Toering Electric Co.

National Labor Relations Board - Board Decisions

Sep 29, 2007

351 N.L.R.B. 225 (N.L.R.B. 2007)

TOERING ELECTRIC CO.
351 NLRB No. 18
225
Toering Electric Company and Foster Electric, Inc.
and Local Union No. 275, International Broth-
erhood of Electrical Workers, AFL–CIO. Cases
7–CA–37768, 7–CA–39093, and 7–CA–39205
September 29, 2007
DECISION AND ORDER REMANDING
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
SCHAUMBER, KIRSANOW, AND WALSH
Section 8(a)(3) of the Act makes it an unfair labor
practice for an employer “by discrimination in regard to
hire or tenure of employment or any term or condition of
employment to encourage or discourage membership in
any labor organization . . . .” The protection of this pro-
vision has been extended to applicants for employment.1
Consequently, an employer can violate Section 8(a)(3)
by refusing to hire or to consider hiring an applicant be-
cause of union considerations.
In many instances, there is no question that an individ-
ual who applies for work with an employer does so pur-
suant to a good-faith interest in accepting a job if offered
on acceptable terms. However, in some cases, it is appar-
ent that alleged applicants have no such interest. In this
case, we address such behavior under the standard
adopted by the Board in FES for determining whether
there has been a discriminatory refusal to hire or consider
for hire.2 First, we define an applicant entitled to statu-
tory protection against hiring discrimination as someone
genuinely interested in seeking to establish an employ-
ment relationship with the employer. Second, we impose
on the General Counsel the burden of proving under FES
that an alleged discriminatee meets this definition.
Requiring that the General Counsel prove an appli-
cant’s genuine interest in securing employment is essen-
tial to the effective administration of the Act. Our deci-
sion today will insure that only those for whom Congress
intended statutory protection as actual or potential em-
ployees will receive it. As discussed below, the Board’s
experience has shown that in some hiring discrimination
cases, particularly those involving “salting” campaigns,
unions submitted batched applications on behalf of indi-
viduals who were neither aware of the applications nor
interested in employment opportunities with the em-
ployer. In other cases, individuals submitted applications

1 Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 185–186 (1941).
2 FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002). On
October 8, 1997, Administrative Law Judge Arthur J. Amchan issued
his original decision in this case. On June 7, 2000, this case was re-
manded to the judge for further consideration in light of the Board’s
decision in FES, supra. The judge subsequently issued the attached self-
contained decision on September 29, 2000, which incorporates the
factual findings made in 1997 and applies the FES framework to those
facts.
but were not interested in obtaining employment with the
employer. Their applications, sometimes accompanied
by conduct plainly inconsistent with an intent to seek
employment, were submitted solely to create a basis for
unfair labor practice charges and thereby to inflict sub-
stantial litigation costs on the targeted employer. The
absence of a clear and consistently applied requirement
that the General Counsel must prove an applicant’s genu-
ine interest in securing employment has opened the door
to these abusive tactics. By imposing this requirement
under FES, we shall prevent those who are not in any
genuine sense real applicants for employment from being
treated by the Board as if they were.
Background Facts
International Brotherhood of Electrical Workers Presi-
dent Jack J. Berry announced the Union’s “salting”3
campaign targeting nonunion employers in a 1987 video-
taped speech urging local unions to join him in “driv[ing]
the non-union element out of business.” With this goal in
mind, the International Union issued a Construction Or-
ganizing Membership Education Training (COMET)
manual that provided guidance to local unions for con-
ducting salting campaigns. The COMET program, which
has been approved and utilized by all member unions of
the Building and Construction Trades Council, includes
discussion of many traditional organizational strategies
and tactics. However, it also emphasizes the alternative
strategy of imposing such costs on a nonunion employer
as will cause it to scale back its business, leave the salt-
ing union’s jurisdiction entirely, or go out of business
altogether. A key tactic for implementing this economic
strategy in the COMET program is the filing of unfair
labor practice charges at every opportunity. These
charges serve two express functions: (1) they impose on
charged nonunion employers the immediate and often
substantial expenses of defending themselves in legal
proceedings; and (2) they provide the premise for disrup-
tion of the nonunion employer’s work force and produc-
tion through a series of declared unfair labor practice
strikes.
As part of recommended salting campaigns, the Inter-
national Union’s Policy on Inside Construction Organiz-
ing (Organizing Policy) requires local unions to respond
to blind newspaper advertisements to assure that “suffi-

3 Salting has been defined as “the act of a trade union in sending a
union member or members to an unorganized jobsite to obtain em-
ployment and then organize the employees.” Tualatin Electric, 312
NLRB 129, 130 fn. 3 (1993), enfd. 84 F.3d 1202, 1203 fn. 1 (9th Cir.
1996). As further discussed below, however, a salting campaign’s
immediate objective may not always be organizational, and the role of
an individual “salt” who applies for work may not always be to obtain
employment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD226
cient numbers of replies [are] submitted to make a prima
facie case of statistical discrimination.” Minutes of a
March 1994 meeting of Local Union 275, International
Brotherhood of Electrical Workers, AFL–CIO (Local
275 or the Union), indicate that it was implementing the
International’s Organizing Policy by going to area tem-
porary employment agencies and “load[ing] them up
with applications.”
Also in 1994, Toering Electric became a target of Lo-
cal 275’s salting campaign. Its alleged refusal to hire or
consider union-affiliated individuals that year generated
several unfair labor practice charges.4 In July and August
1995, to settle these allegations, Toering Electric offered
jobs to six Local 275 members but all six failed to show
up for work. Other Local 275 members received back-
pay awards pursuant to the settlement agreement. Local
275 boasted in its March 1995 newsletter that its salting
campaign “put a big hurt” on Toering Electric’s business.
Local 275 again targeted Toering Electric in June
19965 when organizer James Jendrasiak twice mailed, in
response to a blind help-wanted newspaper advertise-
ment, his resume and the resumes of three additional
local union members to Toering Electric.6 Jendrasiak
solicited these resumes during union meetings for use in
the salting campaign. In his cover letter to Toering Elec-
tric, Jendrasiak identified all four applicants as registered
apprentices or journeymen and the local Union as the
source of the resumes.
After the advertisement appeared in the newspaper
again in July, Jendrasiak resubmitted the four resumes he
sent in June, along with the resumes of 14 other Local
275 journeymen and apprentices. Fellow union organizer
James Leenhouts gave Jendrasiak 12 of these 14 resumes
from a file of resumes collected for salting purposes.7 Of
the 18 resumes submitted by Jendrasiak, 5 contained no
work history dates,8 another 5 were stale,9 and 1 resume

4 The Union attempted to organize Toering Electric in the early
1980’s and lost a Board-conducted election.
5 All dates hereafter refer to 1996, unless otherwise indicated.
6 The three other applications were for Patrick Cosgrove, Bernard
Hamstra, and Richard Newville. Toering Electric received the two
separate packets of resumes on June 10 and 27.
7 These 12 resumes were from Gary Becklin, Mark Butzow, Jeffrey
Engel, John Fekken, Wayne Harris, Leonard Petznik, Raymond Rager,
George Robinson, Douglas Scott, Leo Smith, Geralyn Spofford, and
Daniel Watters. The other two resumes were Leenhouts’ own and one
that Jeffrey Stadt gave directly to Jendrasiak in response to his solicita-
tion for resumes for use in the salting campaign.
8 Resumes for Cosgrove, Jendrasiak, Scott, and Stadt did not contain
any dates regarding their work histories, so it is impossible to determine
when these resumes were prepared. Hamstra’s resume also did not
contain any dates regarding his work history, but it did indicate that he
had taken educational courses as recently as 1996.
9 Resumes for Becklin, Fekken, Petznik, Rager, and Spofford were
between 1 and 6 years out-of-date. Resumes for Butzow, Engel, Harris,
was from Local 275 member Spofford, who did not ac-
cept a 1995 job offer tendered by Toering Electric under
the settlement agreement. Jendrasiak determined that
only four of the Local 275 members whose resumes he
received from Leenhouts had authorized the use of their
resumes to respond to blind help-wanted advertisements
as part of the Union’s campaign.10
It is undisputed that Toering Electric did not hire any
of the individuals whose resumes it received from Local
275. According to Dennis Van Wyk, Toering Electric’s
office manager, a bid proposal submitted in the summer
of 1996 prompted the blind help-wanted advertisements.
There was no immediate need for electricians. Although
Van Wyk testified that he did consider the resumes, the
fact that they were stale and incomplete led him to con-
clude that the individuals were not interested in employ-
ment. Van Wyk also testified that by late 1996, when
Toering Electric was awarded the contract on which it
had bid in the summer, its existing employees were
available to begin work on the project, eliminating the
need for new hires.
Judge’s Decision
Respondent Toering Electric argued before the judge
that the General Counsel failed to establish that the 18
individuals for whom the Union submitted resumes in
June and July 1996 were truly seeking employment with
the Respondent. According to the Respondent, the Union
submitted their resumes as part of a “salting” campaign
to manufacture unfair labor practice charges and to en-
mesh the Respondent in Board litigation, thereby impos-
ing costs that would eliminate any competitive advantage
the Respondent enjoyed over union contractors. In such
circumstances, the Respondent argues that these indi-
viduals lack statutory employee status and are not enti-
tled to protection against discrimination in hiring based
on their union activity.11

Leenhouts, Newville, Robinson, Smith, and Watter, however, did con-
tain up-to-date work histories.
10 According to Jendrasiak, he confirmed with Butzow, Engel, Leen-
houts, and Robinson their authorization to use their resumes for salting
purposes. Becklin, Fekken, Harris, and Rager testified that they had
given their resumes to the Union to respond to blind help-wanted ad-
vertisements as part of the salting campaign. Leenhouts and Robinson
testified that they knew their resumes were being used to respond to
blind help-wanted advertisements but did not know that Jendrasiak
submitted their resumes to Toering Electric.
11 The Respondents also excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative 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.
TOERING ELECTRIC CO. 227
The judge summarily rejected the Respondent’s argu-
ment and found, among other things, that by refusing to
hire any of the 18 union-affiliated individuals the Re-
spondent violated Section 8(a)(3) and, derivatively, Sec-
tion 8(a)(1).12 The Respondent excepted to the judge’s
finding and renewed its argument that the 18 individuals
were not genuinely interested in seeking employment
and thus were not entitled to statutory protection.
Analysis
1. The scope of statutory protection against
discrimination
In Phelps Dodge Corporation v. NLRB, the Supreme
Court held that Section 8(a)(3)’s proscription against
discrimination in regard to hire extends to discriminatory
practices that affect applicants for employment.13 In pro-
ceedings below, the Board had found, inter alia, that the
employer violated the Act when it refused to reemploy
two former employees because of their union affiliation.
The Supreme Court affirmed, reasoning that
“[d]iscrimination against union labor in the hiring of men
is a dam to self organization at the source of supply.”
The Court explained that “such an embargo . . . was no-
toriously one of the chief obstructions to collective bar-
gaining through self-organization” and that “the removal
of such obstructions was the driving force behind the
enactment of the National Labor Relations Act.”14 Thus,

We adopt, in the absence of exceptions, the judge’s recommended
dismissal of the allegation that Respondent Toering Electric violated
Sec. 8(a)(1) by coercively interrogating employee David Seger.
We shall modify the judge’s recommended Order in accordance with
our decision in Ferguson Electric Co., 335 NLRB 142 (2001), and we
shall substitute a new notice in accordance with our decision in Ishi-
kawa Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534
(6th Cir. 2004).
12 In his supplemental decision, the judge stated that, pursuant to the
Board’s decision in FES, “once the General Counsel has established a
refusal to consider violation, he must then show only that the respon-
dent was hiring, or had plans to hire in order to establish a refusal to
hire violation.” Contrary to the judge’s statement, FES requires proof
that “the applicants had experience or training relevant to the an-
nounced or generally known requirements of the positions for hire, or
in the alternative, that the employer has not uniformly adhered to such
requirements, or that the requirements were themselves pretextual or
were applied as a pretext for discrimination” to establish a refusal-to-
hire violation. FES, supra at 12. This error does not affect our decision
because the judge found, and we agree, that all the alleged discrimina-
tees were qualified for the positions for which they applied.
Consistent with the views stated in CCC Group, Inc., 341 NLRB 96
fn. 2 (2004), enfd. mem. 111 Fed. Appx. 714 (5th Cir. 2004), Member
Schaumber would find that the General Counsel must prove that the
alleged discriminatees met the actual qualifications for the position
established by the employer. Member Schaumber agrees with his col-
leagues, however, that the alleged discriminatees here met the actual
qualifications established by the Respondents.
13 Phelps Dodge, supra, 313 U.S. at 185–186.
14 Id. at 186.
the Court found that the “prohibition against ‘discrimina-
tion in regard to hire’ must be applied as a means toward
accomplishment of the main object of the [Act],”15 i.e., to
eliminate “disruptions to the free flow of commerce.”16
Unlike most subsections of Section 8 of the Act, Sec-
tion 8(a)(3) does not expressly limit its antidiscrimina-
tion protection to individuals who are employees within
the meaning of Section 2(3).17 Neither did the Supreme
Court in Phelps Dodge recognize such a limitation in
holding that Section 8(a)(3) applied to job applicants in
that case. However, subsequent precedent makes clear
that Section 8(a)(3) bars job discrimination only against
individuals who meet the statutory definition of “em-
ployee” in Section 2(3). E.g., NLRB v. Town & Country
Electric, Inc., 516 U.S. 85, 88 (1995) (summarizing
Phelps Dodge as holding that the “statutory word ‘em-
ployee’ includes job applicants”).18 The term “employee”
is defined in Section 2(3) to include “any employee.” Of
course, this definition suffers from the problem inherent
in defining a word in terms of that very same word. The
result is that the Board and the courts have been left with
the task of defining the word in ways that are consistent
with the legislative purpose of the Act. It is primarily the
Board’s task to apply its labor relations expertise in in-
terpreting Section 2(3) in a manner that comports with
the general policies and purposes of the Act. Town &
Country Electric, supra at 88–90; Sure-Tan v. NLRB, 467
U.S. 883, 891–892 (1984).
Obviously, to the extent that Congress specifically ex-
cluded certain categories of individuals from the defini-
tion of employee in Section 2(3), we must adhere to
those exclusions. This does not mean, as the dissent
suggests, that the broad scope of antidiscrimination pro-
visions in Section 8(a)(3) dictates extending the protec-
tions of statutory employees to all other workers who are

15 Id.
16 Id. at 182 (citing Sec. 1 of the Act).
17 For this reason, Judge Learned Hand stated that he would find
8(a)(3) violations for victims of discrimination on the basis of union
affiliation or activity regardless of whether they were currently em-
ployed by the respondent employer. Phelps Dodge Corp. v. NLRB, 113
F.2d 202, 206–207 (2d Cir. 1940) (concurring opinion).
18 The limitation of 8(a)(3)’s antidiscrimination protection to statu-
tory employees is thus logically consistent and coextensive with the
express protections provided in 8(a)(4)’s prohibition of discrimination
against “employees” for filing charges or giving testimony under the
Act and in Sec. 8(a)(1)’s prohibition of interference, restraint, or coer-
cion of “employees” in the exercise of rights guaranteed in Sec. 7.
Notably, the Supreme Court has held that “by its plain terms, thus,
[Sec. 7] confers rights only on employees, not on unions or their non-
employee organizers.” Lechmere, Inc. v. NLRB, 502 U.S. 527, 532
(1992). Consequently, the well-established doctrine that any violation
of Sec. 8(a)(3) automatically constitutes a derivative violation of Sec.
8(a)(1) would be invalid unless Sec. 8(a)(3) was likewise limited to
protecting statutory employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD228
not specifically excluded. Our precedent is to the con-
trary. See, e.g., Brevard Achievement Center, 342 NLRB
982 (2004) (disabled workers having a primarily reha-
bilitative relationship with their employer are not statu-
tory employees); Brown University, 342 NLRB 483, 488
(2004) (graduate student assistants are not statutory em-
ployees); WBAI Pacifica Foundation, 328 NLRB 1273,
1274–1275 (1999) (applicants for unpaid staff positions
are not statutory employees).
In determining whether applicants are statutory em-
ployees, “as the Board has implicitly recognized, . . . the
general policy of not discouraging employees from union
activity by protecting applicants for employment does
not justify protecting all applicants for employment.” E
& L Transport Co. v. NLRB, 85 F.3d 1258, 1267 (7th
Cir. 1996) (citing Pacific American Shipowners Assn., 98
NLRB 582, 596 (1952) (holding that nonemployee appli-
cants for supervisory positions are not protected)).19 Be-
cause the former employees in Phelps Dodge were
clearly interested in reemployment with the employer,
the Court had no occasion to consider whether an indi-
vidual lacking any such interest would be entitled to the
protections afforded a Section 2(3) employee. The Re-
spondent’s exceptions squarely present this issue, to
which we now turn.20
We hold that an applicant for employment entitled to
protection as a Section 2(3) employee is someone genu-
inely interested in seeking to establish an employment
relationship with the employer. Simply put, only those
individuals genuinely interested in becoming employees
can be discriminatorily denied that opportunity on the
basis of their union affiliation or activity; one cannot be
denied what one does not genuinely seek. We further
hold that the General Counsel bears the ultimate burden
of proving an individual’s genuine interest in seeking to
establish an employment relationship with the employer.

