale Nursing Home, 317 NLRB 881, 882
(1995), the Board reaffirmed its established standard for
evaluating whether entities are joint employers:
In order to establish that two otherwise separate entities
operate jointly for the purposes of labor relations, there
must be a showing that the two employers “share or
codetermine those matters governing the essential
terms and conditions of employment.” TLI, Inc., 271
NLRB 798 (1984), citing NLRB v. Browning-Ferris
Industries, 691 F.2d 1117 (3d Cir. 1982). The employer
in question must meaningfully affect “matters relating

3 The judge found that Options did violate the Act as alleged. Op-
tions did not contest the allegations and did not participate in the trial.
On the first day of the hearing, its attorney announced that it was insol-
vent and out of operation.
SALEM ELECTRIC CO. 1577
to the employment relationship such as hiring, firing,
discipline, supervision, and direction.” TLI, supra.
The specific question before us is whether the General
Counsel established a prima facie case that Salem was a
joint employer of the temporary employees referred by Op-
tions. The judge found that Options interviewed, hired, and
paid the wages and benefits of the temporary electricians
referred to Salem. However, the General Counsel presented
evidence that Salem provided day-to-day direction and su-
pervision of them, and that it possessed the authority both to
correct problems relating to their work and to order their
removal from the worksite. The Board has found that cir-
cumstances similar to these demonstrate codetermination of
essential terms and conditions of employment, and accord-
ingly, a joint-employer relationship. Capitol EMI Music,
311 NLRB 997, 998 (1993), enfd. mem. 23 F.3d 399 (4th
Cir. 1994). In that decision, the Board particularly noted that
the power to take corrective action similar to Salem’s in this
case was, effectively, a form of disciplinary authority, and
that the authority to require removal and replacement of a
temporary employee was akin to the power to discharge.
311 NLRB at 998.
Accordingly, we find that the General Counsel made a
prima facie showing of Salem’s joint-employer status.
On remand, the record will be reopened to permit Salem
to contest this finding, and the judge shall reevaluate the
issue and the ramifications concerning various other al-
legations of the complaint should he conclude that Salem
and Options are joint employers.
3. The refusal-to-hire/refusal-to-consider allegations
The judge’s consideration of the complaint’s refusal-
to-hire and refusal-to-consider allegations against Salem
constitutes the bulk of his decision. Ultimately, he dis-
missed all of these allegations, for the most part conclud-
ing that the General Counsel failed to establish any prima
facie case of unlawful discrimination in Salem’s hiring.
On May 11, 2000, the Board issued its decision in FES,
supra, setting forth the framework for analysis of refusal-to-
hire and refusal-to-consider violations. We have decided to
remand the refusal-to-hire and the refusal-to-consider alle-
gations of this case to the judge for further consideration in
light of FES and all other relevant precedent. If necessary,
the judge should reopen the record to obtain evidence re-
quired to decide the case under the FES framework. In re-
evaluating these allegations, the judge should take account
of any evidence or circumstances in the record which may
become either relevant or more significant in light of his
conclusions concerning the striker-reinstatement and joint-
employer matters which are also being remanded.
ORDER
As more fully detailed in the decision above, this pro-
ceeding is remanded to Administrative Law Judge Rich-
ard J. Linton for further consideration, and reopening of
the record where appropriate, of the following issues:
whether Salem unlawfully failed and refused to offer
former strikers Jeffrey Wyatt and John Reece reinstate-
ment to their former or substantially equivalent positions;
whether Salem was a joint employer with Options and
potentially related issues; and whether Salem unlawfully
refused to hire and refused to consider hiring the 66 al-
leged discriminatees named in the complaint.
Thereafter, pursuant to the applicable provisions of Sec-
tion 102.45(a) of the Board’s Rules and Regulations, the
judge shall prepare and issue a supplemental decision con-
taining findings of fact, conclusions of law, and a recom-
mended supplemental Order, as appropriate on remand.
Following service of this Supplemental Decision and Or-
der on the parties, the provisions of Section 102.46 of the
Board’s Rules and Regulations shall be applicable.
The issuance by the Board of an order remedying the
unfair labor practices found in this proceeding is held in
abeyance pending completion of the action encompassed
by this remand.

Joseph T. Welch, Esq., for the General Counsel.
Guy F. Driver Jr., Esq., C. Matthew Keen, Esq., and (brief
only) Barbara R. Lentz, Esq. (Ogletree, Deakins, Nash,
Smoak & Stewart), of Winston-Salem, North Carolina, for
Respondent Salem-Electric.
H. David Niblock, Esq. (Nelson, Boyles, Niblock & Green), of
Winston-Salem, North Carolina, for Respondent Options.
Gary M. Maurice, Bus. Mgr. (IBEW Local 342), of Winston-
Salem, North Carolina, for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This is a
“salting” case. The principal allegation of the Government’s
complaint is that Salem Electric refused to hire, and refused
even to consider for hire, 66 named employees who applied for
work with Salem beginning about mid-February 1994 and run-
ning through September 30, 1994.1 Salem so declined, the
Government alleges, because the named employees supported
International Brotherhood of IBEW Local 342. Salem denies.
Finding against the Government, I dismiss the principal allega-
tions of the complaint.
I presided at this 10-day trial, November 12, 1996, and vari-
ous dates through February 12, 1997, in Winston-Salem, North
Carolina. Trial was pursuant to the November 9, 1995 Second
Order Consolidating Cases, Consolidated Complaint and Notice
of Hearing (the complaint) issued by the General Counsel of
the National Labor Relations Board (the Board) through the
Regional Director for Region 11 of the Board.
The complaint is based on an original charge filed July 28,
1994, in Case 11–CA–16141, by International Brotherhood of
Electrical Workers, Local Union 342, AFL–CIO (the Union,
Local 342, or the Charging Party), against Salem Electric Com-
pany, Inc. (Salem or Respondent) and Options Temporary Em-
ployment Service, Inc. (Options) as the [joint] employer. That
charge was amended twice, first on August 2 and again on No-
vember 10, 1994. On December 12, 1994, the Union filed the
charge in Case 11–CA–16328 against Salem alone. Similarly,
and contrary to the caption of the complaint, on September 18,
1995, the Union filed the charge in Case 11–CA–16696 against

1 All dates are for 1994 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1578
Salem alone. I have realigned the caption to show that the
charges in the second and third cases were filed against Salem
alone, and that only the charge in Case 11–CA–16141 was filed
jointly against Salem and Options.
The original charge, as filed July 28, 1994, in Case 11–CA–
16141, is devoted mostly to alleged discrimination against Mi-
chelle Kay. The amendments to the charge add other allega-
tions. At trial (Tr. 7:1110).2 I granted the General Counsel’s
unopposed motion (based on witness unavailability) to with-
draw the complaint allegations pertaining to Michelle Kay.
The complaint was amended on April 18, 1996, to supply
language missing from complaint paragraph 14 (regarding an
alleged December 1994 interrogation); on October 17, 1996, to
correct the date Salem allegedly failed to reinstate alleged un-
fair labor practice strikers John Reece Jr. and Jeffrey Wyatt;
and at trial to add, to complaint paragraph 12 alleging agency,
the names of Robin (Gilchrist) McIntosh, receptionist (Tr.
2:190; GC Exh. 31); Jeri Stafford, office manager (Tr. 5:703);
and Kelly Cartner, receptionist (Tr. 6:873, 878). Salem denies
as to all but Stafford.
The pleadings establish that the Board has both statutory and
discretionary jurisdiction over both Salem and Options, that
each is a statutory employer, and that IBEW Local 341 is a
statutory labor organization.
As earlier noted, Respondent Options did not participate in the
trial and did not file a posthearing brief. Shortly after I opened
the record the first day of the trial, Options’ attorney, H. David
Niblock, announced that, as Options was insolvent and not doing
business, he would not be participating in the trial. (Tr. 1:10–11.)
Attorney Niblock left and did not participate thereafter.
Before resting, the General Counsel called 39 witnesses
(with 29 being among the 66 who are the subject of the princi-
pal allegation), including Stephen M. Sink, Salem’s vice presi-
dent, and Jesse Banks Wilson Jr. Wilson is Options’ former
“construction superintendent” (pleadings), or former assistant
to Options’ president (Tr. 7:1084, Wilson). The Union rested
immediately thereafter. (Tr. 7:1157.) After its motion to dis-
miss, most of which I denied, Salem proceeded with its case in
defense and called nine witnesses (Vice President Sink was
recalled). In rebuttal, the General Counsel recalled Union Rep-
resentative Gary M. Maurice. There was no surrebuttal.
On the entire record, including my observation of the de-
meanor of the witnesses, and after consideration of the briefs
filed by the General Counsel (who included, as part of the re-
quested remedy, suggested provisions for a proposed order) and
Respondent Salem,3 I make these
FINDINGS OF FACT
A. Procedural Matters
Since about January 1994, complaint paragraph 10 alleges, Op-
tions and Salem have been joint employers (herein, joint employer)
“of the temporary employees provided by Respondent Options to
Respondent Salem a Respondent Salem’s Winston-Salem, North

2 References to the 10-volume transcript of testimony are by volume
and page. Exhibits are designated GC Exh. for the General Counsel’s
and R. Exh. for Respondent Salem’s. The Charging Party offered no
exhibits, and Respondent Options did not participate in the trial.
3 Salem filed a motion, dated May 19, 1997, for leave to file an at-
tached 14-page reply brief to the General Counsel’s brief. The General
Counsel filed an opposition on the ground that the Board’s rules do not
authorize reply briefs. Salem filed a response. I have considered Salem’s
reply brief. Fruehauf Corp., 274 NLRB 403, 403 JD fn. 2 (1985).
Carolina, job sites.” Salem and Options each denies. Following
the Government’s withdrawal of the allegations pertaining to Mi-
chelle Kay, the main significance to Salem of the joint employer
issue appears to be the alleged (complaint par. 16) June 24, 1994
refusal to hire employees Mack Good, Patrick Dean Parsons, and
Paul D. Vogler, and imputed responsibility for any statements
made by representatives of Options.
Although I denied most of Salem’s motion to dismiss after
the General Counsel rested, I granted the portion respecting
complaint paragraph 10, the joint employer allegation. (Tr.
7:1162.) Initially declining to dismiss complaint paragraph 16
(Tr. 7:1165), on Salem’s reurging (Tr. 9:1218) I changed and
granted (Tr. 9:1220) the motion. On brief the General Counsel
reargues the issue. While it would have been better practice for
the General Counsel earlier to have requested leave to reargue
the matter (thus, giving Salem notice and an opportunity to file
an opposition or address the matter in its own brief), I still was
faced with the question of whether I correctly dismissed com-
plaint paragraphs 10 and 16. Accordingly, treating the General
Counsel’s submission as a request for leave (on Br. at 100, the
General Counsel states that reconsideration is warranted), I
granted that request by fax of September 10, 1997. In that
same fax to the parties, I gave Salem the opportunity to file a
supplemental brief on the joint employer issue. Salem’s 20-page
supplemental brief of October 20, 1997, has been considered.
Later in this decision I revisit my ruling dismissing com-
plaint paragraphs 10 and 16. Nothing in the law-of-the-case
doctrine prevents a presiding judge from revisiting earlier rul-
ings before final judgment or decision. Genentech v. U.S. Int’l.
Trade Commission, 122 F.3d 1409, 1422 fn. 13 (Fed. Cir. 1997);
U.S. v. Palmer, 122 F.3d 215, 220 (5th Cir. 1997); Conrod v.
Davis, 120 F.3d 92, 95 (8th Cir. 1997); Langevine v. District of
Columbia, 106 F.3d 1018, 1022–1023 (D.C. Cir. 1997).
Substantially into the Government’s cross-examination of
General Superintendent James H. Manuel Jr., the General
Counsel asked whether Manuel had reviewed any notes, state-
ments, or outlines in preparation for his testimony. Salem ob-
jected on the basis that the request was too late. (Tr. 10:1597–
1598.) Under FRE 612(2), such reviewed-before-testifying
documents must be produced “if the court in its discretion de-
termines it is necessary in the interests of justice.” Manuel’s
direct examination had taken 17 pages of transcript and, by my
notes, some 23 minutes. As of the question and objection, the
cross-examination had taken 14 pages and 22 minutes. While
that does not mean the Government already had covered every
topic mentioned on direct examination, or that the Government
might not have found new or additional suggestions to explore
in any notes, statements, or outlines, it is clear that the cross
examination had covered a substantial portion of the matters
mentioned on direct examination. Indeed, the cross-
examination soon concluded (at Tr. 10:1604).
Applying the same timeliness concept used at the beginning
of cross-examination when respondents, under the Jencks rule
(29 CFR §102.118(b)), request all statements given or adopted
by the witness which relate to the direct examination,4 I ruled
(Tr. 10:1598) that the request had come too late. (Actually, my
ruling was premature, for Salem objected before the General
4 See Longshoremen ILA Local 20 (Ryan-Walsh Stevedoring Co.),
323 NLRB 1115, 1120 (1997) (Respondent waived right because re-
quest came too far into cross-examination).
SALEM ELECTRIC CO. 1579
Counsel had asked for production. My error, however, was not
prejudicial.)
B. Salem’s Business Operations
Frank Bradford Myers Jr. is the president and owner of Sa-
lem Electric. Myers’ father formed Salem in 1946, and Myers
became president in 1978 after his parents died. (Tr. 7:1180–
1181.) Salem, Myers testified, is an electrical construction
firm. Salem handles commercial, industrial, institutional (such
as hospitals), and residential. Salem does not compete for
heavy electrical construction work such as power plants and
power transmission lines. (Tr. 7:1181.)
Salem’s geographical strategy, as Myers describes, is to
work locally, and 95 to 98 percent of its work is done within a
45-mile radius of its Winston-Salem office. On rare occasions,
primarily at the request of an existing customer, Salem takes a
project outside its normal work radius. (Tr. 7:1181–1182.) As
Vice President Stephen M. Sink estimates, Salem performs 60
to 70 percent of the electrical work that is done in Winston-
Salem. (Tr. 9:1228.) Salem’s work is about evenly divided
between long-term customers, such as maintenance contracts
with major employers in the local area, and bid projects, with
the long-term work having a slight edge. (Tr. 9:1227–1228.)
To perform this work, Salem normally employs a regular work
force of some 250 outside electricians. (Tr. 7:1049, 1190;
9:1225, 1227.) The regular work force, the hourly payroll,
consists of apprentices (first year through fourth year helper,
then top helper), journeymen, working foremen, control techni-
cians, job foremen, superintendents, and, finally, General Su-
perintendent James H. Manuel Jr. (Tr. 7:1045–1046; 9:1226.)
Manuel reports to Vice President Sink who reports to President
Myers. (Tr. 7:1044.) The inside work force consists of some
25 managers, clerks, and other salaried staff personnel. (Tr.
7:1049, 1190; 9:1225.)
As a mirror reflection of its policies as to the geographical
range of its jobs, and the type of its customers and jobs, Salem
stresses two points regarding the hiring of its regular outside
work force, long term, and local. Salem’s overall, or strategic,
hiring policy for its regular, outside work force is to hire qual-
ity, local employees who will stay with the Company on a long-
term basis. (Tr. 7:1182, 1190, Myers; 7:1057; 9:1226, 1228,
1353; 10:1468, 1472, Sink). Thus, for its regular, outside work
force, Salem does not hire, as some construction firms do, for
the short term and lay off as the job winds down. (Tr. 7:1182–
1183, Myers; 7:1057; 9:1226, 1230, 1283, 1353, Sink.)
To help attract and retain such quality electricians, Myers
testified, Salem pays competitive wages and benefits plus daily
overtime. (Tr. 7:1182, Myers; 9:1353, Sink.) Of Salem’s cur-
rent (regular outside) work force, Sink testified, over 160 (of
the 250 or so) have been with Salem for over 3 years, and over
220 have been with Salem for at least a year. (Tr. 9:1227.)
Most of the turnover is among the first year apprentices who,
Sink testified, are younger and, after discovering that they may
have to dig a ditch, decide that they do not want to be an elec-
trician. (Tr. 9:1291; 10:1461.) For 1994 and 1995, half of the
regulars hired were first-year apprentices. Thus, of 85 regulars
hired in 1994, 43 were first-year apprentices. Of 137 regulars
hired in 1995, 67 were first-year apprentices. Salem “continu-
ally” must hire first-year apprentices because that is where
[most of] the turnover is. Indeed, in 1994 Salem hired only 8
journeymen, Sink testified. (Tr. 9:1291–1292; 10:1461; R.
Exh. 32.) [Actually, that is the number hired beginning Febru-
ary 14, the date of the first alleged refusal to hire. Tr. 9:1267.]
As Sink phrases it, “[W]e just don’t hire many journeymen
because our people stay with us a long time.” (Tr. 9:1292.)
At times Salem employs, or contracts for, irregular additions
to its outside work force. Typically this is when Salem takes on
a big short-term project (Tr. 7:1046–1048) or (Tr. 9:1241,
1430) one of the rare out-of-town projects. Rather than hire
permanent employees, and then lay them off as the project
nears completion, Salem simply contracts with various tempo-
rary agencies for temporary workers (Tr. 7:1046–1048; 9:1229;
10:1475), or, on occasion, obtains loaned or borrowed (Tr.
9:1280, 1405; 10:1462, 1600–1601) workers for 2 to 3 weeks.
For example, during May–June 1994, Sink testified, Salem
contracted with Options for temporary employees because Sa-
lem had three big short-term projects. (Tr. 7:1047, 1051, 1057;
10:1475; GC Exh. 112.) The three big projects were Salem
College, Wake Forest University, and Crest Tobacco. The
Crest Tobacco job was in Tobaccoville, a town some 20 miles
“up the road” from Winston-Salem. (Tr. 7:1047–1048; 9:1246,
1386.)5
As Salem’s business grew, Sink, who is in charge of opera-
tions (Tr. 7:1045), needed help with the hiring process. Before
1989, Myers testified, he would hire some employees, Sink
would hire others, and insufficient controls were in place.
Moreover, both Myers and Sink had other duties. (Tr. 7:1183.)
To solve the problem, in 1989 Salem promoted James Manuel
to general superintendent and assigned him to assist Sink with
the hiring, among other matters. (Tr. 7:1183–1184; 9:1224,
10:1568.)
C. Introduction To The Union’s Salting Campaign
The principal allegation is complaint paragraph 15 which al-
leges that Salem “failed and refused to consider for hire and/or
hire” 66 named employees on various dates, all but one of
which fall in 1994. Paragraph 15 actually has 67 entries for the
names, but as Allen W. Craver appears for both the first date
and the last, his name appears twice. (Tr. 1:18.) Thus, there
are 66 applicants named. As amended at trial (Tr. 1:17–19), the
first refusal date in complaint paragraph 15 is alleged to be
February 14, 1994. The last is September 30. The single date
outside 1994 is a third date, May 8, 1995, for Kim Farley.
The 1994 dates fall into three timeframes. The first of these
runs from February 14 to March 22, with 48 employees partici-
pating (and with several of the 48 participating in later dates, as
well). The second time period, and in fact the second group
(three employees) affected, is the single date of June 10. Fi-
nally, the third time period begins on August 22 and concludes
on September 30. This third group consists of 15 named indi-
viduals not named previously, plus Craver and some 12 others
who appear in the first and second groups.
As I discuss in a moment, most of the applicants did not per-
sonally appear at Salem’s office and complete their applications
there. Instead, during COMET classes,6 and at other times, at
the Union’s hall they filled out blank copies of applications,
which the Union had obtained, and then Business Manager
Gary M. Maurice or other members of the Union hand deliv-

