1. In Wright Electric v. NLRB (IBEW LU 292), 200 F.3d 1162, 163 LRRM (BNA) 2353 (8th Cir. 2000), the Court of Appeals for the Eight Circuit upheld the Board’s ruling that an employer who seeks to obtain union authorization cards through discovery in a state court anti-salting lawsuit commits an unfair labor practice in violation of the National Labor Relations Act.  The Board can enjoin such requests, the court noted, in accordance with the Supreme Court’s statements, in Bill Johnson’s Restaurants, 461 U.S. 731, 738 n. 5 (1983), that the Board has the authority to enjoin matters filed in state court when they have an objective that is illegal under federal law.

2. In Starcon, Inc. v. NLRB, 176 F.3d 948, 161 LRRM (BNA) 2233 (7th Cir. 1999), the Court of Appeals for the Seventh Circuit disagreed with a ruling of the Sixth Circuit in NLRB v. Fluor Daniel, 161 F.3d 953, 159 LRRM (BNA) 2794 (6th Cir. 1998).  In Fluor Daniel, the Sixth Circuit ruled both that an employer does not violate the Act: (1) when it refuses to consider an applicant for hire (as opposed to refusing to actually hire the employee); and (2) that, in order to prove the employer has discriminatorily refused to hire an employee, the Board must prove that the applicant in question was qualified for an available job.  The Court in Starcon did not address the first issue, presumably because it found a refusal to hire violation.  The Court rejected the Sixth Circuit's job matching requirements, however, by stating that, once the General Counsel has proven that an applicant was denied employment because of anti-union animus, the burden is on the employer to show, if it can, that it would not have hired the applicant in any event because the applicant was unqualified. 

After the decision in Starcon was issued, the Board requested legal briefs from unions and employers and heard oral argument in a salting case pending before it: FES (A Division of Thermopower), JD (York, PA) 162-98 (Amchan, Sept. 29, 1998) (5-CA-26276).  In their briefs and at oral argument, both sides discussed what distinctions, if any, should be made between the elements of, and remedies for, refusal to consider and refusal to hire violations.  The Board is expected to issue a decision in FES that will clarify its position, and will give unions a clearer idea of what to expect when charging and litigating violations of the Act that allege discrimination in the hiring process.  The Board’s decision in FES is expected at any time.  When it is issued, a special supplement to this Report, which will discuss the decision and its impact on IBEW organizing efforts, will be made available.
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3. In  Ferguson Electric Co. (IBEW LU 241), 330 NLRB No. 75 (Jan. 19, 2000), the Board ruled that the compensation a union organizer receives from a union can be treated like any other wages from a second job when a back pay award is calculated.  Thus, when a paid union organizer is discriminatorily discharged, or refused hire, union wages will not be treated as Interim earnings and deducted from the back pay award.  In reaching this decision, the Board essentially adopted the General Counsel’s policy, set forth in the Advice Memorandum in City Electric, Inc., 21-CA-30416 (July 6, 1995), and discussed in previous editions of this Report.

The Board’s ruling in Ferguson Electric turns on several basic NLRB principles. When an employee loses a job because of discrimination, the employee is under an obligation to mitigate (lessen) any lost wages by seeking other employment while his or her case is being litigated. When the back pay award is eventually calculated, the money the discriminatee in fact earned from other employment is deducted from the back pay award as Interim earnings.  If, however, the discriminatee held a second job before the backpay period began (i.e., before the discriminatory discharge or refusal to hire), and continued to hold that secondary employment after the backpay period began, those wages are not treated as interim earnings and are not deducted from the back pay amount.  To fail to apply this rule to a paid union organizer, the Board noted, would be to completely ignore the Supreme Court’s ruling in NLRB v. Town & Country, 516 U.S. 85, 133 L. Ed. 2d 371 (1995), as well as the Court's specific statements in that case that being paid for organizing on non-work time is akin to Moonlighting, i.e., secondary employment.

As a separate but related issue, it is important to remember that all discriminatees do have a duty to attempt to mitigate back pay damages by seeking other employment during the back pay period. If any employer can prove there has been no good faith effort to mitigate, the employer can escape all back pay liability and the discriminatee can end up with nothing.  The key to proving a good faith effort is keeping a written record of the dates and places the discriminatee applied for work. 

 4. In Zurn/N.E.P.C.O. (International Brotherhood of Boilermakers), 329 NLRB No. 52 (Sept. 30, 1999), the Board upheld an ALJ’s ruling that the company’s priority hiring policy had not been unlawfully applied to union applicants.  The Board stressed in its decision, however, that it was not ruling on the question whether the policy itself was unlawful, because the General Counsel had not made that argument.  This case underscores the importance of arguing both that the policy is itself unlawful and that it has been unlawfully applied.  This case also underscores the importance of insisting that the General Counsel make these arguments.  In Zurn/N.E.P.C.O., the Boilermaker’s Union did argue that the policy was itself unlawful, but the ALJ and the Board both explained that the General Counsel’s theory of the case is controlling, and that a charging party (here, the Union) cannot expand or change the General Counsel’s theory. 

5. In  Pan American Electric (IBEW LU 446), 328 NLRB No. 7 (April 16, 1999), the Board rejected an employer’s claim that applicants were not bona fide because they were paid union organizers.  In so ruling, the Board agreed with ALJ Lawrence Cullen that the Supreme Court’s decision, in NLRB v. Town & Country Electric, 516 U.S. 85 (1995), compels the conclusion that employees who are union organizers and who intend to act as salts are protected as employees under the Act.  The Board and the ALJ also rejected the employer’s argument that various IBEW organizational and salting manuals constituted evidence of conspiracy in restraint of trade.  As the Board stated, these show only the Union’s desire to organize nonunion employers and to target what it perceives as unfair labor practices and wage scales and employment practices that undermine its standards. Slip op. at 2 n.10.

6. In Zeppelin Electric Co. (IBEW LU 25), 328 NLRB No. 68 (May 20, 1999), the NLRB reversed ALJ Raymond Green’s decision that an employer’s discharge of, and threat to kill, a union organizer did not violate the Act.  Judge Green had agreed that the employer had made the threat, but found that the threat was not inspired by the organizer’s union activities, but by the employer’s reasonable belief that the organizer was trying to sabotage the job.  The only evidence of such sabotage was the employee’s status as a salt.  The Board flatly rejected Judge Green’s assumptions that, because the employee was a salt, he was merely looking for a way to get fired.  Instead, the Board ruled that any finding of an attempt to sabotage has to be based on actual evidence, and not merely the Judges personal opinion of, and assumptions about, salting. 

 7. In Richard Mellow Electrical Contractors Corp. (IBEW LU 81), 327 NLRB No. 171 (March 31, 1999), an employer refused to consider for hire fourteen union applicants.  The employer argued that the thirteen individuals it did hire all had either worked for the company previously, been referred to the employer personally, or had expressed an interest in working for the employer before the union applicants applied.  The ALJ ruled that the employer had acted in accordance with a legitimate, nondiscriminatory, priority hiring  policy.   The Board reversed, however, finding that the employer had failed to prove that such a priority hiring policy even existed.  The Board also noted that the employer’s witnesses offered shifting explanations of the company’s failure to hire the union applicants, and that such shifting explanations are evidence of anti-union motivation:  the employer testified that he only hired people who had worked for him before; when that proved to be untrue, a second witness testified that the employer had told her he also had hired some people he knew of personally, some people who were recommended to him, and some who had always wanted to work for him.  The Board specifically stated that the shifting nature of the [employer’s] explanation for its failure to consider the 14 applicants is further evidence of  unlawful motivation.  Slip op. at 4 n.18.

8. Questions concerning union preference, in the context of job applications, are inherently coercive.  Pan American Electric (IBEW LU 446), 328 NLRB No. 7, slip op. at 1 (April 16, 1999) (citing Gilberton Coal Co., 291 NLRB 344, 348 (1988), enf’d without op., 888 F.2d 1381, 134 LRRM (BNA) 2568 (3d Cir. 1989).  In Pan American, the employer’s job superintendent asked organizer applicants whether they were union men during employment interviews.  In accordance with the policy stated above, the Board found the question violated Section 8(a)(1) of the Act.

9. A contractor may not bar a union organizer from contacting its employees while they are on property the contractor does not own, when the employees are on non-working time, in non-working areas.  In Ambrose Electric (IBEW LU 724), 330 NLRB No. 23 (November 22, 1999), the Board found that a contractor violated Section 8(a)(1) of the Act when it sent a letter to a union organizer telling him that he should limit his organizing efforts to times other than working hours and locations other than the job sites where the employer’s employees are working.  Slip op. at 1.  The Board found the restriction overly broad, because it encompassed break times (non-work times) and break areas (non-work areas) on any properties the employer had jobs, including those it did not own.
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10. In Hudson Valley Electrical Construction & Maintenance, Inc. (IBEW LU 363), JD (NY) 132-99, 1999 NLRB LEXIS 713 (Nations, Oct. 5, 1999), the ALJ found that the employer successfully met its burden under Wright Line, and proved that it would not have hired a union organizer in any event, because the organizer had falsely reported to a state agency that the employer had committed electrical code violations at the jobsite.
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A distinction has developed in the case law between situations where the Board rules that an employer has refused to hire an applicant for employment, and cases where the Board finds that the employer has refused to consider the applicant.  There is no clearly explainable logic to this distinction, but as the cases discussed in this section demonstrate, serious problems can arise in a refusal to consider case.  Some courts of appeals are, for example, openly hostile to the refusal to consider theory.  And, even at the Board level, there are problems with remedies if the Board finds only that the employer has refused to consider an application. 

All organizers should, therefore, make sure that the charge and Complaint allege refusal to hire, even if it also alleges refusal to consider applicants for employment.

Because of the confusion in this area, in the summer of 1999, the Board requested legal briefs from unions and employers and heard oral argument in a salting case pending before it: FES (A Division of Thermopower), JD (York, PA) 162-98 (Amchan, Sept. 29, 1998) (5-CA-26276).  In their briefs and at oral argument, both sides discussed what distinctions, if any, should be made between the elements of, and remedies for, refusal to consider and refusal to hire violations.  The Board is expected to issue a decision in FES that will clarify its position, and will give unions a clearer idea of what to expect when charging and litigating violations of the Act that allege discrimination in the hiring process.  The Board’s decision in FES is expected at any time. When it is issued, a special supplement to this report, which will discuss the decision and its impact on IBEW organizing efforts, will be made available.

 1. The Boilermakers Union and the NLRB asked the Court of Appeals for the Sixth Circuit (covering Michigan, Ohio, Kentucky, and Tennessee) to reconsider the panel’s decision in NLRB v. Fluor Daniel, 102 F.3d 818 (6th Cir. 1996), a case we first reported three years ago in the 1997 edition.  In that decision, the court held that an employer does not violate the Act when it fails to consider an applicant for employment, and that, to prove a violation for a refusal to hire, the NLRB General Counsel (GC) must show, among other things, that the applicant was qualified for a job for which the employer continued to seek applicants after it rejected the alleged discriminatee. In response to the Union’s and the NLRB’s petitions for reconsideration, the panel issued an Amended Opinion,  NLRB v. Fluor Daniel, 161 F.3d 953 (6th Cir. 1998).  In its revised decision, the court continued to question whether a refusal to consider violation could ever be found, but did not conclusively answer the question.  More importantly, however, the court ruled that the GC had not proven its refusal to hire charge in this case, because it had not matched union applicants to specific jobs for which the employer was hiring.  The case is currently on remand, and may be appealed further.  Until the meaning of this decision is made clearer, organizers should take the position in the Sixth Circuit (as in all other Circuits), that the employer has the burden of proving the applicant is unqualified; that there can be more violations than available jobs; and that apportionment of back pay and orders to hire are matters to be decided at the compliance stage.   Shortly after the Sixth Circuit issued its revised opinion in Fluor Daniel, it affirmed, in an IBEW case, that specific decisions on the precise application of these remedies are properly deferred to the compliance stage, in Norman King Electric v. NLRB, 177 F.3d 430, 161 LRRM (BNA) 2435 (6th Cir. 1999).

2. In Starcon, Inc. v. NLRB, 176 F.3d 948, 161 LRRM (BNA) 2233 (7th Cir. 1999), the Court of Appeals for the Seventh Circuit disagreed with at least one of the Sixth Circuit’s rulings in Fluor Daniel.  As discussed above, the court ruled in Fluor Daniel, that an employer does not violate the Act: (1) when it refuses to consider an applicant for hire (as opposed to refusing to actually hire the employee); and (2) that, in order to prove the employer has discriminatorily refused to hire an employee, the Board must prove that the applicant in question was qualified for an available job.  The Court in Starcon did not address the first issue, presumably because it found a refusal to hire violation.  The Seventh Circuit rejected the Sixth Circuit’s job matching requirements, however, by stating that, once the General Counsel has proven that an applicant was denied employment because of anti-union animus, the burden is on the employer to show, if it can, that it would not have hired the applicant in any event because the applicant was unqualified. 

 3. In the first salting case decided by the Sixth Circuit after the panel issued its revised opinion in Fluor Daniel, another panel affirmed, in Norman King Electric, 177 F.3d 430 (6th Cir.), that the Board’s bifurcated (i.e., two-stage) approach to determining specific remedies is appropriate.  Here the employer had argued that the court should refuse enforcement of the Board’s order that the employer hire six applicants (for six openings), because the applicants would have been terminated in any event at the end of the project in question, which was now long over.  The court rejected this argument, however, relying on the Board’s decisions in Dean General Contractors, 285 NLRB 573 (1987) (that there is a presumption in the construction industry that employment would have continued beyond the end of a given project, which the employer may overcome (disprove) at the compliance stage of the proceedings); and Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 900-01, 81 L. Ed. 2d 732 (1984) (recognizing that a bifurcated procedure is an appropriate way to customize a remedy to cure unfair labor practices).

4. In the underlying decision in M.J. Mechanical Services, Inc. (SMW LU 46), 325 NLRB 1098 (1998), ALJ Arthur Amchan found that the employer had refused to consider union applicants for hire, and had refused to hire those same applicants.  In its decision, the Board amended Judge Amchan’s ruling, finding only a refusal to consider.  The Board noted that, because it found a refusal to consider, it did not have to go further and rule on the refusal to hire question. The Board then tailored the remedy to that generally applied in refusal to consider cases.  This permits the employer essentially to relitigate its reasons for not hiring the applicants (i.e., its Wright Line defense) at the compliance stage, and defeat a damages award and order to hire by showing that the persons it did hire were more qualified than the union applicants.

5. In R.G. Burns Electric, Inc., 326 NLRB No. 41 (August 27, 1998), the Board amended an ALJ’s finding that the employer had refused to consider applicants for employment, finding instead that the employer refused to hire the applicants, noting that the complaint alleged refusal to hire, and that the case was litigated on this theory only.
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6. The burden of proof in an unlawful refusal-to-hire case is the same as that in an unlawful firing case.  As stated in Fluor Daniel, Inc., 311 NLRB 498, 498 (1993), enf’d in part, 161 F.3d 953, 159 LRRM (BNA) 2794 (6th Cir. 1998), a refusal-to-hire case, the test for cases alleging violations of the Act turning on employer motivation is set forth in Wright Line, 251 NLRB 1083 (1980), enf’d, 662 F.2d 899, 108 LRRM (BNA) 2513 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982):

First, the General Counsel must make a prima facie showing sufficient to support the inference that protected conduct was a motivating factor in the employer’s action.  The burden then shifts to the employer to demonstrate that the same action would have taken place notwithstanding the protected conduct.

 7. In J.E. Merit Constructors, Inc., 302 NLRB 301, 303-304 (1991), the Board stated that, in order to meet its initial responsibility of proof under Wright Line in a refusal to hire case, the General Counsel must demonstrate that:

(1)  [the union members’] applications were filed during hiring stages, 

(2) the Respondent knew of their source,

(3) [the Respondent] harbored union animus, and

(4) [the Respondent] acted on that animus in failing to hire [union applicants].

8. The Board stated, in Big E’s Foodland, 242 NLRB 963, 968 (1979), that :

Essentially, the elements of a discriminatory refusal-to-hire case are the employment application by each alleged discriminatee, the refusal to hire each, a showing that each was or might be expected to be a union supporter or sympathizer, and further showings that the employer knew or suspected such sympathy or support, maintained an animus against it, and refused to hire the applicant because of such animus. 

See also Sunland Construction Co., 311 NLRB 685, 705 (1993);  Hoboken Shipyards, 275 NLRB 1507, 1514 (1985), enf’d without op., 122 LRRM (BNA) 2368 (4th Cir. 1986).

9. See the discussion of the initial and revised decisions of the Court of Appeals for the Sixth Circuit, in NLRB v. Fluor Daniel, Inc., 102 F.3d 818 (6th Cir. 1996) and NLRB v. Fluor Daniel, Inc., 161 F.3d 953 (6th Cir. 1998), in the preceding section.
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10. In Ultrasystems Western Constructors, Inc., 310 NLRB 545, 545 n.2 (1993), enforcement denied, 18 F.3d 251, 145 LRRM (BNA) 2641 (4th Cir. 1994), the Board noted that the listing on an employment application of prior union jobs, of union membership, of pay at union scale, and of membership in a union apprenticeship program, evidences union affiliation on the face of the application.

11. In J & L Enterprises, Inc., 310 NLRB 121, 121 (1993), the Board held that an employer had knowledge of an applicant’s union affiliation.  Specifically, the Board stated:

[The applicant’s] application listed . . . the >Position Applying For’ as >Journeyman Electrician,’ and the >Salary Desired’ as $23.55 . . . and >Former Employers’ as >1960-1989 IBEW.’  This information constituted clear notice to any reviewer of the application that [the applicant] had secured work through the union hiring hall for the preceding 29 years and might be a member of IBEW Local 441.  Contrary to the judge, we find that [another applicant] similarly revealed his IBEW affiliation by listing on his application his participation in the IBEW apprenticeship training program and by requesting the union wage scale.  Moreover, [the applicants] made [their] application with the [employer] in a group of four whose affiliation with IBEW Local 441 was openly acknowledged [by wearing IBEW hats and jackets]. 

12. In Fluor Daniel, Inc., 304 NLRB 970, 970 (1991), enforced, 976 F.2d 744 (11th Cir. 1992), the Board stated:

Here, the Respondent clearly had knowledge that all [the] alleged discriminatees were union affiliated.  As found by the Judge, . . . the applications revealed some indicia of union membership, and all but two of the applications were filed . . . en masse, at the Respondent’s employment office.  None of the discriminatees was offered a position with the Respondent, called in for an interview, or even contacted by the Respondent after submitting an application . . . even though . . . each had at least a few years of experience and many listed credentials which should have at least warranted some type of inquiry by the Respondent. 

13. There is a difference, however, between an applicant for employment who has worked in the past for a union contractor and an applicant for employment who states on his application that he is a voluntary union organizer.  The latter employee is putting the employer on notice that he will try to exercise his federally protected right to organize his fellow employees.  Fluor Daniel, Inc., 311 NLRB 498, 505 (1993), enf’d in part, 161 F.3d 953, 159 LRRM (BNA) 2794 (6th Cir. 1998).

14. In B E & K Construction Co., 321 NLRB 561, 561 n.2 (1996), enforcement denied, 133 F.3d 1372 (11th Cir. 1997), the Board held that an employment application revealing prior participation in a union apprenticeship program was not sufficient to show employer knowledge of an applicant’s union affiliation. 

15. Under the Board’s small plant doctrine, the employer’s knowledge of union activity may be inferred from evidence that the union activities were carried on in such a manner or at such times, that in the normal course of events, the employer would have noticed them.  Coral Gables Convalescent Home, Inc., 234 NLRB 1198, 1199, 1201 n.3 (1978).  In that case, the employer, who had 58 employees (and about 20 on the discriminatee’s shift), was presumed to have had knowledge of the discriminatee’s open union involvement. 
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16.  With regard to motivation, rarely does an employer experienced in labor law litigation provide a smoking gun.  For that reason, circumstantial evidence is sufficient to prove an 8(a)(3) violation.  Turnbull Cone Baking Co. v. NLRB, 778 F.2d 292, 297 (6th Cir. 1985), cert. denied, 476 U.S. 1159 (1986).

17. In Phelps Dodge Corporation v. NLRB, 313 U.S. 177 (1941), the Supreme Court held that employees under the Act include applicants for work as well as actual hires.  The Court stated, [d]iscrimination against union labor in the hiring of men is a dam to self-organization at the source of supply.  The effect of such discrimination is not confined to the actual denial of employment; it inevitably operates against the whole idea of the legitimacy of organization.  Id. at 185.

18. The Board has held that the Act imposes upon each employer the duty to consider each request for employment in a lawful, nondiscriminatory manner.  Shawnee Industries, 140 NLRB 1451, 1452-53 (1963), enforcement denied on other grounds, 333 F.2d 221 (10th Cir. 1969).

19. Initially, we note that a customary prerequisite to an unlawful refusal-to-hire allegation is evidence that the alleged discriminatee has sought work with the respondent.  Actual application is not required, however, where applying would be futile.  Sunland Construction Company, Inc., 311 NLRB 685, 686 (1993).

 20. In Casey Electric, Inc. (IBEW LU 26), 313 NLRB 774, 786, n. 34 (1994), the Board adopted the ALJ’s ruling that A[t]he General Counsel correctly argues that the fact that Respondent eventually hired [the applicants] neither excuses Respondent’s failure to hire them when they originally sought employment nor does it detract from Respondent’s failure to hire other union applicants.

21. A[A] finding of pretext necessarily means that the reasons advance by the employer either did not exist or were not in fact relied upon, thereby leaving intact the inference of wrongful motive established by the General Counsel.  Limestone Apparel, 255 NLRB 722, 722 (1981), enf’d, 705 F.2d 799, 113 LRRM (BNA) 2517 (6th Cir. 1982).  AA pretextual reason, of course, supports an inference of an unlawful one.  Keller Manufacturing Co., 237 NLRB 712, 717 (1978), enf’d in part, 622 F.2d 582, 106 LRRM (BNA) 2546 (7th Cir. 1980).