19 Accord: Mapes Hotel, 230 NLRB 61, 61 fn. 2 (1977) (finding that
employer did not violate Sec. 8(a)(3) by refusing to hire Margaret
Tuma because she was a “nonemployee applicant for a supervisory
position”).
20 The dissent complains that we are addressing this issue without
the benefit of briefs, oral argument, or a request to reconsider prece-
dent. On the contrary, we view the Respondent’s specific exceptions
and supporting argument on brief as a request to reconsider precedent.
Further, the arguments for and against a change in law are well known.
See, e.g., FES, supra at 29–30 (concurring opinion of Member Brame);
Exterior Systems, Inc., 338 NLRB 677, 679–688 (2002) (separate con-
curring opinions of Members Liebman, Cowen, and Bartlett). More-
over, if a party has properly raised an issue before us, we are certainly
free to change the law when deciding that issue without inviting addi-
tional argument. E.g., Epilepsy Foundation of Northeast Ohio, 331
NLRB 676 (2000), affd. in part and reversed in part 268 F.3d 1095
(D.C. Cir. 2001); St. Elizabeth Manor, Inc., 329 NLRB 341 (1999).
Our holding today is neither revolutionary nor restric-
tive of the statutory rights of employees, and derivatively
of unions, to engage in legitimate organizational or other
protected concerted activities, including salting cam-
paigns. Contrary to the dissent’s protestations, our hold-
ing is consistent with statutory policy, Supreme Court
precedent, and Board practice. It is also necessary to al-
lay reasonable concerns that the Board’s processes can
be too easily used for the private, partisan purpose of
inflicting substantial economic injury on targeted nonun-
ion employers rather than for the public, statutory pur-
pose of preventing unfair labor practices that disrupt the
flow of commerce.
a. The requirement of an actual or anticipate
economic relationship
The relationship between an employer and a putative
job applicant who has no genuine interest in working for
that employer is not the economic relationship contem-
plated and protected by the Act. The Board addressed
this issue in WBAI Pacifica Foundation, supra, where,
after examining and applying relevant Supreme Court
precedent, the Board held that unpaid staff are not statu-
tory employees. First, addressing the Court’s agreement
in Phelps Dodge and Town & Country Electric that ap-
plicants in those cases were entitled to statutory em-
ployee status, the WBAI Pacifica Board emphasized that
“in each case where the Court found statutory employee
status, there was at least a rudimentary economic rela-
tionship, actual or anticipated, between employee and
employer.” 328 NLRB at 1274 (emphasis added).
“Thus,” the Board added, “when the Court stressed the
breadth of Section 2(3) in Town & Country Electric, that
breadth was bounded by the presence of some form of
economic relationship between the employer and the
individual held to have statutory employee status.” Id.21
Similarly, “although the applicants [in Phelps Dodge] did
not receive any form of compensation from the em-
ployer, they were seeking entry to wage-paying jobs and
the discrimination against them had an adverse impact on
those who were already wage earners.” Id.
The Court’s finding of Section 2(3) employee status in
Phelps Dodge and Town & Country Electric was based
on the core statutory policy of protecting employees’
rights to organize and bargain in order to restore equality
of bargaining power and thereby to prevent the disrup-
tion of commerce caused by labor disputes. As the Board

21 As further discussed below, the Court in Town & Country Electric
affirmed as “reasonable” the Board’s holding that the paid union organ-
izers at issue in that case qualified as statutory employees within the
meaning of Sec. 2(3). That case, however, did not involve any issue
concerning the paid organizers’ genuine interest in obtaining work with
the nonunion employer to whom they applied.
TOERING ELECTRIC CO. 229
stated in WBAI Pacifica Foundation, “[t]he vision of a
fundamentally economic relationship between employers
and employees is inescapable.” Id. at 1275; cf. Brown
University, 342 NLRB at 488 (stating that Congress in-
tended the Act to govern relationships that are fundamen-
tally economic in nature); Brevard Achievement Center,
342 NLRB at 984–985 (stating that the Act contemplates
a primarily economic relationship between employer and
employee). Applicants with no genuine aspirations to
work for the respondent employer are indistinguishable
from WBAI Pacifica’s unpaid staff in this respect. There
is no economic aspect, actual or anticipated, to their rela-
tionship with the employer. Neither in the present nor in
the future do they “depend upon the Employer, even in
part, for their livelihood or for the improvement of their
economic standards. They do not work [or intend to
work] for hire and thus the Act’s concern with balancing
the bargaining power between employer and employees
does not extend to them.” WBAI Pacifica Foundation,
supra at 1275. Thus, job applicants who lack a genuine
interest in seeking an employment relationship are not
employees within the meaning of Section 2(3). 22
b. The statutory limitation on the Board’s
remedial authority
Our definition of the scope of Section 2(3) protection
for applicants is also consistent with the remedial provi-
sions of Section 10(c) of the Act. There is no provision in
the Act for punitive remedies; instead, the Board’s reme-
dies are limited to effecting “a restoration of the situa-
tion, as nearly as possible, to that which would have ob-
tained but for illegal discrimination.”23 The Seventh Cir-
cuit has stated that according “any relief” to individuals
who would not have accepted a job even if it had been
offered to them would be inconsistent with these princi-
ples:
The National Labor Relations Act is not a penal statute,
and windfall remedies–remedies that give the victim of
the defendant’s wrongdoing a benefit he would not
have obtained had the defendant not committed any
wrong–are penal. Suppose a salt would have spurned
the employer’s job offer had it been made, yet the Gen-
eral Counsel seeks backpay for him. If the backpay is
awarded, the salt will get money that he would not have

22 The dissent contends that WBAI Pacifica Foundation is distin-
guishable because the applicants there were seeking entry to non-wage-
paying jobs, while salts are applying for wage-paying jobs. We find the
distinction unpersuasive as applied to salts who are not actually seeking
entry to jobs. They, like the applicants for unpaid positions, do not
contemplate any economic relationship with the employer. In fact, they
do not contemplate any kind of working relationship.
23 New England Tank Industries, 147 NLRB 598, 599 (1964) (quot-
ing Phelps Dodge, supra, 313 U.S. at 194).
gotten had the employer rather than violating the Act
offered him a job.24
The Starcon litigation itself underscores the necessity
for requiring that the General Counsel prove, during the
initial unfair labor practice stage of litigation, an appli-
cant’s genuine interest in securing a job. In Starcon In-
ternational v. NLRB, 176 F.3d 948 (7th Cir. 1999), the
court held that no affirmative remedy could be ordered
for an alleged discriminatee unless the General Counsel
proved at the hearing on the merits that he was available
for and willing to accept a job offer from the respondent.
Only 2 of 107 alleged discriminatees testified at the ad-
ministrative hearing conducted pursuant to the court’s
remand instruction, and the judge found that the General
Counsel failed to prove that any of those failing to testify
were available for and willing to accept a job offer when
vacancies arose. The Board affirmed the judge’s finding
under the law of the case established by the court, find-
ing no need to decide whether the same result would fol-
low independently from the application of FES.25 There
is no need to reach that issue in this case either. We
agree, however, with the Seventh Circuit that limiting the
scope of the remedy to the actual harm suffered is consis-
tent with the remedial purposes of the Act. See, e.g.,
Sure-Tan, 467 U.S. at 900 (stating that a “backpay rem-
edy must be sufficiently tailored to expunge only the
actual and not merely speculative consequences of the
unfair labor practices”).
In our view, the policy expressed through the remedial
provisions of Section 10(c) against windfall and punitive
backpay awards further supports holding that only those
job applicants who were actually deprived of employ-
ment opportunities by an employer’s discrimination, i.e.,
those with a genuine interest in seeking to establish an
employment relationship with the employer, are entitled
to protection as statutory employees against hiring dis-
crimination on the basis of union affiliation or activity.
c. The objective of generating unfair labor
practice litigation
The Board’s experience in deciding hiring discrimina-
tion cases confirms that the protections afforded statutory
employees must be limited to job applicants who are
genuinely interested in seeking to establish an employ-
ment relationship with the employer. As shown below,
the absence of any limitation on the scope of protection
for job applicants creates the real and unacceptable pos-
sibility of abuse of the Board’s processes in efforts to

24 Starcon International v. NLRB, 450 F.3d 276, 277–278 (7th Cir.
2006), enfg. 344 NLRB 1022 (2005).
25 344 NLRB 1022, 1023.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD230
accomplish goals fundamentally inconsistent with the
policies and purposes of the Act.
Under the current approach to hiring-discrimination al-
legations, the Board employs an implicit—and effec-
tively conclusive—presumption that any individual who
actually applies for a job is entitled to protection as a
Section 2(3) employee. As a consequence, applicants
have been accorded statutory employee status and have
been alleged as 8(a)(3) discriminatees even when they
have engaged in conduct clearly intended to provoke a
decision not to hire them, or have engaged in antagonis-
tic behavior toward the employer that is wholly at odds
with an intent to be hired. Such conduct has included
mocking a hiring official’s Asian accent while soliciting
workers to quit their jobs and work for a union contrac-
tor;26 putting an arm around a hiring official’s shoulder
and threateningly stating that “you’re messing with the
union now”;27 entering an employer’s office en masse to
apply while videotaping the proceedings;28 and making
outrageous and defamatory statements about the em-
ployer at a public meeting.29
The automatic presumption of an applicant’s genuine
interest in employment with the employer is just as
flawed in the absence of overt antagonism toward the
targeted employer. This is particularly so in the situation
of batched union applications. In some cases, there is
reason to doubt that the submission of batched applica-
tions by a third-party union representative was author-
ized by the putative individual applicants. Even if author-
ized, there is reason to doubt that the applicants had any
real interest in going to work for a nonunion employer.
On the contrary, consistent with the International Un-
ion’s policy directive in this case, those applications may
be submitted for the sole purpose of creating “a prima
facie case of statistical discrimination” upon which to
base unfair labor practice claims. The same purpose may
be ascribed to certain mass application efforts.30
Evidence in this case suggests that Local 275’s salting
campaign had this objective. In the words of then-IBEW
President Berry, the campaign was motivated by the de-
sire to “drive the non-union element out of business.”

26 Exterior Systems, 338 NLRB at 689–692.
27 Smucker Co., 341 NLRB 35, 38 (2004) (indicating that when the
hiring official asked what that meant, the paid union organizer replied
“you’re a smart guy, you figure it out”), enfd. mem. 130 Fed. Appx.
596 (3d Cir. 2005).
28 Tann Electric, 331 NLRB 1014, 1015–1016 (2000); see also Pro-
gressive Electric, Inc., 344 NLRB 426, 432 fns. 2 & 7 (2005), enfd. 453
F.3d 538 (D.C. Cir. 2006).
29 American Steel Erectors, 339 NLRB 1315 (2003).
30 See, e.g., Oil Capital Electric, 337 NLRB 947, 947–948 (2002),
where 20 of 21 salts who applied en masse had no relevant work ex-
perience.
Consistent with this goal, Local 275 filed several unfair
labor practice charges against Toering Electric during the
1994 salting campaign. Toering Electric informally set-
tled those charges by offering employment to six alleged
discriminatees. Those individuals, however, rather than
pursuing that employment (and organizing) opportunity,
failed to show up for work. All of this supports the con-
clusion that the alleged discriminatees from the 1994
campaign were not interested in obtaining employment
opportunities or in organizing Toering Electric’s em-
ployees; instead, they were interested in “put[ing] a big
hurt” on Toering Electric’s business, as Local 275 later
boasted in its March 1995 newsletter.
As mentioned, current Board law permits these cases
to be litigated as potential unfair labor practices because
statutory employee status is conclusively presumed from
the mere submission of an application. In practice, this
means that the issue of an applicant’s genuine interest in
employment can generally be raised only as an affirma-
tive motivational defense by an employer claiming to
have denied the applicant a job, or job consideration,
because it knew or had a good-faith reason to believe that
the applicant had no real interest in working for it.31 Con-
sequently, the General Counsel generally will not present
evidence at the hearing of the applicant’s genuine job
interest. Any employer charged with 8(a)(3) hiring dis-
crimination is put to the task and expense, at every stage
of an unfair labor practice proceeding, of proving the
applicant’s lack of genuine job interest. In addition, the
Board’s resources may be devoted to extended litigation
in cases where there was no actual loss of an opportunity
for work because the putative applicants never intended
to work. As a result, the resources of the federal govern-
ment are used not to promote collective bargaining but to
impose economic injury on designated salting targets.
We recognize that union salting campaigns may in-
volve activity protected by Section 7 of the Act. Al-
though some salts, paid or unpaid, may genuinely desire
to work for a nonunion employer and to proselytize co-
workers on behalf of a union, other salts clearly have no
such interest. In this respect, the Seventh Circuit has ex-
pressed its view that a common aim of union salting
campaigns is “to precipitate the commission of unfair
labor practices by startled employers.”32 In our view

31 See, e.g., cases cited above in fns. 27–30; see also Aztech Electric,
supra at 265 (holding that the respondent bears the defensive burden of
proving that it knew an applicant’s status as a paid union organizer and
denied employment because of the union’s allegedly unprotected salt-
ing strategy of generating unfair labor practice litigation).
32 See Starcon International v. NLRB, 176 F.3d 948, 948 (7th Cir.
1999); Hartman Bros. Heating & Air Conditioning. v. NLRB, 280 F.3d
1110, 1112 (7th Cir. 2002), enfg. 332 NLRB 1343 (2000). See also
Aztech Electric Co., 335 NLRB 260, 274 (2001) (concurring Member
TOERING ELECTRIC CO. 231
submitting applications with no intention of seeking
work but rather to generate meritless unfair labor practice
charges is not protected activity. Indeed, such conduct
manifests a fundamental conflict of interests ab initio
between the employer’s interest in doing business and
the applicant’s interest in disrupting or eliminating this
business.
In the Jefferson Standard case,33 the Supreme Court
recognized an employer’s right to insist on employee
loyalty and on a cooperative employee-employer rela-
tionship when it agreed with the Board that employees
who distributed leaflets disparaging their employer’s
services had engaged in unprotected conduct for which
they could lawfully be discharged, even though the ob-
jective of their leafleting—to extract bargaining conces-
sions—was lawful. The Supreme Court stated that
[t]here is no more elemental cause for discharge of an
employee than disloyalty to his employer. It is equally
elemental that the Taft-Hartley Act seeks to strengthen,
rather than to weaken, that cooperation, continuity of
service and cordial contractual relation between em-
ployer and employee that is born of loyalty to their
common enterprise.34
Our decision today is consistent with these principles.
Clearly, employers are not to be immunized from lawful
economic pressure resulting from labor disputes. How-
ever, there is a meaningful distinction between direct
economic warfare between parties to labor disputes and
the subversion of the Board’s processes by one party for
the objective of inflicting economic injury on the other.
The Board does not serve its intended statutory role as
neutral arbiter of disputes if it must litigate hiring dis-
crimination charges filed on behalf of disingenuous ap-
plicants who intend no service and loyalty to a common
enterprise with a targeted employer. Instead, the Board
becomes an involuntary foil for destructive partisan pur-
poses. The Congressional goal of industrial peace
through the “friendly adjustment of industrial disputes”

Truesdale’s view that “in this case, . . . there is objective evidence that
IBEW Local 441 regarded the filing of as many unfair labor practice
charges as possible, without apparent regard for their merit, as a most
effective weapon serving a destructive purpose unrelated to the orga-
nizing of nonunion work forces”). We do not, as the dissent suggests,
view unfair labor practice charges filed by salting unions as inherently
meritless. However, as discussed above, there is a reasonable basis for
concern that a not insubstantial number of charges are filed without
regard to their merit. Even if such charges are dismissed by the Gen-
eral Counsel during the investigative stage, an employer may be re-
quired to expend time and money in defending against them.
33 NLRB v. Electrical Workers IBEW Local 1229 (Jefferson Stan-
dard), 346 U.S. 464, 472 (1953).
34 Id. at 472.
is not furthered by extending the Act’s protections
against hiring discrimination to such applicants.
We seek to discourage cases where unfair labor prac-
tice allegations of hiring discrimination are filed for this
objective. We therefore believe that a change in law is
warranted so as to better insure against it. We find that
this result is better achieved by shifting the focus with
respect to an applicant’s genuine job interest from the
employer’s proof of a motivational defense to the Gen-
eral Counsel’s proof that an applicant is entitled to the
protected status of a statutory employee. Thus, we will
abandon the implicit presumption that anyone who ap-
plies for a job is protected as a Section 2(3) employee.
As more fully discussed below, we will impose on the
General Counsel the burden of proving the applicant’s
genuine job interest.
d. “Tester” cases
To some extent, a union member who applies to a
nonunion employer for a job in which he has no real in-
terest is comparable to a “tester” in civil rights discrimi-
nation cases, i.e., “an individual who, without the intent
to accept an offer of employment, poses as a job appli-
cant in order to gather evidence of discriminatory hiring
practices.”35 The Seventh Circuit has interpreted Title
VII to afford standing to “testers”;36 other courts have
rejected that interpretation of the scope of Title VII’s
coverage.37 Whatever the merits of the “testers” debate in
the context of Title VII, we find that it sheds little light
on understanding the scope of the Act’s protections
against hiring discrimination. Although the two statutes
have similar features and elements, in this respect they
have distinct purposes and significantly different statu-
tory schemes to accomplish them.
First, Title VII protects “individuals” from discrimina-
tion,38 while only those individuals who are statutory
“employees” are entitled to the protections of the Act.39
Further, under Title VII, Congress authorized an ag-
grieved individual to act as a “private attorney general”
and to pursue claims of employment discrimination by

