Wayne Erecting, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 2001

333 N.L.R.B. 1212 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1212
Wayne Erecting, Inc. and Bridge, Structural, Orna-
mental & Reinforcing Iron Workers Local Un-
ion No. 8, AFL–CIO. Case 30–CA–13915
April 30, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On September 23, 1998, Administrative Law Judge
Robert A. Giannasi issued the attached decision. The
Respondent filed exceptions, a supporting brief, and an
answering brief to the Charging Party’s cross-exceptions,
and the Charging Party filed cross-exceptions, a support-
ing brief, and a brief in opposition to the Respondent’s
exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.
The judge found that the Respondent did not violate
Section 8(a)(3) of the Act by refusing to hire 20 appli-
cants for employment. He also found, however, that the
Respondent violated Section 8(a)(3) by refusing to con-
sider Brent Emons for employment.2 We agree with
these findings. The judge further found that the record
did not show that the Respondent’s refusal to hire Emons
for employment violated Section 8(a)(3). We do not
adopt this latter finding but instead remand the issue of
the refusal to hire Emons for employment for further
consideration in light of the Board’s decision in FES, 331
NLRB 9 (2000), which issued after the judge’s decision
in this case.
In FES, the Board set forth the framework for analysis
of both refusal-to-hire and refusal-to-consider allega-
tions. In order to establish a discriminatory refusal-to-
consider violation under the FES framework, the General
Counsel must show:

(1) that the respondent excluded applicants from a hir-
ing process; and (2) that antiunion animus contributed
to the decision not to consider the applicant for em-
ployment.3

1 The Respondent and the Charging Party have excepted to some of
the judge’s credibility 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 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
2 We note that the complaint did not allege a refusal to consider
Emons. However, the Respondent does not make a procedural objec-
tion on this ground, and it appears that the matter was fully litigated.

In order to establish a discriminatory refusal-to-hire viola-
tion, the General Counsel must establish the following ele-
ments:

(1) that the respondent was hiring, or had concrete
plans to hire, at the time of the alleged unlawful con-
duct; (2) that the applicants had experience or training
relevant to the announced or generally known require-
ments of the positions for hire, or in the alternative, that
the employer has not adhered uniformly to such re-
quirements, or that the requirements were themselves
pretextual or were applied as a pretext for discrimina-
tion; and (3) that antiunion animus contributed to the
decision not to hire the applicants.4

Once the General Counsel has met his initial burden for the
refusal to consider and refusal to hire, respectively, the bur-
den shifts to the respondent to show that it would not have
considered or hired, respectively, the applicants even in the
absence of their union activity or affiliation.5
Applying this analysis here, it is clear that the judge’s
finding concerning the 20 applicants would not change
because the credited evidence establishes that the Re-
spondent did not receive their applications. Accordingly,
we shall adopt the judge’s dismissal of this portion of the
complaint.
We also find that the judge’s analysis of the allegation
that the Respondent unlawfully refused to consider
Emons for employment was consistent with FES. Thus,
we find that the General Counsel’s burden was satisfied
by the credited evidence establishing that the Respondent
received Emons’ application, and by Don Hart’s com-
ment that the Respondent excluded Emons from the hir-
ing process because of his union activity and affiliation.6
In addition, as the Respondent’s defense consists solely
of its contention—rejected on credibility grounds—that
Emons’ application was never received, the Respondent
has not met its FES burden of showing that Emons would
not have been considered for employment even in the
absence of his union affiliation and activity.
3 FES, supra at 15.
4 FES, supra at 12.
5 Id. at 15 and 12, respectively.
6 Hart told Emons that the Respondent would not hire Emons be-
cause Emons would “tell us all to join the union.” The judge also
found that Hart told Emons that the Respondent’s president, Wayne
Slawson, was “pissed off at you guys” because the Union would not let
Slawson in before he started the Company.
333 NLRB No. 149
WAYNE ERECTING, INC. 1213
Although we adopt the judge’s finding that the Re-
spondent unlawfully refused to consider Emons for em-
ployment, we do not adopt his finding that the Respon-
dent did not violate the Act by refusing to hire Emons.
The judge found that the evidence did not support find-
ing such a violation, but did not make the factual find-
ings required under the FES framework. Although pre-
FES cases allowed for some of these findings to be made
in the compliance proceedings after a refusal-to-consider
violation is found, under FES, “matters which can be
litigated at the unfair labor practice stage, must be liti-
gated at that stage and cannot be deferred to compli-
ance.” FES, supra at 18.
Accordingly, we shall sever the allegation concerning
the refusal-to-hire Emons and remand it to the judge for
further consideration under the FES framework. This
remand shall include, if necessary, reopening the record
to obtain evidence required to decide the case under FES.
In addition, although we adopt the judge’s finding that
the Respondent unlawfully refused to consider Emons,
we shall sever and remand that violation as well because
the remedy we would order for that violation would be
subsumed within the remedy for a refusal-to-hire viola-
tion.7 We shall issue a final order, however, with respect
to the dismissal of the 20 refusal-to-hire allegations dis-
cussed above.
ORDER
IT IS ORDERED that the issues of whether the Re-
spondent violated Section 8(a)(3) and (1) of the Act by
refusing to consider and/or hire Brent Emons are severed
from the rest of this proceeding and remanded to the ad-
ministrative law judge for appropriate action as set forth
above. The judge shall prepare a supplemental decision
setting forth credibility resolutions, findings of fact, con-
clusions of law, and a recommended Order, as appropri-
ate on remand. Copies of the supplemental decision shall
be served on all parties, after which the provisions of
Section 102.46 of the Board’s Rules and Regulations
shall be applicable.
IT IS FURTHER ORDERED that with respect to all
other issues the recommended Order of the administra-
tive law judge is adopted and the complaint is dismissed.