22. In Madison South Convalescent Center, 260 NLRB 816, 831 (1982), the ALJ drew an inference of an unlawful motive in a discriminatory failure to hire case, when the actions the employer took in the alternative were unexplained and against its own self-interest:

I find it particularly significant that the use of contract labor was against Respondent’s self-interest.  Contract labor was more expensive.  Both [management officials] were allegedly told to hire LPNs and reduce the cost of contract labor.  However, rather than reduce such costs, Respondent increased its use of the more expensive contract labor services.  Respondent would not have acted in this manner unless it had a reason.  Respondent’s failure to explain its reasons leads me to conclude that it had a reason which it desires to conceal Can unlawful and discriminatory one.

23. In McCain Foods, Inc., 236 NLRB 447 (1978), enf’d, 598 F.2d 666, 101 LRRM (BNA) 2328 (1st Cir. 1979), the employer’s anti-union animus was established by showing that management had an interest in the applicants’ backgrounds and a strong desire to operate without a union.

24. AIt is well established that questions concerning union preference, in the context of job application interviews, are inherently coercive and unlawful even when the applicant is hired.  Gilberton Coal Company, 291 NLRB 344, 348 (1988), enf’d without op., 888 F.2d 1381, 134 LRRM (BNA) 2568 (3d Cir. 1989).

 25. In B E & K Construction Co. (IBEW LU 238), 321 NLRB 561, 569 (1996), enforcement denied, 133 F.3d 1372 (11th Cir. 1997), the Board adopted that part of the ALJ’s decision inferring union animus from the employer’s status as a merit shop contractor.  [W]hile it would be unfair to assume that union membership or employment alone would impel the Respondent to violate the law, it would be naive to assume that it would treat with equanimity applicants, who are not just interested in a job, but whose application evinces an overt organizational threat in terms so bold as to be equatable with commitment to undermine the merit shop philosophy.

26. In Edelco, Inc., 321 NLRB 857 (1996), enf’d in part, 132 F.3d 1007, 157 LRRM (BNA) 2046 (4th Cir. 1997), the Board adopted the ALJ>s decision which, among other things, found that union animus could be inferred from the employer’s failure to hire any union applicants on any of its job sites. 

27. In Starcon, Inc., 323 NLRB 977 (1997), enf’d in relevant part, 176 F.3d 948, 161 LRRM (BNA) 2233 (7th Cir. 1999), the Board affirmed an ALJ's finding that a contractor had decided to subcontract work to avoid hiring voluntary union organizers.  Originally, the company had aggressively recruited applicants, but when faced with a union organizing drive, the company switched tactics and subcontracted the work.  The court found that this abrupt about-face, together with direct evidence of anti-union animus, proved that the contractor had decided to subcontract the work merely to avoid hiring voluntary organizers.

28. In Forsyth Electrical Company, Inc. (IBEW LU 342), JD (ATL) 73-97, 1997 NLRB LEXIS 966 (December 3, 1997), an ALJ held that an employer had lawfully refused to consider a business manager for hire during a period when several other local union members were engaged in a work stoppage.  The ALJ, following Sunland Construction Co., 309 NLRB 1224, 1231 (1992), held that an employer can refuse to hire an agent of a striking union during the dispute.

29.  Evidence that an employer concealed its methods and pattern of hiring from applicants supports a finding of unlawful motivation.  Beacon Electric, Inc., JD 115-98, 1998 NLRB LEXIS 461 (Beddow, July 14, 1998) (citing American Press, 280 NLRB 937, 942 (1986), enf’d, 833 F.2d 621, 126 LRRM (BNA) 3131 (6th Cir. 1987)).

 30. In Richard Mellow Electrical Contractors Corp. (IBEW LU 81), 327 NLRB No. 171 (March 31, 1999), the Board noted that the employer’s witnesses offered shifting explanations of the company’s failure to hire union applicants, and that such shifting explanations are evidence of anti-union motivation:  the employer testified that he only hired people who had worked for him before; when that proved to be untrue, a second witness testified that the employer had told her he also had hired some people he knew of personally, some people who were recommended to him, and some who had always wanted to work for him.  The Board specifically stated that the shifting nature of the [employer’s] explanations of its failure to consider the 14 union applicants is further evidence of unlawful motivation.  Slip op. at 4 n.18.
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31. The Board’s view is that an employer cannot defend an unlawful refusal-to-hire charge by asserting that job openings did not exist for all applicants.  Instead, the question of job availability is relevant only with respect to the employer’s back pay obligation.  And final determination of job availability and possible back pay liability will be left to compliance.  See KRI Constructors, Inc., 290 NLRB 802, 812 (1988).  See also Shawnee Industries, 140 NLRB 1451, 1452-53 (1963), enforcement denied on other grounds, 333 F.2d 221 (10th Cir. 1969); Apex Ventilating Co., 186 NLRB 534, 534 n.1 (1970) (A[f]inal determination of job availability and possible backpay liability will be properly left to compliance); and H.B. Zachry Co., 319 NLRB 967 (1995), enforcement denied, 127 F.3d 1300 (11th Cir. 1997).

32. See  the discussion of the initial and revised decisions of the Court of Appeals for the Sixth Circuit, in NLRB v. Fluor Daniel, Inc., 102 F.3d 818 (6th Cir. 1996) and  NLRB v. Fluor Daniel, Inc., 161 F.3d 953 (6th Cir. 1998), in the section on Refusal to Hire, above.  Despite the initial decision of the Sixth Circuit, the Board has continued to hold that an employer violates Section 8(a)(3) by refusing to consider applicants because of their union activity or support.  The 3E Co., 322 NLRB 1058 (1997) (failure to consider 37 applicants).

33. In NLRB v. Webcor Packaging Inc., 118 F.3d 1115, 155 LRRM (BNA) 2791 (6th Cir. 1997), cert. denied, 522 U.S. 1108 (1998), the Sixth Circuit hinted that a Supreme Court decision may have overruled NLRB v. Fluor Daniel, Inc., 102 F.3d 818, 154 LRRM (BNA) 2001 (6th Cir. 1996).  The Supreme Court in Holly Farms v. NLRB, 517 U.S. 392, 152 LRRM (BNA) 2001 (1996), reaffirmed that courts must defer to the Board's interpretation of the Act when its interpretation is reasonable.  The Sixth Circuit in Webcor suggested that the Fluor Daniel court might not have granted the Board's interpretation of Section 8(a)(3) the high degree of deference required by Holly Farms. 
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Employers often try to defend a refusal to hire charge by claiming they followed some neutral hiring policy or practice in an evenhanded manner.  The most common of these policies and practices are discussed below in the section entitled Employer Defenses: >Neutral’ Rules.  It is often possible to defeat the employer’s defense by showing that the policy was not applied in an evenhanded manner, and that it was in fact applied only to union applicants. 

In addition, unions have had increasing success in attacking these policies as themselves unlawful, as the cases discussed below demonstrate.  While the Board has not yet signaled how it will rule on many of these policies, a number of Administrative Law Judges have ruled in the union’s favor on these issues.  Organizers should, therefore, seriously consider alleging that the employer’s hiring policy itself is unlawful, in addition to alleging that it is discriminatorily applied.  The two most important questions to answer in making a case that the policy is itself unlawful are: (1) when and why was the rule put in place (e.g., in response to an organizing drive, or an attempt to thwart a unionization effort, or on advice from an anti-union organization, such at the ABC or IEC); and (2) whether the rule operates to automatically exclude union applicants in most instances.
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34. In the underlying decision in M.J. Mechanical Services, Inc. (SMW LU 46), 325 NLRB 1098 (1998), ALJ Arthur Amchan ruled that the employer’s hiring policy, which gave preference to applicants referred or recommended to the employer, was inherently destructive of important employee rights, and was therefore unlawful.  The Judge made a compelling point when he compared a preferential hiring policy which could be lawful, to one that excludes union adherents. As Judge Amchan noted:

A one-time ad hoc hiring preference for relatives, friends and business acquaintances for short-term tasks, made in the absence of any evidence of antiunion motivation may not be inherently destructive of employee rights.  A formal company policy that allows an employer to avoid hiring known union members on all its jobsites forever is inherently destructive of these rights. 

Slip op. at 9 n.19.  In adopting the Judge’s rulings, the Board relied on an alternative theory, however, and noted that it found it unnecessary to pass on the Judge’s finding that the employer’s hiring practices were inherently destructive of the applicants’ Section 7 rights.

35. In Houston Stafford Electric, Inc. (IBEW, IBEW LU 716), JD (ATL) 72-98, 1998 NLRB LEXIS 762 (Grossman, Sept. 29, 1998), ALJ Howard Grossman ruled that priority hiring systems used by some of the contractors unlawfully excluded pro-union applicants.

36. In Pollock Electric, Inc. (IBEW LO 716), JD (ATL) 50-96, 1998 NLRB LEXIS 440 (July 7, 1998), ALJ Howard Grossman found that the employer’s preferential hiring system containing seven categories was inherently destructive of employee rights, because union applicants would always be restricted to the last two categories in the list and thus stood little, if any chance of ever being hired.  As the ALJ noted:

[I]t may be stated as a general principle that a hiring procedure based upon a sequence of categories of applicants is discriminatory where none of the categories contains union members, or where they first appear at or near the end of the sequence.
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37. In Tualatin Electric (IBEW LU 48), 319 NLRB 1237 (1995), the Board held that the employer’s no-moonlighting policy violated Section 8(a)(1) of the Act, because the  Board found that the Employer had enacted its policy in order to prevent IBEW salts from being hired.  The Board stated, A[w]hen, as here, an employer implements a rule with the purpose of restricting or preventing employees from engaging in protected activity, Section 8(a)(1) of the Act has been violated.  Id. at 1237.

38. In Tech Electric, Inc. (IBEW LU 532), JD (SF) 97-97, 1997 NLRB LEXIS 980 (December 5, 1997), the ALJ found that a no-moonlighting policy violated Section 8(a)(1) because the contractor adopted the policy to restrict employees from engaging in protected activity.  As proof that the contractor aimed the policy at protected activity, the ALJ noted that the contractor had implemented the policy soon after the union started its organizing campaign.

 39. In Little Rock Electric Contractors, Inc. (IBEW LU 238), JD (ATL) 65-98 (Oct. 16, 1998), ALJ Lawrence Cullen found that the employer had failed to establish any justification for its policy against hiring applicants who work for another employer.  On the contrary, according to Cullen, the policy was discriminatorily motivated and was designed to exclude union members, officials, and sympathizers. The employer’s hiring procedure was, therefore, inherently destructive of employee rights.
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40. In Aztech Electric Co. & Contractors Labor Pool, Inc. (IBEW LUs 441, 191, 46, 332, 302 & 617), JD (SF) 73-97, 1997 NLRB LEXIS 683 (Wacknov, September 3, 1997), an ALJ found that an employer's A30% rule, which eliminated from consideration any applicant who during the previous year earned wages more than 30% above or below the wages offered by the agency, was inherently discriminatory and therefore unlawful.  The ALJ reached this finding because the 30% rule excluded all union applicants, and provided only a relatively slight benefit to the agency. 

41. In Payne Electric Co. (IBEW LU 369), JD 188-98, 1998 NLRB LEXIS 863 (Wagman, Nov. 5, 1998), ALJ Leonard Wagman ruled that the employer had violated Section 8(a)(3) and (1) of the Act by maintaining and enforcing a policy of refusing to hire applicants with earnings substantially in excess of its wage rates, and with histories of short-term employment.  As the Judge noted, these two characteristics were unique to union electricians in the work area at issue.  Because the hiring criteria effectively barred union adherents from employment with the company, they were, according to Judge Wagman, inherently destructive of employee rights to adhere to a labor organization.
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42. In Houston Stafford Electric, Inc. (IBEW LU 716), JD (ATL) 72-98, 1998 NLRB LEXIS 762 (Grossman, Sept. 29, 1998), ALJ Howard Grossman ruled that an employment arrangement between non-union contractors in which the contractors agreed to share each others’ employees was inherently discriminatory.  The ALJ held that the shared man program effectively excluded union members from being hired.
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43. In Houston Stafford Electric, Inc. (IBEW LU 716), JD (ATL) 72-98, 1998 NLRB LEXIS 762 (Grossman, Sept. 29, 1998), ALJ Howard Grossman ruled that a $50 fee, charged to applicants who want to submit more than one application in a 30-day period, was applied only to union applicants, and was therefore, inherently discriminatory.  The fee was waived for employees laid off from contractors that were members of the non-union Independent Electrical Contractors (AIEC). 
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44. In Houston Stafford Electric, Inc. (IBEW LU 716), JD (ATL) 72-98, 1998 NLRB LEXIS 762 (Grossman, Sept. 29, 1998), ALJ Howard Grossman held that non-union contractor associations that run referral/application systems must tell applicants where their applications were referred so that the applicants will be able to enforce their rights under the Act.  Otherwise, the Judge held, applicants would be trapped in a system where they could not find out whether their applications had even been considered.  In Houston Stafford, the ALJ compared the employer association’s responsibilities to those imposed on unions when they operate hiring halls. 
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45. In cases alleging discrimination after hire, the General Counsel’s burden of proof is the same as in cases alleging discriminatory refusal to hire, that is, the test set forth in Wright Line, 251 NLRB 1083 (1980), enf’d, 662 F.2d 899, 108 LRRM (BNA) 2513 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982).  In order to establish a prima facie violation in a case involving discrimination after hire the General Counsel must establish:

(1) that the alleged discriminatees engaged in union activities; 

(2) that the employer had knowledge of such; 

(3) that the employer’s actions were motivated by union animus; and 

(4) that the discharge or other discrimination had the effect of encouraging or       discouraging membership in a labor organization.

 See Farmer Brothers Company, 303 NLRB 638, 649 (1991), enforced, 988 F.2d 120 (9th Cir. 1993).

 46. The General Counsel must prove certain elements to establish a prima facie case of discrimination.  Those elements are (1) that the affected employee had engaged in activity protected by the Act; (2) the employer had knowledge of that activity; (3) that the adverse personnel action imposed on the employee was motivated by union animus; and (4) that the discipline had the effect of encouraging or discouraging membership in a labor organization.  The General Counsel has the burden of proving his case by a preponderance of the evidence.  WMUR-TV, 253 NLRB 697, 703 (1980).   See also Aero Metal Forms, Inc., 310 NLRB 397, 406 (1993).

47. Disparate disciplinary treatment by an employer, as between two employees -- one known to be supportive of union representation and one known to be opposed to same - establishes a prima facie case of unlawful discrimination.  The burden then shifts to the employer to demonstrate that the same action would have been taken even in the absence of the protected conduct.  See, e.g. Aratex Services, 300 NLRB 115 (1990); Minnesota Boxed Meat, 282 NLRB 1208 (1987).

48. In order for the Board to find that a discharge or threat of discharge for engaging in protected, concerted activity violated Section 8(a)(1), it is not necessary that the employer knew that the activity was concerted or protected.  Scioto Coca-Cola Bottling Company, 251 NLRB 766 (1980).

49. In Arlington Electric, Inc. (IBEW LU 728), JD (ATL) 45-97, 1997 NLRB LEXIS 568 (July 16, 1997), an ALJ rejected an employer's argument that it had rightfully fired a paid union organizer for handing out a flyer, which listed the union wage rate.  The employer argued that the union organizer had handed out the flyer to injure the employer by stripping away its employees, and therefore, the organizer lost the Act's protection,   The ALJ found, however, that the organizer's purpose for handing out the flyer C to induce employees to seek higher wages and better working conditions C was legitimate and, therefore, was protected by the Act. 
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50. A[T]he Board has consistently held that conduct that may not be found violative of the Act may still be used to show antiunion animus.  Gencorp, 294 NLRB 717, 717 n. 1 (1989).  See also, General Battery Corporation, 241 NLRB 1166, 1169 (1979).

51. A prima facie case of unlawful motivation may rest entirely on circumstantial evidence.  Pincus Elevator and Electric Co., 308 NLRB 684, 693 (1992). 

52. In determining whether the conduct in question is unlawfully motivated, the Board will rely on circumstantial as well as direct evidence to infer discriminatory motivation on the part of an employer.  It will consider circumstantial evidence such as the following: 

(1)  delay in the discharge after knowledge of the offense [National Grange
  Mut. Ins. Co., 207 NLRB 431 (1973)]; 

(2) departure from established procedures for discharge [Wells Dairy, 287 
NLRB 827 (1987), enf’d, 865 F.2d 175 (8th Cir. 1989)]; 

(3) failure to warn the employee prior to discharge [Great Atlantic &
Pacific Tea Co., 210 NLRB 593 (1974)]; 

(4) failure to tell the employee the reason for the discharge at the time of 
discharge [Forest Park Ambulance Serv., 206 NLRB 550 (1973)]; 

(5)  changes in position in explaining the reason for the discharge [Coca-
Cola  Bottling Co., 232 NLRB 794 (1977), enf’d in part, 616 F.2d 949
(6th Cir.), cert. denied, 449 U.S. 998 (1980)]; and 

(6)  timing of the discharge (e.g. discharge immediately after the employer 
gains knowledge of the employee’s union activity) [Clark & Wilkins
Indus., 290 NLRB No. 19 (1988), enf’d, 887 F.2d 308 (D.C. Cir.
1989)]. 

The Developing Labor Law, 198 (Patrick Hardin ed., 3d ed. 1992).

53. It is . . . well settled . . . that when a respondent’s stated motives for its actions are found to be false, the circumstances may warrant an inference that the true motive is an unlawful one that the respondent desires to conceal.  Fluor Daniel, Inc., 311 NLRB 498, 498 (1993), enf’d in part, 161 F.3d 953, 159 LRRM (BNA) 2794 (6th Cir. 1998).

54. In Town & Country Electric, Inc., 309 NLRB 1250, 1275 (1992), enforcement denied, 34 F.3d 625 (8th Cir. 1994), rev’d, 516 U.S. 85 (1995), the Board adopted the ALJ’s statement that:

Economic reality neutralizes any debate concerning [the employer’s] posture with respect to union organization.  As a merit shop employer, it is dedicated to a method of operation in the highly competitive construction industry which is not compatible with wage and benefit standards sanctioned by affiliated craft unions such as the IBEW.

 55. In B E & K Construction Co., 321 NLRB 561, 569 (1996), enforcement denied, 133 F.3d 1372 (11th Cir. 1997), the Board adopted that part of the ALJ’s decision inferring union animus from the employer’s status as a merit shop contractor.  [W]hile it would be unfair to assume that union membership or employment alone would impel the Respondent to violate the law, it would be naive to assume that it would treat with equanimity applicants, who are not just interested in a job, but whose application evinces an overt organizational threat in terms so bold as to be equatable with commitment to undermine the merit shop philosophy.

56. In NLRB v. E.I. Du Pont de Nemours, 750 F.2d 524, 529, 118 LRRM (BNA) 2014, 2017 (6th Cir. 1984), the court stated:

Motive is subjective, and an employer rarely admits that an employee has been discharged because of activities protected by the Act.  Therefore, the Board may rely on circumstantial evidence in determining actual motive.
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Antiunion motivation reasonably may be inferred from a variety of factors, such as the company’s expressed hostility towards unionization combined with knowledge of the employee’s union activities . . . proximity in time between the employee’s union activity and his discharge . . . and disparate treatment of the discharged employee compared to other employees with similar work records.

57. Since an employer rarely admits that it discharged an employee for engaging in protected concerted activities, the NLRB may rely on circumstantial evidence in determining an employer’s >actual motive.’  Electronic Data Systems Corp. v. NLRB, 985 F.2d 801 (5th Cir. 1993) (citation omitted).

58. An inference of anti-union animus is proper when the timing of the employer’s actions is >stunningly obvious.’  NLRB v. American Geri-Care, Inc., 697 F.2d 56, 60, 112 LRRM (BNA) 2529, 2532 (2d Cir. 1982), cert. denied, 461 U.S. 906 (1983).  See also NLRB v. Aquatech, 926 F.2d 538 (6th Cir. 1991). 

59. In Edelco, Inc., 321 NLRB 857 (1996), enf’d in part, 132 F.3d 1007, 157 LRRM (BNA) 2046 (4th Cir. 1997), the Board adopted the ALJ>s decision which, among other things, found that union animus could be inferred from the employer’s failure to hire any union applicants on any of its job sites. 

 60. In Memorandum OM 94-73 (August 12, 1994), issued by the Office of the General Counsel, Division of Operations-Management, the General Counsel noted that statistics may be helpful in proving anti-union animus:

A statistical analysis may be beneficial in certain cases to determine whether the employer discriminated against union applicants.  In Fluor Daniel, Inc., 311 NLRB 498 (1993), a violation was established, in part, by the showing that despite the fact that union applicants comprised a significant number in the applicant pool, none were hired.
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61. As explained above in the Sections on Refusal to Hire and  Discrimination After Hire, in Wright Line, 251 NLRB 1083 (1980), enf’d, 662 F.2d 899, 108 LRRM (BNA) 2513 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982), the Board outlined the burden and allocation of proof in cases that turn on an employer’s motivation.  In such cases, the General Counsel first must make a prima facie showing that the protected activity was a motivating factor in the employer’s action.  See also Hyatt Hotels Corp., 296 NLRB 259 (1989) (under Wright Line, the General Counsel must establish that an employee’s protected activity was a motivating or substantial factor in Respondent’s decision to discharge the alleged discriminatee). 

62. In order to rebut the General Counsel’s prima facie case (and affirmatively defend its actions), an employer must then show by a preponderance of  the evidence (i.e., that it is more likely than not) that it would have discharged the employee even in the absence of the protected activity.  Fuhr Glass and Mirror, Inc., 305 NLRB 1, 3 (1991);  Centre Property Management, 277 NLRB 1376 (1985), enf’d in part, 807 F.2d 1264, 125 LRRM (BNA) 2409 (5th Cir. 1987); and Hicks Oils & Hicksgas, Inc., 293 NLRB 84 (1989), enf’d, 942 F.2d 1140, 138 LRRM (BNA) 2650 (7th Cir. 1991).