35 Kyles v. J.K. Guardian Security Services, 222 F.3d 289, 292 fn. 1
(7th Cir. 2000) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363,
370, 374 (1982) (discussing testers in housing discrimination context)).
36 Kyles, supra, 222 F.3d at 298–300.
37 Sledge v. J.P. Stevens & Co., 585 F.2d 625, 641 (4th Cir. 1978)
(holding that tester does not have standing to complain of employer’s
refusal to hire on the basis of impermissible criteria because tester not
seriously interested in job); Fair Employment Council of Greater
Washington, Inc. v. BMC Marketing Corp., 28 F.3d 1268, 1274 (D.C.
Cir. 1994) (same); see also Michael Bowling, “The Case Against Em-
ployment Tester Standing Under Title VII and 42 U.S.C. § 1981,” 101
MICH. L. REV. 235, 238 (2002).
38 Kyles, supra, 222 F.3d at 295.
39 Sec. 2(3); Phelps Dodge, supra, 313 U.S. at 185.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD232
filing a charge with the Equal Employment Opportunity
Commission and a civil action in court.40 No equivalent
provision exists in the Act, which vests exclusive prose-
cutorial authority in the office of the General Counsel.41
Second, Title VII sweeps far more broadly than the
Act, prohibiting not only acts of discrimination, such as
discriminatory refusals to hire, but also the segregation
or classification of any individual on the basis of imper-
missible criteria.42 Indeed, a key premise in the Seventh
Circuit’s holding in Kyles that testers have standing to
sue was that Title VII “created a broad substantive right
that extends far beyond the simple refusal or failure to
hire.”43 The Act contains no comparably broad right.
Hiring discrimination under the Act simply cannot occur
unless the individual actually was seeking an employ-
ment opportunity with the employer. Thus, even assum-
ing the Seventh Circuit has correctly interpreted Title
VII, the same interpretation of antidiscrimination protec-
tion under the Act is not warranted.44
Finally, the court in Kyles addressed only the testers’
standing to sue, not the merits of their Title VII lawsuit.
Referring to the requisite proof of injury, the court
opined that testers could show and be compensated for
“humiliation, embarrassment, and like injuries,” even if
they had no actual interest in working for the employer.
222 F.3d at 300. Such injuries do not constitute “dis-
crimination in regard to hire” under Section 8(a)(3),
which requires proof that “an employee’s employment
conditions were adversely affected by his or her engag-
ing in union or other protected activities.” Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982) (emphasis
added).45

40 42 U.S.C. §§ 2000e-5(b) & (f)(1).
41 Sec. 3(d).
42 42 U.S.C. §§ 2000e-2(a)(2).
43 Kyles, supra, 222 F.3d at 298.
44 Similarly, the Supreme Court’s decision in Havens, supra, that
testers had standing to sue under the antidiscrimination provisions of
the Fair Housing Act is inapposite to our analysis. The Court’s holding
turned on the substantive right of testers to receive truthful information
about available housing, irrespective of their actual interest in renting
or purchasing housing. 455 U.S. at 372–375.
45 See also American Gardens Management Co., 343 NLRB 955,
956 (2004). The dissent contends that salts serve a legitimate “tester”
purpose even if they do not intend to work for the targeted employer
because the Board depends on outside individuals “to uncover and
bring to the Board’s attention unlawful discriminatory practices.” We
would point out that, even though applicants with no interest in em-
ployment cannot themselves be victims of discrimination, nothing in
our decision precludes using evidence of an employer’s animus against
such applicants because of their union affiliation to contribute to a
finding of unlawful discrimination against other salt applicants who do
have a genuine interest in securing employment.
e. Town & Country Electric
To the extent that our decision today affects the salting
activities of paid professional union organizers, it is con-
sistent with the Supreme Court’s decision in Town &
Country Electric.46 There, the Court agreed with the
Board that paid union organizers are not a fortiori ex-
cluded from the Act’s protection because of a division of
loyalties between organizing for the union and working
for the employer. In reaching this conclusion, the Court
noted that a paid union organizer could be subject to the
union’s control as to organizing duties without forfeiting
employee status because he would still be subject to the
employer’s control as to work duties. The Court also
stressed that there was no evidence that the organizers in
that case had engaged in acts of disloyalty or that their
union had suggested, required, encouraged, or condoned
impermissible or unlawful activity. Those assumptions,
in our view, do not apply to the litigation-based salting
campaigns discussed above.
The Court, moreover, did not hold that all individuals
who submit an application must be considered statutory
employees.47 Nor did the Court restrict the Board’s broad
authority to interpret the scope of statutory protections
for applicants, including paid union organizers. To the
contrary, the Court characterized its narrow holding in
the following terms: “We hold only that the Board’s con-
struction of the word ‘employee’ is lawful; that term
does not exclude paid union organizers.”48 The Court
expressly recognized that “[t]his is not to say that the law
treats paid union organizers like other company employ-
ees in every labor law context,” and it specifically de-
clined to express any view on “whether or not Town &
Country’s conduct (in refusing to interview, or to retain,
‘employees’ who were on the union’s payroll) amounted
to an unfair labor practice.”49
2. The modified FES framework
As previously stated, the Board has heretofore gener-
ally permitted litigation of an applicant’s genuine interest
in a job only in the context of an employer’s effort to
prove, as an affirmative defense, that it would have re-
fused to hire or consider an applicant, even in the ab-
sence of union activity, because of the applicant’s lack of
interest. The burden of proof thus borne by respondent
employers is difficult at best because the employer must
prove not only the applicant’s lack of interest but also
that this lack of interest was the reason he was not hired.
As a result, current Board law finds merit in this defense

46 NLRB v. Town & Country Electric, 516 U.S. 85, 98 (1995).
47 Id.
48 Id. at 98 (emphasis added).
49 Id. at 97–98.
TOERING ELECTRIC CO. 233
only in the most extreme cases of overt behavior incon-
sistent with a genuine interest in securing employment.
We believe that, in light of the Act’s overarching pur-
pose, its remedial provisions, and the real and unaccept-
able possibility of abuse of the Board’s processes in liti-
gation-based salting campaigns, the General Counsel
should bear the ultimate burden of proving an applicant’s
genuine interest in obtaining employment. As discussed
above, the Congressional purpose embodied in Section 1
of eliminating industrial strife and encouraging the
peaceful adjustment of labor disputes is not well served
by enabling the use of the Board’s processes as an eco-
nomic weapon to, in the words of IBEW President Berry,
“drive the non-union element out of business.” Simi-
larly, the remedial purposes of Section 10(c) of the Act
are incompatible with awarding windfall backpay to job
applicants who had no actual interest in working for the
respondent employer and would not have accepted a job
even if offered and applied only to precipitate unfair la-
bor practices by the employer. We now hold, for all of
the reasons stated above, that the General Counsel’s bur-
den of proof in all hiring discrimination cases includes
the burden to prove that the alleged discriminatee was an
applicant entitled to protection as a Section 2(3) em-
ployee, i.e., an applicant genuinely interested in seeking
to establish an employment relationship with the em-
ployer.
This requirement embraces two components: (1) there
was an application for employment,50 and (2) the applica-
tion reflected a genuine interest in becoming employed
by the employer. As to the first component, the General
Counsel must introduce evidence that the individual ap-
plied for employment with the employer or that someone
authorized by that individual did so on his or her behalf.
In the latter instance, agency must be shown.51
As to the second component (genuine interest in be-
coming employed), the employer must put at issue the
genuineness of the applicant’s interest through evidence
that creates a reasonable question as to the applicant’s
actual interest in going to work for the employer.52 In

50 The requirement that the General Counsel must prove that an indi-
vidual actually applied for a job is not new. See, e.g., Bay Electric, 323
NLRB 200, 202 (1997) (stating that the General Counsel did not meet
his initial burden because he did not show that alleged discriminatee
Ellis was an applicant).
51 The fact that applications may be submitted in a batch is not, in
and of itself, sufficient to destroy genuine applicant status, provided
that the submitter of the batched applications has the requisite authori-
zation from the individual applicants.
52 Unless the employer has admitted an applicant’s statutory em-
ployee status in response to a specific complaint allegation of such
status, the matter can be raised and litigated at the unfair labor practice
hearing.
other words, while we will no longer conclusively pre-
sume that an applicant is entitled to protection as a statu-
tory employee, neither will we presume, in the absence
of contrary evidence, that an application for employment
is anything other than what it purports to be. Conse-
quently, once the General Counsel has shown that the
alleged discriminatee applied for employment, the em-
ployer may contest the genuineness of the application
through evidence including, but not limited to the follow-
ing: evidence that the individual refused similar em-
ployment with the respondent employer in the recent
past; incorporated belligerent or offensive comments on
his or her application; engaged in disruptive, insulting, or
antagonistic behavior during the application process; or
engaged in other conduct inconsistent with a genuine
interest in employment. Similarly, evidence that the ap-
plication is stale or incomplete may, depending upon the
circumstances, indicate that the applicant does not genu-
inely seek to establish an employment relationship with
the employer.53 Assuming the employer puts forward
such evidence, the General Counsel, to satisfy the genu-
ine applicant element of a prima facie case of hiring dis-
crimination, must then rebut that evidence and prove by a
preponderance of the evidence that the individual in
question was genuinely interested in seeking to establish
an employment relationship with the employer. Thus, the
ultimate burden of proof as to the Section 2(3) status of
the alleged discriminatee-applicant rests with the General
Counsel.54

Our dissenting colleagues argue that this approach will require the
General Counsel to spend much time and resources preparing to litigate
an issue which may never arise. We disagree. The General Counsel
will have a conservation-of-resources incentive to investigate the bona
fide applicant issue as soon as he receives a charge, for if the alleged
victim does not qualify, the General Counsel will not have to continue
the investigation, much less prepare a complaint alleging hiring dis-
crimination. Moreover, as the Case Handling Manual notes, it is the
General Counsel’s general policy to solicit the charged party’s position
early in an investigation. See Secs. 10052.5, 10054.4. A charged party
has every incentive to dispute an alleged discriminatee’s genuine appli-
cant status from the start, thus placing the General Counsel on notice
that such status may be an issue in the case. If the General Counsel
decides to issue a complaint, he may, as noted above, elect to specifi-
cally allege statutory employee status. A denial of such status by the
respondent would afford clear notice to the General Counsel, well in
advance of trial, of the need to prepare for litigation of the issue. Con-
versely, the failure to deny any such allegation would serve to limit the
issues to be tried consistent with Sec. 102.20 of the Board’s Rules and
Regulations (any allegation not specifically denied or explained in an
answer filed, unless the respondent states that he is without knowledge,
“shall be deemed to be true and shall be so found by the Board, unless
good cause to the contrary is shown.”).
53 Such evidence may also be probative of the employer’s rebuttal
burden under FES, as would the applicant’s failure to apply in the man-
ner lawfully required by the employer.
54 Given this burden, Member Schaumber anticipates that charges
filed solely for the objective of imposing litigation costs on a salting
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD234
We emphasize that proof of an applicant’s genuine job
interest is an element of the General Counsel’s prima
facie case under FES. Thus, if at a hearing on the merits,
the employer puts forward evidence reasonably calling
into question the applicant’s genuine interest in employ-
ment, the General Counsel must prove the applicant’s
genuine interest by a preponderance of the evidence in
order to prove that the applicant is an employee within
the meaning of Section 2(3). An employer’s motivation
for making an alleged discriminatory hiring decision
does not become relevant until the General Counsel satis-
fies his burden of proof on the applicant’s statutory em-
ployee status. This is consistent with the extant FES test,
under which proof of an employer’s union animus in
refusing to hire an applicant is irrelevant if the General
Counsel fails to meet his initial burden of proving that
the employer was hiring or had concrete plans to hire at
relevant times, or that the alleged discriminatees had the
relevant experience or training. See, e.g., Bill’s Electric,
Inc., 350 NLRB 292, 295 fn. 14 (2007).55 It is likewise
consistent with the Wright Line test for allegations of
discriminatory discharge and discipline, under which no
violation will be found unless the General Counsel
proves that an employer’s antiunion discrimination af-
fects statutory employees. See Parker-Robb Chevrolet,
262 NLRB 402, 404 (1982), review denied sub nom.
Automobile Salesmen’s Local 1095 v. NLRB, 711 F.2d
383 (D.C. Cir. 1983) (an employer may lawfully discharge
a statutorily excluded supervisor for engaging in prounion
conduct even though its motivation for the discharge was to
cause employees to reconsider or abandon their own pro-
tected concerted activity).
3. Application of the new framework to this case
We recognize that the parties, when litigating this case,
did not have the benefit of the guidance set forth in this
opinion. In particular, the General Counsel was unaware
of the burden placed upon him.
Given the current state of the record evidence on the
issue of the June and July 1996 alleged discriminatees’
status as applicants for employment, we think it prudent
and fair to remand this case to the judge in order to apply
to the facts of this case the new analytical framework set
forth above for determining whether an individual appli-
cant is an employee under Section 2(3).56 Although there

target will be screened out at an early stage of the Region’s investiga-
tion.
55 Thus, contrary to the dissent, we neither discard nor reorient the
FES test.
56 Our usual practice is to apply new rules not only “to the case in
which the issue arises,” but also “to all pending cases in whatever
stage.” Deluxe Metal Furniture Co., 121 NLRB 995, 1006–1007
(1958). We follow that practice here.
is some evidence in the record that suggests the alleged
discriminatees’ genuine interest in seeking employment,
there is also evidence that suggests otherwise.
For example, although Rager testified that he would
have considered taking a job with the Respondent if one
were offered, he also testified that he was fully employed
elsewhere and was not actively looking for work. Addi-
tionally, his resume was 6 years out of date. Harris simi-
larly testified that he was fully employed elsewhere and
was not actively looking for work. Cosgrove, Hamstra,
Stadt, Scott, and Petznik did not testify, and their re-
sumes were stale or incomplete. Although Jendrasiak
testified that these five alleged discriminatees authorized
the use of their resumes for salting and organizational
purposes, he did not testify whether he was authorized to
use their resumes for the purpose of obtaining work for
them with Toering Electric. Smith, Spofford, and Watters
also did not testify at the hearing. Thus, there is no evi-
dence that these alleged discriminatees were genuinely
interested in seeking an employment relationship with
Toering Electric, that they indicated to anyone such an
interest, or that they authorized, or even knew of, the
Union’s submission of their resumes to Toering Electric.
Additionally, Spofford was offered a job by Toering
Electric in 1995 but did not show up for work.
The General Counsel and the Respondent are entitled
to an opportunity to adduce additional evidence relevant
to the issue of whether the alleged discriminatees are
Section 2(3) employees under the analytical framework
set forth above. Therefore, we shall remand this issue to
the judge for further factual development and considera-
tion of this issue consistent with this Decision and Order.
4. Remaining issues
(a) Refusal to hire Jendrasiak in 1995
The judge found, and we agree, that the Respondents
violated Section 8(a)(3) and (1) by failing to consider or
to hire James Jendrasiak on about August 22, 1995 and
on September 22, 1995.57 Importantly, the Respondents
did not challenge Jendrasiak’s status as a genuine appli-
cant on these occasions. Accordingly, under the frame-
work set out above, because the General Counsel intro-
duced Jendrasiak’s applications and elicited testimony
from Jendrasiak that he applied in a manner consistent
with the Respondents’ application procedures, and there
is no evidence in the record to the contrary, we find that
the General Counsel has met his burden of proving by a
preponderance of the evidence that Jendrasiak was an

