Waco, Inc.

National Labor Relations Board - Board Decisions

Jan 23, 1995

316 N.L.R.B. 73 (N.L.R.B. 1995)

73
316 NLRB No. 9
WACO, INC.
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
The judge found, and we agree, that the General Counsel has
failed to sustain his burden of showing that the Respondent refused
to hire job applicants because of their union affiliation. The General
Counsel has not adduced any evidence of antiunion animus on the
part of the Respondent. Further, he has not, in our view, proved that
the Respondent engaged in the type of ‘‘blatant disparity’’ in reject-
ing union-affiliated applicants that was found in Fluor Daniel, Inc.,
304 NLRB 970 (1991), on which the General Counsel relies. We
find Fluor Daniel distinguishable. In contrast to the Respondent’s se-
lection of at least some applicants who either were union members
or had worked for unionized employers in the past, all applicants
hired by Fluor Daniel had weak or nonexistent union ties, while all
48 who displayed union affiliation were denied jobs. Moreover, the
Board found that Fluor Daniel offered no credible evidence to ex-
plain why the rejected applicants were treated disparately and con-
cluded that its reasons were pretextual. Here, the judge found that
the alleged discriminatees lacked the 6 years’ electrical experience
in heavy construction or maintenance that was specified in the Re-
spondent’s job advertisements. He also credited the testimony of the
Respondent’s witnesses that prior electrical experience on the Mount
Storm jobsite, other electrical unit ‘‘outage’’ experience, or rec-
ommendations by managers or supervisors at the jobsite were factors
which characterized successful applicants who lacked the 6 years of
relevant experience, but that none of the discriminatees’ applications
disclosed that they possessed these qualifications, except as noted
below. Accordingly, we adopt the judge’s finding that no prima facie
case of discrimination is established.
Contrary to the judge, we find that union applicant Earl Kline’s
application showed a total of less than 6 years of relevant electrical
experience. Also, although union applicant Albert Baker referred to
Mount Storm outage experience in a section of the Respondent’s ap-
plication eliciting ‘‘additional information,’’ Baker did not set forth
any facts relating to that experience on the more specific question
on the application asking him to list previous jobs.
In view of the Board’s conclusion that the General Counsel failed
to establish a prima facie case of discrimination, and in light of the
absence of Respondent exceptions, Member Cohen finds it unneces-
sary to decide whether the applicants involved were statutory em-
ployees.
1 The eight union members named in the complaint were Mark
Bailey, Terry Bailey, Albert Baker, Earl Kline, George Koontz,
Shawn Lester, Theodore Lych, and James Sweitzer. For whatever
reason, no charge was filed on behalf of John Corbin, a paid union
organizer, who also applied.
WACO, Inc. and International Brotherhood of
Electrical Workers, Local 307. Case 5–CA–
22489
January 23, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On December 23, 1992, Administrative Law Judge
Peter E. Donnelly issued the attached decision. The
General Counsel and the Charging Party filed excep-
tions and supporting briefs, and the Respondent filed
cross-exceptions and a supporting brief.
On April 13, 1993, the National Labor Relations
Board remanded the proceeding to the judge for further
consideration in light of Sunland Construction Co.,
309 NLRB 1224 (1992), and Town & Country Elec-
tric, 309 NLRB 1250 (1992).
On July 1, 1993, the judge issued the attached sup-
plemental decision. The General Counsel and the
Charging Party filed exceptions; the General Counsel
filed a supporting brief, which the Charging Party
adopted; and the Respondent filed a reply brief.
The Board has delegated its authority in this pro-
ceeding to a three-member panel.
The Board has considered the record and the deci-
sions in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
James P. Lewis, Esq., for the General Counsel.
Paul M. Thompson, Esq. and Marguerite R. Ruby, Esq., of
Richmond, Virginia, for the Respondent.