63. In M.J. Mechanical Services, Inc., 324 NLRB 812 (1997), enforced, 1998 U.S. App. Lexis 33922 (D.C. Cir., Dec. 28, 1998) (unpublished), as its Wright Line defense, the contractor argued it had discharged a union organizer for falsifying his resume in violation of a company rule.  The Board, however, rejected this defense because, at the time of the discharge, the contractor had not told the employee why it had fired him, nor did the contractor connect his discharge with the company rule at an earlier evidentiary hearing.  A contractor cannot carry its burden under Wright Line, the Board held, by merely showing that it could have disciplined the employee; the contractor must show it would have taken the adverse action against the employee even without the employee's protected activity. 

64. In Hudson Valley Electrical Construction & Maintenance, Inc., JD (NY) 132-99, 1999 NLRB LEXIS 713 (Nations, Oct. 5, 1999), the ALJ found that the employer successfully met its burden under Wright Line, and proved that it would not have hired a union organizer in any event, because the organizer had falsely reported to a state agency that the employer had committed electrical code violations at the jobsite.
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Employers often try to defend a refusal to hire charge by claiming they followed some neutral hiring policy or practice in an evenhanded manner.  The most common of these policies and practices are discussed below.  As these decisions demonstrate, it is generally possible to defeat the employer’s defense by showing that the policy was not applied in an evenhanded  manner, and that it was in fact applied only to union applicants.

In addition, unions have had increasing success in attacking these policies as themselves unlawful,  as the cases discussed below demonstrate.  While the Board has not yet signaled how it will rule on many of these issues, more and more  Administrative Law Judges are ruling in the unions’ favor.  See Discriminatory Hiring Policies section, above.  Organizers should, therefore, seriously consider alleging that the employer’s hiring policy itself is unlawful, in addition to alleging that it was discriminatorily applied.  The two most important questions to answer in making a case that the policy is itself unlawful are: (1) when and why was the rule put in place (e.g., in response to an organizing drive, or an attempt to thwart a unionization effort, or on advice from an anti-union organization, such at the ABC or IEC); and (2) whether the rule operates to automatically exclude union applicants in most instances.

65. In Memorandum OM 94-73 issued by the Office of the General Counsel, Division of Operations-Management, on August 12, 1994, the Regional Directors were instructed that the [unfair labor practice] investigation may have to probe the utilization of facially neutral application rules and/or hiring priorities which have a disparate impact on union members or supporters.  This memorandum went on to say that:

The investigation should also encompass any rules that the employer follows in accepting or rejecting applications.  The rules should be thoroughly reviewed and, if in writing, copies should be secured.  For example, the investigation should cover: (1) whether applications are accepted only when vacancies occur; (2) whether an applicant appears in person; (3) whether only original applications are accepted; (4) whether applications are active for only a prescribed period; (5) whether references are required; and (6) whether the applicant is required to provide a detailed employment history including the names of former employers and wage rates.  Additionally, the business justification for the rules may be significant.
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66. The United States Court of Appeals for the Sixth Circuit held, in Architectural Glass & Metal Co. v. NLRB, 107 F.3d 426 (6th Cir. 1997), that an employer could lawfully maintain a rule prohibiting employees from working two full-time jobs and that a refusal to hire a union organizer pursuant to such a policy would be lawful, as long as the employer applied the rule in a nondiscriminatory manner.

67. The Board held, in Little Rock Electric Contractors (IBEW LU 480), 327 NLRB No. 166 (March 22, 1999), that a no-moonlighting policy was a valid defense to an employer’s refusal to hire two union organizers.  The Board noted, however, that A[t]here is no allegation that the [no-moonlighting] rule is unlawful.  This case underscores the importance of challenging these policies as illegal in and of themselves: in a separate decision, in which the same policy was attacked as discriminatory, ALJ Lawrence Cullen held that the policy was unlawful and inherently destructive of employee rights.  See Little Rock Electrical Contractors, Inc. (IBEW LU 238), JD (ATL) 65-98 (Cullen, Oct. 16, 1998).

68. In Tualatin Electric (IBEW LU 48), 319 NLRB 1237 (1995), the Board held that the employer’s no-moonlighting policy violated Section 8(a)(1) of the Act, because the  Board found that the Employer had enacted its policy in order to prevent IBEW salts from being hired.  The Board stated, A[w]hen, as here, an employer implements a rule with the purpose of restricting or preventing employees from engaging in protected activity, Section 8(a)(1) of the Act has been violated.  Id. at 1237.

69. In Little Rock Electrical Contractors, Inc. (IBEW LU 238), JD (ATL) 65-98 (Cullen, Oct. 16, 1998), the ALJ held that a no-moonlighting policy was unlawful and inherently destructive of employee rights. This case underscores the importance of challenging these policies as illegal in and of themselves:  in another case involving the same policy, but in which the policy itself was not challenged as illegal, the Board found it to be a valid defense to an employer’s refusal to hire two union organizers.  See Little Rock Electric Contractors (IBEW LU 480), 327 NLRB No. 166 (March 22, 1999).

70. In Tech Electric, Inc. (IBEW LU 532), JD (SF) 97-97, 1997 NLRB LEXIS 980 (Dec. 5, 1997), the ALJ found that a no-moonlighting policy violated Section 8(a)(1) because the contractor adopted the policy to restrict employees from engaging in protected activity.  As proof that the contractor aimed the policy at protected activity, the ALJ noted that the contractor had implemented the policy soon after the union started its organizing campaign.
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As discussed below, the Board has not found this defense successful, but at least two  U. S. Courts of Appeals (including the D.C. Circuit) have disagreed with the Board and have accepted this defense from employers. 

71. In H.B. Zachry Co., 319 NLRB 967 (1995), enforcement denied, 127 F.3d 1300 (11th Cir. 1997), the Board ruled that an employer had violated Sections 8(a)(1) and 8(a)(3) of the Act by adopting and maintaining a policy to disqualify job applicants who provided additional, unrequested information on the job application forms.  The employer used this policy to justify its refusal to hire 18 job applicants who had written on their forms that they were voluntary union organizers. The Board adopted the ALJ’s statement that [n]othing could be more inherently destructive of Section 7 rights than [a policy] automatically disqualifying union supporters from employment. 

The Eleventh Circuit, reversing the Board, upheld an employer's nonresponsive information defense in Boilermakers v. NLRB, 127 F.3d 1300, 156 LRRM (BNA) 2881 (11th Cir. 1997).  The employer rejected applications that supplied information that the employer had not requested.  The Eleventh Circuit found that the employer's policy was lawful as written (in that it did not prevent an applicant from indicating union affiliation on other parts of the form) and as applied (in that the employer also disqualified other applicants who wrote extraneous information on the form, and offered all applicants C including volunteer organizers C the opportunity to apply).

72. The Board in TIC-The Industrial Company Southeast, Inc., 322 NLRB 605 (1996), enforcement denied, 126 F.3d 334, 156 LRRM (BNA) 2485 (D.C. Cir. 1997), rejected the employer’s explanation, that the decision not to hire union applicants was based on their failure to fill out the application form correctly, where certain nonunion applicants (but no union applicants) had been asked to submit corrected applications

But the D.C. Circuit disagreed.  In TIC C The Industrial Co. Southeast Inc. v. NLRB, 126 F.3d 334, 156 LRRM (BNA) 2485 (D.C. Cir. 1997), the D.C. Circuit accepted the contractor's assertion that it was following its no extraneous information policy, and was not acting with anti-union animus, when it refused to consider applications marked union organizer.  Despite a supervisor's statement that the company was avoiding union personnel, the court found the employer rejected the applications based on its neutral policy requiring applicants to fill out special watermarked application forms and to include only requested information.  Even assuming that the General Counsel established a prima facie case, according to the court, the contractor established an affirmative defense by proving it followed a neutral guideline without regard to the applicant's union affiliation. 

73. In Refrigeration Systems Co., 321 NLRB 1085 (1996), the Board adopted the ALJ’s decision describing the employer’s explanation, that it did not consider union members for employment because they submitted incomplete applications, as a fabrication.
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74. In Zurn/N.E.P.C.O. (International Brotherhood of Boilermakers), 329 NLRB No. 52 (Sept. 30, 1999), the Board upheld an ALJ’s ruling that the company’s priority hiring policy had not been unlawfully applied to union applicants.  The Board stressed in its decision, however, that it was not ruling on the question whether the policy itself was unlawful, because the General Counsel had not made that argument.  This case underscores the importance of arguing both that the policy is itself unlawful and that it has been unlawfully applied.  This case also underscores the importance of insisting that the General Counsel make these arguments.  In Zurn/N.E.P.C.O., the Boilermaker’s Union did argue that the policy was itself unlawful, but the ALJ and the Board both explained that the General Counsel’s theory of the case is controlling, and that a charging party (here, the Union) cannot expand or change the General Counsel’s theory. 

75. In D.S.E. Concrete Forms, Inc., 303 NLRB 890 (1991), enf’d without op., 146 LRRM (BNA) 2448 (5th Cir. 1994), the Board approved an ALJ’s ruling that an employer’s hiring practices had the effect of discriminating against union supporters.  In D.S.E., when a job became available, the employer first gave preference to existing employees at its other job sites.  Next, the employer gave preference to the employees available for transfer from another non-union employer with whom it had a management contract.  Third, if no individuals were available, the employer relied on referrals from its existing employees.

Based on the facts of the case, the Board adopted the ALJ’s conclusion that the practical effect of the Respondent’s first three job criteria was to preclude employment of union members at the jobsite.  Id. at 890 n.2.  The ALJ had rejected the employer’s defense and held:

I find that Respondent’s hiring criteria do not establish that D.S.E. would not have hired the applicants >in any event,’ as Respondent argues.  Rather, the criteria reinforce the General Counsel’s position that the applications were not considered because the applicants were union members.  The preponderance of the evidence establishes that Respondent was pursuing a pattern or practice by which it systematically declined to consider any union members for employment.

Id. at 898.

76. In Starcon, Inc., 323 NLRB 977 (1997), enf’d in part, 176 F.3d 948, 161 LRRM (BNA) 2233 (7th Cir. 1999), the Board affirmed an ALJ's finding that a contractor unlawfully refused to consider applications marked  voluntary union organizer.  In its defense, the contractor asserted it was following two neutral hiring policies when it did not consider the applications.  First, the contractor required applicants to appear in person.  Second, the contractor gave preferences to employees who either had worked for the company or had a supervisor's recommendation.  The ALJ rejected the contractor's argument because it had formulated its policies in response to an organizing drive, and because the contractor selectively applied them to known union applicants.   As a remedy for refusing to consider the applications, the ALJ ordered the contractor to consider the applications, and make the applicants whole for losses they suffered because of the unlawful discrimination.  With Board approval, the ALJ noted that job availability issues are reserved for compliance. 

77. In Richard Mellow Electrical Contractors Corp. (IBEW LU 81), 327 NLRB No. 171 (March 31, 1999), an employer refused to consider for hire fourteen union applicants.  The employer argued that the thirteen individuals it did hire all had either worked for the company previously, been referred to the employer personally, or had expressed an interest in working for the employer before the union applicants applied, and the Administrative Law Judge ruled that the employer had acted in accordance with a legitimate, nondiscriminatory, priority hiring  policy. 

The Board reversed, however, finding that the employer had failed to prove that such a priority hiring policy even existed.  The Board also noted that the employer’s witnesses offered  shifting explanations of the company’s failure to hire the union applicants, and that such shifting explanations are evidence of anti-union motivation:  the employer testified that he only hired people who had worked for him before; when that proved to be untrue, a second witness testified that the employer had told her he also had hired some people he knew of personally, some people who were recommended to him, and some who had always wanted to work for him.  The Board specifically stated that the shifting nature of the [employer’s] explanations of its failure to consider the 14 union applicants is further evidence of unlawful motivation.  Slip op. at 4 n.18. 

 78. An ALJ found that a contractor's implementation and application of a Apriority hiring system discriminated against union sympathizers in Zurn/N.E.P.C.O., JD 34-07, 1997 NLRB LEXIS 121 (February 24, 1997).  The employer's policy gave preference to past and present employees and to referrals by employees.  The ALJ ruled that the employer unlawfully implemented the policy because, based on statistical evidence, the policy resulted in a completely non-union work force, and because, through personal interviews, the employer could identify and exclude all applicants with union backgrounds.  The ALJ also found that the employer selectively applied the policy by using it simply to avoid hiring applicants with union backgrounds.  (This is a different case than the case discussed above at p. 25).

79. In Houston Stafford Electric, Inc. (IBEW, IBEW LU 716), JD (ATL) 72-98, 1998 NLRB LEXIS 762 (Grossman, Sept. 29, 1998), ALJ Howard Grossman ruled that priority hiring systems used by some of the contractors unlawfully excluded pro-union applicants.
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80. In Wireways, Inc. (IBEW LU 637), 309 NLRB 245 (1992), the Board upheld the ALJ’s determination that an employer’s policy of not hiring applicants whose wage history reflected higher wages than the current job offered, did not violate the Act.   It is important to note, however, that this case may be limited to its particular facts and record: In Wireways  the ALJ refused to credit the testimony of two of the union witnesses, and found that there was no evidence of unlawful motivation, and also found that there was also no proof that the wage practice had a different impact on employees depending on their union affiliation or lack thereof.  Id. at 253.

81. In J.O. Mory, Inc. (IBEW LU 305), 326 NLRB No. 61 (Aug. 27, 1998), the Board ruled that an employer did not discriminatorily fail to hire union applicants, but instead rejected them on neutral criteria, which included the employer’s policy of not hiring, at entry level positions, applicants who were currently earning more than the employer was paying.  The Board rejected the ALJ’s ruling that one exception from this policy was sufficient to establish that it was applied in a discriminatory manner.  The policy itself was not alleged to be unlawful.

82. An ALJ accepted as a legitimate business reason, unrelated to union animus, a contractor's high wages defense in Northside Electrical Contractors, Inc. (IBEW LU 153), 1997 NLRB Lexis 712 (Sept. 19, 1997) (ALJD).   According to the ALJ, though the contractor had displayed Amore than a dislike of unions, the preponderance of the evidence showed that the contractor's reason for refusing to hire several union organizers was their high wage histories.  To support his finding, the ALJ noted that the contractor operated a small business, had made hiring decisions based in large part on an applicant's wages, had hired union members in the past, and had rejected all applicants C whether associated with the union or not C who had a history of high wages. 

83. In AJS Electric (IBEW LU 441), 310 NLRB 121 (1993), the Board upheld the ALJ’s  rejection of  the employer’s argument that its failure to hire union organizers was lawfully based an its policy of never hiring applicants who requested a wage rate substantially above the employer’s wage scale.  Essentially, the ALJ found this defense to be a pretext, because the employer (1) did hire at least one applicant who had a higher wage history than the job paid; and (2) refused employment to union applicants who stated that they would accept lower wages than they had worked for in the past; and (3) rejected at least one applicant after learning he had previously been a union business representative. 

84. In Clock Electric, Inc. (IBEW LU 38), 323 NLRB 1226 (1997), enforcement denied in part, 162 F.3d 907, 159 LRRM (BNA) 3025 (6th Cir. 1998), the Board affirmed an ALJ's holding that the General Counsel had successfully rebutted a contractor's high wages defense.  The contractor argued that it had refused to hire union organizers who earned higher wages in the past because, in the contractor's experience, applicants who took pay cuts left soon after hire, and the contractor was not willing to pay the wage rate that the applicants would want.  The ALJ rejected the contractor's defense as pretext for avoiding union applicants because, among other things, the contractor did not prove that: (1) those who took a pay cut to work for the contractor stayed for a shorter period than those who did not take a pay cut; and (2) the contractor considered its budget limits when hiring. 

On appeal, however, the Sixth Circuit enforced the Board’s order on this issue only where a history of high wages was the sole factor that distinguished union applicants from those who were hired.

85. In Donald A. Pusey, Inc. (IBEW LU 654), 327 NLRB No. 41 (Nov. 27, 1998), the Board panel majority (Members Liebman and Fox) rejected an employer’s defense that it would not have hired a union applicant in any event because the applicant previously earned higher wages than the employer was paying.  The employer stated that it followed this policy because it believed that such applicants are more likely to leave for higher paying jobs.  The Board found that the employer’s excuse was merely a pretext to avoid hiring the pro-union applicant, because the employer admitted he had been impressed with the applicant, and the applicant had told the employer he would stay for at least a year. Member Hurtgen dissented, because, among other things, there was no showing that the applicant would stay for more than a year; that one year would have been adequate for the employer; or that the applicant would stay one year in any job offered to him.

86. In Aztech Electric Co. & Contractors Labor Pool, Inc. (IBEW LUs 441, 191, 46, 332, 302 & 617), JD (SF) 73-97, 1997 NLRB LEXIS 683 (Wacknov, Sept. 3, 1997), an ALJ found that an employer's 30% rule, which eliminated from consideration any applicant who during the previous year earned wages more than 30% above or below the wages offered by the agency, was inherently discriminatory and therefore unlawful.  The ALJ reached this finding because the 30% rule excluded all union applicants, and provided only a relatively slight benefit to the agency. 

87. In Payne Electric Co. (IBEW LU 369), JD 188-98, 1998 NLRB LEXIS 863 (Wagman, Nov. 5, 1998), ALJ Leonard Wagman ruled that the employer had violated Section 8(a)(3) and (1) of the Act by maintaining and enforcing a policy of refusing to hire employment applicants with earnings substantially in excess of its wage rates, and with histories of short-term employment.  As the Judge noted, these two factors were characteristics unique to union electricians in the geographic work area at issue.  Because the hiring criteria effectively barred union adherents from employment with the company, they were, according to Judge Wagman, inherently destructive of employee rights to adhere to a labor organization.
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88. In Delta Mechanical, Inc., 323 NLRB 76 (1997), the Board affirmed an ALJ's decision to dismiss a refusal-to-consider charge based on the employer's neutral hiring policy C accepting applications only when it was hiring.  The General Counsel did not establish that the contractor had been hiring when several union organizers attempted to apply for jobs, or that the contractor adopted or applied its policy to discriminate against union members.  Therefore, the ALJ dismissed the charge.  [Note: Delta Mechanical is a neutral hiring policy case.  It does not consider whether the General Counsel must prove, as part of a prima facie refusal-to-consider case, that the contractor was hiring.]

89. In Industrial Construction Services, Inc. (IBEW LU 479), 323 NLRB 1037 (1997), the Board adopted an ALJ's dismissal of a refusal-to-consider charge based on the employer's no-photocopied-application policy.  The contractor wrote on its applications photocopies of this form will not be accepted.  The local union faxed several applications.  At trial, the General Counsel did not show what the contractor did with the applications after receiving them.  Lacking evidence that the employer treated the union members' applications differently from other applications, and despite ample evidence of anti-union animus, the ALJ accepted the employer's assertion that it refused to consider the applications based on its no-photocopied-application policy.

90. In Walz Masonry, Inc., 323 NLRB 1258 (1997), enforced without opinion, 1998 U.S. App. Lexis 8799 (8th Cir., May 4, 1998), the Board rejected a contractor's argument that a volunteer organizer had to call the contractor to keep his application alive when the contractor had unlawfully refused to give the organizer an application in the first place. 

91. In K & W Electric, Inc. (IBEW LU 288), JD-7-98, 1998 NLRB LEXIS 15 (January 15, 1998), an ALJ found that the employer had violated Section 8(a)(1) by adopting two policies -- prohibiting group applications and prohibiting employment with any other employer while employed by K & W Electric -- adopted solely because they had been recommended in ABC’s publication Coping with COMET.  That the employer failed to offer any other reason for adopting those policies showed that they had been adopted for the purpose of weeding out union salts.  This decision was subsequently vacated, pursuant to a settlement agreement.  See 327 NLRB No. 21 (Oct. 30, 1998).

92. In Houston Stafford Electric, Inc. (IBEW LU 716), JD (ATL) 72-98, 1998 NLRB LEXIS 762 (Grossman, Sept. 29, 1998), ALJ Howard Grossman ruled that an employment arrangement system between non-union contractors in which the contractors agreed to share each others’ employees (through a shared man program) was inherently discriminatory.  The ALJ held that the shared man program effectively excluded union members from being hired.

93. In Houston Stafford Electric, Inc. (IBEW LU 716), JD (ATL) 72-98, 1998 NLRB LEXIS 762 (Grossman, Sept. 29, 1998), ALJ Howard Grossman ruled that a $50 processing fee, charged to applicants who want to submit more than one application in a 30 day period, was applied only to union applicants, and was therefore, inherently discriminatory.  The fee was waived for employees laid off from contractors that are members of the non-union Independent Electrical Contractors (AIEC). 

94. In Houston Stafford Electric, Inc. (IBEW LU 716), JD (ATL) 72-98, 1998 NLRB LEXIS 762 (Grossman, Sept. 29, 1998), ALJ Howard Grossman held that non-union contractor associations that run referral/application systems must tell applicants where their applications were referred so that the applicants will be able to enforce their rights under the Act.  Otherwise, the Judge held, applicants would be trapped in a system where they could not find out whether their applications had even been considered.  In Houston Stafford, the ALJ compared the employer association’s responsibilities to those imposed on unions when they operate hiring halls. 
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Many employers also attempt to defend salting charges by claiming that the union’s real intent is to put the employer out of business, rather than organize the contractor’s employees.  The best defense against such claims is, of course, solid evidence that the union’s actual objective was to organize.  As several of the cases discussed below demonstrate dramatically, however, the more evidence the union has of actual organizing activity, the easier it will be to put this employer defense (of evil union intent) to rest. 
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95. In Aztech Electric Co. & Contractors Labor Pool, Inc. (IBEW LU 441) JD (SF) 73-97, 1997 NLRB LEXIS 683 (September 3, 1997), an ALJ found a local union had designed its salting campaign not to organize employees, but to cause economic harm to contractors.  According to the ALJ, that fact created a  disabling conflict between the employer and paid union organizers who were not therefore considered bona fide employees protected by the Act. 

