Tann Electric

National Labor Relations Board - Board Decisions

Aug 11, 2000

331 N.L.R.B. 1014 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1014
Tann Electric and International Brotherhood of Elec-
trical Workers, Local No. 124. Case 17–CA–
17811
August 11, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND-
LIEBMAN
On May 23, 1997, Administrative Law Judge George
Carson II issued the attached decision. The Respondent
filed exceptions, and the General Counsel filed cross-
exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions
except as modified below.
The General Counsel has excepted to the judge’s fail-
ure to find 8(a)(3) and (1) violations based on the Re-
spondent’s changing its hiring policies and practices in
1994 and 1995, purportedly for the purpose of excluding
union applicants. In particular, the General Counsel cites
the Respondent’s new policies of ceasing to advertise for
employees, ceasing to accept new applications from per-
sons unknown to it and, instead, inviting updated
applications or resumes from applicants in years past or
inviting an application from a person informally referred
to it after a job vacancy occurred. The General Counsel
argues that evidence of the Respondent’s animus and its
failure to supply any neutral explanation for these poli-
cies establish that they were discriminatorily motivated.
The January 8, 1997 amended complaint, which issued
shortly before the hearing in this case, alleges that the
Respondent interrogated applicants for employment con-
cerning their union membership and refused to consider
or hire certain named applicants since about July 23 and
August 29, 1994, and July 22, 1996. In addition, and as
pertinent to the issues raised by the General Counsel in
the exceptions, this complaint specifically alleges in
paragraph 6(d) that:

(d) Since at least July 22, 1996, Respondent estab-
lished, maintained, and applied to the employee appli-
cants [of July 26, 1966] a hiring policy and practice that
screened employee applicants to uncover suspected un-
ion supporters.

In affirming the judge’s dismissal, we find that the
above-referenced policy changes by the Respondent in
1994 and 1995 were neither placed in issue by the
amended complaint nor raised by the General Counsel at
the hearing. Consequently, the Respondent was never
properly apprised of any necessity for defending or ex-
plaining any changes to its hiring policies or practices at
any time prior to July 1996. Accordingly, we find that
the lawfulness of the changes the Respondent imple-
mented in its application processes in 1994 and 1995 was
neither properly alleged nor litigated, and we affirm the
judge’s refusal to find any violation based on those
changes.

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F. 2d
362 (3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The General Counsel also excepts to the judge’s fail-
ure to make findings on the Respondent’s alleged refusal
to hire five applicants—Kevin McConnell, Allan Ward,
Harvey Henry, Clint Klinge, and Frank Matthews. On
May 11, 2000, the Board issued its decision in FES, 331
NLRB No. 20 (2000), setting forth the framework for
analysis of refusal-to-hire and refusal-to-consider viola-
tions. This case will be remanded to the judge for further
consideration of the refusal-to-hire allegations in light of
FES, including, if necessary, reopening the record to
obtain evidence required to decide the case under the
FES framework.2
ORDER
This proceeding is remanded to Administrative Law
Judge George Carson II for further consideration under
the FES framework, and reopening of the record if nec-
essary, concerning the question whether the Respondent
discriminatorily refused to hire alleged discriminatees
Kevin McConnell, Allan Ward, Harvey Henry, Clint
Klinge, and Frank Matthews. The judge shall determine
an appropriate remedy if he should find any violation
with respect to these five individuals.
Thereafter, pursuant to the applicable provisions of
Section 102.45(a) of the Board’s Rules and Regulations,
the judge shall prepare and issue a supplemental decision
containing findings of fact, conclusions of law, and a
recommended Order with regard to the issue remanded
here. Following service of this Supplemental Decision
and Order 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.

2 The judge’s finding that McConnell, Ward, Henry, Klinge, and
Matthews were unlawfully denied consideration on the basis of evi-
dence comports with the standard set forth in FES. Remand of his re-
fusal-to-consider findings is therefore unnecessary.
331 NLRB No. 130
TANN ELECTRIC 1015
Lyn R. Buckley, Esq., for the General Counsel.
Stanley E. Craven, Esq., of Kansas City, Missouri, for the Re-
spondent.
Mr. James Beem, of Kansas City, Missouri, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in Overland Park, Kansas, on January 21 and 22,
1997. The charge was filed on January 23, 1995, and thereafter
was amended on March 8, 1995, and January 8, 1997.1 The
amended complaint was issued on January 8, 1997. The com-
plaint alleges one instance of interrogation and the promulga-
tion and maintenance of a discriminatory hiring policy in viola-
tion of Section 8(a)(1) of the National Labor Relations Act (the
Act), and the failure to consider for hire and to hire approxi-
mately 23 applicants in violation of Section 8(a)(3) of the Act.
Respondent’s answer, as amended, denies any violation of the
Act.2
On the entire record,3 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, is in the business of provid-
ing commercial, residential, and industrial electrical services
from its facility in Mission, Kansas, where it annually performs
services valued in excess of $50,000 in States other than the
State of Kansas. The Respondent admits, and I find and con-
clude, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The answer admits, and I find and conclude, that the Union
is a labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
John Tann established Tann Electric in Mission, Kansas, a
suburb of Kansas City, in 1991. Prior to this he had been in
charge of the Denver, Colorado, operations of McBride Elec-
tric, a service electrical contractor. Initially, Tann was the only
employee of Tann Electric. As he began to expand his business,
he continued various practices that he had used in Denver, in-
cluding “screening the market.” Tann described this as advertis-
ing for electricians, even though he did not need a new em-
ployee, at times when he knew the city was not busy. He
wanted applicants who were short on time with their current
employer, stating that he hoped to get a higher quality of appli-
cants. Although Respondent did not necessarily have any open-
ings when “screening the market,” if a really outstanding appli-

