Suburban Electrical Engineers/Contractors

SUBURBAN ELECTRICAL ENGINEERS/CONTRACTORS 351 NLRB No. 1 1 Suburban Electrical Engineers/Contractors, Inc. and International Brotherhood of Electrical Work- ers, Local Union 577. Cases 30–CA–15473, 30– CA–15828, and 30–CA–16086 September 20, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER On December 2, 2002, Administrative Law Judge Bruce D. Rosenstein issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief. The Re- spondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Re- spondent filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings,1 findings,2 and conclusions only to the extent consistent with this Decision and Or- der.3 I. INTRODUCTION The Respondent engages in commercial, industrial, and residential construction as an electrical contractor from its facility in Appleton, Wisconsin. The Interna- tional Brotherhood of Electrical Workers, Local Union 577 (Union) commenced an organizing campaign among the Respondent’s employees in September 2000. This campaign included union officers and members filing applications for employment with the Respondent. In January 2001,4 the Respondent commenced work on the new Fond du Lac High School project, a $40-million plus project. In April, employee Randy Reinders revived the Union’s organizing campaign among the Respon- dent’s employees and informed the Respondent of his 1 The judge granted both the General Counsel’s and the Respon- dent’s motions to strike portions of the other party’s brief. The General Counsel excepted to the granting of the Respondent’s motion. We find no merit to this exception because the General Counsel failed to show that the judge’s ruling constitutes prejudicial error. See Maritime Un- ion District 1 (Mormac Marine Transport), 312 NLRB 944 fn. 1 (1993). 2 The judge inadvertently used the word “moll” instead of the word “mole” in his decision. We correct this inadvertent error. 3 The judge recommended that the Board impose a broad order re- quiring the Respondent to cease and desist from violating the Act “in any other manner.” The Respondent excepts to the judge’s recommen- dation. We find that a broad cease-and-desist order is not warranted in this case. See Hickmott Foods, 242 NLRB 1357 (1979). Accordingly, we shall substitute a narrow cease-and-desist order and conform the notice accordingly. 4 All dates are in 2001, unless otherwise indicated. union affiliation. Thereafter, “salts” Terry Roovers, Corey Wiegel, and Troy Toomer sought employment with the Respondent. The Respondent knew about their union affiliation. The allegations in this case arise from the Respon- dent’s conduct in response to the Union’s organizing campaign and from the Respondent’s conduct in process- ing the employment applications of the union “salts.” With respect to the organizing campaign, the General Counsel alleged that the Respondent committed a sig- nificant number of unfair labor practices in violation of Section 8(a)(1) of the Act. However, the judge dis- missed all these allegations except one. As to these dis- missed 8(a)(1) allegations, we agree with the judge, for the reasons he states.5 In dismissing certain of the 8(a)(1) allegations, the judge relied, in part, on his finding that the Respondent’s foremen—Gary Goland, Dave Chappel, and Matt Holz— were not statutory supervisors and that the Respondent was therefore not responsible for their actions. We adopt the judge’s finding. In his exceptions, the General Coun- sel argued, inter alia, that these three foremen were at least agents of the Respondent and therefore the Respon- dent was responsible for their conduct.6 As set forth be- low, we reject the General Counsel’s position regarding these foremen. As for the final alleged violation of Section 8(a)(1), the judge found that Project Manager Sam Schultz unlaw- fully threatened employees on April 5, 2002. We dis- agree with the judge and reverse his finding below. With respect to the 8(a)(3) allegations, the General Counsel alleged that the Respondent failed to consider for hire and to hire the “salts”—Terry Roovers, Corey Wiegel, and Troy Toomer—on various dates. In this regard, the judge found merit in certain of the com- plaint’s allegations but recommended dismissal of other 5 The judge found no merit in the complaint’s allegations that: Ex- ecutive Vice President David Maass created an impression of surveil- lance; President Guy Smith, by certain statements, coerced employees; Maass interrogated employee Randy Reinders about his union affilia- tion; Foreman Gary Goland solicited employees’ views about the Un- ion and promulgated and enforced an overly broad no-solicitation rule; Supervisor Dave Nass engaged in surveillance and isolated an em- ployee; Supervisor Scott Westphal created an impression of surveil- lance; Foreman Dave Chappel created an impression of surveillance; and Foreman Matt Holz interrogated employees about their union ac- tivities and the activities of other employees. We also agree with the judge, for the reasons he states, that the Re- spondent did not discriminate against Reinders in violation of Sec. 8(a)(3) and (1) of the Act when the Respondent issued Reinders a warn- ing for failure to follow proper lock and tag-out procedures. 6 The General Counsel argued at trial that the three were at least non- supervisory agents of the Respondent. The judge found that the Gen- eral Counsel did not establish that Goland was an agent of the Respon- dent. He did not address this agency issue as to Chappel and Holz. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 allegations. As set forth below, we affirm in part, and reverse in part, the judge’s 8(a)(3) findings. II. THE 8(a)(1) COMPLAINT ALLEGATIONS A. Conduct of Foremen Goland, Chappel, and Holz The General Counsel contended, among other things, that the Respondent, by certain statements and actions of its Foremen Gary Goland, Dave Chappel, and Matt Holz violated Section 8(a)(1) of the Act.7 The judge recom- mended dismissal of these allegations on the grounds that none of the foremen was a statutory supervisor. As noted, the General Counsel excepts to the judge’s failure to find that the three foremen were supervisors and/or agents of the Respondent and that the Respondent was therefore responsible for their actions. We agree, for the reasons discussed by the judge, that the foremen were not supervisors. As for the foremen’s agency status, the judge concluded that the General Counsel did not estab- lish Goland’s agency status, but the judge did not make any conclusions regarding the agency status of Chappel or Holz. We find that the General Counsel did not estab- lish the agency status as to any of the foremen. The General Counsel urges that Goland was the Re- spondent’s agent because he scheduled overtime, signed employees’ timesheets, referred to himself as the fore- man, was referred to as the foreman by management, and was viewed as the foreman by the employees. In Albertson’s, Inc., 344 NLRB 1172 (2005), the Board explained the test for determining agency status: “whether the alleged agent’s position and duties, and the context in which the conduct occurs, establish that ‘em- ployees would reasonably believe that the employee in question was reflecting company policy and speaking and acting for management.’” Albertson’s, Inc., supra, slip. op. at 1 (quoting Pan-Oston Co., 336 NLRB 305, 306 (2001)). The party asserting that an individual is an agent bears the burden of establishing the agency rela- tionship. Pan-Oston, supra at 306. Further, “the party who has the burden to prove agency must establish an agency relationship with regard to the specific conduct that is alleged to be unlawful.” Id. We conclude, as did the judge, that the General Coun- sel did not establish that Goland was the Respondent’s agent. Goland was a foreman on a jobsite where Project Manager Chamberlin was the supervisor. Although Go- land signed employee timesheets, Goland followed Chamberlin’s instructions as to the assignment of work 7 As noted in fn. 5, the General Counsel alleged that Goland solicited employee views about the Union and prohibited employees from talk- ing about the Union; that Chappel created an impression that the em- ployees’ union activities were under surveillance; and that Holz inter- rogated employees about their union activities and the union activities of other employees. and had no authority to change work assignments with- out Chamberlin’s permission. Thus, Goland’s signing of timesheets was essentially a clerical task. It provided no basis for a reasonable employee belief that Goland—in soliciting employee views about the Union or in promul- gating an overly broad no-solicitation rule—was reflect- ing company policy. The General Counsel failed to es- tablish that Goland had apparent authority to speak or act for management. See Pan-Oston Co., supra at 305–307 (position as group leader and attendance at supervisory meetings insufficient basis to establish apparent authority as to engaging in surveillance, creating the impression of surveillance, and interrogating an employee). Accord- ingly, we agree with the judge that Goland was not an agent of the Respondent, and the complaint allegations involving Goland should be dismissed. For similar reasons, we find that the General Counsel failed to establish that either Chappel or Holz was an agent of the Respondent. Like Goland, both Chappel and Holz served as foremen and performed tasks similar to those performed by Goland. Thus, they signed time- sheets, gave out work assignments and inspected work. Nonetheless, the General Counsel failed to establish that the Respondent cloaked these foremen with apparent authority to speak or act on its behalf. Compare SAIA Motor Freight, 334 NLRB 979 (2001) (foreman was vested with apparent authority where he assigned and directed the employees’ work, had authority to grant time off, took corrective disciplinary action, designated lunchbreak times, corrected time and attendance records, conducted employee meetings at which he discussed work-related matters, attended supervisory and manage- ment meetings, and terminal manager told employees that foreman was in control of the dock workers and that if the employees had any job-related problems they should take them up with foreman). Accordingly, we also adopt the judge’s recommended dismissals of the complaint allegations based on the actions of Chappel and Holz. B. Conduct of Project Manager Schultz We disagree with the judge’s finding that Project Manager and Senior Supervisor Sam Schultz unlawfully threatened employees on April 5, 2002. The judge cred- ited employee Randy Reinders’ testimony that, on that date, he, Schultz, and Chappel were in the Respondent’s parking lot walking into the building before going to a job. Reinders heard Schultz ask Chappel: “Well, Dave, [did] you take care of our union problem yet?” Chappel pointed to Reinders and said: “What, you mean Randy?” Schultz then looked at Reinders and said: “Oh, sorry. I thought you were someone else.” SUBURBAN ELECTRICAL ENGINEERS/CONTRACTORS 3 The judge found Schultz’ statement constituted a threat of adverse consequences for union activity because it was common knowledge that Reinders was a union sup- porter. We disagree. Based on all of the surrounding circumstances, we find Schultz’ question to be ambigu- ous. First, the Union was engaged in a long-term orga- nizing campaign which inevitably generated incidents which might be innocuously referred to as “union prob- lems.” Moreover, Schultz’ question is devoid of any express or implicit references to adverse employment consequences for Reinders.8 Second, the incident oc- curred in an atmosphere of morning geniality as Schultz, Chappel, and Reinders walked from the parking lot into the Respondent’s facility before going to a job. Finally, the incident occurred in an atmosphere free of any other unfair labor practices; the Respondent’s only unlawful conduct (the discriminatory refusal-to-hire violations of September 26 and October 3) occurred approximately 5 months earlier. Thus, Schultz’ question, in context, does not support an interpretation that it was a threat of ad- verse consequences because of union activity, as alleged in the complaint. The General Counsel has not estab- lished a violation by a preponderance of the evidence. See Illinois Institute of Technology, 195 NLRB 375 (1972) (employer’s statement that “he made trouble by going to the Labor Board on me” does not constitute a clear, unambiguous threat of reprisal).9 8 The Respondent’s use of the term “union problem” is arguably similar to employers’ targeting employees with the term “trouble- maker” in the context of a union organizing campaign. The Board has found that this type of name calling is unlawful if it is accompanied by coercive conduct, such as a threat of discharge. See L. C. Cassidy & Son, 272 NLRB 123 fn. 2 (1984), enfd. 745 F.2d 1059 (7th Cir. 1984) (employer violated Sec. 8(a)(1) when the employer described an em- ployee as a “troublemaker” who started the union and the employer stated the employer would “fire the son-of-a-bitch”). In the instant case there is no such threat. Compare Park ‘N Fly, Inc., 349 NLRB 132, 132–133 (2007) (adopting dismissal of allegation that employer vio- lated Sec. 8(a)(1) by its statements that it did not need a “damn union” and that an employee was a “damn troublemaker”). 9 Contrary to the majority, Member Liebman would find nothing ambiguous in Supervisor Schultz’ question to Chappel—“[D]id you take care of our union problem yet?”