96.  In Heiliger Electric Corp. (IBEW LU 1141), 325 NLRB 966 (1998), the Board adopted the ruling of ALJ Randall Frye, that an employer lawfully rejected applications from pro-union individuals who engaged in intimidating conduct during the application process.  The conduct found to be intimidating included: intrusive videotaping; the refusal to discontinue videotaping; close scrutiny and videotaping of personal papers on the manager’s desk; and the refusal to leave the office when asked.

97. In NLRB v. Town & Country Electric, Inc., 516 U.S. 85, 133 L. Ed. 2d 371 (1995), the United States Supreme Court held that a worker or an applicant paid by a union to organize a company is an employee protected by the National Labor Relations Act.   This ruling effectively ends the debate whether the union’s intent to organize an employer’s operations withdraws the Act’s protections from applicants who are also paid union organizers. 

98. In its ruling in Town & Country Electric, Inc., the Supreme Court endorsed the Board’s conclusion that an organizer’s service to the union for pay does not >involve abandonment of . . . service’ to the company.   133 L. Ed. 2d at 380.  The Court also noted that the practice of organizing for pay during non-work hours is wholly consistent with a company’s control over its workers as to their assigned duties.  Id.  Finally, the Court insisted that, even if the company perceives organizing activity as disloyal, the employer has no legal right to require that, as a part of his or her service to the company, a worker refrain from engaging in protected activity.  Id.

99. The Board does not inquire into a protestor’s sincerity and must limit its examination to determine whether there is any rational foundation for the protest.  Vemco, Inc., 314 NLRB 1235, 1241 (1994), enforcement denied, 79 F.3d 526, 151 LRRM (BNA) 2811 (6th Cir. 1996).

100. In Pan American Electric (IBEW LU 446), 328 NLRB No. 7 (April 16, 1999), the Board rejected an employer’s claim that applicants were not bona fide because they were paid union organizers.  In so ruling, the Board agreed with ALJ Lawrence Cullen that the Supreme Court’s decision, in NLRB v. Town & Country Electric, 516 U.S. 85 (1995), compels the conclusion that employees who are union organizers and who intend to act as salts are protected as employees under the Act.  The Board and the ALJ also rejected the employer’s argument that various IBEW organizational and salting manuals constituted evidence of conspiracy in restraint of trade.  As the Board stated, [t]hese show only the Union’s desire to organize nonunion employers and to target what it perceives as unfair labor practices and wage scales and employment practices that undermine its standards.  Slip op. at 2 n.10.

101. In Zeppelin Electric Co. (IBEW LU 25), 328 NLRB No. 68 (May 20, 1999), the NLRB reversed Administrative Law Judge Raymond Green’s decision that an employer’s discharge of, and threat to kill, a union organizer did not violate the Act.  Judge Green had agreed that the employer had made the threat, but found that the threat was not inspired by the organizer’s union activities, but by the employer’s reasonable belief that the organizer was trying to sabotage the job.  The only evidence of such sabotage was the employee’s status as a salt.  The Board flatly rejected Judge Green’s assumptions that, because the employee was a salt, he was merely looking for a way to get fired.  Instead, the Board ruled that any finding of an attempt to sabotage has to be based on actual evidence, and not merely the Judge’s personal opinion of, and assumptions about, salting. 

102.  The fact that the Union may have had institutional objectives in mind in requesting large numbers of its members to apply for work with the Respondent renders those applications no less bona fide.  At the time they applied, the applicants were qualified and willing to accept work with the Respondent.  Fluor Daniel, Inc., 304 NLRB 970 (1991), enforced, 976 F.2d 744 (11th Cir. 1992).

103. There is a difference, however, between an applicant for employment who has worked in the past for a union contractor and an applicant for employment who states on his application that he is a voluntary union organizer.  The latter employee is putting the employer on notice that he will try to exercise his federally protected right to organize his fellow employees.  Fluor Daniel, Inc., 311 NLRB 498, 505 (1993), enf’d in part, 161 F.3d 953, 159 LRRM (BNA) 2794 (6th Cir. 1998).

104. In Sunland Construction Co.,  309 NLRB 1224, 1230 (1992), the Board stated that:

[t]he statute’s premise is at war with the idea that loyalty to a union is incompatible with an employee’s duty to the employer.  The fact that paid union organizers intend to organize the employer’s workforce if hired establishes neither their unwillingness nor their inability to perform quality service for the employer.  Indeed, because the organizers seek access to the jobsite for organizational purposes, engaging in conduct warranting discharge would be antithetical to their objective.

105. In Little Rock Electrical Contractors, Inc. (IBEW LU 480), 327 NLRB No. 166 (March 22, 1999), the Board adopted the ALJ’s ruling that a business agent's possession of the manual Union Organizing in the Construction Industry did not establish that the local union intended to use its organizing campaign to drive the contractor out of business, or that certain applicants were not bona fide.  Although the union could have used the manual to support an unlawful objective, that was irrelevant, the ALJ ruled, because the real issue was what the union actually did.  And, the facts revealed that the union's campaign was not improper. This should not be a recurring issue in IBEW organizing campaigns, however, since this book is no longer in use, and Local Unions should no longer have any in their possession.

106. In Beacon Electric, Inc., JD 115-98, 1998 NLRB LEXIS 461, at *31 (Beddow, July 14, 1998), the ALJ rejected the employer’s argument that the union applicants were not bona fide, stating, among other things, that:

The law also does not require that job applicants must be unobtrusive in respect to their union affiliation in order to be considered to be bona fide applicants.
 *        *        * 

A job seeker’s participation in group attempts to file applications and the fact that a union may have supplemental objectives in supporting its members in their attempts to obtain employment does not act to preclude their viability as legitimate job applicants.
 *        *        *

The fact that the tactics used by the Union may be unwise or unsuccessful does not make a Respondent’s conduct any less discriminatory.  The propriety of an employer’s conduct in a failure to hire proceeding turns on the nature of the act, not on the motive or intent of the job applicant, unless special circumstances, not shown here, exist.

(Emphasis supplied).

107. In Payne Electric Co. (IBEW LU 369), JD 188-98, 1998 NLRB LEXIS 863 (Nov. 5, 1998), ALJ Leonard Wagman rejected the employer’s argument that eight applicants were not employees protected under the Act because, in the employer’s view, the applicants’ true purposes were to entrap the contractor into violating the Act.  Judge Wagman noted that there was no evidence of any such intent, and stated that:

 [i]nstructing the salts as to their rights under the Act and other statutes and alerting them to the need for gathering information relating to possible violations did not impair their right to the Act’s protection. 
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There are no reported decisions as of this date in which this defense has been successful.

108. In M.J. Mechanical Services, Inc., 324 NLRB 812 (1997), enforced, 1998 U. S. App. Lexis 33922 (D.C. Cir., Dec. 28, 1998) (opinion unpublished), the Board explicitly rejected ALJ Raymond Green's generalized findings that the union had designed its salting program to interfere with the contractor's business, to entrap the contractor into committing unfair labor practices and to engage in acts of sabotage.  Moreover, the Board specifically disavowed Judge Green's personal opinions about salting, which, according to the Board, the Judge had relied on to reach his decision.  Instead, the Board found that the Act protected the union's activities in pursuit of its salting program, including persuading one employee to leave the contractor for a union apprenticeship program.  Significantly, the Board found that even if salting is intended in part to provoke an employer to commit unfair labor practices, that would not deprive employees of [the] protection of the Act.  Id. at 813-14 (quoting Godsell Contracting, 320 NLRB 871, 874 (1996)).

109. In Payne Electric Co. (IBEW LU 369), JD 188-98, 1998 NLRB LEXIS 863 (Nov. 5, 1998), ALJ Leonard Wagman rejected the employer’s argument that eight applicants were not employees protected under the Act because, in the employer’s view, the applicants’ true purposes were to entrap the contractor into violating the Act, and to strip employees from the contractor. With regard to the stripping claim, Wagman held that, even if the applicants had been under instructions to engage in stripping: such conduct was part of their organizing effort on the Union’s behalf, and would not remove them from the Act’s coverage (citing M.J. Mechanical Services, Inc. 324 NLRB No. 130 (Oct. 24, 1997), slip op. at 3). 

110. In the underlying decision in M.J. Mechanical Services, Inc. (SMW LU 46), 325 NLRB 1098 (1998), ALJ Arthur Amchan rejected the employer’s argument that it could lawfully refuse to hire union applicants because their intent was to deprive MJ of its employees.  In addition to noting that the organizers had only persuaded one employee to join the union, and the union had assigned that employee to another contractor, the Judge explicitly defended stripping as a right protected by Section 7 of the Act.  First the Judge noted that the new union member could have been assigned to continue working for MJ as a salt. The Judge then stated that:

In trying to convince MJ employees to join Local 46, the salts were exercising rights granted to them by Section 7 of the Act.  There is no suggestion that they coerced, interfered with, or restrained MJ employees in the exercise of their rights.  The salts merely told MJ employees about the benefits of belonging to the Union and referred them to the union hall. 

Id. at 1106.  The Board made no comment on this ruling when it adopted, in part, the ALJ’s opinion; but the ALJ’s ruling is consistent with the Board’s decision in another case involving the same employer and the same allegation, M.J. Mechanical Services, Inc. 324 NLRB 812 (1997), enforced, 1998 U.S. App. Lexis 33922 (D.C. Cir., Dec. 28, 1998) (unpublished opinion).

111. In Arlington Electric, Inc. (IBEW LU 728), JD (ATL) 45-97, 1997 NLRB LEXIS 568  (July 16, 1997), an ALJ rejected an employer's argument that it had rightfully fired a paid union organizer for handing out a flyer, which listed the union wage rate.  The employer argued that the union organizer had handed out the flyer to injure the employer by stripping away its employees, and therefore, lost the Act's protection,   The ALJ found, however, that the organizer's purpose in handing out the flyer C to induce employees to seek higher wages and better working conditions C was legitimate and, therefore, was protected by the Act. 
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112. In NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33-34, 18 L. Ed. 2d 1027 (1967), the Supreme Court explained that, even in the absence of proof of an anti-union motivation, an employer may be in violation of Sections 8(a)(1) and (3) of the Act.  As the Court noted, some employer conduct is so inherently destructive of employee interests that independent proof of anti-union motivation is not required: 

Some conduct, however, is so >inherently destructive of employee interests’ that it may be deemed proscribed without need for proof of an underlying improper motive.  Labor Board v. Brown, [380 U.S.] at 287 [(1965)]; American Ship Building Co. v. Labor Board, [380 U.S.] at 311 [(1965)].  That is, some conduct carries with it >unavoidable consequences which the employer not only foresaw but which he must have intended’ and thus bears >its own indicia of intent.’  Labor Board v. Erie Resistor Corp., [373 U.S. 221] at 228, 231 [1965]. 
 Id. at 33.

113. Where the discriminatory conduct has a comparatively slight effect on employee rights, and the employer provides evidence of legitimate and substantial business justifications for the conduct, the policy may still be found unlawful if the General Counsel establishes anti-union motivation.  NLRB v. Great Dane Trailers, 388 U.S. at 34;  Labor Board v. Brown, 380 U.S. 278, 289 (1965); and H.B. Zachry, 319 NLRB 967 (1995).

114. In H.B. Zachry Co., 319 NLRB 967 (1995), enforcement denied, 127 F.3d 1300 (11th Cir. 1997), the Board ruled that an employer had violated Sections 8(a)(1) and 8(a)(3) of the Act by adopting and maintaining a policy of disqualifying job applicants who provide additional, unrequested information on the job application forms.  The employer used this policy to justify its refusal to hire 18 job applicants who had written on their forms that they were voluntary union organizers.  The Board adopted the ALJ’s ruling that:

To the extent that Respondent has applied its extraneous information policy to disqualify applicants who exercise their Section 7 right by indicating on their applications that they are volunteer union organizers Respondent’s action is inherently destructive of such employee rights.

Id. at 980.

115. In H.B. Zachry Co., 319 NLRB 967 (1995), enforcement denied, 127 F.3d 1300 (11th Cir. 1997), the Board also adopted the ALJ’s statement, with regard to the employer’s use of its extraneous information policy, that:

Nothing could be more inherently destructive of Section 7 rights than [a policy] automatically disqualifying union supporters from employment.  As the Supreme Court specifically held, in Great Dane Trailers, supra, in such cases, no proof of anti-union motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that the conduct was motivated by business considerations.

Id. at 980.

 116. In the underlying decision in M.J. Mechanical Services, Inc. (SMW LU 46), 325 NLRB 1098 (1998), ALJ Arthur Amchan ruled that the employer’s hiring policy, which gave preference to applicants referred or recommended to the employer, was inherently destructive of important employee rights, and was therefore unlawful.  The Judge made a compelling point when he compared a preferential hiring policy which could be lawful, to one that excludes union adherents.  As Judge Amchan noted:

A one-time ad hoc hiring preference for relatives, friends and business acquaintances for short-term tasks, made in the absence of any evidence of antiunion motivation may not be inherently destructive of employee rights.  A formal company policy that allows an employer to avoid hiring known union members on all its jobsites forever is inherently destructive of these rights. 

Slip op. at 9 n.19.  The Board itself, however, has not yet indicated how it will rule on these policies.  In adopting the Judge’s rulings, the Board relied on an alternative theory and noted that it found it unnecessary to pass on the Judge’s finding that the employer’s hiring practices were inherently destructive of the applicants’ Section 7 rights.

117. In Houston Stafford Electric, Inc. (IBEW LU 716), JD (ATL) 72-98, 1998 NLRB LEXIS 762 (Grossman, Sept. 29, 1998), ALJ Howard Grossman ruled that an employment arrangement system, under which a number of non-union contractors shared employees via a referral system run by the Houston Chapter of the Independent Electrical Contractors (AIEC), was unlawful. The ALJ ruled that the shared man program itself was inherently discriminatory because it effectively excluded union members from being hired. 

Second, the ALJ also ruled that a $50 fee, charged to applicants who want to submit more than one application in a thirty day period, was applied only to union applicants and was also inherently discriminatory.  As Grossman explained, the contractors must have foreseen the consequences of imposing this requirement only on union applicants. 

118. In Pollock Electric, Inc. (IBEW LU 716), JD (ATL) 50-96, 1998 NLRB LEXIS 440 (July 7, 1998), ALJ Howard Grossman found that the employer’s preferential hiring system containing seven categories was inherently destructive of employee rights, because union applicants would always be restricted to the last two categories in the list and thus stood little, if any, chance of ever being hired.  As Grossman noted:

[I]t may be stated as a general principle that a hiring procedure based upon a sequence of categories of applicants is discriminatory where none of the categories contains union members, or where they first appear at or near the end of the sequence.

119. In Little Rock Electric Contractors, Inc. (IBEW LU 238), JD (ATL) 65-98 (October 16, 1998), ALJ Lawrence Cullen found that the employer had failed to establish any justification for its policy against hiring applicants who work for another employer.  On the contrary, according to Cullen, the policy was discriminatorily motivated and was designed to exclude union members, officials, and sympathizers. The employer’s hiring procedure was, therefore, inherently destructive of employee rights.

120. In Payne Electric Co. (IBEW LU 369), JD 188-98, 1998 NLRB LEXIS 863 (Nov. 5, 1998), ALJ Leonard Wagman ruled that the employer had violated Section 8(a)(3) and (1) of the Act by maintaining and enforcing a policy of refusing to hire employment applicants with earnings substantially in excess of its wage rates, and with histories of short-term employment.  As the Judge noted, these two factors, which barred applicants from employment with the company, were characteristics peculiar to union electricians in the work area at issue.  Because the hiring criteria effectively barred union adherents from employment with the company, they were, according to Judge Wagman, inherently destructive of employee rights to adhere to a labor organization.

121. In Aztech Electric Co. & Contractors Labor Pool, Inc. (IBEW LUs 441, 191, 46, 332, 302 & 617), JD (SF) 73-97, 1997 NLRB LEXIS 683 (September 3, 1997), an ALJ found that an employer's A30% rule, which eliminated from consideration any applicant who during the previous year earned wages more than 30% above or below the wages offered by the agency, was inherently discriminatory and therefore unlawful.  The ALJ reached this finding because the 30% rule excluded all union applicants, and provided only a relatively slight benefit to the agency. 
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122. Motive is not the critical element of a Section 8(a)(1) violation.  The Board’s well settled test is that:

interference, restraint, and coercion under Section 8(a)(1) of the Act does not turn on the employer’s motive or on whether the coercion succeeded or failed.  The test is whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act.  American Freightways Co., 124 NLRB 146, 147 (1959); see also Roadway Express, 250 NLRB 393 (1980);  Cooper Thermometer Co., 154 NLRB 502, 503 n. 2 (1965); NLRB v. Illinois Tool Works, 153 F.2d 811 (CA 7, 1946).

The Developing Labor Law, 76 and n. 18 (Patrick Hardin ed., 3d. ed. 1992).

123. In Wright Electric v. NLRB (IBEW LU 292), 200 F.3d 1162, 163 LRRM (BNA) 2353  (8th Cir. 2000), the Court of Appeals for the Eight Circuit upheld the Board’s ruling that an employer who seeks to obtain union authorization cards through discovery in a state court anti-salting lawsuit commits an unfair labor practice in violation of the National Labor Relations Act.  The Board can enjoin such requests, the court noted, in accordance with the Supreme Court’s statements, in Bill Johnson’s Restaurants, 461 U.S. 731, 738 n. 5, 76 L. Ed. 2d 277 (1983), that the Board has the authority to enjoin matters filed in state court when they have an objective that is illegal under federal law.

124. Questions concerning union preference, in the context of job applications, are inherently coercive.  Pan American Electric (IBEW LU 446), 328 NLRB No. 7, slip op. at 1 (April 16, 1999) (citing Gilberton Coal Co., 291 NLRB 344, 348 (1988), enf’d without op., 888 F.2d 1381, 134 LRRM (BNA) 2568 (3d Cir. 1989)).  In Pan American, the employer’s job superintendent asked organizer applicants whether they were union men during employment interviews.  In accordance with the policy stated above, the Board found the question violated Section 8(a)(1) of the Act.

125. A contractor may not bar a union organizer from contacting its employees while they are on property the contractor does not own, when the employees are on non-working time, in non-working areas. In Ambrose Electric (IBEW LU 724), 330 NLRB No. 23 (November 22, 1999), the Board found that a contractor violated Section 8(a)(1) of the Act when it sent a letter to a union organizer telling him that he should limit his organizing efforts to times other than working hours and locations other than the job sites where the employer’s employees are working.  The Board found the restriction overly broad, because it encompassed break times (non-work times) and break areas (non-work areas) on any properties the employer had jobs, including those it did not own.

126. Section 8(a)(1) of the Act is violated if it is shown that a discharged employee was at the time engaged in a protected activity, that the employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that activity and that the employee was not in fact guilty of that misconduct.  It is not a valid defense that the employer believed in good faith that the misconduct occurred.  NLRB v. Burnup & Sims, 379 U.S. 21 (1964).

127. If the employer makes statements or acts in a manner which conveys a clear message to employees that overt union support will result in an immediate and negative response from the employer, such comments or actions are in violation of Section 8(a)(1) of the Act.  See Litton Systems, 300 NLRB 324 (1990), enforced, 949 F.2d 249 (8th Cir. 1991), cert. denied, 503 U.S. 985 (1992); Guille Steel Products Company, 303 NLRB 537 (1991); Dennett Road Manor Nursing Home, Inc., 295 NLRB 397 (1989), enf’d without op., 933 F.2d 1001 (4th Cir. 1991); Kellwood Company, 299 NLRB 1026, 1027 (1990), enforced, 948 F.2d 1297 (11th Cir. 1991); and Matheson Fast Freight, Inc., 297 NLRB 63 (1989).

128. It is well established that questions concerning union preference, in the context of job application interviews, are inherently coercive and unlawful, even when the applicant is hired.  Electro-Tec, Inc., 310 NLRB 131, 134 (1993), enf’d, 1993 U.S. App. LEXIS 11822 (6th Cir. May 12, 1993).  See also Adco Electric, Inc., 307 NLRB 1113, 1117 (1992), enforced, 6 F.3d 1110 (5th Cir. 1993); Windemuller Electric, Inc., 306 NLRB 664, 673 (1992), enforced in relevant part, 34 F.3d 384 (6th Cir. 1994).

129. Discussion among employees of their wages is an inherently concerted activity clearly protected by Section 7 of the Act.  Automatic Screw Products Co., 306 NLRB 1072, 1072 (1992), enforced, 977 F.2d 582 (6th Cir. 1992).

130. An employer’s rule prohibiting employees from discussing their wages constitutes a clear restraint on employees’ Section 7 right to engage in concerted activities for mutual aid and protection concerning an undeniably significant term of employment.  Leather Center, Inc., 312 NLRB 521, 527 (1993) (quoting Waco, Inc., 273 NLRB 746, 748 (1984)).

131. A[T]he coercive and unlawful effect of a statement is not blunted merely because interrogations of, warnings to, or disparaging statements about union adherents are accompanied by laughter or made in an offhand humorous way.  Ethyl Corporation, 231 NLRB 431, 434 (1977).

132. Directives to employees that they inform management if they are put under pressure from the union, or are harassed by union supporters, violate Section 8(a)(1) of the Act.  J.H. Block & Company, Inc., 247 NLRB 262 (1980).  See also Hawkins-Hawkins Company, Inc., 289 NLRB 1423 (1988); Brunswick Electric Membership Corp., 308 NLRB 361, 372 (1992), enforced, 991 F.2d 790 (4th Cir. 1993).

133. The Board has regularly found that statements to employees that a union activist who is unhappy should seek work elsewhere violate Section 8(a)(1).  See Rolligon Corporation, 254 NLRB 22, 22 (1981); Intertherm, Inc., 235 NLRB 693, 693 n. 6 (1978), enf’d in part, 596 F.2d 267, 100 LRRM (BNA) 3016 (8th Cir. 1979); 726 Seventeenth, Inc., 235 NLRB 604, 606 (1978); Padre Dodge, 205 NLRB 252 (1973). 

