NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Bill’s Electric, Inc. and International Brotherhood of Electrical Workers Local Union No. 95. Cases 17–CA–18629–1, 17–CA–18697, 17–CA–18787, and 17–CA–19112

July 24, 2007

DECISION AND ORDER

By Members Liebman, Kirsanow, and Walsh

On August 10, 1999, Administrative Law Judge William L. Schmidt issued the attached decision. The General Counsel and Charging Party International Brotherhood of Electrical Workers Local Union No. 95 (the Union) each filed exceptions and a supporting brief. Respondent Bill’s Electric, Inc. filed cross-exceptions, a supporting brief, and an answering brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs1 and has decided to affirm the judge’s rulings, findings,2 and conclusions as modified and to adopt the recommended Order, as modified and set forth in full below.

This case presents several issues arising from the Union’s campaign to “salt” the Respondent in 1996 and 1997. For the reasons set forth in the judge’s decision, we find that the Respondent’s foremen, Greg Reber, and Roy Perdue committed violations of Section 8(a)(1) of the Act,3 and that the Respondent lawfully implemented a wage increase for its employees on May 6, 1996.4 For the reasons discussed below in section I, we affirm the judge’s conclusions that the Respondent unlawfully refused to hire organizer Ron Lundien, but that it did not unlawfully refuse to hire other union applicants on and after May 14, 1996.5 For the reasons discussed below in section II, we agree with the judge that the Respondent unlawfully maintained and enforced a mandatory grievance and arbitration procedure that restricted employee and job-applicant access to the Board. Finally, as discussed in the amended remedy section of this decision, we will modify the judge’s recommended remedies for the refusal to hire Ron Lundien and the unlawful maintenance and enforcement of the mandatory grievance and arbitration procedure.

i. the alleged hiring discrimination

A. Facts

The Respondent is an electrical contractor with a main office in Webb City, Missouri, and a branch office in Nixa, Missouri. The Respondent’s president, Dale Wilson, and Superintendent John Reavis work in Webb City and oversee projects originating from there. Nixa Branch Manager Ron McInturff reports to Wilson and oversees projects originating from Nixa. Webb City and Nixa management make separate hiring decisions and consider job applicants only at the office where they apply.

Alleged discriminatee Ron Lundien became an organizer for the Union in early April 1996.6 When the Respondent began advertising in a local newspaper for experienced electricians on April 16, Lundien and Union President Phil Brown first tried unsuccessfully to persuade Wilson to become a union contractor. The union officials then initiated an effort to have union salts apply for jobs with the Respondent. Lundien himself telephoned the Respondent’s Webb City office to inquire about job opportunities on April 22. Superintendent Reavis invited Lundien to the office for an interview.

Lundien went to the office the next day. He gave Wilson and Reavis a resume detailing 20 years of experience as a journeyman wireman. During the interview, Lundien stated to Wilson an intent “to come to work for him to make him a hand and then with the possibility of organizing his shop.”

Later on April 23, Lundien directed Mark Miller to apply for work with the Respondent. Miller was a new union member whom the Respondent had discharged in 1994 for poor work performance. Miller called and spoke to Reavis, who said that the Respondent needed electricians. Without disclosing his union affiliation, Miller interviewed with Reavis and was hired by him on April 24. Miller worked only 1 day, on April 27, before quitting.

Lundien was not hired. Wilson variously testified that he believed Lundien had a job working for the Union, he felt Lundien was not honestly looking for a long-term job, and Lundien’s appearance was unkempt. Wilson said that “we’re not looking for short term people,” and Lundien did not tell him that he wanted to be a long-term employee. Explaining his position about hiring union organizers, Wilson testified that “[i]f a salesman come and told me he was a bible salesman . . . I don’t have anything against religion, and I don’t have anything against Bibles, but I don’t need one . . . I don’t have anything against the Union or organizers. I just don’t have a use for one.” Reavis echoed Wilson’s testimony that they did not think Lundien was a serious applicant and stated that “we don’t need an organizer.” Reavis said that he hoped any employee hired would stay for a long time.

Reavis also testified that no positions were available when Lundien applied. Lundien testified that is what Reavis told him when Lundien called the Webb City office on April 29. In fact, the Respondent continued to run its newspaper job advertisement through May 2. It hired Philip Morrison, who began work as a journeyman on May 6.7 It also hired Steven Denby as an apprentice on May 14. Denby, like Miller, was a former employee. Respondent had recently fired Denby for excessive absenteeism and tardiness. Denby’s new application shows he worked only 3 months before that discharge. When Miller and Denby reapplied, Reavis said he thought that he would give them a “second chance.”