—asked in the presence of em- ployee Randy Reinders. Certainly, it would have been reasonable for Reinders, a known un- ion supporter, to believe that the question referred to him, given Chap- pel’s response—“What, you mean Randy?” (pointing to Reinders)— followed by Schultz’ dubious disclaimer (“Oh, sorry. I thought you were someone else.”). But it is beside the point whether the colloquy was, in fact, aimed at Reinders. Regardless, Schultz’ words would reasonably have been understood to mean that some employee associ- ated with the union was a “problem” that had to be “taken care of,” phrasing that strongly suggests reprisal. In finding no violation of Sec. 8(a)(1), the majority cites an “atmos- phere of morning geniality.” The Act protects employees, however, even when the workday is beginning. (“Get your threats in early” is surely not the lesson that the majority wants employers to draw.) Nor Our dissenting colleague’s reliance on Washington Fruit & Produce Co., 343 NLRB 1215 (2004), is mis- placed. In that case, the Board found that a supervisor’s asking two employees who were dressed in heavy jackets before entering the cold room if they were putting on their “bulletproof vests,” did not reasonably tend to inter- fere with the free exercise of employees’ Section 7 rights. In dismissing the allegation, the Board noted, however, that a supervisor’s statements may be coercive regardless of the supervisor’s friendship with employees. We do not disagree with that observation. Nonetheless, here, there was merely a brief exchange of ambiguous remarks among Schultz, Chappel, and Reinders. Indeed, as we have already noted, Schultz’ question was devoid of any express or implicit references to adverse employ- ment consequences for Reinders. Further, contrary to our colleague, our reference to an “atmosphere of morn- ing geniality” surely does not indicate an intention to encourage “getting threats in early.” Our reference merely noted that the environmental context of the ex- change contributed to the innocuousness of remarks that were ambiguous by their own terms. III. THE 8(a)(3) “REFUSAL-TO-HIRE” ALLEGATIONS We agree with the judge that the Respondent violated Section 8(a)(3) and (1) of the Act when it failed to hire “salts” Terry Roovers and Corey Wiegel on September 26, and hired instead Jason Puls, and failed to hire the same “salts” on October 3, and hired instead Eric Lieby.10 is the “genial” nature of the remarks here dispositive. The Board has not hesitated to find supposedly joking remarks to be coercive. See, e.g., Washington Fruit & Produce Co., 343 NLRB 1215, 1216 fn. 9 (2004) (“A supervisor’s statements may be coercive regardless of his friendship with an employee and regardless of whether the remark was well intended”). 10 The judge did not find that the Respondent unlawfully failed to hire “salt” Troy Toomer. The General Counsel excepts. We find no merit in the General Counsel’s exception. Contrary to his colleagues, Member Schaumber would find that the Respondent did not violate Sec. 8(a)(3) and (1) when it failed to hire Roovers and Wiegel. Under FES, 331 NLRB 9, 12 (2000), supple- mented by 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002), the General Counsel must make out a prima facie case for a discriminatory refusal to hire by showing (1) that the respondent was hiring, or had concrete 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 requirements of the positions for hire, or in the alternative, that the employer had not adhered uniformly to such re- quirements, or that the requirements were themselves pretextual or were applied as a pretext for discrimination; and (3) that antiunion animus contributed to the decision not to hire the applicants. Member Schaumber finds that the General Counsel did not meet the last ele- ment, animus. The judge found, and the Board agrees, that the Re- spondent did not commit any unfair labor practices beforehand. Fur- thermore, the Board is dismissing the allegation that the Respondent violated Sec. 8(a)(1) by Schultz’ vague question concerning the “union DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 However, we do not agree with the judge’s analysis in its entirety. In FES, 331 NLRB 9 (2000), supplemented by 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002), the Board set forth the framework for analysis of refusal-to-hire cases. To meet his burden of proof in a discriminatory refusal-to-hire case, the General Counsel must show: that the Respondent was hiring, or had concrete 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 requirements of the positions for hire, or in the alternative, that the em- ployer had not adhered uniformly to such requirements, or that the requirements were themselves pretextual or were applied as a pretext for discrimination; and (3) that antiunion animus contributed to the decision not to hire the applicants.11 There is no dispute as to the first part of the FES test. As to the second part of the FES test, the judge found that Roovers and Wiegel possessed the training and ex- perience necessary to meet the qualifications for the posi- problem,” which occurred several months after these hiring decisions. The General Counsel established that the Respondent knew that Roo- vers and Wiegel were affiliated with the Union, and that the Union was attempting to organize the Respondent’s employees. However, this scant evidence does not establish that the Respondent harbored any antiunion animus, let alone that it motivated the Respondent to not hire Roovers and Wiegel. Even assuming that the General Counsel made out a prima facie case, Member Schaumber finds that the judge erred in analyzing the Respondent’s rebuttal burden. Under FES, if the General Counsel establishes a prima facie case, the burden shifts to the respondent to show that it would not have hired the applicants even in the absence of their union affiliation. Id. at 12. Here, the Respondent offered ample evidence on its broad range of factors for hiring Puls and Leiby, such as the fact that Maass knew Puls’ brother, Puls had worked for the Re- spondent’s chief competitor, and Lieby came highly recommended from a source that had previously recommended several other quality employees. Instead of examining these factors, the judge compared such quantitative factors as years of experience of Roovers and Wiegel to Puls and Lieby. Instead of looking so narrowly at the comparative qualifications, Member Schaumber finds that the Respondent estab- lished it would not have hired Roovers and Wiegel even in the absence of their union affiliation. Consistent with this finding, Member Schaumber would not rely on the judge’s finding that the Respondent offered pretextual reasons for not hiring Roovers and Wiegel. The judge’s basis for finding pretext (the Respondent’s failure to inform Roovers that it considered him rude during his application process; the Respondent’s failure to inform Wiegel that his rejection of a prior job offer might affect any future applications with the Respondent; the Respondent’s failure to go beyond the applicants’ applications to de- termine their recent relevant work experience) are relatively insubstan- tial, especially when viewed in the context of the Respondent’s ample business justifications for hiring Puls and Lieby. Contrary to the major- ity, Member Schaumber would thus find that the General Counsel failed to carry his burden of establishing a violation of the law by a preponderance of the evidence. 11 Supra at 12 (fns. omitted). tions filled by the Respondent. Indeed, the judge also found that the training and experience of Roovers and Wiegel was “far superior” to that of Puls and that the applications of Roovers and Wiegel were “superior” to that of Lieby. As to the third part of the FES test, the judge found, in- ter alia, that the Respondent exhibited animus in the Re- spondent’s awareness that Roovers and Wiegel were affiliated with the Union, and had filed numerous em- ployment applications over a 6-month period seeking journeyman electrician positions with the Respondent, at a time when the Union was attempting to organize the Respondent’s employees. The judge also found that the Respondent’s stated rea- sons for failing to hire Roovers and Wiegel were false. The judge noted that the Respondent assertedly relied on Roovers’ alleged rudeness during the application process and the absence of current employment during the most recent 2 years when Roovers served as a union business manager. As to the first factor, the judge found that the Respondent failed to document Roovers’ alleged rude- ness. None of the Respondent’s agents or employees informed Roovers at the time that they considered him rude or disrespectful, and the Respondent’s chief witness acknowledged that Roovers was not rude or overpower- ing on numerous occasions and only once was “his voice . . . raised and he came across pretty harsh.” The judge noted that the Respondent rehired at least two employees who experienced behavioral problems. As to the second factor, although Roovers had been serving as a union business manager, he had continued to perform electrical work as a volunteer on Salvation Army and Police De- partment projects and on his own home and the houses of family members. Indeed, Roovers had a current jour- neyman electrician certification. The judge noted that had the Respondent contacted Roovers or interviewed him, as the Respondent did for other applicants, the Re- spondent would have ascertained that Roovers was cur- rent in his skills. The judge further noted that Lieby, whom the Respondent hired, listed no current job duties in his job application. The judge also noted that the Respondent’s stated rea- sons for not hiring Wiegel were Wiegel’s prior refusal of a job offer and Wiegel’s absence from the trade while he was a full-time union business agent. As to the first fac- tor, Wiegel refused the Respondent’s job offer—and so informed the Respondent—because of the short notice, and daycare complications for his family because the job was out-of-town. Nevertheless, the Respondent failed to inform Wiegel, when he inquired, that Wiegel’s refusal of the job would harm future consideration for jobs with the Respondent. The Respondent also failed to fill this SUBURBAN ELECTRICAL ENGINEERS/CONTRACTORS 5 particular out-of-town job and acknowledged that it hired several employees despite their previously turning down job offers.12 As to the second factor, the Respondent made no reference to Wiegel’s absence from the trade when the Respondent offered Wiegel the out-of-town job which Wiegel declined. Also, as with Roovers, the Re- spondent failed to contact or interview Wiegel as the Respondent did with other applicants. Thus the Respon- dent failed to ascertain, that during Wiegel’s term as business agent, Wiegel performed electrical work for charitable organizations and taught classes on grounding techniques in the Union’s apprenticeship program. The judge therefore concluded that the Respondent’s stated reasons for not hiring Roovers and Wiegel were false and pretextual. We apply FES three-part test in the following manner. As noted heretofore, there is no dispute as to the first part of the test. As to the second part of the test, there is also no dispute that Roovers and Wiegel had experience or training relevant to the job at issue. Indeed, the judge so found. The judge also intimated that Roovers and Wiegel’s superior qualifications played a role in his con- cluding that the Respondent unlawfully failed to hire them. We, however, find it unnecessary to rely on this finding by the judge. We rely instead on the Respon- dent’s proffering of false reasons for its failure to hire the two applicants. The Respondent did not assert that Roo- vers and Wiegel were unqualified for the jobs at issue. The Respondent submitted that Roovers had been rude and that Wiegel had refused a prior job offer. Further, the Respondent stated that both Roovers and Wiegel were without current experience because they had been serving as union agents immediately before they applied for the Respondent’s jobs. As the judge found, and we agree with the judge, the Respondent’s assertions in this respect were false. In concluding that the General Coun- sel established animus, we agree with our dissenting col- league that the judge incorrectly found animus in the mere fact that Roovers and Wiegel were affiliated with the Union and the Union was attempting to organize the Respondent’s employees. Nevertheless, the judge cor- rectly found that the Respondent’s stated reasons for not hiring Roovers and Wiegel were false and pretextual. Based on this finding, we agree with the judge that the requisite animus was established. 