134. Similarly violative is [the supervisor’s] suggestion . . . that those who were >so nitpicking’ as to complain about detrimental actions taken unilaterally by the Employer should seek other employment.  Such statements convey the message that complaints about working conditions and continued employment are incompatible and implicitly threaten discharge to those who would voice them.   Stoody Company (IBEW LU 369), 312 NLRB 1175, 1181 (1993) (citing  Fontaine Body & Hoist, 302 NLRB 863, 866 (1991); House Calls, Inc., 304 NLRB 311 (1991); and Rolligon Corporation, 254 NLRB 22 (1981)). 

135. A rule prohibiting union solicitation by an employee outside of working hours, although on company property, is presumed to be an unreasonable impediment to self-organization and therefore, unlawfully discriminatory, in the absence of  evidence that special circumstances make the rule necessary in order to maintain production or discipline.  Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).  Employers may not prohibit union solicitation by employees during breaks, lunch and before and after work.  Our Way, 268 NLRB 394 (1983).  However, an employer has the right to prohibit distribution by non-employees of organizing materials on its premises, except in rare circumstances.  Lechmere, Inc. v. NLRB, 502 U.S. 527, 117 L. Ed. 2d 79 (1992); and NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 100 L. Ed. 2d 975 (1956).

136. In Tualatin Electric (IBEW LU 48), 319 NLRB 1237 (1995), the Board held that the employer’s Ano-moonlighting policy violated Section 8(a)(1) of the Act, even though it applied to all employees, because the Board found that the Employer had enacted its policy in order to prevent IBEW salts from being hired.  The Board stated, A[w]hen, as here, an employer implements a rule with the purpose of restricting or preventing employees from engaging in protected activity, Section 8(a)(1) of the Act has been violated.  Id. at 1237.

137.  In GM Electrics (IBEW LU 952), 323 NLRB 125, 126 (1997), several union organizers overheard a secretary say, AI know [one applicant is] union.  They're all union, while speaking on the telephone with the owner of the company.  The Board held that this statement implied that the contractor would not treat the union organizers fairly in the application process.  Therefore, the secretary's statement violated Section 8(a)(1).  The Board repeated that the declarant's motive is irrelevant to whether a statement tends to restrain, coerce or interfere with rights guaranteed under the Act. 

138. In Gayfers Department Store (IBEW LU 756), 324 NLRB 1246, 156 LRRM (BNA) 1257 (1997), the Board held that employees working for a construction contractor at a department store may lawfully engage in peaceful area standards picketing during non-work time in the store's non-sales areas.  Because the contractor's employees are not strangers to the department store premises, but worked there regularly and exclusively, the department store could have them removed only if necessary to maintain discipline and production.  Id. at 1249-50.  Thus, the department store violated Section 8(a)(1) by threatening the employees with arrest and by removing them from the store.

139. In M.J. Mechanical Services, Inc., 324 NLRB 812 (1997), enforced, 1998 U.S. App. Lexis 33922 (D.C. Cir., Dec. 29, 1998) (unpublished opinion), an employer unlawfully interrogated an applicant, whom the employer knew was a union member, regarding internal union discipline for working nonunion.  The Board, quoting the ALJ's decision, stated that internal union discipline is the applicant's business and not something that the company needed to be concerned about.  Id. at 813.

140. The ALJ in Tech Electric (IBEW LU 532), JD (SF) 97-97, 1997 NLRB LEXIS 980 (Dec. 5, 1997), held that requiring applicants to sign a loyalty oath, verifying the applicants' willingness to comply the company's non-union policy, violated Section 8(a)(1).  The oath unlawfully implied that organizing would be futile and would result in discipline.

141. In Shell Electric (IBEW LU 24), 325 NLRB 839, 840-41 (1998), the Board adopted an ALJ’s ruling that an employer violated Section 8(a)(1) of the Act when the company president asked a union applicant, during the employment interview, whether, if hired, he could refrain from speaking about union wages and benefits on the job to the other employees.  Such a restriction amounts to a gag order prohibiting employees from engaging in clearly protected conduct. 

142. In L&B Construction Co., 326 NLRB No. 132 (Sept. 30, 1998), the Board adopted an ALJ’s ruling that an employer violated Section 8(a)(1) of the Act by creating the impression that the employer was engaging in surveillance of employees’ union activity, when the employer told a salt that things had been getting back to the employer that the salt was trying to convince the company’s employees to join the union.  Slip op. at 1 n.2.

143. In EPI Construction (Carpenters), JD (SF) 77-98, 1998 NLRB LEXIS 563 (Cracraft, Aug. 5, 1998), ALJ Mary Cracraft ruled that the employer’s attorney violated Section 8(a)(1) of the Act when he questioned a company employee, during an interview about the employee’s recent suspension, about the employee’s union activity.  In addition to constituting unlawful interrogation, the Board ruled that the questioning also violated the Board’s decision in Johnnie’s Poultry, 146 NLRB 770, 775 (1964), enforcement denied on other grounds, 344 F.2d 617 (8th Cir. 1965), because it took place without any assurances that the employee did not have to answer the questions asked, and that no reprisals would be taken against him for any answers he gave, and because the question exceeded the scope of the interview (which was about the employee’s suspension).
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144. It is a violation of Section 8(a)(3) of the Act to refuse to hire an individual for employment if that refusal is based upon the applicant’s union membership or activity.  Phelps Dodge Corporation v. NLRB, 313 U.S. 177 (1941).

145. In NLRB v. Town & Country Electric, Inc., 516 U.S. 85, 133 L. Ed. 2d 371 (1995), the United States Supreme Court rendered its unanimous opinion that a worker or an applicant paid by a union to organize a company is an employee protected by the National Labor Relations Act. 

146. Discriminatory selection of union supporters for layoff is unlawful, even when the  underlying layoffs are economically justified.  Hoffman Plastic Compounds, Inc., 306 NLRB 100, 106-107 (1992).

147. Hiring new employees as replacements for those who have been laid off is obvious evidence that the Respondent’s stated reasons for the layoff are a pretext, offered to conceal its unlawful motivations.  Northwind Maintenance & Painting Co., 281 NLRB 317, 320 (1986); and Fedco Freightlines, Inc., 273 NLRB 399, 400-401 (1984).

148. In Edelco, Inc., 321 NLRB 857 (1996), enf’d in part, 132 F.3d 1007, 157 LRRM (BNA) 2046 (4th Cir. 1997), the Board held that the refusal to hire an applicant based on discriminatory considerations was a violation of the Act even though the applicant admitted that he was not qualified for the position in question.  The Board stated that it would leave to compliance the issues of whether this admission . . . should operate to preclude reinstatement and/or toll backpay.  Id. at 857.

149. In Manno Electric, Inc., 321 NLRB 278 (1996), enf’d, 127 F.3d 34 (5th Cir. 1997), the Board found that the employer had violated Section 8(a)(3) by assigning known union organizers to isolated job sites.

150. The Board has held that a constructive discharge occurs when an employee quits because an employer has deliberately made working conditions unbearable.  Two elements must be proven to establish a constructive discharge: 

First, the burdens imposed upon the employee must cause, and be intended to cause, a change in his working conditions so difficult or unpleasant as to force him to resign.  Second, it must be shown that those burdens were imposed because of the employee’s union activities.

Algreco Sportswear Co., 271 NLRB 499, 500 (1984) (quoting Crystal Princeton Refining Company, 222 NLRB 1068, 1069 (1976)).  See also Keller Manufacturing Co., 237 NLRB 712, 722-23 (1978), enf’d in part, 622 F.2d 582, 106 LRRM (BNA) 2546 (7th Cir. 1980).

151. The constructive discharge test is difficult to meet.  In Algreco Sportswear Co., 271 NLRB 499 (1984), an employee quit after she was assigned the lowest of three newly-established wage rates. The Board found that the wage rate paid to the employee was based on her support for the union and was, therefore, discriminatory.  But the Board refused to find that the burden imposed by Algreco was so intolerable as to force her resignation.  The test is, of necessity, an objective one, taking into account the circumstances of each case.  The mere existence of discrimination is insufficient to warrant consideration of abandonment of employment as a constructive discharge.  Id. at 500 (citing Van Pelt Fire Trucks, 238 NLRB 794 (1978); and Walker Electric Co., 142 NLRB 1214, 1215 (1963)).

152. In Contractors Services, Inc. (IBEW LUs 443 & 347), 324 NLRB 1254 (1997), the Board ruled that an employment agency had violated the Act by requiring, as a condition of being listed for hire, that a local union and its members sign an irrevocable authorization form.  The form required the local union to waive its right to call a strike, and its authority to penalize members for working non-union.   The form also required union members to disclose their union affiliation.  According to the Board, the employment agency violated the Act in several ways.  First, the forms requiring applicants to reveal their union affiliation in order to be considered for employment were coercive on their face as they require[d] employees to reveal their union affiliation in order to be considered for employment.  Id. at 1255 n.4. Second, the employment agency unlawfully refused to hire three applicants who did not return the form, because, according to the Board, refusing to return the form was protected activity.  Third, the employment agency required applicants, as a condition of employment, to waive their right to engage in a work stoppage C a clear violation of Section 8(a)(3).  Finally, the employment agency required union members to sign the form, but did not require nonunion applicants to sign the form.  The employment agency, therefore, unlawfully discriminated against applicants based on their union membership.  The Board rejected the employment agency's defense C that the form assured that the union would not force its members to quit their jobs C because the employment agency made protected activity the only forbidden reason for quitting, out of the many reasons motivating employees to quit their job.

153. In Mauka Inc. (IBEW LU 673), 327 NLRB No. 148 (March 8, 1999), the Board reversed an ALJ’s ruling and held that an organizer who walked off the job alone to protest the company’s unfair labor practices, was engaged in a protected unfair labor practice strike because his actions were a  direct outgrowth of employees’ protected concerted activity.  In this case, two salts approached the company president, while wearing pro-union buttons and t-shirts, and asked for raises that would include union benefits and wages.  The boss told them he would not speak to them together, and instructed them never to wear union insignia again.   The two salts then picketed their respective work sites during non-work time.  One of the salts, who had been removed from his work site for picketing, opted to go out on strike, rather than return to the job site.  When he later offered to return unconditionally, the employer fired him. 

The Board found the firing violated Section 8(a)(3), because the employee had been engaged in a strike, that, although carried out by only one person, was nonetheless protected, because it was engaged in to protest unfair labor practices committed in the context of the Union’s organizing campaign.  The Board emphasized that the strikers’ actions had to be viewed in the context of other concerted activity, such as: (1) the employees’ attempt to organize; (2) the approach to the employer for union wages and benefits; and (3) the picketing for union wages and benefits. 
The more concerted activity organizers engage in before a strike, therefore, the better the chance that a one-person strike will be held protected.
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154. The Board has held that surreptitiously recorded conversations and the transcripts thereof are admissible if they are properly identified and authenticated, and if they were not obtained in violation of the U.S. Constitution or Federal law.  Nanticoke Homes, Inc., 261 NLRB 736 (1982), enf’d without op., 113 LRRM (BNA) 3816 (4th Cir. 1983), East Belden Corporation, 239 NLRB 776, 782 (1978), enf’d without op., 634 F.2d 635, 108 LRRM (BNA) 2104 (9th Cir. 1980); Plasterers Local 90, 236 NLRB 329 (1978), enf’d, 606 F.2d 189, 102 LRRM (BNA) 2482 (7th Cir. 1979).

155. Tapes of conversations between employees and employers are admissible under Board law if they were not made in a bargaining context.  See Wellstream Corporation, 313 NLRB 698 (1994); Algreco Sportswear Company, 271 NLRB 499 (1984).

156. The Board has sometimes found tape recordings of employee meetings to be the best evidence of what was said.  McAllister Brothers, Inc., 278 NLRB 601, 601 n.2 (1986), enf’d, 819 F.2d 439, 125 LRRM (BNA) 2566 (4th Cir. 1987).

157. In Tech Electric, Inc. (IBEW LU 532), JD (SF) 97-97, 1997 NLRB LEXIS 980 (December 5, 1997), an ALJ admitted into evidence a recording of an interview, which a union organizer had secretly taped.  The ALJ expressed no opinion on whether the organizer had violated state law by secretly taping the interview.

158. Note:  The preceding cases deal with the admissibility of tapes in Board proceedings.  The state law on concealed tape recording also should be checked to avoid potential criminal violations.  For example, in some states it is illegal to tape a conversation surreptitiously unless the person taping is participating in the conversation. In other states, the criminal law may be even more restrictive.

159. In Braun Electric Co., Inc. (IBEW LU 428), 324 NLRB 1 (1997), the Board held that a contractor violated Section 8(a)(1) by suing a business agent and a local union for videotaping and filing unfair labor practice charges against the contractor.  The Board applied Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983), in which the Supreme Court held that a lawsuit would violate Section 8(a)(1) if: (1) the plaintiff had filed the suit in retaliation for activity protected by Section 7; and (2) the suit was without merit.  The contractor's testimony revealed it had sued the business manager and local union to retaliate for what the Board found were attempts to exercise rights protected by the Act.  The Board also found that the suit was without merit because the state court had dismissed the action.  Therefore, under Bill Johnson's, the Board ruled that the suit violated Section 8(a)(1).   As a remedy, the Board ordered the contractor to reimburse the union for the legal expenses it had incurred defending against the lawsuit.

160. In Delta Mechanical, Inc., 323 NLRB 76 (1997), the Board affirmed an ALJ's ruling that the Board's Jencks rule, 29 C.F.R. 102.118(b)(1), did not require a local union to turn over a videotape to a contractor.  A union organizer had recorded the videotape, which revealed the contractor’s reaction to applications from union organizers.  Under the Jencks rule, after a witness testifies and if the respondent so requests, the General Counsel or charging party must turn over to the respondent, for purposes of cross-examination, any statement made by a witness that relates to his or her testimony.  Board regulations define statement as a verbatim recital of a witness's account of an earlier event.  29 C.F.R. 102.118(d)(2).   Because the union organizer recorded the videotape during the actual event, and because it was not an account of an earlier event, the videotape was not a statement subject to the Jencks rule.  If the respondent, however, had properly subpoenaed the videotape, the General Counsel or the charging party would have had to give a copy of the videotape to the respondent.

161.  In Heiliger Electric Corp. (IBEW LU 1141), 325 NLRB 966 (1998), the Board adopted the ruling of ALJ Randall Frye, that an employer lawfully rejected applications from pro-union individuals who engaged in intimidating conduct during the application process.  The conduct found to be intimidating included: intrusive videotaping; the refusal to discontinue videotaping; close scrutiny and videotaping of personal papers on the manager’s desk; and the refusal to leave the office when asked.
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162. In an unfair labor practice case, an employer cannot by subpoena obtain witness affidavits given to the NLRB General Counsel.  The Board follows the Jencks decision and permits access to a witness’ pretrial statement only after the witness has testified and only for the limited purpose of cross-examination.  P.S.C. Resources, Inc. v. NLRB, 576 F.2d 380, 386-87, 98 LRRM (BNA) 2432 (1st Cir. 1978). 

163. Even if witness affidavits have been given to the union as well as the General Counsel, they are immune from production under a subpoena, because the interests of the Board and the union are aligned when the union is the charging party. See H.B. Zachry Co., 310 NLRB 1037 (1993) (privilege of confidentiality is not waived when witness affidavits taken by the NLRB are also in the possession of the union, where the Board is prosecuting charges the union filed against the employer).

See also United Technologies Corp. v. NLRB, 632 F. Supp. 776, 784 (D. Conn.) (work product privilege is not waived when union shares documents with the NLRB, which is prosecuting charges the union filed, since they share common interests in the litigation), affirmed, 777 F.2d 90 (2d. Cir. 1985).

164. In a Section 8(a)(3) case the employer is not entitled to obtain by subpoena copies of authorization cards signed by employees or notes showing which employees attended organizational meetings, even if those documents are relevant to the issues in the case.  A[T]he confidentiality interests of employees who have signed authorization cards and attended union meetings are paramount to the Respondent’s need to obtain the identities of such employees for cross-examination and credibility impeachment purposes.  National Telephone Directory Corp., 319 NLRB 420, 421 (1995).

165. In Iplli, Inc. (IBEW LU 25), 321 NLRB 463 (1996), the Board described the ALJ’s discussion of goals of the union’s salting program as irrelevant to the question whether the employer violated Section 8(a)(3) by discharging an employee.  That case could be cited to support the argument that information on salting, designed to show the goals of the program, are irrelevant to the issues in a Section 8(a)(3) case and therefore cannot be obtained by subpoena.

166. In Dayton Typographical Service, Inc., 273 NLRB 1205 (1984), the Board found that the employer had committed an unfair labor practice by asking an employee for a copy of the affidavit that he had given to the NLRB General Counsel, without assuring the employee that production of the affidavit was strictly voluntary and that no reprisal would result from his refusal to produce it.

167. By contrast, in Magic Chef, Inc., 286 NLRB 380 (1987), the Board held that a request for an affidavit given to the NLRB General Counsel was not an unfair labor practice where the employer repeatedly assured the employee that production would be voluntary and that no reprisal would follow a failure to produce the affidavit.
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168. The Ninth Circuit (Washington, Oregon, Idaho, Nevada, California, Alaska and Hawaii) ruled in NLRB v. Bakersfield Californian, 128 F.3d 1339, 156 LRRM (BNA) 2932 (9th Cir. 1997), that the Board’s authority to subpoena information extends to parties who are not subject to an unfair labor practice investigation.  Specifically, the court affirmed the Board’s authority to subpoena from a newspaper the name, address and telephone number of an employer who placed an anonymous classified advertisement and allegedly committed an unfair labor practice.

169. The Sixth Circuit (Michigan, Ohio, Kentucky and Tennessee), however, has refused to enforce an NLRB subpoena seeking the identity of an employer placing an anonymous advertisement for employees, in NLRB v. Midland Daily News, 151 F.3d. 472, 158 LRRM (BNA) 2919 (6th Cir. 1998).  Also, presumably because of this decision, the Division of Advice told Region 7 (which is in the Sixth Circuit), not to pursue a subpoena against a local newspaper to determine the identity of an employer who had advertised anonymously for electricians and had not responded to any applications from union members, in Unknown Electrical Contractors, 7-CA-41188 (Oct. 6, 1998). 

Organizers should still push for these subpoenas, however, as the Board has issued them, and the Court of Appeals for the Ninth Circuit, as discussed above, has enforced compliance with such an investigative subpoena in a salting case.
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170. As the Supreme Court pointed out in NLRB v. Washington Aluminum Company, 370 U.S. 9, 16 (1962), it has long been settled that the reasonableness of workers’ decisions to engage in concerted activity is irrelevant to the determination whether the activity is protected under Section 7 of the Act.

171. For concerted activities to be considered protected, it is not necessary that all employees in a plant, a bargaining unit, on a construction site, or in a group join in those activities.  The fact that there may be dissent does not destroy the rights of those who decide to take concerted action.  However, where employees engage in partial or repeated intermittent work stoppages, or create a safety hazard by a precipitate walkout, the activity is not protected by the Act.  Jasper Seating Company, 285 NLRB 550 (1987), enforced, 857 F.2d 419, 129 LRRM 2337 (7th Cir. 1988).   Nor is a work stoppage protected where there is in effect a collective bargaining agreement that prohibits the stoppage.  NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938).

172. Justice Brennan stated in Insurance Agents that the use of economic strength is part and parcel of the collective bargaining process, and does not evidence a refusal to bargain in good faith.  Nevertheless, certain actions such as violence, slow-downs, sit-ins, and disloyal tactics are unprotected activities.  NLRB v. Insurance Agents’ International Union, 361 U.S. 477 (1960).

173.  The right to engage in a strike, i.e., a concerted work stoppage, is basic to the Act.  NLRB v. Washington Aluminum Company, 370 U.S. 9 (1962).  That right becomes merely illusory if one employee may be precluded from seeking the support of others to join with him or her in a strike or from counseling with . . . others about the possibility or tactics of a work stoppage.  Stoody Company (IBEW LU 369), 312 NLRB 1175, 1181 (1993).

174. Employees’ failure to make a specific demand in connection with their job-related complaints does not render their cessations of work unprotected.  Eaton Warehousing Company, 297 NLRB 958 (1990), enf’d, 135 LRRM (BNA) 3272 (6th Cir. 1990).

175. A concerted job action does not lose its Section 7 protective status because the agreement of the affected employees to take such action is spontaneous and casual. Vic Tanny International, 232 NLRB 353 (1977), enforced, 622 F.2d 237, 104 LRRM (BNA) 2395 (6th Cir. 1980).

 176. The law is clear.  The right to honor a picket line is protected by the Act.  A threat to discipline or discharge an employee for refusing to cross a picket line violates the Act.  See Newberry Energy Corp., 227 NLRB 436 (1976); Torrington Construction Co., 235 NLRB 1540 (1978); Western Stress, 290 NLRB 678 (1988).  Fluor Daniel, Inc., 311 NLRB 498, 501 (1993), enf’d in part, 161 F.3d 953, 159 LRRM (BNA) 2794 (6th Cir. 1998).  However, the right to honor a picket line is not protected activity where such conduct is clearly and unmistakably prohibited by a collective bargaining agreement that is in effect.  Furthermore, sympathy strikers, like economic strikers, may be permanently replaced in order to continue the efficient operation of the employer’s business.  Butterworth Mortuary, 270 NLRB 1014 (1984), enf’d, 767 F.2d 933 (9th Cir. 1985). 

177. In Mauka Inc. (IBEW LU 673), 327 NLRB No. 148 (March 8, 1999), the Board held that an organizer who walked off the job alone to protest the company’s unfair labor practices, was engaged in a protected unfair labor practice strike because his actions were a direct outgrowth of employees’ protected concerted activity. In this case, two salts approached the company president, while wearing pro-union buttons and t-shirts, and asked for raises that would include union benefits and wages.  The boss told them he would not speak to them together, and instructed them never to wear union insignia again.   The two salts then picketed their respective work sites during non-work time.  One of the salts, who had been removed from his work site for picketing, opted to go out on strike, rather than return to the job site.  When he later offered to return unconditionally, the employer fired him. 