On May 13, Lundien again called the Webb City office. Wilson told him no jobs were available and that applications had to be re-signed every 30 days. Thereafter, Lundien routinely sent monthly notices to the Respondent indicating his continued interest in obtaining employment. Wilson testified that he did not view the renewal notices seriously, stating, “[T]here are better ways of doing that . . . they were just little notes.”

On May 14, Lundien and union members Randy Claggett, Gerry Fleming, Jack Massey, and Lyn Uto went to the Webb City office to apply for jobs. Once inside the office, Lundien used a video camera to record the application process. Wilson asked Lundien to turn off the camera, but Lundien refused. Although Wilson did not ask Lundien to leave, he did ask his secretary to call the police to report a “disturbance.” Lundien continued to videotape for approximately 10 minutes until two policemen arrived. They escorted Lundien outside. There were no arrests made or citations issued.

In the meantime, the other union members completed their applications and one asked for an interview. Lundien testified that the applicants and Wilson were “not rude, but [were] pleasant.” When asked by the Respondent’s counsel if Wilson had a right to ask Lundien not to videotape in the office, Lundien replied, “I suspect so.” Wilson testified that he viewed the videotaping incident “very unfavorably,” and he did not consider the union members to be “serious applicants” looking for full-time work. The Respondent hired two apprentices in the 30 days following May 14. The four union members who applied on that date were not offered employment until approximately 1 week before the hearing. Prior to that time, Lundien sent monthly notices to the Respondent indicating the continuing job interests of Lundien and the other four applicants.

Union salts Karl Gregory and Donald Sapp applied for work at the Webb City office on September 13 and October 4, respectively. Their applications indicated a union contractor work history and union apprenticeship training. Lundien subsequently added their names to his recurring monthly notice to the Respondent of union applicants’ continued availability. Like the May 14 applicants, Gregory and Sapp were not offered work until a week before the hearing in this case. Superintendent Reavis testified that there was no work available when they applied. Hiring records show that the Respondent did not hire anyone at Webb City between September 11 and February 4, 1997. At least 12 other applicants were not hired. The Respondent did hire several applicants at the Nixa office during this time.

B. The Judge’s Decision

The judge analyzed the 8(a)(3) refusal to hire or consider hiring allegations in the case under the Wright Line8 test of discriminatory motivation. Without any specific discussion of evidence, the judge assumed that the General Counsel met his initial burden of proving that the Respondent was motivated by union animus in failing to hire or consider hiring all seven alleged discriminatees. He then discussed whether the Respondent had met its rebuttal burden of proving that it would have taken the same action even in the absence of union activity.

With respect to Lundien, the judge found that the Respondent had not met its rebuttal burden for refusing to hire or consider hiring Lundien from the time of his April 23 application until May 14, the date of the group application filing. The judge discredited testimony by Wilson and Reavis and rejected as pretext their defense claims about Lundien’s appearance and the lack of job openings. The judge found that they “admittedly declined to treat Lundien as a ‘serious applicant’” after he disclosed his intent to organize.

However, the judge found that Respondent proved it would not have hired the four May 14 union applicants because of their concerted participation with Lundien, who refused Wilson’s request to cease videotaping the application process in the Webb City office. Without deciding whether the videotaping was itself protected activity, the judge stated that “[n]othing in this record suggests that Respondent has, or should be required to, consider applicants who disrupt its normal office routine and compromise the minimal security standard of concern to Wilson to the extent that it becomes necessary to summon police officers to enforce the expected order.” The judge concluded that the May 14 incident was “indistinguishable” from one at issue in Heiliger Electric Corp., 325 NLRB 966 (1998). He found no significance in the fact that Wilson, unlike the employer in Heiliger, did not request the cameraman and applicants to leave the office before Wilson summoned the police.

The judge also found that the Respondent met its rebuttal burden with respect to the applications of Gregory and Sapp. The judge specifically credited Reavis’s testimony, supported by documentary evidence, that the Respondent had no work for Gregory and Sapp when they applied. He also implicitly credited Wilson’s testimony about the regular application process, i.e., applications needed to be re-signed every 30 days, Lundien’s repeated monthly notices of continuing availability were not adequate, and hiring at the Nixa office was limited to applications filed there.