1 All dates are 1994 unless otherwise indicated.
2 The initial complaint issued on February 15, 1996. An oral
amendment to the amended complaint and Respondent’s orally
amended answer were allowed at the hearing.
3 GC Exh. 6B, a compilation showing all additions and deletions
from Respondent’s payroll during the relevant period, was, by agree-
ment of the parties, submitted after the hearing closed. It is, without
object, received.
cant applied “we might create an opening.” Tann ceased the
practice of “screening the market” after August 1994.
When Tann had an actual vacancy, he did not, on a regular
basis, review prior applications. Rather, he would typically
offer the vacant position to a current applicant. Nevertheless, on
occasion he has sought out applicants who had applied and
been interviewed in the past, but who had been denied em-
ployment due to the absence of a position. As of November 8,
1995, he ceased taking applications when he did not have job
openings.
The Union sent members to Tann’s offices on May 2 and
August 29. On both of these occasions the members were per-
mitted to fill out applications. Thereafter, on July 22, 1996, a
group of four union applicants was advised that Tann did not
take applications when there were no job openings.
Tann acknowledges that he operates a nonunion company,
although he has hired union members. He admits that he did not
consider the 15 union member applicants who applied for work
in response to a “screening the market” advertisement in May
1994. There is no evidence of any vacancy at that time. He also
did not consider the five union member applicants who applied
for work in response to a similar advertisement in August 1994.
There was one vacancy at that time. There were no vacancies in
July 1996 and, at that time, Respondent had ceased to accept
applications when it had no job openings.
B. Facts
On May 1 the following advertisement appeared in the Kan-
sas City Star:
ELECTRICIAN
4+ years of experience a plus. Good benefits. Chal-
lenging work. Call 236-7349 or send resume to:
Tann Electric, 6750 W. 47th Terr., Mission, KS
66203.
On May 2, union electrician, Kevin McConnell, responded to
the advertisement by going to the address given in the adver-
tisement. He arrived sometime between 8 and 9 a.m., com-
pleted an application, and left approximately 6 minutes after the
union electricians who applied in a group arrived. The applica-
tion reflects completion of IBEW Local No. 124 apprentice
training in 1980. Thereafter, on May 5, McConnell was inter-
viewed by Tann who wrote “probably would hire” on the appli-
cation.
At 9:31 a.m. on May 2, a group of union electricians exited
from a door at the IBEW Local No. 124 union hall in single
file, stating their names as they passed by a video camera.
Thereafter, the videotape records the members going up the
stairs to Tann Electric’s offices at 10:06 a.m.4 There were 18
union electricians in the group at Respondent’s offices. Three
of these electricians, Lindle Lee, Danny Melloway, and Chris
Heegan, did not fill out applications. Rather, they served as
spokespersons for the group.5 No individual applicant identified
himself. Indeed, the spokespersons did not immediately identify
themselves. After confirming that they were at Tann Electric,
4 The parties stipulated that the videotape accurately depicted what
was shown and heard thereon. Upon its admission into evidence, it was
viewed at the hearing.
5 Applications were submitted by Dale Allen, James Beem, Eric
Brockus, Jonathan Doughty, Mark Dreiling, Thomas Howard, Ray-
mond Hurst, Dennis Liston, Greg Logan, Matt Mapes, William Petrie,
Chad Reynolds, Ralph Rodriguez, Robert Roosevelt, and Joel Womack.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1016
one of the spokespersons requested applications for the group
from the two clerical employees who were present. One of the
clerical employees asked, “All of you?” She was advised that
about 15 or 16 application forms would be needed. Spokesper-
son Danny Melloway was operating the video camera. Shortly
after the group received their applications, Melloway was asked
by one of the clerical employees, who was identified at the
hearing as Hannah, what he was holding. He replied that it was
a “recorder,” that was to “document what we’re doing.” He did
not state that he was operating a video camera.6 At 10:14 a.m.
building owner, Jim Lewis, arrived and requested that the video
camera be turned off. The operator of the camera refused, and
Lewis called the police.
Tanya, the other clerical employee, called Tann shortly after
the group arrived. She informed him that there was a group in
the office with a video camera, and that they had been told to
put it away but would not do so. The tape shows the applicants
beginning to fill out their applications, but it also often follows
the clerical employees as they move around the office. It re-
cords the clerical identified as Tanya on the telephone in an
office adjacent to the main reception area. Various questions
and comments are addressed to the clerical employees by the
spokespersons, including a comment that one “is going to be a
movie star.” The clericals, not the applicants, are being video-
taped on these occasions. At 10:18 a.m. the two clerical em-
ployees were together at the desk. One of the union spokesper-
sons asked if they had a problem with the applicants being “Un-
ion.” Hannah replied that she just had a problem being
videotaped without her permission. Notwithstanding this com-
ment, Melloway continued to record her on the videotape. At
10:20 a.m. the video camera was handed to applicant Matt
Mapes who commented that Melloway, who had been operat-
ing the camera, might not be there much longer since the police
had been called. Mapes recorded the presence of Melloway and
Lindle Lee and returned the camera to Melloway. At 10:25 a.m.
a police officer arrived. He discussed the situation with Lewis
and the three union spokespersons. Melloway stated that he
would turn off the video as soon as “that guy,” referring to
union spokesperson Lindle Lee, “says so.” Melloway also
stated that he was only taping the applicants in the application
process. Review of the tape establishes that this was untrue.7 At
10:30 a.m. the officer asked that the video camera be turned
off. His request was ignored. One of the union spokespersons
asked if he was “ordering” that the camera be turned off. The
officer again indicated that he was asking, “real nice,” that the
taping cease. It continued. The applicants left the office at
10:37 a.m.. The camera was still running.8
After the taping incident, Tann spoke with Building Owner
Lewis and his clerical employees who reported that they felt