The Board found the firing violated Section 8(a)(3), because the employee had been engaged in a strike, that, although carried out by only one person, was nonetheless protected, because it was engaged in to protest unfair labor practices committed in the context of the Union’s organizing campaign.  The Board emphasized that the strikers’ actions had to be viewed in the context of other concerted activity, such as: (1) the employees’ attempt to organize; (2) the approach to the employer for union wages and benefits; and (3) the picketing for union wages and benefits. 

The more concerted activity organizers engage in before a strike, therefore, the better the chance that a one-person strike will be held protected.
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178. It is well settled that unfair labor practice strikers cannot be permanently replaced, but instead must be offered immediate and full reinstatement on submission of an unconditional offer to return to work.  NLRB v. Fleetwood Trailer Company, 389 U.S. 375, 379, n. 5 (1967); Decker Coal Company, 301 NLRB 729, 748 (1991).

179. In Forsyth Electrical Company, Inc. (IBEW LU 342), JD (ATL) 73-97, 1997 NLRB LEXIS 966 (December 3, 1997), an ALJ rejected the General Counsel's assertion that several union organizers engaged in an unfair labor practice strike.  Instead, the ALJ found the strike was recognitional at its core.  The ALJ relied primarily on the following evidence: the contractor had not yet committed any unfair labor practices when the volunteer organizers stopped work; several volunteer organizers had engaged in a concerted work slowdown before they went on strike; the local union business manager coordinated the volunteer organizers’ activities; and many strikers had new jobs lined up before they went out on strike. 

180. In Mauka Inc. (IBEW LU 673), 327 NLRB No. 148 (March 8, 1999), the Board reversed an ALJ’s ruling and held that an organizer who walked off the job alone to protest the company’s unfair labor practices, was engaged in a protected unfair labor practice strike because his actions were a direct outgrowth of employees’ protected concerted activity.  See discussion of this case in the preceding section (Strikes).
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181. The Board has long held that, absent proper justification, employer photographing of employees engaged in protected picketing activity tends to intimidate and, therefore, violates Section 8(a)(1) of the Act.  Photographing by the employer in the mere belief that some A[misconduct] might happen does not constitute a proper justification.  F.W. Woolworth Company, 310 NLRB 1197, 1197 (1993); Toledo (5) Auto/Truck Plaza, 300 NLRB 676, 679 (1990), enf’d without op., 986 F.2d 1422 (6th Cir. 1993); Waco, Inc., 273 NLRB 746 (1984). 

182. Photographing of picketing employees is permitted only in the narrowest of circumstances in which the employer can establish that there is a reasonable apprehension of imminent unlawful conduct on the picket line (e.g., violence, blocking ingress or egress) or that photographing is necessary to prepare for litigation.  See, e.g., Concord Metal, Inc., 295 NLRB 912, 921 (1989).

183. In United Charter Service, Inc., 306 NLRB 150, 150 (1992), the Board set forth the following test for whether an employer has created an impression of unlawful surveillance:  whether employees would reasonably assume from the statement in question that their union activities have been placed under surveillance.

184. In L&B Construction Co., 326 NLRB No. 132 (Sept. 30, 1998), the Board adopted an ALJ’s ruling that an employer violated Section 8(a)(1) of the Act by creating the impression that the employer was engaging in surveillance of employees’ union activity, when the employer told a salt that things had been getting back to the employer that the salt was trying to convince the company’s employees to join the union.  Slip op. at 1 n.2.
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185. Amended charges based upon conduct occurring more than six months before the filing and service of the amended charge will be untimely unless the additional conduct cited in the amended charge relates back to the conduct alleged in the original charge.  Daniel Construction Company, 244 NLRB 704, 705 (1979).  This may occur, for example, when the amended charge particularizes general allegations in the original charge or is based upon the same pattern of conduct.  See, e.g., Air Express International Corporation, 245 NLRB 478 (1979), enf’d in part, 659 F.2d 610, 108 LRRM (BNA) 2795 (5th Cir. 1981), cert. denied, 459 U.S. 835 (1982); Schraffts Candy Company, 244 NLRB 581 (1979); Staco, Inc., 244 NLRB 461 (1979).  In such cases, the amendment will be timely even though some of the conduct may have occurred more than six months earlier.

186. In Leach Corporation, 312 NLRB 990, 991 (1993), enf’d, 54 F.3d 802, 149 LRRM (BNA) 2285 (D.C. Cir. 1995), the Board reaffirmed that it is firmly established that the 10(b) period commences only when a party has clear and unequivocal notice of a violation of the Act.  E.g., Desks, Inc., 295 NLRB 1, 11 (1989).  The Board also has noted that the burden of showing such clear and unequivocal notice is on the party raising the affirmative defense of Section 10(b).  Chinese American Planning Council, 307 NLRB 410 (1992), enf’d without op., 990 F.2d 624 (2d Cir. 1993).

187. In MacDonald’s Industrial Products, Inc., 281 NLRB 577 (1986), the facts were such that the alleged violation occurred on March 4, 1985 and the charge was filed on September 4, 1985.  The employer contended that the 6-month limitation period set forth in Section 10(b) includes the day of the alleged offense.  The Board, however, found that computation of Section 10(b) of the Act’s 6-month limitation period properly begins the day following the commission of the alleged unfair labor practice . . . .  Id. at 577.  In this regard, the Board noted that under Section 102.114 (now Section 102.111) of the Board’s Rules and Regulations, the day of an act is not counted toward the relevant time period.

188. In Brown & Sharpe Manufacturing Company, 312 NLRB 444 (1993), the Board noted that it has consistently applied the equitable doctrine in Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946), which holds that if a party Ahas been injured by fraud and >remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered . . . .’  In addition, the Board held that it agrees with the standard in Fitzgerald v. Seamans, 553 F.2d 220, 228 (D.C. Cir. 1977), holding that >deliberate concealment of material facts’ tolls the Federal statutes of limitations until the plaintiff discovers or with due diligence should have discovered the basis of the lawsuit.  Id. at 444 (quoting Fitzgerald). 
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189. In Dean General Contractors, 285 NLRB 573 (1987), the Board specifically considered and rejected any presumption against reinstatement in the construction industry.  In holding that the Board should apply its traditional back pay and reinstatement remedy to the construction industry, the Board majority in Dean reasoned that:

[Although jobs in the construction industry are frequently of short duration at a single project, that is not always the case.  The industry is also composed, to some extent, of >permanent and stable’ work forces.  Further, in either case it is not unusual for employers to carry over or request selected employees from jobsite to jobsite.  Determination of whether an employee may have been transferred or reassigned elsewhere is a factual question and, as such, is best resolved by a factual inquiry at compliance.

Id. at 573-74.

190. The Board reaffirmed Dean General Contractors, 285 NLRB 573 (1987) in both Stark Electric, Inc. (IBEW LU 317), 324 NLRB 1207 (1997), enforcement denied in part, 166 F.3d 1210 (4th Cir. 1998), and Laben Electric Co. (IBEW LU 611), 323 NLRB 428 (1997).  Dean General held that reinstatement and back pay are the appropriate remedies where an employer unlawfully lays off or terminates an employee who was working in the building and construction industry.  The Board's order requires the employer to reinstate unlawfully terminated employees to the same position or an equivalent position on another project, unless the employer can show, during compliance proceedings, that it would not have transferred the employees to another project after they were terminated. 

191. In Ferguson Electric Co., 330 NLRB No. 75, slip op. 2 (2000), the Board again reaffirmed the principle from Dean General Contractors, 285 NLRB 578 (1987), that the usual remedy for unlawful discrimination involving construction jobs is reinstatement with backpay.  The Board made clear that the burden is on the employer, as the wrongdoer, to show that the discriminatee would not have been transferred or reassigned to another job after the project at issue ended. 

192. The discriminatee should be reinstated to the position he or she formerly held.  Reinstatement to a different position or to a similar position at a different facility generally is insufficient.  See e.g., Orit Corporation, 294 NLRB 695, 699 (1989), enforced, 918 F.2d 225 (D.C. Cir. 1990); and Professional Porter & Window Cleaning Co., 275 NLRB 12 (1985).  The Courts of Appeals generally have approved this Board doctrine.  See e.g., NLRB v. Jackson Farmers, Inc., 457 F.2d 516, 518 (10th Cir. 1972); and NLRB v. Seligman & Associates, Inc., 808 F.2d 1155, 124 LRRM (BNA) 2277 (6th Cir. 1986), cert. denied, 484 U.S. 1026 (1988).  In Seligman, the Court considered and rejected the employer’s argument that it believed in good faith that the employees would be better off reinstated at another location:

The difficulty is, however, that the option should have been that of the [discriminatees] as the injured party and not of [the employer], and that [the employer’s] offer, coming on the heels of admitted violations of the Act, could very likely be seen by [the employer’s] other employees as grudging compliance at best and, at worst, as punitive. An employer may not transfer employees for the purposes of discouraging membership in a labor organization. [citation omitted] Reinstatement to another location after termination because of protected activity, absent a dominant legitimate business reason, would achieve the same result as a transfer to discourage union membership.

Id. at 124 LRRM (BNA) 2281.

193. AI decline to find that in construction or any other industry, an employer has the right to withhold reinstatement to the former position at the former location of employment absent evidence either that the job is no longer existent or for other >dominant legitimate business reasons’ not present here.  I find therefore the only basis for Respondent to have legitimately withheld reinstatement to the Project Thunder position would have been if the job no longer existed.  Tualatin Electric (IBEW LU 48), 312 NLRB 129, 133 (1993), enf’d, 84 F.3d 1202 (9th Cir. 1996).

194. AI find that Respondent as a matter of law is not entitled to conclude that, because the time remaining in a job at a particular location is short, that the job no longer exists. Rather I hold that the term >reinstatement,’ as the Board has interpreted that term, requires that the employee be given his old job at the old location for the remainder of the period work is available. . . .  Accordingly, I find that Respondent in failing to offer [the employee] reinstatement to his former position did not comply with the terms of the settlement agreement.  Tualatin Electric (IBEW 48), 312 NLRB 129, 133 (1993), aff’d, 84 F.3d 1202 (9th Cir. 1996).

195. In B E & K Construction Co. (IBEW LU 238), 321 NLRB 561 (1996), enforcement denied, 133 F.3d 1372 (11th Cir. 1997), the Board described the appropriate reinstatement remedy in a refusal to hire case when the number of discriminatees exceeds the number of positions that were available.  The Board held that reinstatement of all discriminatees would not automatically be required.  The employer must offer reinstatement and provide backpay to any employees that the General Counsel shows would have been hired but for the employer’s discrimination.  If the jobs that those discriminatees originally applied for no longer exist, the employer must offer employment in current equivalent jobs, unless the Respondent shows that it would not have assigned those employees to other jobs elsewhere after the projects in question ended.  Id. at 
562.  With respect to other discriminatees:

[I]f the General Counsel shows in compliance that nondiscriminatory consideration would have resulted in their hiring into positions equivalent to those for which they applied that became available subsequent to their applications . . . they are to be offered backpay  attributable to those jobs . . . [and] they are to be offered employment in current equivalent jobs, unless Respondent shows that its personnel policies and procedures do not provide for retaining employees and reassigning them to jobs at other sites after the termination of a particular project.

Id. at 562.

196. As a remedy for the employer's unlawful refusal to hire applicants with union backgrounds, in Zurn/N.E.P.C.O., JD 34-07, 1997 NLRB LEXIS 121 (February 24, 1997), the ALJ ordered the contractor to consider all of the applicants for employment, and to provide backpay to those applicants it would have hired but for the applicant's unlawful conduct. 

197. In Tualatin Electric, Inc., JD (SF) 93-97, 1997 NLRB LEXIS 942 (November 10, 1997), an ALJ ruled on several issues concerning backpay for union organizers, only some of which are reviewed here.  First, union control over when an organizer may work for nonunion contractors does not affect the organizer's entitlement to back pay.  Second, unlawfully terminated employees need only follow their regular method for obtaining work.  Thus, employees, accustomed to obtaining work through the union hiring hall, are not necessarily required to pursue nonunion work.  Third, an unlawfully terminated employee who had obtained work with a nonunion contractor, but who quit after the union decided not to organize that contractor, had good cause for quitting.  Therefore, the ALJ did not reduce the employee's backpay. Finally, the ALJ ruled that a union's letter disavowing any interest in organizing the contractor did not cut off the contractor's backpay obligations, since the union's organizing activities, in fact, continued after that date.  The Board recently affirmed many of these same principles in Ferguson Electric Co., 330 NLRB No. 75, slip op. at 5-6 & n.18 (Jan. 19, 2000).

198. The Sixth Circuit affirmed, in Norman King Electric v. NLRB, 177 F.3d 430, 161 LRRM (BNA) 2435 (6th Cir. 1999), that the Board’s bifurcated (i.e., two-stage) approach to determining specific remedies is appropriate. Here the employer had argued that the court should refuse enforcement of the Board’s order that the employer hire six applicants, because the applicants would have been terminated in any event at the end of the project in question, which was now long over.  The court rejected this argument, however, relying on the Board’s decision in Dean General Contractors, 285 NLRB 573 (1987), that there is a presumption in the construction industry that employment would have continued beyond the end of a given project, which the employer may overcome (disprove) at the compliance stage of the proceedings); and Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 900-01, 81 L. Ed. 2d 732 (1984) (recognizing that a bifurcated (two-stage) procedure is an appropriate way to customize a remedy to cure unfair labor practices).

199. In the underlying decision in M.J. Mechanical Services, Inc. (SMW LU 46), 325 NLRB 1098 (1998), ALJ Arthur Amchan found that the employer had refused to consider union applicants for hire, and had refused to hire those same applicants.  In its decision, the Board amended Judge Amchan’s ruling, finding only a refusal to consider.  The Board noted that, because it found a refusal to consider, it did not have to go further and rule on the refusal to hire question. The Board then tailored the remedy to that generally applied in refusal to consider cases.  This permits the employer essentially to relitigate its Wright Line defense at the compliance stage, and defeat a damages award and order to hire by showing that the persons it did hire were more qualified than the union applicants.
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200. In Ferguson Electric Co. (IBEW LU 241), 330 NLRB No. 75 (Jan. 19, 2000), the Board ruled that the compensation a union organizer receives from a union can be treated like any other wages from a second job when a back pay award is calculated.  Thus, when a paid union organizer is discriminatorily discharged, or refused hire, union wages will not be treated as interim earnings and deducted from the back pay award.  In reaching this decision, the Board essentially adopted the General Counsel’s policy, set forth in the Advice Memorandum in City Electric, Inc., 21-CA-30416 (July 6, 1995), and discussed in previous editions of this Report.

The Board’s ruling in Ferguson Electric turns on several basic NLRB principles. When an employee loses a job because of discrimination, the employee is under an obligation to mitigate (lessen) any lost wages by seeking other employment while his or her case is being litigated. When the back pay award is eventually calculated, the money the discriminatee in fact earned from other employment is deducted from the back pay award as interim earnings.  If, however, the discriminatee held a second job before the backpay period began (i.e., before the discriminatory discharge or refusal to hire), and continued to hold that secondary employment after the backpay period began, those wages are not treated as interim earnings and are not deducted from the back pay amount.  To fail to apply this rule to a paid union organizer, the Board noted, would be to completely ignore the Supreme Court’s ruling in  NLRB v. Town & Country, 516 U.S. 85 (1995), as well as the Court’s specific statements in that case that being paid for organizing on non-work time is akin to moonlighting, i.e., secondary employment.
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201. As a separate but related issue, it is important to remember that all discriminatees do have a duty to attempt to mitigate back pay damages by seeking other employment during the back pay period. If an employer can prove there has been no good faith effort to mitigate, the employer can escape all back pay liability and the discriminatee can end up with nothing.  The key to proving a good faith effort is keeping a written record of the dates and places the discriminatee applied for work. 
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A contractor will be responsible for the actions of its supervisors and/or agents.  Proof of supervisory or agency status is therefore necessary when attributing the acts of individuals to the employer.  Supervisory status can be a complicated proof matter; agency status is often far easier to prove.

202. An employee does not become a statutory supervisor merely because he occasionally directs the work of employees or assigns them work.  The statute itself requires that the exercise of this authority be more than merely routine, and requires the use of independent judgment.  In Goldies, Inc. v. NLRB, 628 F.2d 706, 709, 105 LRRM (BNA) 2625, 2626 (1st Cir. 1980) (quoting Stop & Shop Co. v. NLRB, 548 F.2d 17, 19, 94 LRRM (BNA) 2416 (1st Cir. 1977)), the Court stated:

>The test must be the significance of his judgments and directions.’ [citation omitted].  This sounding is to be taken with respect to the fundamental twin principles that a supervisor represents the interests of his employer vis-a-vis other employees and is not >one of the gang who merely gives routine instructions.’

203. In NLRB v. Security Guard Service, Inc., 384 F.2d 143, 147, 66 LRRM 2247, 2248 (5th Cir. 1967), the Court stated: the statute expressly insists that a supervisor 1) have authority 2) to use independent judgment 3) in performing such supervisory functions 4) in the interest of management.

204. The true test involves an inquiry into the significance of the individual’s judgment which is usually determined by observing whether the individual >identif[ies] with the interests of the employer rather than the employees’ . . . An individual does not become a supervisor merely because he possesses greater skills and job responsibilities than his fellow employees.  NLRB v. Lauren Manufacturing Co., 712 F.2d 245, 248, 113 LRRM (BNA) 3552, 3554 (6th Cir. 1983).

205. In Stewart & Stevenson Services, Inc., 164 NLRB 741, 742 (1967), enforced, 414 F.2d 232  (5th Cir. 1969), the Board stated: It has long been held that the sporadic assumption of supervisory duties, e.g., during annual vacation periods of a regular supervisor, is not sufficient to establish supervisory status at other times.

206. In Latas De Aluminio Reynolds, Inc., 276 NLRB 1313, 1313 (1985), the Board stated: the appropriate test for determining the status of employees who substitute for supervisors is whether they spend a regular and substantial portion of their working time performing supervisory tasks.  There the Board denied supervisory status to an employee who substituted for supervisors for about five weeks in one year.

207. The critical issue in making a determination of agency is whether, under all the circumstances, the employees would reasonably believe that the alleged agent was reflecting company policy and was speaking and acting for management.  Community Cash Stores, 238 NLRB 265 (1978).  See also Injected Rubber Products Corporation, 258 NLRB 687 (1981); B-P Custom Building Products, 251 NLRB 1337 (1980); and Einhorn Enterprises, Inc., 279 NLRB 576 (1986).

208. Contractors may argue that they are not responsible for actions taken by their office staff because administrative personnel do not have the authority to act as the contractor's agent.  The Board stated in GM Electrics (IBEW LU 952), 323 NLRB 125 (1997), that one test for whether a contractor's employee has authority to bind the contractor is whether, under all circumstances, the employees >would reasonably believe that the employee in question [the alleged agent] was reflecting company policy and speaking and acting for management’ (quoting Southern Bag Corp., 315 NLRB 725, 725 (1994) and Waterbed World, 286 NLRB 425, 426-27 (1987)).  In GM Electrics, a secretary was stationed in the contractor’s office, was assigned to distribute and collect job applications, and described the contractor's hiring needs to applicants.  The Board found that job applicants reasonably believed that the secretary had authority to speak on the contractor's behalf when it came to the contractor's hiring process.  The contractor, therefore, was responsible for certain statements, which the Board found constituted unfair labor practices, that the secretary made concerning the contractor's hiring process.
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209. A determination of alter ego status can be used to bind a second employer to a collective bargaining agreement negotiated between the union and the employer’s alter-ego, and to obligate the second employer to bargain with the union as the representative of its own employees. See Mining Specialists, Inc., 314 NLRB 268 (1994); Advance Electric, Inc. (IBEW LU 124), 268 NLRB 1001, 1004 (1984).

210. In Mining Specialists, Inc., 314 NLRB 268 (1994), the ALJ described the Board’s longstanding (and fact-specific test) for determining alter-ego status as including the following factors, none of which is determinative on its own of such status:

(1) common management and ownership;
(2) common business purpose, nature of operations and supervision;
(3)  common premises and equipment;
(4) common customers, i.e., whether the employers constitute the same business in the same market; 
(5) the nature and extent of the negotiations and formalities surrounding the transaction; and 
(6) whether the purpose behind the creation of the alleged alter ego was legitimate or whether, instead, its purpose was to evade responsibilities under the Act.

Id. at 271 (citing Fugazy Continental Corp., 265 NLRB 1301 (1982), enf’d,  725 F.2d 1416, 115 LRRM (BNA) 2571 (D.C. Cir. 1984)).

211. In  Advance Electric, Inc., 268 NLRB 1001, 1002 (1984) (quoting Denzil S. Alkire, 259 NLRB 1323, 1324 (1982), enforcement denied, 716 F.2d 1014, 114 LRRM (BNA) 2180 (4th Cir. 1983)), the Board described the test for determining alter ego status:

The legal principles to be applied in determining whether two factually separate employers are in fact alter egos are well settled.  Although each case must turn on its own facts, we generally have found alter ego status where the two enterprises have >substantially identical’ management, business purpose, operation, equipment, customers, and supervision, as well as ownership. 

212. In MIS, Inc., 289 NLRB 491, 491-92 (1988) the Board stated that:  No one factor is determinative of alter ego status, and not all of these indicia need be present to find that an alter ego relationship exists (citing Advance Electric).
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213. Employers are statutorily obligated to furnish information that is relevant and reasonably necessary to the union’s performance of its collective bargaining responsibilities.  Mining Specialists, Inc., 314 NLRB 268, 272 (1994).  A union is entitled to information relating to the relationship between two companies that it believes may be alter-egos.  Brisco Sheet Metal, Inc., 307 NLRB 361, 366 (1992).  As the ALJ in Brisco noted, the employer must furnish information relevant to alter-ego status if it is established that the union has an objective factual basis for believing that one entity is an alter-ego or single employer of the other. A Id.