5 I take official notice that, on North Carolina’s 1995 official state
map, Tobaccoville is shown as being a few miles northwest of
Winston-Salem.
6 At the COMET classes, members attended lectures regarding em-
ployee rights under the Act, and received training on how to function as
volunteer organizers, including that done in a salting campaign.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1580
ered these applications (made on photocopied forms) to Salem.
Most were delivered in two “batches.” “Batch” is a term which
is more convenient than descriptive, for the first “batch” covers
applications received during the period of February–March
1994. The term “batch” apparently originated from Manuel’s
retaining the off-premises applications in “batches” in a drawer
of his desk. The batched off-premises applications began arriv-
ing in February.
Observing that the batched applications failed every compo-
nent of Salem’s rule number one (apply in person, complete an
original application blank at Salem’s office, and be available
for interview at that time), Sink directed General Superinten-
dent Manuel to keep these documents in his desk separate and
batched because they were not legitimate applications. (Tr.
9:1292–1293, 1346, 1348–1349, Sink.) In a drawer of his desk,
Manuel places (legitimate) applications on one side of a di-
vider. On the other side of the divider, Manuel places all puta-
tive applications such as faxes, resumes, and would-be applica-
tions on copied blank forms. (Tr. 10:1573–1574.)
Clearly, if the evidence fails to show that, before February
1994, Salem loosely applied its rule number one, and began to
apply it strictly when the Union salters began applying in num-
bers in February, then the Government will be unable to estab-
lish a prima facie case as to most of the 66. To show that Sa-
lem in fact applied the rule (or at least part of it) loosely before
February 1994, and indeed well into the Union’s salting cam-
paign, the General Counsel relies largely on the testimony of
Robin Gilchrist, Salem’s receptionist during this period.
D. Salem’s Hiring Policies
1. Introduction
Controversy over Salem’s hiring process is at the heart of the
case. Three aspects are involved, with the first being the appli-
cation process, the second being Salem’s hiring criteria, and the
third being the hiring decisions. The Government neither al-
leges nor argues that any of Salem’s application or hiring re-
quirements is, by itself, unlawful. Rather, the General Counsel
contends that Salem used, or invented after the fact, several of
these requirements as pretexts to avoid hiring applicants who
are either clearly affiliated with the Union or who have a union
background. In so contending, the General Counsel largely
relies on evidence of asserted disparity. Salem argues that the
evidence fails to support the General Counsel’s contentions.
There is no dispute that it is Manuel and Sink (occasionally
Myers participates) who make the decisions on interviewing
and hiring.
Finally, when asked about Salem’s “policy on unions,”
Myers testified that Salem has no policy, as such, but that the
Company’s philosophy could be expressed as, “We don’t think
that unions have anything to offer the Company or the employ-
ees and we would resist it within the law.” (Tr. 7:1190.) Sink
was not asked. When the General Counsel asked Manuel,
Manuel responded (Tr. 10:1602), “The IBEW doesn’t have
anything positive for the Company, to my knowledge.” The
sentiments expressed by Sink and Manuel are, of course, en-
tirely lawful.
2. Receiving and handling applications
There is no dispute that blank applications are kept by the re-
ceptionist and normally are given out by the receptionist to job
applicants. When the receptionist goes to lunch or for a break,
one of the other office employees will handle the task of giving
out applications. According to Salem’s witnesses, once the
application is completed the receptionist gives it to Manuel or
to Sink, whichever is available, who decides whether to inter-
view the applicant or to file the application for later considera-
tion. Completed applications eventually are given to Manuel
who keeps all completed applications in a drawer in his office
desk. On this latter point there is some dispute, with Robin
(Gilchrist) McIntosh, the person who was the regular reception-
ist during her employment at Salem from early 1992 to June
1994 (Tr. 4:598, 612, 629), testifying (Tr. 4:606, 621–623) that
she kept completed applications in her desk drawer until
Manuel called for them. She also testified to other procedures
which differed from the policy described at trial by Salem’s
witnesses. I address these important disputes in a moment.
[While she was at Salem, Robin’s surname was Gilchrist. At
some point after she left Salem, Robin’s surname changed to
McIntosh, and (Tr. 4:597) that is the name she now uses. How-
ever, as the witnesses knew and referred to her either by her
given name of Robin or by the surname of Gilchrist, and the
parties, on brief, generally refer to her as Gilchrist, and to avoid
confusion, I refer to her here by her name during the relevant
events, Robin Gilchrist.]
3. The application process
a. Salem’s rule number one
In the application process, Salem’s number one requirement
is really threefold. First, the job applicant must appear in per-
son at Salem’s Stratford Road office. Second, while there the
applicant must complete one of Salem’s original (not photo-
copy and not a faxed copy) application forms. Third, he or she
must be available for interview while on the premises. (Tr.
7:1185, Myers; 9:1241–1242, 1245, 1385, 1552, Sink;
10:15701571, Manuel.) This number one rule, or policy, has
been in effect since 1990. (Tr. 9:1243, Sink; 10:1569–1570,
Manuel.) As the receptionists handle applications, they have
been told that this is Salem’s policy, Sink testified. (Tr.
9:1243.)
As described (in varying degrees) by Myers (Tr. 7:1185),
Sink (Tr. 9:1243; 10:1453–1455), and Manuel (Tr. 10:1571,
1588), there are several reasons for rule, or policy, number one.
First, by personally appearing, as opposed to calling, mailing,
or faxing a resume or application, the applicant shows personal
interest and initiative. Second, the personal appearance gives
Salem’s hiring managers (Sink and Manuel) an opportunity to
avoid a lawsuit alleging negligent hiring. For example, both
Myers and Sink describe situations in which the breath of an
applicant has added to the interview the fragrance of “air du
ferment”—the fermented aroma of too many beers the night
before. Third, Salem wants to know that an applicant can read
and write, for an electrician must be able to do both. Finally,
the personal presence requirement ensures that the applicant
will be available for immediate interview and, if appropriate,
hiring on those occasions when Salem’s hiring needs coincide
with an applicant’s luck on being at the “right place at the right
time.”
On brief (Br. 78–79) the General Counsel argues that Sa-
lem’s threshold rule (Salem’s rule number one) is “suspect,”
and the supporting reasons “largely fictional,” on several
grounds. First, Salem has an opportunity to interview an appli-
cant [who, for example, mails an application] before he or she
is hired and therefore could then observe any outward manifes-
tations of drugs or alcohol. Moreover, Salem’s drug screening
would catch any illegal drugs. The simple answer to this is
SALEM ELECTRIC CO. 1581
that, since 1990, Salem has followed its own business practice
without any help from the Government on how best to hire
quality employees. Salem apparently prefers its procedure to
that suggested by the Government. Stated differently, the issue
is not what Salem could do, even if the Government’s sugges-
tion somehow made more business sense (it does not). The
issue is whether the evidence shows that Salem disregarded its
own business rules in order to discriminate against potential
supporters of the Union.
Second, at the interview the manager “could” (Tr. 10:1453)
ascertain whether the applicant can read or write. Just how the
manager could do this is not specified on brief, but at trial two
questions suggest the Government’s idea of a better procedure.
The first question, which was modified after an objection,
would have asked Manuel to confirm that the W-4 tax with-
holding form, the immigration I-9 form, and the insurance
forms that are filled out (after hiring) would be “another check-
point along the way to see if someone could read and write.”
(Tr. 10:1589.) [That is, to confirm from forms completed after
the applicant has been hired that which Sink and Manuel want
to know before they decide to hire!!] The revised version asked
whether, at the interview, Manuel or Sink “could” (point blank)
ask an applicant (the embarrassing question) (Tr. 10:1590):
“Can you read and write?” Yes, Manuel impliedly answered, it
could be done. As noted a few lines earlier, this case is not
about such silliness, or whether a Federal agency can substitute
its business judgment for that of a private business owner, but
whether that private business has disregarded its facially valid
business procedures in order to avoid hiring applicants per-
ceived as likely to support the Union.
Third, the testimony, express and implied, of Manuel (Tr.
10:1586–1587) and Office Manager Jeri Stafford (Tr. 10:1612–
1613), establishes that nothing is posted in the lobby advising
job seekers of rule number one. That lack of posting is in con-
trast with the posting, on the front door, of Salem’s policy that
employment is contingent on passing a drug screening. (Tr.
10:1587, 1590, Manuel.)
All this leads to the conclusion, the General Counsel “sug-
gests,” that Salem has merely attempted “to construct an after
the fact pretextual excuse for its discriminatory conduct.” The
Government does not allege or argue that Salem’s rule number
one is facially invalid. Rather, the General Counsel impliedly
argues that the rule either was invented after the events, or if it
preexisted, it has been rendered meaningless by numerous acts
of disparity. Crediting Myers, Sink, and Manuel on this point, I
find that Salem’s rule number one has existed since about 1990.
The issue, therefore, is whether the evidence demonstrates that
Salem administered its rule, or policy, with that disparity which
shows an unlawful purpose. That is, disparity which shows that
Salem applied the rule loosely as to applicants considered to be
nonunion, but strictly as to those thought to be supporters of the
Union.
The Government’s disparity evidence appears to consist of
incidents involving three employees: Michael Bobbitt, Danny
Norfolk, and Stephen Necessary. I address these, in turn.
Bobbitt’s application (GC Exh. 121) was identified during
the cross-examination of Myers. The application is typed (Tr.
7:1194), and Myers concedes that Salem’s typewriters normally
are not made available to applicants for their use. (Tr. 7:1193–
1194.) Myers was unable to say whether the application had
been typed elsewhere (Tr. 7:1195), but testified that the hand-
written note, on the face of the application, reading “Temp start
2-18-94,” indicates that Bobbitt was hired (Tr. 7:1195). [Myers
explains that “temp” means temporary, or probationary, and
that all employees are hired on a probationary period of 90
days. It does not refer to a temporary employment agency. Tr.
7:1195.] The General Counsel offered the document for the
purpose of impeaching Myers’ testimony (Tr. 7:1185) that all
job applicants must appear in person and complete the applica-
tion at Salem’s office, and I received it on that basis. (Tr.
7:1200.)
Salem asked no questions of Myers on redirect examination
(Tr. 7:1197). However, Sink explains the situation. Bobbitt, it
appears, is a distant relation of General Superintendent Manuel.
Manuel’s son, Tony Manuel, is a supervisor for Salem at the
R. J. Reynolds plant at Tobaccoville. Somehow, Tony Manuel
got one of Salem’s blank application forms. He and Bobbitt
completed the application on a typewriter. Although Bobbitt
had to go through the interview process the same as everyone
else, the at-Salem’s-office completion requirement “slipped
through the crack,” as Sink expresses it. (Tr. 9:1246.) Of the
350 applications which Salem received in 1994, Sink testified,
Bobbitt’s is the only one that is typed. Moreover, Sink does not
know of anyone else who was hired based on an application
that was completed off the premises. (Tr. 9:1246.)
I find no disparity based on the Bobbitt situation. With aid
from an insider, such aid based on a family relationship with
General Superintendent James Manuel, Bobbitt’s application
was typed off the premises by virtue of a gap in the security of
the application process. That process was not foolproof, and
Tony Manuel exploited it for his relative’s advantage. That
isolated instance, arising from a blood relationship with the
family of General Superintendent James Manuel, does not es-
tablish relevant disparity. Nonunion applicants not blood re-
lated to James Manuel fared no better than the union appli-
cants—all had to complete their applications on the premises.
Thus, to the extent that Bobbitt’s situation would serve factu-
ally to impeach Myers by an isolated example, it does not do so
legally because the disparity, aside from being extremely iso-
lated, is disparity based on an irrelevant difference. That is,
favoritism was given based on blood relation. It was not favor-
itism based on nonunion status while disfavoring union status.
Danny E. Norfolk worked for Salem some 6 months in 1993
as a top helper before being laid off in August. (Tr. 2:301.)
Although Sink denies it (Tr. 9:1244), I credit Norfolk that, in
very early May 1994, Norfolk returned a call from Sink. Sink
asked whether Norfolk would like to return to work for Salem
on May 6. Norfolk asked if he could wait until the following
Monday, May 9, because of the work he then was doing for
another electrical contractor. That work was concluding and
Norfolk was about to be laid off. Sink agreed to May 9. (Tr.
2:330.) On May 9 Norfolk went to Salem’s office where, ap-
parently, both Sink and Manuel told him he would have to
complete a Salem application. Before doing so, however, Nor-
folk was hired by Manuel (Tr. 2:304), took a drug test, and
began work the next day, May 10. Norfolk did not complete
his application until the following day, May 11. (Tr. 2:305.)
On May 18 Norfolk was injured on the job, returned to work
about 3 weeks’ later, and was terminated about a week after
that, or about June 23, in a money-related dispute with Salem.
Norfolk joined the Union in July 1994.
While Norfolk’s hiring without benefit of a contemporane-
ous application shows disparity, it is the only example of such.
Given Salem’s continuing need to hire apprentices, and Salem’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1582
preference for former employees with a good record at Salem
(Tr. 7:1193, Myers), Sink’s call soliciting Norfolk’s return is
not entirely surprising notwithstanding Sink’s testimony (Tr.
9:1244) that he has never called anyone at home who has not
left a completed application. In any event, the primary issue of
disparity lies in the hiring without benefit of an application.
While Norfolk’s preferred status as a former employee helps to
explain the favorable treatment he received, it also shows that,
on at least one occasion during the past several years, Salem
was willing to relax, temporarily, the strictness of its hiring
policy to accommodate its own needs. Norfolk’s hiring may
tend to support the General Counsel’s case, but more than that
one example of limited disparity is needed.
The third example of disparity advanced is based on one as-
pect of Stephen Necessary’s testimony. Because of his work as
an estimator and shop supervisor with a sibling company of
Salem, Necessary knew Sink and Manuel. (Tr. 6:944.) On
May 17, 1994, Necessary went to Salem’s office seeking work.
Sink gave him an application to fill out. To Necessary’s ques-
tion of whether he could take the application home to fill out,
Sink said no, to do so on the premises, that Salem was “having
a bit of union problems and did not want the application to
leave the office.” (Tr. 6:936.) Acknowledging that he may
have told Necessary that he could not take the application out,
Sink denies that he referred to the Union or that Salem’s policy
is related to unions. (Tr. 9:1244–1245.)
While I credit Necessary’s testimony on this point, Sink’s
May 17 reference to unions is consistent with an interpretation
that Sink was merely emphasizing the need to assure the secu-
rity of Salem’s applications, and was not a statement that the
policy is not enforced when unions are not around. Accord-
ingly, I attach no significance to Sink’s remark.
Having summarized the examples of possible disparity, and
finding no relevant or material disparity, or disparity of signifi-
cance, I find that Salem’s rule number one is left intact.
b. Highlighting and the requirement of originals
According to Gilchrist, she gave out multiple copies if
someone asked for extras for friends, and received multiple
applications (for more than one person) from a single applicant,
and when her supply of blank applications ran low, she made
photocopies which she distributed to applicants. (Tr. 4:603,
611–612.) Gilchrist identified a blank application form (GC
Exh. 26) as the type application which she distributed. That
document, General Counsel’s Exhibit 26, has no highlighting
on it and no control number. However, Sink asserts that since
1992, when Salem began its drug screening, it has highlighted
(apparently manually with a pink or fluorescent yellow high-
lighting pen) a two-line portion, about one fourth the way down
of the first page of the application, which advises applicants
that employment with Salem is contingent on successful com-
pletion of a drug screen. Moreover, Sink is fairly certain that
by 1992 that control numbers were being written in the upper
right hand corner of each blank application, and highlighted.
Sink identified a blank application (R. Exh. 22), with such
portions highlighted (fluorescent yellow) and the control num-
ber 677, as a sample copy, and the December 7, 1994 original
application (R. Exh. 26, bearing a control number of only 38,
with pink highlighting) of Carlton Vaughn. As Sink was not
able to state that he personally knew that each blank application
had received such manual modifications since 1992, I received
Respondent’s Exhibit 22 on the limited basis that it is a sample
of Salem’s policy, not necessarily its consistent practice. (Tr.
9:1231–1240.) Office Manager Stafford confirms that the high-
lighting is done, but her description is about current practice
rather than addressing the history of the practice. (Tr.
10:1607.)
Earlier applications which are in evidence are copies. Thus,
Respondent’s Exhibit 2, the June 5, 1992 application of Timo-
thy W. King, is only a photocopy, and therefore bears no color
highlighting. It does, however, reflect a smudge mark across
the two lines pertaining to the drug screen requirement, thereby
indicating that the original was highlighted. The four-digit
number in the upper right hand corner may well be an em-
ployee number rather a control number. First, there is no
smudge indicating that the four-digit number was written over a
strip of highlighting. Second, Kelly Cartner, an accounts re-
ceivable clerk who has substituted for years as a receptionist,
suggests that such four-digit numbers may be the employee
number rather than a control number. (Tr. 10:1630–1631.) [In
fact, the numbers on other applications suggest that the four
digit numbers are the employee numbers.] There is no other
number in the upper right hand corner. Thus, I find that there is
no control number on King’s application.
Other witnesses of the General Counsel testified concerning
the matter. Some testified that they remembered no highlight-
ing, or that there was none, but most received copies from the
union hall and those copies had no highlighting, as I will cover
later. Earlier I mentioned that Stephen Necessary was hired
and worked 1 day. Necessary could not recall whether the
original of his application, a copy of which is in evidence as
General Counsel’s Exhibit 108, had a highlighted portion. (Tr.
6:939, 945, 948.) Although acknowledging (Tr. 6:945) that the
copy in evidence has a smudge across the drug screen portion
[but no smudge over the apparent control number, an incom-
plete number beginning with a 2, in the upper right hand cor-
ner], Necessary observed that his application could have been
highlighted at some later point (Tr. 6:946). Carlton Vaughn
suggests the same as to the original (R. Exh. 26) of his Decem-
ber 7 application. (Tr. 7:1142.) That could be so as to the pre-
printed portion of the drug screen lines, but use of the damp
highlighter on an inked control number could well result in the
control numbers being smudged. The control number, or that
part which appears on General Counsel’s Exhibit 108 (a photo-
copy), does not appear to be smudged, and it is not on the
original (R. Exh. 26) of Vaughn’s.
Jeffrey A. Wyatt’s June 1, 1994 application (GC Exh. 109),
the copy that is in evidence, has no control number, but only an
employee number in the upper right hand corner. The drug
screen lines are blotted out by a heavy black marking, indicat-
ing that either the original was that way or, more likely, that the
original had a highlighting other than yellow, one that some
photocopiers might show as dark, such as, possibly, pink. Ac-
cording to Wyatt, when he completed the application, there was
no bold black line through the form. (Tr. 6:954.) Of course,
the original probably would have been in some highlighting
other than heavy black. I also note that Wyatt, who initially
testified that everything was in his handwriting (Tr. 6:954),
subsequently admitted that he did not write the notations about
“Tem” and starting date and wage rate and the employee num-
ber in the upper right hand corner (Tr. 6:955).
Neither party really followed through on the highlighting is-
sue. That is, neither party dug into files and produced original
applications filed in, say, 1993, or even January 1994, to dem-
SALEM ELECTRIC CO. 1583
onstrate clearly whether the highlighting was there or not and
whether a control number was there or not. As to the control
number, Sink was unclear concerning the numbering system
and whether Salem may have started over after reaching 1000.
(Tr. 9:1238–1239.) Moreover, no description was given re-
garding whether there is a register book containing the “con-
trol” numbers. From the lack of description, I infer that there is
none. Indeed, Kelly Cartner testified that, when substituting as
the receptionist, she simply adds new sequential numbers by
hand when the existing supply of application blanks begins to
run low. (Tr. 10:1626–1627.)
On brief the General Counsel argues (Br. 78) that the Gov-
ernment’s witnesses should be credited over those of Salem.
Such crediting would lead, the General Counsel argues, to re-
jection of Salem’s primary defense that the applications in issue
were not legitimate. Although not articulated, the argument
apparently is that the rejection would be on the basis that there
really was no highlighting policy, or if so, it was honored more
in the breach than in the observance. A finding to that effect
would mean, apparently, that unmarked copies of blank appli-
cation forms were legitimate application blanks. That being so,
then the copies submitted by the Union or its members could
not be rejected, or given no consideration, on the basis that they
were not on an original blank form, especially a highlighted
blank.
In its reply brief, Salem lists nearly 20 copies of applications
in evidence reflecting, by varying degrees of smudge or heavy
dark marking, that the drug screen lines of the originals were
highlighted by differing colors. Salem asserts that whether all
applications were highlighted is not a material issue. “The
policy at issue is Salem’s requirement that applicants person-
ally complete the application at Salem’s office.” After observ-
ing that only 5 of the 66 testified that they personally completed
an original application at Salem’s office, with all others admit-
tedly filling out copies of the applications received at the union
hall, Salem (Reply at 4–5) then asserts that it “need not estab-
lish one hundred percent consistency in highlighting to estab-
lish that the alleged discriminatees did not comply with Salem’s
in-person requirement.”
To some extent, I agree with both parties. Finding that the
highlighting policy was in fact a policy, at least regarding the
drug screen lines, I further find that Salem did not consistently
oversee the practice regarding the policy. As a result, particu-
larly during the tenure of Robin Gilchrist as the receptionist,
unhighlighted copies of Salem’s job application blanks were
distributed frequently.7 Although the General Counsel alleges
Gilchrist to have been a statutory agent of Salem, I find the
evidence lacking in that regard as to any idea of general
agency. However, there is no question that Gilchrist was a
statutory agent in her handling of the job applications and re-
specting any questions which she answered respecting those
documents. AMI, 319 NLRB 536, 540 (1995) (“clerical em-
ployee”); Diehl Equipment Co., 297 NLRB 504 fn. 2, 506–507
(1989) (“Beryl Dyer, seated at a desk immediately inside the
entrance.”).
Although the question of whether Salem had and enforced a
policy of personal appearance at Salem’s office to fill out an

7 Salem’s application forms do not have preprinted statements in-
forming applicants that: (1) only Salem originals are valid; (2) appli-
cants must appear in person so as to be available for immediate inter-
view; and (3) applications are “active” for 60 days only.
application is the more important issue, testimony about the
highlighting could bear on credibility. Unfortunately, the par-
ties did not fully litigate this issue. This is so notwithstanding
there are many documents (mostly photocopies) in evidence
related to the issue. The point is that the parties litigated
around the issue, but did not get to the heart of the issue—the
original applications of a large enough sample over an extended
period of time beginning by no later than early to mid-1993.
With some evidence supporting each party, and the critical
evidence not developed, I simply will not use the highlighting
issue to assist in resolving credibility. By these findings above,
however, I have determined that Salem was not at liberty to
ignore applications of the 66 which were on photocopies of
blank job application forms. By its loose practice regarding
copies during the time relevant here, Salem has waived that
portion of its rule number one. The personal appearance com-
ponent of the rule is a different question.
c. The personal appearance requirement
Earlier I discussed the General Counsel’s disparity evidence
and concluded that Michael Bobbitt’s off-premises application
was not relevant disparity because it involved (1) a gap in the
security of the applications (and recall that Salem received 350
applications in 1994), and (2) General Superintendent Manuel’s
son, a supervisor, assisting a family relation by obtaining an
application blank and assisting his distant cousin in typing it off
premises. The disparity favored the cousin on the basis of fam-
ily relationship, not on the basis of union considerations.
While Danny E. Norfolk’s situation shows disparity, I con-
cluded that his one example (involving the always-needed cate-
gory of apprentice, and a former employee at that) was not
sufficient to neutralize Salem’s rule number one. Indeed, one
example of disparity out of 90 hires during the last 10.5 months
of 1994 (RX 28) is an error margin of only .011 percent. It
means, on the flip side, that Salem’s hiring procedures, during
that relevant period of 1994, operated at virtually 100 percent
integrity. And if the 136 hires for 1995 (RX 30) are added, the
error percentage for the 226 hires drops out of sight at .0044.
Statistically, that is operating with total integrity.
Actually, on the point under discussion, personal appearance,
there is, at most, only limited disparity. That is, although Sink
inquired by telephone about Norfolk’s interest in returning to
work at Salem, and arranged the interview and reporting date
for May 9, 1994, it was Manuel who did the actual hiring after
Manuel, Norfolk reports (Tr. 2:304), interviewed him, or spoke
with him to some extent, at Salem’s office.
Aside from the (insufficient) disparity evidence, the Gov-
ernment relies on the actions of the receptionists (regular and
substitutes) as agents, and Office Manager Jeri Stafford as an
admitted (Tr. 5:703; 7:1151–1152) agent. That is, in accepting
applications on photocopied forms, the agents did not advise
the person delivering the forms (sometimes in a “batch”) that
such documents would not be considered as legitimate applica-
tions. The agents did not advise that the documents were not
legitimate because they were on photocopied forms and be-
cause all applicants had to appear in person and fill out original
applications at Salem’s office. That is, the General Counsel
argues that it was Salem’s burden to repudiate any allegedly
unauthorized acts regarding the applications by calling the ap-
plicants, or the Union, and giving them personal notice. In
effect, the General Counsel argues that Salem, in failing to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1584
telephone (or write) the applicants, or the IBEW, ratified the
action of the receptionists and Stafford. (Br. 73–74, 79.)
Salem disagrees, arguing that the clerks, even if statutory
agents for dispensing and receiving the applications, cannot
modify Salem’s hiring policies, and, by merely carrying out
their clerical duties, cannot give any applicant a reasonably
formed belief that Salem’s management has invested the clerk
with the authority to describe Salem’s hiring policies (and,
therefore, to bind Salem to that description even if the clerk has
misstated those policies). (Reply Br. 12.)
Salem’s concluding statement goes right to the heart of the
issue (Reply Br. 13):

Even if agency were established, the undisputed record shows
that Salem, through Sink and Manuel who were the only Sa-
lem employees involved in the hiring process, uniformly and
routinely enforced the in-person hiring pre-condition. At best,
agency would supply an isolated comment inconsistent with
clear company policy; however, such a comment cannot un-
dermine the constancy of the in-person condition when all
evidence in the record shows that the policy was unremit-
tingly enforced. Consequently, the statements attributed to
Gilchrist and the other office clerical workers do not jeopard-
ize the in-person application requirement.