Brian Malloy, of Cumberland, Maryland, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge. The
charge herein was filed on January 22, 1992, by International
Brotherhood of Electrical Workers, Local 307 (Union or
Charging Party) alleging that WACO, Inc. (Employer or Re-
spondent) violated Section 8(a)(1) and (3) of the Act by re-
fusing to hire eight electricians because of their membership
in the Union. A complaint thereon issued on March 6, 1992.1
An answer thereto was timely filed by Respondent. Pursuant
to notice, a hearing was held before the administrative law
judge on September 2–4, 1992, in Cumberland, Maryland.
Briefs have been timely filed by General Counsel and Re-
spondent, which have been duly considered.
FINDINGS OF FACT
I. EMPLOYER’S BUSINESS
Employer is a Virginia corporation with a jobsite at the
Virginia Electric and Power Co. (VEPCO) facility at Mount
Storm, West Virginia, where it is engaged in providing main-
tenance services. During the preceding 12-month representa-
tive period, Respondent, in the course and conduct of its
business operations, provided services valued in excess of
$50,000 to public utilities located outside the State of Vir-
ginia and during that same period of time, in the course and
conduct of those business operations, provided services val-
ued in excess of $50,000 to public utilities located within the
State of Virginia, including VEPCO. The complaint alleges,
the answer admits, and I find that the Employer is an em-
74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Up to 1000 temporary craft employees were hired by WACO to
work the outages.
3 All dates refer to 1991 unless otherwise indicated.
4 The relevant sanctions are set out in the International constitution
in art. XXVI, sec. 1(6), and in the union bylaws art. XVI, sec. 7.
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Facts
VEPCO maintains and operates a power generating station
at Mount Storm, West Virginia. WACO, a nonunion Em-
ployer, contracted with VEPCO for the performance of craft
support services throughout the power station. Pursuant to
this function, WACO hired various craft employees, i.e.,
electricians, welders, carpenters, mechanics, and laborers for
varying periods of time. Periodically, during these years, on
an annual or semiannual basis, it was necessary for WACO
to shut down and overhaul one of the three energy producing
units at Mount Storm. This was done on an expedited con-
tinuing basis for about 40 days, working 8-hour shifts around
the clock, with a greatly increased craft WACO work force
until the job was completed. These projects were called
‘‘outages.’’2 From 1986 through 1990, WACO lost the
VEPCO contract, but, in 1991,3 it once again reacquired the
contract, including outages. It was the outage scheduled for
mid-September 1991, the first under WACO’s reacquired
contract, that gave rise to the matters treated herein.
The Union represents electricians under contract with var-
ious employers in a geographical area covering three coun-
ties in Maryland and five counties in West Virginia. The
Union’s business manager, Brian Malloy, is primarily re-
sponsible for the Union’s operations. In January 1991,
Malloy hired Corbin, a union member electrician, as an orga-
nizer. Corbin was paid a guaranteed 40 hours per week at
$17.45 per hour, 24 cents per mile, plus $40 a week as ex-
pense money. Corbin understood that his principal respon-
sibility would be to organize unorganized electrical contrac-
tors within the Union’s geographical jurisdiction.
In August 1991, WACO began to hire craft employees, in-
cluding electricians, at Mount Storm under its contract with
VEPCO for the outage scheduled to begin in mid-September.
On August 4 and 5, classified ads were placed in various
local newspapers reading as follows:
ELECTRICIANS
Waco, Inc. Is Accepting Applications For Electricians
With A Minimum Of 6 Years Experience In Heavy
Construction Or Maintenance. Must Have Transpor-
tation, Birth Certificate Or Original Social Security
Card And Driver’s License. Must Pass Drug Screening
Test. Applications Will Be Accepted Wednesday, Au-
gust 7, 1991 At The Mt. Storm WV Fire Station On Rt.
50.
EOE
In an effort to organize the WACO electricians, Corbin solic-
ited eight union members to respond to the ads and apply for
outage employment with WACO at the Mount Storm facility.