Benjamin Mandelman, Esq. and J. Edward Castillo, Esq., for
the General Counsel.
Fred G. Groiss, Esq., of Milwaukee, Wisconsin, for the Re-
spondent.
Michael J. Stapp, Esq., of Kansas City, Kansas, for the Charg-
ing Party.

7 We are not remanding the refusal-to-consider violation itself for
further consideration by the judge.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge. This
case was tried in Milwaukee, Wisconsin, on June 8, 1998. The
complaint alleges that Respondent violated Section 8(a)(3) and
(1) of the Act by refusing to hire a group of named employees
because of their membership in and activities on behalf of the
Charging Party Union (the Union). Respondent filed an answer
denying the essential allegations in the complaint. After the
close of the hearing, the parties filed briefs, which I have read
and considered.1
Based on the entire record, including the testimony of the
witnesses and my observation of their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with an office and place of busi-
ness at Big Bend, Wisconsin, is engaged in business as a ma-
chinery, equipment, and erection contractor in the construction
industry, performing commercial and industrial construction. I
find, in accordance with a telephone conference call concession
by Respondent’s counsel, that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.2
The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent is a nonunion company, which employs iron-
workers and laborers in the erection and repair of steel-frame
buildings. Its president, Wayne Slawson, started the Company
about 10 years ago, after being rejected by the Union for mem-
bership or admission into its apprenticeship program. Slawson
testified that he blamed Union Business Manager Brent Emons
for his rejection and for treating him unfairly at that time. The
Union has tried twice to organize Respondent, but has been
unsuccessful, apparently losing representation elections in 1991
and again in 1992.
On May 21, 1997, Emons went to Respondent’s jobsite at a
Kohl’s Food Store on Oakland Avenue in Milwaukee in an
1 This is basically a salting case. Salting has been defined as “the act
of a trade union in sending a union member or members to an unorgan-
ized jobsite to obtain employment and then organize the employees.”
Tualatin Electric, 312 NLRB 129, 130 fn. 3 (1993); and Tualatin Elec-
tric v. NLRB, 84 F.3d. 1202, 1203 fn. 1 (1996), enforcing Board deci-
sion. The quoted footnotes speculate that the term “salting” may be
derived from the expressions “salting a mine” or “salting the books,”
which are described as implying a fraudulent intent. There is, however,
a more neutral meaning for the term: “To sprinkle” or “to intersperse
with.” See Webster’s Third New International Dictionary (unabridged,
1961). The term “seeding” was also used in this case to mean the same
thing as “salting.”
2 I also note that, in an earlier representation case involving Respon-
dent (Case 30–RC–5414), the Board found that Respondent was an
employer within the meaning of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1214
attempt to seek employment. Emons had left his position as
union business manager in 1993 and worked for 3 years “in the
field” as an ironworker. On this occasion, Emons introduced
himself to Respondent’s foreman, Don Hart, and asked if Re-
spondent was hiring. Hart responded that Respondent would be
hiring in the future. Emons, who told Hart that he was a certi-
fied ironworker with 20 years of experience, asked for an
application. Hart gave him one and agreed that Emons could
mail the completed application to Respondent’s mailing
address, which Hart confirmed by giving him a business card
listing Respondent’s name and post office box in Big Bend,
Wisconsin.3
Emons filled out the application and gave it to Union Organ-
izer Jim Jorgensen, who testified that he obtained blank copies
of the same application form from an office supply store. Ac-
cording to Jorgensen, he had a number of out-of-work union
members fill out additional application forms. Jorgensen testi-
fied that he then had the 21 completed applications mailed, by
regular mail, to Respondent’s post office box. Respondent vig-
orously denies receiving any such applications at its post office
box, primarily through the testimony of Wayne Slawson and
his wife, Donna, who serves as vice president and secretary of
Respondent.
The central issue in this case is whether the above applica-
tions were indeed mailed by the Union to the Respondent. That
issue essentially turns on the credibility of the relevant wit-
nesses. I shall discuss the witnesses’ credibility in greater detail
later in this decision.
At the end of June, Emons and Jorgensen, who were picket-
ing Respondent over alleged substandard wages on a jobsite in
Kenosha County, spoke briefly to Hart. Their conversation was
not tape recorded and none of the witnesses was clear on what
exactly transpired on that occasion. I am, therefore, unable to
make any findings of fact as to that conversation. Indeed, be-
cause of the ambiguity, imprecision, and self-serving nature of
the testimony of Emons, Jorgensen, and Hart, I found it diffi-
cult to credit any of them fully as to their conversations, in the
absence of corroboration by the transcripts of taped conversa-
tions. Of the three, Emons seemed the most reliable witness,
but, in all the circumstances, I cannot credit even his testimony
as to the unrecorded conversation between the three men at the
end of June.
In a brief taped conversation between Jorgensen and Hart on
July 18, 1997, Jorgensen asked about Emon’s application.
Jorgensen received a noncommittal response and then asked
whether Hart had an application for him. Hart responded that he
was “all out of them.”

3 Emons’ account of this conversation was confirmed by the tran-
script of a tape recording of the conversation secured by Emons and
introduced into evidence without objection from Respondent. Hart, who
was unaware that his conversation with Emons had been taped, gave a
different account, which I do not credit. Indeed, because Hart’s ac-
counts of several recorded conversations were decidedly different from
the transcripts of those conversations, because Hart often could not
recall conversations and events, and because Emons seemed a more
reliable and candid witness, I credit Emons rather than Hart where their
testimony conflicts.