So, does the record show, without dispute, that Sink and
Manuel “uniformly and routinely enforced” the in-person re-
quirement? Were any comments by Gilchrist and other work-
ers merely aberrations in the face of a record showing that Sa-
lem’s in-person requirement was “unremittingly enforced”?
Such bold proclamation creates high expectation. Let us turn
now and see whether the strength of the evidence matches the
promise of the rhetoric—or whether it exposes the promise to
be more wishful reverie than accurate description.
First, recall the credited testimony of Robin Gilchrist that,
during her some 30-month (1992 to June 1994) tenure as the
regular receptionist, she routinely photocopied application
blanks when the forms ran low, distributed those copies, and
took the completed ones (including, it appears, those completed
on photocopied forms) to James Manuel. For applicants not
hired, Gilchrist filed, by date sequence, their applications in a
drawer of her desk. With one exception, to be noted shortly,
Gilchrist received no instructions from management, including
Stafford, concerning what to do with the applications. It appar-
ently was other clericals who told Gilchrist what she was to do
with the applications. At times when an applicant, with an
application on file, telephoned and spoke with Manuel, Manuel
would come to Gilchrist and ask for that person’s application.
If that person then came in and was interviewed by Manuel, or
for any applicant interviewed by Manuel, the person was either
hired or not hired. If the person was hired, Gilchrist gave him a
W-4 form and other forms to fill out. Gilchrist submitted all
those papers to Nonie Sink who, apparently, prepared a person-
nel file for the newly hired person. If the person was not hired,
Manuel returned the application to Gilchrist who filed the ap-
plication in her desk. (Tr. 4:603–606, 621–624, 635–636.)
Based on her experience while working for previous employers,
Gilchrist, at Salem, kept applications filed in her desk for 6
months. No one from Salem told her to do otherwise. (Tr.
4:606, 634–635.)
Gilchrist also gave out extra blank forms when an applicant
said he wanted to take one to a friend. (Tr. 4:611.) For the
return process she did likewise, accepting from an applicant the
completed application of another person not present. (Tr.
4:611–612.)
There is no evidence that management ever gave Gilchrist
written instructions on how to handle job applications. Indeed,
there is no evidence that management ever placed such written
instructions at the reception desk even after Gilchrist left. The
only modification that possibly occurred was that copies of
Manuel’s business card were given to the receptionist for hand-
ing to applicants. And I must infer this from applicant Kim
Farley’s description of his May 8, 1995 visit to Salem’s office.
On that occasion the “unidentified secretary” who took Farley’s
application (R. Exh. 37), gave him Manuel’s card (GC Exh. 94)
and told him to call back at 4 p.m. to speak with Manuel. (Tr.
5:766–770.) Based on Salem’s objections, the General Counsel
limited his offer of the evidence to show the basis for subse-
quent action by Farley of later telephoning Manuel. (Tr.
5:769–770.) Salem, however, now cites the passage in arguing
that government witnesses “confirmed that they were notified
that they needed to speak to Manuel regarding hiring pros-
pects.” (Reply Br. 12.)
As Salem’s argument uses the citation for the truth of the
evidence, contrary to Salem’s objections at trial, and contrary to
my limited purpose in receiving the evidence, I treat the citation
on brief as a waiver of Salem’s objection at trial, and I now
receive the evidence for all purposes. Accordingly, I infer, and
find, that at some point before May 8, 1995, General Superin-
tendent Manuel furnished a stack of his business cards to the
then regular receptionist and all substitute receptionists. I fur-
ther find he told them that, when he was not available for an
interview, to give the cards to applicants and to tell them to call
for him at a later time.
In addition to the limited tightening of the receptionist’s job
application procedures as reflected by Manuel’s instructions
regarding distribution of his business card, Vice President Sink
testified that, on several occasions, he announced to workers
that no copies were to be distributed (Tr. 9:1243, 1251), that
applications were not to leave the premises (Tr. 9:1245, 1251),
and that the receptionist is to hand an application to a job
seeker, receive the application back, and submit the completed
application either to Manuel or to Sink (Tr. 10:1458). Sink
concedes that he has not put the instructions in writing. (Tr.
10:1458.) Moreover, nothing is posted in the lobby or given to
applicants that would advise them of Salem’s policies regarding
applications. (Tr. 10:1612–1613, Stafford.)
Notwithstanding Sink’s assertions about his announcements
to the workers, Office Manager Stafford does not recall hearing
Sink ever say anything about applications leaving the premises.
(Tr. 10:1611.) While the week before her testimony she told an
applicant that the application had to be filled out in the office,
she concedes (Tr. 10:1613) that she does not recall telling any-
one that in 1994. At one point Stafford asserts that Salem ac-
cepts whatever an applicant tenders, including photocopies,
even though they are not considered legitimate documents,
because Salem accepts the documents the same as it does “junk
mail.” (Tr. 10:1608, 1612–1613.) Yet, almost in the same
breath, Stafford claims that the receptionists are told during
their training not to accept applications that come in from out-
side the office. (Tr. 10:1613.) Stafford was unconvincing. In
any event, I find that she never told Robin Gilchrist not to ac-
cept applications that come in from outside the office.
If Stafford does not remember Sink’s announcing to workers
about Salem’s rule number one, Kelly Cartner asserts that she
SALEM ELECTRIC CO. 1585
has heard him say it several times during her employment that
began in 1986, including either 1993 or early 1994. (Tr.
10:1617, 1619–1621, 1623–1624, 1626, 1629.) According to
Cartner, Robin Gilchrist “probably” heard it. (Tr. 10:1620.)
Even if Gilchrist was not present when Cartner heard Sink
make his announcements, “I know Robin heard that comment
made.” (Tr. 10:1630.) [I note that Cartner has progressed from
“probably” to “I know.”] Cartner does not describe the basis of
her knowledge of what Gilchrist heard. While I credit Cartner
that Sink made such statements from time to time (they were
not announcements to gatherings of employees, Tr. 10:1629), I
attach no weight at all to her unsupported conjecture that Robin
Gilchrist had heard Sink make such a statement on some un-
specified occasion. Thus, there is no credited evidence that
Sink, Stafford, or any person at Salem, management or rank
and file worker, ever told Robin Gilchrist.
Despite Sink’s occasional statement to one or more workers
about one or more components of Salem’s rule number one, it
is clear that Salem policed its rule with far less attention than
any prudent employer gives in protecting itself against overtime
liability under the federal wage and hour law for “suffering”
hourly employees to work unpaid through their lunch periods
during a regular 40-hour week. In our case, Salem failed to
take whatever steps were necessary (and one such prudent step
would be written instructions) to ensure that the regular and
substitute receptionists were aware of their specific duties, and
restrictions, regarding job application procedures.
Although Robin Gilchrist apparently, on occasion, accepted
photocopied applications, there is no evidence that either
Manuel or Sink was aware that some applicants were able to
bypass the in-person requirement. Any errors by Gilchrist are
just that—errors by Gilchrist. If we were considering an allega-
tion that Gilchrist had made an unlawful threat (such as, “We
don’t hire union people”), that would simply turn, as with any
statutory agent, on whether Gilchrist said it. But on the subject
of hiring, Gilchrist’s knowledge of what she did is not imputed
to Manuel and Sink when, as the evidence shows, they were not
aware that she was accepting some applications for persons
who had not made a personal appearance. As it was Manuel
and Sink, and not Gilchrist, who made the decisions on hiring,
it is their knowledge and motivation that is determinative.
Finding no knowledge on their part that Gilchrist sometimes
was improperly accepting applications for persons who had
made no personal appearance, I find that the in-person compo-
nent of Salem’s rule number one remained valid at all relevant
times.
Although Salem’s in-person requirement will have a strong
impact on the analysis to be given the status of the applications
filed on behalf of many of those named in the complaint, I defer
that discussion until later.
4. The 60-day rule
a. Facts
A person’s application is “active” for 60 days, although Sa-
lem retains applications for 1 year under Salem’s understanding
of requirements by the EEOC. (Tr. 9:1252–1253, Sink;
10:1591, Manuel.) Occasionally Salem reaches outside the 60-
day active period, but when it does so, it generally is within the
next 10 days. (Tr. 10:1457, 1479, Sink.) Most of Salem’s hir-
ing is done within the first 10 days of a person’s application.
(Tr. 9:1252, 1410–1411, Sink; 10:1575, Manuel.) When Salem
turns to the applications on file, it (meaning Manuel, usually)
starts at the top, or most recent application, because those per-
sons can be found the quickest and are more likely to be avail-
able than the persons who filed applications earlier. (Tr.
9:1282; 10:1544, 1564–1565, Sink; 10:1574–1575, 1591,
Manuel.)
Charts or lists in evidence (GC Exhs. 117, 118; R. Exh. 28)
list all 90 employees hired from February 14, 1994, through the
balance of 1994. Sink testified that the average number of days
from the application date to the hire date computes to 9.60
days. (Tr. 9:1260; R. Exh. 28 at 3.) Similarly, for the year
1995, the average time lag was 10.33 days from the application
date to the hire (or offer, in the case of those who never
showed) date. (Tr. 9:1279; R. Exh. 30.) In fact, as Sink ex-
plains, if the five high school work-study (“career center”)
student-employees on the 1995 list are disregarded (because the
students have a big gap between their applications and hire
dates, Tr. 9:1263–1264, 1269–1271), the average time lag
drops from 10.33 to below 9. (Tr. 9:1271, 1279, Sink.)
On the 1994 list (R. Exh. 28), only two names reflect hire
dates beyond Salem’s 60-day active period for applications—
Michael R. Paschal (103 days, hired May 9 as an apprentice)
and Milton T. Garwood (64 days, hired October 13 as an ap-
prentice). As Sink explains, Paschal, who has several relatives
working for Salem, was hired late when a new project opened
calling for the extra skills he possesses in the operation of
backhoes and other equipment. (Tr. 9:1261–1262.)
Garwood, a former Salem employee, had applied earlier in
1994, in March (GC Exh. 132; R. Exh. 35 at 4), but was re-
jected because of a poor work record and an unstable work
history. (Tr. 10:1508, 1513; R. Exh. 35 at 4.) Persistent, Gar-
wood applied a few months later, on August 10. (Tr. 9:1262;
10:1511; GC Exh. 133.) Sink testified that he saw Garwood
checking on his application almost weekly. (Tr. 9:1262;
10:1511.) After checking again on October 11 (R. Exh. 32 at 7;
10:1512), Garwood was hired on October 13 (Tr. 10:1511; R.
Exh. 32 at 7). In view of Garwood’s poor work record and
unstable employment history, Sink “assumes,” but does not
know, that Garwood simply walked in on the right day. (Tr.
10:1511–1513.) Garwood was hired at $10.30 per hour as a
“top helper,” the highest level in Salem’s apprentice classifica-
tion. (Tr. 7:1046; 10:1549; R. Exh. 32 at 7.)
Pascal’s hiring, while not a necessity, has a reasoned expla-
nation for the departure from Salem’s 60-day hiring policy.
Salem simply decided to hire a person who had additional skills
other than electrical.
Garwood, on the other hand, had nothing to recommend him
other than persistence and, apparently, being at the right place
at the right time and therefore was hired to satisfy Salem’s
needs at the moment. But if Salem hires only the most quali-
fied for a position (Tr. 9:1284, 1367, 1414; 10:1464, Sink; Sa-
lem’s Br. 39), why would Salem hire Garwood? In any event, I
note that, while Garwood was hired beyond the 60-day period,
he did come within the 10-day extended period, or grace time,
in which Salem sometimes hires.
Turn now to the 1995 list. (R. Exh. 30.) When the students
are not considered (a reasonable exception), only one person
was hired beyond the 60-day period—Richard K. Fennell, a
former employee, at 98 days as a journeyman. As did President
Myers (Tr. 7:1193), Sink testified that Salem favors hiring for-
mer employees (Tr. 9:1279), that Fennell checked on his March
1995 application (R. Exh. 38) several times, a positive factor,
and when a position came open in June, Salem hired him. (Tr.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1586
9:1279, 1400.) Fennell started work on June 13, 1995. (R.
Exh. 30 at 4.)
b. Discussion
The integrity of Salem’s 60-day policy, when applications
remain active, is a critical issue. If that policy withstands the
Government’s attack, the policy renders stale most of the appli-
cations filed by the 66 because they were older than 60 days
when Salem resumed hiring. An “active” period for job appli-
cations (whether the period is for 60 days, 10 days, or whatever
time) is lawful providing that the policy was not adopted for an
unlawfully discriminatory purpose and providing that the policy
is not applied in an unlawfully discriminatory manner. Here,
the evidence fails to establish that Salem’s 60-day policy was
unlawful at its inception. The question, therefore, is whether
Salem applied it in an unlawfully discriminatory fashion during
the relevant time. Actually, as application of the policy is not
singled out for a complaint allegation (as sometimes is done
with no solicitation rules), the question is whether Salem relies
on that policy as a pretext to mask an unlawful reason for refus-
ing to consider most of the 66 for possible employment.
As I have found, only one exception (of two) in 1994 is sig-
nificant—the October 13 hiring of former Salem employee
Milton T. Garwood at 64 days as a “top helper.” Similarly, in
1995 I have found but a single significant exception—the June
13 Hiring, at 98 days, of former employee Richard K. Fennell,
as a journeyman. Had Salem permitted no exceptions, my in-
quiry would stop. Because Salem permitted these exceptions,
limited though they are, I now must consider whether these two
discretionary exceptions to Salem’s 60-day rule, Garwood in
1994 and Fennell in 1995, nullifies Salem’s 60-day policy.
I note that the margin of error, if the Garwood and Fennell
hirings can be called errors under the 60-day rule, is very small.
Thus, from February 14 through the close of 1994, Salem hired
90 employees. (R. Exh. 28.) In mathematical terms, that is an
error rate of just 1.11 percent. Stated differently, it shows suc-
cessful adherence to the 60-day policy at just barely under 99
percent of the time. Even if only the apprentices or helpers
hired in 1994 (68 of the 90) are considered, the error rate still is
only 1.47 percent, or a success rate exceeding 98 percent. Sa-
lem strongly argues that such percentages are far more consis-
tent with a good faith effort to comply than with any pretextual
motivation to discriminate. Indeed, before citing the 1995
numbers, I note that, while Garwood was hired outside the 60-
day period, he came within the additional 10-day grace period
which Salem sometimes allows.
Fennell, of course, was well beyond even the 10-day grace
period. Note that Fennell is a former employee, and that Salem
gives preference to former employees who have a good work
record. Fennell apparently fits this description, plus he contin-
ued to check on his application (another positive factor). In
1995, Salem hired 136 employees. Even if Fennell’s hiring is
considered an error in the administration of Salem’s 60-day
hiring policy, the error rate is extremely small—.0073529, or
.74 percent. In terms of compliance with the policy, that is a
success rate exceeding 99 percent. If the numbers counted are
just the journeymen (24 of the 136; R. Exh. 30), the error rate
obviously is greater, at 4.17 percent, with the success rate com-
ing in at nearly 96 percent. Considering only the percentages
pertaining to the journeymen, the numbers are still impressive,
and certainly more consistent with good faith than with an im-
proper motive. Perfection under the law is not required, and in
practice it seldom is achieved. Thus, I find that, by themselves,
the Garwood and Fennell exceptions, over 2 years, do not nul-
lify Salem’s 60-day policy. Nevertheless, I shall consider
whether any of the 66 came to check on their applications but
were turned away on the basis that their applications were be-
yond 60 days.
E. Salem’s Refusal to Hire the 66
1. Introduction
In early 1994 Gary M. Maurice, the Union’s business man-
ager and person in charge of organizing for IBEW Local 342,
launched a campaign as to Salem Electric. As much to help
unemployed members obtain work as it was to organize (Tr.
1:48–50; 2:220), the campaign included sending covert and
open “salts” to Salem’s office seeking employment as electri-
cians. Salting was one part of the campaign. (Tr. 2:220.) For
the most part, on their applications, member applicants clearly
identified themselves as affiliated with the Union and as volun-
tary IBEW organizers. Frequently they recorded that they had
attended COMET training classes. On February 25, 1994,
Maurice faxed to General Superintendent Manuel a two-page
fact sheet about “Organizing Through C.O.M.E.T.” (GC Exh.
21; Tr. 1:79–80.) By letter dated June 10, 1994, to Salem,
Maurice sent Salem a listing of members the Union asserted
had made application for employment with the Company. Be-
side most of their names Maurice typed a “JW”—meaning, he
testified (Tr. 1:115), that the person was a journeyman wire-
man.
In his June 10 letter, Maurice informed Salem that:

These applicants are well qualified in all areas of the electrical
trade and are willing to work for the same wages and condi-
tions offered your present employees. All those listed as
Journeyman Wireman have been certified by the IBEW
and/or the North Carolina Department of Labor as qualified,
while those listed as Apprentice Wireman are indentured in a
JATC through the North Carolina DOL.

One paragraph later Maurice advises Salem (GC Exh. 24):

Also you will note that these applicants have listed that they
are voluntary IBEW Organizers. I wish to assure you that
each of these applicants have attended an IBEW COMET Or-
ganizing school and are familiar with the NLRA and their re-
sponsibilities while in your employ. Rest assured that they
will perform an exemplary job for you and further will con-
duct their organizing of your employees in the manner speci-
fied by the NLRA.