6 If the clerical’s response of “OK” be deemed permission to video-
tape, that permission was clearly revoked when she later stated that she
did not wish to be videotaped.
7 As already noted, on various occasions the camera follows the
movements of the clerical employees as they made telephone calls,
responded to questions, and performed other office functions.
8 Following the viewing at the hearing, I noted on the record that
there was no loud talking, profanity, pushing or shoving, but that the
request of three separate persons to cease videotaping was not honored.
I reviewed the videotape again in preparation for writing this decision. I
consider the clerical Hannah’s statement that she had a problem being
videotaped without her permission to be a request to cease the conduct
that she found offensive. Thus, I continue to adhere to the observations
I made at the hearing.
harassed. Tann acknowledged that he was upset that the group
had harassed his employees. On the morning of May 3, Tann
expressed to employee Paul Richey that he felt very strongly
about the group that had entered the offices the previous day.
He mentioned their union affiliation and stated that he was
concerned that they would not work according to his rules.9
Despite being upset about the behavior of the group on May
2, Tann interviewed McConnell and one of the applicants in the
group, William Petrie. On May 13, when interviewing Petrie,
Tann again alluded to a need to work by his rules, stating that,
in the service business, the hours worked did not conform to
union guidelines. He commented that service “can’t be done
between the normal hours,” that he had to respond to customers
at nights and on weekends. When Petrie stated that he was in-
terested in talking to the men to see “if they’d like to join the
Union,” Tann responded that he did not think that was a good
idea because the hours worked did not confirm to union guide-
lines and that a marriage between Tann Electric and a union
would be a problem.10
After thinking about what had happened on May 2, Tann de-
cided that he did not “want to employ anybody that would go
out and . . . be insubordinate to me or to my customers in the
manner in which . . . they behaved themselves at that time.”
There is no evidence of any vacancy on May 2, which is
prior to the 10(b) period. Shortly before the 10(b) date, July 23,
1994, Respondent had five electricians on its payroll: Ron
Jarrett, Dennis Ruegsegger, Jason Neal, Paul Richey, and Paul
Drummond. Respondent also employed two shopmen, Kelly
Gann and Frank Waterman. Electrician Drummond ceased to
be employed and does not appear on the payroll for the period
ending July 24. Thereafter, Respondent sought to obtain a fifth
electrician. In early August, Respondent hired Dan Lehane, but
he could not do the work and was terminated on August 15.
Brent Parks also worked for less than 2 weeks in August; there
is no evidence of the actual dates of his brief employment.
In August, James Beem, the Union’s director of organizing,
asked David Johnson, who at that time was not a member of the
Union, to apply for work at Tann. Johnson was employed at
Westhues Electric. Johnson applied on August 23. He was in-
terviewed on August 29. At this interview, Tann discussed with
Johnson his experience, including working at Guy’s Foods, a
company that performed work similar to that performed by a
company in Denver with which Tann was familiar. Johnson’s
application reflects that he had electrical training through the
ABC program at Pioneer College. Apprentices in the ABC
program typically work for nonunion contractors, and John-
son’s participation in this program was discussed. I do not
credit Johnson’s testimony that he showed Tann his ABC card
in response to a question as to whether he was a member of a
union. In a pretrial affidavit, Johnson stated only that, “I think
he asked me if I was union.” Tann denied asking about any
union affiliation, and I credit his testimony. Insofar as ABC
apprentices usually work for nonunion contractors, there would
be no need for such a question since the application clearly
reveals Johnson’s ABC training.
9 Richey acknowledged that he had not tried to remember this con-
versation “from a long time ago.” He recalled “the thing that stuck out”
was that Tann said detrimental things about the group of people who
applied on May 2. I credit his testimony only to the extent noted above.
10 This cautioning against engaging in lawful solicitation occurred
prior to the 10(b) date, but it is relevant when assessing the presence of
animus.
TANN ELECTRIC 1017
On August 29, Matt Mapes, who had been with the May 2
group, appeared at the Tann Electric offices with four other
union members, none of whom had been present on May 2. All
five filled out applications and left. The applicants who ap-
peared with Mapes were Allan Ward, who has 19 years electri-
cal experience, including 1 year in service work, Harvey Henry,
who has 35 years of experience and has performed service
work on three different occasions,11 Clint Klinge,12 and Frank
Matthews whose application reflects that he is self employed as
the owner of Frank Matthews’ Electrical Service.13 All indi-
cated on their applications that they were available for immedi-
ate employment. All received letters stating that the Company
was “unable to offer you a position at this time, but we will
keep your application on file for future reference.”
Tann did not want anyone working for him who behaved in
“a harassing, intimidating manner” which, he testified, was his
perception of the first visit. He acknowledged that he did not
consider for hire any of the union applicants who applied on
August 29 because they “were part of the first [May 2] group.”
Tann was incorrectly informed that “some of the same people”
who had been in the May 2 group had been in this group. He
did not compare the names on the applications. Had he done so
he would have discovered that Mapes was the only duplicate.14
On September 3, David Johnson went to a second interview
with Tann, following which he was sent for a physical exam
and drug test. He passed both and was hired. He was to report
to work the following morning. On returning home on Septem-
ber 3, Johnson called Union Business Agent Beem. “He [Beem]
told me to get a tape recorder and go back in there and tell them
that I quit.”15
Johnson’s refusal of Respondent’s offer of employment left
open the position vacated by Drummond. Tann continued to
seek to fill this vacancy. He interviewed Lonnie Golden, who