C. Analysis

The judge’s decision predates our decision in FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002). In FES , the Board held that, to establish a discriminatory refusal to hire under the allocation of burdens set forth in Wright Line, supra, the General Counsel must first show that (1) the respondent was hiring, or had concrete plans to hire, at the time of the alleged unlawful conduct; (2) the applicants had experience or training relevant to the announced or generally known requirements of the positions for hire, or in the alternative, that the employer has not adhered uniformly to such requirements, or that the requirements were themselves pretextual or were applied as a pretext for discrimination; and (3) antiunion animus contributed to the decision not to hire the applicants. Once this is established, the burden shifts to the respondent to show that it would not have hired the applicants even in the absence of their union activity or affiliation. Id. at 12.

We find the record in this case is sufficient to determine the merits of the refusal-to-hire allegations under the FES analysis. Applying this analysis to each of the alleged discriminatees, we reach the same conclusions as the judge did in his pre-FES decision.

The General Counsel met his initial burden of proof with respect to Lundien’s April 23 job application. First, the record shows that the Respondent was hiring. It advertised for experienced electricians in a local newspaper from April 16 to May 2, it invited Lundien and Miller to job interviews, and it hired Denby and Miller.9 Although Lundien applied for a journeyman’s position, and the Respondent hired Denby and Miller as apprentices, Respondent’s president, Wilson, conceded that an applicant for the more experienced position could be considered for apprentice positions. Second, there is no dispute that Lundien had experience and training relevant to the positions for hire. Third, the admissions of both Wilson and Reavis that they did not hire Lundien because of his stated intent to organize the Respondent’s employees prove that the Respondent’s union animus was a motivating factor in their hiring decision.10

The Respondent failed to meet its FES rebuttal burden of showing that it would not have hired Lundien even in the absence of his declared intent to organize. There is no basis for reversing the judge’s discrediting of testimony by Wilson that Lundien’s appearance was a factor in the hiring decision. We further find that the Respondent failed to prove that it would have hired Miller11 and Denby rather than Lundien because they were former employees or they were better prospects for long-term employment. While the Respondent has rehired former employees, such as Miller and Denby, there is insufficient evidence of a consistent policy of giving hiring priority to former employees over other applicants. Reavis’ testimony indicates only that he made a discretionary decision to give Miller and Denby a second chance. Finally, although the Respondent, like most employers, may have preferred to hire applicants with the prospect of long-term employment, it failed to show why it believed Miller and Denby were better long-term prospects than Lundien. Wilson testified that Lundien did not tell him that he wanted to be a long-term employee, but there is no evidence that either Miller or Denby volunteered such a desire. Moreover, there seems to be little in these former employees’ past employment with the Respondent that would inspire confidence in their prospects for long-term reemployment. We therefore affirm the judge’s conclusion that the refusal to hire Lundien on and after April 23 violated Section 8(a)(3) and (1) of the Act.12

The General Counsel also met his initial FES burden with respect to the refusal to hire the four May 14 union applicants. First, the record shows that the Respondent hired two apprentices within 30 days after they applied. Second, as with Lundien, there is no dispute that the applicants had experience and training relevant to the available jobs. Finally, we find it reasonable to infer from their group application in concert with Lundien that the Respondent bore the same animus against them, as potential organizers, that it bore against Lundien, based on his avowed intent to organize.

However, we agree with the judge that the Respondent has shown that it refused to hire the May 14 applicants because they acted in concert with Lundien’s refusal to cease videotaping their application process until Wilson summoned police to remove Lundien from the Webb City office. The judge’s analysis of the videotaping issue is consistent with that in Heiliger, supra. Contrary to the General Counsel’s argument in exceptions, Heiliger recognizes the legal right of an employer to tell applicants and those accompanying them to cease videotaping in circumstances that are disruptive of the employer’s normal application process and raise concerns for office security. See 325 NLRB at 968. Notwithstanding the lack of overt hostile behavior involved in this case (in contrast to Heiliger), the judge reasonably found that the refusal to cease videotaping was sufficiently disruptive and disrespectful to justify the Respondent’s decision not to hire the May 14 applicants who acted in concert with Lundien.13 We therefore affirm the judge’s dismissal of allegations that the refusal to hire or consider hiring Claggett, Fleming, Massey, and Uto on and after May 14 violated the Act.