At the request of Maurice (Tr. 1:48), on February 14 Allen
W. Craver went to Salem’s office, obtained a blank application
from the receptionist, completed it, and returned it (GC Exh.
90) to the receptionist. She told Craver that Salem was not
hiring at the time. (Tr. 5:736–737.) Although Salem’s trial
summary as to the 66 (R. Exh. 33 at 14, sequence number 109)
states that Craver did not complete his application on the prem-
ises, I find such statement to be erroneous.
Maurice also asked Allan T. Samuels to make application
and, if possible, to bring him a blank application form. (Tr.
1:48–49.) As a result, on February 22 Samuels, accompanied
by Don H. Craft (like Samuels, a member of the Union), went
to Salem’s office where they both obtained applications, com-
pleted them, and returned them to the receptionist, Robin Gil-
christ. (Tr. 5:681, Craft; 6:900–902, 905–908, Samuels.)
SALEM ELECTRIC CO. 1587
Samuels asked about an interview, and Gilchrist told him that
General Superintendent Manuel was not in the office but that
she would see that he got their applications. To Samuels’ ques-
tion of whether he could take a blank application for a friend,
Gilchrist said yes. In response to another question, Gilchrist
informed Samuels that applications were retained on file for 6
months. (Tr. 6:902.) I do not credit the assertions on Salem’s
trial summary (R. Exh. 33 at 14, items 110 and 112) stating that
the February applications of Samuels (GC Exh. 105) and Craft
(GC Exh. 85) were not completed on the premises.8
On February 22, Maurice testified (Tr. 1:49), Samuels
brought him a blank Salem application form. Maurice made
photocopies of the form which Samuels brought to him. At a
COMET class that evening, Maurice distributed photocopies of
the form to some 47-member attendees. Several attendees
completed the application form and gave them to Maurice. (Tr.
1:49-50, 74; 2:199, 205–206, 241.)
Maurice recalls that he instructed Paul David Vogler to sub-
mit an application at Salem. (Tr. 1:52.) Union member Vogler
recalls that Maurice gave him a blank application which, after
completing, Vogler took to Salem’s office and delivered to the
receptionist, Robin Gilchrist, on February 23. To Vogler’s
question of whether there was any problem with the application
being on a copied form, Gilchrist answered no. Vogler then
inquired if Salem was hiring, and Gilchrist said not at that time
but that he could check back in a few weeks or they would call
him. Vogler called about 2 weeks’ later and spoke with the
receptionist. The record does not give her response, but Vogler
was not offered employment. (Tr. 5:779–784, 808.)
That same day, February 23, Maurice, accompanied by union
member Patrick D. Parsons (Tr. 1:52; 2:199, 204; 3:441), went
to Salem’s office. Inside Salem’s lobby, Maurice, after inquir-
ing whether they could fill out applications, asked the recep-
tionist, Robin Gilchrist, if he could obtain extra application
forms for two other persons who were interested. Gilchrist
gave him three application forms. (Tr. 1:52–53, 59–61.) After
completing one (GC Exh. 3) of the applications, Maurice gave
one of his union business cards to Gilchrist, who stapled it to
Maurice’s application. (Tr. 1:61–62; 3:447.) Gilchrist said that
General Superintendent Manuel was not available, that Maurice
did not have to check back because Manuel would call him, and
that applications were good for 6 months. (Tr. 1:132–133;
2:206–207.) Parsons also gave his application (GC Exh. 68) to
Gilchrist. (Tr. 3:441–442.) Parsons had completed his applica-
tion, on a copied form, off premises. (Tr. 3:441–442, 444, 464,
477.) As I have found, however, Salem waived its policy as to
no copies.
To Maurice’s question of whether he could submit com-
pleted applications of persons who were not present, Gilchrist
said, “[Y]es.” Maurice then handed Gilchrist the completed
applications of 16 of those who had attended the Union’s
COMET class the night before. Thus, the 16 applications (GC
Exh. 5–20), although in original handwriting, were made on
photocopied forms supplied by Maurice at the February 22
COMET class. (Tr. 1:49–50; 2:199, 205–207, 241.) Gilchrist
confirms that, in February 1994, Maurice gave her a stack of
applications which she gave to General Superintendent Manuel.

8 Respecting Salem’s trial summaries (which rely, in part, on the
memories of Sink and Manuel, Tr. 9:1298, 1307, 1310, 1315, 1334,
1370–1371), I do not credit any of the entries, particularly the “rea-
sons” or comments, that are inconsistent with my findings.
Very soon thereafter, possibly the same day, Manuel told Gil-
christ to keep separate those applications bearing some indica-
tion of affiliation with the Union. At some point Gilchrist
would submit applications to Manuel. (Tr. 4:614–615, 618–
619.) I do not credit Manuel’s version that he merely told Gil-
christ to keep the copied applications separate, and to put them
on his desk, and his denial that he told Gilchrist to keep the
union applications separated. (Tr. 10:1575–1576, 1594–1595.)
There is no dispute that Salem received the 16 applications,
as is reflected on its trial summary pertaining to the 66. (R.
Exh. 33.) Aside from Salem’s other defenses, what is in dis-
pute, as to 8 of the 66, is not delivery, but authentication. As
Salem writes on brief (Br. 52–54; Salem’s Reply at 5–6), the
applications of some 58 of the alleged discriminatees were
authenticated either by testimony or by stipulation. That is,
even though delivery was shown as to nearly all the applica-
tions,9 the applications of some eight of the alleged discrimina-
tees were never authenticated by either testimony or stipulation.
The General Counsel argues (Br. 10) that authentication is un-
necessary as to these eight because “Salem has acknowledged
receipt.” In reply, Salem argues (Reply at 5–6) that acknowl-
edgement of receipt is not a substitute for authentication. In-
deed, all such applications were received on the limited basis of
showing only delivery, with authentication to come from other
witnesses.
Actually, in light of my findings that Salem’s in-person and
60-day active policies remained valid at all relevant times, I do
not reach the authentication question, or any of the other issues
pertaining to those of the 66 who are eliminated by virtue of the
in-person and 60-day policies. Accordingly, my focus first is
directed toward only those who appeared in person at Salem’s
office. Consistent with my finding that Salem waived its policy
of originals only, this group, of about a dozen, include those
(most of the group) who, appearing in person, submitted appli-
cations prepared off premises on photocopied forms.
2. Those who applied in person
a. February–March 1994
Of those who submitted their applications in person at Sa-
lem’s office, 10 appeared during February–March 1994. Six of
these I already have named: Allen W. Craver, Allan T.
Samuels, Don H. Craft, Paul D. Vogler, Gary M. Maurice, and
Patrick D. Parsons. The other three applied as follows. Mack
Good submitted his photocopied application (GC Exh. 82) at
Salem’s office on February 23. Part of it, apparently including
the date of February 22, Good filled out the day before at the
Union’s hall. He submitted it to Gilchrist. (Tr. 5:656–657,
672–673); R. Exh. 33 at 3.) Thomas W. Hayes filled out his
copy (GC Exh. 46) at the Union’s hall and personally submitted
it (along with copies of four others), apparently the same day,
February 28, at Salem’s office. (Tr. 2:288–290, 296–297; R.
Exh. 33 at 7.) Completing his copy (GC Exh. 101) at the Un-
ion’s hall, Steven G. Combs took it that day, March 7, to Sa-
lem’s office where he delivered it (plus one other) to the recep-
tionist. (Tr. 6:836–840; R. Exh. 33 at 8.) Larry T. Conrad
delivered his March 13 application (GC Exh. 86), and several
others, on March 14. (Tr. 5:687–691; R. Exh. 33 at 10.)
Under Salem’s 60-day policy, the applications of these 10
individuals were active for 60 days. With the exception of
9 I discuss later the missing August 1994 application of Russ P.
Hawks.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1588
Mack Good, all of the 10 applied for the employment position
of “electrician” or “journeyman.” Good wrote on his applica-
tion that he was seeking “Any electrical work,” and that his pay
was “neg.” (GC Exh. 82.) Most were looking for an hourly
pay rate of $11 to $12, with one (Thomas Hayes) as low as $10.
On his application, however, Hayes listed pay rates on his last
jobs ranging from $15.79 to $19.69 per hour. (GC Exh. 46 at
2.)
As Vice President Sink (Tr. 9:1282–1283, 1292, 1348, 1352,
1407–1408; 10:1483–1485, 1491–1492, 1546–1548) and Gen-
eral Superintendent Manuel (Tr. 10:1582–1584, 1591–1592)
credibly explained, Salem hires only for relevant vacancies.
That is, journeymen (or mechanics; the terms are used inter-
changeably at Salem, Tr. 10:1496, Sink) are hired for journey-
men positions, and apprentices or helpers are hired for appren-
tice positions. To classify an applicant, Salem looks at the
person’s actual experience and pay earned, not at the position
and pay he states as desired.
The reason for not placing skilled persons at a lower level is
simple. If a skilled person is hired at a level below his skill and
pay experience, then he will be unhappy, unproductive, and
will leave for a higher-paying position at the first opportunity.
(Tr. 9:1283, 1292, 1352, 1407–1408, Sink; Tr. 10:1591,
Manuel.) In this connection, Salem classified all 10 as jour-
neymen. (R. Exh. 33.) So did the Union in its June 10 letter
(GC Exh. 24) to Salem as to seven of the 10 (Craver, Craft, and
Samuels are not listed). Craver’s application (GC Exh. 90)
shows a pay history of $12 to $14, and Croft’s (GC Exh. 85) a
history during the last 5 years, on referrals from the Union, at
$12.30 per hour. In the spring of 1994, Salem’s journeyman
rate was $11.45 per hour. (Tr. 7:1051–1052; 9:1360; 10:1549,
Sink.) Actually, Sink testified that Salem did not review the
applications because it did not consider the applications valid.
A formal listing of the classifications was not made until Sep-
tember 1994 when Sink began preparing a response to the un-
fair labor practice charge filed in the case. (Tr. 9:1345, 1349–
1350.)
As Salem classified the 10 as journeymen, inquiry now turns
to when Salem hired its next journeyman. The next journey-
man hired was Davy W. Williams. He applied on April 2,
1994, and was hired (actually started work) on April 18. (R.
Exh. 29; 9:1330.) Williams was referred by Salem employees,
a foreman and a working foreman. (Tr. 9:1330–1331.)
(1) Allen W. Craver
Applying Salem’s 60-day rule to the 10, we see that their ap-
plications became inactive between April 15 (Craver) to May
13 (Conrad). Although Salem on occasion goes beyond the 60
days, such as when the applicant has repeatedly checked on his
application, particularly if he comes back in on the day Salem
begins hiring again, the applicants here did not do that.
Salem could have considered Craver’s application when it
was considering that of Davy Williams, for Craver’s was still
active in the first half of April. The record is unclear whether it
did so or not. Salem did not consider any of the “batched”
applications because it did not view them as legitimate applica-
tions. But it is not clear that Salem initially included Craver’s
application with the ones that were batched, and it may not
have done so until it prepared summaries in relation to the
charges. Indeed, it was not until the August 2, 1994 amended
charge in Case 11–CA–16141 that Craver was named as one of
a group of 49 whom Salem had refused to hire since February
23. Craver is not one of those named in Business Manager
Maurice’s June 10 letter (GC Exh. 24) to Salem.
When Craver went to Salem’s office on February 14 he did
nothing to disclose his affiliation with the Union. For example,
he made no mention of any Union affiliation on his application
(GC Exh. 90.) The receptionist told him that Salem was not
hiring. (Tr. 5:737.) Craver had worked for Salem previously,
but the record is a bit unclear when he started and stopped. He
mentions 1968 (Tr. 5:736), and states that he was laid off in
1988 (Tr. 5:743). He also states that he worked for Salem a
“long time” (Tr. 5:744) at one location, that he was named in
some unfair labor practice charges filed in 1987 (GC Exh. 92),
and that he was involved in an active organizing campaign until
he was laid off before an election that was held in 1987. (Tr.
5:744.)
The General Counsel announced (Tr. 5:746) that he would
withhold offering a copy (GC Exh. 92) of the purported charge
(Case 11–CA–12302, filed March 2, 1987, naming Craver and
44 others as having been discriminated against in some undis-
closed way regarding their “hire and tenure”), until he could
establish that the charge had been served. The General Coun-
sel’s expressed purpose was to show knowledge, by service of
the earlier charge, of a link between Craver and the Union. (Tr.
5:741–742.) The General Counsel never thereafter offered
anything further on the matter. [Although GC Exh. 92 was
never offered or received, it mistakenly was included with the
documents in the folder for the General Counsel’s exhibits.]
The General Counsel makes no argument that a presumption of
service obtains from 29 CFR 102.14(b) (Regional Director
“will, as a matter of courtesy, cause a copy of such charge to be
served”) plus the added presumption that government officials
carry out the duties imposed on them by law. As the General
Counsel neither offers the exhibit nor argues the evidentiary
point, I need not decide whether the “courtesy” (under 29 CFR
101.4 and 102.14, service of a charge is the Charging Party’s
responsibility) is a duty imposed by law. Because of the refer-
ences to General Counsel’s Exhibit 92 in the record and here,
and to avoid confusion, I now transfer that document to the
rejected exhibits folder. I make no finding that Salem was ever
served with a copy of General Counsel’s Exhibit 92 or that it
was aware of any link, about 1987, between Craver and the
Union.
I find that the application of Allen W. Craver effectively ex-
pired on April 15, 1994. In short, there is nothing establishing
a prima facie case respecting Craver’s February 1994 applica-
tion. There is no evidence showing that Salem should have
considered Craver before it hired Davy W. Williams as a jour-
neyman about April 18 (R. Exhs. 28, 29). In fact, Salem passed
over four other journeymen applicants (whose applications
contained no references to the Union) who personally applied
between February 21 and March 21. (R. Exh. 36.) Two of the
four Salem considered qualified, but Salem was not hiring at
the time. (Tr. 9:1377–1379.) There being no prima facie case
that Salem refused to consider Craver for hire, or that it refused
to hire him, during the 60-day active period for his February 14
application, I shall dismiss complaint paragraph 15 as to Allen
W. Craver respecting the alleged dates of “February 14, 1994,
and mid-March 1994.”
(2) Gary M. Maurice
Maurice’s February 23 application (GC Exh. 3) was active
for 60 days, to Sunday, April 24, or, using the next business
day, Monday, April 25. As discussed above, about mid-April,
SALEM ELECTRIC CO. 1589
or no later than April 18, Salem hired, as a journeymen, Davy
W. Williams. (R. Exh. 29.) On his application, Maurice stated
that he would accept an hourly pay rate of $11—the same rate
at which Williams was hired. (R. Exh. 28.) For his employ-
ment since 1988, Maurice listed his position at the Union, and
his work as an electrician is shown as before 1988. (GC Exh. 3
at 2.)
Respecting the reason or reasons Salem did not hire Maurice,
Sink testified that it was because Salem was not hiring when he
came in. “That’s the basic reason we didn’t hire him.” (Tr.
9:1351; R. Exh. 33 at 1.) This, apparently, ties to testimony,
noted earlier, of Sink (Tr. 9:1282; 10:1544, 1564–1565), and
Manuel (Tr. 10:1574–1575, 1591) that Salem interviews and
hires from the most recent applications. Moreover, Salem
passed over two qualified journeymen applicants, whose appli-
cations did not indicate they were affiliated with the Union,
during this time frame because Salem was not hiring at the
time. One of the two, Robert C. Burnette, had been referred by
a Salem employee. (Tr. 9:1378–1379; R. Exh. 36.)
On brief (Br. 46), Salem notes that Maurice had been em-
ployed “as a Union business agent, as opposed to working as a
journeyman electrician, since 1988.” Salem cites
Zurn/N.E.P.C.O., 1995 NLRB Lexis 1057, “slip op. at 71–72
(claim of Union business agent dismissed since they had not
worked the tools of the trade in five years).” But in Zurn the
employer’s witness testified to that effect. [JD(ATL)–56–95,
Case 12–CA–15833, Nov. 2, 1995, slip op. at 67, pending be-
fore the Board on exceptions.] Here, that reason is not listed on
Salem’s trial summary (R. Exh. 33 at 1), and it is not given in
the testimony of Sink. In fact, Sink’s testimony apparently
excludes any reason other than that Salem was not hiring when
he applied (and Salem hires from the most recently filed appli-
cations).
As Salem was not hiring when Maurice applied, in view of
Salem’s policy of hiring from the most recent applications, and
as Davy Williams’ application was filed in April just a few
days before he was hired, I find no prima facie case of unlawful
discrimination, as alleged, against Maurice. Accordingly, I
shall dismiss complaint paragraph 15 as to Gary M. Maurice.
(3) The remaining eight
(a) Introduction
The remaining eight (Craft, Samuels, Vogler, Parsons, Good,
Hayes, Combs, and Conrad) identified themselves on their
applications as affiliated with the Union, usually including the
name of Gary Maurice as a reference. Salem “batched” the
union-affiliated applications, and did not consider them as le-
gitimate applications, because (R. Exh. 33) they did not com-
plete an application on premises and because Salem was not
hiring at the time. Additionally, as to three (Vogler, Parsons,
and Hayes), Salem also asserts (R. Exh. 33) that they had an
“unstable work history.” Based on the findings I have made
respecting Salem’s waiver of the originals component of its rule
number one, and the personal appearance of six of the eight
with photocopies (two, Craft and Samuels, personally appeared
and completed originals), I find that the eight satisfied Salem’s
(modified by waiver) rule number one.
By crediting Robin Gilchrist, I also have found that, shortly
after Maurice left the stack of photocopied applications on Feb-
ruary 23, General Superintendent Manuel told Gilchrist to keep
the union applications separate and forward them to him. (Tr.
4:614–615, 618–619.) As I mentioned earlier, Sink testified
that he directed Manuel to keep the applications brought in by
the Union separated, or “batched.” Sink did so because, as the
applications were completed on photocopied forms, and as the
applicants did not personally appear, the job seekers did not
satisfy Salem’s rule number one. Therefore, the documents
were not legitimate applications. (Tr. 9:1292–1293, 1346,
1348–1349.)
Sink testified credibly on this matter, and I credit him. No-
tice that Sink’s direction to Manuel pertained only to those
applications which were: (1) on photocopied forms, (2) not
presented in person, so that the applicant was not then available
for personal interview. Until the trial, Sink, and apparently
Manuel who worked with him on the trial summaries, thought
that only two of the union applicants had personally applied on
original forms. (Tr. 10:1481.) Although Sink did not name the
two in his testimony, Salem’s trial summary for 1994 shows
them to be Gary Maurice (R. Exh. 33 at 1) and Russ P. Hawks,
regarding his June 10 appearance (R. Exh. 33 at 13). (In rele-
vant part, the trial summary simply states, as to Maurice and
Hawks, that Salem was “Not hiring at the time,” rather than the
“Did not fill out application on premises” used for the others.”)
In short, Sink’s direction for Manuel to batch the (perceived)
illegitimate applications was not based on union status, but on
their status as failing to meet the components of Salem’s rule
number one. Although I have credited Gilchrist’s recollection
that Manuel told her to separate out all union applications, I
find that such instruction was intended as a shorthand version
for all the copies coming from the Union rather than a reflec-
tion of a design by Salem to assign all union-affiliated applica-
tions to the recycle bin. Thus, the important inquiry is what
hiring was done during the “active” status of their applications.
Turn now to that matter.
(b) Craft, Samuels, Vogler, Parsons, and Good
The active period of the applications of these five (Craft,
Samuels, Vogler, Parsons, and Good) expired on or before
Monday, April 25. That was after Davy Williams was hired but
at least 1 day before Levern Quick applied on April 26. Quick
was hired and started work, as a journeyman, on Monday, May
2. (R. Exh. 29.) Recall that Williams applied on April 2. None
of the five came back around early to mid-April to check on his
application. Thus, even without reaching Salem’s reasons it
would not have hired some of the five (such as an “unstable”
work history),10 I find that Salem’s “most recent applications”
policy eliminates these five from further consideration.
Moreover, during this same period Salem bypassed four
nonunion (that is, no reference of union affiliation on their ap-
plications) journeymen applicants. Although Salem would not
have hired two as having an unstable work history (Tr. 9:1378;
R. Exh. 36), the other two (Tim Koroll, applied February 21,
and Robert C. Burnett applied March 21) were both qualified,
but they applied at the wrong time because Salem was not hir-