12 We do not rely on the judge’s further conclusions for finding false the Respondent’s reliance on Wiegel’s prior refusal of a job offer, i.e., (1) the out-of-town job was outside the Union’s jurisdiction and Wiegel would be unable to advocate for the Union among his fellow employees if he accepted the job; (2) the Respondent’s job offer would indicate that the Respondent had no objection to hiring union organizers, espe- cially a business agent, such as Wiegel. We find no record evidence for these particular conclusions by the judge. It is axiomatic that findings of antiunion animus and discriminatory motive may be predicated on pretextual reasons advanced for a personnel action. It is well set- tled that when a respondent’s stated reasons for its ac- tions are found to be false, the circumstances may war- rant an inference that the true motive is an unlawful one that the respondent desires to conceal. See Loudon Steel, 340 NLRB 307, 312 (2003) (citations omitted). Thus the Board, in finding animus, may rely on the judge’s find- ings that a respondent’s proffered reasons for the person- nel actions were pretextual. See Waterfront Services Co., 340 NLRB 1305 fn. 2 (2003). It is also axiomatic that where it is shown that a respondent’s proffered rea- sons are pretextual—that is false, or not in fact relied upon—the respondent fails by definition to show that it would have taken the same action for those reasons, ab- sent the protected conduct. See Golden State Food Corp., 340 NLRB 382, 385 (2003) (citing Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982)). Accordingly, it is unavailing for our dissenting colleague to cite the Respondent’s alleged factors for hiring Puls and Lieby in lieu of Roovers and Wiegel. What is critical is that the Respondent offered false and pretextual reasons for its failure to hire Roovers and Wiegel. Under these circumstances, the third part of the FES is satisfied, and the Respondent has failed to demonstrate that it would not have hired Roovers and Wiegel even in the absence of protected conduct. There- fore, the Respondent violated Section 8(a)(3) and (1) of the Act when it failed to hire “salts” Roovers and Wiegel on September 26 and October 3, and instead hired Puls and Lieby. We disagree, however, with the judge’s finding that the Respondent violated Section 8(a)(3) and (1) of the Act by failing to consider for hire the two “salts”— Roovers and Wiegel—on July 17. The judge found that Roovers and Wiegel possessed “superior qualifications” to those of applicants Arnoldi and Horn and concluded that Respondent refused to consider the “salts” based on their “union affiliation.” However, we conclude that the Respondent in fact considered the “salts” for the July 17 opening. FES, supra at 15, provides that to establish a discrimi- natory refusal to consider, the General Counsel must show: (1) that the respondent excluded applicants from a hiring process; and (2) that antiunion animus contributed to the decision not to consider the applicants for em- ployment. If this is established, the burden then shifts to the respondent to show that it would not have considered the applicants even in the absence of their union activity or affiliation. Id. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 Here the General Counsel failed to establish the first prong of the prima facie case. Maass testified that he considered all the relevant applications, including those of Roovers and Wiegel. The General Counsel failed to provide evidence contrary to Maass’ testimony.13 Thus, the General Counsel did not establish Roovers and Wiegel were excluded from the hiring process. We find the Respondent did not engage in a discriminatory re- fusal to consider for hire in connection with its July 17 offer of employment to Arnoldi and Horn. Compare Progressive Electric, 344 NLRB 426, 435 (2005), enfd. 453 F.3d 538 (D.C. Cir. 2006) (refusal-to-consider viola- tion based on applicants not being allowed to file appli- cations and being told they would be considered when employer had vacancies); Cheney Construction, 344 NLRB 238, 238 fn. 1 (2005) (refusal-to-consider viola- tion based on administrative assistant’s failure to place applications in superintendents’ boxes because she knew the applicants were with the union and “they weren’t really looking for a job”). AMENDED REMEDY Having found that the Respondent discriminatorily re- fused to hire Terry Roovers and Corey Wiegel, the Re- spondent must make them whole for its unlawful conduct against them. The duration of the backpay period shall be determined in accordance with Oil Capitol Sheet Metal, 349 NLRB 1348 (2007). Backpay shall be com- puted in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), and interest shall be computed in ac- cordance with New Horizons for the Retarded, 283 NLRB 1173 (1987).14 ORDER The National Labor Relations Board orders that the Respondent, Suburban Electrical Engineers/Contractors, 13 The judge noted the Respondent’s failure to pursue Reinders’ re- ferral of Roovers and Wiegel. Reinders wrote a letter pursuant to the Respondent’s employee referral policy in which Reinders recom- mended Greg Young, Roovers, Greg Breaker, and Wiegel for employ- ment with the Respondent. The judge found that Maass’ claim that he did not know where Reinders was because he was on strike did not withstand scrutiny. The judge surmised that Maass could have con- tacted Reinders. However, the judge ignored Maass’ further testimony that he had discharged Young and Breaker and thus Reinders’ recom- mendation did not place Roovers and Wiegel in “good company.” Under these circumstances, we find Maass’ failure to pursue Reinders’ referral of Roovers and Wiegel did not contravene Maass’ testimony that he considered all the relevant applications, including those of Roo- vers and Wiegel. 14 While our Order herein provides for instatement, the instatement award is subject to defeasance if, at the compliance stage, the General Counsel fails to carry his burden of going forward with evidence that the discriminatees would still be employed by the Respondent if they had not been the victims of discrimination. Oil Capitol Sheet Metal, supra, slip op. at 7. Inc., Appleton, Wisconsin, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Discouraging employees from engaging in activi- ties on behalf of a labor organization by refusing to hire job applicants because they are members or supporters of unions, or because they indicate on their employment applications that they are voluntary union organizers. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of 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 to Terry Roovers and Corey Wiegel employment in the positions for which they applied, or if those positions no longer exist, to substantially equivalent positions, with- out prejudice to their seniority and any other rights and privileges. (b) Make Terry Roovers and Corey Wiegel whole for any loss of pay and other benefits suffered by them as a result of the discrimination against them, in the manner set forth in the amended remedy section of this Decision. (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful refusal to hire, and within 3 days thereafter notify Terry Roovers and Corey Wiegel that this has been done and that the refusals to hire will not be used against them in any way. (d) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records, including an electronic copy of the 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 all of its employment facilities and jobsites subject to the jurisdiction of the National Labor Relations Act copies of the attached notice marked “Appendix.”15 Copies of the notice, on forms provided by the Regional Director for Region 30, after being signed by the Respondent’s au- thorized representative, shall be posted by the Respon- dent and maintained for 60 consecutive days in con- spicuous places including all places where notices to employees and applicants are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by 15 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.” SUBURBAN ELECTRICAL ENGINEERS/CONTRACTORS 7 any other material. In the event that, during the pend- ency of these proceedings, the Respondent has gone out of business or closed the facility involved in these pro- ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice of all current employ- ees and former employees employed by the Respondent at any time since April 9, 2001. (f) Within 21 days after service by Region 30, file with the Regional Director a sworn certification of a responsi- ble official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. 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 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 discourage employees from engaging in activities on behalf of a labor organization by refusing to hire job applicants because they are members of or sup- porters of unions, or because they indicate on their em- ployment applications that they are voluntary union or- ganizers. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their Section 7 rights protected by the Act. WE WILL offer to Terry Roovers and Corey Wiegel employment in positions for which they applied or if those positions no longer exist, to substantially equiva- lent positions, without prejudice to their seniority and other rights and privileges. WE WILL make Terry Roovers and Corey Wiegel whole for any loss of pay and other benefits with interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful refusal to hire Terry Roovers and Corey Wiegel and, within 3 days thereafter, notify them in writing that this has been done and that the refusal to hire them for em- ployment will not be used against them in any way. SUBURBAN ELECTRICAL ENGINEERS/ CONTRACTORS, INC. Eryn M. Doherty, Esq. and Joyce Ann Seiser, Esq., for the Gen- eral Counsel. L. Traywick Duffie, Esq. and Lisa A. Kabula, Esq., of Atlanta, Georgia, for the Respondent-Employer. Mark A. Sweet, Esq. and Terry J. Roovers, Business Manager, of Appleton, Wisconsin, for the Charging Party. DECISION1 STATEMENT OF THE CASE BRUCE D. ROSENSTEIN, Administrative Law Judge. This case was tried before me on August 7 through 9, 20, and 21, 2002, in Appleton, Wisconsin, pursuant to a consolidated complaint and notice of hearing in the subject cases (the complaint) issued on July 29, 2002, by the Regional Director for Region 30 of the National Labor Relations Board (the Board). The underlying charges were filed on various dates in 20012 and 2002 by Inter- national Brotherhood of Electrical Workers, Local Union 577 (the Charging Party or the Union) alleging that Suburban Elec- trical Engineers/Contractors, Inc. (the Respondent or the Em- ployer) has engaged in certain violations of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). The Re- spondent filed a timely answer to the complaint denying that it had committed any violations of the Act. Issues The complaint alleges that Respondent engaged in numerous independent violations of Section 8(a)(1) of the Act including coercive interrogation, the enforcement of an overly broad no- solicitation rule prohibiting employees from soliciting at all times, threatening employees with unspecified adverse conse- quences because of their union activities, creating the impres- sion among its employees that their union activities were under surveillance, and soliciting employees’ views about the Union. Additionally, the complaint alleges that the Respondent disci- plined an employee and has failed and refused to consider for employment and/or hire three union representatives because of their membership in and activities in support of the Union, in violation of Section 8(a)(1) and (3) of the Act. 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 the Respondent,3 I make the fol- lowing 1 Correction has been made according to an errata issued on Decem- ber 9, 2002. 2 All dates are in 2001, unless otherwise indicated. 3 By motion dated November 6, 2002, the General Counsel moved to strike portions of Respondent’s brief. By motion dated November 12, 2002, the Respondent filed a response to the Motion to Strike and a Motion to Strike portions of the General Counsel’s brief. On Novem- ber 19, 2002, the General Counsel filed a response to Respondent’s motion to strike portions of the General Counsel’s brief. For good cause shown, I grant both the General Counsel’s and the Respondent’s DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 FINDINGS OF FACT I. JURISDICTION The Respondent is a corporation engaged in commercial, in- dustrial, and residential construction as an electrical contractor at its facility in Appleton, Wisconsin, where it annually sold and shipped goods and materials valued in excess of $50,000 directly to customers located outside the State of Wisconsin. The Respondent admits and I find that it is an employer en- gaged 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 A. Background The Union commenced an organizing campaign at Respon- dent in September 2000. On September 26, 2000, 11 union members filed employment applications with Respondent in- cluding Business Agents Greg Young and Corey Wiegel. By letter dated October 26, 2000, Young apprised Respondent that the 11 individuals who previously applied for work are still interested in employment and inquired whether their applica- tions are still current and active (GC Exh. 11). By letter dated October 27, 2000, Human Relations Specialist Missy Van Dyke apprised Young that an applicant whose application expires after 30 days and wishes to keep their application active must come to the Respondent’s offices and fill out a new application (GC Exh. 12). The new Fond du Lac High School project, a $40-million plus project commenced around January 2001. Respondent was selected to perform the specifications of the electrical in- stallation. Employee Randy Reinders heard that the Respon- dent needed journeyman electricians to work at the jobsite. Accordingly, in early January 2001, he interviewed with Re- spondent’s executive vice president, Dave Maass, and on Janu- ary 5, met with Respondent’s president, Guy Smith. On Janu- ary 8, Reinders accepted a job offer from Maass and after giv- ing notice to his former employer, started work on