57 Inasmuch as Jendrasiak was a salt, the duration of his backpay pe-
riod and his continuing entitlement to an offer of instatement shall be
determined in accordance with Oil Capitol Sheet Metal, Inc., 349
NLRB 1348 (2007).
TOERING ELECTRIC CO. 235
applicant entitled to protection as a statutory employee
on these occasions.
We adopt, for the reasons stated by the judge, his find-
ing that Respondent Foster Electric violated Section
8(a)(3) and (1) when it refused to hire Jendrasiak in Sep-
tember 1995. The judge also found that Respondent To-
ering Electric violated Section 8(a)(3) and (1) when it
refused to hire Jendrasiak in August 1995. In their excep-
tions to the judge’s findings, the Respondents contend
that the decision not to hire Jendrasiak in August 1995
was lawfully based on the following legitimate, nondis-
criminatory reasons: (1) Jendrasiak lied on his applica-
tion; (2) he had “terrible references”; (3) he failed to list
work experience on the application he submitted to Toer-
ing Electric; and (4) his pay expectations were “way out
of line.” We reject the contention that Jendrasiak was
disqualified by virtue of misrepresentations on his appli-
cation for the reasons stated by the judge. We reject the
Respondents’ remaining contentions for the reasons that
follow.
The Respondents contend that Jendrasiak was lawfully
rejected because they received a “bad” reference for Jen-
drasiak from a prior employer. As more fully set forth in
the judge’s decision, in August 1995, union organizer
Jendrasiak applied for work through American Careers,
an employment agency, in response to an ad placed by
David Toering, who was seeking journeymen electricians
for both Toering Electric and Foster Electric. American
Careers service manager John Williams subsequently
interviewed Jendrasiak. During the interview, Williams
called David Toering, who asked Williams to find out
where Jendrasiak acquired the hours needed to become a
journeyman and if any of his prior employers were union
shops. When Jendrasiak either said “no” or avoided an-
swering the question, he was sent to Toering Electric’s
offices.
While Jendrasiak was en route, Williams contacted
one of Jendrasiak’s prior employers, Kemco Electric, and
discovered that it was, in fact, a union contractor. Wil-
liams immediately called David Toering and apprised
him of this information. Toering told Williams to con-
tinue checking Jendrasiak’s references.
When Jendrasiak arrived at Toering Electric’s office,
he was told that there had been a mistake and that he
should call Williams. Thereafter, Jendrasiak filled out a
Toering Electric application on which he indicated that
he was a “voluntary union organizer.” Toering told Jen-
drasiak that he had applied for a job with American Ca-
reers, not with his company. After Jendrasiak left, Toer-
ing called Williams and told him that he had had some
bad dealings with “these guys,” i.e., union members, in
the past and did not want to interview Jendrasiak.
Although not mentioned by the judge in his decision,
Williams testified that after Jendrasiak had left Toering
Electric’s office, Toering called him and asked him to
continue checking Jendrasiak’s references. Williams tes-
tified that one of Jendrasiak’s prior employers, Mellema
Electric, told him that Jendrasiak was “hired through
union hall—very much a complainer—would never be
hired back—just quit one day.” Another prior employer
checked by Williams, Spencer-Redner, indicated that
Jendrasiak was a “good employee.”
It is evident from the foregoing that the Respondents
rejected Jendrasiak’s application before they knew of the
“terrible” reference from Mellema Electric. Accordingly,
we reject the Respondents’ contention that the reference
in any way justifies their refusal to consider or hire him
on August 22, 1995.
The Respondents’ contention that they lawfully re-
fused to consider Jendrasiak because his application with
Toering Electric did not list prior work experience or
previous employers is also without merit. It is undisputed
that Jendrasiak provided this information to American
Careers, and that American Careers faxed Toering Elec-
tric a copy of the application that Jendrasiak completed
for American Careers. That document, which is part of
the record in this case, lists Jendrasiak’s prior employers.
This information was incorporated by reference in the
application that Jendrasiak subsequently completed at
Toering Electric’s office. Accordingly, Jendrasiak did
not fail to provide the Respondents with information
about his work history and prior employers at the time he
applied for work.
The Respondents further contend that Jendrasiak
would have been rejected because he sought wages in
excess of those paid by the Respondents. The record evi-
dence belies this contention. On the application he sub-
mitted to Toering Electric, Jendrasiak stated that he
sought a wage of $18 per hour. The Respondents contend
that this is far in excess of the $12 to $12.50 per hour that
they pay starting journeymen. However, David Toering
admitted that in April 1997 he hired John Haggerty, an
out-of-state journeyman without a Michigan electrician’s
license, at a wage rate of $15.50 per hour even though
the Respondents classified him as an apprentice because
he did not have a license. Toering also admitted that the
fact that an applicant has earned more from a prior em-
ployer has not excluded nonunion applicants from con-
sideration by the Respondents, inasmuch as the Respon-
dents hired David Segar as an apprentice electrician at a
rate of pay much lower than he had received from prior
employers.
As noted above, we have adopted the judge’s finding
that the Respondents’ failure to consider or hire Jendra-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD236
siak in August 1995 was motivated by his union affilia-
tion. We rely on the direct evidence of unlawful motiva-
tion cited by the judge in his decision. In addition, having
concluded that the Respondents’ stated reasons for their
actions are false, we find that the circumstances of this
case warrant an inference that their true motivation was
an unlawful motive that the Respondents wished to con-
ceal.58
(b) Single employer/agency
For the reasons stated by the judge, we adopt his find-
ing that the Respondents, Toering Electric and Foster
Electric, are not a single employer. For the reasons that
follow, as well as the reasons stated by the judge, we also
adopt the judge’s finding that David Toering, the presi-
dent of both companies, and Dennis Van Wyk, Toering
Electric’s office manager, were agents of both Toering
Electric and Foster Electric for the purpose of consider-
ing and hiring applicants for employment in 1995 and
1996.
The Board applies common law principles when exam-
ining whether a person is an agent of the employer.59
Agency is established when there is actual, or express,
authority to engage in the conduct.60 Actual authority
refers to the power of an agent to act on his principal’s
behalf when that power is created by the principal’s
manifestation to him. That manifestation may be either
express or implied.61 Agency may also be established by
a showing of apparent authority, which results from a
manifestation by the principal to a third party that creates
a reasonable basis for the latter to believe that the princi-
pal has authorized the alleged agent to perform the acts
in question.62
Applying these principles to the facts of this case, we
find, in agreement with the judge, that Toering and van
Wyk were agents of both Respondents.63 In support of
this finding, the judge found as follows: (1) when placing
an order for electricians with American Careers, a job
placement agency, in August 1995, David Toering told
American Careers Service Manager John Williams that
he was seeking journeymen for both companies; (2) Fos-
ter Electric Office Manager Bruce Bartels testified that
he always contacts van Wyk when Foster needs electri-
cians; and (3) van Wyk testified that he handled the fi-

58 Richard Mellow Electrical Contractors Corp., 327 NLRB 1112,
1115 fn. 17 (1999).
59 Electrical Workers Local 98 (MCF Services), 342 NLRB 740,
741–743 (2004).
60 Id.
61 Id.
62 Id.
63 The Respondents admitted, in their answer to the complaint, that
David Toering is an agent of Respondent Toering Electric.
nancial arrangements when Toering Electric lent em-
ployee William Brooks to Foster Electric. In addition to
these facts, we note that David Toering was the president
of both companies. The Respondents’ common applica-
tion form states that only the president of the company
“has any authority to enter into any agreement for em-
ployment for any specific or indefinite period of time.”
Under all the circumstances of this case, we find that
Toering and van Wyk had at least apparent authority to
act on behalf of both Respondents for the purpose of
considering and hiring applicants for employment in
1995 and 1996.64
AMENDED CONCLUSIONS OF LAW
1. By refusing to interview, consider, and hire James
Jendrasiak on or about August 22, 1995, Respondents
Toering Electric Company and Foster Electric, Inc. have
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(3) and (1) and Sec-
tion 2(6) and (7) of the Act
2. By refusing to consider for hire and hire James Jen-
drasiak on September 22, 1995, Respondent Foster Elec-
tric, Inc. violated Section 8(a)(3) and (1).
3. Respondents, through David Toering, did not
unlawfully interrogate employee David Segar in Septem-
ber 1996 in violation of Section 8(a)(1) of the Act.
ORDER
A. The National Labor Relations Board orders that the
Respondent, Toering Electric Company, Grand Rapids,
Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to consider for hire and refus-
ing to hire applicants for employment on the basis of
their union affiliation or activity or Respondent’s belief
or suspicion that they may engage in organizing activity
if they are hired.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
James Jendrasiak instatement to the position for which he
applied on or about August 22, 1995, or, if that job no

64 Richmond Toyota, 287 NLRB 130, 131 (1987) (vice president-
general manager, who was in charge of day-to-day operations and was
highest ranking official at its facility, had, at the very least, apparent
authority to recognize union); Diehl Equipment Co., 297 NLRB 504 fn.
2 (1989) (secretary-bookkeeper had apparent authority to provide in-
formation and answer questions relative to application forms where,
inter alia, her job routinely involved handing applications to individuals
and receiving completed applications from them).
TOERING ELECTRIC CO. 237
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privi-
leges he would have enjoyed.
(b) Make James Jendrasiak whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him in the manner set forth in the
remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to its unlawful refusal to con-
sider for employment and refusal to hire James Jendra-
siak, and within 3 days thereafter notify him in writing
that this has been done and that the refusal to consider
him for employment and refusal to hire him will not be
used against him in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Grand Rapids, Michigan, copies of the at-
tached notice marked “Appendix A.”65 Copies of the
notice, on forms provided by the Regional Director for
Region 7, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
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 al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by Respondent Toering Electric Company at any
time since August 22, 1995.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

65 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.”
B. The National Labor Relations Board orders that the
Respondent, Foster Electric, Inc., Muskegon, Michigan,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to consider for hire and refus-
ing to hire applicants for employment on the basis of
their union affiliation or activity or Respondent’s belief
or suspicion that they may engage in organizing activity
if they are hired.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
James Jendrasiak instatement to the positions for which
he applied on or about August 22, 1995, and September
22, 1995, or, if those jobs no longer exist, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges he would have en-
joyed.
(b) Make James Jendrasiak whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him in the manner set forth in the
remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to its unlawful refusal to con-
sider for employment and refusal to hire James Jendra-
siak, and within 3 days thereafter notify him in writing
that this has been done and that the refusal to consider
him for employment and refusal to hire him will not be
used against him in any way.
(d) Preserve and, within 14 days of a request or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Muskegon, Michigan, copies of the attached
notice marked “Appendix B.”66 Copies of the notice, on
forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-

66 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD238
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by Respondent Foster Electric, Inc., at any time since
August 22, 1995.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the allegations regarding
Respondent Toering Electric Company’s refusal to hire
the 18 alleged discriminatees whose resumes were sub-
mitted to it by the Union in June and July 1996 are sev-
ered from this case and remanded to the administrative
law judge for appropriate action as discussed above.
IT IS FURTHER ORDERED that the administrative law
judge shall prepare a second supplemental decision set-
ting forth credibility resolutions, findings of fact, conclu-
sions of law, and a recommended Order, as appropriate
on remand. Copies of the supplemental decision shall be
served on all parties, after which the provisions of Sec-
tion 102.46 of the Board’s Rules and Regulations shall
be applicable.
MEMBERS LIEBMAN and WALSH, dissenting in part.
Today’s decision continues the Board’s roll-back of
statutory protections for union salts who seek to uncover
hiring discrimination by nonunion employers and to or-
ganize their workers. The Board has recently acted to
minimize the economic consequences for employers who
discriminate against salts, by shifting the burden of proof
to the General Counsel with respect to the length of the
backpay period.1 Now, the majority goes much farther.
Without the benefit of briefs, oral argument, or even a
request to reconsider precedent, it legalizes hiring dis-
crimination in some, perhaps many, cases involving salts,
by requiring the General Counsel to prove that a job ap-
plicant was “genuinely interested in seeking to establish
an employment relationship.” Seven years ago, a full
Board issued FES,2 which provided clarity and consis-
tency for parties litigating hiring-discrimination cases.

1 Oil Capitol Sheet Metal, Inc., 349 NLRB 1348 (2007).
2 FES, 331 NLRB 9 (2000), supplemented 333 NLRB 66 (2001),
enfd. 301 F.3d 83 (3d Cir. 2002).
That carefully considered framework is discarded by the
majority. In its place, the majority reorients the focus in
hiring-discrimination cases from employer motive to
applicant intent, holding that applicants whose “genuine
interest” cannot be established are not even statutory
employees, and so may freely be discriminated against.
The majority’s new approach is impossible to recon-
cile with the National Labor Relations Act, with its poli-
cies, and with Supreme Court precedent.3 It refuses to
recognize that Federal labor law permits employees to
pursue their own economic interests in organizing, in
eliminating antiunion discrimination, and in protecting
the gains won by unionized workers, through means that
have an adverse impact on employers—especially em-
ployers who break the law. The Board, with the approval
of the courts, has long treated salting as a legitimate tac-
tic. But that era seems to be ending.
Below, we explain how current law appropriately ad-
dresses the genuine-applicant issue. We then refute the
majority’s reasons for overturning the existing legal
framework and demonstrate that the approach adopted by
the majority is not permitted by the Act. Finally, we
identify critical flaws in the new standard, even consid-
ered on its own terms.
I.
This case properly should be decided under the ana-
lytical framework established by the Board in FES, su-
pra, to govern refusal-to-hire and refusal-to-consider
violations under Section 8(a)(3) of the Act. Acting with
the benefit of briefing from the litigants and various
amici curiae, as well as oral argument, the FES Board set
forth a comprehensive framework making clear the ele-
ments of a violation, the respective burdens of the par-
ties, and the stage at which issues were to be litigated.
FES rests on two bedrock principles of labor law ap-
proved by the Supreme Court: First, applicants for em-
ployment—including salts who apply for employment as
part of a union’s organizing efforts—are statutory em-
ployees under Section 2(3), entitled to the Act’s protec-
tion. See NLRB v. Town & Country Electric, Inc., 516
U.S. 85 (1995) (unanimously approving Board’s holding
that paid union organizers who seek employment are
statutory employees); Phelps Dodge Corp. v. NLRB, 313
U.S. 177 (1941) (approving Board’s holding that appli-
cants for employment are statutory employees). Second,

3 We agree with the majority’s findings that: (1) the Respondents
unlawfully refused to consider and hire James Jendrasiak on August 22,
1995; (2) the Respondent Foster Electric, Inc., unlawfully refused to
consider and hire Jendrasiak on September 22, 1995; and (3) the Re-
spondents did not unlawfully interrogate David Segar in September
1996. No exceptions were filed to the judge’s dismissal of the Segar
allegation.
TOERING ELECTRIC CO. 239
violations of Section 8(a)(3), which prohibits “discrimi-
nation in regard to hire,” turn on the question of the em-
ployer’s motive. See NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393 (1983) (approving Board’s
framework for analyzing discharge cases under Sec.
8(a)(3), as established in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982)).4
In accordance with those principles, FES places the
burden on the General Counsel, in a refusal to hire case,
to show that the employer was hiring or had concrete
plans to hire, that a union applicant had the relevant ex-
perience or training, and that antiunion animus contrib-
uted to the employer’s decision not to hire the applicant.
331 NLRB at 12.5 If the General Counsel carries that
initial burden, the burden shifts to the employer to show
“that it would not have hired the applicants even in the
absence of their union activity or affiliation.” Id. at 12.
The FES Board rejected the position of then-Member
Brame, that the General Counsel should be required to
prove that the applicant had a “bona fide interest in em-
ployment” with the respondent employer. Id. at 26–27
(concurring opinion of Member Brame). But FES left
available affirmative defenses based on lawful employer
motives.6 Thus, the FES framework allows an employer
to prove that, notwithstanding its antiunion animus, it
honestly believed that the applicant was not interested in
being hired, and that this was the actual reason he was
not hired or considered.7 (The majority repeatedly mis-
states this burden as requiring employers to prove that, in
fact, the applicant lacked a genuine interest in employ-
ment.)8

4 See also Radio Officers’ Union v. NLRB, 347 U.S. 17, 42–44
(1954). As the Supreme Court has explained,
The language of Section 8(a)(3) is not ambiguous. The unfair labor
practice is for an employer to encourage or discourage [union] mem-
bership by means of discrimination.
Id. at 42.
5 The FES Board also limited the remedial exposure of employers in
the refusal-to-hire context by requiring the General Counsel to establish
that there was at least one available opening for each applicant. Id. at
12.
6 See id. at 12 fn. 6 (noting that decision does not affect precedent
governing affirmative defenses).
7 Cf. Aztech Electric Co., 335 NLRB 260, 265 (2001) (finding that
employer failed to prove that it relied on alleged “disabling conflict” of
union salts in refusing to hire them, and rejecting employer’s argument
that salts were not statutory employees), enfd. in relevant part 323 F.3d
1051 (D.C. Cir. 2003). See also Lackawanna Electrical Construction,
337 NLRB 458 (2002) (employer was not entitled to introduce addi-
tional evidence with respect to “disabling conflict” defense where em-
ployer did not, in fact, rely on existence of supposed conflict in refusing
to hire paid union organizers).
8 Cf. Doctor’s Hospital of Staten Island, Inc., 325 NLRB 730 fn. 3
(1998) (establishing affirmative defense in Sec. 8(a)(3) discharge case
did not require employer to show that employee “had in fact engaged in
Until today, the protection of the Act has extended to
all applicants for paid employment, including union salts.
Apart from statutory-employee status, which the Act
grants very broadly,9 there has been no other status, such
as being a “genuine applicant,” that must be established
to claim protection. See, e.g., Progressive Electric, Inc.
v. NLRB, 453 F.3d 538, 551–553 (D.C. Cir. 2006), enfg.
344 NLRB 426 (2005).10
Instead, the focus in hiring-discrimination cases has
been on the motive of the employer. That focus is dic-
tated by Section 8(a)(3). The ultimate question under
that provision is whether the employer’s rejection of an
applicant was motivated by antiunion animus. It makes
no difference whether the union applicant coveted the
job, detested the job, or simply wished to test his em-
ployability and the employer’s adherence to the law.
Cases like this one illustrate that some employers simply
maintain and enforce a policy of refusing to hire union
applicants, without regard to an applicant’s qualifica-
tions, let alone the extent of the applicant’s interest in the
job. The refusal to hire or consider a union applicant,
solely because of his union affiliation, surely implicates
the prohibition of Section 8(a)(3) against “discrimination
in regard to hire.” 29 U.S.C. §158(a)(3).
The Supreme Court has explained why this is so, in
upholding the Board’s view that job applicants are statu-
tory employees:
Discrimination against union labor in the hiring of men
is a dam to self organization at the source of supply.
The effect of such discrimination is not confined to the
actual denial of employment; it inevitably operates
against the whole idea of the legitimacy of organiza-
tion. In a word, it undermines the principle which . . .

misconduct,” but simply to show that employer “possessed a good-faith
belief . . . that [the employee] engaged in misconduct and that belief
was the motivating cause of the discharge”).
9 The Board historically has interpreted Sec. 2(3) of the Act to in-
clude “members of the working class generally.” Briggs Mfg. Co., 75
NLRB 569, 570 (1947). The Supreme Court consistently has upheld
the Board’s broad interpretation. See, e.g., Sure-Tan, Inc. v. NLRB, 467
U.S. 883, 891 (1984) (upholding Board’s determination that undocu-
mented aliens are statutory employees and observing that the “breadth
of §2(3)’s definition is striking: the Act squarely applies to ‘any em-
ployee’”). See also Phelps Dodge, supra, 313 U.S. at 191 (observing,
with respect to the Board’s remedial authority under Sec. 10(c) of the
Act, that “[t]o circumscribe the general class, ‘employees,’ we must
find authority either in the policy of the Act or in some specific delimit-
ing provision of it”).
10 See also Contractors’ Labor Pool, Inc. v. NLRB, 323 F.3d 1051,
1061 (D.C. Cir. 2003) (“An employee does not lose his protected status
merely because he is a salt. Rather, he may lose it if he engages in
unprotected activity that emanates from disabling conflicts arising in
connection with salting”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD240
is recognized as basic to the attainment of industrial
peace.
Phelps Dodge, supra, 313 U.S. at 185 (emphasis added).
Thus, the Act’s aims are furthered by finding unlawful an
employer’s refusal to hire or consider an applicant because
of his union affiliation, even where it cannot be established
that an applicant would have accepted a job if offered.
The FES Board drew on the same underlying principle
in holding that an employer violates Section 8(a)(3)
when it refuses to consider an applicant because of his
union affiliation, even if the employer is not hiring at the
time. 331 NLRB at 16. Such a refusal sends the mes-
sage to future applicants (and present employees) that
they will be discriminated against based on their union
activity and thereby deters them from engaging in such
activity. Id.11
The Supreme Court has employed a similar analysis in
rejecting the argument that, because the statutory defini-
tion of “employee” could be read to exclude a person
who has “obtained other regular and substantially
equivalent employment,” the Board was powerless to
order reinstatement of a discharged worker who had
found another job. The Board’s authority, the Court ex-
plained, was not “confine[d] . . . to the correction of pri-
vate injuries.” Phelps Dodge, supra, 313 U.S. at 192–
193. Rather, the Board has authority to further “the cen-
tral purpose of the Act, directed as that is toward the
achievement and maintenance of workers’ self-
organization.” Id. at 193.
Simply put, then, there is a compelling statutory inter-
est in uncovering, redressing, and deterring hiring dis-
crimination under the National Labor Relations Act, as
under Title VII of the Civil Rights of 1964, where
“tester” applicants have been held to have standing to
bring hiring-discrimination claims.12 That interest is