214.  A union is entitled to information about one employer’s relationship with another employer if it has a reasonable belief or suspicion that some type of relationship exists that would subject an additional employer to the terms and conditions of an existing collective bargaining agreement, whether the relationship is that of an alter-ego or single employer.  See e.g., Brisco Sheet Metal, Inc., 307 NLRB 361, 366 (1992); Arch of West Virginia, Inc., 304 NLRB 1089, 1093 (1991); and Maben Energy Corp., 295 NLRB 149, 152-53 (1989).

215. A union’s request for information should be framed broadly.  In Connecticut Yankee Atomic Power Co. (IBEW LU 457), 317 NLRB 1266 (1995), the Board held that an employer did not have to provide information when the union requested only information regarding joint employer status, and when the request concerned matters outside the bargaining unit. The Board based its decision that the union had not established the relevancy of the materials requested, on its prior determinations that employees of a joint employer will not be combined with employees of a single employer in a single unit, unless the parties consent [citations omitted]. Id. at 1268

216. The Board, however, has distinguished Connecticut Yankee Atomic Power Co. and required an employer to respond to a union’s request for information where the union’s request was not limited to information regarding a possible joint employer relationship between an employer and a subcontractor.  In Public Service Electric & Gas Co., 323 NLRB 1182, 1189 (1997), enf’d, 157 F.3d 222, 159 LRRM (BNA) 2492 (3d Cir. 1998), the Board affirmed the ALJ’s conclusion that Connecticut Yankee was inapplicable because the union A[did] not seek information in order to determine whether the Respondent and the contractors are joint employers, but rather is contending that the Respondent may in fact be the sole employer of the [employees].
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217. The concept of joint employer focuses on the situation where two companies that are separate entities may voluntarily share labor relations.  A[T]he >joint employer’ concept recognizes that the business entities involved are in fact separate but that they share or co-determine those matters governing the essential terms and conditions of employment.  NLRB v. Browning-Ferris Indus. Inc., 691 F.2d 1117, 111 LRRM (BNA) 2748, 2752 (3d Cir. 1982).

218. It is important to recognize the difference in the effect of establishing joint employer status, rather than alter ego status.  Unlike alter ego status, a finding of  joint employer status does not expand the scope of the existing bargaining unit to include employees working for a second employer.  As the Board stated in Hexacomb Corp., 313 NLRB 983, 983 (1994),  It is well established that the Board does not include employees of joint employers in a unit with employees of a single employer, absent employer consent.  See also Brookdale Hospital Medical Center, 313 NLRB 592 (1994); Lee Hospital, 300 NLRB 947 (1990); Greenhoot, Inc., 205 NLRB 250 (1973). 

Therefore, if one employer has a collective bargaining agreement with a union, and it is established that the employer and a second company are joint employers, it does not automatically follow that the second company’s employees are also covered by the collective bargaining agreement. Connecticut Yankee Atomic Power Co., 317 NLRB 1266, 1268 (1995). 

219. Joint employer status can be asserted, however, to impose a bargaining obligation on an additional employer, with regard to those workers who are in the bargaining unit and are jointly employed by two nominally separate employers.  See e.g., U.S. Pipe & Foundry Co., 247 NLRB 139, 140-42 (1980) (USP found to be a joint employer for that portion of the bargaining unit assigned to work at USP). 

220. Joint employer status is used more commonly to hold one employer liable for the unfair labor practices of another employer.  Sun-Maid Growers (IBEW LU 100), 239 NLRB 346, 351 (1978), enforced, 618 F.2d 56 (9th Cir. 1980); and Capitol EMI Music, Inc., 311 NLRB 997 (1983), enf’d, 146 LRRM (BNA) 2448 (4th Cir. 1994). 

221. In Capitol EMI Music, Inc., 311 NLRB 997, 1000 (1993), enf’d, 146 LRRM (BNA) 2448 (4th Cir. 1994), the Board set forth the test for determining if one company will be liable for another employer’s unlawful discharge, or discipline, where the two employers are joint employers: 

The General Counsel must first show (1) that two employers are joint employers of a group of employees and (2) that one of them has, with unlawful motivation, discharged or taken other discriminatory actions against an employee or employees in the jointly managed work force.  The burden then shifts to the employer who seeks to escape liability for its joint employer’s unlawfully motivated action to show that it neither knew, nor should have known, of the reason for the other employer’s action or that, if it knew, it took all measures within its power to resist the unlawful action (footnote omitted).

222. In Volt Services Group, Case No. 31-CA-20293 (General Counsel Memorandum) (May 6, 1994), the General Counsel advised that where an employee is referred by an employment agency to a contractor and the contractor unlawfully terminates or disciplines the employee, a complaint should issue against both the agency and the contractor as joint employers.  If the temporary agency knows or should know of the unlawful conduct, the agency will be liable for the unlawful conduct as a joint employer. 

223. And, in Continental Winding Co., 305 NLRB 122, 123 n.4 (1991), the Board upheld an ALJ’s finding that an employment agency and a contractor were  joint employers of  the employees referred to the contractor by the agency, because the employment agency and contractor shared or co-determined essential employment conditions of the affected employees.  In Continental, the agency hired the workers and set their wages, but the contractor retained the sole authority to  assign, schedule and supervise  the agency-referred employees, who worked alongside the contractor’s own employees. 

224. The Board has held that an employer’s regular direct supervision of another employer’s employees may be sufficient to establish a joint employer relationship.  Syufy Enterprises, 220 NLRB 738, 740 (1975); Sun-Maid Growers (IBEW LU 100), 239 NLRB 346, 351 (1978), enforced, 618 F.2d 56 (9th Cir. 1980).

225. To establish joint employer status there must be a showing that the employer meaningfully affects matters relating to the employment relationship such as hiring, firing, discipline, supervision, and direction.   Laerco Transportation and Warehouse, 269 NLRB 324, 325 (1984).
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An independent contractor is not an employee under the National Labor Relations Act.  Therefore, it may be important to establish that a worker is not an independent contractor so that he or she will be protected by the Act. 

226. In H&H Pretzel Co., 277 NLRB 1327, 1328 (1985), enf’d, 831 F.2d 650, 126 LRRM (BNA) 2712 (6th Cir. 1987), the Board stated:

In determining the status of individuals alleged to be >independent contractors,’ the Board applies a >right of control’ test.  If the person for whom the services are performed retains the right to control the manner and means by which the results are to be accomplished, the person who performs the services is an employee.  If only the results are controlled, the person performing the services is an independent contractor.  A.S. Abell Publishing Co., 270 NLRB 1200 (1984).

227. In addition to the Aright to control test, the Board has also said that for an independent contractor relationship to exist, the arrangement most typically should exhibit entrepreneurial or proprietary characteristics.  Roadway Package System, 288 NLRB 196, 198 (1988).  Thus, whether [workers] have the opportunity to make decisions which involve risks taken by the independent businessman which may result in profit or loss, will also be determinative of independent contractor status.   Standard Oil Company, 230 NLRB 967, 968 (1977).
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228. In Reliable Electric Co., 286 NLRB 834, 836 (1987), the Board held that an 8(f) contractor that had signed a Letter of Assent A and had not withdrawn bargaining authority from NECA was bound to the successor agreement:

[T]he [contractor’s] authorization to NECA did not terminate at the end of the then current commercial agreement, but bound it to succeeding agreements as well.  Authorization continued unless the [contractor] subsequently took some action effectively withdrawing the multiemployer group’s authority to bargain on the [contractor’s] behalf.  As found by the judge, no such notice had been given at the time the 1983-1986 successor commercial agreement was executed or the following winter when the [contractor] repudiated that agreement.  Under the Deklewa principles, the successor commercial agreement was >binding, enforceable, and not subject to unilateral repudiation by the [contractor].’  Thus, the [contractor’s] unilateral repudiation of the contract violated Section 8(a)(5). 

229. In James Luterbach Construction Co., 315 NLRB 976 (1994), the Board held that, where the authorization to bargain given by an employer to a multi-employer association does not bind the employer to future agreements, the employer will not be bound to a new agreement unless it makes an affirmative showing that it wishes to be bound. 

The Board in  James Luterbach, however, was careful to distinguish this case from the situation in Reliable Electric Co., 286 NLRB 834 (1987).  The Board’s decision in Reliable Electric concerned the IBEW/NECA Letter of Assent A, which, the Board explained, does bind an employer to a subsequent agreement, absent some action by the employer to withdraw the association’s bargaining authority.  In such a situation, the Board noted, the employer will be bound to a new agreement even though the employer does not make an affirmative showing that it wishes to be bound.  The standard IBEW/NECA Letter of Assent A thus binds an employer to a subsequent agreement if the employer does not take effective action to withdraw.
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If an employer does not give proper notice to withdraw NECA’s bargaining authority and then repudiates the new contract, the new agreement will be enforceable through its grievance procedure, culminating in review by the C.I.R.

Where an agreement contains a binding C.I.R. interest arbitration clause, and a contractor does properly withdraw NECA’s authority to bargain on its behalf, the union should demand to bargain a new contract separately with the contractor before the existing contract expires, in accordance with the time line specified in the agreement.  If a new agreement is not reached, the interest arbitration (C.I.R.) procedures can be invoked to implement a new agreement. 

230. In Sheet Metal Workers Local 162 (Dwight Lang Enter.), 314 NLRB 923, 926 (1994), in the context of an unfair labor practice charge against the union, the Board discussed invoking interest arbitration against an employer that has given notice withdrawing the multi-employer association’s authority to bargain on its behalf, and has given notice of its intention to terminate the contract:

The analytical framework for resolving 8(b)(1)(B) allegations of this nature was established in Electrical Workers IBEW Local 113 (Collier Electric), 296 NLRB 1095 (1989) . . . .  Under Collier, the Board considers whether the union has a reasonable basis in fact and law for submitting unresolved bargaining issues to interest arbitration.  If such a basis exists -- i.e., if the agreement arguably binds the employer to the interest arbitration provisions -- the union may lawfully invoke its contract rights, including initiating court action to enforce any resulting contract. 

The Collier doctrine has met with court approval.  See West Coast Sheet Metal v. NLRB, 938 F.2d 1356, 137 LRRM (BNA) 2853 (D.C. Cir 1991).

231. Several courts have recognized that where an interest arbitration clause is invoked properly, an interest arbitration award is enforceable even if awarded after the expiration of the agreement.  In other words, interest arbitration survives beyond the expiration of the collective bargaining agreement.  IBEW Local 58 v. Southeastern Michigan Chapter NECA, 43 F.3d 1026, 148 LRRM (BNA) 2065, 2068 (6th Cir. 1995); Beach Air Conditioning v. Sheet Metal Workers Ass’n Local No. 102, 55 F.3d 474, 149 LRRM (BNA) 2391 (9th Cir. 1995); Sheet Metal Workers Local 20 v. Baylor Heating and Air Conditioning, Inc., 877 F.2d 547, 131 LRRM (BNA) 2838 (7th Cir. 1989).
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232. The Board and courts have held repeatedly, in a broad spectrum of cases too numerous to mention, that depriving employees of employment because of protected activity goes to the very heart and purpose of the Act.  It would be difficult to identify conduct more destructive of Section 7 rights to join and assist labor organizations than that affecting employment status or tenure.  A.S. Abell Company, 234 NLRB 802, 808 (1978), enforcement denied, 598 F.2d 876, 101 LRRM (BNA) 2417 (4th Cir. 1979).

233. Threats made and actions taken by an employer against an employee based on the employer’s belief the employee engaged in or intended to engage in protected concerted activity are unlawful even though the employee did not in fact engage in or intend to engage in such activity.  Monarch Water Systems, 271 NLRB 558, 558 n.3 (1984).

234. Employer attempts to influence an employee’s testimony before the Board or discourage an employee from pursuing an unfair labor practice charge or a contractual grievance are unlawful.  Aero Metal Forms, 310 NLRB 397, 398 (1993) (discharging an employee for refusing to fabricate Board testimony held unlawful); Weinreb Management, 292 NLRB 428, 432 (1989) (pressuring an employee to abandon a grievance held unlawful); Independent Stave Co., 278 NLRB 593, 598 (1986) (telling an employee that he would get his ass in trouble for filing unfair labor practice charges held unlawful).

235. When a party fails to call a witness who may reasonably be assumed to be favorably disposed to the party, an adverse inference may be drawn regarding any factual issue on which the witness may have knowledge.  In particular, it may be inferred that the witness, if called, would have testified adversely to the party on that issue.  International Automated Machines, Inc., 285 NLRB 1122, 1123 (1987).  Similarly, an adverse inference is warranted where a party fails to produce relevant evidence bearing on the case which is within its control without offering a satisfactory explanation for that failure.  Martin Luther King, Sr. Nursing Center, 231 NLRB 15, 15 n.1 (1977); see also Cargill, Inc. d/b/a Paramount Poultry, 294 NLRB 867, 868 n.9 (1989); Jennie-O Food, Inc., 301 NLRB 305, 332 (1991).