January 18. Reinders was not a member of the Union when he commenced his employment at Respondent. Reinders continued to work at the Fond du Lac High School project until he was laid off on March 15. He was upset and voiced his concerns to Maass. Reinders’ layoff prompted a telephone call to the Union and on or about April 4, he became a dues paying member. On or about April 9, Reinders was recalled from layoff and continued to work as a journeyman electrician at Respondent. Upon his return to work, and after April 9, Reinders became active on behalf of the Union. He distributed union leaflets, talked to coworkers about the benefits of the Union and advocated his beliefs that employees at Respondent would be better off with union representation. Reinders’ strong position concerning the Union did not go unnoticed and it became apparent to Respon- dent supervisors that he was a union advocate. After a number of discussions with Respondent supervisors about the Union during early April 2001, Reinders informed Young that the Motion to Strike and introduce them into the record as GC Exh. 69 and R. Exh. 24. Respondent definitely knew about the Union’s campaign to organize its employees and his involvement in this effort.4 Accordingly, by letter dated April 24, Young informed the Respondent that Reinders is a union salt and he will be assisting the Union in its organizing drive directed at their employees (GC Exh. 28). Several months before Reinders became active on behalf of the Union and continuing thereafter, a letter writing campaign was undertaken by the Union to apprise Respondent’s employ- ees about the benefits of organization and a comparison of benefits that presently existed at Respondent with those en- joyed under a union contract. For example, on February 16, 23, March 3, 10, April 2, 26, May 4, and July 16 letters were dis- tributed to Respondent’s employees discussing subjects such as health insurance, pension plan, wages, prevailing wages, and new contract raises (GC Exhs. 13, 14, 15, 16, 18, 21, 22, and 25). By letter dated March 19 to all employees, Respondent acknowledged that the Union has been sending out correspon- dence on a weekly basis and responded to the numerous asser- tions of the Union by addressing issues such as health insur- ance, wages, and retirement benefits. On April 6, Union Business Agents Young, Wiegel, and Terry Roovers, visited Respondent’s offices and filed individ- ual employment applications. The Union taped the conversa- tion with the human resource personnel and a transcript was entered into the record (GC Exh. 32). On April 13, Respondent by Van Dyke, telephoned Wiegel at home and left a message for him to contact her. Later that day, Wiegel returned the telephone call and taped their conver- sation (GC Exh. 40). Van Dyke offered Wiegel a full-time position with Respondent as a journeyman electrician in Ala- bama working on a project that would entail being away from his home for approximately 12 days. Wiegel apprised Van Dyke that his wife was presently out of town, and due to day care responsibilities for their 3-year old daughter, he would have to check with her as to whether he could accept the posi- tion that was scheduled to start on April 18. Because Wiegel had raised a number of questions and it was necessary for him to contact his wife, it was agreed that Van Dyke would attempt to reach Wiegel on April 16, after she had obtained answers to his questions. On April 16, Wiegel and Van Dyke continued their telephone dialogue that was taped by Wiegel and the tran- script was entered into the record (GC Exh. 43). Van Dyke responded to the majority of questions that Wiegel raised and informed him that he would not be able to travel home on weekends as it was expected the employees would be working 7 days per week. Van Dyke also confirmed that the offer of employment was for a full-time position to fill an immediate need but the position would remain permanent upon completion of the project. Wiegel requested some time to think about the job offer and promised to contact Van Dyke later that day with a final decision. Wiegel contacted Van Dyke and apprised her that he would have to turn the job offer down primarily due to the limited advance notice about the job, the out-of-town job location with the inability to travel home on weekends and his 4 Reinders, early in the morning of April 24, informed Maass that he was with the Union (R. Exh. 18). SUBURBAN ELECTRICAL ENGINEERS/CONTRACTORS 9 day care responsibilities.5 During the conversation, Wiegel inquired of Van Dyke whether turning down this position would hurt his chances for future employment with Respon- dent. Van Dyke replied, “[A]s for as hurting your chances in the future, I think just what I said before is, all the positions will involve travel at some point in time.” Wiegel, after turning down this position, continued to file monthly employment ap- plications with Respondent in order to keep his application current every 30 days. B. The 8(a)(1) Allegations 1. Complaint case 30–CA–15473 The General Counsel alleges in paragraphs 8(a) and (b) that Maass on April 9, at its facility, created the impression of sur- veillance of employees and threatened employees because of their union and/or protected concerted activities. In paragraph 8(c), the General Counsel alleges that Smith interfered with and coerced employees’ in their right to engage in union and/or protected activities. The Board has held that interrogation is not a per se violation of Section 8(a)(1) of the Act. Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In determining whether an interrogation is unlawful, the Board examines whether, under all the circum- stances the questioning reasonably tends to interfere with, re- strain, or coerce employees in the exercise of their Section 7 rights. Rossmore House, supra at 1177–1178. Emery World- wide, 309 NLRB 185, 186 (1992). Under the totality of cir- cumstances approach, the Board examines factors such as whether the interrogated employee is an open and active union supporter, the background of the interrogation, the nature of the information sought, the identity of the questioner, and the place and method of interrogation. Rossmore House, supra at 1178 fn. 20; Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964); Sunny- vale Medical Clinic, 277 NLRB 1217, 1218 (1985). Reinders testified that on his first day back from layoff on April 9, he attended the regularly scheduled monthly safety meeting for all employees. After the safety presentation, Maass addressed the group and discussed the numerous letters the Union had been sending to its employees discussing issues such as health insurance, pensions, wages, and benefits that could be received under a union contract. Smith announced to the em- ployees that a mole had been passing information to the Union about the Respondent. Maass told employees that they should not sign anything for the Union as it was like signing a blank check and the Union was just looking for dues money. Smith informed employees that they could ask the Union to take their name off the mailing list so they did not have to receive union materials at home. The Respondent does not deny that it opposes unionization of its employees and has informed employees that it recognizes the privilege to operate union-free. It has told employees that it intends to provide a proemployee work environment that makes unions irrelevant. To this end it has adopted a proemployee 5 Van Dyke testified that after Wiegel turned down the Alabama job offer no other employee was hired or reassigned to fill the position. policy.6 To counter the large amount of propaganda distributed by the Union, the Respondent also engaged in an active cam- paign to make its position known that it was against the unioni- zation of its employees. In fact, it distributed notices and flyers to employees that tract the testimony that Reinders gave at the hearing involving the allegations raised in the above-noted paragraphs of the complaint (GC Exhs. 56, 57, 58, and 59).7 I have carefully reviewed those documents in conjunction with Reinders’ testimony and conclude that even if Smith and Maass made the statements attributed to them they are legitimate cam- paign rhetoric responsive to union propaganda protected by Section 8(c) of the Act.8 In regard to Smith’s statement that a mole has been passing information to the Union about the Company, no employee was identified and as of April 9, no action had been taken against any employee because of his or her activities on behalf of the Union. Likewise, I note, that voluminous organizing campaign information had been sent to Respondent’s employees prior to April 9 by the Union, and the Respondent had also responded in writing to the Union’s repre- sentations. Moreover, Reinders had joined the Union just prior to his first day back from layoff on April 9, and his attendance at the safety meeting was his first work assignment. Thus, there is no evidence that the Respondent knew on April 9 of his union involvement or if Reinders was the mole that was dis- tributing campaign materials to employees. Indeed, it was not until April 24, that Reinders publicly announced that he was a union salt. Under these circumstances, and particularly noting the noncoercive or threatening content of the Respondent’s flyers and notices set forth in the above-noted exhibits, I con- clude that Respondent did not violate the Act. Therefore, I recommend that paragraphs 8(a), (b), and (c) of the complaint be dismissed. The General Counsel alleges in paragraph 8(d) of the com- plaint that on April 9 in route to the Employer’s Tuffco jobsite in Green Bay, Gary Goland solicited employees’ views about the Union. 6 Suburban Electric offers wages and benefits that are competitive within the electrical industry. It is Suburban Electric’s mission to maximize the personal growth and development of our employees. This is done through direct communication and does not require third- party involvement. Suburban Electric recognizes individual achieve- ment and merit and promotes based on those criteria. Suburban Elec- tric treats all employees with dignity and respect. Suburban Electric employees are not subjected to outside interference by strangers. Sub- urban Electric sincerely believes that unionization is not in the best interest of our employees. The policy was posted in the bullpen on or about April 9 (R. Exh. 23). 7 In February 2001, Maass along with Van Dyke and a number of Respondent’s project managers attended a seminar given by an attorney that addressed issues how to combat union organizing campaigns. The information gathered at this seminar served as an outline for Maass’ presentation to the employees on April 9. 8 There was contradictory testimony introduced at the hearing as to whether Smith and Maass made the statements attributed to them by Reinders. Since I have found that the statements, even if made were protected by the Act, it is not necessary to resolve the credibility of these witnesses. See NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 Reinders testified that Goland informed him on the ride to the jobsite that he was upset about receiving so much literature from the Union and he was thinking about suing them to stop receiving the information. During the course of the conversa- tion, Goland inquired of Reinders about his views regarding the Union. Reinders replied, “Well, I’ve worked on both sides of the fence. You know, there is pros and cons to everything.” Respondent first argues that Goland is not a supervisor within the meaning of the Act and therefore even if he sought Reinders views about the Union, which they deny, the inquiry cannot be attributed to them. Reinders testified that Goland gave him job assignments that he expected to be completed and signed the employee timecards. He also instructed employees to start cleaning up towards the end of their shift. Section 2(11) defines a “supervisor” as: Any individual having authority, in the interest of the em- ployer, to hire, transfer, suspend, lay off, recall, promote, dis- charge, assign, reward, or discipline other employees, or re- sponsibly to direct them, or to adjust their grievances, or ef- fectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a routine or clerical nature, but requires the use of independent judgment. The statutory definition is set forth in the disjunctive; thus, possession of any one of the listed indicia of authority is suffi- cient to find the individual at issue a supervisor. See, e.g., Providence Hospital, 320 NLRB 717, 725 (1996), affd. sub nom. Providence Alaska Medical Center v. NLRB, 121 F.3d 548 (9th Cir. 1997). The burden of proving supervisory status is on the party asserting that such status exists. The Respondent argues that a number of its senior journey- man electrician employees while having the title of foreman on the jobsite are really leadmen who do not exercise independent judgment. In most instances, individuals such as Goland are in charge of a crew of two or three electricians or apprentices. This is what occurred on the Tuffco jobsite. Often, upon the termination of one job when acting as a foreman, senior em- ployees such as Goland will be assigned to another job where he functions as a journeyman electrician under the direction of another foreman or project manager. Thus, the Respondent argues that his performance as a foreman is merely sporadic and is not regular on an ongoing basis. The evidence discloses that