Under normal circumstances, any union member soliciting
and accepting employment with a nonunion contractor would
have been subject to internal union charges,4 but a ‘‘Job
Salting Resolution’’ adopted by the union membership on
March 19, 1987, excepted these applicants from those sanc-
tions. That resolution reads:
JOB SALTING ORGANIZING RESOLUTION
WHEREAS: Local Union #307 is committed to organiz-
ing all unorganized craftsmen working in our jurisdic-
tion, and;
WHEREAS: A continual organizing program is the life-
blood of all building and construction trades unions
because it is the only proven method of maintaining
control of the construction labor pool, and;
WHEREAS: The first obligation of the members of the
local union is to organize the unorganized in order to
maintain and secure our wages, benefits and other
conditions of employment, and;
WHEREAS: The success of any organizing drive de-
pends upon the support of each and every union
craftsman, both off and off the job; therefore, be it
RESOLVED: That the Business Manager be empowered
to authorize members to seek employment by non-
signatory contractors for the purpose of organizing
the unorganized, and be it further
RESOLVED: That unemployed members shall report to
the Business Manager for the purpose of assigning as
needed in the organizing program, and be it further
RESOLVED: That the Business Manager shall maintain
records of all members authorized to seek employ-
ment by nonsignatory employees including date(s) of
authorization, date(s) of employment, and all other
pertinent information, and be it further
RESOLVED: That such members, when employed by
nonsignatory employees, shall maintain their posi-
tion(s) on the out-of-work list, and be it further
RESOLVED: That such members, when employed by
nonsignatory employees, shall promptly and diligently
carry out their organizing assignments, and leave the
employer or job immediately upon notification, and
be it further
RESOLVED: That any member accepting employment
by a nonsignatory employer, except as authorized by
this RESOLUTION, shall be subject to charges and
discipline as provided by our Constitution and By-
laws.
The applicants all understood that they would be seeking
employment under the protection and terms of the resolution
and were subject to its terms. Corbin testified that his orga-
nizing instructions at WACO would come from Malloy. Each
of the job applicants at WACO were provided by Malloy
with a letter of recommendation from Malloy dated August
7 to be attached to each job application. The letter read:
75WACO, INC.
5 The name of the job applicant was typed in at this space.
6 It is clear that neither Mark Bailey nor Shawn Leister had 6
years’ experience as journeyman electrician and, in fact, were ap-
prentices when they applied.
7 Job applicants are ‘‘employees’’ under Sec. 2(3) of the Act.
Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941).
This letter will attest to the fact that 5
is a member of the IBEW Local Union #307, and has
more than 6 years experience in the trade. He is a resi-
dent of this area and has been certified as a journeyman
electrician by the Western Maryland Joint Apprentiship
[sic] Committee.
You will not be able to employ a more qualified and
productive employee in any other labor market. Addi-
tionally, you can be assured that any protected activity
in which this applicant may choose to engage following
his employment by you will be conducted strictly with-
in the guidelines established by the law and the Na-
tional Labor Relations Board and will not interfere with
his efficiency and productivity as an employee.
On August 7, armed with this letter of recommendation,
eight union member electricians, plus Corbin, went to the
Mount Storm, West Virginia fire station and submitted em-
ployment applications to which all appended the above letter
of recommendation from Malloy. None of the nine were
hired.
Kirk Hawk, senior technician aide for WACO at the
Mount Storm facility, has been, since the early 1980s, re-
sponsible for the hiring of the craft support service employ-
ees, including electricians, needed for the outages, including
the fall of 1991. With respect to the hiring process, Hawk
testified that on or about August 1, he learned that pursuant
to the contract with VEPCO, it would be necessary to em-
ploy some 225 employees for the outage, including 52 elec-
tricians, a number later reduced by VEPCO to 35. These
numbers were specified by VEPCO under the contract.
As noted above, classified ads were placed in the local
newspapers soliciting electrician applicants with 6 years’ ex-
perience in heavy construction or maintenance.
Hawk testified that since 6 electricians were already work-
ing at the jobsite on another project, he would keep them to
work during the outage so as to reduce the number of new
hires to 29. Hawk then consulted a master list of about 250
or 300 craft employees previously employed by WACO for
outages at Mount Storm, including about 50 electricians.