On July 21, 1997, in another taped conversation, Emons
spoke to Hart about his job application. Emons said that he was
“[w]aiting for you guys to call me for a job.” Hart said that
Respondent was only looking for “pop riveters.” Emons re-
sponded that he could perform that work and had his “own pop
gun.” Hart initially said Respondent was not “hiring anybody
yet,” but then conceded that Respondent had hired two indi-
viduals who had previously worked for Mitsche, another non-
union employer. Emons then asked to be considered for future
hiring. Hart responded, “What is this . . . . What is this called,
you know, seeding, is that what it is, or what?” Hart then stated
that he thought “union guys couldn’t work for us,” an apparent
misunderstanding of union rules, which he believed precluded a
union member from working for a nonunion employer. Emons
insisted that there was no such prohibition, stating, “No, I can
work for you.” Hart replied that he did not “do the hiring and
firing” and that Wayne Slawson did. Emons then said that he
assumed Respondent had received his application. Hart made
no verbal response, but Emons credibly testified that Hart nod-
ded his assent.4
Emons then said that he did not know why Respondent
would not hire him. Hart responded that it was “because you’ll
tell us all to join the union . . . you know we’re kind of pissed
off at you guys . . . because you wouldn’t let [Wayne Slawson
into the Union] before he started his company.” This was a
reference to an incident discussed above where Slawson was
denied entry into the Union or its apprenticeship program, for
which Slawson blamed Emons. The conversation ended with
Emons telling Hart that Hart should tell Slawson that he was
still interested in a job with Respondent.
Emons has never been contacted by anyone from Respon-
dent about his application. Nor did he ever go to or call Re-
spondent’s office to ask about the status of his application.
Hart, who conceded he had no question that Emons was compe-
tent and qualified to perform Respondent’s ironworker’s work,
reported to Wayne Slawson that Hart had given Emons a blank
job application. Hart, who consulted with Slawson on a daily
basis, also undoubtedly reported some of his followup conver-
sations about the Emons application to Slawson. He himself
testified that he specifically reported that Jorgensen had asked
about Emons’ application.
On about July 14, 1997, on a Kenosha jobsite, Hart had a
conversation with Ron Slawson, Wayne’s father and a supervi-
sor for Respondent, who often visited jobsites as a “trouble-
shooter.” Slawson told Hart, “Just make sure today that you
don’t hand out any applications to the wrong people.” At that,
4 I make this finding not only because I found Emons’ testimony
more reliable than that of Hart, but also because the transcript of the
tape recording is consistent with some kind of nonverbal response (see
GC Exh. 3). Nor was Hart, who testified before Emons, recalled to
refute Emons on this point. Moreover, in the taped conversation, Hart
did not deny that Respondent had received the application in circum-
stances where such denial would be expected if true. As shown below,
Hart had spoken to, and was in contact with, Slawson about Emons’
application. Indeed, he answered Emons by referring to Slawson’s
problems with Emons when Slawson tried to get into the Union, and he
candidly mentioned union reasons for the failure to consider Emons for
hire.
WAYNE ERECTING, INC. 1215
both Hart and Slawson laughed or chuckled and Hart promised
not to hand out any more applications. As Slawson left, he said,
“[w]atch out for them seeds” or something to that effect.5
On about July 15, an unidentified job applicant approached
Hart and a group of other employees at the jobsite, while they
were eating lunch. Hart said that Respondent was looking for
employees and asked where he was from and what kind of
work experience he had. Hart did not give the applicant, who
was from Florida, an application because he said he got into
trouble for handing out an application to the wrong person.
Instead, Hart gave the applicant Respondent’s office number
and told him to call Wayne Slawson. Hart later told a group of
employees something to the effect that he did not think this
applicant was a union seed or a union member.6
Hart later had a telephone conversation with Wayne Slawson
that was overheard by former employee Richard Novak. Novak
testified that Hart told Slawson something about checking the
applicant, whom Novak identified as the person from Florida
referred to above, to see if “he was a union seed.” Novak, who
was hired by Respondent in early 1997 and worked for it from
June 9 to July 18, 1997, also testified about two other similar
conversations. On June 10, after work, Novak was part of a
group of employees to whom Don Hart mentioned that he “sus-
pected a union member of putting in an application and he
could possibly be a union organizer or a union seed.” On that
occasion, Hart also told Novak that he did not have to worry
about Novak “being a union member.” Novak also testified
that, on July 15, 1997, he overheard a telephone conversation
between Hart and Wayne Slawson in which Hart told Slawson
something about checking the application to see if “he was a
union seed.”7
It is not disputed that Respondent hired some ironworkers in
June 1997 and thereafter, but did not hire or apparently even
consider for hire the union members whose applications were
allegedly mailed to Respondent. It is also not disputed that
Emons and the other individuals who signed applications were
qualified ironworkers.
B. Discussion and Analysis
As mentioned above, the pivotal issue in this case is whether
the Union mailed 21 job applications to Respondent. The Gen-
eral Counsel has the burden of proof on that issue. In attempt-