10 Vice President Sink acknowledges that, in light of the nature of
Salem’s commercial customer base, an applicant from the construction
industry is at an inherent disadvantage in applying at Salem because of
the numerous job changes in construction. (Tr. 9:1354; 10:1467–1468.)
Thus, Sink defines an “unstable” work history as one where the appli-
cant has worked for three or four employers in the last year or two. (Tr.
9:1280, 1352, 1357; 10:1466.) While to some persons this definition
and policy may not seem fair, Sink testified (Tr. 9:1352–1357), Salem
is satisfied that its hiring policy has helped make it the dominant elec-
trical contractor in Winston-Salem. (Tr. 9:1228; 10:1468–1469.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1590
ing. Burnette (not the Bobby L. Barnette named in the com-
plaint) was even referred by a Salem employee. (Tr. 9:1378–
1379; R. Exh. 36.)
In light of all the record, I find that the evidence fails to es-
tablish a prima facie case of unlawful discrimination, and I,
therefore, will dismiss complaint paragraph 15 (regarding the
spring of 1994) as to Don H. Craft, Mack Good, Patrick D.
Parsons, Allan T. Samuels, and Paul D. Vogler.
(c) Thomas W. Hayes
On Monday, February 28, 1994, at the Union’s hall, Thomas
W. Hayes filled out (on a photocopied form, Tr. 1:138–139,
Maurice) a Salem application. (Tr. 2:288–289.) That day he
took his application (GC Exh. 46), and four others that had
been completed, to Salem’s office and submitted them to the
receptionist, Robin Gilchrist. (Tr. 2:290.) Gilchrist did not
comment about the references, on Hayes’ application, to the
Union. (Tr. 2:298.) Since that date, Hayes has not heard from
Salem. (Tr. 2:292.) There is no evidence that Hayes ever con-
tacted Salem, or went back to Salem’s office, to check on the
status of his application. Hayes’ application reflects that he
worked for four employers, at different times, between May
1992 and January 1994, apparently in the construction industry.
On its trial summary (R. Exh. 33 at 7), Salem, aside from stat-
ing that Hayes did not fill out an application on the premises,
asserts that it was “not hiring at time” and that Hayes, with his
four jobs in less than 2 years, had an “unstable work history.”
Hayes’ 60 days expired on Friday, April 29, 1994.
As already discussed, during this time frame Salem hired
journeymen Davy Williams on April 18 (applied April 2) and
Levern Quick on May 2 (applied April 26). (R. Exh. 29.) As
discussed, Salem interviews and hires from its most recent
applications. Under this policy, Hayes’ application was near
the bottom of the stack. Also, Salem similarly passed over
qualified nonunion applicants Tim Koroll (applied February
21) and Robert C. Burnette (applied March 21), plus two oth-
ers, deemed to have unstable work records, who applied in
March. (R. Exh. 36.) Aside from the issue of an “unstable
work history,” the General Counsel offered no disparity evi-
dence that Salem called either Koroll or Burnette to see
whether either was still interested in working at Salem.
As the evidence fails to show, prima facie, any of the alleged
unlawful discrimination, I shall dismiss complaint paragraph 15
as to Thomas W. Hayes.
(d) Combs and Conrad
As recited earlier, Steven G. Combs submitted his com-
pleted, photocopied application (GC Exh. 101) to Salem on
March 7. He apparently did not thereafter check on his applica-
tion. A former employee of Salem, Combs had worked for
Salem about 6 to 8 months beginning in late 1986 and ending
with his layoff in 1987. (Tr. 6:835.) Combs’ 60 days expired
on Friday, May 6.
Salem’s trial summary reflects that Salem was not hiring at
the time Combs applied. (R. Exh. 33 at 8.) As we already
know, Williams applied on April 2, and began work on April
18. Levern Quick applied April 26, and began work May 2.
(R. Exh. 29.) Mere announcement of union affiliation on an
application, combined with a failure to hire (or even to consider
for hire), does not establish a prima facie violation of the stat-
ute. B E & K Construction Co., 321 NLRB 561, 568 (1996).
As nothing shows, prima facie, any alleged unlawful discrimi-
nation against Steven G. Combs, I shall dismiss complaint
paragraph 15 as to him.
Larry T. Conrad had also worked for Salem, from October
1989 to March 1990. (Tr. 5:686–687, 717–718.) Conrad per-
sonally delivered his photocopied application (GC Exh. 86),
with the applications of several others, on March 14. (Tr.
5:687–688, 691.) His 60 days expired on Friday, May 13.
There is no evidence that Conrad returned during April to
check on his March application. (He returned on March 22 to
deliver applications of other union members. Tr. 5:708–711.)
As Salem interviews and hires from its most recent applica-
tions, no reason is shown as to why Salem should have gone
back and considered Conrad’s March application before it hired
Davy Williams on April 18 and Levern Quick on May 2.
As already noted, nonunion applicant Robert C. Burnette
(applied in person on March 21; Tr. 9:1379; R. Exh. 36) was
recommended by one of Salem’s respected electricians. Bur-
nette lost out because Salem was not hiring at the time. (Tr.
9:1379; R. Exh. 36.) The General Counsel did not offer evi-
dence that, in April and May, Salem reached back and called
(nonunion) Burnette to see whether he was still interested. As
no discrimination has been shown, prima facie, I shall dismiss
complaint paragraph 15 (March 14 and 22, 1994) as to Larry T.
Conrad.
b. May 1994—Randy F. Penn
Randy F. Penn testified that he personally went to Salem’s
office on May 4, 1994. Obtaining a blank application from the
receptionist, he completed it and submitted it (GC Exh. 72) to
the receptionist. Penn has yet to hear from Salem. (Tr. 3:498–
500.) Penn apparently never went back to check on his May 4
application. The photocopy in evidence (GC Exh. 72) has a
heavy black smudge over the drug-testing portion—indicating
that the original had that portion highlighted with some color.
Penn’s 60 days expired Tuesday, July 5 (the first business day
after Sunday, July 3). Penn’s first application (GC Exh. 7), on
a photocopied form, was one of the batch which Business Man-
ager Maurice delivered on February 23. On both documents,
Penn wrote, in the activities section, that he does COMET or-
ganizing.
Salem’s trial summary (R. Exh. 33) has no entry for Penn’s
May 4 application. [Neither does the Union’s letter (GC Exh.
24) of June 10, but that apparently is because Maurice does not
(Tr. 1:138), list Penn as among those he sent.] This absence
appears to be due to the corresponding absence for that date, as
to Penn, from complaint paragraph 15. Indeed, on brief Salem
loftily announces that it is unnecessary to address the May 4
application because it is not alleged and therefore “may not be
used to establish a violation of the Act.” (Br. 54 fn. 23.)11
While there using the lack of allegation as a shield, later Salem
employs the May 4 application as a sword when arguing (Reply
Br. at 4) the issue of highlighted applications. In short, Salem
does not hesitate in seeking to exercise the “wanting-it-both-
ways privilege.”
But perhaps I am being too critical. After all, Penn’s May 4
application (GC Exh. 72) is in evidence—because Salem never
objected that there was no allegation to support it. Indeed,
Salem lodged no objection to any of Penn’s testimony about his
visit of May 4. As a fully litigated matter, the May 4 applica-

11 Salem does not contend (as it does concerning the August visit by
Russ P. Hawks) that its records fail to show any such visit by Penn on
May 4.
SALEM ELECTRIC CO. 1591
tion was tried by implied consent as a matter of law.
Fed.R.Civ.P. 15(b). Salem’s briefing would have been more
helpful (and more commendable) had it conceded the obvious
and addressed the merits of Penn’s May 4 application. Turn
now to the merits.
During Penn’s 60-day period, Salem hired three journeymen
electricians. (R. Exh. 29.) The first was Ron D. Bazzell on
May 17 (applied May 16). Next was Ron E. Deaton on May 24
(applied May 23). Last was Reuben Blackney Jr. on June 6
(applied June 3). Recall that the “hire date” shown on the
summary is actually the first day at work. In short, Bazzell and
Deaton may have been hired the day they applied. The same
could have been true as to Blackney [the spelling is per R.
Exhs. 28 and 29 rather than the transcript] because June 3,
1994, was a Friday, and June 6 a Monday. Bazzell and Deaton,
Sink testified, were former Salem employees with good work
records, and Blackney was recommended by Leverne Quick,
one of the new employees. (Tr. 9:1331–1332.)
During this same period Salem passed over Larry K. Brown,
who applied on May 5, even though he had a good work record
for the previous 8 years at Lilly Electric Co., because Salem did
not then need a journeyman electrician. (Tr. 9:1379: R. Exh.
35.) William M. Sams, who applied on May 18, was not hired
either, but he is recorded as having an “unstable work history.”
(R. Exh. 36.)
Sink was not asked to address Penn’s May 4 application.
The record, therefore, supplies no information on whether Sa-
lem did or did not consider his application, and why, when
Bazzell, Deaton, and Blackney were considered and hired.
Moreover, the General Counsel failed to show, as a type of
disparity, that Salem called Larry Brown and asked him
whether he was still interested, but failed to call Randy Penn.
Instead, the evidence shows that Salem interviewed and hired
as the need to do so arose, and did so as to Bazzell, Deaton, and
Blackney because they happened to apply when they did—that
is, they were at the “right place at the right time.”
There being no evidence of unlawful discrimination as al-
leged, I shall dismiss complaint paragraph 15 (as amended by
implied consent) as to May 4, 1994, for Randy F. Penn.
c. June 1994—Russ P. Hawks
Russ P. Hawks applied in person on June 10, 1994, and
submitted copies for two other persons. Thus, his 60 days ex-
pired August 9. (Tr. 2:252–255, 270; GC Exh. 32; R. Exh. 33
at 13.) Hawks’ chief problem is that Salem did not hire another
journeyman until November 21 (R. Exh. 33 at 13; R. Exhs. 28,
29). During the interim, Salem passed over several qualified
nonunion applicants who applied in July, August, and October,
including two former Salem employees. (Tr. 9:1379–1380.)
One (Thomas J. Bowman, applied July 14) of the former em-
ployees, who had a good work record at Salem, was referred by
three Salem employees. However, Salem “Did not need [a]
journeyman.” (R. Exh. 36 at 2.) Indeed, Salem hired only
eight journeymen during 1994 from and after February 15. (Tr.
9:1387; R. Exh. 29.) The General Counsel failed to show, as
disparity, that Salem called one or more of the qualified nonun-
ion applicants who were passed over in July and early August,
because Salem was not hiring, and inquired whether they were
still interested in coming to work at Salem.
As Salem’s 60-day policy eliminated Hawks’ June 10 appli-
cation, I shall dismiss complaint paragraph 15, as to June 10,
1994, for Russ P. Hawks.
d. August 1994
(1) Paul D. Vogler—August 22, 1994
Although Paul D. Vogler completed the second of his appli-
cations, on a photocopied form (Tr. 5:808), at the Union’s hall
on August 18, 1994, he did not deliver it (GC Exh. 97), plus
about three others, to Salem until Monday, August 22, 1994.
(Tr. 5:794–796, 800–801; R. Exh. 33 at 15.) Vogler’s applica-
tion expired on Monday, October 17, 1994, 60 days after the
date of his application.
As with the June application of Russ P. Hawks, Vogler’s
chief problem (aside from being labeled on Salem’s trial sum-
mary as having an “unstable” work history) is that Salem was
not then hiring journeymen. Salem did not do so until Novem-
ber 21 when it hired former Salem employee Eddie Carrazco
who had applied November 15. (Tr. 9:1389–1390; R. Exh. 29.)
Moreover, Rodney L. Haynes, a nonunion applicant rated as
qualified, was not hired because Salem did not need any jour-
neymen. Haynes applied on October 31. (Tr. 9:1380–1381; R.
Exh. 36 at 2.) The General Counsel failed to show, as dispar-
ity, that Salem, before it hired Carrazco, called Haynes to see
whether he was still interested in coming to work at Salem.
Thus, Salem hires from its most recent applications, and this
apparently means, for the most part, whoever has walked in the
door within the last few days.
As Salem’s 60-day policy eliminated Vogler’s August 18,
1994 application, I shall dismiss complaint paragraph 15, re-
garding August 22, 1994, as to Paul D. Vogler.
(2) Russ P. Hawks—August 29, 1994
An additional controversy exists regarding the alleged visit
of Russ P. Hawks on August 29—no one has a copy of his
application. No August visit is listed for him on Salem’s trial
summary (R. Exh. 33), and the General Counsel relies (Br. 17
fn. 16) on Hawks’ testimony that, on August 29, he obtained an
original Salem application from the receptionist and submitted
it, with copies for 11 other members (including Maurice’s sec-
ond application), to the receptionist. Hawks was not granted an
interview that day. (Tr. 2:261–267, 272–274.)
Salem does not dispute that it has the copies (GC Exh. 35–
45) for the 11. Thus, on its trial summary, Salem lists all 11 as
having been received on August 29. (R. Exh. 33 at 16–19.) On
cross-examination (Tr. 2:276), Hawks concedes that, in his
pretrial affidavit of January 9, 1995 (R. Exh. 16), he states that
he submitted his personal application, and only his application,
“a couple of days before 8/29/94.” Hawks asserts that the
statement in his January 1995 affidavit is wrong, and that his
trial testimony is correct, that he did it all on 1 day, not on 2
days. When he signed his affidavit, he believed it to be accu-
rate, but he cannot explain how the error occurred. (Tr. 2:276–
280.)
I need not resolve the dispute over whether Hawks in fact
personally submitted a second application in late August, for
even if he did, his application was eliminated 60 days’ later.
As with the August application of Paul D. Vogler, the General
Counsel showed no disparity and no unlawful discrimination.
Accordingly, I shall dismiss complaint paragraph 15, respecting
the date of August 29, 1994, as to Russ P. Hawks.
(e) September 1994—Douglas Summers
At the Union’s hall on September 12, Douglas Summers,
who had worked for Salem about 3 months in early 1988 as a
journeyman (Tr. 6:859; R. Exh. 33 at 20), filled out one of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1592
photocopied Salem application forms which Business Manager
Maurice had supplied to Summers and several others. (Tr.
1:138; 2:210; 6:860.) Summers took his application (GC Exh.
103), plus the ones for two other members, with him the next
day (Tuesday, September 13) to Salem’s office where he gave
them to the receptionist. (Tr. 6:860–865, 880–881, 886–887,
889–890.) Summers never heard from Salem. (Tr. 6:883.) The
60 days for Summers’ application expired Friday, November
11, 1994.
On December 12 Salem hired journeyman James E. Scales
who had applied November 15. (R. Exh. 29.) Sink credibly
testified that Scales, while a Salem employee, had been injured
in a motorcycle accident. Scales had been off work for several
months when he reapplied (Nov. 15; R. Exh. 29) and Salem
rehired him. (Tr. 9:1390.) Although Sink implies that Scales
was hired when he applied (“we had a slot for him,” Tr.
9:1390), Salem’s trial summary of journeymen hired after Feb-
ruary 14, 1994 (R. Exh. 29), shows that Scales’ hire date (as we
know, his first day at work) was December 12—nearly a month
after he applied. Although Salem apparently has no medical
leave of absence, it appears, as a practical matter, that Scales
was given some preference for an anticipated vacancy (a re-
tained “slot”) rather than hired for an open “slot” when he ap-
plied. Assuming that Scales was given preferential treatment,
such favored treatment was not based on union considerations.
Journeyman Edgar Griffin (applied December 16) was hired
December 19. (R. Exh. 29.) Sink credibly testified that Griffin
was a former Salem employee with a good work record. (Tr.
9:1391.) Nonunion journeyman Rodney Haynes (applied Oc-
tober 31) and Joey S. Hazelwood (applied December 20) both
had good work records at their previous employers, but Salem
did not hire either one because Salem “did not need a journey-
man.” (R. Exh. 36 at 2–3.) When Griffin was hired, there is no
evidence that Salem called Rodney Haynes and asked whether
he was still interested in coming to work for Salem. I need not
reach Salem’s note (R. Exh. 33 at 20) that Douglas Summers
had an unstable work history.
As the evidence fails to show, prima facie, unlawful dis-
crimination against him, I shall dismiss complaint paragraph 15
as to Douglas Summers.
f. May 1995—Kim A. Farley
(1) Facts
Kim A. Farley submitted three applications. His first appli-
cation (GC Exh. 13), dated February 22, was in the stack of
photocopies (original hand entries) tendered by Business Rep-
resentative Maurice on February 23, 1994. (Tr. 1:64–66, 77.)
His second (GC Exh. 93), dated September 17 was among the
batched photocopies which Allan T. Samuels delivered on Sep-
tember 30, 1994. (Tr. 6:911–914.) As Farley did not person-
ally appear at Salem’s office respecting those first two applica-
tions, they were eliminated by Salem’s personal appearance
rule.
Finally, as Salem acknowledges (Tr. 9:1407; 10:1553), on
May 8, 1995, Farley applied in person (Tr. 5:767–768) and
completed a Salem application (R. Exh. 37) which he gave to
the receptionist (Tr. 5:768). As I noted earlier concerning Gen-
eral Superintendent Manuel’s business card (GC Exh. 94), the
receptionist gave Farley one of Manuel’s cards. (Tr. 5:768–
772.) At 4 p.m. Farley called and spoke to Manuel. When
Farley asked about his application, Manuel said he had it right
there, but he had to check his crews to see how he stood and
then he would get back to Farley. Manuel verified Farley’s
telephone number, and Farley, who said someone was always
there, or the answering machine would record any message,
then gave to Manuel the Union’s telephone number, expressly
stating that it was the Union’s number. Manuel said he was
writing it down and would be in touch. However, Farley credi-
bly testified (Tr. 5:771), he never heard back from Salem.
Admitting to a telephone call from Farley, and that Farley
had given him a telephone number which Manuel learned, sup-
posedly much later, was the Union’s, Manuel asserts that Farley
called to ask whether there were any openings, and to announce
that he was available for work. Salem had no openings at the
time, Manuel told Farley, but Farley was “welcome to come by
and put in an application.” (Tr. 10:1596–1597.)
Although crediting Farley’s version, I also credit some of
Manuel’s account, in the sense that Farley asked whether there
were any openings, and also said he was available to work, and
that Manuel said there were no openings. I do not credit
Manuel’s assertion that he invited Farley to submit an applica-
tion, and that he did not learn until much later that the (addi-
tional) number which Farley gave him was the Union’s num-
ber. Turn now to the staffing figures, keeping in mind that
Farley’s May 8 application was good through July 7, 1995,
under Salem’s 60-day rule.
During Farley’s 60 days, Salem hired five journeymen (R.
Exh. 38), and did not hire five qualified, nonunion applicants12
because there were no vacancies for journeymen (R. Exh. 39).
The five hired were Ronny F. Hash (applied April 27), hired
May 15; Richard Powers (applied May 14), hired May 16:
Stephen E. Necessary (applied May 17), hired May 22; Richard
K. Fennell (applied March 7), hired June 13;13 and Thomas A.
Martin (applied June 26), hired June 30, 1995.
The five journeymen not hired were James R. Patterson (ap-
plied May 12), Joe E. Lilly (applied May 23), Stephen A. Ran-
dall (applied June 12), Gary W. Wyse (applied June 15), and
Jesse D. Kennedy (applied June 16).
Ronny Hash, Sink credibly testified (Tr. 9:1396, 1399–1400,
1404–1405), was hired May 15 for the position of residential
specialist rather than as a general journeyman. Nothing indi-
cates that Salem should have considered Farley for this posi-
tion.
A different story is presented by the hiring of Richard Pow-
ers (May 16), Stephen E. Necessary (May 22), and especially
Richard K. Fennell (applied March 7, hired June 13). Recall
that on May 8 Farley telephoned General Superintendent
Manuel to discuss his application. Recall further that, as in
Fennell’s case, such interest is seen as a positive sign. Sink
rates Powers, Necessary, and former Salem employee Fennell
as well qualified. Farley’s application (R. Exh. 37) openly
shows affiliation with the Union, and he gave Manuel the Un-
ion’s telephone number, expressly telling Manuel that it was
the Union’s. Manuel said he would call Farley, but failed to do
so. In these circumstances, it appears that Salem was obligated
to consider Farley’s application (or risk a finding of prima facie
unlawfulness for failing to consider).
Salem did consider Farley’s application. Nothing required
Manuel to call Farley and give him the bad news. And, with

12 Their applications, as Sink recalls (Tr. 9:1412), contained no indi-
cation of union affiliation or support.
13 Earlier I discussed Salem’s beyond 60 days’ hiring of Fennell as a
possible error in Salem’s application of its policies.
SALEM ELECTRIC CO. 1593
lawsuits unlimited by anything, unless the news can be good,
any response other than a terse written “thank you for apply-
ing” risks litigation. The bad news was this, as described at
trial by Sink. First, Farley was unacceptable because of his
“unstable” work history—four jobs in the last 1-1/2 years.
Recall that Sink defines an “unstable’ work history as one
where the applicant has worked for three or four employers in
the last year or two. (Tr. 9:1280, 1352, 1357; 10:1466.) Thus
(Tr. 9:1407, Sink):

Well, to me that’s an unstable work history. That guy to me
jumps around a lot.14 I mean within a year—a little over a
year, a year and a half he worked for four companies, two of
which he only worked for one month. That’s not the kind of
people we put to work.

Second, Farley’s pay at each of his last four employers was
$18 per hour. (R. Exh. 37 at 2; Tr. 9:1407.) As Sink testified
(Tr. 9:1407):

Not only that reason [unstable work history], if you
look over to his salary desired [“Neg” on his application,
R. Exh. 37 at 1, apparently meaning negotiable], he came
from a place making $18.00. As a matter of fact his last
four employments were $18.00 an hour. In May 1995 our
journeyman’s pay was $12 an hour. As I stated earlier [Tr.
9:1283, 1352], we don’t hire those kind of people.
If we tried to put him to work at $6.00 an hour less
than what he has been making, he’s not going to be a
happy, productive worker. [Tr. 9:1283, 1292, 1352.] I
know that. I mean it just won’t work out. So those are the
reasons that I didn’t hire him versus the reasons that I
hired these guys.