Hawk testified that about 14 electricians were hired from this
list before the classified ads were placed in the newspapers.
This left about 15 electricians to be hired after August 7.
Hawk testified that he made the 35 selections based on
various qualifying information and that union affiliation was
not a factor in not hiring the union members who applied.
Hawk testified and the record supports the testimony that 9
of the 35 hires did have some sort of union affiliation and
that Hawk was aware of that when they were hired.
Hawk testified electrician job applicants needed 6 years of
experience to qualify and that primary consideration for se-
lection was prior powerplant experience, particularly the ex-
perience of employment during prior outages at Mount
Storm. It appears that out of the 35 hired, some 21 had pre-
viously worked during outages at Mount Storm and about 6
had prior experience as coal mine electricians, which Hawk
regarded as qualifying. The rest came to Hawk either by way
of personal recommendations from someone known to Hawk,
including VEPCO or WACO supervision, or were hired be-
cause of impressive resumes.
In reviewing the applications submitted after the ads were
placed, including those submitted by the group from the
Union, Hawk looked for a background of 6 years’ experi-
ence, specifically the type of experience useful for outage
work, such as prior outage experience or coal mine electrical
work. The applications from the union members failed to
show that type of work experience and did not list 6 years
of experience in the applications despite the representations
made in Malloy’s letters of recommendation that each had
that length of experience and were journeyman electricians.6
B. Discussion and Analysis
The protection of the Act against discrimination extends
only to employee or job applicants within the meaning of
Section 2(3) of the Act.7 Therefore, the threshold issue to be
resolved is whether or not these union member job applicants
could have become bona fide employees of the Respondent.
In my opinion, this question is answered in the negative be-
cause the conditions of employment imposed by the Union
under the terms of the Salting Resolution negate the possibil-
ity of any bona fide employer-employee relationship between
the Respondent and the union member job applicants, spe-
cifically because it is the Union, not the employer and not
the employee who has complete discretion to determine the
duration of the employer-employee relationship. This creates
circumstances under which the loyalty which would normally
accrue to an employer is preempted by the Union.
A review of the Salting Resolution discloses that its only
purpose is to organize unorganized electrical contractors. To
achieve that result, as applied to the instant case, it resolves
that Malloy, as business manager, is ‘‘empowered to author-
ize members to seek employment by nonsignatory contrac-
tors’’ and that unemployed members shall report to him to
‘‘assist as needed in the organizing program.’’ Union mem-
bers, once they are employed shall ‘‘promptly and diligently
carry out their organizing assignments and leave the em-
ployer or job immediately upon notification [emphasis
added].’’ Finally, it resolves that any member accepting non-
union employment except as authorized by the Salting Reso-
lution ‘‘shall be subject to charges and discipline as provided
by our Constitution and Bylaws,’’ referred to above. Corbin
was hired as an organizer by Malloy to achieve the results
targeted by this resolution.
This is more than simply retaining their union affiliation,
as they were entitled to do, or to organize after being hired.
See Fluor Daniel, Inc., 304 NLRB 970 (1991). This resolu-
tion gives the Union control over the employment status of
WACO employees. In the instant case, under the terms of the
Salting Resolution, it would have been possible for Malloy
to have terminated the employment of all the electricians, at
any other time, in his sole discretion. In these circumstances,
where the Union retains control over the very existence of
the employer-employee relationship, it would be a distortion
76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 This conclusion is consistent with Board precedent applying the
common law ‘‘right of control’’ test in defining employee status
under Sec. 2(3) of the Act in the following terms:
Under this test, an employer-employee relationship exists where
the person for whom the services are performed reserves the
right to control not only end to be achieved but also the means
to be used in reaching such end.
Deaton Truck Lines, 143 NLRB 1372, 1377 (1963), enfd. 337 F.2d
697, 698–699 (5th Cir. 1964); Roane-Anderson Co., 95 NLRB 1501,
1503 (1953); Operating Engineers Local 487 Health Fund, 308
NLRB 805 (1992).