11 Tann noted on Henry’s application that his last three jobs, from
which Henry was laid off, were all of short duration. There was no way,
given the format of the application, that Henry could reveal his service
work. I note that it was at the interview between Tann and Johnson that
Tann learned of Johnson’s work with Guy’s Foods, the firm similar to
the one in Denver, and Tann considered this to be Johnson’s most sig-
nificant experience. Johnson’s application did not reflect that he had
worked at Guy’s Foods.
12 Klinge’s application is incomplete in that it does not show his pay
rates.
13 The record does not reflect whether this is an electrical service
company, like Respondent, an electrical repair shop, or some other type
of enterprise.
14 Tann testified that his receptionist reported that one of the appli-
cants had pointedly stared at her; however, that individual was not
identified. The receptionist did not testify.
15 The foregoing quoted statement, which I credit, is from Johnson’s
affidavit. I specifically discredit the testimony of Johnson and Beem
that would attribute Johnson’s action to a conversation with his wife.
Although that is the story he concocted and told to the Respondent, his
affidavit is explicit. No conversation with his wife on September 3 is
mentioned. He went home, called Beem, and was told to quit. In view
of Beem’s lack of candor regarding this incident, I am unable to deter-
mine whether the direction given to Johnson to quit was to assure that
there was a position available for at least one of the five union appli-
cants who had filled out applications on August 29 or for some other
purpose. In regard to another purpose, I note that Johnson, when in-
forming Respondent that he quit, apologized for wasting the $100 that
Respondent had spent on Johnson’s physical exam.
had filled out an application on September 11 and 20. Golden
was not offered a position.16
Electrician Ron Jarrett ceased work in late September or on
October 1 or 2.17 Although this appeared to create a second
vacancy, payroll records reflect that Respondent thereafter only
sought to maintain a crew of four fully qualified electricians.
On October 2 or 3, nonunion electrician Tom Jackson applied
and was hired, but his employment ended within the month.18
On November 29, nonunion electrician Kelly LaBelle applied
and was hired. LaBelle worked for a few days in early Decem-
ber.19 In late 1994 and early 1995, John Tann performed some
service work, as did his father, Francis Tann. Thus, Respondent
operated with four electricians, Richey, Neal, Ruegsegger, and,
intermittently, Francis Tann, and two shopmen. If Respondent
had hired one of the qualified union applicants who applied on
August 29, Respondent would have had a crew of four electri-
cians, the maximum number of fully qualified electricians that
Respondent’s payroll records reflect were employed from No-
vember 1994 until May 1995. There was not another vacancy
until May 1995. Respondent hired a second shopman, Kelly
Gardner, who applied for work on December 27. His name first
appears on the January 8, 1995 payroll.20
At a meeting, the date of which is not established, Richey,
Ruegsegger, and Neal, the three journeymen employed by
Tann, requested a pay raise, but Tann refused.21 In discussing
this matter, someone made a comment about joining the Union,
and Tann commented that he would strap his tools back on and
“we probably wouldn’t be working for him.”22
Ruegsegger and Neal left Respondent in early May 1995.
Richey was discharged in late June or early July 1995. Electri-
cian John Stegner was hired and began work in late July 1995,
and electrician Tony Karr was hired and began working in late
August or early September 1995. There were no contempora-
neous applications from union members at the time these indi-
viduals were hired, but Respondent has no time limitation upon
its applications. Although Tann does not regularly review prior
applications, he sometimes does so as is established by his hir-
ing of Stegner. Stegner had applied for work on October 5,
1994, and he was interviewed on October 5. Tann notes on the
application that “his experience may be a little weak—he
makes a good impression.” Stegner was not offered a position
at that time. The top of the application bears the word “regret,”
Tann’s direction that a letter be sent advising that a position
was not able to be offered at that time. In July 1995, Stegner
was hired. Thereafter Karr, who applied on July 31, 1995, was
hired. Respondent continued to accept applications until No-
16 The interview notes reflect that Golden disregarded the no smok-
ing sign.
17 Jarrett appears on the payroll ending October 2, but not on the
payroll ending October 16.
18 Jackson was a class A electrician. His experience was with Olin
and GAF, not an electrical service company.
19 LaBelle had been performing service work for a company in New
Mexico.
20 Gardner was hired as a shopman, but with an expectation that he
would develop quickly, which he did.
21 The identity of the electricians and the presence of two persons to
whom Richey referred as apprentices are consistent with an early 1995
date.
22 This comment is not alleged as a violation of Sec. 8(a)(1) of the
Act, and Richey could not recall the date of this meeting at which it
was made. Tann did not deny the comment, and I find it relevant in
assessing the presence of animus.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1018
vember 8, 1995. No union members applied during the period
from August 29, 1994, until July 22, 1996. A shopman, Mark
Monnington, was hired in March 1996.
On July 22, 1996, union members Mapes, Mike Damico,
Bernie Devine, and Glen Mallott went to Respondent’s offices
to apply for work. Damico and Devine were wearing shirts with
union insignia. Mapes identified himself as an organizer with
the Union and the other applicants as members of Local No.
124. When Mapes advised that they would like to apply for a
job, the receptionist informed him that Respondent was not
taking applications and not hiring, but they could leave their
names and phone numbers. An unidentified male approached
from a side office and the receptionist informed him that the
applicants were leaving their names for the possibility of future
contact. The unidentified male indicated that was not really
necessary since Respondent was not hiring at that time. In fur-
ther conversation the unidentified male stated that Respondent
hired through referrals, “but was always willing and would talk
to qualified people.” There is no evidence of any vacancy on
July 22, 1996, and there has not been a vacancy for an electri-
cian since that date.23
C. Analysis and Concluding Findings
1. The 8(a)(1) allegations
The complaint alleges that Tann, about August 26, interro-
gated applicants concerning their union membership. The evi-
dence in support of this alleged violation consisted of the testi-
mony of David Johnson who, as discussed above, was inter-
viewed on August 29. I have not credited his testimony and,
therefore, this allegation shall be dismissed.
The complaint, as amended, alleges that since at least July
22, 1996, Respondent established, maintained, and applied to
employee applicants a hiring policy and practice that screened
employee applicants to uncover suspected union supporters.
There is no evidence regarding any policy that screened appli-
cants to uncover suspected union supporters. Respondent did,
after August 29, 1994, cease its practice of advertising to
“screen the market.”24 After November 1995 Respondent be-
gan accepting applications only when it had positions to be
filled. Counsel for the General Counsel, in her brief, argues that
Respondent changed its hiring policies to avoid considering
applicants with union affiliation. In this regard she cites Casey
Electric, 313 NLRB 774, 775 (1994), in which the respondent
shifted the locus of hiring from its Winchester, Virginia jobsite,
where the union affiliated applicants were seeking to apply, to
Jackson, Tennessee, and did not advise the union electricians
about the new locus of hiring. Counsel also cites the case of
D.S.E. Concrete Forms, 303 NLRB 890, 897 (1991), in which a
signup roster was not made available to union applicants. I am
aware of no authority, and the General Counsel has cited none,
that requires an employer to bear the expense of advertising
available positions when it has job openings. An employer may
lawfully refuse to accept applications when it has no job vacan-
cies. Delta Mechanical, Inc., 323 NLRB 76 (1997). There is no
evidence of any vacancy on July 22, 1996. The applicants, on
July 22, were told by an unidentified person that Respondent