11 A refusal to consider in such circumstances, the FES Board stated,
is “just as discouraging, and just as obviously discrimination in regard
to hire, as the legendary ‘No Irish need apply’ signs of decades past.”
331 NLRB at 16.
12 The Seventh Circuit has found “no support in Title VII for a re-
quirement that a job applicant must have a bona fide interest in working
for a particular employer if she is to make out a prima facie case of
employment discrimination.” Kyles v. J.K. Guardian Security Services,
222 F.3d 289, 300 (7th Cir. 2000) (holding that testers who pose as job
applicants to gather evidence of discriminatory hiring practices have
standing to sue). The federal agency charged with the enforcement of
Title VII, the Equal Employment Opportunity Commission (EEOC),
has adopted the position that fair-employment testers have standing.
See, e.g., EEOC Notice No. N-915.002 (“Enforcement Guidance:
Whether ‘Testers’ Can File Charges and Litigate Claims of Employ-
ment Discrimination”) (May 22, 1996), 1996 WL 33161339, available
at http://www.eeoc.gov/policy/docs/testers.html.
As cases like Phelps Dodge demonstrate, the majority gravely mis-
understands the scope of the National Labor Relations Act in arguing
promoted by adhering to the FES framework, and the
principles that inform it, in dealing with the “genuine
applicant” issue.
II.
The majority, however, breaks completely with estab-
lished law, while insisting that it is merely modifying the
FES framework and that its decision “is neither revolu-
tionary nor restrictive of the statutory rights of employ-
ees.” “Requiring that the General Counsel prove an ap-
plicant’s genuine interest in securing employment,” the
majority asserts, “is essential to the effective administra-
tion of the Act.”
That claim is mistaken, as we will show. The majority
defends its decision to overturn the law as necessary to
combat abuses associated with union salting campaigns.
Its position, however, rests on three fundamentally
flawed premises: (a) that unfair labor practice charges
filed by salts are inherently “meritless”; (b) that “non-
genuine applicants” engage in disloyal behavior, unpro-
tected by the Act, by participating in salting campaigns;
and (c) that the current FES framework does not ade-
quately deal with such abusive application practices as
may exist. Notably, the General Counsel, who is respon-
sible for investigating unfair labor practice charges and
for prosecuting complaints before the Board,13 has never
made such claims—and has never been asked for his
views in this case.
A.
The law is clear that union salts who apply for work
are statutory employees and that salting is protected,
concerted activity under Section 7 of the Act, even if its
aim is to provoke an unfair labor practice. See, e.g., M J.
Mechanical Services, 324 NLRB 812, 813–814 (1997),
enfd. mem. 172 F.3d 920 (D.C. Cir. 1998). That is the
Board’s established view, and it has been approved by
the courts. As the United States Court of Appeals for the
District of Columbia Circuit has observed, citing the
Board’s decisions, “even when a salting campaign is
intended in part to provoke an employer to commit unfair
labor practices, union organizers retain their status as

that the Title VII tester cases have no relevance here. The Act is not
significantly narrower than Title VII in terms of the persons it protects,
given the very broad definition of statutory employees. Nor does the
Act reach a narrower class of employer conduct. Sec. 8(a)(3) broadly
reaches “discrimination in regard to hire,” and every violation of Sec.
8(a)(3) violates Sec. 8(a)(1), which makes it an unfair labor practice for
an employer “to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 7.” See, e.g., Waumbec
Mills, Inc., 15 NLRB 37, 46 (1939), enfd. as modified 114 F.2d 226
(1st Cir. 1940) (holding that discriminatory refusal to hire violated
statutory precursor to Sec. 8(a)(1)).
13 See Sec. 3(d) of the Act, 29 U.S.C. §153(d).
TOERING ELECTRIC CO. 241
employees.” Casino Ready Mix, Inc. v. NLRB, 321 F.3d
1190, 1197 (D.C. Cir. 2003). Indeed, in another case, the
District of Columbia Circuit sharply rejected an em-
ployer’s argument that salts “were not truly seeking em-
ployment” and thus were not statutory employees. Pro-
gressive Electric, supra, 453 F.3d at 552.
Current law, then, is flatly contrary to the majority’s
apparent presumption that unfair labor practice charges
filed by salts have no merit unless it can be proven that
the salt would have accepted a job offer. To repeat what
should be obvious: the merits of a charge—whether an
employer engaged in antiunion discrimination—have no
necessary connection to the applicant’s interest in the
job.
Any question as to the general “merit” of charges filed
by salts should be put to rest by the overwhelming num-
ber of cases in which the Board has found refusal-to-hire
and refusal-to–consider violations since the issuance of
FES. It goes without saying that salts, whatever their
own interest in employment, perform a critical function
under the Act. Because the Act is not self-policing and
requires a charge before a complaint may issue,14 the
Board is dependent on individuals outside the Agency to
uncover and bring to the Board’s attention unlawful dis-
criminatory practices.15
B.
There is thus no basis for the majority’s apparent as-
sertion that a salt applicant who seeks to provoke an un-
fair labor practice—e.g., by applying to an employer who
is hostile to unionization and willing to discriminate
unlawfully against union members—is somehow “dis-
loyal” and thus not entitled to the Act’s protection.
To begin, there is certainly nothing disloyal per se
about seeking to organize an employer’s work force.
“Protection of the workers’ right to self-organization . . .
furthers the wholesome conduct of business enterprise.”
Phelps Dodge, supra, 313 U.S. at 182. That an employer
may be hostile to unionization makes no difference, as
the Supreme Court explained in finding that salts are
statutory employees:
[O]rdinary union organizing activity . . . is itself spe-
cifically protected by the Act. . . . This is true even if a
company perceives those protected activities as dis-
loyal.

14 See NLRB v. Indiana & Michigan Electric Co., 318 U.S. 9, 17
(1943).
15 See Erlich & Grabelsky, Standing at a Crossroads: The Building
Trades in the Twenty-First Century, 46 Labor History 421, 432 (2005)
(discussing the effectiveness of salts in “exposing unlawful conduct on
the part of non-union contractors who routinely discriminated against
union members”).
Town & Country Electric, supra, 516 U.S. at 95–96. The
Town & Country decision also makes clear that unless a
salting campaign is accompanied by acts of violence, sabo-
tage, or other unlawful or indefensible conduct, there is no
basis for claiming that it is statutorily unprotected—much
less that salts, as a class, are not statutory employees. Id. at
96–97.
The Court’s earlier Jefferson Standard decision, in-
voked by the majority, has no bearing here.16 “Loyalty
to their common enterprise,” the phrase lifted from Jef-
ferson Standard by the majority, is simply not a concern
of the National Labor Relations Act, except in the most
general sense. The centerpiece of the Act, rather, is Sec-
tion 7, which guarantees employees the “right to self-
organization, [and] to form, join, or assist labor organiza-
tions,” as well as the right to “engage in other concerted
activities for . . . mutual aid or protection.” 29 U.S.C.
§157.17 And it should go without saying that protected
concerted activity includes efforts that would necessarily
cause economic harm to employers: strikes and boycotts
are only the most obvious examples.18 The majority,
however, seems unwilling to acknowledge that the Act,
which broke dramatically with the traditional common
law of labor relations, “protects a wide range of con-
certed activity by employees, even though it may be in
sharp conflict with the economic interests of individual
employers or of employers as a class.”19
Although salts may generate unfair labor practice liti-
gation—subject, of course, to the General Counsel’s sole
authority to issue complaints in cases he concludes have
merit20—it is the employers who are committing the un-

16 The issue there involved public disparagement of the employer, by
employees, in a mass-distributed handbill that made no reference to the
existence of a labor dispute or to the employer’s labor practices. NLRB
v. Electrical Workers, Local 1229, 346 U.S. 464 (1953).
17 In holding that paid union organizers are statutory employees, the
Board has refused to “require ‘some type of transcendent loyalty’ on
the part of an ‘employee’ to the employer” and has reaffirmed that
employers cannot treat organizing activities as “disloyalty.” Town &
Country Electric, 309 NLRB 1250, 1257 fn. 35 (1992), revd. 34 F.3d
625 (8th Cir. 1994), remanded 516 U.S. 85 (1995).
18 Concerted “activity that is otherwise proper does not lose its pro-
tected status simply because [it is] prejudicial to the employer.” NLRB
v. Circle Bindery, Inc., 536 F.2d 447, 452 (1st Cir. 1976). For example,
unions may seek to increase the work of union subcontractors at the
expense of nonunion subcontractors. Connell Construction Co. v.
Plumbers Local 100, 421 U.S. 616, 625 (1975). Unions may also seek
to “level the playing field” through vigorous enforcement of applicable
laws against unorganized employers. See Petrochem Insulation, Inc.,
330 NLRB 47 (1999), enfd. 240 F.3d 26 (D.C. Cir. 2001), cert. denied
534 U.S. 992 (2001) (intervening in state environmental agency pro-
ceedings to oppose employer’s permit requests).
19 Aztech Electric Co., supra, 335 NLRB at 269 (concurring opinion
of Members Liebman and Walsh).
20 See NLRB v. Food & Commercial Workers Local 23, 484 U.S.
112 (1987).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD242
fair labor practices. One would think that such conduct
would be the Board’s chief concern.
C.
Finally, there is no sound basis for concluding that
where salts do engage in misconduct during the hiring
process, those abuses cannot be effectively addressed by
the Board under the existing FES framework. The ma-
jority cites only four Board cases purportedly illustrating
such misconduct—a paltry number, given that (by our
count) over 170 hiring-discrimination cases have been
tried before the Agency’s administrative law judges since
the issuance of FES.
None of the cases establish that, under current law, the
Board is somehow compelled to find a violation of Sec-
tion 8(a)(3) in circumstances where an employer has not,
in fact, acted with a discriminatory motive in refusing to
hire or consider union applicants. Indeed, one case cited
by the majority provides an especially good example of
how the current FES framework adequately deals with
misconduct by salts. In Exterior Systems, 338 NLRB
677 (2002), the Board found that an employer lawfully
refused to hire a group of union applicants because of
their “disruptive” and “disrespectful” behavior. Exterior
Systems, in turn, highlighted the “genuine applicant”
issue addressed here—the Board’s three panel members
each proposed different resolutions, which did not affect
the outcome of the case21—yet in the 5 years since the
decision was issued, the General Counsel has never taken
the position that the “effective administration of the Act”
requires the change in Board law adopted today.
III.
Under the majority’s position, if the General Counsel
cannot prove that an applicant would have accepted a job
offer from the employer, then the applicant is not a statu-
tory employee. Thus, there can be no violation of the
Act, and no remedy of any kind (not backpay, not in-
statement, not a cease-and-desist order), even if the em-
ployer’s refusal to hire or consider the applicant was mo-
tivated solely by antiunion animus. By removing certain
applicants from the scope of Section 2(3), the majority
effectively decrees that such applicants are not entitled to
any protection under the Act—not only under Section
8(a)(3), but also under Section 8(a)(1).22 It is hard to

21 Member Liebman’s concurring opinion in Exterior Systems advo-
cated adherence to the FES framework, as we do again here.
22 Our law is to the contrary. The Board has frequently found inde-
pendent violations of Sec. 8(a)(1) where an employer has interfered
with, restrained, or coerced applicants in the exercise of Sec. 7 rights.
See Centerline Construction Co., 347 NLRB 322 (2006) (employer
violated Sec. 8(a)(1) by interrogating job applicants concerning their
union affiliation); Quality Mechanical Insulation, 340 NLRB 798
(2003) (employer violated Sec. 8(a)(1) by threatening and photograph-
imagine a view of the law more at odds with the National
Labor Relations Act and its aims.
Not surprisingly, the majority’s view rests on no real
authority at all. Section 2(3) of the Act defining “em-
ployee,” as historically interpreted by the Board with the
Supreme Court’s approval, provides no support for the
majority. Nor does Section 8(a)(3), prohibiting hiring
discrimination based on antiunion animus, as tradition-
ally understood. The two provisions, taken together,
make clear that the employer’s motive, and not the appli-
cant’s intentions, is the proper focus in cases like this
one. And despite the majority’s claims, Section 10(c) of
the Act, addressing the Board’s remedial authority, has
no bearing on whether the Act has been violated in cases
like this one.
A.
The Supreme Court’s Town & Country decision, up-
holding the position of the Board that paid union salts
who apply for jobs are statutory employees, made plain
that a “broad, literal interpretation” of Section 2(3) is
consistent with the statutory text, with the purposes of
the Act, and with the Court’s decisions. Town & Coun-
try Electric, supra, 516 U.S. at 90–92. The majority’s
constrictive reading, in contrast, has no textual basis,
frustrates the purposes of the Act, and amounts to an
attempted end-run around Town & Country and Phelps
Dodge.
The majority does not base its position on the text of
Section 2(3). Instead, it suggests that that definition is
circular, leaving the Board “with the task of defining the
word in ways that are consistent with the legislative pur-
pose of the Act.” As we have shown, the purposes of the
Act, as examined in Phelps Dodge and Town & Country,
are frustrated, not furthered, by the majority’s ap-
proach.23
Where Congress intended to exclude certain classes of
individuals from the Act’s coverage, it carved out a se-

ing union applicants). The majority now gives employers an entirely
free hand in dealing with those individuals not affirmatively proven to
be genuine applicants, regardless of the employer’s coercive behavior
and its inevitable effect on other employees in exercising their Sec. 7
rights.
23 If anything, the language of Sec. 2(3), on its face, cuts against the
majority’s interpretation here, by providing that the
term “employee” shall include any employee, and
shall not be limited to the employees of a particular
employer, unless the Act explicitly states other-
wise. . . .
29 U.S.C. § 152(3) (emphasis added). The majority denies statu-
tory-employee status to any applicant for whom the General Counsel
cannot establish any intention to create an employment relationship
with a particular employer. In effect, then, the majority would limit
statutory employees to “the employees of a particular employer”—a
limitation that Sec. 2(3) expressly rejects.
TOERING ELECTRIC CO. 243
ries of discrete exemptions and codified them in Section
2(3).24 If Congress had intended to exclude “non-
genuine” job applicants, it presumably would have done
so. Indeed, the majority now creates a new exception
that Congress has repeatedly declined to enact: The ma-
jority’s genuine-interest requirement mirrors the lan-
guage and purpose of numerous anti-salting bills that
have failed to pass in Congress in the 12 years since the
Supreme Court decided Town & Country.25
The Board’s decision in WBAI Pacifica Foundation,
328 NLRB 1273 (1999), relied on heavily by the major-
ity, provides no support for its position here. The issue
there was whether the unpaid staff members of a non-
profit corporation that operated a noncommercial radio
station were statutory employees who were properly in-
cluded in a bargaining unit with paid staff. The Board
found that they were not, “because there [was] no eco-
nomic aspect to their relationship with the Employer,
either actual or anticipated.” Id. at 1275 (emphasis
added). Unpaid staff “receive[d] no wages or fringe
benefits” and worked for non-economic reasons. Id.
Thus, the “Act’s concern with balancing the bargaining
power between employer and employees does not extend
to them.” Id. at 1276. The Board distinguished the Su-
preme Court’s decision in Phelps Dodge by observing
that
although the applicants [in Phelps Dodge] did not re-
ceive any form of compensation from the employer,
they were seeking entry to wage-paying jobs and the
discrimination against them had an adverse impact on
those who were already wage earners.
Id. at 1274. WBAI Pacifica is easily distinguishable from
this case, for the same reasons that it was distinguishable
from Phelps Dodge. This case centers on the discriminatory
denial of access to wage-paying jobs, discrimination that
has an obvious impact on other wage earners.
B.
The plain language of Section 8(a)(3), in turn, also re-
futes the majority’s position. When an employer refuses