9 Willmar Electric Service v. NLRB, 303 NLRB 245 (1991), enfd.
968 F.2d 1327 (D.C. Cir. 1992).
10 H. B. Zachry Co. v. NLRB, 886 F.2d 70 (4th Cir. 1989).
11 In these circumstances, I find it unnecessary to decide whether
or not Respondent failed to employ the job applicants based on dis-
criminatory considerations in violation of Sec. 8(a)(3) of the Act.
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
1 Obviously, and ‘‘a fortiori,’’ union member applicants who are
not paid organizers are also protected as ‘‘employees’’ under the
Act.
of the Act to concede that these individuals were ‘‘employ-
ees’’ of Respondent under Section 2(3) of the Act.8
With respect to the often discussed matter of divided loy-
alties, one may ask, where resides the loyalties of the union
member applicants who, as union members, are retained by
the Union on the out-of-work list while employed at WACO,
and the Union is retaining the authority to terminate their
employment? Clearly, under the terms of their employment,
governed by the Salting Agreement, employees’ loyalty is
not divided since the Salting Agreement is essentially a
‘‘pledge of allegiance’’ to the Union, and employment was
undertaken for the purpose of organizing the employer. It is
difficult to envision much employer loyalty in the employer-
employee relationship in circumstances where a third party,
in this case the Union, has unfettered control over the dura-
tion of the employment, presumably even to the point where
it could cause major damage to this Employer by terminating
the employment of union member electricians in the middle
of an outage.
In the paid union organizer cases, there is a split of au-
thority. In Willmar,9 the Board, with the approval of the U.S.
Court of Appeals for the District of Columbia Circuit, con-
cluded that ‘‘Individuals who are full-time paid union orga-
nizers while applying for a job are protected Section 2(3)
employees who cannot be discriminatorily denied employ-
ment simply on a basis of that union activity or status.’’ In
the Zachry case,10 the U.S. Court of Appeals for the Fifth
Circuit, in denying enforcement of a Board Order, took a dif-
ferent view, deciding that a paid union organizer was not a
bona fide job applicant and that the employer had a ‘‘right
to reject a job applicant simultaneously paid and supervised
by another employer.’’ But, in the instant case, the issue is
somewhat different since the electrician job applicants in
issue were not being paid by both the Union and the Em-
ployer. There is no evidence to show that they would have
been compensated by the Union. Nonetheless, the evidence,
principally the Job Salting Resolution, does show that the
real purpose for seeking employment was not to provide craft
labor to the Employer but, rather, for the more limited pur-
pose of organizing that Employer, evidenced by the fact that
Malloy would decide how long those electricians worked.
Clearly, under the Job Salting Resolution, that employment
depended on organizational considerations, not the labor
needs of the Employer.
In short, I conclude that where a union member job appli-
cant’s employment status may be terminated ‘‘immediately,’’
by the union, based on organizational considerations, that job
applicant is not a bona fide employee under Section 2(3) of
the Act, and this is true whether the applicant is a paid union
organizer or simply a union member.
CONCLUSIONS OF LAW
Having concluded that the job applicants herein lack em-
ployee status, it follows that the Respondent did not violate
the Act in failing to hire them, and that Respondent has not
engaged in any conduct violative of the Act.11
Respondent has not engaged in any conduct violative of
the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The complaint is dismissed in its entirety.
James P. Lewis, Esq., for the General Counsel.
Paul M. Thompson, Esq. and Marguerite R. Ruby, Esq., of
Richmond, Virginia, for the Respondent.
Brian Malloy, of Cumberland, Maryland, for the Charging
Party.
SUPPLEMENTAL DECISION
PETER E. DONNELLY, Administrative Law Judge. By Order
dated April 13, 1993, the above-captioned case was re-
manded by the Board to me ‘‘for further consideration in
light of Sunland Construction Co., 309 NLRB 1224 (1992),
and Town & Country Electric, 309 NLRB 1250 (1992).’’