Finally, with respect to the refusal to hire Gregory and Sapp, we find that the General Counsel has failed to meet his initial FES burden of proof. Specifically, we find that the General Counsel has failed to show that the Respondent was hiring or had concrete plans to hire at times when the applications from Gregory and Sapp were active.14 In this regard, there is no basis for reversing the judge’s findings about the lack of available jobs at Webb City, the obligation to re-sign applications every 30 days, and the separate hiring process at Nixa. Accordingly, we affirm the judge’s dismissal of the refusal to hire allegations for Gregory and Sapp on this basis.

ii. the mandatory grievance and
arbitration procedure

A. Facts

At some point between Lundien’s filing of an application on April 23 and the group application filing on May 14, the Respondent changed its application form by adding a paragraph above the signature line that required applicants to agree to resolve through the Respondent’s grievance and arbitration procedure “any legal claims . . . in connection with my rights under Federal or State law, both in connection with the application process and afterwards as an employee.” The application stated that a copy of the grievance policies and procedures, an 8-page statement denominated ADR Form 2, was available on request.

In relevant part, paragraph 5 of ADR Form 2 is entitled “Arbitration to be Exclusive Procedure for Resolution of All Disputes,” and it provides that the grievance and arbitration procedure “shall be the exclusive method of resolution of all disputes, but this shall not be a waiver of any requirement for the Employee to timely file any charge with the NLRB, EEOC, or any State Agency . . . as may be required by law to present and preserve any claimed statutory violation in a timely manner.” ADR Form 2 also provides for a stay of any court or agency proceeding initiated by an employee until exhaustion of arbitration proceedings. It further provides for payment to the Respondent of litigation costs if it obtains a stay or dismissal of “any lawsuit or agency proceeding . . . filed in violation of this agreement to resolve the disputes through this exclusive procedure.” ADR Form 2 elsewhere provides that an arbitrator’s decision shall be final, subject only to judicial review in Missouri circuit court or a United States district court or as otherwise provided under the Missouri Uniform Arbitration Act.

After charges were filed alleging the unlawful refusal to hire the May 14 applicants, the Respondent’s counsel sent identical letters to Claggett, Fleming, Massey, and Uto stating that they were “required under the grievance and arbitration procedures that you agreed to in your employment application form with [the Respondent] to follow these grievance procedures as the exclusive step for resolution of any claimed violation of your rights.” A grievance form and a copy of ADR Form 2 were enclosed with each letter. None of the four alleged discriminatees filed grievances, and the Respondent took no further action to enforce its mandatory policy against them.

B. Judge’s Decision

The judge found that the mandatory grievance and arbitration agreement in the application form violated Section 8(a)(1) of the Act, and the letters to the four alleged discriminatees violated Section 8(a)(4) of the Act. He stated that the application and letters, read together, clearly sought to interfere with employee access to the Board. He rejected the Respondent’s reliance on judicial enforcement of mandatory alternative dispute resolution procedures in individual employment rights cases, and on the enforcement of consensual grievance-arbitration systems in the collective-bargaining context. Referring to the provision for imposition of litigation costs if an employee persisted in seeking initial Board relief, the judge found that the mere maintenance of such a system, even if not enforced, would have a chilling effect on statutory rights of access to the Board.

C. Analysis

It is undisputed that the mandatory grievance and arbitration policy established in 1996 applies, inter alia, to the filing of unfair labor practice charges with the Board. On the one hand, the policy does not expressly prohibit the filing of unfair labor practice charges. Indeed, it informs applicants that their participation in the Respondent’s grievance and arbitration procedure does not constitute a waiver of any Board requirements for timely filing of unfair labor practice charges, and the Respondent argues that Board review and determination of whether to defer to a final arbitration award remains an open matter. On the other hand (1) both the application forms and the letters sent in response to the filing of charges in this case emphasize that the grievance and arbitration procedure is the exclusive method for dispute resolution, subject only to limited judicial review, and (2) any applicant or employee seeking to pursue Board relief before completion of the arbitration process would have to bear the costs of any litigation to compel compliance with that process. At the very least, the mandatory grievance and arbitration policy would reasonably be read by affected applicants and employees as substantially restricting, if not totally prohibiting, their access to the Board’s processes. We therefore affirm the judge’s finding that the policy violates Section 8(a)(1) of the Act and that the attempt to enforce it in letters to the alleged discriminatees violated Section 8(a)(4) of the Act.15