Jeffrey Chamberlin was the project manager on the Tuffco jobsite in April 2001. He credibly testified that while Goland signed employee timecards he merely followed his instructions for the assignment of work. Chamberlin met every Monday morning with the job crew to outline their work assignments for the week and personally visited the jobsite to inspect the pro- gress of the work at least 2 days each week. He further testified that Goland had no authority to change work assignments with- out his permission and could not take any personnel actions against employees. While the record confirms that some time in September 2001, Goland was elevated to the status of a foreman and regularly attended meetings with other supervi- sors, it does not appear that in April 2001, he possessed that authority (R. Exh. 14). I note, that Goland works side-by-side with the journeyman electricians and handles the same type of work assignments. According to Van Dyke, Goland was classi- fied as a leadman in April 2001. He did not possess the ability to hire, fire, discipline, or grant time off to members of the work crew. In regard to Goland’s assignment of work and signing the timecards at the jobsite, this evidence, without more, does not establish that his decisionmaking is marked by independent judgment. Rather, I find that his decisions are routine responses to predictable, recurring work assignment issues. See Clark Machine Corp., 308 NLRB 555 (1992). Nor is the fact that Chamberlin appraised Goland on a form for a foreman in 2001, dispositive as to his status as a supervisor under the Act (GC Exh. 54). Indeed, Van Dyke testified that Chamberlin used the foreman form to appraise Goland since the Employer had no such forms specifically for a leadman. Addi- tionally, comparing the indicia possessed by Dave Nass, a foreman and admitted 2(11) supervisor to that of Goland estab- lishes stark differences in their authority. In this regard, Nass has the authority to effectively recommend the hiring of em- ployees, is authorized to issue discipline, and has the authority to grant time off to employees. Goland, as of April 2001, did not possess any of these indicia. Moreover, Nass in April 2001 was paid at a higher hourly rate of pay than Goland. Based on the foregoing, I conclude that Goland is not a su- pervisor within the meaning of the Act and, therefore, if he solicited Reinders’ views concerning the Union it cannot be attributed to the Respondent. See Zack Co., 278 NLRB 958 (1986) (finding a foreman was neither a supervisor or agent and, thus, his potentially coercive statements could not be im- puted to the employer). In the particular circumstances of this case I am not convinced that even if Goland solicited Reinders’ views about the Union that the Act was violated. In this regard, the two individuals were riding together to the jobsite and en- gaged in a casual conversation about how Goland felt about the Union. This conversation followed the meeting held earlier that day, where Maass discussed the Union’s active organizing campaign and the Respondent’s strong feelings that a union was not necessary. It was a natural progression as the conver- sation continued for Goland to have sought out Reinders posi- tion on the Union. Likewise, there is no evidence that Goland was aware on April 9, that Reinders was a leading union advo- cate or a salt on behalf of the Union. Indeed, Reinders had just returned from layoff on that day and had informed no one at Respondent of his status as a union member or efforts to organ- ize the employees. For all of the above reasons, I recommend that the allega- tions in paragraph 8(d) of the complaint be dismissed and find that the Respondent did not violate Section 8(a)(1) of the Act. The General Counsel argues in paragraph 8(e) of the com- plaint that Dave Maass on April 24, at its facility, interrogated an employee about his union affiliation. Reinders testified that on April 24, he was smoking a ciga- rette with Maass at the shop and Maass asked him whether the rumors he heard were correct. Reinders replied, “You mean my union affiliation.” Maass said yes, and added your affilia- tion is not a problem. Rather, your reviews and work perform- ance is what is important. At the time this conversation occurred, I note that Reinders had previously joined the Union and was actively advocating the benefits of organization with coworkers at the facility. SUBURBAN ELECTRICAL ENGINEERS/CONTRACTORS 11 Likewise, the Respondent at the April 9 safety meeting had announced to all employees that a mole had been passing in- formation to the Union about the Employer. Maass testified that at approximately 6 a.m. on April 24, Reinders came up to him in the bullpen and informed him that he was with the Un- ion. He was wearing a union cap. Maass told Reinders that he did not care about his affiliation and we base your employment on what you are doing on the job and how you are doing it. Immediately after this brief meeting, Maass made a memoran- dum of his conversation with Reinders (R. Exh. 18). Thus, I am hard pressed to conclude that Maass interrogated Reinders about his union affiliation as Reinders volunteered the informa- tion that he was now with the Union. Under these circumstances, I conclude that Maass did not engage in interrogation of Reinders as alleged in the complaint. Therefore, I find that the Respondent did not engage in conduct violative of Section 8(a)(1) of the Act. The General Counsel alleges in paragraph 8(f) of the com- plaint that on April 24, Goland at the Tuffco jobsite orally promulgated and enforced an overly broad no-solicitation rule prohibiting employees from soliciting at all times. Reinders testified that later in the day on April 24, after he had the conversation with Maass at the shop, he had a conver- sation with Goland at the Tuffco jobsite. Goland told Reinders that he was aware of his union affiliation. Goland then in- structed Reinders that he could talk about the Union only on nonpaid time and since he was always on paid time, he could not talk about the Union at any time. Based on my above finding that in April 2001 Goland was not a supervisor within the meaning of 2(11) of the Act, I can- not find that even if such a statement was made, it can be at- tributed to the Respondent. Nor can I find and the General Counsel did not produce any evidence that Goland was an agent of the Respondent for the purpose of promulgating and enforcing an overly broad no-solicitation rule. If on the other hand others disagree with my finding that Goland is not a statu- tory supervisor, I would find that Goland made the above statement and such a prohibition is overly broad as it precludes solicitation before and after work and on midday breaks or lunchbreaks. I note that when Goland informed Reinders that he was aware of his union affiliation, it occurred later in the day after Maass had earlier learned that Reinders was now with the Union. Thus, I conclude that Maass disseminated this informa- tion to others including Goland. Therefore, I find that Reind- ers’ rendition of the conversation has a ring of truth to it and conclude the timing of the statement is consistent with Goland earlier learning that Reinders was affiliated with the Union. Therefore, if it is determined that Goland is a statutory supervi- sor, I would find that Goland’s promulgation and enforcement of an overly broad no-solicitation rule prohibiting employees from soliciting at all times is violative of Section 8(a)(1) of the Act. The General Counsel asserts in paragraphs 8(g) and (h) of the complaint that on May 10, Nass engaged in surveillance and isolated an employee because of his union and/or protected activities. Reinders testified that May 10 was his last day on the Mirro jobsite. This was a project that involved electrical work associ- ated with the closing of certain areas of a large plant in excess of 50 acres. The incidents in question mainly took place within the main plant and the Chilton/downtown facility that is located approximately 3 or 4 miles from the main plant. During most of the day on May 10, Reinders performed work at the downtown plant along with Nass. Towards the end of the day, as both Reinders and Nass drove together towards the main facility, Nass apprised Reinders that he needed to go to the main plant for a short meeting with the engineers before leaving to return to the shop. Upon arriving at the main plant, Nass instructed Reinders to remain near the entrance while he briefly met with the engineers so he could quickly locate him before they returned to the shop together. The General Counsel alleges that Nass purposely did this to isolate Reinders from meeting with the Kraft employees who were working on the site so as to prevent him from discussing the Union with them. Nass returned from his brief meeting with the engineers and they left the jobsite to return to the Respondent’s facility. Dur- ing the ride back, Reinders asserts that they engaged in a con- versation about the Union. In this regard, they discussed the pros and cons about having a union at the Respondent and Nass told Reinders that he was uncomfortable about informing the Employer about who Reinders talked to and his involvement with the Union. According to Reinders, Nass informed him that the Respondent’s supervisors had previously met with an attorney who instructed them how to handle a union organizing campaign and that currently he was instructed to keep Reinders away from the Kraft employees who were also working on the Mirro jobsite. Nass also informed Reinders, during this con- versation, that he was instructed by Maass to report to him daily as to whom Reinders saw and talked to on the jobsite. Nass, who has functioned as a project foreman for approxi- mately 5 years, denied that he was directed to keep an eye on Reinders or that he isolated Reinders from the Kraft employees to preclude him from talking with them about the Union. Like- wise, Nass denies that he interrogated Reinders about his union activities. I note that at the time that this incident occurred, the Union had apprised Respondent that Reinders was a union salt (GC Exh. 28). Thus, I conclude that Nass was fully aware that Re- inders was an active advocate on behalf of the Union. Reinders testified, however, that he was very respectful of Nass and complimented his ability on how to run a job and treat people fairly and with respect. Moreover, Reinders testified that Nass never interrogated him about his involvement in the Union. I found Nass to be a very credible witness who had a low-key demeanor and appeared to tell his story in a forthright manner. Thus, I am hard pressed to find that Nass, as alleged by the General Counsel, engaged in surveillance or attempted to iso- late Reinders from meeting with the Kraft employees at the main plant. As a practical matter, the Kraft employees had no connection with Respondent and the Union showed no interest in organizing those employees unlike those of Respondent. Thus, I credit Nass’ testimony that he directed Reinders to re- main at the entrance of the main plant so as to facilitate meeting him in a fixed location after his anticipated brief meeting with the engineers. Indeed, the main plant is a large facility of ap- proximately 50 acres and Nass did not want to waste time in DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 looking for Nass in other sections of the plant before they left to drive back to Respondent’s facility. Based on the forgoing, and particularly noting Nass’ forth- right testimony and demeanor regarding the events of May 10, I find that the Respondent did not engage in the allegations al- leged in paragraphs 8(g) and (h) of the complaint. Therefore, I recommend that these 8(a)(1) allegations be dismissed. 