23 Respondent placed a shopman, Philip Bux, who is involved in
constructing the Tann’s home, on the company payroll as of November
24, 1996. Testimony reveals that Bux spends less than 20 percent of his
time working for the Company; “the guy works at the house.”
24 The cessation of this advertising is not alleged as a violation.
“was always willing and would talk to qualified people.”25
There is no evidence that nonunion applicants were treated any
differently. No union member had sought employment with
Respondent since August 29, 1994, almost 2 years previously.
Unlike the cases cited by the General Counsel, there is no evi-
dence that Respondent’s November 1995 decision to cease
accepting applications when it had no vacancies was to avoid
hiring union members. The General Counsel has not adduced
evidence of a discriminatory motive and has not carried the
burden of proving that Respondent established, maintained, and
applied a hiring policy and practice that screened employee
applicants to uncover suspected union supporters.
2. The 8(a)(3) allegations
The complaint alleges the unlawful failure of Respondent
both to consider for hire, and the refusal to hire, the alleged
discriminatees: Kevin McConnell and the 15 who applied on
May 2, the 5 who applied on August 29, 1994, and the 4 who
sought to apply on July 22, 1996.26 The charge here was filed
on January 23, 1995, thus, the 10(b) date is July 23, 1994. With
regard to the May 2 applicants, no violation can be found until
July 23. A discriminatory failure to consider for hire constitutes
a violation of the Act. Eldeco, Inc., 321 NLRB 857, 870 (1996).
The existence of a vacancy is, of course, necessary to establish
a discriminatory failure to hire and a backpay obligation. Ibid.
There is no evidence that Respondent had any vacancy on
May 2 when McConnell and, thereafter, the 15 union members
applied in a group for the single position of “Electrician, 4+
years of experience a plus” pursuant to Respondent’s May 1
advertisement. Tann credibly testified that the purpose of the
advertisement was to screen the market. Respondent had one
vacancy as of July 23; the position vacated by employee
Drummond. Although Tann testified that it was not his practice
to review prior applications, the record establishes that, al-
though Stegner had applied in October 1994, he was not hired
until July 1995. Thus, at least on occasion, Tann did review
prior applications.
Tann testified that, following the May 2 taping incident, he
decided that he did not “want to employ anybody that would go
out and . . . be insubordinate to me or to my customers in the
manner in which . . . they behaved themselves at that time.”27
On receiving the report that a group had submitted applications
on August 29, and that the group included “some of the same
people” who had been in the May 2 group, Tann did not con-
sider any of them because they “were part of the first [May 2]
group.”
In addressing Tann’s refusal to consider for hire, after July
23, the applicants who applied in a group on May 2, I shall
utilize the analytical framework set out in Big E’s Foodland,
242 NLRB 963, 968 (1979), in which the Board noted the ele-
ments of (1) the employment application by each alleged dis-
criminatee, (2) the refusal to hire each, (3) a showing that each
was or might be expected to be a union sympathizer or sup-
25 Contrary to a statement in General Counsel’s brief, there is no
evidence that Tann hired only persons already known to him. When
asked by the General Counsel if it were true that Tann took applications
only from individuals known to him or other Tann employees, Tann
replied, “That is incorrect.”
26 Mapes was in all three groups.
27 The General Counsel’s brief is incorrect when it states that the
only reason given by Tann for refusing to hire these applicants was that
“they came as a group and had a spokesman.”
TANN ELECTRIC 1019
porter, (4) a showing that the employer knew or suspected such
sympathy or support, (5) that the employer maintained animus
against such support, and (6) that the employer refused to hire
or, in the instant case, consider for hire the applicants because
of such animus. Regarding the final element, under Wright
Line,28 the Respondent can rebut the General Counsel’s prima
facia case by showing that, notwithstanding the protected con-
duct, it would have taken the same action.
There is no issue regarding the application and refusal to
consider these applicants, all of whom were union members
and had been identified as union members to Respondent. Al-
though I have not found an independent 8(a)(1) violation,
Tann’s comments to Petrie and the suggestion to Richey that, if
his employees were to unionize he would strap on his tools and
they would probably not be working there, reveals animus.
Tann testified that he decided that he did not have to employ
anybody that “would go out and . . . be insubordinate to me or
to my customers,” referring to the behavior that occurred in the
office on May 2. I am fully satisfied that Tann would not have
considered any applicant, regardless of the group’s identity,
who applied as members of a group that disregarded the order
of the building owner, continued to videotape a clerical em-
ployee after she had expressed her desire not to be videotaped,
and defied the request of a police officer. The union spokesper-
sons were acting in a representative capacity on behalf of the
group. They requested the applications for the group. Although
there was no profanity or physical violence, the obstinate re-
fusal of the representatives of the Union to obey the requests
made to turn off the video camera were intimidating. The con-
tinued taping of the clerical who stated she did not want to be
taped was harassing.
The General Counsel argues that the videotaping was per-
formed by the spokespersons, not the applicants, implying that
the actions of the group leaders should not be attributed to the
individual applicants. Thereafter, she inconsistently contends
that the actions of the union members in applying for work
constituted protected concerted activity. I need not address this
contention since it is clear that the application process consti-
tuted union activity. In this regard, I find that the application
process was a planned group activity. The applicants left the
union hall identifying themselves to the operator of the video
camera. No applicant attempted to disassociate himself from
the group at any time. The applicants utilized a spokesperson to
request applications on their behalf. Shortly after the police
were called, Melloway handed the video camera to applicant
Mapes in order to document the presence of Melloway and Lee,
neither of whom submitted an application. I am unaware of any
case authority that establishes that the actions of the Union
were privileged. The Union recorded the movements of Re-
spondent’s clerical employees, one of whom had specifically
objected to being videotaped. The continued videotaping after
being requested to cease doing so by the owner of the premises
and the defiance of a police officer, who was diligently trying
not to cause a confrontation, is not protected conduct.29 The
continued taping of the clerical who stated that she had a prob-
lem with being videotaped without her permission is not privi-