5 Ron Slawson was a former union member and had known Brent
Emons for many years.
6 The above was based on the credible testimony of Steve Murphy,
who was formerly employed by Respondent on two different occasions.
His testimony, which was based on overhearing the July 14 conversa-
tion and being a part of the group in the second conversation recited
above, survived and indeed was enhanced on cross-examination. Mur-
phy’s testimony was corroborated in part by contemporaneous notes,
and was not contradicted by either Hart or Ron Slawson. Respondent’s
failure to elicit testimony on this point gives rise to an adverse infer-
ence that Hart and Ron Slawson would have given testimony damaging
to Respondent. See International Automated Machines, 285 NLRB
1122, 1123 (1987).
7 Novak’s testimony in this respect is also not contradicted. More-
over, it is compatible with other evidence in this case and is consistent
with his contemporary notes. I, therefore, credit Novak’s account, as set
forth above.
ing to prove that the applications were mailed, the General
Counsel relies primarily on the testimony of Union Organizer
Jim Jorgensen. I am unable to credit that testimony. Accord-
ingly, except for one application—that of Emons—I find that
the General Counsel has failed to show, by a preponderance of
the credible evidence, that the applications were mailed.8
Emons testified that, after he received a blank application
from Hart on May 21, he filled it out and submitted it to
Jorgensen “one or two days” later. Jorgensen testified that
when he received the application from Emons, he went to an
office supply store and bought blank forms of the same applica-
tion and had them filled out by out-of-work union members.
Except for Emons, none of the other applicants testified in this
proceeding.
Jorgensen testified that he “mailed” the 21 completed appli-
cations, including that of Emons, to Respondent. Jorgensen
concededly did not mail the applications by certified mail or
return receipt requested. The only documentary evidence in
support of such mailing was as follows: a copy of each applica-
tion; a cover sheet for each, setting forth the name, address, and
phone number of the applicant and the date the application was
allegedly mailed; a copy of a covering letter to Respondent,
dated May 29, 1997, and allegedly mailed with one or two ap-
plications, describing the applicants as qualified; and a blank
envelope with the Union’s preprinted return address, purport-
edly to show the type of envelopes in which the applications
were placed. Jorgensen testified, in accordance with the cover
sheets he allegedly prepared, that he sent the 21 applications,
with no more than 2 applications per envelope, on May 21, 22,
23, 26, 27, and 29 and June 2, 3, and 6, 1997. According to
Jorgensen, he addressed each envelope in his own handwriting,
“put two 32 cent stamps” on each and “mailed it.” (Tr. 115.)
The documentary evidence in support of the mailing, how-
ever, is questionable. For example, two of the cover sheets
indicate that the applications were mailed before they were
filled out and signed, one 10 days before (GC Exhs. 6(b), (f)).
One of the applications was unsigned and undated, and several
others from applicants who lived in the Green Bay area were
allegedly mailed on the day they were signed. Jorgensen also
testified that he typed the May 29 letter himself. But, despite
several typos, the letter contains the initials “JJ:js,” indicating
the author, Jim Jorgensen, and a different typist. I find, contrary
to Jorgensen’s testimony, that he did not type the letter himself.
I find this significant because Jorgensen purportedly typed out
the cover sheets for the applications on his own computer and
he tried to give the impression that he prepared all the enve-