24 Sec. 2(3) expressly exempts several classes of workers from the
Act’s coverage: agricultural laborers, domestic servants, individuals
employed by a parent or spouse, independent contractors, supervisors,
and employees covered by the Railway Labor Act.
25 See The Truth in Employment Act, H.R. 2670 and S. 1570, 110th
Cong.(2007); H.R. 1816 and S. 983, 109th Congress (2005); H.R. 1793,
108th Congress (2003); H.R. 2800, 107th Congress (2001); H.R. 1441
and S. 337, 106th Congress (1999); H.R. 758 and S. 328, 105th Con-
gress (1997). See also, Rep. King Says His Anti-Salting Bill Would
Combat Unfair Economic Weapon, Daily Labor Report, June 22, 2005,
at A-12 (Rep. Steve King explaining the bill by stating, “[I]f a job
applicant’s ‘primary purpose’ in seeking a job is to further the interests
of another, then they are not a ‘bona fide’ applicant.”).
to hire or consider an applicant solely because of his un-
ion affiliation, it is obvious that there has been “discrimi-
nation in regard to hire,” in the words of the Act. 29
U.S.C. §158(a)(3). We do not understand the majority to
suggest otherwise.26 Obviously, an applicant’s subjec-
tive interest in employment may be unknown or irrele-
vant to an employer whose policy is to refuse to hire un-
ion applicants and who acts on that basis.
Not long after the Act was passed, the Phelps Dodge
Court explained that the statutory “prohibition against
‘discrimination in regard to hire’ must be applied as a
means towards the accomplishment of the main object”
of the Act: removing the “embargo against employment
of union labor.” 313 U.S. at 186. Permitting employers
to discriminatorily refuse to hire union applicants is ut-
terly contrary to that objective. But the majority does
permit such discrimination, by disregarding an em-
ployer’s unlawful motive and instead making an appli-
cant’s intentions, insofar as the General Counsel can
prove them, decisive. There is no precedent for such an
approach.
C.
Section 10(c) of the Act certainly does not support the
majority’s approach. The majority argues that awarding
backpay to applicants who have been discriminated
against is impermissibly punitive, unless the General
Counsel can prove that they would have accepted jobs.
The majority’s solution to this supposed problem is to
hold that there has been no unlawful discrimination at all
and that no remedy at all is permitted, whether backpay,
an offer of instatement, or a cease-and-desist order. In
effect, the majority says that the Board is powerless to
redress hiring discrimination. But It is far too late in the
labor-law day, 65 years after the Supreme Court decided
Phelps Dodge, to take that view.
That decision establishes that in cases of hiring dis-
crimination, the Board has authority under Section 10(c)
to issue a cease-and-desist order, to order instatement,
and to award backpay. 313 U.S. at 187–188. As for
backpay, the majority’s concerns about windfalls and
penalties are unfounded, given existing limits on reme-
dies in cases like this one, as well as practical factors.
First, under FES, instatement and backpay are ordered
only if the General Counsel can establish that there was a
vacancy for the applicant who was discriminated against.
FES, supra, 331 NLRB at 14. Second, the discrimina-
tee’s backpay award will be reduced by his interim earn-
ings and by any failure to mitigate. Id. at 15. In a case

26 Rather, the majority’s decision rests entirely on Sec. 2(3) and the
premise that discrimination is permitted against a certain class of appli-
cants because they are not statutory employees at all.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD244
where a salt applicant had no intention of accepting a job
if offered, it is presumably because he was already em-
ployed, at higher wages, in a unionized workplace.
Those higher wages, of course, will offset any backpay
award. As for instatement, an applicant who has no in-
terest in actually working for the employer will presuma-
bly decline the required offer.
Starcon, Inc. v. NLRB,27 the pre-FES judicial decision
relied on by the majority to support its position that no
relief is appropriate where the employer discriminates
against a “non-genuine” applicant, ironically supports the
opposite position. In that case, the Seventh Circuit up-
held the Board’s order requiring the employer to cease
and desist from discriminating against union supporters
and to post a notice to that effect. To the extent the court
disagreed with the breadth of the Board’s order, it did so
only with regard to the affirmative relief granted to the
individual discriminatees. Id. at 952. The court did not
hold, or even suggest, that there should be no remedial
relief provided to address the employer’s discrimination.
In fact, the court specifically held that, even in circum-
stances where there was no basis for ordering reinstate-
ment and backpay for the applicant, “the Board would still
be entitled to enter a cease and desist order to provide some
assurance against a repetition of the violation.” Id. at 951.
IV.
Putting aside whether current law should be revisited
and whether the general approach adopted by the major-
ity is permitted by the Act, the new standard is still
flawed in several crucial respects: It fails to provide
clear guidance with respect to determining an applicant’s
genuine status. It places an unfair burden on the General
Counsel by allowing an employer to first raise the genu-
ineness issue during the unfair labor practice hearing.
And it will both spawn and prolong the course of litiga-
tion by creating a new fact-intensive defense.
A.
The majority’s notion that an adjudicator can easily as-
sess whether the applicant would have accepted em-
ployment, if offered, is at odds with reality. A salt’s de-
cision, like that of any other applicant, will often be de-
pendent on a wide range of factors, including the terms
and conditions of the offered employment, competing job
offers, and personal considerations.28

27 176 F.3d 948 (7th Cir. 1999).
28 In Town & Country, the Court made a similar point in response to
the employer’s argument that paid salts can be differentiated from other
applicants (and therefore discriminated against) because they might quit
unexpectedly, “leaving a[n] employer in the lurch. . . .” The Court
observed that “the argument proves too much,” because any other
worker, too, might leave for “a better job” or have a “family [that]
wants to move elsewhere.” Supra, 516 U.S. at 96.
In turn, the majority proposes a completely open-
ended test for conduct that an employer may cite to con-
test the genuineness of an applicant: “conduct inconsis-
tent with a genuine interest in employment.” The exam-
ples provided by the majority of the sorts of evidence
that an employer might offer are not simply vague, but
arbitrary, inasmuch as they may have little bearing on an
applicant’s genuine interest in employment. For exam-
ple, the majority mentions an applicant’s inclusion of an
“offensive” comment on an application. (Would the
phrase “voluntary union organizer” qualify?) Evidence
that an application is “incomplete” is of similarly dubi-
ous relevance, not least because the law is clear that an
applicant is entitled to omit information precisely to
avoid being discriminated against.29
Alarmingly, the majority provides no guidance at all
for the General Counsel in meeting his “ultimate burden”
of proving genuine applicant status under the new test.
In failing to offer that guidance, the majority implicitly
recognizes the near-impossibility of discerning an appli-
cant’s subjective mindset, and therefore of meeting the
General Counsel’s burden.
B.
The majority also errs by allowing an employer to first
raise the genuineness issue during the unfair labor prac-
tice hearing. By that stage of the proceeding the General
Counsel’s investigation of the case will have ended, and
memories will likely be dimmer, making the General
Counsel’s task of responding to the Respondent’s de-
fense more difficult. Under the majority’s approach, the
General Counsel will be compelled to prepare for litiga-
tion of this defense in all cases in order to ensure that a
timely investigation can be conducted. This will sub-
stantially add to the General Counsel’s burden in investi-
gating allegations of unlawful hiring discrimination, and
require the General Counsel to spend time and resources
preparing to litigate an issue that may never arise.30
C.
Finally, the majority’s new framework will almost cer-
tainly create or prolong litigation, and add to the parties’
legal expenses, by complicating the FES standard and
adding a fact-intensive defense to the employer’s arsenal.
The majority invites litigation regarding the genuineness
of the applicant in virtually every salting case, ironically

29 See, e.g., Winn-Dixie Stores, 236 NLRB 1547 (1978). See also
Hartman Bros. Heating & Air Conditioning, Inc. v. NLRB, 280 F.3d
1110, 1112–1113 (7th Cir. 2002).
30 Discerning an applicant’s state of mind will be complicated where
years have passed since the application was initially submitted. Be-
cause more than 10 years have passed since the charges were filed in
this case, it makes little sense to remand this case to the judge “for
further factual development” of the genuine-applicant issue.
TOERING ELECTRIC CO. 245
increasing the prospect that employers will be subject to
even higher litigation costs.
V.
By any measure, today’s decision represents a failure
in the administration of the National Labor Relations
Act. The majority unnecessarily overturns carefully con-
sidered precedent and implements an untenable approach
that will not even accomplish the majority’s professed
goals. Worse, the Board now creates a legalized form of
hiring discrimination, a step that would have been con-
sidered unthinkable by the Phelps Dodge Court when it
held that the prevention of hiring discrimination against
union members was “the driving force behind the enact-
ment of the National Labor Relations Act.” 313 U.S. at
186. Because we still believe that it is crucial to the Act’s
basic mandate to uncover and redress discrimination
against union members, we dissent.
APPENDIX A
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to consider for hire or re-
fuse to hire applicants for employment on the basis of
their union affiliation or activity or our belief or suspi-
cion that they may engage in organizing activity if they
are hired.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce any of you in the exercise of
your rights guaranteed by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer James Jendrasiak instatement to the position
for which he applied on or about August 22, 1995, or if
such position no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or other
rights or privileges he would have enjoyed.
WE WILL make James Jendrasiak whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to our unlaw-
ful refusal to consider for employment and refusal to hire
James Jendrasiak, and WE WILL, within 3 days thereafter,
notify him in writing that this has been done and that the
refusal to consider him for employment and refusal to
hire him will not be used against him in any way.
TOERING ELECTRIC COMPANY
APPENDIX B
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to consider for hire or re-
fuse to hire applicants for employment on the basis of
their union affiliation or activity or our belief or suspi-
cion that they may engage in organizing activity if they
are hired.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce any of you in the exercise of
your rights guaranteed by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer instatement to James Jendrasiak to the posi-
tions for which he applied on or about August 22 and
September 22, 1995, or if such positions no longer exist,
to a substantially equivalent position, without prejudice
to his seniority or other rights or privileges he would
have enjoyed.
WE WILL make James Jendrasiak whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to our unlaw-
ful refusal to consider for employment and refusal to hire
James Jendrasiak, and WE WILL, within 3 days thereafter,
notify him in writing that this has been done and that the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD246
refusal to consider him for employment and refusal to
hire him will not be used against him in any way.
FOSTER ELECTRIC, INC.
A. Bradley Howell, Esq., for the General Counsel.
Peter J. Kok, Esq. and Gary A. Chamberlin, Esq. (Miller, John-
son, Snell & Cummiskey, P.L.C.), of Grand Rapids, Michi-
gan, for the Respondent.
SUPPLEMENTAL DECISION
The Board’s Remand Order
I issued my decision in this matter on October 8, 1997. On
June 7, 2000, the Board remanded the case for further consid-
eration in light of its decision in FES, 331 NLRB 9 (2000). On
June 27, I invited briefs from the parties to address the FES
framework as it applies to this case. Both parties have filed
such briefs. Since the Board did not address the refusal to con-
sider for hire violations found in my initial decision and the
parties’ supplemental briefs address these issues, I am issuing a
new self-contained decision, which incorporates the findings
made in 1997, and applies the FES decision to these facts.
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Grand Rapids, Michigan, on April 28–May 1, and
on July 16 and 17, 1997. The charge in Case 7–CA–37768 was
filed on October 12, 1995, the charge in Case 7–CA–39903 was
filed on October 11, 1996 and the charge in Case 7–CA–39205
was filed on November 15, 1996. The complaint consolidating
all three cases was issued on January 30, 1997.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondents, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Toering, a corporation, is an electrical contractor
with offices in Grand Rapids, Michigan. Respondent Foster, a
corporation, is an electrical contractor with offices in Muske-
gon, Michigan. Toering and Foster, individually and sepa-
rately, annually purchase and receive goods and materials val-
ued in excess of $50,000 directly from points outside of the
State of Michigan. Toering and Foster admit and I find that
they are employers engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Overview
The General Counsel alleges that Respondents, Toering
Electric and Foster Electric are a single employer with the
meaning of the Act. David Toering is the President and major-
ity stockholder of both companies. The General Counsel al-
leges that on August 22, 1995, Respondents refused to inter-
view and consider James Jendrasiak for hire, and refused to hire
Jendrasiak because of his union affiliation and activities.
The General Counsel alleges that Respondents refused to in-
terview and consider Mr. Jendrasiak for hire, and hire him on or
about September 25, 1995, for the same reasons. In June, 1996,
Jendrasiak, by then a full-time organizer, responded to newspa-
per advertisements on two occasions by submitting employ-
ment applications to Toering Electric for himself and three
other union members. These resumes were received by Toer-
ing on June 10 and 27, respectively. On July 29, 1996, Jendra-
siak responded to additional advertisements by resubmitting the
four resumes along with 14 other resumes. Toering Electric
received these resumes on August 3, 1996. Toering did not
contact any of the 18 employees, including Jendrasiak. The
General Counsel alleges that Respondents have refused to hire
and/or consider for hire each of the 18 union members whose
resumes it received because of their union affiliation and to
discourage employees from engaging in protected union activ-
ity.
The Historical Relationship of Toering, Foster, and the IBEW
David Toering established Toering Electric Company, a
commercial and industrial wiring firm in about 1973. Toering
Electric does business primarily in the Grand Rapids area.
David Toering owns 60 percent of the company’s stock and his
wife owns the remaining 40 percent. Aside from David Toer-
ing, the company’s principal management officials are Ward
Stahmer, operations manager, Dennis Van Wyck, office man-
ager/accountant, Tom Powers, purchasing agent, and Cliff Pol-
lema, estimator.
In 1989, David Toering purchased Foster Electric, an electri-
cal contracting company, which had been in business for over
ten years. Foster’s office is in Muskegon, 50 miles west of
Grand Rapids. Foster’s business is primarily in the Muskegon
area; however, at times Toering Electric and Foster have pro-
jects in close geographical proximity to each other. David To-
ering is president of both companies and owns 70 percent of the
stock in Foster Electric. Fifteen percent of the remaining shares
are owned by Bruce Bartels, Foster’s office/operations man-
ager. The other 15 percent of the stock is owned by Fred Fair-
child, Foster’s field superintendent/project manager.
David Toering is actively involved in the management of
Toering Electric and Foster Electric. For example, David Toer-
ing makes the final decisions with regard to the 401(k) plans
and group health insurance for both companies. Otherwise, the
two firms do not have the same management and personnel.1
Both companies loan and borrow electricians from each other
but they also borrow and loan electricians from and to other
nonunion contractors.2 The charge for loaning an employee
between Foster and Toering Electric appears to be substantially

1 Bruce Bartels worked for Toering Electric from 1985–1990. In
1990 he bought the Foster stock of Shane Toering, David Toering’s
son. When Bartels went to work for Foster, Shane Toering went back
to work with Toering Electric.
Foster’s corporate secretary, Mary Broucek, works out of the offices
of Toering Electric in Grand Rapids (Tr. 199).
2 Toering has borrowed employees from DePree Electric Company,
a contractor which has a relationship with the Christian Laborer’s As-
sociation, a union not affiliated with the IBEW.
TOERING ELECTRIC CO. 247
identical to the charges assessed other contractors.3 When he is
looking for electricians to hire, Foster’s office manager, Bruce
Bartels, generally checks with Toering’s office manager, Den-
nis Van Wyck (Tr. 210).
Toering provides some degree of administrative assistance to
Foster Electric. This is primarily in form of tax and other fi-
nancial services from Dennis Van Wyck, Toering Electric’s
accountant/office manager. Van Wyck, for example, manages
Foster’s 401(k) plan and group health insurance. Toering Elec-
tric charges Foster for these services.
Toering and Foster are both nonunion and are members of
the Associated Builders and Contractors (ABC). The IBEW
attempted to organize Toering in the early 1980s and lost an
NLRB election. In 1994, David Toering became aware that the
IBEW had targeted his companies for a “salting” organizing
campaign. In 1994, the IBEW filed unfair labor practice
charges against Toering. These charges were settled and as a
result Toering offered jobs to 6 union members in July and
August 1995. Four of these never responded to the offer.4 The
other two were interviewed by Toering and sent for pre-
employment physicals. They were then told when they should
start work but never showed up at the Toering jobsite. Other
IBEW members received back-pay in the settlement.5
Jim Jendrasiak’s August 22, 1995 Job Application to Toering
Through American Careers
On Sunday, August 20, 1995, American Careers, a job
placement agency, ran an advertisement in The Grand Rapids
Press for journeymen and apprentice electricians in the Muske-
gon area. The ad did not divulge the name of the prospective
employer. This ad was placed pursuant to contractual arrange-
ments with David Toering, who told John Williams, the Ameri-
can Careers service manager, that he was seeking journeymen
for Toering Electric and Foster.
Two days later, James Jendrasiak went to American Careers’
office in Grand Rapids to respond to the advertisement. At the
time Jendrasiak was a journeymen electrician. He was also an
unpaid member of the executive board of Local 107 and a vol-
untary organizer. At about this time he had been laid off by his
employer, Kemco Electric Company.
At American Careers, Jendrasiak filled out an application
and then was interviewed by John Williams. His application
listed his prior employers as Kemco, Mellema Electric, Rey-
nolds Metals, and Spencer Redner. Jendrasiak also indicated
that he had been self-employed from February 1994 to Febru-
ary 1995, which was not true.