2. Complaint case 30–CA–16086 On May 14, Young wrote a letter to Respondent informing them that because of their continued harassment and intimida- tion of Reinders concerning his right to form, join, and assist a labor organization, Reinders has entered into an unfair labor practice strike against the Employer effective immediately (GC Exh. 30). Reinders remained on strike and did not work at Respondent until he made an unconditional offer to return to work and was rehired in March 2002. Upon returning to work, Reinders wore a union sticker on his hardhat and continued to advocate the Union in conversations with his coworkers. He also regularly attended union meetings and placed notices around the facility concerning prevailing wage jobs and infor- mation on how to contact the Union. The General Counsel alleges in paragraph 5(a) of the com- plaint that on March 25, 2002, at the Employer’s Timberlodge Brew Pub jobsite, Scott Westphal, created the impression among its employees that their union activities were under sur- veillance by Respondent. Reinders was assigned to hook up some motion sensors at the Brew Pub jobsite. Reinders asked Westphal, an admitted 2(11) supervisor, whether he would get chewed out similar to what happened previously on the job when he was harassed about incorrectly wiring a number of switches and lights.9 Reinders informed Westphal that he didn’t appreciate the way it was handled. Westphal said, “[T]hat he didn’t appreciate all the shit going on with Reinders on the job. He was just doing what Maass told him to do.” Even if Westphal made the above statement, I am hard pressed to conclude that this constitutes surveillance. There is no reference in the statement that Westphal was keeping an eye on Reinders or that Maass instructed him to do so. Likewise, inferring that “all the shit” referred to Reinders’ union activities is speculative as it could refer to many things including the previous problems that Westphal experienced with Reinders’ job performance. Accordingly, I conclude that even if Westphal made the statement, it is ambiguous at best. Therefore, I find that the allegations of paragraph 5(a) of the complaint are not sustain- able and recommend that they be dismissed. The General Counsel alleges in paragraph 5(b) of the com- plaint that Dave Chappel on April 2, 2002, in the Employer’s van in route to the Tuffco jobsite, created the impression among 9 Reinders worked on this project for approximately 2 weeks. Dur- ing the first week on the project, Westphal reported to Maass that he was having problems with Reinders’ work performance. He further told Maass that Reinders was really dumb or he was out to sabotage the job and either way, he no longer wanted him on the job. Maass over- ruled Westphal and instructed him to continue Reinders on the job. its employees that their union activities were under surveillance by Respondent. Reinders worked at the Tuffco jobsite for approximately 7 days in April 2002 along with Chappel and an apprentice. Re- inders testified that he was in the Employer’s van in route to the jobsite along with Chappel. Reinders expressed his frustrations to Chappel that Project Manager Chamberlin had previously instructed him to take the union sticker off his hardhat. Chap- pel said, “I’m tired of being in the middle of this union shit. Chamberlin wants to know what is going on and he wants me to keep an eye on you.” Chappel, as did Goland, signed employee timesheets on the Tuffco jobsite (GC Exh. 65). The evidence further establishes that Chappel gave work assignments to members of the crew including Reinders and could tell employees to correct or do work over if it was not performed accurately. Chappel testified that he did not consider himself to be a foreman on the Tuffco jobsite. Rather, his hourly pay reflected that his status was that of a journeyman electrician. He further indicated that Cham- berlin never informed him that he was to function as a foreman while on the Tuffco jobsite. Chamberlin testified that he was in charge of the Tuffco job in April 2002, and never designated Chappel as the foreman on that project. Chamberlin indicated, as with Goland, that in April 2002 he gave instructions at the beginning of each week to the members of the crew on how the work was to be performed. While Chappel imparted these in- structions to members of the crew, he could not change them without Chamberlin’s permission. Chamberlin agreed that in his absence, as the crew chief, Chappel would have the author- ity to instruct a worker to redo certain work that was not done correctly. As previously discussed above concerning the su- pervisory status of Goland, I am of the opinion that Chappel on April 2, 2002, did not possess the indicia of a Section 2(11) supervisor. His duties and responsibilities were no different than discussed above for Goland. In regard to Chappel’s as- signment of work and signing the timecards at the jobsite, this evidence, without more, does not establish that his decision- making is marked by independent judgment. Rather, I find that his decisions are routine responses to predictable, recurring work assignment issues. Moreover, Van Dyke credibly testi- fied that it was not until June 2002, that Chappel received a pay increase to $23 per hour that placed him in the foreman pay scale classification.10 Under these circumstances, I find that even if Chappel made the statement attributed to him it cannot be binding on the Respondent. On the other hand, if others disagree and determine that Chappel is a supervisor within the meaning of the Act, I am inclined to credit Reinders concerning this conversation. His recall of this event was precise and he credibly testified that after he returned from his unfair labor practice strike he routinely wore a union sticker on his hardhat. Chappel acknowledged that he discussed with Reinders the wearing of a union sticker on his hardhat. I note that in April 2002, it was common knowledge that Reinders was an active union advocate and the union organizing campaign at the Re- spondent had been in progress for well in excess of a year. 10 In April 2002, Chappel was paid at a $21 hourly rate. According to Van Dyke, the hourly rate for foreman was between $22 and $24. SUBURBAN ELECTRICAL ENGINEERS/CONTRACTORS 13 Under these circumstances, and only if Chappel is found to be a supervisor within the meaning of the Act, I would find that the Act was violated as alleged by the General Counsel when Chappel created the impression among its employees that their union activities were under surveillance. In summary, due to my finding that Chappell was not a statu- tory supervisor in April 2002, I recommend that paragraph 5(b) of the complaint be dismissed. The General Counsel asserts in paragraph 5(c) of the com- plaint that on April 5, 2002, at the Employer’s facility, Sam Schultz threatened its employees with unspecified adverse con- sequences because of their union activities. Reinders testified that on April 5, 2002, he was present at the Employer’s facility along with Schultz and Chappel. He heard Schultz state to Chappel, “Well Dave, did you take care of our union problem.” Chappel said, “You mean Randy.” Schultz replied, “Oh, sorry, I thought you were someone else.” Schultz and Chappel testified about this conversation in a completely different fashion. Schultz asserts that he said to Chappel, “Where is your buddy.” Chappell said, “Who is that.” Schultz pointed behind him towards Reinders and said, “I thought you were Mike.” Chappel concurred that this was the context of the conversation. As previously discussed above, Chappel was fully aware of Reinders status as a union representative and if he is found to be a supervisor, I concluded that he made statements violative of the Act. Reinders version of the conversation has a ring of truth to it and seems more plausible. Schultz, who has been a project manager and senior supervisor for 10 years, obviously knew who Reinders was and it was common knowledge that Reinders was a union salt. Reinders recollection of this conver- sation was convincing and his testimony was clear and precise. Under these circumstances, I find that Schultz’ statement was threatening in nature and was linked to Reinders’ union activi- ties.11 Therefore, I recommend that the Respondent violated Section 8(a)(1) of the Act. The General Counsel alleges in paragraph 5(d) of the com- plaint that sometime in April 2002 at the Employer’s Linen and Things jobsite, Matt Holz interrogated its employees about their union activities and the union activities of other employees. To sustain the above allegation, the General Counsel relies on the testimony of former Respondent employee Michael Smith. He testified that during the second week of April 2002, while he was working on the Linen and Things jobsite along with Reinders, Holz asked him about the details of a conversa- tion that he had with Reinders. Smith informed Holz that they were discussing family details that took place over the week- end. In response to questions that I proffered to Smith, he ad- mitted that Holz never asked him anything during their conver- sation about the Union. Likewise, Smith never inquired 11 I am skeptical that Schultz referred to Reinders as Chappel’s buddy because contrary to Schultz’ testimony that they had been work- ing together for a few weeks, the record establishes that Chappel re- turned from layoff on April 1, 2002. Thus, at the time of the inquiry, Reinders and Chappel had only been working together for 4 days and the term “buddy” implies a longer working relationship. Therefore, in addition to the above reasons, I find Reinders’ version of the conversa- tion to be more plausible. whether Reinders was involved in the Union. Under these cir- cumstances, it cannot be established that Holz made any state- ments violative of the Act. Additionally, based on my previous discussions about the indicia possessed by Goland and Chappel while serving as crew chiefs, I find that Holz was not a supervi- sor within the meaning of Section 2(11) of the Act in April 2002, even if he held the title of foreman on the Linen and Things jobsite. In this regard, Project Manager Tony Koszalinski credibly testified that in April 2002, he designated Troy Saunders and Steve Van Camp as foreman on the Linen and Things jobsite and at no time did he ever designate Holz as the foreman. As further evidence that Holz was not a foreman on the Linen and Things jobsite, the payroll records during this period show that Holz was paid an hourly wage of $21 while Saunders and Van Camp were paid foreman scale of $22 per hour. Thus, even if Holz made the statements attributed to him, they cannot be imputed to Respondent. For all of the above reasons, I find that the Respondent did not violate Section 8(a)(1) of the Act and recommend that the allegations in paragraph 5(d) of the complaint be dismissed. C. The 8(a)(1) and (3) Allegations 1. Discipline of Randy Reinders The General Counsel alleges in paragraph 9 of complaint Case 30–CA–15473 that Respondent disciplined Randy Reind- ers because of his union and/or protected activities. On May 3, Reinders and apprentice Rob McHugh worked at the Mirro jobsite and were responsible for disconnecting some large pieces of electrical equipment from a master control cabi- net. Foreman Nass was the supervisor on the project. They finished their work for the day and were not scheduled to work at the jobsite the next day. On May 4, Reinders informed Maass that there was voltage on a wire that he was told was de- energized by McHugh (R. Exh. 19). Maass told Reinders to discuss the matter with Project Manager Schultz and Safety Director Jerry Walsh. Schultz, after discussing the matter with Reinders, contacted Nass on May 4. Nass immediately con- tacted McHugh at home but he did not know anything about a safety problem at the jobsite. Nass then talked to Walsh who had also been informed of the safety complaint. Walsh in- formed Nass that he would be conducting an investigation.12 The following Monday, May 7, Nass arrived at the Mirro job- site early and personally inspected the work that Reinders and McHugh had performed on May 3. He found that the power line on the master control panel was cut and the lock and tag- out procedures were not completed in a safe manner or in ac- cordance with previous standard instructions that he gave to the employees. Rather, the breaker was left in the off position but was not taped. Nass also observed that copper wire was ex- posed at the point the wire was cut. Later in the morning on May 7, Walsh came to the jobsite and spoke individually to Nass, Reinders, and McHugh. Nass informed Walsh that it appeared that Reinders did not follow the proper procedures for deenergizing the power on the master control panel. He ap- prised Walsh that he had gone over these procedures with all of 12 Walsh prepared a written investigation report dated May 8, and forwarded it to Van Dyke (R. Exh. 5). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 the employees including Reinders prior to the commencement of the job on April 26. Nass further informed Walsh that ap- parently Reinders had left some exposed wire in the pipe that could have been energized and it was necessary for Nass to physically remove the wires from the breaker. Nass was espe- cially concerned that some unqualified person could have turned on the breaker over the weekend and been seriously injured. Because this was a serious breach of safety at the job- site, Nass recommended that Reinders be given a disciplinary written warning (R. Exh. 1). After the brief meeting with Walsh on the jobsite, Reinders returned to his work assignment and worked the entire week of May 7. On Monday May 14, at about 6:30 a.m., Reinders in- formed Maass that he was about to engage in an unfair labor practice strike. Maass asked Reinders if he could talk to him about the safety matter that he raised at the Mirro jobsite. It was agreed that they would proceed to the conference room at the Respondent’s facility. In attendance were Maass, Reinders, Walsh, and Van Dyke. Walsh was the primary spokesperson at the meeting and he informed Reinders that after an investiga- tion it was determined because he did not follow proper lock and tag-out procedures at the Mirro jobsite on May 3, he put people at risk and in jeopardy for serious injury. In response to a question asked by Maass, Reinders admitted that he did not follow proper lock and tag-out procedures. Accordingly, he was given a written warning for his actions (GC Exh. 48). By letter dated May 14, Young confirmed Reinders earlier oral notification to Maass that Reinders is on strike against the Em- ployer (GC Exh. 30). In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board announced the following causation test in all cases alleging violations of Section 8(a)(3) or violations of Section 8(a)(1) turning on employer motivation. First, the General Counsel must make a prima facie showing sufficient to support the in- ference that protected conduct was a “motivating factor” in the employer decision. On such a showing, the burden shifts to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. The United States Supreme Court approved and adopted the Board’s