lopes himself. I doubt he did so personally, in part because his
testimony about the letter conflicts with the letter itself, but also
because of my assessment of his overall testimony.
Jorgensen’s testimony about mailing the applications also
seemed evasive. Initially, he was perfectly willing to give the
8 The Charging Party argues in its brief that when a letter is mailed,
even by regular mail, the Board presumes that it is received. Without
commenting on the validity of this proposition, I believe the argument
misses the point. Before the alleged presumption attaches, someone has
to prove that the letter was mailed. It is this initial proof that is at issue
here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1216
impression that he had placed the envelopes containing the
applications in a mail box, physically mailed them or handed
them to a postal service employee. But it became clear, after
further questioning, that his claim was that he simply placed
them on a secretary’s desk, where outgoing mail was ordinarily
picked up by a postal service employee. Jorgensen did not drop
anything in a mail box or hand anything to a postal employee.
He was not even present when these items of mail were alleg-
edly picked up; nor did any other employee or secretary testify
he or she was present when any particular piece of mail ad-
dressed to Respondent, whether or not it contained applications,
was picked up by the postal service.
Another part of Jorgensen’s testimony does not ring true. For
example, he testified that he had a conversation with Hart on
June 12 in Racine, in which Hart volunteered, “What’s with the
applications?” and Jorgensen responded, “We want to go to
work.” I find the likelihood of that exchange improbable, in
view of Hart’s guarded reaction to Jorgensen’s inquiry in the
taped conversation between them on July 18, which dealt with
Emons’ application. On that occasion, Jorgensen initiated the
conversation about applications and only asked about Emons’
application, telling Hart that Emons had sent him. Indeed, when
Hart testified about a conversation between him and Jorgensen,
he testified that Jorgensen asked about applications and he re-
plied, “What applications?” I find Hart’s testimony in this re-
spect more plausible than Jorgensen’s. In none of the tape re-
corded conversations did Hart ever initiate the subject of appli-
cations. Rather, in the tape recordings, Jorgensen and Emons
raised the topic, and they asked about only one application—
that of Emons. Those taped conversations are the most reliable
and objective indicators of the focus of the parties’discussions.
One would expect the union officials, who knew the conversa-
tions were being taped, to discuss the other applications—and
in some detail—if they wanted to cinch a case against Respon-
dent with respect to those applications. Their failure to do so,
and their exclusive focus on Emons’ application in the taped
conversations, casts further doubt on the veracity of the Un-
ion’s claims that it mailed the other applications to Respon-
dent.9
There is, to be sure, other evidence that arguably supports
the General Counsel’s position. For example, credible evidence
supports the inference that Hart confirmed that Emons’ applica-
tion was received. As I have indicated, however, that evidence
does not support the inference that other applications were
mailed and received. Nor is such a broader inference required
by consideration of the evidence concerning overheard conver-
sations between Hart and the Slawsons, and Hart’s statements
about giving applications to suspected union salts or seeds.
That evidence, based on the uncontradicted testimony of em-
ployees Murphy and Novak, merely shows Respondent’s ani-
mus and concern over applications from union people. But that