28 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981).
29 In Delta Mechanical, Inc., supra at 80, the judge notes that the re-
spondent had not instructed its personnel to demand that videotaping
equipment be turned off when on its property and, if not turned off, that
law enforcement officers should be called. In the instant case the re-
quest of the law officer was not obeyed.
leged under the Act. Tann was not obligated to consider for
hire, or to hire, applicants who, in the application process itself,
chose to present themselves in a group, the leadership of which
would not honor the request of his clerical employee, the direc-
tion of the building owner, or the request of a law enforcement
officer. Melloway, at one point, stated that he would do only
what spokesperson Lee told him to do. I find no violation of the
Act with regard to Respondent’s failure to consider for hire, or
to hire, the 15 applicants of May 2.
Regarding the five applicants on August 29, Tann admitted
that he did not consider any of them. He was incorrectly in-
formed that “some of the same people” who had been in the
May 2 group had been in this group and did not bother to com-
pare the names on the applications. The only basis for conclud-
ing that these applicants “were part of the first [May 2] group”
was their affiliation with Local No. 124. Only Mapes had been
in the May 2 group. Notwithstanding my finding that Tann was
justified in his refusal to consider the May 2 group applicants,
which included Mapes, there were four applicants on August 29
who had no connection with that incident. Respondent cannot,
for all time, lawfully refuse to consider all current or future
members of Local No 124. By treating all of the August 29
applicants as if they had been involved in the May 2 incident,
Respondent relied only on their union affiliation. By failing to
consider union members Ward, Henry, Klinge,30 and Mat-
thews31 for hire, Respondent violated Section 8(a)(3) of the
Act.
Tann had interviewed Kevin McConnell, who was not a part
of the May 2 group, and noted “probably would hire” on his
application. McConnell was never offered a position. In view of
the admitted failure of Tann to consider any of the applicants
who appeared at his office on August 29, I find that he likewise
did not consider McConnell.32 The refusal to consider McCon-
nell was based solely on his membership in the Union, since he
did not participate in the May 2 incident. I find that the refusal
to consider McConnell for available positions after July 23
violated Section 8(a)(3) of the Act.
On July 22, 1996, approximately 23 months after his last
visit, Mapes again went to Tann Electric, this time with three
different members. Respondent had new clerical employees, so
Mapes was not recognized. Mapes identified himself as an
organizer with the Union and the other applicants as members
of Local No. 124. Nothing was said regarding unions or their
union affiliation. The receptionist told them that Respondent
was not accepting applications because there were no vacan-
30 Although Klinge’s application does not show his pay rates, the re-
cord refutes any contention that Respondent uniformly rejects all appli-
cations that contain unanswered questions. Gardner, who was hired as a
shopman, left blank the questions relating to whether he had any dis-
ability or had ever been injured. Brown & Root USA, Inc., 319 NLRB
1009, 1010 fn. 6 (1995).
31 Matthews’ application indicates both availability for immediate
employment and self employment as the owner of Frank Matthews’
Electrical Service. Matthews may well have decided that he did not
wish to continue to deal with the day-to-day responsibilities inherent in
operating a small business. His intentions regarding cessation of his
self-employment can be determined at compliance.
32 Tann had noted “probably would hire” on McConnell’s applica-
tion. Additional evidence supporting my finding that Tann lumped
McConnell with the other union members and ceased to consider him
for a position is Tann’s hiring, in July 1995, of Stegner, who had been
interviewed in October 1994. The comments on McConnell’s applica-
tion are more favorable than those on Stegner’s.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1020
cies, but they could leave their names and telephone numbers
on a list. There is no evidence that nonunion applicants were
treated any differently. The General Counsel presented no evi-
dence of any disparity with regard to the application of Re-
spondent’s current policy of not burdening itself with applica-
tions when it has no positions. The record establishes that no
new employee has been hired since March 1996. Absent evi-
dence of an unlawful motive, an employer is not required to
accept applications when it has no vacancies. Delta Mechani-
cal, Inc., supra. The General Counsel has not established that
Respondent unlawfully failed to consider for hire, or to hire, the
three applicants who accompanied Mapes to Respondent’s
office on July 22, 1996.
The General Counsel argues that there were seven or eight
positions filled from July 23, 1994, until the present.33 In mak-
ing this argument she contends that persons called “shopmen”
by Respondent should be treated as electrician positions. Her
brief states that the term “shopman” is not used in any of Re-
spondent’s records or documents. Although this statement may
technically be accurate, it does not take into account the testi-
mony, confirmed by Respondent’s records, that corroborate
Tann’s testimony that the individuals to whom he refers as
shopmen are not fully qualified electricians. Respondent gener-
ally pays its shopmen $8 an hour, a nontechnical rate. This rate
appears on payroll documents and was referred to in testimony
as rate I. As shopmen gain experience they are sent out on jobs
where they are paid a technical rate, rate II. Although the actual
payroll records were not placed in evidence, counsel for the
General Counsel examined payroll records and questioned
Tann regarding them. Those records, consistent with Tann’s
testimony, showed that when a shopman was sent out on a job
or performing technical work he was paid at a different rate,
rate II, instead of the nontechnical rate, rate I. Tann testified
that he has not hired journeymen for shopman positions. This
testimony is uncontradicted and consistent with the record evi-
dence regarding persons hired into this position. Thus, I reject
the General Counsel’s argument that shopman positions should
be treated as electrician positions.34 It is inconsistent with the
record evidence and Tann’s credible testimony.
As discussed in the facts section of this decision, the payroll
summary establishes three vacancies, the vacancy that resulted
from Drummond’s departure in July 1994,35 and the two vacan-
cies that occurred when Neal and Ruegsegger quit in May
1995. Those vacancies were filled by Stegner and Karr. None
of the five discriminatees was considered.
CONCLUSION OF LAW
By failing and refusing to consider for hire Kevin McCon-
nell, Allan Ward, Harvey Henry, Clint Klinge, and Frank Mat-
thews because of their membership in International Brother-