Wright Line test in NLRB v. Transportation Management Corp., 462 U.S. 393, 399–403 (1993). In Manno Electric, 321 NLRB 278 fn. 12 (1996), the Board restated the test as follows. The General Counsel has the burden to persuade that antiunion sentiment was a substantial or motivating factor in the chal- lenged employer decision. The burden of persuasion then shifts to the employer to prove its affirmative defense that it would have taken the same action even if the employee had not en- gaged in protected activity. For the following reasons, I find that the General Counsel has made a strong showing that the Respondent was motivated by protected concerted activity or antiunion considerations in issuing a written warning to Reinders. First, I note that on April 24, the Union informed Respon- dent in writing that Reinders was a union salt and would be assisting in an organizing drive of their employees. Second, the above-noted letter was posted on or about April 28 at the Re- spondent’s facility near the mail slots with Reinder’s name whited out. Third, after April 28, Reinders started wearing his union hat and passed out Young’s business cards to employees when he was talking to them about the Union. Additionally, he placed posters throughout the shop about organizing a union and posted an old copy of a union authorization card that Maass had previously signed. That authorization card was taken down shortly after it was posted. The Respondent asserts that it would have taken the same ac- tion against Reinders even in the absence of his union activities. I am inclined to agree with this position for the following rea- sons. First, I note that Nass was the individual who initially recommended that the written warning be given to Reinders. Indeed, on May 7 just after he returned home from work and on his own volition, he memorialized the events of the last several days involving Reinders and recommended that he be given a written warning (R. Exh. 1). Nass concluded that Reinders made no attempt to remedy an unsafe working condition when he left the Mirro jobsite on May 3, and potentially put anyone who may have come into contact with this situation over the weekend at risk. I find in agreement with Respondent that leaving the jobsite on May 3 in the condition that Nass found it on the following Monday could have seriously injured an inno- cent bystander if he or she had energized the breaker. I particu- larly note that Reinders testified that he had the highest regard for Nass as a supervisor who treated people fairly and that Nass did not interrogate him about his union activities. Moreover, Reinders signed the written warning on May 14. For all of the above reasons, I find that the Respondent would have given Reinders the written warning even in the absence of his union activities. Therefore, I recommend that paragraph 9 of the complaint be dismissed. See Monongahela Power Co., 324 NLRB 214 (1997). 2. Refusal to consider or hire for employment The General Counsel alleges in paragraphs 5 and 6 of the complaint in Case 30–CA–15828 that the Respondent failed and refused to consider for employment and/or hire Roovers, Wiegel, and Troy Toomer because of their membership in and activities in support of the Union. The Board in FES, 331 NLRB 9 (2000), determined that the General Counsel must show in a discriminatory refusal-to-hire violation the following at the hearing on the merits. First, that the respondent was hiring, or had concrete plans to hire. Sec- ond, that the applicants had experience or training relevant to the announced or generally known requirements of the posi- tions for hire, or in the alternative, that the employer has not adhered uniformly to such requirements, or that the require- ments were themselves pretextual or were applied as a pretext for discrimination. Third, that antiunion animus contributed to the decision not to hire the applicants. If the respondent asserts that the applicants were not qualified for the positions it was filling, it is the respondent’s burden to show, at the hearing on the merits, that they did not possess the specific qualifications the position required or that others (who were hired) had supe- rior qualifications, and that it would not have hired them for that reason even in the absence of their union support or activ- ity. To establish a discriminatory refusal-to-consider violation, pursuant to FES, supra, the General Counsel bears the burden SUBURBAN ELECTRICAL ENGINEERS/CONTRACTORS 15 of showing the following at the hearing on the merits: (1) that the respondent excluded applicants from a hiring process; and (2) that antiunion animus contributed to the decision not to consider the applicants for employment. Once this is estab- lished, the burden will shift to the respondent to show that it would not have considered the applicants even in the absence of their union activity or affiliation.13 There is no dispute that the Respondent was hiring as it made offers of employment to three individuals for journeyman elec- trician positions and one individual for a security service tech- nician position in September and October 2001. With respect to the qualifications and experience of union applicants Roo- vers, Wiegel, and Toomer, I have reviewed their employment applications and find that they possess the training and experi- ence necessary to meet the qualifications for the positions filled by the Respondent.14 In defending its decision to hire four other individuals for the three vacant journeyman electrician positions and the one secu- rity service technician position, Respondent argues that the individuals that they hired possessed superior qualifications when compared to the union applicants. Additionally, Respon- dent asserts that Roovers was rude during the application proc- ess and was out of the trade for approximately 2 years while serving as the union business manager. In regard to Wiegel, Respondent contends that it offered him a position in April 2001, but he turned it down. Therefore, in addition to also being out of the trade for approximately 1 year when working full time for the Union, the fact that Wiegel previously turned down a job offer for a journeyman electrician position were the reasons that he was not hired for any open positions in Septem- ber or October 2001. Indeed, the Respondent opines that this establishes that it did not harbor any union animus against Wiegel as well as other union applicants. Thus, even in the absence of any union activities, Respondent asserts that it would have hired the same four individuals that were employed in September and October 2001. In regard to whether union animus contributed to the deci- sion not to consider or hire the union applicants, I find that the General Counsel has established this element for the following reasons. First, I note that on April 24, the Union informed Respon- dent in writing that Reinders was a union salt and would be assisting in an organizing drive of their employees. Second, the above-noted letter was posted on or about April 28 at the Re- 13 To establish a discriminatory refusal to consider and hire case, the General Counsel is required to prove the allocation of burdens set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). 14 Roovers has over 14 years’ experience as an electrician including 5 years as a foreman and general foreman. He is a 4-year college graduate and holds a State journeyman electrician certification (GC Exhs. 37 and 38). Wiegel has over 14 years’ experience as an electri- cian including serving as a foreman for a number of years. He attended and graduated from Fox Valley Technical College and is certified as a journeyman electrician (GC Exhs. 39, 45, and 46). Toomer has ap- proximately 3 years’ experience the most recent as a lead electrician installing fire alarms and security systems. He is a graduate of a 2-year technical college (GC Exh. 47). spondent’s facility near the mail slots with Reinder’s name whited out. Third, after April 28, Reinders started wearing his union hat and passed out Young’s business cards to employees when he was talking to them about the Union. Additionally, he placed posters throughout the shop about organizing a union and posted an old copy of a union authorization card that Maass had previously signed. That authorization card was taken down shortly after it was posted. Fourth, the Respondent was well aware that Roovers, Wiegel, and Toomer were affiliated with the Union and had filed numerous employment applications over a 6-month period seeking journeyman electrician posi- tions. In order to determine whether the individuals hired by Re- spondent had superior qualifications to the union applicants, a comparison of their training and experience must be under- taken. The first individual hired for a journeyman electrician posi- tion on September 11, was Robert Franck. He had previously been offered a job by Respondent in September 2000, after being referred by an incumbent employee, but turned it down at that time because of family issues. In August 2001, Franck contacted Maass to inquire whether there were any positions available. He filed a formal employment application on August 29. It shows that he has approximately 10 years’ experience as an electrician including a number of years as a foreman at his prior employer (GC Exh. 53). Franck holds a master electrician certification that requires additional experience over and above a journeyman certification. Respondent hired Franck as a foreman primarily because he was able to bring six accounts along with him in specialized waste treatment work, an area that Respondent was not previously active in, and that would generate in excess of $100,000 worth of business. In comparing the qualifications of Franck to those of the un- ion applicants, I conclude that Franck’s experience and training was equal to or superior to that of the union applicants. More- over, the fact that Franck was able to bring six accounts to the Respondent convinces me that he would have been hired even in the absence of the activities on behalf of the Union of the three union applicants. This was a legitimate business decision to increase the exposure and revenue of the Respondent in per- forming this additional type of work. Therefore, I find that the Respondent did not violate Section 8(a)(1) and (3) of the Act when it hired Franck rather than the union applicants. The second person hired on September 26, was Jason Puls who filed an employment application on September 18 (GC Exh. 52). Maass interviewed Puls, who was on layoff from another employer, and learned that he was the brother of Jeff Puls who Maass knew. Before his layoff, Puls was working at a school job in Milwaukee and was employed by a union con- tractor. Prior to that job he worked for Elmstar Electric, a un- ion contractor and competitor of the Respondent. Maass be- lieved that he would make a good fit and he was hired for the journeyman electrician position. The application shows that he was an apprentice electrician for 5 years before attaining the journeyman classification in 1998. Thus, at the time he was hired, he had been a journeyman electrician for 3 years. In comparing the qualifications of Puls with those of the three union applicants, it is apparent that the training and experience DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 of Roovers and Wiegel is far superior to that of Puls. Both Roovers and Wiegel had 14 years’ of experience in comparison to Puls’ 8 years of total experience. Moreover, Roovers and Wiegel both served as foreman during their careers, unlike Puls, and Roovers supervised Puls when they worked together at the same employer. I conclude that the experience of both Roovers and Wiegel is broader when compared to Puls. When comparing the qualifications of Toomer to that of Puls, they appear similar. Based on the forgoing, I find that Roovers’ and Wiegel’s qualifications were superior to that of Puls. The third person hired on October 3, was Eric Leiby who filed an employment application on September 24 (GC Exh. 51). Leiby was hired based on the strong recommendation of an incumbent salesman who vouched for his work ethic and had referred several other workers to Maass that proved to be good employees. Maass also checked with an incumbent su- pervisor that had worked with Leiby at another employer who reported that he had a good work record. The application, however, lists no references and contains no description of his duties. It reflects that Leiby listed 5 years of experience as an electrician. I conclude, as discussed above, that the applica- tions of union applicants Roovers, Wiegel, and Toomer were superior to that of Leiby. I also note that Leiby was terminated on October 4, 1 day after he was hired and no effort was made to find a replacement, despite the fact that the Respondent had recently requested the job to be posted on September 25 (R. Exh. 10).15 The last individual hired on October 23, was Marty Reitz who filed an employment application on October 10 (GC Exh. 49). He was hired for the security service technician position.16 15 While the record reflects that both Puls and Leiby were union members, I reject any argument proffered by Respondent that this shows that it did not harbor any union animus and privileged its refusal to hire Roovers and Wiegel. In this regard, there is no evidence that Maass knew that Leiby was a union member and the testimony of Maass indicates that Leiby was primarily hired based on the recom- mendation of two incumbent employees. Pul’s was hired in part, be- cause Maass knew his brother, he had worked for one of Respondent’s fiercest competitors, and he had recent experience working on a school project. I note that there is a vast difference between an applicant who is a union member and lists union contractors as past employers when compared with an applicant that states clearly that he is a voluntary union organizer. See Fluor Daniel, Inc., 333 NLRB 427 (2001) (An employer’s failure to discriminate against all applicants in a class is not a defense). 