9 I do not believe that Jorgensen’s purported contemporary handwrit-
ten notes of his June 12 conversation with Hart warrant crediting his
testimony that Hart initiated the discussion about applications, given
the doubts I have about Jorgensen’s general reliability as a witness. The
notes are sketchy, hard to read and, like his testimony, devoid of the
context needed to regard them as useful in making a credibility deter-
mination.
could have been and was, in my view, based on its reaction to
the application of Emons, a union leader who was known to
and abhorred by Wayne Slawson. Nothing in that evidence
establishes that a group of applications, rather than a single
application, was mailed and received. In all the circumstances, I
am unable to conclude from the evidence that tends to support
the receipt of Emons’ application the further finding that 21
applications were received. In short, the General Counsel has
not shown by a preponderance of the credible evidence that 21
applications were mailed and received.
As indicated above, however, I believe the General Counsel
has proved, by a preponderance of the credible evidence, that
the Emons application was mailed. Emons had asked for and
received a blank application. He filled it out, and Jorgensen and
Emons asked Hart about the completed application in two tape
recorded conversations. I find it likely in these circumstances
that the Emons application was mailed. That much of Jorgen-
sen’s testimony I can credit. Some of the evidence I have dis-
cussed above, including Hart’s remarks to Emons and his over-
heard conversations about union applications, also supports the
inference, which I make, not only that the Emons application
was mailed but that it was received. After all, Hart spoke to
Slawson about the Emons application; and he did not say, in his
July 21 conversation with Emons, that it was not received, a
fact I think he would have mentioned had that been the case.
Indeed, Hart nodded confirmation that the application had been
received and gave a discriminatory reason for why Emons was
not considered for hire. Moreover, I do not credit Wayne Slaw-
son’s denial that he received Emons’ application. In addition to
the other evidence I have mentioned above, I found his testi-
mony poisoned by his animus against Emons. In this respect, I
do not pass on the testimony of Wayne’s wife, Donna, whom I
had no reason to discredit. She worked only part time and only
picked up the mail from Respondent’s postal box on some oc-
casions. Her testimony alone, however, does not rescue Re-
spondent from an adverse finding on this issue.
Having found that Emons’ application was received by Re-
spondent, I have no difficulty concluding that Respondent
failed to consider him for employment for discriminatory rea-
sons. Respondent’s only defense at the hearing was its claim
that it had not received any of the applications. Moreover, it is
uncontested that Emons was qualified to work in jobs for which
other people were hired during the relevant time period. Re-
spondent’s union animus is established by the evidence that
Respondent was concerned about union salts and Hart’s own
remarks to Emons. Indeed, the tape recorded conversation of
July 21 shows both animus and causation. Hart’s response to
Emons as to why Respondent would or did not consider him for
hire is about as clear an admission as one is likely to see in a
litigated case: “[Y]ou’ll tell us all to join the union.” Accord-
ingly, I find that by failing to consider Emons for employment
because of his union affiliation, Respondent violated Section
8(a)(3) and (1) of the Act. See generally M. J. Mechanical Ser-
vices, 325 NLRB 1098 (1998).10
10 The complaint alleges only an unlawful refusal to hire, but it en-
compasses the lesser included offense of an unlawful refusal-to-
consider for hire, which is all that the evidence in this case supports, in
WAYNE ERECTING, INC. 1217
CONCLUSIONS OF LAW
1. By discriminatorily failing and refusing to consider appli-
cant Brent Emons for hire because of his union affiliation and
activities, Respondent has engaged in an unfair labor practice
affecting commerce within the meaning of Section 8(a)(3) and
(1) of the Act.
2. Respondent has not otherwise violated the Act as alleged
in the complaint.
REMEDY
Having found that the Respondent has engaged in an unfair
labor practice in violation of the Act, I shall recommend that it
be ordered to cease and desist therefrom and that it take certain
affirmative action to effectuate the policies of the Act. Respon-
dent will be ordered to consider Brent Emons for hire on a non-
discriminatory basis and to provide him with backpay and other
losses he may have suffered but for its unlawful conduct, in
conformity with Board law, as described in M. J. Mechanical
Services, supra, and cases there cited and discussed.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended11
ORDER
The Respondent, Wayne Erecting, Inc., Big Bend, Wiscon-
sin, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to consider for hire applicants on the
basis of their union affiliation or based on Respondent’s belief
or suspicion that they may engage in organizing activity once
they are hired.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make whole applicant Brent Emons for any losses he
may have suffered by reason of Respondent’s discriminatory
refusal to consider him for hire, as determined in the compli-
ance stage of this proceeding. Offer Emons, if he would cur-
rently be employed but for the Respondent’s unlawful refusal to
consider him for hire, employment in the position for which he
applied. If that position no longer exists, Respondent must offer
him a substantially equivalent position, without prejudice to his
seniority or any other rights or privileges to which he would
have been entitled if he had not been discriminated against by
Respondent.
(b) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to