Attacking Salem’s “unstable” ground as a sham, the General
Counsel cites (Br. 81–82) Salem’s hiring of Edward Shoemaker
(February 3, 1995), Ronald D. Sutphin (July 7, 1995), John
Reece Jr. (June 2, 1994), and Milton Garwood Jr. (October 13,
1994).
Earlier, under the topic of Salem’s 60-day rule, I discussed
Garwood’s hiring and that he admittedly (Tr. 10:1508–1509,
1513, Sink; R. Exh. 35 at 4) had a poor work record and an
“unstable” work history. Nevertheless, Salem hired Garwood,
a former Salem employee (Tr. 10:1513; R. Exh. 32 at 7), as a
“top helper” apprentice. (Tr. 10:1511, 1549; R. Exh. 32 at 7;
GC Exh. 133.) Hardpressed to explain Garwood’s hiring, Sink
simply “assumes” that Garwood, by his persistence in checking
on his application, including a visit on October 11 (R. Exh. 32
at 11), walked in at the right time. (Tr. 10:1511–1513.)
In response to the General Counsel’s attack, Salem (Reply at
7) observes that Garwood was a former Salem employee. That
apparently is true, but it did not keep Salem from rejecting his
undated (March 1994 per R. Exh. 35 at 4) application (GC Exh.
132) on the grounds, (1) a “poor work record [apparently when
a former Salem employee], (2) two gaps in his employment
history since January 1991, and (3) an “unstable work history”
of four stated employers since January 1991. (Tr. 10:1508–
1509; R. Exh. 35 at 4.) We are left with Sink’s inference from
the data that Garwood was hired because Salem needed an
apprentice at the moment Garwood walked in, or at least within
a few hours of his visit. As implied by my earlier discussion,

14 As Sink testified earlier (Tr. 9:1283): “A guy that jumps around a
lot, we don’t hire those kind of people.”
with many more Garwood examples, Salem can kiss goodbye
to its hiring rules.
John Reece Jr. (also prominent in a separate complaint alle-
gation about a strike, as I discuss later) applied (GC Exh. 111)
on June 1, 1994, with former employee Jeffrey A. Wyatt. (Tr.
6:1000–1001.) This was either the day after (R. Exh. 32 at 3),
or the same day (R. Exh. 32 at 3; Tr. 9:1281–1282; 10:1493),
Weyerhauser had called Salem to send two apprentice electri-
cians. At the “right place at the right time,” Sink testified (Tr.
9:1281–1282; 10:1491, 1547), Reece and Wyatt were hired as
top helpers and, after their drug test, sent the very next day to
Salem’s Weyerhauser job. (Tr. 6:957, 970, 1004; 9:1281–
1282; R. Exh. 28 at 2; R. Exh. 32 at 3.)
Manuel testified that Salem’s superintendent at Weyerhauser
had called him that morning to report that he needed two help-
ers immediately. That same afternoon Wyatt and Reece came
in and applied. Manuel first interviewed former Salem em-
ployee Wyatt, and hired him as a top helper apprentice. Wyatt
said that his friend (Reece) needed a job bad, that (as Wyatt
confirms, Tr. 6:972) they rode together because Reece did not
have a driver’s license. (Tr. 10:1578.) Manuel interviewed
Reece and, as Wyatt and Reece rode together and because
Manuel felt sorry that Reece was unemployed, Manuel also
hired Reece as a top helper. (Tr. 10:1578; R. Exh. 28 at 2; R.
Exh. 32 at 3.)
All this is background to the observation that Reece’s appli-
cation (GC Exh. 111 at 2) reflects that he had worked for four
employers during the previous 18 to 19 months. When ques-
tioned about this on cross-examination, Sink (Tr. 10:1491)
agreed that it showed “job hopping,” but “Mr. Reece was in the
right place at the right time. I believe I testified [Tr. 9:1281] to
that yesterday.” Although neither party specifically asked
Manuel about Reece’s “job hopping,” Manuel testified that he
“walked through the application” with Reece. (Tr. 10:1579.) I
find that Manuel decided that the “job hopping,” at least as to
Reece, would have to yield to Salem’s need to send two helpers
to the Weyerhauser job. Manuel was not asked whether he
considered calling someone else from applications on file in his
desk. At the time, Wyatt (Tr. 6:951) was not a member of the
Union, and there is no evidence that Reece was. Maurice testi-
fied (Tr. 1:149) that the two joined the Union before October 4,
1994,—the date Wyatt and Reece began an alleged economic
strike against Salem.
Michael E. Shoemaker applied as a “walk in” (GC Exh. 125;
10:1469, Sink) on February 2, 1995. He was seeking, per his
application, an electrician’s position (“Elt” on his application,
GC Exh. 125) at $12 per hour. Shoemaker was hired and put to
work the very next day, February 3, as an apprentice at $11.25
per hour. (GC Exh. 125; R. Exh. 30 at 1; 10:1545, Sink.)
Shoemaker’s list of employers gives names, but no addresses,
and dates for only the last three—three employers since July
1994 (about 6 months). When he applied at Salem, Shoemaker
was in temporary layoff status from his then, or last, employer.
(GC Exh. 125 at 2.) Sink concedes that he would not consider
Shoemaker’s application to be “well completed” for Salem’s
purposes. (Tr. 10:1470.) Nevertheless, Salem hired Shoe-
maker and put him to work immediately after a drug screening.
(Tr. 10:1544–1545.) Although Sink was not specifically asked,
Shoemaker’s three employers in the span of some 6 months
clearly meets Sink’s own definition of “unstable.” I so find.
Ronald D. Sutphin applied for a $10-per-hour top helper’s
position on June 26, 1995 (GC Exh. 126), and on July 7 he was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1594
hired as such for $10.20 per hour. (GC Exh. 126; R. Exh. 30 at
4; 10:1474.) Although Sutphin lists his address as Austinville,
Virginia (GC Exh. 126), and Salem prefers to hire from the
local area (Tr. 7:1182, 1190; 9:1228; 10:1472, 1537), which
Sink defines (Tr. 10:1537) as being within a 25-mile radius of
Winston-Salem, and even though Sink does not know where
Austinville is, but assumes it is not local to Winston-Salem (Tr.
10:1472),15 and does not know any of the references given by
Sutphin (Tr. 10:1474), and notwithstanding that Sutphin’s list
of previous employers shows huge gaps in employment (ac-
counting for only 12 months out of the last 4 years 3 months:
(GC Exh. 126 at 2; 10:1474), Salem still hired Sutphin.
As for hiring Sutphin, Sink cited no special need, and the 11
days between his application and hire dates demonstrates that
Sutphin did not simply walk in on the very day Salem needed
to hire a top helper. On redirect examination, Sink testified
that, as best he recalls, Sutphin had worked for Salem about the
mid-1980s. (Tr. 10:1545–1546.) [That bit of testimony would
have been a lot more impressive coming during the direct ex-
amination, where it should have been adduced.]
Turn now to the ground of wage disparity which Sink listed
as the second reason Salem did not hire Kim Farley. Recall
that the disparity, as to Farley, was $6 per hour ($18 with all
four previous employers compared to Salem’s $12 journeyman
rate). “As I stated earlier [Tr. 9:1283, 1352], we don’t hire
those kind of people. If we tried to put him to work at $6.00 an
hour less than what he has been making, he’s not going to be a
happy, productive worker. I know that. I mean it just won’t
work out.” (Tr. 9:1407–1408, Sink.)
Oh, but yes Salem does hire them, the General Counsel ar-
gues (Br. at 84), citing the hires of John Reece Jr., Stephen
Necessary, and Evan VanHorn—none of whom listed any un-
ion affiliation on his application. Reece, who applied on June
1, 1994, was hired as an apprentice either that afternoon or the
next morning when he began work. (GC Exh. 111; R. Exh. 28
at 2; R. Exh. 32 at 3.) Reece did not specify a desired wage
rate on his application, although he did state that he was apply-
ing for the position of “electrician.”
As noted earlier, Sink testified that the requested position
and desired salary do not govern Salem’s evaluation. Instead,
Salem analyzes the applicant’s pay history and fixes the hire
classification and pay rate based on Salem’s own analysis.
Thus, even though applicants may request a journeyman posi-
tion and salary, when their work and pay history disclose that,
instead, they have been apprentices, Salem classifies them as
such and pays them accordingly. (Tr. 9:1292, 1342, 1348;
10:1482–1485, 1547–1548.) Recall Sink’s testimony that,
during this part of 1994, Salem paid its journeymen $11.45 per
hour and top helpers $10.30. (Tr. 7:1051–1052; 9:1360;
10:1549.) [Salem’s summary indicates that such rates prevailed
to the end of 1994. R. Exh. 28. The summary for employees
hired in 1995 indicates that Salem increased the (general) jour-
neyman pay rate to $12, with top helpers hired at $11.25 to
$11.50 and even, for one person hired on August 30, $11.75.
R. Exh. 30.]
Reece’s previous pay rates, as shown on his June 1, 1994 ap-
plication (GC Exh. 111 at 2) beginning with his most recent of
four employers, were $11.25, $12.50, $8.50, and $13.75, for an
average of $11.50—almost exactly Salem’s pay rate for its

15 An atlas shows Austinville, Virginia to be about 70 miles north-
west of Winston-Salem, just west of IH 77.
journeymen. However, as I have discussed, Manuel hired
Reece and former Salem employee Wyatt as top helpers at
$10.30 for the Weyerhauser project where Salem needed two
apprentices (a classification which includes top helper, Tr.
7:1046; 10:1549, Sink). That Manuel possibly shortchanged
Reece appears more related to Manuel’s desire to fit Reece into
the apprentice mold with Wyatt so Reece could be hired with
Wyatt and both be assigned to the Weyerhauser job, and less
related to any idea of classifying a journeyman as an apprentice
so as not to open Salem up to a charge that it should have hired
one of the Union’s journeymen. In any event, the pay disparity
between what Reece had been earning ($11.25 on his last job),
and the top helper pay of $10.30, is not great. The matter is
debatable, but clearly there is not a $4 or $5 per hour differ-
ence. Reece’s situation, I find, does not undermine Salem’s
wage disparity ground.
Now consider Stephen Necessary. His last four listed em-
ployers were paying him (GC Exh. 108 at 2): $19 [possibly
$19.04; the writing is not clear], $17.50, $18, and $17. As
these jobs go back to 1978, the last one (1992 to the May 17,
1995 application date) and penultimate (1991 to 1992) should
suffice. Those two average $18.25—obviously a large dispar-
ity from his $12 journeyman rate (GC Exh. 108; R. Exh. 30 at
3) at Salem.
At his 1989–1991 employer, Carolina Instrumentation Com-
pany, or CIC, Necessary worked “at the management level” as
an estimator and shop supervisor. CIC, a “sister” or affiliated
company with Salem that at the time was in the same building
as Salem, and Necessary knew Sink and Manuel (Tr. 6:943–
944)—a fact which Sink confirms (Tr. 9:1405). In October
1994, Necessary suffered a stroke, and, after a rehabilitation
period, he needed reduced working hours from the 12-hour
workday at his employer in Reidsville, North Carolina, an
hour’s one-way commute from his home in Winston-Salem.
(Tr. 6:941.)
When he applied at Salem, Necessary had not been working.
He was without money and needed a (new) job. During his
interviews with Sink and Manuel on May 17, when he was
hired, Necessary told them of his situation and medical condi-
tion. Nevertheless, Salem hired him. Necessary was assigned
to work at Lake Forest University. (Tr. 6:938–939, 941, 944.)
One day is all that Necessary could work, however, because his
work assignment included operating a hammer drill overhead.
The work was “very stressful and very strenuous,” and Neces-
sary was off work the rest of the week. The following Monday
he told Sink that, while he did not want to do so, he would have
to resign for health reasons. Sink said that Salem already had
hired a replacement. (Tr. 6:940–942.) [If Sink “hired” a re-
placement, rather than transferring someone, then the new hire
was one of the seven first or second year apprentices hired from
May 23 through 25, or possibly the $10.80 apprentice hired on
May 25, because the next journeyman hired was Richard
Fennell, and Fennell was not put on the payroll until June 13.
R. Exh. 30 at 3, 4; R. Exh. 38.]
On his application (which does not reflect affiliation with
any union), Necessary applied for work as an electrician, esti-
mator, or program manager, and stated that he would work for
whatever rate was negotiated. Sink asserts that, feeling sorry
for Necessary because of his medical problem and no income,
and knowing of Necessary’s excellent skills, he hired Neces-
sary as a journeyman with the idea that eventually Necessary
could move into Salem’s managerial ranks. (Tr. 9:1405–1406.)
SALEM ELECTRIC CO. 1595
The General Counsel (Br. at 37) subtly suggests doubt about
any compassion by Sink in hiring Necessary in view of Neces-
sary’s assignment to operate a hammer drill overhead. At trial
the parties did not explore this matter, and did not show for
example, how long such work was to last and whether there
were any alternatives. As such work apparently is, or can be,
part of a journeyman’s job, I draw no inferences respecting that
work assignment.
[If Sink hired an apprentice to replace Necessary, that (as-
sumed) fact could lend support to Sink’s stated purpose in hir-
ing Necessary. That is, even if Salem actually needed only an
apprentice on the university job (a matter of speculation), Sink
still wanted to hire Necessary for two reasons. One reason was
Necessary’s future managerial prospects. The second was
Sink’s compassion for Necessary’s situation. With Necessary
off the job, whether temporarily or permanently, Sink simply
hired all the job really needed—a helper. I sketch this possible
explanation, with no finding, only because of Necessary’s tes-
timony that Sink said he had hired a replacement.]
I find that Necessary’s hiring is inapposite as to the type of
disparity which tends to disclose an unlawful motivation re-
specting Union adherents not hired. To show that, the evidence
should have some examples of disparity uncomplicated by
circumstances suggesting, as here, Good Samaritan motiva-
tions. Turn now to Evan VanHorn.
Evan D. VanHorn applied April 21, 1995, and was hired
April 24 as a journeyman at $12. (GC Exh. 119 at 2; R. Exh.
31; R. Exh. 30 at 2; Tr. 9:1285–1286, Sink.) The evidence as
to VanHorn does not support the General Counsel’s position.
Although VanHorn’s application shows, in the work history
section, that he earned $21 an hour from January 1984 to Janu-
ary 1991 working on referrals from IBEW Locals 553, Raleigh,
North Carolina, and 342 of Winston-Salem, for the last 4 years
(January 1991 to April 1995) he had been working for Pike
Electric in Mt. Airy, North Carolina for $12.25. The 4 years
with Pike Electric impressed Sink (Tr. 9:1285), and VanHorn’s
pay at Pike Electric was almost identical to Salem’s $12.
[VanHorn, who lives in North Wilkesboro, North Carolina, was
tired of too much driving time commuting to and from Pike
Electric. The distance is about the same to Winston-Salem, but
apparently the driving arrangement at Pike was, per his applica-
tion, “very unorganized.” (R. Exh. 31 at 2).]
On his application, VanHorn wrote that he stopped taking
union referrals because he “wanted to see my daughter grow
up.” The General Counsel’s suggestion that this somehow
means VanHorn had “renounced” (Br. 84) his IBEW member-
ship is without foundation in the record. Moreover, if Salem
really is opposed to anyone having the “taint” of union associa-
tion, it would seem that Salem would never have hired
VanHorn. [“Salem’s success in keeping its work force un-
tainted by the presence of union affiliated workers is unparal-
leled.” (GC Br. 84).]
Having opened the subject of union-affiliated hires by Sa-
lem, I further note that VanHorn is not the only such person
hired. In a scene prefiguring Maurice’s action of February 23,
1994, when union member Timothy W. King applied on June 5,
1992 (R. Exh. 2), he attached Business Manager Gary Mau-
rice’s business card to his application. (Tr. 3:435, King.)
Manuel not only called him back for an interview that same day
(a Friday), but hired him (with Maurice’s business card right
there with the application) and put him to work on Monday,
June 8, 1992. (R. Exh. 2:3:436–437, King; Tr. 9:1284, Sink;
Tr. 10:1604, Manuel.) King left about a month later, of his
own accord, to take a job outside the state. (Tr. 3:431.) One of
the applications which Maurice delivered on February 23,
1994, was that (GC Exh. 19) of King (Tr. 1:65; 3:431). Unlike
in 1992 when he went to Salem’s office in person, however, in
1994 King did not go to Salem’s office. (Tr. 3:433.)
Although the General Counsel considers King’s 1992 hiring
as “irrelevant” because of the lapse of some 2 years (Br. at 21
fn. 20 and 56 fn. 65), I see it as quite relevant. Indeed, if Salem
has such “unparalleled” success at keeping its work force “un-
tainted by the presence of union affiliated workers,” why would
Salem have hired a man who so boldly—even confrontation-
ally—attached Maurice’s business card to his application? If a
leopard in 1994, did Salem have no spots in 1992?
Salem also hired Tom Nicholson. In a conversation with
Nicholson after Salem had hired him, Sink learned that Nichol-
son had been affiliated with a union in New York. Nicholson
has since been promoted, and he now is one of Salem’s job
superintendents. (Tr. 9:1286–1288, Sink.) Nicholson testified
that in earlier years he had been a member of the “electrical
trade” in Jew York and New Jersey. (Tr. 10:1643.) He came to
work for Salem in 1994 as a foreman, and he now is a job su-
perintendent. (Tr. 10:1644–1646.) Nicholson’s case of a pro-
motion to job superintendent only remotely bears on our case.
However, the fact of Nicholson’s promotion, in light of his
prior association with a union, at least shows that Salem is not
spooked by the thought that one of its superintendents has had a
past association with a union.
(2) Discussion
The first question, and maybe the last, is whether, from all
these facts, a finding should be made that the evidence shows,
prima facie, an unlawful refusal to hire Kim A. Farley. Earlier
I found that Salem did consider Farley’s May 8, 1995 applica-
tion.
As I have summarized, the three journeyman hired by Salem
whom I find to be relevant, for comparison purposes, are Rich-
ard Powers (applied May 14, 1995, hired May 16), Richard K.
Fennell (applied March 7, 1995, hired June 13), and Thomas A.
Martin (applied June 26, 1995, hired June 30). I exclude the
May 15, 1995 hiring of Ronny Hash (as a residential specialist)
(nothing indicates that Farley would have been in competition
for residential specialist), and Stephen Necessary (hired May
22, 1995) (apparently for considerations other than the needs of
the specific job) as too marginal in relevance.
What evidence there is as to Powers, Fennell, and Martin
was supplied by Sink. From Sink we learn (Tr. 9:1405) that
Powers was considered a “known commodity” (a factor favored
by Salem; Tr. 9:1281; 10:1462, Sink) because he previously
had worked for Salem on “loan” from Pinnacle Electric and had
made a good impression while at Salem. Moreover, Powers’
work record at his previous employers was good, and he was
recommended by a Salem employee. (Tr. 9:1405; R. Exh. 38.)
No copy of Powers’ application is in evidence. The wage rate
he requested was, Sink testified (Tr. 9:1407), in line with that
of Salem. Nothing establishes, prima facie, that Salem should
have hired Farley rather than Richard Powers.
Then we have the June 13, 1995 hiring of Richard K.
Fennell—even though he had applied way back on March 7.
Although he had applied 98 days’ earlier, Salem considered
him because of his checking back several times, including in
person and by telephone, with the latest being “in June.” (Tr.
9:1279, 1400, 1404, Sink.) Fennell had the benefit of 6 years’
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1596
service with Salem, and Salem favors hiring former Salem
employees with good work records. (Tr. 7:1193; 9:1279, 1400,
1404.) Even if we were to say, as to the checking back, that
Farley is on a par with Fennell because Farley called Manuel,
who said he would call Farley back (but did not), we still are
faced with the preference which Salem grants former Salem
employees. Unlike some others who had been former Salem
employees for a few weeks or months, Fennell had been with
Salem for 6 years.
Recall that Sink and Manuel begin their interview search by
looking at the most recently filed applications. That apparently
does not help Farley here because Fennell’s latest check back
had been “in June,” Sink testified. (Tr. 9:1279.) Thus, the
Government is unable to point to anything which gets Farley’s
case over the prima facie hump as to the vacancy filled by
Richard Fennell.
Thomas A. Martin, hired June 30, 1995, filled the last jour-
neyman vacancy that arose during Farley’s 60 days. [The next
journeyman was not hired until August 21, 1995. R. Exh. 30 at
4.] Former Salem employee Martin, Sink testified (Tr. 9:1406–
1407), had a good record at Salem, a stable work history else-
where, and was asking for a rate in line with that paid by Sa-
lem. (Tr. 9:1395–1396, 1406–1407.) Nothing indicates that
Salem shoud have disregarded its preference for former Salem
employees in order to hire Kim Farley rather than Thomas A.
Martin.
In light of the foregoing, I conclude that the Government has
failed to establish, prima facie, that a moving cause for Salem’s
refusal to hire Kim A. Farley, within 60 days of his May 8,
1995 application, was Farley’s identification as an active mem-
ber of the Union. Accordingly, respecting May 8, 1995, I shall
dismiss complaint paragraph 15 as to Kim A. Farley.
3. Those who did not apply in person
Having dismissed complaint 15 as to all those who applied in
person, and concluding that no prima facie violation has been
shown respecting their cases, I now address those who did not
apply in person. Earlier I found that Salem’s in-person re-
quirement remained valid. Because of that valid requirement, it
follows that complaint paragraph 15 must be dismissed as to all
those who did not apply in person. As that means the balance
of the applicants named in the paragraph, I now shall dismiss
complaint paragraph 15 in its entirety.
F. Strikers Jeffrey Wyatt and John Reece Jr.
1. Introduction
As amended, complaint paragraph 21 alleges that, since
about May 10, 1995, Salem “has failed and refused to reinstate
Jeffrey Wyatt and John Reece, Jr. to their former or substan-
tially equivalent positions.” Salem admits they have not been
reinstated, and advances two affirmative defenses, the first
being that they would not have been reinstated in any event,
and the second being the bar of limitations. This allegation
concerns an economic strike by Wyatt and Reece beginning
October 4, 1994, and ending December 21, 1994 (the dates
were amended at Tr. 7:1042–1043), with the Union’s letter
unconditionally offering their return to work. Salem replied
that they had been permanently replaced. Despite Salem’s
reply, and a contemporary understanding by Wyatt and Reece,
and by inference Business Manager Maurice, that Salem had
been, and was, hiring in late 1994 and early 1995 (which it
was), the charge (Case 11–CA–16696) was not filed and served
until October 27, 1995. During NLRB Region 11’s investiga-
tion of that charge, Maurice wrote the Region that the Union’s
first knowledge [actual knowledge, presumably] of any hiring
by Salem was not until about May 10, 1995, when Salem hired
Sean Gallagher. Maurice did not testify to this effect (his letter
was not offered or received for the truth), and Gallagher did not
testify. On brief Salem, in addition to arguing the merits, relies
on its limitations defense. However, the Government does not
address the limitations question, apparently conceding the is-
sue, and the allegation.
2. Facts
As earlier discussed, on June 1, 1994, Jeffrey A. Wyatt (GC
Exh. 109) and John Reece Jr. (GC Exh. 111) applied at Salem’s
office for work as electricians. Although they were not then
members of the Union, they apparently knew Business Man-
ager Maurice, for it was Maurice who suggested (Tr. 1:104–
105) that they apply in person at Salem. They did, were hired,
passed their drug screens, and began work June 2, 1994, as top
helpers at $10.30 per hour. (R. Exh. 28 at 2; R. Exh. 32 at 3;
GC Exh. 109, 111.)
On his application (GC Exh. 109), Wyatt wrote that his de-
sired pay rate was negotiable (“Neg.”). In the list of former
employers, Wyatt wrote that he had worked for Salem twice,
the first time from May 1986 to August 1987, and again from
June 1988 to August 1988. At Salem Wyatt had started at
$6.30 and worked up to a top helper at the then rate of $8.90
before being laid off. For his last 2 years, June 1992 to May
1994, Wyatt recorded that he had worked for Lilly Electric at
$8.35 as an “electrician” before being laid off. Recall that in
May–June 1994 Salem’s journeyman rate was $11.45 (Tr.
7:1051–1052; 9:1360; 10:1549, Sink), and that, as I summa-
rized under the Kim Farley allegation, in fixing a hiring rate
Salem is guided by the applicant’s recent pay history, not his
desired rate. In this connection, Sink testified that nothing on
Wyatt’s application indicated journeyman status, and that his
pay history demonstrated the apprentice range. (Tr. 10:1548–
1549.)
According to Wyatt, Manuel told him that after 90 days he
would be evaluated to determine whether he should be pro-
moted to mechanic (journeyman) at $11.45. (Tr. 6:958.) Reece
testified that Manuel told him essentially the same. (Tr.
6:1004.) On his first day at work, on the Weyerhauser job,
Randall King, the job foreman, assertedly told Wyatt that
Manuel had said he was sending him two mechanics to do cer-
tain work. Wyatt told King that Manuel was a liar for he had
hired Wyatt and Reece as helpers. (Tr. 6:991.) Both then and
later Wyatt complained to job foremen that he was doing the
work of a mechanic but being paid a helper’s rate.
Some 4 to 5 weeks into their employment with Salem, Wyatt
and Reece were transferred to the North Carolina Baptist Hos-
pital project in Winston-Salem. (Tr. 6:958, 1004.) Robert
Satterfield was the job superintendent there. (Tr. 6:958, 1005;
10:1652–1653.) The last 2 months or so that Wyatt and Reece
were on that job, Tom Nicholson apparently was the general
foreman on the job. (Tr. 10:1645–1646.)
Almost from the beginning of their employment Wyatt and
Reece complained to their job foremen that they were doing
mechanic’s work for helper’s pay. About late August, while
they were on the hospital job, they began complaining to
Robert Satterfield, the job superintendent, saying they should
be paid more, and asking him to speak to General Superinten-
dent Manuel. (Tr. 6:964, 970–971, 1006.) Satterfield said he
would and would get back to them. Satterfield never did.
SALEM ELECTRIC CO. 1597
About 4 p.m. (Tr. 6:1009; 10:1580) on Tuesday, October 4,
1994, Wyatt (Tr. 6:962) and Reece (Tr. 6:1007–1008) testified,
they went to see General Superintendent Manuel. [Reece testi-
fied that they first stopped to see Satterfield, and when he gave
them the same answer as before, they told him they would go
speak to Manuel themselves.] There is no dispute that the two
visited with Manuel in the latter’s office that late afternoon. In
fact, Wyatt secretly tape recorded the conversation, and a tran-
script (GC Exh. 110) of the 20- to 30-minute conversation is in
evidence. There is a dispute concerning whether Reece said
something which is not on the transcript, and a dispute whether
Wyatt and Reece worked on October 4 (with Salem arguing
that they did not). The relevance of the first dispute apparently
bears on the concerted nature of the strike. (This is a moot
point. Salem does not argue that the strike was not concerted.)
The relevance of the second disputed item bears on the question
whether Satterfield had decided to fire Wyatt and Reece be-
cause of attendance problems when they missed work, again,
that Monday, October 3.
I devote little time to the attendance/termination matter be-
cause, even though I credit Salem’s evidence16 that Wyatt and
Reece both missed work on Friday September 30 and Tuesday,
October 4, and Satterfield’s testimony that he made the deci-
sion that Tuesday morning to terminate the two for absenteeism
(Tr. 10:1658–1663), the decision was never finalized by Salem.
Satterfield did not fill out the paperwork (R. Exhs. 44 and 46)
until Wednesday, October 5, and the paperwork consists of
nothing but written warnings to Wyatt (R. Exh. 46) and Reece
(R. Exh. 44) for absenteeism. Granted, under Salem’s discipli-
nary policy (GC Exh. 140), an employee “may” be terminated
for a third offense (GC Exh. 140), and even though it was the
third offense here, Satterfield only recommends (Tr. 10:1688).
Here, Sink had not signed his required approval (Tr. 10:1688)
of the warnings, apparently because Wyatt and Reece already
were gone. (Tr. 10:1690.) Thus, no action was taken by Salem
on the third offense warnings issued by Satterfield. As the
“may” terminate is discretionary, presumably Sink, were he so
inclined, could have temporarily suspended Wyatt and Reece,
he could have reassigned them to some other project, or he
could have fired them. He can make that decision if and when
Salem is ordered to reinstate them. Turn now to the late after-
noon meeting with General Superintendent Manuel on October
4, 1994.
The 13-page transcript of the late afternoon conversation with
Manuel appears to be relevant for only two reasons. First, it
shows that the nature of the rambling conversation related pri-
marily to wage rates and job duties (or, more accurately, job
classifications) as complained about by Wyatt and Reece. (Wyatt
did most of the talking of the two, and it is implied that he is
speaking for both.) Indeed, Wyatt not only spoke of a pay raise,
but said that back wages should be paid for the last 3 months of
doing mechanic’s work. (GC Exh. 110 at 12.) [At one point,
Wyatt stated that either Manuel or Randall King was a liar con-
cerning the job classification under which Wyatt and Reece had
been sent to the Weyerhaeuser job. (GC Exh. 110 at 7.)]
Second, the transcript bears on the concerted nature of the
strike. That is, the transcript ends with Manuel [who earlier, at
pages 1 and 12, had promised to investigate, do an evaluation,
and render an answer in 2 days] responding, to the claim for