3 However, in 1995, Toering loaned Foster the services of William
Brooks, a temporary employee working for Toering through American
Careers, an employment agency, without charging Foster anything. It
did so without clearing the loan with American Careers (Tr. 242–244).
4 One of these, Geralyn Spofford, is an alleged discriminatee in the
instant case. See GC Exhs. 61r and R-75.
5 It is not clear from this record whether the charges were filed by
Local 275 in Muskegon or Local 107 in Grand Rapids, or both. The
individuals mentioned in this record were Local 275 members. On July
1, 1996, Local 107 merged with Local 275, and ceased to exist as a
separate entity.
Williams interrupted the interview to call David Toering.
Toering asked Williams where Jendrasiak acquired the hours
needed to become a journeyman. Williams went back to Jen-
drasiak who told him that he served his apprenticeship at Buist
Electric and Spencer/Redner Electric companies. Williams
called Toering again. Toering asked Williams if Jendrasiak had
any union background and directed him to find out whether any
of Jendrasiak’s prior employers were ABC members.
Williams returned and asked Jendrasiak if any of the compa-
nies he worked at to get his journeyman’s rating, such as
Spencer/Redner, were union shops. Jendrasiak either said no or
avoided answering the question. He did tell Williams that he
did not think Spencer/Redner was an ABC member. Williams
then arranged for Jendrasiak to be interviewed almost immedi-
ately by David Toering. While Jendrasiak was on his way to
the Toering offices, Williams contacted Kemco and discovered
that it was a union contractor. He immediately called Toering
and apprised him of this fact. Toering told Williams to con-
tinue checking Jendrasiak’s references.6
When Jendrasiak arrived at the Toering Electric offices, he
was met by Dennis Van Wyck, Toering’s office manager. Van
Wyck told him that there had been some misunderstanding, that
David Toering was not available and that Jendrasiak should call
American Careers.
After talking to Williams, Jendrasiak filled out a Toering
employment application on which he indicated that he was a
“voluntary union organizer.” David Toering called Williams
back and told him that he had “some bad dealings with these
guys before in the past and did not want to have to interview”
Jendrasiak (Tr. 458–459). Before leaving Toering Electric,
Jendrasiak had a brief conversation with David Toering, who
told him he had applied for a job with American Careers, not
with his company.7 Jendrasiak had no contact with American

6 Williams called Buist Electric and found that it had no record that
Jendrasiak had worked there. Jendrasiak testified that he worked at
Buist through a labor broker, rather than directly for Buist.
7 David Toering denied saying anything to Williams other than ex-
pressing disapproval of Williams’ decision to send Jendrasiak to his
office without first clearing it with Toering Electric. He testified that
he also told Williams that he couldn’t read the faxed version of the
application filled out by Jendrasiak at American Careers. I credit Wil-
liams’ testimony that he had telephone conversations with Toering
while he was talking to Jendrasiak at American Careers’ offices. I
credit Williams’ testimony that David Toering asked him to inquire
whether Jendrasiak had worked for union contractors to acquire his
journeymanship status and whether these companies were ABC mem-
bers. I also credit Williams’ statement that Toering told him he didn’t
want to interview Jendrasiak because he had had trouble with these
guys (meaning the Union) before. Williams appears to have been a
completely neutral witness with no reason to fabricate his testimony.
Moreover, his testimony is corroborated by Jendrasiak and a surrepti-
tious tape made by Jendrasiak of his conversations with Williams (GC
Exhs. 54, 55). Respondent relies (Br. at p. 9) on the fact that on August
22, Williams told Jendrasiak that Toering’s lack of interest in him had
nothing to do with his union background. Williams’ testimony at the
hearing establishes just the opposite. Moreover, one would hardly
expect Williams to tell Jendrasiak on August 22, about his conversa-
tions with David Toering.
The sequence of events described above does not precisely comport
with the testimony of any one of the witnesses. I infer from the testi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD248
Careers after August 22. He was recalled to work by Kemco in
early September 1995, and did not contact Toering Electric
again until June 7, 1996. On September 11, 1995, Toering
hired journeymen Robert Keeler and William Brooks, who had
been working for it through American Careers since June 1995
(Tr. 572–575, GC Exh. 9).
I infer that David Toering was seeking employees for Foster,
as well as for Toering Electric in the August 20 advertisement.
I draw this inference because the ad mentioned the Muskegon
area and because Toering told John Williams he was seeking
employees for both companies. American Careers referred
employees to both companies.8
Indeed, at the beginning of August, Foster employed Brian
Kelly, who it mistakenly thought was a journeyman, through
American Careers. On September 11, Kelly was put on the
Foster payroll and still works for the company despite an ap-
parent misrepresentation about his status. During the last week
of August, Foster began employing Roland Dye, a master elec-
trician as an independent contractor. Dye appears to have
worked for Foster on a fairly regular basis through December
1995. Foster also borrowed apprentice electrician Kevin Boley
from Toering from August 28 to September 22, 1995.
Jendrasiak’s Application For Employment To Foster
Through Staffing, Inc.
On September 10, 1995, Jendrasiak saw another advertise-
ment in The Grand Rapids Press. The ad run by Staffing, Inc.,
another temporary employment agency, stated that a Muskegon
area company had a need for a journeyman electrician and a
third year apprentice electrician. The ad was placed pursuant to
a verbal order from Judy Hall, an office clerical at Foster Elec-
tric, to Sandy Hammet, the human resources administrator at
Staffing, Inc.
The next day Jendrasiak went to Staffing, Inc.’s office, filled
out an employment application and was interviewed by Ms.
Hammet. Jendrasiak’s application listed his prior employment
with three union contractors. Additionally, notes made by
Hammet on the application indicate that Jendrasiak served his
apprenticeship through the IBEW (GC Exh. 4(a)–(e)). Some-
time later that month, Hammet faxed Foster a copy of Jendra-
siak’s employment application. She also arranged through Judy
Hall for Jendrasiak to be interviewed at Foster.
Jendrasiak called Bartels on the afternoon of September 22.
Bartels told Jendrasiak to meet him at a McDonald’s restaurant
on Tuesday, September 26. Shortly afterwards, Bartels called

mony and the tape, that Williams told Toering that Jendrasiak had come
to Kemco through the union hiring hall before Jendrasiak arrived at
Toering’s offices. If this were not the case Toering would have had no
reason for not considering Jendrasiak for the positions available at
Foster.
Although Respondent strongly objected to my receipt of the tape and
a transcript made of the tape, they are clearly admissible. Indeed, it
may have been reversible error to reject them, Plasterers’ Local 90,
236 NLRB 329 (1978); Fontaine Truck Equipment Co., 193 NLRB 190
(1971).
8 Toering Electric loaned William Brooks to Foster in July, 1995,
without approval from American Careers (GC Exh. 6, invoice 009157).
This indicates that Toering Electric regarded employees working for it
through that agency as being available to work for Foster.
Sandy Hammet, who was not in her office. She returned the
call that afternoon. Bartels told her that he wanted to cancel the
interview. He said that Jendrasiak “being affiliated with the
union was big trouble. Foster Electric is an open shop and it
would be trouble to bring him in.” (Tr. 21, GC Exh. 4(e).)
Bartels did not ask Hammet to refer any other applicants.9
On Monday, September 25, a journeyman electrician, Ed
Wezeman, an employee of another nonunion contractor, Ottawa
Electric, reported to Foster’s jobsite at the Port City Tool Com-
pany. Wezeman worked for Foster for 3 weeks, all but 2 days
at the Port City Tool job. For Wezeman’s services, Foster paid
Ottawa $24.90 per hour. The week after Wezeman returned to
Ottawa, Foster borrowed journeyman Ken Slot and apprentice
Terry Terpening from Toering. Slot worked for Foster for 3
weeks and Terpening for 4 weeks (GC Exh. 6, R. 24). The
record does not reflect the name of their jobsite. Another Ot-
tawa employee, apprentice Matt Crum, worked for Foster for
6-1/2 days beginning September 25 (GC Exh. 44).
Bartels contends that on Friday, September 22, after he
talked to Jendrasiak, Ottawa Electric called him and said that
they had a journeymen and an apprentice that they could loan to
Foster. Bartels contends further that he had tried to borrow the
electricians he needed from other contractors without success
before contacting Staffing, Inc. He states Ottawa told him they
would look into the situation and their work load, but didn’t get
back to him until September 22.
I find Bartels’ testimony in this regard to be completely un-
believable. It would be an extraordinary fortuitous turn of
events for Ottawa to call just after he received the faxed appli-
cation from Hammet indicating that Jendrasiak was almost
certainly a union member. In order to persuade me that such an
event occurred independent of the Bartels’ realization that Jen-
drasiak was a union salt, Respondent would need much more
than Bartels’ self-serving testimony. It would at a minimum
have to produce documentary evidence or sworn testimony
from Ottawa Electric’s management as to the circumstances by
which Wezeman, who apparently was not available previously,
suddenly became available for Foster’s use on September 22. I
infer that, upon realizing that Jendrasiak was a union salt,
Bartels procured the services of the Ottawa employees so that
he would not have to interview Jendrasiak or consider him for
employment.10

9 Bartels confirms that he called Hammet on Friday, September 22,
the same day that he set up the interview with Jendrasiak. However, he
testified that he spoke with Hammet on Monday, September 25, not the
22d. More importantly, he denied telling Hammet anything along the
lines of “Jim Jendrasiak, union, big trouble” (Tr. 682). On cross-
examination, Bartels testified that he did not discuss a union with
Hammet over Bartels. There is absolutely no indication that Hammet
has any interest in this case at all. She would have no motive for fabri-
cating her testimony. Moreover, her testimony is supported by her
contemporaneous note and by the fact that David Toering had ex-
pressed similar sentiments to John Williams of American Careers just 1
month earlier.
10 Respondent’s brief suggests this scenario makes no sense because
Bartels already knew Jendrasiak was affiliated with the Union when he
originally set up the interview. This it argues he knew from the appli-
cation faxed by Hammet. However, Hammet’s testimony is that she set
up the interview with Judy Hall. It is possible that Bartels did not read
TOERING ELECTRIC CO. 249
The Union’s 1996 Salting Efforts
On June 6 and 20, 1996, Toering Electric advertised for
journeymen and apprentice electricians in The Grand Rapids
Press. These ads did not identify Toering (and are therefore
referred to as “blind” ads). James Jendrasiak, who since Janu-
ary 1, 1996, had been a full-time organizer, responded to these
advertisements. He sent the resumes of four union members;
Patrick Cosgrove, Bernard Hamstra, Richard Newville, and
himself, to a post office box. The first packet was received on
June 10, the second on June 27. Neither Jendrasiak nor any of
the other union members received a response to these submis-
sions.
One month later, on July 28, Toering ran the advertisement
again. On July 29, Jendrasiak resubmitted the 4 resumes along
with 14 others.11 These resumes had been submitted to the
Union’s organizers in response to solicitations for resumes to
be used to respond to blind advertisements, and were kept on
file. Toering received Jendrasiak’s submission on August 3.
Jendrasiak’s cover letter (GC Exh. 61(a)) stated that the ap-
plicants were registered electrical apprentices or had passed a
Michigan’s journeyman’s examination. It stated that any pro-
tected activity that the applicants may choose to engage in
would be conducted in accordance with guidelines established
by the NLRB and would not interfere with the efficiency and
productivity of the employees. The letter advised of the Un-
ion’s right to file charges with the NLRB should the recipient
refuse to nondiscriminatorily consider the applications and
stated further, “If for any reason you refuse to accept this appli-
cant or if you consider same deficient in any manner please
advise me immediately so that remedial action may be taken.”
Dennis Van Wyck, Toering’s office manager, testified that
he did not respond to the Union’s submission because the re-
sumes were xerox copies and not up-to-date. He stated this led
him to believe that the applicants weren’t interested in em-
ployment (Tr. 627). Respondents made no response to any of
Jendrasiak’s submissions. Toering Electric did not, as it rou-
tinely did in other instances, ask any of the Union applicants to
supplement their resumes by filling out a Toering application
form (See Tr. 625).
Many of the resumes were not current.12 For some there is
no way of telling when they were prepared. However, others
clearly indicate fairly recent preparation. For example, the
resume of Bernard Hamstra (GC Exh. 61(h)) indicates that he

Jendrasiak’s application until after he talked to him. On the other hand,
Bartels may have set up the interview at the same time that he was
seeking a way out of having to consider Jendrasiak for employment.
11 On July 1, 1996 Local 107 and 275 merged. Jendrasiak became
an organizer for the new unified local. Jendrasiak obtained thirteen of
the 14 new resumes from James Leenhouts, an organizer who worked
for Local 275 before and after the merger. Two of the applicants be-
sides Jendrasiak are full-time paid officials of the Union. They are
James Leenhouts and George Robinson Jr.
12 Toering’s reliance of the lack of specificity with regard to the
dates that the Union applicants worked for various employers is under-
cut by the fact that David Lamberts’ application suffers from the same
defect. Lamberts, who was hired by Toering on July 31, 1996, gave no
indication as to when he worked for the employers listed on his em-
ployment application (GC Exh. 34).
took a National Electrical Code course in 1996. John Fekken’s
resume (GC Exh. 61(g)) sets forth his work history through
October 1995.13
Two of the resumes were from apprentices. The resume of
Douglas Scott does not reflect that he has any experience as an
electrician and appears to predate his apprenticeship (GC Exh.
61(o)).14 However, one can easily deduce from the resume of
Wayne Harris (GC Exh. 61(i)) that this applicant is an appren-
tice. The resume indicates that he has worked for three em-
ployers as an apprentice electrician from August 1994 to Janu-
ary 1996.
Toering Electric generally maintains a permanent workforce
of between 30 to 35 employees. In peak periods of work it
supplements this work force by a variety of means. It hires
employees from temporary employment agencies, borrows
employees from other nonunion contractors15 and it some cases
directly hires new employees. The summer of 1996 was one of
these peak periods. Filling Toering Electric’s needs was com-
plicated by the fact that there has been a shortage of qualified
electricians in western Michigan for the past 5 years.
From late June to mid-July Toering brought a number of new
employees to its worksites, including the following:
Christian Karr, who worked for Toering from June 20
through at least June 28, through Troy Technical Services;
Kenneth Palm, a journeyman, who started working for
Toering Electric on July 15;
Frank Inman, a Missouri journeyman, who worked
from July 22-September 4, through Construction Services;
Justin Lake, a temporary employee, who worked from
July 23-August 16;
Lance Pittlekow, a journeyman, who was borrowed by
Toering from Associated Electric Co., on July 18. Pittle-
kow became a regular Toering employee in November;
Jim McCune, a journeyman, who started with Toering
on July 12;
John Hagerty, who had a Virginia journeyman’s li-
cense and was hired by Toering on July 16;16
Clint Zang, who worked 4 days as an independent con-
tractor, beginning on July 29;
David Lamberts, a journeyman, who worked as an in-
dependent contractor for a week starting July 31;
Matt Hummel, who worked August 5 and 6, through
the Talent Tree employment agency;
Josh Akin, who was hired as an independent contractor
on August 3;
Two journeymen (Mike Boruta and Mike Wagner) and
two apprentices (Joel Plaggemeyer and Rick Hop), that

13 Fekken had worked for nonunion contractors as recently as 1995.
Indeed, while working for one of them in 1994, he applied for work at
Toering and was offered a job, which he did not accept. Throughout
most of the fall of 1996, he was working for a union contractor in Bat-
tle Creek, a 2-1/2-hour drive from his home.
14 However, Scott’s resume does reflect a background in electronics;
Jendrasiak’s cover letter represents that the resumes are all from jour-
neymen or apprentice electricians.
15 See fn. 2.
16 Hagerty did not start work for Toering Electric until August 19,
1996.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD250
Toering borrowed from Classic Electric Company starting
August 26, 1996 (GC Exhs. 25, 29). Boruta worked for
Toering two weeks with overtime; Wagner worked 3 days;
Plaggemeyer worked two weeks with overtime and Hop
worked 36 hours for Toering (R. Exh. 30).
Toering did not do any direct hiring between August 3 and
September 3, 1996. It explains this fact as being due to the
delay in several large contracts, notably the wiring of the Big
Rapids, Michigan high school and a job at Foremost Graphics
Company. Toering bid on the Big Rapids project on June 18, a
$1.8 million project. It expected that contract would be
awarded in mid-July, but did not receive confirmation until
August 1. It began working at Big Rapids on September 18.
Toering expected to start work at Foremost Graphics in June or
July. The contract for the project was not awarded until No-
vember. Due to these delays Toering was able to transfer some
employees from projects completed in the summer to Big Rap-
ids and Foremost Graphics.
On September 3, however, it hired Mike Baar, an apprentice
with no prior work experience in the electrical wiring field,
who applied for work on August 29. On September 29, Toer-
ing hired David Seger as an apprentice and on October 7, it
hired John Baar, an apprentice with no prior experience in the
industry.17 On October 14, Toering borrowed journeyman Bob
Nelson and four apprentices from Gelders Electric. It also bor-
rowed journeyman Mason Miller and apprentice Dave Selby
from Van Horne Electric at the same time for a two week pe-
riod.
Toering Electric has a policy that employment applications
are only valid for 30 days from receipt. This policy is stated at
the top of the application. However, Toering has made excep-
tions to this rule and accommodations for applicants it desired.
Kenneth Palm filed an employment application with Toering on
April 10, 1996, and started work for Respondent on July 15.
John Hagerty applied and was hired on July 16, but was al-
lowed to report to work on August 19. Kolin Shoemaker ap-
plied for a job on November 3, 1996, and was hired in February
1997. Toering’s reliance on this policy is a pretext to justify its
discriminatory hiring practices. It does not constitute a nondis-
criminatory basis for excluding the Union applicants from
openings that occurred more than 30 days after their applica-
tions were filed.18

17 On September 16, 1996, Foster hired Shane Bostrum, an appren-
tice.
18 Respondent’s explanation of these exceptions is as follows:
In April, Palm knew he was going to be laid off by his em-
ployer and filled out an application. Toering agreed to hire Palm
when the lay-off took effect. Although there is some suggestion
that Palm was hired to work on the premises of his former em-
ployer, this job lasted only an additional three months. Palm also
worked on the Foremost Graphics project in late 1996 and/or
early 1997. Consistent application of the 30-day rule would seem
to have required repeated applications by Kenneth Palm. Despite
the understanding with Toering, it’s possible that in the months
between his original application and his lay-off, Palm may have
decided to work elsewhere.
Analysis
Toering Electric Company and Foster Electric, Inc. are not
single employers under the Act. However, David Toering and
Dennis Van Wyck were acting as agents of both Toering and
Foster in dealing with union job applicants in 1995 and 1996.
The General Counsel alleges that Toering Electric and Foster
Electric are single employers. The significance of such a find-
ing would be that both companies would be jointly and sever-
ally liable to remedy the unfair labor practices of the other,
Emsing’s Supermarket, 284 NLRB 302 (1984).19
The factors for evaluating whether two entities are a single
employers are: (1) common ownership, (2) interrelation of op-
erations, (3) common management, and (4) centralized control
of labor relations matters, Denart Coal Co., 315 NLRB 850
(1994). No single factor is deemed controlling. The Board has
stated that the single-employer relationship is characterized by
the absence of the arm’s length relationship found among unin-
tegrated companies. It has also stated that the fundamental
inquiry is whether there exists overall control of critical matters
at the policy level, Emsing’s Supermarket, supra.
While in the instant case there is obviously an ongoing rela-
tionship between Toering Electric and Foster, I conclude that
the degree of interrelationship is not sufficient to deem them to
be a single employer. Aside from David Toering’s involve-
ment, the management of the companies is not substantially
identical. On a day-to-day basis the companies are managed
independently. Foster is managed by Bruce Bartels and Fred
Fairchild; Toering by David Toering, Dennis Van Wyck, and
Ward Stahmer. The two companies appear to operate largely as
separate entities, often in different geographical markets, albeit
in the same industry. While not all dealings between Toering
and Foster appear to be arm’s length (for example the loan of
William Brooks), the two companies generally charge each
other a market rate for services rendered.
At the time of the events in the instant case, David Toering
and Dennis Van Wyck had some involvement in the hiring
practices of Foster Electric. However, it appears that Foster
retained a substantial degree of autonomy in its labor relations.
For example, the record indicates that Bruce Bartels acted in-
dependently in failing to consider James Jendrasiak for em-
ployment on the basis of antiunion animus.20
As a practical matter the only implication of my failure to
find Foster and Toering Electric a single employer is to make
Toering Electric’s assets unavailable to remedy the discrimina-
tion by Bruce Bartels, as an agent for Foster, against James
Jendrasiak on September 22, 1995. Otherwise, both companies
are liable because I find that David Toering and Dennis Van
Wyck were acting as agents of both companies in discriminat-
ing against union applicants on the other occasions alleged in