16 Technical Manager Mark Christensen, Respondent’s manager for commercial security projects, was given complete authority to hire for the security service technician position. He was seeking an individual to be well versed in the installation of camera, security access systems, fire systems and an ability to program these systems with laptop capa- bility. He interviewed two individuals for the position and reviewed Toomer’s application. The first person interviewed, Richard Sturm, had an extensive background in security systems but after calling his prior employer and learning he had a customer relations problem, no job offer was made. Reitz, who was recommended by an incumbent employee, had two interviews with Christensen before he was ulti- mately hired. In comparison to Toomer’s application that showed limited background in the security industry and no experience in pro- gramming camera, security, or card access systems, Reitz possessed The application shows that he had approximately 6 years ex- perience as an electrician with an emphasis for the last 2 years as a security installer of fire and security systems in commer- cial and residential buildings. I note that his employment ap- plication specifically indicated that he was applying for a secu- rity installer position. Of the three union applicants, only Wiegel indicated that he was applying for a security service technician position. In comparing the qualifications of the three union applicants to that of Reitz, while it is apparent that they have more overall experience as electricians, Reitz has concentrated his experience in the security field. I conclude that since the job description for the security service technician (GC Exh. 62) places an emphasis on experience and familiarity with security systems and the ability to supervise and train coworkers in those areas, the experience exhibited by Reitz as a lead installer of fire and security systems in his prior position establishes superior qualifications to those of the union appli- cants including Wiegel and Toomer. Under these circumstances, I find that the Respondent would have hired Reitz for the security service technician position even in the absence of the union affiliation of Roovers, Wiegel, and Toomer. Therefore, I find that the Respondent did not violate Section 8(a)(1) and (3) of the Act when it hired Reitz for this position. The Respondent has proffered two reasons why it did not hire Roovers for any of the available journeyman electrician positions. First, it asserts that Van Dyke informed Maass that he was rude during the application process. For example, Roo- vers often asked questions that were previously answered and often interrupted the human resource personnel when they tried to answer. In regard to the above allegation, Roovers credibly testified that during the period of time between April and September 2001, when he made monthly applications and appeared in the offices of Respondent, no one ever informed him that he was acting in a rude or unprofessional manner. Likewise, during this period of time, the Respondent did not put anything in writing about Roovers behavior as it did on March 20, 2002, for incidents that took place close in time to the date of the letter (GC Exh. 36). Van Dyke testified that on June 28, while Roo- vers was filling out an application in the conference room, he raised his voice and came across very harsh. She admitted, however, that on numerous other occasions when he was in the office filling out employment applications he was not rude or overpowering. She also acknowledged that at no time did she ever inform Roovers that he was rude or treated her in a disre- spectful manner while he was in their office filing employment applications. The second reason advanced for not hiring Roovers con- cerned the lack of job duties set forth in his employment appli- cation for the last 2 years that he served as business manager of the Union. Roovers credibly testified that while he is no longer regularly working in the field, he still performs electrical work extensive experience in these areas. Additionally, Christensen was familiar with Reitz’ prior employer, a competitor in the security indus- try, but did not recognize any of Toomer’s former employers as leaders in the commercial security industry. SUBURBAN ELECTRICAL ENGINEERS/CONTRACTORS 17 and keeps his skills active. In this regard, he has worked on a Salvation Army and police project as a volunteer and completes electrical work in his home and for family members. Indeed, if the Respondent had offered Roovers an interview or contacted him by telephone to explain his duties during this period as it had done for other applicants, they would have been informed that he remained active in the field during this period and re- tained a current journeyman electrician certification. I note, that the job application submitted by Leiby contained no job duties listed therein, yet he was still hired by the Respondent. Based on the forgoing, I conclude that the above reasons as- serted by Maass are pretextual to mask the true reasons why Roovers was not hired for one of the two journeyman electri- cian positions that were available in September and October 2001.17 The inescapable conclusion is that Respondent did not hire Roovers because of his union activities. With respect to the Respondent’s reasons for not hiring Wiegel due to his prior refusal of a job offer, I do not place much credence in this reason.18 First, as noted earlier, when Wiegel turned the position down because of the short notice from the Respondent and conflicts with day-care responsibili- ties for his then 3-year old daughter, the Respondent did not fill the position. Second, Maass conceded on cross-examination that the Respondent has hired several individuals including Franck and Gerald Gudreau despite their previously turning down a job offer. Third, I conclude that the Respondent offered the position to Wiegel for two reasons. It knew that the posi- tion was for an out of town assignment in Alabama and even if Wiegel accepted the position he would not be able to advocate the Union to employees within the jurisdictional boundaries of the Union. Respondent also calculated that if Wiegel was made a job offer, it would show that the Employer had no objection to hiring union organizers especially a business agent of the Union. It is obvious to me when comparing the qualifications of Wiegel to the two individuals that Respondent hired for journeyman electrician positions other then Franck, that the qualifications of Wiegel are far superior. The second reason advanced by Respondent for not hiring Wiegel concerned his absence from the trade during the time he had been a full-time union business agent. In regard to this reason, I note that when the Respondent offered the full-time journeyman electrician position to Wiegel on April 13, it did not express any concerns that he had been away from the trade while employed as a un- ion business agent. Second, if the Respondent had contacted Wiegel or granted him an interview for the September and Oc- tober openings, they would have learned that during the time of his employment as a business agent he has regularly performed electrical work for charitable organizations and teaches classes 17 I note that Maass rehired employee Steve Van Camp after he was terminated for anger management problems and rehired employee Tim Seidl after he was terminated for inappropriate involvement with a customer’s employee. Thus, the issue of alleged rudeness as a reason for Respondent’s refusal to consider or hire Roovers is a red herring. 18 In the telephone conversation that Wiegel and Van Dyke had on April 16 in response to Wiegel’s question whether turning down the Alabama job would hurt his chances for a position at Respondent, Van Dyke did not state that this would hurt future consideration for any other job opportunities (GC Exh. 43, p. 6). on grounding techniques in the Union’s apprenticeship pro- gram. Thus, it is apparent that Wiegel has retained active skills as a journeyman electrician. Based on the forgoing, and particularly noting Wiegel’s su- perior qualifications in comparison with two of the three jour- neyman electricians hired by Respondent, I find that but for his activities on behalf of the Union, he would have been hired. The General Counsel has also alleged in the complaint that Respondent refused to consider the applications of Roovers, Wiegel, and Toomers for the positions that were available in September and October 2001. With respect to the positions other than the one advertised on July 17, the evidence shows that the applications of Roovers, Wiegel, and Toomer were forwarded to Maass and Christensen when those positions were open and were considered by them during the hiring process. While neither of the union applicants was hired for the vacant positions, their applications were not excluded from the process because of their union affiliation. Rather, as discussed above, Roovers and Wiegel were not hired because of their union ac- tivities. I find that Christensen considered Toomer for the posi- tion of the security service technician, however, his experience in comparison to the two other individuals deemed qualified was not as strong or well suited for the position. With respect to the journeyman electrician position ulti- mately filled by Franck on August 31, I note that the Respon- dent sought to hire someone for this position on July 17, a pe- riod of time before Franck initiated a telephone call to Maass to inquire about available openings and prior to filing his applica- tion on August 29 (R. Exh. 8). At the time of the job opening, Respondent searched its repository of applications and inter- viewed two individuals other than Roovers and Wiegel, despite having their current applications on file. When comparing the applications of Arnoldi and Horn, who were interviewed on July 23 and 25 respectively, to those of Roovers and Wiegel, I note that the union applicants possessed superior qualifications. It is apparent to me that Roovers and Wiegel were excluded from the process and did not receive consideration for this posi- tion because of their union affiliation. It is most interesting that Maass offered the position to Horn who turned it down, yet he did not consider or interview Roovers or Wiegel for the posi- tion. All of this took place before Franck inquired about any job openings and filed his application on August 29. In agreement with the General Counsel, and based on the above discussion, I find that the Respondent refused to consider Roovers and Wiegel for the advertised July 17 position because of their union affiliation.19 Therefore, I conclude that the Re- 19 A further example that Roovers and Wiegel were excluded from the hiring process can be found when Maass refused to consider the July 17 letter of Reinders who recommended Roovers and Wiegel for employment under the Employee Referral Policy (GC Exh. 66). The policy was implemented to facilitate the recruitment process by encour- aging current employees to refer qualified candidates for employment and provided the employees a referral bonus if a prospective candidate is hired (R. Exh. 11). Maass testified that he received Reinders’ letter but did not contact Reinders as he was on strike and could not be lo- cated. This reason does not withstand scrutiny for the following rea- sons. First, Reinders was previously contacted and recalled from layoff on April 9. Second, Reinders’ brother was an employee of Respondent DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18 spondent violated Section 8(a)(1) and (3) of the Act for its re- fusal to consider them. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. and could have been questioned to learn the whereabouts of Reinders. Third, Reinders announced that he was going on strike just 2 months before the letter was written and employee records would have revealed his last known address and telephone number. In other employee hires, referred by incumbent employees, Maass regularly talked to these individuals and fully considered their input. Here, it is apparent that Maass made no effort to contact Reinders to discuss his reasons for referring Roovers and Wiegel for employment at Respondent. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act when it’s project manager, Sam Schultz, threatened its employees with unspecified adverse consequences because of their union activi- ties. 4. Respondent violated Section 8(a)(1) and (3) of the Act when it refused to consider for employment and/or hire Terry Roovers and Corey Wiegel because of their union affiliation. REMEDY The remedy in this case should include a cease-and-desist order, the posting of an appropriate notice, the offering of posi- tions to Terry Roovers and Corey Wiegel who were unlawfully not considered or hired because of their union affiliation and a make-whole remedy for lost wages and benefits.