16 Including the payroll records (R. Exh. 40 at 2; R. Exh. 41 at 7) as
explained by Sink (Tr. 9:1417, 1422).
back wages, that he did not hire Wyatt [and Reece] as a me-
chanic, so “you ain’t going to see no back wages.” “Okay,”
Wyatt states, “I’m going on strike.” Manuel replies, with the
last entry, “But I’ll, give you a call Thursday.” (GC Exh. 110
at 13.)
According to Wyatt, Reece also said he was going on strike
(Tr. 6:965, 967), but because Wyatt had turned and was walk-
ing out as Reece spoke and as Reece has a soft voice, the re-
corder did not pick up what Reece said (Tr. 6:979–983). Reece
asserts that he did add, after Wyatt, that he also was going on
strike, but that Wyatt had already stepped out the door to
Manuel’s office. (Tr. 6:1010–1011.) Reece made his strike
statement just once. (Tr. 6:1023–1024, 1026–1027, 1032.)
Manuel recalls that Wyatt said, “We’re on strike.” (Tr.
10:1581, 1585.) As the transcript shows, Wyatt did not say
“We.” I find, however, that Manuel heard both Wyatt and
Reece say that he was going on strike, and that Manuel, quite
naturally, converted both statements into a plural. In short, the
strike was concerted—and would be even without the “We,”
because of the nature of the meeting.
Some 2 to 3 days before the October 4 meeting with Manuel,
Wyatt, and Reece, thinking about quitting their employment at
Salem over the pay and work problems, had gone to Maurice
and joined the Union. Maurice suggested that they also had the
option of going on an economic strike. (Tr. 1:149; 2:235–238;
6:973–974, 1021–1022.) After Wyatt and Reece struck, Mau-
rice found them work in West Virginia. After a couple of
months, Wyatt and Reece were ready to return to Winston-
Salem, so Maurice sent a December 21, 1994 letter (GC Exh.
27) notifying Salem that Wyatt and Reece were ending their
economic strike and unconditionally offering them back to
work. Responding with its letter (GC Exh. 28) of December
23, Salem (by President Myers) advised that Wyatt and Reece
had been “permanently replaced and their jobs are no longer
open.”
No offers of reinstatement have been made even though
many other employees have been hired. Sink testified that
Wyatt and Reece were replaced by new hires in October 1994.
(Tr. 9:1426–1428; 10:1524; R. Exh. 42.) The General Counsel
contends that, even if Wyatt and Reece were replaced, Salem
was required to offer them reinstatement when vacancies arose.
(Br. 92.)
In December, before Maurice’s letter of December 21 to Sa-
lem, Wyatt (Tr. 6:967–968, 984) and Reece visited the Union at
Winston-Salem. Wyatt admits that he had heard that Salem had
hired employees while he had been on strike and knew that
Salem was hiring even that December. Wyatt learned this
“about” the time of the unconditional offer (Tr. 6:984–985), but
“after” the offer (Tr. 6:992). Reece testified similarly, extend-
ing the understanding into January 1985 that Salem was hiring.
(Tr. 6:1012–1014, 1028–1029.) As Salem’s summaries reflect,
hirings made in 1994, based on applications made after October
4, include 16 apprentices and 3 (general) journeymen, although
all were hired before the Union’s letter of December 21. (R.
Exh. 28 at 3.) Although Reece did not specify a date in Janu-
ary, several hires were made in January 1995, and included two
apprentices hired on January 3, and a third hired on January 24,
1995. (R. Exh. 30 at 1.) Presumably Maurice, who was in
charge of the campaign to find jobs for the Union’s members,
and to salt employers, including Salem, also had the same in-
formation during December 1994 and January 1995, that Salem
was, and had been, hiring.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1598
By letter (GC Exh. 29) dated October 27, 1995, Maurice as-
serted to NLRB Region 11, respecting the charge in Case 11–
CA–16696,17 that the Union’s first knowledge of any hiring by
Salem was not until about May 10, 1995, “when they hired
Sean Gallagher, and then again on May 17, 1995, when they
hired Stephen Necessary. Though the company might have, in
fact, hired prior to these dates, we do not have any knowledge
that they did.” The letter was not offered or received for the
truth of these assertions. (Tr. 1:168–169.) Although Maurice
began to give testimony on the matter (Tr. 1:167), the General
Counsel switched to the letter, and stated that Gallagher would
be called. (Tr. 1:168.) Gallagher did not testify. In the view I
take of the case, Gallagher’s failure to testify is immaterial to
the outcome.
3. Discussion
As noted earlier, Salem pleads and argues that the September
18, 1995 charge respecting the failure to reinstate Wyatt and
Reece is time-barred by 29 U.S.C. 160(b). I agree.
As Judge Steven Davis, with Board approval, wrote in Elec-
trical Workers IBEW Local 25 (SMG), 321 NLRB 498, 500
(1996) (citations omitted):

A charge must be filed and served within 6 months of the
commission of the unfair labor practice, pursuant to Section
10(b) of the Act. The 6-month statute of limitations does not
begin to run until there is either actual or constructive notice
of the alleged unfair labor practice. In other words, until the
aggrieved party knows or should know that his statutory
rights have been violated.

A person may not sleep on his statutory rights. Thus, he has
a duty to verify rumors which would cause a reasonable person
to investigate. If there were no duty to verify those rumors
which a reasonable person would investigate, then the statutory
limitations period, as Judge Davis perceptively wrote in IBEW
Local 25 (SMG), supra at 500, could be tolled indefinitely sim-
ply by the individual’s not seeking verification. Although the
evidence of the rumors was more specific in SMG than here,
both Wyatt and Reece (and, as I have found, Maurice also),
during December 1994, and extending into January 1995 for
Reece (and Maurice), had heard, and apparently believed, that
Salem was hiring. As we know from the evidence, such rumors
were true (although all the December hires came before the
Union’s letter of December 21). By no later than early January
1995, Wyatt and Reece, or Maurice on their behalf, were put on
notice that they should exercise due diligence by writing Salem
for verification of such rumors. If Salem verified the rumors,
then Wyatt, Reece, and Maurice would have known that the
limitations period was triggered. If Salem failed to answer, that
failure could also be viewed as verification. If Salem lied, then
such fraudulent concealment would toll the running of the limi-
tations period.
Finding that Wyatt, Reece, and Maurice were put on reason-
able notice by early January 1995 that, potentially, Salem was
unlawfully declining to offer Wyatt and Reece reinstatement, I
further find that they failed to exercise due diligence by waiting
for verification to be delivered by Federal Express or UPS.
Even then, in May 1995 it would not have been too late had