33 In determining available positions, the General Counsel states she
did not count John Tann’s father, Francis Tann, and his brother, Steven
Tann, who began working in April 1996.
34 I am mindful that, at the hearing, I noted that some electricians
testified that they would work for as little as $6 an hour and that, if I
credited that testimony, there could be a compliance issue regarding the
shopman position. Thereafter, Tann reconfirmed earlier testimony that
he had never hired a journeyman for a shopman position.
35 If Respondent had hired McConnell or one of the four discrimina-
tees who applied on August 22, and that individual had remained in
Respondent’s employment, assuming all else occurred as the records
report, there would not have been another vacancy for an electrician
until Neal and Ruegsegger left in May 1995.
hood of Electrical Workers, Local No. 124, Respondent has
engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Discriminatees McConnell, Ward, and Henry testified at the
hearing; Klinge and Matthews did not. I have rejected any con-
tention that purported deficiencies reflected on the applications
of Henry and Klinge contributed to Respondent’s failure to
consider them. Respondent did not consider the discriminatees
because of their union affiliation, and I have found that this
failure to consider violated the Act. In view of the situation
involving David Johnson, there is an issue regarding whether
employment, if offered, would have been accepted. Johnson
was solicited by the Union to apply for work with the Respon-
dent, and I have found that after accepting a job he was directed
to quit. This scenario raises a question as to whether each of the
five discriminatees, who also applied at the Union’s behest,
would actually have accepted a position if offered.36 I shall
leave this determination for compliance.
The violation I have found is a failure and refusal to consider
for hire. Consistent with the Board’s decision in TIC–The In-
dustrial Co., Southeast, 322 NLRB 605 (1996), I shall leave for
compliance the determination of which of the five discrimina-
tees, if any, would have been selected for the vacancy that ex-
isted on July 23 and whether that applicant would have ac-
cepted the position. The record establishes that two additional
vacancies occurred in early May 1995. Thus, it must also be
determined which of the five discriminatees (or which of the
four remaining discriminatees, assuming one is found to have
been discriminatorily denied the July 23 vacancy), if any,
would have been selected for the two vacancies that I find ex-
isted as of early May 1995 and whether the applicant(s) would
have accepted the position(s).37
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended38
ORDER
The Respondent, Tann Electric, Mission, Kansas, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing or refusing to consider for hire applicants because
they are members of International Brotherhood of Electrical
Workers, Local No. 124.
36 McConnell, Ward, and Henry all testified before David Johnson
was called as a witness.
37 If all of the discriminatees indicate that they would have refused
the positions, the exercise of determining which of the five discrimina-
tees would have been offered and accepted the positions will, of course,
not be necessary. Since all of the discriminatees, when working pursu-
ant to the union contract, would have earned wages in excess of what
Respondent pays, there may be little backpay liability.
38 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.
TANN ELECTRIC 1021
(b) 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 those of
the employee-applicants named below who would currently be
employed, but for the Respondent’s unlawful refusal to con-
sider them for hire, employment in the positions for which they
applied or, if those 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 by the Respondent.