19 A closely related doctrine, “alter-ego,” appears to be applied in in-
stances where one company ceases doing business and a new company
is started to continue the business of the defunct company, Allcoast
Transfer, 271 NLRB 1374, 1378–1379 (1984).
20 Foster apparently retained the services of Staffing, Inc. without the
involvement of David Toering or anyone else at Toering Electric.
TOERING ELECTRIC CO. 251
the complaint.21 When David Toering placed advertisements in
the newspaper in August 1995, through American Careers, he
was clearly acting as an agent for Foster as well as Toering
Electric. His refusal to interview and consider James Jendra-
siak for employment is imputable to Foster as well as Toering
Electric. Since Dennis Van Wyck is generally consulted by
Foster whenever it looks for electricians to hire, I deem Van
Wyck also to be an agent of both companies when dealing with
job applicants.
While there is no direct evidence that Toering was seeking
employees for Foster in the summer of 1996, I conclude that
David Toering and Dennis Van Wyck were acting as agents for
Foster at this point in time as well. Foster hired electricians in
the fall of 1996 and the record indicates that Foster checked
with Van Wyck whenever it needed to hire electricians. The
decision of Toering and Van Wyck to exclude the Union appli-
cants from consideration for employment with Toering, neces-
sarily would have excluded them from any consideration for
any positions with Foster of which they may have become
aware.
On August 22, 1995, Toering Electric and Foster Electric
violated Section 8(a)(1) and (3) in refusing to interview, con-
sider and hire James Jendrasiak.
On August 20, Toering Electric placed an advertisement,
through American Careers, in The Grand Rapids Press seeking
journeymen and apprentice electricians. By virtue of the men-
tion of the Muskegon area, I infer the ad was seeking employ-
ees for Foster as well as Toering. In response to the ad, James
Jendrasiak went to American Careers, a temporary employment
agency retained by Toering. John Williams, American Career’s
service manager interviewed Jendrasiak. Pursuant to David
Toering’s direction, Williams inquired as to Jendrasiak’s union
background.
After the interview, Williams sent Jendrasiak to Toering
Electric’s offices for another interview with David Toering.
While Jendrasiak was in transit, Williams informed David To-
ering that Jendrasiak had worked through a union hiring hall.
When Jendrasiak arrived he was told there was a misunder-
standing and that he would not have an interview with David
Toering. I conclude that the interview was canceled due to
Toering’s animus towards the IBEW.22 This animus is estab-
lished by Toering’s directions to Williams during the interview.

21 Although the General Counsel’s brief does not argue that Toering
and Van Wyck were agents of both companies in dealing with job
applicants, there is no denial of due process in so concluding because
this issue was fully litigated. For example, Respondents had the oppor-
tunity to rebut John Williams’ testimony that David Toering asked him
to look for employees for Foster, as well as for Toering Electric. Van
Wyck’s role in referring available electricians to Foster is in the record
through the testimony of Bruce Bartels, as well as through the invoice
for William Brooks’ services, about which Van Wyck was questioned
by the General Counsel.
22 Respondents cannot rely on the misrepresentations in Jendrasiak’s
application as justification its unwillingness to consider him for em-
ployment. First of all, they did not refuse to consider him for employ-
ment for making misrepresentations. Secondly, Foster’s willingness to
retain Brian Kelly despite his misrepresentation of his journeyman
status, suggests that that it has a fair degree of tolerance for even more
serious misrepresentations on the part of employees without a union
David Toering had Jendrasiak fill out a Toering Electric ap-
plication form. On it Jendrasiak indicated that he was a volun-
tary union organizer. Toering, in a subsequent call to John
Williams, confirmed his animus towards the Union by telling
Williams that he had had bad dealings with the Union previ-
ously and did not want to have to interview Jendrasiak.
Toering’s assertion that Jendrasiak was not interviewed be-
cause Toering Electric didn’t need any electricians is pretex-
tual. David Toering was looking for employees for Foster, as
well as for Toering Electric. At the time of Jendrasiak’s visit,
Foster was still looking for journeymen electricians, as evi-
denced by its subsequent employment of Roland Dye as an
independent contractor, the advertisement it placed on Septem-
ber 10, its continued search for employees through Staffing,
Inc. and other electrical contractors, and its borrowing of elec-
tricians from Ottawa Electric and Toering Electric in Septem-
ber and October, 1995.
In FES, the Board held that to a establish a discriminatory re-
fusal to consider, the General Counsel must show that: (1) the
respondent excluded applicants from a hiring process, and (2)
that antiunion animus contributed to the decision not to con-
sider the applicants for employment. If this is established, the
employer must show that it would not have considered the ap-
plicants even in the absence of their union activity or affiliation.
To establish a discriminatory refusal to hire, the General Coun-
sel must show: (1) that the respondent was hiring, or had con-
crete plans to hire, at the time of the alleged unlawful conduct;
(2) that the applicants had experience or training relevant to the
announced or generally known requirement of the positions for
hire, or in the alternative that the employer has not adhered
uniformly to such requirements, or that the requirements were
pretextual or were applied as a pretext for discrimination; and
(3) that anti-union animus contributed to the decision not to
hire the applicants. If these elements are established the em-
ployer must show that it would have not hired the applicants
even in the absence of their union activity or affiliation.
As a practical matter, once the General Counsel has estab-
lished a refusal to consider violation, he must then show only
that the respondent was hiring, or had plans to hire in order to
establish a refusal to hire violation. If he seeks an affirmative
backpay and instatement order he must also show there were
openings for each of the applicants.
With regard to Jendrasiak’s 1995 applications, I find that Re-
spondents violated the Act both in August and September in
refusing to consider Jendrasiak for hire and in refusing to hire
him. In August, Toering and Foster, by David Toering, ex-
cluded Jendrasiak from the hiring process because of anti-union
animus. Respondents have not established that it would have
refused to consider him for employment in the absence of his
union activity or affiliation.
Moreover, Foster, if not Toering Electric, had concrete plans
to hire, at the time it declined to hire Jendrasiak due to his un-
ion activity and affiliation. Foster, in fact, did hire Roland Dye
as an independent contractor, borrowed apprentice Kevin Boley

background. Third, Respondent cannot rely on Jendrasiak’s misrepre-
sentations about his union affiliation because its inquiries in this regard
violated the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD252
from Toering for a month and put Brian Kelly, who it mistak-
enly thought was a journeyman, on its payroll. It has thus been
established that there was an opening for Jendrasiak had Re-
spondents considered him for hire without discrimination. The
advertisements placed by Foster on September 10, establish that
Foster had plans to hire additional journeyman or third-year
apprentices even after it obtained the services of Dye and Bo-
ley.
The fact that Kelly was already working for it through
American Careers, does not establish that Foster would have
hired Kelly, as opposed to Jendrasiak, had it not excluded Jen-
drasiak from the hiring process due to his union activity and
affiliation. Similarly, the fact that Robert Keeler and William
Brooks were already working on Toering jobsites through
American Careers, does not establish that Toering Electric
would have hired either of them, rather than Jendrasiak, had it
not excluded him from the hiring process due to his union af-
filiation.
Respondent Foster violated Section 8(A)(1) and (3) by refus-
ing to interview, consider and hire Jendrasiak in late September
1995.
Foster ran an advertisement for a journeyman and third-year
apprentice on September 10 through Staffing, Inc. It is clear
that well into the afternoon of September 22, when Jendrasiak
set up his interview with Foster’s operations manager, Bruce
Bartels that Foster was still in the market for journeymen elec-
tricians.
Bartels called Sandy Hammet the same afternoon to cancel
the interview. He told Hammet that Jendrasiak’s relationship
with the Union was big trouble. In light of this, I reject any
notion that the sudden availability of electricians from Ottawa
Electric, another nonunion contractor, was coincidental. I infer
that when Bartels became aware of Jendrasiak’s union affilia-
tion, he contacted or recontacted Ottawa and took whatever
measures were necessary to insure that Ottawa would make its
employees available to Foster on September 25. I therefore
conclude that Foster’s refusal to interview and consider Jendra-
siak for hire was discriminatory.
Further, the record establishes that Foster had an opening for
Jendrasiak. It filled this opening with Ed Wezeman, an em-
ployee it borrowed from Ottawa Electric Company and Ken
Slot and/or Terry Terpening, which it borrowed from Toering
Electric. I therefore also find that Foster violated the Act in
refusing to hire Jendrasiak in September 1995.
Toering Electric violated Section 8(a)(1) and (3) in failing to
consider for hire and in refusing to hire any of the union mem-
bers whose employment applications it received in June and
August 1996
Toering Electric concedes that it received the two packets of
resumes sent by Jendrasiak in June and the one mailed in July.
It also concedes that it gave none of the employees whose re-
sumes it received the slightest consideration. Toering asserts
that it ignored these resumes because they were copies and not
up-to-date (Tr. 627). Therefore, Dennis Van Wyck, Toering’s
office manager assumed the individuals were not interested in
employment.23
I infer that the reason the resumes were ignored were that
they were from Union salts and that therefore Respondent vio-
lated Section 8(a)(1) and (3) in ignoring them. While some of
the resumes were out-of-date, others, such as those of Bernard
Hamstra, John Fekken and Wayne Harris, were relatively cur-
rent.24 Moreover, Toering’s failure to respond to Jendrasiak’s
request that he be informed if the resumes were deficient, is
further evidence of discriminatory motive.
The General Counsel has established a refusal to consider
violation in that Toering excluded the Union applicants from
the hiring process because of the union activity and union af-
filiation. Respondent has not met its burden of showing that it
would not have considered any of the applicants in the absence
of these considerations.
The General Counsel has also established a discriminatory
refusal to hire the 1996 applicants. Toering was hiring at the
time it decided not to hire these employees. Each had experi-
ence and training relevant to the journeyman and apprentice
electrician positions Respondent was hiring. The decision not
to hire the union applicants was made on the basis of their un-
ion activity and affiliation. Respondent has not established that
it would not have hired any of the applicants in the absence of
these considerations.
In FES, the Board held that if the General Counsel seeks a
backpay and instatement order, he must show that there were
openings for the applicants. Where the number of applicants
exceeds the number of available jobs, the compliance proceed-
ing may be used to determine which of the applicants would
have been hired for the openings. In applying this rule to in-
stant case, I find that applicants James Jendrasiak, Patrick
Cosgrove, Richard Newville, Bernard Hamstra, Wayne Harris,
and Douglas Scott are entitled to backpay and an instatement
order. In the compliance proceeding it must be determined
which of the journeymen applicants, who first applied on July
29, 1996, would have been hired for the journeyman openings
that occurred after that date.

23 R. Br. at p. 2 suggests that Toering was entitled to ignore these
applications because the IBEW’s salting campaign is intended to drive
nonunion contractors out of business and to manufacture unfair labor
practices, rather than to secure employment. However, Toering’s wit-
nesses did not testify that this was a factor in their decision to ignore
the union resumes. Moreover, I infer that the IBEW has no interest in
driving Respondents out of business if they become signatory contrac-
tors (See R. Exh. 83). As discussed herein, I believe that Respondents
experience with Local 275 is too limited for it to make a blanket as-
sumption that the Union’s salts would not accept jobs if they were
offered.
24 Respondents suggest at pp. 37–38 of its brief that it was entitled
not to take the union resumes seriously because none of the “appli-
cants” took any individual initiative to seek work with Toering or filled
out an adequate employment application. This ignores that fact that the
ads placed in the Grand Rapids Press asked only that resumes be sent
to a post office box. Toering could have contacted Jendrasiak and
informed him that it would only consider those applicants who were
willing to complete a company application form (assuming that is what
it would have required for nonunion employees responding to the ad).
He did not do so.
TOERING ELECTRIC CO. 253
Jendrasiak, Cosgrove, Newville, and Hamstra applied to To-
ering two times in June. In July 1996, Toering hired the fol-
lowing journeymen electricians: John Haggerty, Lance Pittle-
kow, Jim McCune, Frank Inman, and Ken Palm. Thus, there
was an opening for each of the applicants.
Wayne Harris and Douglas Scott were Union apprentices
who applied for work with Toering on July 29. After that date,
Toering hired the following apprentices: Matt Humell for 2
days, Joel Plaggemeyer and Rick Hop for 2 weeks and 1 week,
respectively, Josh Akin, Mike Baar, David Seger, John Baar,
the four apprentices from Dupree Electric and Dave Selby from
Van Horne. The fact that some of these were hired more than
30 days after Harris and Scott applied does not rule out consid-
eration of these openings in fashioning a remedy with regard to
Harris and Scott. The 30-day rule was not consistently applied
and Toering’s reliance upon it is pretextual in this case.
The General Counsel concedes that the number of union
journeymen applicants exceeds the number of openings for
journeyman. Twelve union journeymen applied to Toering for
the first time on July 29. After that date, Toering hired the
following journeymen: David Lamberts, Mike Boruta and Mike
Wagner (from Classic), Bob Nelson (from Dupree), and Mason
Miller (from Van Horne). At compliance it must be determined
which of the twelve union journeymen would have been placed
in these positions. The fact that some of these positions lasted a
very short time is relevant to the amount of backpay owed, not
to whether Respondent refused to hire the applicants.
The General Counsel’s Allegation that David Toering unlaw-
fully interrogated David Seger with regard to union affiliation
is dismissed.
At the commencement of the hearing the General Counsel
moved to amend his complaint to allege that David Toering
interrogated David Seger about his union affiliation in Septem-
ber 1996. I grant the motion and dismiss this allegation be-
cause that it rests solely on the testimony of Seger. I consider
Seger’s testimony, where uncorroborated, insufficiently reliable
to support any factual findings.
CONCLUSIONS OF LAW
1. By refusing to interview, consider and hire James Jendra-
siak on or about August 22, 1995, Respondents Toering Elec-
tric and Foster Electric have 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.
2. By refusing to consider for hire and hire James Jendrasiak
on September 22, 1995, Respondent Foster Electric violated
Section 8(a)(1) and (3).
3. By refusing to consider for hire and refusing to hire James
Jendrasiak, Patrick Cosgrove, Bernard Hamstra, and Richard
Newville, since June 10, 1996, Toering Electric Company has
violated section 8(a)(1) and (3).
4. By refusing to consider for hire and refusing to hire the
18 union applicants, whose resumes were received on August 3,
1996, Toering Electric Company has violated section 8(a)(1)
and (3).
5. Respondents, through David Toering, did not unlawfully
violate section 8(a)(1) in interviewing David Seger in Septem-
ber 1996.
REMEDY
Having found that the Respondents have engaged in certain
unfair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that Toering Electric Company on one occa-
sion, and Foster Electric Company on two occasions in 1995,
violated Section 8(a)(3) and (1) by refusing to hire James Jen-
drasiak, it shall be ordered that he be offered immediate em-
ployment in the positions for which he applied and is qualified
and that he be made whole for any earnings lost by reason of
the discrimination against him, from the date of refusal to hire
to the date of a bona fide offer of instatement.
Having found that in 1996, Respondent, Toering Electric
Company, violated Section 8(a)(3) and (1) by refusing to hire
James Jendrasiak, Patrick Cosgrove, Bernard Hamstra, Richard
Newville, Wayne Harris, and Douglas Scott, it shall be ordered
that they be offered immediate employment in a position for
which they applied and are qualified, and that they be made
whole for any earnings lost by reason of the discrimination
against them, from the date of refusal to hire to the date of a
bona fide offer of instatement.
Having found that Toering Electric violated Section 8(a)(3)
and (1) by refusing to hire the employees named below, it is
ordered that when it is determined in the compliance proceed-
ing, which of them should have been hired for the available
journeymen electrician vacancies, they shall be offered imme-
diate employment in those positions and backpay.
Gary Becklin, Mark Butzow, Jeffrey Engel, John R. Fekken,
James Leenhouts, Leonard Petznik, Raymond Rager, George
Robinson, Jr., Jeffrey Stadt, Leo Smith, Geralyn Spofford and
Daniel Watters
If it is shown at the compliance stage of this proceeding that
Toering Electric, but for its discrimination, would have hired
any of these remaining discriminatees to jobs at other sites, it
shall be ordered to make those individuals whole for the dis-
crimination found and, if those positions no longer exist, to
place them in positions substantially equivalent to those for
which they applied. In all instances, backpay shall be com-
puted on a quarterly basis as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), and shall be reduced by net interim
earnings, with interest computed in accordance with New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]