17 Filed (by the Union) and served September 18, 1995, the charge in
Case 11–CA–16696 is the first allegation that Salem had unlawfully
refused to reinstate strikers Wyatt and Reece since “on or about
5/10/95.” (GC Exh. 1w.)
they filed their charge promptly. Instead, Maurice delayed
another 4 months, until September 1995, before filing the
charge. I find, however, that as of early January 1995 the 6-
month limitations period began to run. As the period expired
well before the charge was filed which supports the allegation
pertaining to the reinstatement of Jeffrey A. Wyatt and John
Reece Jr., I shall dismiss complaint paragraph 21. Electrical
Workers IBEW Local 25 (SMG), supra.
G. The Joint Employer Issue
1. Introduction
On June 24, 1994, one of the last remaining unfair labor
practice allegations (complaint paragraph 16) asserts, “Respon-
dents” [the joint employer, Salem and Options] “failed to hire”
Mack Good, Patrick Dean Parsons, and Paul D. Vogler. As the
record reflects, this allegation pertains to the claimed with-
drawal by Options of offers of employment, in June 1994, to
Good, Parsons, and Vogler. Early in the trial Salem objected to
any statements by Options’ representatives as being hearsay as
to it. Recall that Salem has denied the joint employer allega-
tion set forth in complaint paragraph 10. Granting Salem a
continuing (Tr. 1:102–103) objection (usually referred to as
Salem’s “standing” objection, Tr. 5:660, 786; 6:951, 999;
7:1088–1089), I ruled that the evidence would be received, as
to Salem, subject to a ruling on the joint employer allegation
(Tr. 1:102; 3:456; 5:660).
The time has come to address the joint employer allegation,
for if Salem and Options were not a joint employer at the rele-
vant time, then Salem is not bound by any conduct of Options,
because (as the Government concedes (Tr. 9:1219) there is no
independent allegation as to Salem covering Good, Parsons,
and Vogler. Nor is Options alleged to be and independent
agent of Salem. [And if Salem and Options were found, prima
facie, to be joint employers, it would mean that the record
would have to be reopened to receive Salem’s evidence on the
issue, for my ruling eliminated the need, and opportunity, for
Salem to offer any such evidence.]
2. Facts
Early in this decision I described Salem’s business opera-
tions. As I summarized there, Salem’s policy is to hire em-
ployees on a long-term basis. As its needs require, Salem trans-
fers employees between projects, borrows employees for short
term from other contractors, and work employees overtime.
(Tr. 9:1229.) On occasion, Salem contracts with temporary
agencies to obtain employees on a temporary basis. During
June 1994, Salem contracted with Options for temporary em-
ployees because Salem had three big short-term projects: Salem
College, Wake Forest University, and Crest Tobacco.
During the relevant time, Options was a temporary employ-
ment service contractor. (Tr. 7:1103.) Gail F. Withers, who
did not testify in this case, was Options’ president. Jesse Banks
Wilson Jr. was Withers’ assistant in charge of “everything.”
(Tr. 7:1084, Wilson.) Wilson’s responsibilities included taking
applications, taking employees to the jobs, checking on the
performance of the employees, and processing the payroll. (Tr.
7:1084–1086.) Every workday, Wilson testified, he would visit
the jobsites and talk with the “supervisors” to determine how
the temporary employees were performing. (Tr. 7:1105–1106,
1118.)
Sink located Options by checking the telephone directory’s
yellow pages. After speaking with Withers, and then meeting
with her, Sink, on May 30, 1994, in his office, signed a one-
SALEM ELECTRIC CO. 1599
page contract (GC Exh. 112) which Withers had provided as a
proposal. (Tr. 7:1047, 1050–1051, 1080.) The May 30 con-
tract specified the rates to be paid for the various classes of
electricians, plus general laborer. Salem would pay Options the
rate shown going to Options. Thus, for a journeyman the rate
in the first of two columns is shown as $11.45 (apparently what
Options would pay the employee, Tr. 7:1054), but in the Op-
tions’ column it is shown as $16.60, and the latter is what Sa-
lem would pay Options (Tr. 7:1054).
Under the contract (which does not prescribe operating pro-
cedures), Salem would request employees from Options. (Tr.
7:1104, Wilson.) Independently, Options would select the em-
ployees to be sent from its own pool of employees who had
applied to and been hired by Options (and had filled out the
required papers, such as W-4 forms and work rules). Wages
and benefits due the employees were paid directly from Options
to the temporary employees—even before Salem had paid Op-
tions. (Tr. 7:1059, Sink; Tr. 7:1104–1105, Wilson.) Although
Options paid the temporary employees their wages, Salem kept
the time records and reported those figures to Options. (GC
Exh. 113; 7:1058.) Salem did not furnish any work clothes
such as steel-toed boots or hardhats, and provided no safety
training for the temporaries from Options. (Tr. 7:1059.)
Salem’s job foremen would direct the temporaries as to the
work to be done, the hours of work, and when to take breaks.
The job itself would dictate the hours to be worked. (Tr.
7:1060–1061, Sink.) As “part of the convenience of working
with temporaries,” Sink testified (Tr. 7:1060, 1064, 1066), if
Salem did not like an employee’s performance, Salem just sent
him back to Options. Between May 20 [the referrals apparently
started before the contract was finalized] and June 26, the pe-
riod when Salem used temporaries from Options, Options sup-
plied a total of 12 temporaries (most were laborers, and no
more than 9 worked at any one time) to Salem for the Salem
College job, plus one more for the job at Wake Forest Univer-
sity. (Tr. 7:1061, 1063–1064; 9:1387; GC Exh. 114 at 2.) Al-
though Salem did send two or three of the temporaries back to
Options, that could have been preceded by Salem’s job foreman
advising the temporary of some problem to see if the matter
could be resolved. That was rare, however, and normally when
a temporary proved unsatisfactory, Salem simply would tell
Options to send someone to replace the undesired temporary.
(Tr. 7:1065–1066.)
As noted earlier, when Wilson discussed work performance
with Salem’s job supervisors, if discipline was an indicated by
such habits as tardiness or absenteeism, Wilson would transfer
the employee to another job (apparently with a different em-
ployer) if one was available. (Tr. 7:1118.) On his visits to the
jobsite, Wilson would be there anywhere from 5 to 30 minutes.
(Tr. 7:1118.)
During the relevant time, Options was supplying workers (10
to 30 at any one time) to several customers, and Salem repre-
sented about 5 percent of Options’ business. (Tr. 7:1118–
1122.)
3. Discussion
The contractual arrangement and working conditions re-
flected in the evidence here are those of the American tempo-
rary-employee industry. First, an arms’-length contractual
arrangement existed here between unrelated entities. Second,
Options (the temporary service) was the employer in name,
including the fact that it paid the employee by payroll checks
issued by Options and provided the employees whatever fringe
benefits were provided. Third, Options was the employer in
fact. That is, while Salem, the operating company, assigned the
work to be done and directed the temporary employees in that
work (characteristics of any operating company using tempo-
rary employees), any discipline of the temporary employees
was handled by Options. If Salem was dissatisfied with the
performance of a temporary worker, Salem simply notified
Options to recall the worker and to send Salem a different tem-
porary employee. If Options decided to assign the replaced
employee to a different employer, or to discipline the employee
in some fashion, that was strictly up to Options.
Although Sink at one point testified that Salem would
“rarely” discipline a temporary employee, his explanation
shows that he merely was describing the situation in which a
foreman (or general foreman or job superintendent) would give
a temporary employee a type of courtesy notice that the em-
ployee was not performing in the way expected by Salem. That
is nothing more than, as a courtesy, again explaining to a tem-
porary worker what Salem wants done. Even that notice is
rarely given, and when Salem is dissatisfied, Salem simply calls
for a replacement. That is not discipline by Salem, but the
exercise of a contractual right—standard, as Sink suggested, to
the temporary worker industry. It is part of the “convenience”
of using an independent contractor to provide the necessary
workers.
Finally, Options daily monitored the work performance of
the temporary workers by the president’s assistant (Jesse Banks
Wilson Jr.) personally checking with Salem supervisors. Such
personal monitoring reinforced Options’ role as the employer in
fact.
As the facts disclose, Salem was merely the operating entity,
while Options was the employing entity of the temporary work-
ers it contractually provided to Salem. In short, Salem and
Options were not joint employers of the temporary workers
whom Options, by contract, provided to Salem. Finding no
basis to reverse my dismissal, at trial, of complaint paragraphs
10 (joint employers) and 16 (June 24, 1994, failure to hire
Mack Good, Patrick Dean Parsons, and Paul D. Vogler), I now
reaffirm those (Tr. 7:1162; 9:1220) rulings.
H. Alleged Interrogation by Salem Electric
1. Introduction
As amended, complaint paragraph 14(a) alleges that, on De-
cember 8 or 9, 1994, Salem, by General Superintendent James
Manuel, coercively interrogated its employees concerning their
union affiliations and sympathies. Salem denies. Carlton
Vaughn testified in support of the allegation.
2. Facts
Carlton Vaughn was the Government’s last case-in-chief
witness. On December 9, 1994, Vaughn testified (the date was
in the question, Tr. 7:1132), Vaughn went alone to Salem’s
office (Tr. 7:1132, 1140) where he applied, according to his
December 7, 1994 application (GC Exh. 120; R. Exh. 26), for a
position as an electrician’s helper. [As Salem’s summaries (R.
Exh. 28 at 3; R. Exh. 32 at 8) also show the application date to
be December 7, I find that to be the correct date.] At the time,
Vaughn was working for Regency Electric at $8 per hour (Tr.
7:1133, 1136, 1138–1139), as shown on his application. Also
at that time Vaughn, while not yet a member of the Union, was
engaged in the application process to become a member of the
Union. (Tr. 7:1131–1132, 1137–1138.) Vaughn omitted from
his application any reference to the Union, and omitted listing a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1600
union employer he previously had worked for in 1984–1985.
(Tr. 7:1135.)
After waiting a few minutes, following his submission of his
completed application to the receptionist, Vaughn was called
into General Superintendent Manuel’s office for an interview.
As Manuel went over the application, Vaughn testified, Manuel
asked if Regency “was a union outfit.” “And I said no, that I
didn’t have anything to do with union activities.” (Tr. 7:1132–
1133.) Vaughn testified (Tr. 7:1133) that Manuel then hired
him as a “fourth year” (apprentice) at $8.60 per hour to begin
the next day. [Actually, while Vaughn was hired as an appren-
tice at $8.60, as Salem’s summaries show, his hire, or start, date
was December 13, 1994, a Tuesday. R. Exh. 28 at 3; R. Exh.
32 at 8.] After working 2 weeks for Salem, Vaughn left for
substantially higher pay at another contractor. (Tr. 7:1133–
1134, 1144.)
Although Manuel does not recall the Vaughn interview (Tr.
10:1576), he denies asking, in any interview with a job appli-
cant, whether the applicant’s current employer was unionized.
Manuel asserts that he does not ask such a question because,
based on instructions from President Myers, Vice President
Sink, and Salem’s attorney, there are legal reasons he does not
ask certain questions. (Tr. 10:1577.)
3. Discussion
Crediting Vaughn’s specific memory and detailed descrip-
tion over Manuel’s unpersuasive general denial, I find that, on
December 7, 1994, General Superintendent Manuel—before
hiring job applicant Carlton Vaughn—asked Vaughn whether
Vaughn’s current employer was “a union outfit.” Citing no
cases, the General Counsel contends that Vaughn’s question
was unlawful. Even if Vaughn is credited, Salem argues, there
is no violation (citing an inapposite case dealing with crossing a
picket line in the event of a strike and the reason for the ques-
tion was explained).
Here, Manuel gave no explanation for his question. Pre-
sumably Manuel knew of Regency Electric and would know
whether it was unionized. Thus, idle curiosity or a need for
information does not appear to be the reason. The reason ap-
pears to have been a rather direct effort to elicit some comment
from job applicant Vaughn that would reveal his union sympa-
thies. I so find. In the context of a job interview, questions
designed to elicit an applicant’s position respecting unions are
deemed inherently coercive. See Aloha Temporary Service,
318 NLRB 972, 974–975 (1995). That Vaughn felt it advisable
to say (falsely) that he had nothing to do with union activities
merely underscores the inherently coercive nature of such a
question in the context of a job interview. Accordingly, I find
that, as alleged, Salem violated Section 8(a)(1) of the Act by
coercively interrogating Carlton Vaughn on December 7, 1994.
Salem also argues (Br. 57) that, even if a violation is found,
no remedial order should issue for this isolated incident. A
single instance of unlawful interrogation can be viewed as iso-
lated, de minimis, and not rising to the level of requiring an
exercise of the Board’s remedial authority. See Century Wine
& Spirits, 317 NLRB 1139 (1995).
Having dismissed all other allegations against Salem, I find
that the single, unlawful interrogation does not warrant a reme-
dial order. There being no violations by Salem which warrant a
remedial order, I, therefore, shall dismiss the complaint in its
entirety as to Salem Electric. Century Wine & Spririts, supra.
I. The Alleged Conduct of Options
1. Introduction
Two allegations are to be considered. First, complaint para-
graph 13 alleges that, since about January 1994, “Respondents,
through the actions of its agents and supervisors, at Respondent
Options’ Winston-Salem, North Carolina facility, has interfered
with, restrained, and coerced its employees” when Options’
president, Gail Withers, interrogated employees concerning
their union affiliation and sympathies on May 31 and June 24,
1994, and when Withers’ assistant, Jesse Banks Wilson Jr., did
the same on June 9, 1994. In their answers, both Options and
Salem deny the allegations.
Second, paragraph 16 alleges that, on June 24, 1994, “Re-
spondents failed and refused to hire” Mack Good, Patrick Dean
Parsons, and Paul David Vogler (because, paragraph 23 alleges,
of their support of the Union).
As I have discussed, at trial, and reaffirmed in this decision, I
dismissed complaint paragraphs 10 (joint employer allegation)
and, as to Salem, paragraph 16 (June 24 refusal to hire Good,
Parsons, and Vogler). Apparently through inadvertence, Salem
never moved to dismiss, as to it, complaint paragraph 13 (the
interrogation allegation). The complaint does not name Op-
tions as an agent of Salem, and the Government concedes (Tr.
9:1219) that there is no independent allegation as to Salem
covering the June 24 refusal to hire Good, Parsons, and Vogler.
Additionally, all through the trial the basis of my rulings over-
ruling Salem’s hearsay objections was that everything was tied
to the joint employer allegation—if that were dismissed, Salem
had no liability regarding the other. At no point did the General
Counsel argue that the (joint) agency reference in complaint
paragraph 13 would apply to Salem even if the joint employer
allegation were dismissed. Under all the circumstances, I treat
Salem’s motions to dismiss complaint paragraphs 10 and 16 to
include, impliedly, paragraph 13, and I now grant that implied
motion to dismiss, as to Salem, complaint paragraph 13. That
leaves paragraphs 13 and 16 as to Options, a matter I now turn
to address.
2. Alleged interrogation
a. May 30, 1994—Gail Withers
Jeffrey A. Wyatt (Tr. 6:950–951) and John Reece Jr. (Tr.
6:998–1000) testified that, on May 30, 1994, they applied for
work at the office of Options. Options’ president, Gail Withers,
asked if they were members of a union. Wyatt (Tr. 6:951, 969–
970) and Reece (Tr. 6:999–1000) truthfully answered that they
were not. Reece adds that he asked Withers whether Options
was hiring for Salem, and Withers said yes, plus other (un-
named) contractors. (Tr. 6:999, 1019, 1021.) In his July 26,
1994 pretrial affidavit (given less than a month after the event),
Reece makes no mention of any such question to Withers and
answer by her. (Tr. 6:1021.) Reece testified that he was inter-
viewed by the Board agent over the telephone while he, Reece,
was in West Virginia. The drafted affidavit was mailed to him,
and he read it over before signing it. (Tr. 6:1031–1032.)
Although I credit Wyatt and Reece concerning the question
Withers asked regarding whether they were union members, I
do not credit Reece regarding his claimed question to Withers
about Salem. Wyatt did not describe such, Reece’s affidavit
contains no such reference, and Reece’s demeanor was unim-
pressive on this part of his testimony.
While, as I have found, President Withers asked the two job
applicants whether they were members of a union, that is dif-
SALEM ELECTRIC CO. 1601
ferent from asking about their union sentiments. Withers did
not do the latter. There could have been a practical reason for
Withers to have mentioned the topic, such as to tell Wyatt and
Reece that the work would not be under a union contract.
However, as there is no evidence Withers explained any practi-
cal basis for her question, as her question was made by Op-
tions’ president, and during a job interview, I find that it rea-
sonably would tend to be coercive. Accordingly, I find that, by
President Withers’ question on May 30, 1994, Respondent
Options violated Section 8(a)(1) of the Act.
b. June 9, 1994—Jesse Banks Wilson Jr.
At the suggestion of Business Manager Maurice (Tr. 1:107;
3:477), on June 9, 1994, Mack Good (Tr. 5:658–660), Patrick
Dean Parsons (Tr. 3:455, 477), and Paul D. Vogler (Tr. 5:784)
went to the office of Options to apply for work as electricians.
Options’ Jesse Banks Wilson Jr. acknowledges that they ap-
plied (Tr. 7:1086, 1098), and their Options’ applications (GC
Exh. 83; R. Exh. 19, and GC Exh. 96) are dated June 9, 1994.
As Parsons describes (Tr. 3:455–457), as Wilson gave appli-
cations to the three, he asked whether they were associated with
a union. They answered yes, and Good asked if that was a
problem. “No,” Wilson replied, there was no problem, but he
wanted to make sure that they understood that Options and its
contractor customers were not affiliated with a union and,
therefore, Options would not be paying them union scale. The
proceeded to complete their applications, sign W-4 forms, and
authorizations to take drug screens. Wilson gave them a book-
let covering Options’ policies and safety rules. Vogler recalls
that Wilson said the job was not union (Tr. 5:788), while
Good’s description (Tr. 5:661–662) omits any reference to such
a question by Wilson.
During his testimony, Wilson was not asked whether he
asked such a question. (Recall that Options’ attorney did not
participate in the trial.) I credit the detailed description give by
Parsons. Given in response to Good’s question, Wilson’s ex-
planation of his question about their union status neutralizes
any coercive sting the question would otherwise have. Accord-
ingly, I shall dismiss complaint paragraph 13(a) respecting the
Jesse B. Wilson allegation for June 9, 1994.
c. June 24, 1994—Gail Withers
Pursuant to a call from Wilson the day before, on June 23
Good, Parsons, and Vogler reported to Options’ office. I dis-
cuss this visit under the allegation that Options refused to hire
them. At this point, I note that, on June 24, they alerted Busi-
ness Manager Maurice that their hires (according to their ver-
sion) had been canceled. As a result, Maurice dispatched Pat-
rick A. Maloney (who had only that day joined the Union) to
Options with instructions to conceal his union membership.
(Tr. 1:131; 2:235, Maurice; Tr. 2:333–334, Tr. 338–339, Ma-
loney.)
At Maurice’s request, Allan T. Samuels, accompanied by
Michael K. Joyner, drove Maloney to the Options office that
June 24. (Tr. 2:334, Maloney; Tr. 2:353, Joyner; Tr. 6:903,
Samuels.) Maurice also wanted Samuels to be a witness con-
cerning whether Maloney was hired. (Tr. 6:919–921.) In the
office, only Maloney took an application. After Maloney com-
pleted his application, Gail Withers, Options’ president, in-
spected it and asked whether he had ever been associated with
or involved in a union. Maloney said no. Withers said she had
a client who was looking for electricians, and inquired whether
he would be available for work. Maloney said yes, that he was
available immediately. Withers gave Maloney a W-4 form,
insurance papers, and a drug-authorization form to sign. Later
that day he took the drug test, and was told to report for work,
Monday, June 27, at Salem’s Wake Forest University jobsite in
Winston-Salem. Maloney’s application (R. Exh. 18) contains
no reference to affiliation with any union, and he gave no indi-
cation that he supported unions. (Tr. 2:334–336, 345, 348,
Maloney.) Samuels confirms that Withers asked Maloney
whether he was affiliated with the Union. In fact, Withers
asked whether any of the group was. Maloney said no. (Tr.
6:904.) Joyner simply has Withers asking the group. (Tr.
2:354.) Withers did not testify. I credit the version given by
the employees, particularly that by Maloney.
As Withers’ question came from the employer’s president, in
the setting of the job application process, it reasonably would
tend to be coercive. That is, a job applicant would likely per-
ceive that he would have to conceal any union affiliation if he
hoped to get a job. I so find. By such question, I further find,
Options violated Section 8(a)(1) of the Act, as alleged.
3. Alleged discrimination
Pursuant to Wilson’s call to Vogler the previous day, on June
23, Good (Tr. 5:662) and Vogler (Tr. 5:788–789) appeared at
Options’ office ready to be sent for a drug screen. [Parsons was
not there because, as he told Wilson the previous day, he was
going out of town for several days and would not be available
for the assignment. Parsons concedes that he was never hired
by Options. (Tr. 3:458–460, 471.)] According to Good, in
answer to his question, Wilson said that, if they passed the drug
test, they would be assigned to Salem at Wake Forest Univer-
sity. (Tr. 5:662, 673.) Vogler describes no such disclosure by
Wilson on June 24, but he does claim (Tr. 5:788) that, during
the June 9 application visit, Wilson disclosed that the job was at
Wake Forest University and that the contractor was Salem
Electric. Vogler did not report this fact in his pretrial affidavit.
(Tr. 5:806.) Wilson denies ever disclosing Salem’s name. (Tr.
7:1107.) On this point, Wilson testified persuasively, and I
credit his denial.
Before Good and Vogler left for their drug screen, Good in-
formed Wilson that, when they got to the job, they would “or-
ganize them when we get out there.” (Tr. 5:662.) Vogler re-
calls that, when they again discussed money, Good and Vogler
told Wilson “that we would probably organize during lunches
and breaks.” When Wilson asked what that meant, they ex-
plained that they were trying to organize labor into the IBEW.
Wilson said nothing further. (Tr. 5:789–790.)
The following day, June 24, Options canceled the job as-
signment for Good and Vogler. Good testified Withers called
him and reported that the customer had called and said they no
longer needed any electricians. She then hung up. (Tr. 5:663–
664.) Wilson confirms that, but for the remark about intending
to organize the company they were being sent to work for, they
would have been hired, assuming they passed the drug screen.
(Tr. 7:1087–1088, 1090, 1100, 1127.)
Wilson reported this remark to Withers. (Tr. 7:1088, 1090.)
Withers replied that (Salem’s vice president) Sink had told her
that he wanted good electricians, but none who were union.
After the unfair labor practice charge was filed, Withers di-
rected Wilson to write a short file note on the matter. (Tr.
7:1090–1091, 1094–1095.) Wilson’s brief file note (GC Exh.
115) reports the remark and states that it “was taken as an atti-
tude problem which can’t be tolerated on any of our jobsites.
So the job order was terminated.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1602
Wilson testified that his interpretation of Good’s remark is
that the two intended to devote their time to organizing rather
than working. (Tr. 7:100–1101, 1127.) Wilson would have
had no problem with organizing that was incidental to doing the
job, but (Tr. 7:1127–1128) “that ain’t the way that the state-
ment was made to me.”
I do not credit Wilson. Although at trial his story, if cred-
ited, would show that he had no unlawful motivation (in es-
sence, he would not want to send anyone who would spend
work time walking around trying to organize), I find that his
understanding of the consequences as of the trial was deeper
than that which he had in June 1994. It is significant, I find,
that his brief memo (GC Exh. 115) addresses only an “attitude
problem.” Moreover, Vogler explained that their organizing
would be limited to lunch and break periods.
In any event, it is not Wilson’s motivation which counts, but
that of Withers, the decision maker. Although Wilson
“guesses” (Tr. 7:1127) that Withers viewed the situation as did
he, I find that her motivation was tied to her report to Wilson of
a statement attributed to Salem’s Sink—don’t send any union
electricians. [I consider this attributed statement only in regard
to Withers’ motivation. It is not substantive evidence as to
Salem because Salem and Options are not a joint employer and
there is no independent allegation that Options or Withers was
an agent of Salem.] The motivation of Withers, I find, was to
please Salem, and that meant, in her understanding, that she
was not to send anyone who was an active supporter of a union.
In short, I find that the evidence proves that, as alleged by
complaint paragraphs 16 and 22, that, on June 24, 1994, Op-
tions violated Section 8(a)(3) of the Act by refusing to hire
Mack Good and Paul D. Vogler because of union considera-
tions. The evidence fails to show that Options would not have
hired them in any event. I shall dismiss complaint paragraph
16 as to Patrick Dean Parsons because he advised Wilson that
he would not be available for several days. Thus, Parsons re-
moved himself from consideration.
CONCLUSIONS OF LAW
1. With one exception, the evidence is insufficient to show
that Salem Electric Company violated Section 8(a)(1) and (3)
of the Act, as alleged. The single exception is an unlawful
interrogation by General Superintendent James Manuel on De-
cember 7, 1994.
2. Because the single unlawful interrogation by Salem is iso-
lated and de minimis, it is appropriate that no remedial order be
issued and that the complaint be dismissed in its entirety as to
Salem Electric.
3. Respondent Options Temporary Employment Service has
violated Section 8(a)(1) of the Act by unlawful interrogations
by President Gail Withers on May 30, 1994, and again on June
24, 1994, but did not unlawfully interrogate, as alleged, by
Jesse Banks Wilson Jr. on June 9, 1994.
4. Options violated Section 8(a)(3) and (1) of the Act on
June 24, 1994, by refusing to hire Mack Good and Paul D. Vo-
gler, but not by failing to hire Patrick Dean Parsons who had
removed himself from consideration for employment at that
time.
REMEDY
Having found that Respondent Options has engaged in cer-
tain 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. However, no remedial order
is required concerning the de minimis interrogation violation by
Respondent Salem, and the complaint is being dismissed in its
entirety as to Salem.
Although the record suggests that Options may no longer be
in business, that matter is not definitely established in the re-
cord. I, therefore, will issue a remedial order as to Options.
The remedial formula is set forth in WestPac Electric, 321
NLRB 1322, 1322–1323 (1996). Because Respondent Options
discriminatorily failed and refused to hire job applicants Mack
Good and Paul D. Vogler, I shall order it to offer them em-
ployment to the same or substantially equivalent positions for
which they applied, without prejudice to any seniority or any
other rights or privileges to which they would have been enti-
tled in the absence of the Respondent’s hiring discrimination.
Additionally, I shall order the Respondent Options to make
both of them whole for any loss of earnings or other benefits
which they may have suffered as a result of the discrimination
practiced against them, from the date they applied for employ-
ment to the date that Respondent Options makes them a valid
offer of employment. Such amounts shall be computed in the
manner prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), and shall be reduced by net interim earnings, with in-
terest computed in accordance with New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended18
ORDER
The complaint is dismissed in its entirety as to Respondent
Salem Electric Company, Inc.
Respondent Options Temporary Employment Service, Inc.,
Winston-Salem, North Carolina, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to hire job applicants or otherwise discriminat-
ing against any employee for supporting International Brother-
hood of Electrical Workers, AFL–CIO, Local Union 342, or
any other union.
(b) Coercively interrogating any employee or job applicant
about union support or union activities.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Mack
Good and Paul D. Vogler, employment in jobs for which they
applied or, if such jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any other
rights or privileges to which they would have been entitled if
they had not been discriminated against.
(b) Make Mack Good and Paul D. Vogler whole for any loss
of earnings and other benefits suffered as a result of the unlaw-
ful action against them, in the manner set forth in the remedy
section of the decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful refusal to hire either

18 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
SALEM ELECTRIC CO. 1603
Mack Good or Paul D. Vogler, and within 3 days thereafter
notify the job applicant employees in writing that this has been
done and that the discrimination will not be used against either
of them in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its
Winston-Salem, North Carolina facility copies of the attached
notice marked “Appendix.”19 Copies of the notice, on forms
provided by the Regional Director for Region 11, after being
signed by Respondent Options’ authorized representative, shall
be posted by the Respondent and maintained by it for 60 con-
secutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, Respon-
dent Options has gone out of business or closed the facility
involved in this proceeding, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since November 10, 1994, the date the second
amended charge herein was filed and served in Case 11–CA–
16141.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official,
on a form provided by the Region, attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found,
including, as to Respondent Options, complaint paragraph 13(a)
as to Jesse Banks Wilson Jr. for June 9, 1994, and paragraph 16
as to alleged discriminatee Patrick Dean Parsons for June 24,
1994.
APPENDIX
NOTICE TO EMPLOYEES

19 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.”
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 the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT do anything that interferes with, restrains,
or coerces you with respect to these rights, and more specifi-
cally:
WE WILL NOT discriminate against you or job applicants
because of your (or their) membership in a local of the Interna-
tional Brotherhood of Electrical Workers, or because of your
(or their) activities on behalf of the IBEW or one of its locals or
any other union.
WE WILL NOT coercively interrogate you or job applicants
about union membership, support, or activities.
WE WILL, within 14 days from the date of the Board’s Or-
der, offer to job applicants Mack Good and Paul D. Vogler
employment in jobs for which they applied or, if such jobs not
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges to
which they would have been entitled if they had been hired.
WE WILL make them whole for any loss of earnings and
other benefits resulting from the discrimination against them,
less any interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s Or-
der, remove from our files any reference to our refusal to hire
Mack Good and Paul D. Vogler, and we will within 3 days
thereafter notify each of them in writing that this has been done
and that the discrimination will not be used against them in any
way.

SALEM ELECTRIC COMPANY, INC. &
OPTIONS TEMPORARY EMPLOYMENT
SERVICE, INC.