The Board, in those cases concluded that paid union orga-
nizers and union member job applicants were employees
within the meaning of the Act and that the Employer violated
Section 8(a)(3) of the Act by refusing to consider them for
employment because of their union affiliation. The Board
held, inter alia, that the legislative history of the Act reveals
that the term ‘‘employee’’ should be interpreted ‘‘expan-
sively’’ and ‘‘inclusively,’’ so as to include paid union orga-
nizer job applicants. The fact that they are also simulta-
neously employed and paid by the union for the purpose of
organizing their employer was no justification for refusing to
hire them.1
As the Board notes, these decisions were consistent with
Board precedent affirmed by the Second, Third, and District
of Columbia Circuit Courts of Appeals. See NLRB v. Henlo-
pen Mfg. Co., 599 F.2d 26, 30 (2d Cir. 1979) (dictum);
Escada (USA), Inc. v. NLRB, 140 LRRM 2872 (3d Cir.
1992), enfg. mem. 304 NLRB 845 (1991); Willmar Electric
Service v. NLRB, 968 F.2d 1327 (D.C. Cir. 1992). The
Board’s position was rejected in two other circuit courts of
appeal. See NLRB v. Elias Bros. Big Day, 327 F.2d 421, 427
77WACO, INC.
2 As noted in the original decision, Corbin was not alleged in the
complaint as a discriminatee.
3 Local 292, the local union in Town & Country, was, like Local
307, affiliated with the IBEW.
(6th Cir. 1964); H. B. Zachry Co. v. NLRB, 886 F.2d 70 (4th
Cir. 1989).
In the instant case, eight union electricians and one paid
union organizer (Corbin)2 made application to WACO for
jobs as electricians. The eight job applicants were all solic-
ited by the Union and dispatched to Waco to apply for work.
All were subject to the restrictions set out in the ‘‘Job Salt-
ing Resolution.’’ In the original decision and for the reasons
set out therein, I concluded that none of the applicants were
bona fide employees within the meaning of Section 2(3) of
the Act because of the fact that under the terms of the Job
Salting Resolution, the Union retained the authority to deter-
mine the length of their employment, thus negating an essen-
tial concept of the employment relationship.
In Town & Country, Respondent introduced into evidence
(R. Exh. 4(c)) a ‘‘Job Salting Resolution’’ identical to the
Job Salting Resolution found in the instant case.3 It reads:
JOB SALTING
ORGANIZING RESOLUTION
WHEREAS: Local Union #292 is committed to organiz-
ing all unorganized craftsmen working in our jurisdic-
tion, and;
WHEREAS: A continual organizing program is the life-
blood of all building and construction trades unions
because it is the only proven method of maintaining
control of the construction labor pool, and;
WHEREAS: The first obligation of the members of the
Local Union is to organize the unorganized in order
to maintain and secure our wages, benefits and other
conditions of employment, and;
WHEREAS: The success of any organizing drive de-
pends upon the support of each and every union
craftsmen, both on and off the job, therefor, be it
RESOLVED: That the Business Manager be empowered
to authorize members to seek employment by non-
signatory contractors for the purpose of organizing
the unorganized, and be it further
RESOLVED: That unemployed members shall report to
the Business Manager for the purpose of organizing
the unorganized program, and be it further
RESOLVED: That the Business Manager shall maintain
records of all members authorized to seek employ-
ment by nonsignatory employers including the date(s)
of authorization, date(s) of employment, and all other
pertinent information, and be it further
RESOLVED: That such members, when employed by
nonsignatory employers shall maintain their posi-
tion(s) on the out-of-work list, and be it further
RESOLVED: That such members, when employed by
nonsignatory employers shall promptly and diligently
carry out their organizing assignments, and leave the
employer or job immediately upon notification, and
be it further
RESOLVED: That any member accepting employment
by a nonsignatory employer, except as authorized by
this RESOLUTION, shall be subject to charges and
discipline as provided by our Constitution and By-
laws.