Harvey Henry Clint Klinge
Frank Matthews Kevin McConnell
Allan Ward

(b) Make whole those of the employee-applicants named
above who would have been employed, but for the Respon-
dent’s unlawful refusal to consider them for hire, for any loss of
earnings and other benefits suffered as a result of the discrimi-
nation against them, in the manner set forth in the remedy sec-
tion of the decision.
(c) 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.
(d) Within 14 days after service by the Region, post at its fa-
cility in Mission, Kansas, copies of the attached notice marked
“Appendix.”39 Copies of the notice, on forms provided by the
Regional Director for Region 17, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the

39 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.”

Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since January 23, 1995.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

WE WILL NOT fail or refuse to consider for hire applicants be-
cause they are members of International Brotherhood of Elec-
trical Workers, Local No. 124, or any other labor organization.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
those of the employee-applicants named below who would
currently be employed, but for our unlawful refusal to consider
them for hire, employment in the positions for which they ap-
plied or, if those 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.

Harvey Henry Clint Klinge
Frank Matthews Kevin McConnell
Allan Ward

WE WILL make whole those of the employee-applicants
named above who would have been employed, but for our
unlawful refusal to consider them for hire, for any loss of earn-
ings and other benefits suffered as a result of the discrimination
against them.

TANN ELECTRIC