236. It is well settled that the Board may find and remedy a violation even in the absence of a specified allegation in the complaint if the issue is closely connected to the subject matter of the complaint and has been fully litigated.  Pergament United Sales, 296 NLRB 333, 334 (1989), enforced., 920 F.2d 130 (2d Cir. 1990).  See also Williams Pipeline Company, 315 NLRB 630 (1994).
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726 Seventeenth, Inc., 235 NLRB 604 (1978)  41
AJS Electric (IBEW LU 441), 310 NLRB 121 (1993)  28
A.S. Abell Publishing Co., 270 NLRB 1200 (1984)  64
A.S. Abell Company, 234 NLRB 802 (1978), enforcement denied,
598 F.2d 876, 101 LRRM (BNA) 2417 (4th Cir. 1979)  66-67
Adco Electric, Inc., 307 NLRB 1113 (1992), 
enf’d, 6 F.3d 1110, 144 LRRM (BNA) 2763 (5th Cir. 1993)  40
Advance Electric, Inc. (IBEW LU 124), 268 NLRB 1001 (1984)  60
Aero Metal Forms, Inc., 310 NLRB 397 (1993)  17, 67
Air Express International Corporation, 245 NLRB 478 (1979), enf’d in part,
659 F.2d 610, 108 LRRM (BNA) 2795 (5th Cir. 1981), cert. denied,
459 U.S. 835 (1982)  53
Algreco Sportswear Co., 271 NLRB 499 (1984)  44, 46
Ambrose Electric (IBEW LU 724), 330 NLRB No. 23 
(November 22, 1999)  4, 40
American Freightways Co., 124 NLRB 146 (1959)  39
American Press, 280 NLRB 937 (1986), enf’d, 833 F.2d 621, 126 LRRM (BNA)
3131 (6th Cir. 1987)  12
American Ship Building Co. v. NLRB, 380 U.S. 300 (1965)  36
Apex Ventilating Co., 186 NLRB 534 (1970)  12-13
Aratex Services, 300 NLRB 115 (1990)  17
Architectural Glass & Metal Co. v. NLRB, 107 F.3d 426 (6th Cir. 1997)  22
Arch of West Virginia, Inc., 304 NLRB 1089 (1991)  61
Arlington Electric, Inc. (IBEW LU 728), JD (ATL) 45-97,
1997 NLRB LEXIS 568 (July 16, 1997)  17, 35-36
Automatic Screw Products Co., 306 NLRB 1072 (1992), 
enf’d, 977 F.2d 582 (6th Cir. 1992)  41
Aztech Electric Co. & Contractors Labor Pool, Inc. 
(IBEW LUs 441, 191, 46, 332, 302 & 617), JD (SF) 73-97,
1997 NLRB LEXIS 683 (Wacknov, September 3, 1997)  15, 29, 31, 39
B E & K Construction Co., 321 NLRB 561 (1996), enforcement denied, 
133 F.3d 1372 (11th Cir. 1997)  9, 11, 19, 56
B-P Custom Building Products, 251 NLRB 1337 (1980)  59
Beach Air Conditioning v. Sheet Metal Workers Local 102, 55 F.3d 474, 
149 LRRM (BNA) 2391 (9th Cir. 1995)  66
Beacon Electric, Inc., JD 115-98, 1998 NLRB LEXIS 461 
(Beddow, July 14, 1998)  12, 33-34
 Big E’s Foodland, 242 NLRB 963 (1979)  8
Bill Johnson’s Restaurants, 461 U.S. 731 (1983)  1, 39, 47
Boilermakers v. NLRB, 127 F.3d 1300, 156 LRRM (BNA) 2881
(11th Cir. 1997)  24
Braun Electric Co., Inc. (IBEW LU 428), 324 NLRB 1 (1997)  47
Brisco Sheet Metal, Inc., 307 NLRB 361 (1992)  61
Brookdale Hospital Medical Center, 313 NLRB 592 (1994)  62
Brown & Sharpe Manufacturing Company, 312 NLRB 444 (1993)  53-54
Brunswick Electric Membership Corp., 308 NLRB 361 (1992), 
enf’d, 991 F.2d 790, 143 LRRM (BNA) 2936 (4th Cir. 1993)  41
Butterworth Mortuary, 270 NLRB 1014 (1984), enf’d, 
767 F.2d 933 (9th Cir. 1985)  51
Capitol EMI Music, Inc., 311 NLRB 997 (1993), enf’d, 
146 LRRM (BNA) 2448 (4th Cir. 1994)  63
Cargill, Inc. d/b/a Paramount Poultry, 294 NLRB 867 (1989)  67
Casey Electric, Inc. (IBEW LU 26), 313 NLRB 774 (1994)  10
Centre Property Management, 277 NLRB 1376 (1985), enf’d in part, 
807 F.2d 1264, 125 LRRM (BNA) 2409 (5th Cir. 1987)  20-21
Chinese American Planning Council, 307 NLRB 410 (1992), 
enf’d without op., 990 F.2d 624 (2d Cir. 1993)  53
City Electric, Inc., Advice Memorandum, 21-CA-30416 (July 6, 1995)  2, 57-58
Clark & Wilkins Indus., 290 NLRB No. 19 (1988), enf’d, 887 F.2d 308, 
132 LRRM (BNA) 2758 (D.C. Cir. 1989), cert. denied, 
495 U.S. 934 (1990)  18
Clock Electric, Inc. (IBEW LU 38), 323 NLRB 1226 (1997), 
enforcement denied in part, 162 F.3d 907, 
159 LRRM (BNA) 3025 (6th Cir. 1998)  28
Coca-Cola  Bottling Co., 232 NLRB 794 (1977), enf’d in part, 616 F.2d 949
(6th Cir.), cert. denied, 449 U.S. 998 (1980)  18
Community Cash Stores, 238 NLRB 265 (1978)  59
Concord Metal, Inc., 295 NLRB 912 (1989)  52
Connecticut Yankee Atomic Power Co. (IBEW LU 457), 
317 NLRB 1266 (1995)  61-62
Continental Winding Co., 305 NLRB 122 (1991)  63
Contractors Services, Inc. (IBEW LUs 443 & 347), 324 NLRB 1254 (1997)  45
Cooper Thermometer Co., 154 NLRB 502 (1965)  39
Coral Gables Convalescent Home, Inc., 234 NLRB 1198 (1978)  9-10
Crystal Princeton Refining Company, 222 NLRB 1068 (1976)  44
D.S.E. Concrete Forms, Inc., 303 NLRB 890 (1991), enf’d without op.,
 146 LRRM (BNA) 2448 (5th Cir. 1994)  25-26
Daniel Construction Company, 244 NLRB 704 (1979)  53
Dayton Typographical Service, Inc., 273 NLRB 1205 (1984)  48-49
Dean General Contractors, 285 NLRB 573 (1987)  6, 54, 57
Decker Coal Company, 301 NLRB 729 (1991)  51
Delta Mechanical, Inc., 323 NLRB 76 (1997)  29, 47
Dennett Road Manor Nursing Home, Inc., 295 NLRB 397 (1989), enf’d without op.,
933 F.2d 1001 (4th Cir. 1991)  40
Denzil S. Alkire, 259 NLRB 1323 (1982), enforcement denied, 716 F.2d 1014, 
114 LRRM (BNA) 2180 (4th Cir. 1983)  60-61
Desks, Inc., 295 NLRB 1 (1989)  53
Donald A. Pusey, Inc. (IBEW LU 654), 327 NLRB No. 41 (Nov. 27, 1998)  28
EPI Construction (Carpenters), JD (SF) 77-98, 
1998 NLRB LEXIS 563 (Cracraft, Aug. 5, 1998)  43
East Belden Corporation, 239 NLRB 776 (1978), enf’d without op., 
634 F.2d 635, 108 LRRM (BNA) 2104 (9th Cir. 1980)  46
Eaton Warehousing Company, 297 NLRB 958 (1990), enf’d, 
135 LRRM (BNA) 3272 (6th Cir. 1990)  50
Edelco, Inc., 321 NLRB 857 (1996), enf’d in part, 132 F.3d 1007,
157 LRRM (BNA) 2046 (4th Cir. 1997)  11, 20, 44
Einhorn Enterprises, Inc., 279 NLRB 576 (1986)  59
Electronic Data Systems Corp. v. NLRB, 985 F.2d 801 (5th Cir. 1993)  19-20
Electro-Tec, Inc., 310 NLRB 131 (1993), enf’d, 1993 U.S. App. LEXIS
11822 (6th Cir. May 12, 1993)  40
Ethyl Corporation, 231 NLRB 431 (1977)  41
FES (A Division of Thermopower), JD (York, PA) 162-98 
(Amchan, Sept. 29, 1998) (5-CA-26276)  1, 5
F.W. Woolworth Company, 310 NLRB 1197 (1993)  52
Farmer Brothers Company, 303 NLRB 638 (1991), 
enf’d, 988 F.2d 120 (9th Cir. 1993)  17
Fedco Freightlines, Inc., 273 NLRB 399 (1984)  44
Ferguson Electric Co. (IBEW LU 241), 330 NLRB No. 75 
(Jan. 19, 2000)  2, 54, 57, 57-58
Fitzgerald v. Seamans, 553 F.2d 220 (D.C. Cir. 1977)  53-54
Fluor Daniel, Inc., 304 NLRB 970 (1991), 
enf’d, 976 F.2d 744 (11th Cir. 1992)  9, 32-33
Fluor Daniel, Inc., 311 NLRB 498 (1993), enf’d in part, 161 F.3d 953,
159 LRRM (BNA) 2794 (6th Cir. 1998)  7, 9, 18-19, 20, 33, 50
Fontaine Body & Hoist, 302 NLRB 863 (1991)  41
 Forest Park Ambulance Serv., 206 NLRB 550 (1973)  18
Forsyth Electrical Company, Inc. (IBEW LU 342), JD (ATL) 73-97, 
1997 NLRB LEXIS 966 (December 3, 1997)  12, 51
Fugazy Continental Corp., 265 NLRB 1301 (1982), enf’d, 
725 F.2d 1416, 115 LRRM (BNA) 2571 (D.C. Cir. 1984)  60
Fuhr Glass and Mirror, Inc., 305 NLRB 1 (1991)  20
GM Electrics (IBEW LU 952), 323 NLRB 125 (1997)  42, 59
Gayfers Department Store (IBEW LU 756), 324 NLRB 1246, 
156 LRRM (BNA) 1257 (1997)  42
Gencorp, 294 NLRB 717 (1989)  18
General Battery Corporation, 241 NLRB 1166 (1979)  18
Gilberton Coal Co., 291 NLRB 344 (1988), enf’d without op., 
888 F.2d 1381, 134 LRRM (BNA) 2568 (3d Cir. 1989)  4, 11, 39
Godsell Contracting, 320 NLRB 871 (1996)  35
Goldies, Inc. v. NLRB, 628 F.2d 706, 
105 LRRM (BNA) 2625, 2626 (1st Cir. 1980)  58
Great Atlantic & Pacific Tea Co., 210 NLRB 593 (1974)  18
Greenhoot, Inc., 205 NLRB 250 (1973)  62
Guille Steel Products Company, 303 NLRB 537 (1991)  40
H.B. Zachry Co., 310 NLRB 1037 (1993)  48
H.B. Zachry Co., 319 NLRB 967 (1995), enforcement denied,
127 F.3d 1300 (11th Cir. 1997)  13, 23-24, 36-37
H&H Pretzel Co., 277 NLRB 1327 (1985), enf’d, 831 F.2d 650,
126 LRRM (BNA) 2712 (6th Cir. 1987)  64
Hawkins-Hawkins Company, Inc., 289 NLRB 1423 (1988)  41
Heiliger Electric Corp. (IBEW LU 1141), 325 NLRB 966 (1998)  31, 47
Hexacomb Corp., 313 NLRB 983 (1994)  62
Hicks Oils & Hicksgas, Inc., 293 NLRB 84 (1989), enf’d, 942 F.2d 1140,
138 LRRM (BNA) 2650 (7th Cir. 1991)  21
Hoboken Shipyards, 275 NLRB 1507 (1985), enf’d without op., 
122 LRRM (BNA) 2368 (4th Cir. 1986)  8
Hoffman Plastic Compounds, Inc., 306 NLRB 100 (1992)  44
Holly Farms v. NLRB, 517 U.S. 392, 152 LRRM (BNA) 2001 (1996)  13
Holmberg v. Armbrecht, 327 U.S. 392 (1946)  53
House Calls, Inc., 304 NLRB 311 (1991)  41
Houston Stafford Electric, Inc. (IBEW, IBEW LU 716), 
JD (ATL) 72-98, 1998 NLRB LEXIS 762 
(Grossman, Sept. 29, 1998)  14, 16, 27, 30, 38
Hudson Valley Electrical Construction & Maintenance, Inc. (IBEW LU 363), 
 JD (NY) 132-99, 1999 NLRB LEXIS 713 (Nations, Oct. 5, 1999)  4, 21
Hyatt Hotels Corp., 296 NLRB 259 (1989)  20
IBEW Local 58 v. Southeastern Michigan Chapter NECA, 43 F.3d 1026, 
148 LRRM (BNA) 2065 (6th Cir. 1995)  66
IBEW Local 113 (Collier Electric), 296 NLRB 1095 (1989)  66
Independent Stave Co., 278 NLRB 593 (1986)  67
Industrial Construction Services, Inc. (IBEW LU 479), 323 NLRB 1037 
(1997)  29-30
Injected Rubber Products Corporation, 258 NLRB 687 (1981)  59
International Automated Machines, Inc., 285 NLRB 1122 (1987)  67
Intertherm, Inc., 235 NLRB 693 (1978), enf’d in part, 596 F.2d 267,
100 LRRM (BNA) 3016 (8th Cir. 1979)  41
Iplli, Inc. (IBEW LU 25), 321 NLRB 463 (1996)  48
J & L Enterprises, Inc., 310 NLRB 121 (1993)  8-9
J.E. Merit Constructors, Inc., 302 NLRB 301 (1991)  7-8
J.H. Block & Company, Inc., 247 NLRB 262 (1980)  41
J.O. Mory, Inc. (IBEW LU 305), 326 NLRB No. 61 (Aug. 27, 1998)  27
James Luterbach Construction Co., 315 NLRB 976 (1994)  65
Jasper Seating Company, 285 NLRB 550 (1987), enf’d, 857 F.2d 419, 
129 LRRM 2337 (7th Cir. 1988)  50
Jennie-O Food, Inc., 301 NLRB 305 (1991)  67
Johnnie’s Poultry, 146 NLRB 770 (1964), enforcement denied 
on other grounds, 344 F.2d 617 (8th Cir. 1965)  43
K & W Electric, Inc. (IBEW LU 288), JD-7-98, 1998 NLRB LEXIS 15
(January 15, 1998), vacated, 327 NLRB No. 21 (Oct. 30, 1998) 30
KRI Constructors, Inc., 290 NLRB 802 (1988)  12
Keller Manufacturing Co., 237 NLRB 712 (1978), enf’d in part, 
622 F.2d 582, 106 LRRM (BNA) 2546 (7th Cir. 1980)  10, 44
Kellwood Company, 299 NLRB 1026 (1990), enf’d, 
948 F.2d 1297 (11th Cir. 1991)  40
L&B Construction Co., 326 NLRB No. 132 (Sept. 30, 1998)  43, 52
Laben Electric Co. (IBEW LU 611), 323 NLRB 428 (1997)  54
Laerco Transportation and Warehouse, 269 NLRB 324 (1984)  64
Latas De Aluminio Reynolds, Inc., 276 NLRB 1313 (1985)  59
Leach Corporation, 312 NLRB 990 (1993), enf’d, 54 F.3d 802, 
149 LRRM (BNA) 2285 (D.C. Cir. 1995)  53
Leather Center, Inc., 312 NLRB 521 (1993)  41
Lechmere, Inc. v. NLRB, 502 U.S. 527, 117 L. Ed. 2d 79 (1992)  42
Lee Hospital, 300 NLRB 947 (1990)  62
 Limestone Apparel, 255 NLRB 722 (1981), enf’d, 
705 F.2d 799, 113 LRRM (BNA) 2517 (6th Cir. 1982)  10
Little Rock Electric Contractors (IBEW LU 480), 327 NLRB No. 166 
(March 22, 1999)  22, 33
Little Rock Electric Contractors, Inc. (IBEW LU 238), 
JD (ATL) 65-98 (Cullen, Oct. 16, 1998)  15, 22, 23, 38
Litton Systems, 300 NLRB 324 (1990), enf’d, 949 F.2d 249, 138 LRRM 
(BNA) 2761(8th Cir. 1991), cert. denied, 503 U.S. 985 (1992)  40
MIS, Inc., 289 NLRB 491 (1988)  61
 M.J. Mechanical Services, Inc., 324 NLRB 812 (1997), enf’d, 
1998 U.S. App. Lexis 33922 (D.C. Cir., Dec. 28, 1998) 
(unpublished)  21, 34, 42
M.J. Mechanical Services, Inc. (SMW LU 46), 
325 NLRB 1098 (1998)  7, 14, 35, 37, 57
Maben Energy Corp., 295 NLRB 149 (1989)  61
MacDonald’s Industrial Products, Inc., 281 NLRB 577 (1986)  53
Madison South Convalescent Center, 260 NLRB 816 (1982)  11
Magic Chef, Inc., 286 NLRB 380 (1987)  49
Manno Electric, Inc., 321 NLRB 278 (1996), enf’d, 
127 F.3d 34 (5th Cir. 1997)  44
Martin Luther King, Sr. Nursing Center, 231 NLRB 15 (1977)  67
Matheson Fast Freight, Inc., 297 NLRB 63 (1989)  40
Mauka Inc. (IBEW LU 673), 327 NLRB No. 148 (March 8, 1999)  45, 51
McAllister Brothers, Inc., 278 NLRB 601 (1986), enf’d,
819 F.2d 439, 125 LRRM (BNA) 2566 (4th Cir. 1987)  46
McCain Foods, Inc., 236 NLRB 447 (1978), enf’d, 598 F.2d 666,
101 LRRM (BNA) 2328 (1st Cir. 1979)  11
Mining Specialists, Inc., 314 NLRB 268 (1994)  60
Minnesota Boxed Meat, 282 NLRB 1208 (1987)  17
Monarch Water Systems, 271 NLRB 558 (1984)  67
NLRB v. American Geri-Care, Inc., 697 F.2d 56, 112 LRRM (BNA) 2529 
(2d Cir. 1982), cert. denied, 461 U.S. 906 (1983)  20
NLRB v. Aquatech, 926 F.2d 538 (6th Cir. 1991)  20
NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 100 L. Ed. 2d 975 (1956)  42
NLRB v. Bakersfield Californian, 128 F.3d 1339, 156 LRRM (BNA) 2932 
(9th Cir. 1997)  49
NLRB v. Brown Food Stores, 380 U.S. 278 (1965)  36
NLRB v. Browning-Ferris Indus. Inc., 691 F.2d 1117, 
111 LRRM (BNA) 2748 (3d Cir. 1982)  62
NLRB v. Burnup & Sims, 379 U.S. 21 (1964)  40
NLRB v. E.I. Du Pont de Nemours, 750 F.2d 524, 
118 LRRM (BNA) 2014, 2017 (6th Cir. 1984)  19
NLRB v. Erie Resistor Corp., 373 U.S. 221 (1965)  36
NLRB v. Fleetwood Trailer Company, 389 U.S. 375 (1967)  51
NLRB v. Fluor Daniel, 102 F.3d 818 (6th Cir. 1996)
amended, 161 F.3d 953 (6th Cir. 1998)  5-6, 8, 13
NLRB v. Fluor Daniel, 161 F.3d 953, 159 LRRM (BNA) 2794
 (6th Cir. 1998)  1, 5-6, 13
 NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 18 L. Ed. 2d 1027 (1967)  36
NLRB v. Illinois Tool Works, 153 F.2d 811 (7th Cir. 1946)  39
NLRB v. Insurance Agents’ International Union, 361 U.S. 477 (1960)  50
NLRB v. Jackson Farmers, Inc., 457 F.2d 516 (10th Cir. 1972)  55
NLRB v. Lauren Manufacturing Co., 712 F.2d 245, 
113 LRRM (BNA) 3552 (6th Cir. 1983)  59
NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938)  50
NLRB v. Midland Daily News, 151 F.3d. 472, 158 LRRM (BNA) 2919 
(6th Cir. 1998)  49
NLRB v. Security Guard Service, Inc., 384 F.2d 143,
66 LRRM 2247 (5th Cir. 1967)  59
NLRB v. Seligman & Associates, Inc., 808 F.2d 1155, 124 LRRM (BNA) 2277 
(6th Cir. 1986), cert. denied, 484 U.S. 1026 (1988)  55
NLRB v. Town & Country, 516 U.S. 85, 133 L. Ed. 2d 371 
(1995)  2, 3, 31, 32, 43-44, 58
NLRB v. Washington Aluminum Company, 370 U.S. 9 (1962)  49, 50
NLRB v. Webcor Packaging Inc., 118 F.3d 1115, 155 LRRM (BNA) 2791 
(6th Cir. 1997), cert. denied, 522 U.S. 1108 (1998)  13
Nanticoke Homes, Inc., 261 NLRB 736 (1982), enf’d without op.,
113 LRRM (BNA) 3816 (4th Cir. 1983)  46
National Grange Mut. Ins. Co., 207 NLRB 431 (1973)  18
National Telephone Directory Corp., 319 NLRB 420 (1995)  48
Newberry Energy Corp., 227 NLRB 436 (1976)  50
Norman King Electric v. NLRB, 177 F.3d 430, 161 LRRM (BNA) 2435
(6th Cir. 1999)  6, 57
Northside Electrical Contractors, Inc. (IBEW LU 153), 
1997 NLRB Lexis 712 (Sept. 19, 1997) (ALJD)  27
Northwind Maintenance & Painting Co., 281 NLRB 317 (1986)  44
Orit Corporation, 294 NLRB 695 (1989), enf’d, 918 F.2d 225,
141 LRRM (BNA) 2488 (D.C. Cir. 1990)  55
Our Way, 268 NLRB 394 (1983)  42
P.S.C. Resources, Inc. v. NLRB, 576 F.2d 380, 
98 LRRM (BNA) 2432 (1st Cir. 1978)  48
Padre Dodge, 205 NLRB 252 (1973)  41
Pan American Electric (IBEW LU 446), 328 NLRB No. 7 
(April 16, 1999)  3, 4, 32, 39-40
Payne Electric Co. (IBEW LU 369), JD 188-98, 1998 NLRB LEXIS 863
(Wagman, Nov. 5, 1998)  15, 29, 34, 35, 38
Pergament United Sales, 296 NLRB 333 (1989), enf’d, 
 920 F.2d 130, 135 LRRM (BNA) 3222 (2d Cir. 1990)  67
Phelps Dodge Corporation v. NLRB, 313 U.S. 177 (1941)  10, 43
Plasterers Local 90, 236 NLRB 329 (1978), enf’d, 606 F.2d 189,
102 LRRM (BNA) 2482 (7th Cir. 1979)  46
Pincus Elevator and Electric Co., 308 NLRB 684 (1992)  18
Pollock Electric, Inc. (IBEW LO 716), JD (ATL) 50-96, 1998 NLRB LEXIS 440
(July 7, 1998)  14, 38
Professional Porter & Window Cleaning Co., 275 NLRB 12 (1985)  55
Public Service Electric & Gas Co., 323 NLRB 1182 (1997), enf’d, 
157 F.3d 222, 159 LRRM (BNA) 2492 (3d Cir. 1998)  62
R.G. Burns Electric, Inc., 326 NLRB No. 41 (August 27, 1998)  7
Refrigeration Systems Co., 321 NLRB 1085 (1996)  24
Reliable Electric Co., 286 NLRB 834 (1987)  64-65
Republic Aviation Corp. v. NLRB, 324 U.S. 793, 89 L. Ed. 1372 (1945)  41
Richard Mellow Electrical Contractors Corp. (IBEW LU 81), 
327 NLRB No. 171 (March 31, 1999)  3, 12, 26
Roadway Express, 250 NLRB 393 (1980), enforcement denied,
647 F.2d 415, 107 LRRM (BNA) 2155 (4th Cir. 1981)  39
Roadway Package System, 288 NLRB 196 (1988)  64
Rolligon Corporation, 254 NLRB 22 (1981)  41
Schraffts Candy Company, 244 NLRB 581 (1979)  53
Scioto Coca-Cola Bottling Company, 251 NLRB 766 (1980)  17
Shawnee Industries, 140 NLRB 1451 (1963), enforcement 
denied on other grounds, 333 F.2d 221 (10th Cir. 1969)  10, 12
Sheet Metal Workers Local 20 v. Baylor Heating and Air Conditioning, Inc., 
877 F.2d 547, 131 LRRM (BNA) 2838 (7th Cir. 1989)  66
Sheet Metal Workers Local 162 (Dwight Lang Enter.), 314 NLRB 923 
(1994)  66
Shell Electric (IBEW LU 24), 325 NLRB 839 (1998)  43
Southern Bag Corp., 315 NLRB 725 (1994)  60
Staco, Inc., 244 NLRB 461 (1979)  53
Standard Oil Company, 230 NLRB 967 (1977)  64
Starcon, Inc., 323 NLRB 977 (1997), enf’d in part, 176 F.3d 948,
161 LRRM (BNA) 2233 (7th Cir. 1999)  11-12, 26
Starcon, Inc. v. NLRB, 176 F.3d 948, 161 LRRM (BNA) 2233 
(7th Cir. 1999)  1, 6
Stark Electric, Inc. (IBEW LU 317), 324 NLRB 1207 (1997), 
enforcement denied in part, 166 F.3d 1210 (4th Cir. 1998)  54
Stewart & Stevenson Services, Inc., 164 NLRB 741 (1967), 
 enf’d, 414 F.2d 232  (5th Cir. 1969)  59
Stoody Company (IBEW LU 369), 312 NLRB 1175 (1993)  41, 50
Stop & Shop Co. v. NLRB, 548 F.2d 17, 94 LRRM (BNA) 2416 
(1st Cir. 1977)  58
Sunland Construction Co., 309 NLRB 1224 (1992)  12, 33
Sunland Construction Co., 311 NLRB 685 (1993)  8, 10
Sun-Maid Growers (IBEW LU 100), 239 NLRB 346 (1978), 
enf’d, 618 F.2d 56, 104 LRRM (BNA) 2543 (9th Cir. 1980)  63, 64
Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 81 L. Ed. 2d 732 (1984)  6, 57
Syufy Enterprises, 220 NLRB 738 (1975)  64
TIC-The Industrial Company Southeast, Inc., 322 NLRB 605 (1996), enforcement 
denied, 126 F.3d 334, 156 LRRM (BNA) 2485 (D.C. Cir. 1997)  24
TIC C The Industrial Co. Southeast Inc. v. NLRB, 126 F.3d 334, 
156 LRRM (BNA) 2485 (D.C. Cir. 1997)  24
Tech Electric, Inc. (IBEW LU 532), JD (SF) 97-97, 1997 NLRB LEXIS 980
(December 5, 1997)  15, 23, 42-43, 46
The 3E Co., 322 NLRB 1058 (1997)  13
Toledo (5) Auto/Truck Plaza, 300 NLRB 676 (1990), enf’d without op.,
986 F.2d 1422 (6th Cir. 1993)  52
Torrington Construction Co., 235 NLRB 1540 (1978)  50
Town & Country Electric, Inc., 309 NLRB 1250 (1992), enforcement denied,
34 F.3d 625 (8th Cir. 1994), rev’d, 516 U.S. 85 (1995)  19
Tualatin Electric (IBEW LU 48), 312 NLRB 129 (1993), 
enf’d, 84 F.3d 1202, 152 LRRM (BNA) 2429 (9th Cir. 1996)  55
Tualatin Electric (IBEW LU 48), 319 NLRB 1237 (1995)  15, 23, 42
Tualatin Electric, Inc., JD (SF) 93-97, 1997 NLRB LEXIS 942 
(November 10, 1997)  56-57
Turnbull Cone Baking Co. v. NLRB, 778 F.2d 292, 121 LRRM (BNA) 2025
(6th Cir. 1985), cert. denied, 476 U.S. 1159 (1986)  10
U.S. Pipe & Foundry Co., 247 NLRB 139 (1980)  63
Ultrasystems Western Constructors, Inc., 310 NLRB 545 (1993), enforcement denied,
18 F.3d 251, 145 LRRM (BNA) 2641 (4th Cir. 1994)  8
United Charter Service, Inc., 306 NLRB 150 (1992)  52
United Technologies Corp. v. NLRB, 632 F. Supp. 776 (D. Conn.),
aff’d, 777 F.2d 90 (2d. Cir. 1985)  48
Van Pelt Fire Trucks, 238 NLRB 794 (1978)  45
Vemco, Inc., 314 NLRB 1235 (1994), enforcement denied, 
79 F.3d 526, 151 LRRM (BNA) 2811 (6th Cir. 1996)  32
Vic Tanny International, 232 NLRB 353 (1977), enf’d, 622 F.2d 237, 
 104 LRRM (BNA) 2395 (6th Cir. 1980)  50
Volt Services Group, General Counsel Memorandum, 31-CA-20293 
(May 6, 1994)  63
WMUR-TV, 253 NLRB 697 (1980)  17
Waco, Inc., 273 NLRB 746 (1984)  41, 52
Walker Electric Co., 142 NLRB 1214 (1963)  45
Walz Masonry, Inc., 323 NLRB 1258 (1997), enf’d without opinion, 
1998 U.S. App. Lexis 8799 (8th Cir., May 4, 1998)  30
Waterbed World, 286 NLRB 425 (1987)  60
Weinreb Management, 292 NLRB 428 (1989)  67
Wells Dairy, 287 NLRB 827 (1987), enf’d, 865 F.2d 175 (8th Cir. 1989)  18
Wellstream Corporation, 313 NLRB 698 (1994)  46
West Coast Sheet Metal v. NLRB, 938 F.2d 1356, 
137 LRRM (BNA) 2853 (D.C. Cir 1991)  66
Western Stress, 290 NLRB 678 (1988)  50
Williams Pipeline Company, 315 NLRB 630 (1994)  67
Windemuller Electric, Inc., 306 NLRB 664 (1992), enf’d in relevant part, 
34 F.3d 384, 147 LRRM (BNA) 2302 (6th Cir. 1994)  40
Wireways, Inc. (IBEW LU 637), 309 NLRB 245 (1992)  27
Wright Electric v. NLRB (IBEW LU 292), 200 F.3d 1162, 
163 LRRM (BNA) 2353 (8th Cir. 2000)  1, 39
Wright Line, 251 NLRB 1083 (1980), enf’d, 662 F.2d 899, 108 LRRM (BNA) 
2513 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982)  4, 7, 16, 20-21
Zeppelin Electric Co. (IBEW LU 25), 328 NLRB No. 68 (May 20, 1999)  3, 32
Zurn/N.E.P.C.O. (International Brotherhood of Boilermakers), 
329 NLRB No. 52 (Sept. 30, 1999)  2-3, 25
Zurn/N.E.P.C.O., JD 34-07, 1997 NLRB LEXIS 121 
(February 24, 1997)  26-27, 56
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