my view. See WestPac Electric, 321 NLRB 1322 (1996). In any event, the matter was fully litigated.
11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mend 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.
analyze the amount of backpay due under the terms of this Or-
der.
(c) Within 14 days after service by the Region, post at its
Big Bend, Wisconsin office, copies of the attached notice
marked “Appendix.”12 Copies of the notice, on forms provided
by the Regional Director for Region 30, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since July 21,
1997.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

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

Section 7 of the Act gives employees these rights.

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

WE WILL NOT fail or refuse to consider for hire applicants
on the basis of their union affiliation or based on our belief or
suspicion that they may engage in organizing activity once they
are hired.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL make whole, with interest, Brent Emons if it is de-
termined in an NLRB compliance proceeding that he suffered
economic loss as a result of our failure and refusal to consider
him for hire.
12 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 BOARD 1218
WE WILL offer Brent Emons employment in the position for
which he applied, if it is determined that he would be currently
employed by us, but for our unlawful refusal to consider him
for employment. If that position no longer exists, we will offer
him employment in a substantially equivalent position without
prejudice to seniority or any other rights or privileges to which
he would have been entitled if we had not discriminated against
him.
WE WILL notify Brent Emons in writing that any future job
application will be considered in a nondiscriminatory manner.

WAYNE ERECTING, INC.