In Town & Country, the Board, in reviewing the Respond-
ent’s exceptions to the administrative law judge’s decision,
alludes to the Job Salting Agreement, stating:
C. Exceptions
Based on the court’s decision in Zachry, supra, the
Respondent argues in its exceptions that the
discriminatees were not bona fide applicants under the
statute. The Respondent notes that Priem and
Shafranski were full-time salaried business representa-
tives and that the Union paid Hansen full journeyman’s
scale, in addition to the pay he received from
Ameristaff, for the 31 hours that he worked at the Re-
spondent’s jobsite. The Respondent claims that the
Union’s payments to Hansen put him in the same cat-
egory as full-time salaried business agents whom the
court excluded from the definition of employee under
Section 2(3). Regarding the rest of the alleged
discriminatees, the Respondent argues that no violation
occurred when it rejected their applications because, if
they had been hired, the Union’s ‘‘salting resolution’’
would have paid them the difference between the Re-
spondent’s wages and union scale and thus disqualified
them under Zachry.
The Respondent also contends that the alleged
discriminatees did not qualify as statutory employees
because their first obligation under the salting resolu-
tion was to fulfill the Union’s organizing purpose. The
Respondent asserts that it was the Union which was the
discriminatees’ employer in the circumstances here. Ac-
cording to the Respondent, these Union members would
work only for it under the Union’s directions and, in
the process, they would interfere with the self-deter-
mination rights of other employees. Further, because
the salting resolution required members to leave the
nonunion jobsite once organizing had ceased, the Re-
spondent argues that none of the alleged discriminatees
met the statutory definition of employee because they
were not seeking permanent employment. Thus, for the
above reasons, the Respondent urges the Board to find
that the applicants for employment whom it rejected
and Hansen were not employees under Section 2(3) of
the Act.
Thereafter, the Board neither alluded to nor precisely ad-
dressed the impact of the Salting Resolution on its conclu-
sions. However, with respect to the issue of permanence of
employment, the Board, in commenting on Oak Apparel, 218
NLRB 701 (1975), states:
The Board in Oak Apparel rejected the argument that
the discharged union organizers were not ‘‘employees’’
because they did not intend to remain in the respond-
ent’s employ beyond the period required for organiza-
tion. The Board found it immaterial for purposes of
Section 8(a)(3) whether the discharged organizers
sought permanent employment with the Respondent.
Permanency of employment, the Board held, was rel-
78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
evant for election purposes, but was unrelated to the
issue of ‘‘employee’’ status. Id. at 701, citing Phelps
Dodge Corp. v. NLRB, supra, 313 U.S. at 192. Dee
Knitting Mills, supra. To hold otherwise, concluded the
Board, would result in employers discriminating ‘‘with
impunity against temporary or casual employees who
are not includable in any bargaining unit.’’ Id. Since
Oak Apparel, the Board consistently has held that paid
union organizers are statutory employees entitled to the
Act’s protection. [Footnotes omitted.]
Later, in reexamining Oak Apparel and its progeny, the
Board, in concluding that paid union organizers are employ-
ees, states:
Upon reexamination of our analysis of the scope of
Section 2(3) in Oak Apparel and its progeny, we con-
clude that the definition of ‘‘employee’’ encompasses
paid union organizers.
As more fully explained above, we rely on: . . . (3)
the reasoning found in our own precedents, most re-
cently approved by the District of Columbia Circuit in
Willmar Electric Service, supra, that among other
things, rejects the position that because the employment
of paid union organizers if of limited duration they can-
not be ‘‘employees.’’
The Board, however, did not address the precise issue, which
is the basis of the original decision herein, i.e., whether or
not job applicants subject to immediate termination of their
employment by the local Union are nonetheless statutory em-
ployees. Nonetheless, since the Job Salting Resolution in the
instant case is identical to the Job Salting Resolution in
Town & Country, and since the Board had that Job Salting
Resolution before it in Town & Country, I must assume that
the full impact of it was considered by the Board in reaching
its decision in Town & Country, and that the Board has de-
cided that this employment restriction did not affect its con-
clusions.
Accordingly, since I am obliged to follow Board prece-
dent, I now conclude that the matter has been resolved, and
that all of the job applicants were bona fide employees under
Section 2(3) of the Act.
Having thus concluded that the union member job appli-
cants are employees, it is necessary next to ascertain whether
or not the Respondent has discriminated against these appli-
cants in refusing to employ them.
The General Counsel takes the position that all eight of the
union electrician job applicants were rejected because of
their union membership. Respondent contends that union af-
filiation was not a factor in failing to hire them and that
valid business considerations were employed in making the
selections for employment.
Clearly, Respondent was aware of the union membership
of the eight applicants. However, in order for the General
Counsel to prevail, it is necessary to establish that the appli-
cants were rejected because of their union membership. In
my opinion, the General Counsel has failed to sustain its bur-
den in that regard.
To begin with, as set out the original decision, Respondent
needed to employ 35 electricians for the upcoming ‘‘out-
age.’’ At the time that the 8 union members made applica-
tion on August 7, some 15 electrician jobs remained to be
filled.
Kirk Hawk, who was the Respondent’s representative in
the hiring process, testified that in hiring electricians, he was
looking for those with prior experience during outages or a
background including coal mine or powerhouse experience,
since these were the type of skills best suited to the work
being done during power plant outages, as contrasted with
the residential or commercial electrical work. Except for
James Sweitzer, none of the union electrician applicants ap-
pear to have had any background in that type of work.
With respect to the experience factor, the newspaper ads
called for applicants with ‘‘6 Years Experience in Heavy
Construction or Maintenance.’’ Malloy’s letters of rec-
ommendation represented that each applicant had ‘‘more than
six years experience in the trade’’ and was a certified jour-
neyman electrician. However, it appears that none of the
union applicants listed 6 years of electrical experience of any
type on the applications, with the exception of Earl Kline,
showing slightly more than 6 years. Even though the record
discloses that some of the union applicants had substantially
more than 6 years of experience, their applications did not
disclose that experience, and so in reviewing applications,
Hawk would not have become aware of it.
Further, it appears that Mark Bailey and Shawn Leister
were apprentices, not journeymen, and clearly lacked the re-
quirements set out in the newspaper ads. Malloy, at the hear-
ing, conceded that he did not check the applicants’ work
records to determine their qualifications and simply gave the
same letter to each applicant without verifying the represen-
tations made in the letter. Hawk also testified that while
some applicants without prior outage experience were hired,
the basis for hire was legitimate. Hawk’s unrebutted testi-
mony was that James Goldizen, an electrical supervisor for
the outage, recommended his brother, John Goldizen, among
others, for employment. They were hired based on his rec-
ommendations. William La Rue, a VEPCO supervisor, also
recommended several applicants who were hired.
Hawk and Bob Mortvedt, Respondent’s project manager,
both testified that all of the selections of craft employees for
the outage were made without regard to union or nonunion
considerations. In support of this position, Hawk testified,
and the record supports the conclusion that approximately 9
of the 35 electricians hired for the outage had some sort of
union affiliation, notably Paul Rodehaver, who was a mem-
ber of Local 307, and that Hawk was aware of that before
they were hired.
The General Counsel, while arguing that the failure to se-
lect those eight individual electricians named in the com-
plaint was based on discriminatory considerations, has failed
to adequately support that contention on the record. While a
nonunion contractor’s failure to hire union applicants is al-
ways suspect, the General Counsel is charged with proving
the unfair labor practices alleged on the record, and I am not
satisfied, based on this record, that the Respondent’s refusal
to hire these union electricians was discriminatory.
CONCLUSIONS OF LAW
1. The union electrician applicants named in the complaint
are employees within the meaning of the Act.
79WACO, INC.
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
2. The record herein is insufficient to support the conclu-
sion that these applicants were discharged because of their
union activity.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The complaint is dismissed in its entirety.