Amended Remedy16

The judge found that Lundien’s refusal to cease videotaping the application process on May 14, in response to which Wilson summoned police to escort Lundien from the Webb City office, justified tolling remedial backpay as of that date for the Respondent’s prior unlawful refusal to hire Lundien and relieved the Respondent of the usual obligation to offer Lundien instatement. We disagree. The parties litigated the issue of whether the conduct of Lundien and the four union applicants who acted in concert with him on May 14 justified the Respondent’s refusal to hire those four applicants. Unlike the May 14 applicants, Lundien was already a discriminatee whom the Respondent unlawfully had refused to hire after his April 23 application. The General Counsel proved that at least one job (possibly more than one) was available from April 24 through May 14. Accordingly, the appropriate remedy for the Respondent’s refusal to hire Lundien includes backpay and instatement to the position for which he applied. The parties did not litigate the discrete, separate issue of whether Lundien’s subsequent conduct on May 14 would have justified terminating him if the Respondent had not unlawfully refused to hire him prior to that date. In these circumstances, we have decided to leave resolution of this unlitigated issue to compliance, where the Respondent, if it wishes to establish that Lundien is not entitled to instatement and that his backpay must be limited, will have the burden of establishing that he engaged in misconduct for which it would have discharged any employee.17 Accordingly, we shall modify the judge’s recommended Order to include instatement and backpay for Lundien.18

To remedy the Respondent’s unlawful maintenance and enforcement of the mandatory grievance and arbitration procedure established in 1996 that interfered with employee access to the Board’s processes, the judge recommended that the Respondent, if it wished to maintain this procedure, modify its application form and related documents to specify in bold print that the procedure does not apply to any matter an employee may choose to bring before the Board, to cease enforcing the procedure as to any matter brought before the Board, and to post copies of the remedial notice at all existing jobsites. We find these remedial provisions appropriate. In addition, we shall order the Respondent to mail copies of a remedial notice to applicants who were required when applying for jobs to agree to use this procedure as the exclusive means for resolving disputes about the application process and subsequent employment. “The Board provides for the mailing of individual notices when posting will not adequately inform the employees of the violations that have occurred and their rights under the Act.”19 In this case, it is undisputed that there were many job applicants who were never hired, and many others who were hired but no longer work for the Respondent, who would not receive notice of the Respondent’s unlawful mandatory procedure and their statutory rights unless we required the Respondent to mail notices to them.

We note that the Respondent claims that in April 1998 it altered its application form and substituted an optional grievance and arbitration procedure for the unlawful mandatory procedure established in 1996. The parties did not litigate whether the Respondent actually implemented a new procedure and whether it communicated to prior job applicants and present and former employees that they were no longer bound by the unlawful mandatory procedure with respect to matters they choose to bring before the Board. We leave these matters to compliance proceedings.

ORDER

The National Labor Relations Board orders that the Respondent, Bill’s Electric, Inc., Webb City, Missouri, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Threatening employees that the shop would close if the Respondent had to recognize International Brotherhood of Electrical Workers Local No. 95.

(b) Promulgating or maintaining a no-solicitation policy that pertains only to solicitation on behalf of a labor organization.

(c) Soliciting employees to report any employee who fails to adhere to a no-solicitation policy that pertains only to solicitation on behalf of a labor organization.

(d) Telling employees that union sympathizers will be laid off first.

(e) Maintaining a grievance-arbitration procedure as a condition of employment that interferes with employee and job-applicant access to the Board’s processes.

(f) Interfering with employee and job-applicant access to the Board by attempting to enforce the terms of the mandatory grievance-arbitration procedure established in 1996.

(g) Refusing to hire, or consider for hire, any applicant for employment because he or she expresses an intention to engage in union organizational activities.

(h) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Within 14 days from the date of this Order, offer Ron Lundien instatement to the position for which he applied or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges to which he would have been entitled absent the discrimination against him.

(b) Make Ron Lundien whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, in the manner set forth in the “Amended Remedy” section of this Decision.

(c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful refusal to consider and hire Ron Lundien, and within 3 days thereafter, notify him in writing that this has been done and that the discriminatory action will not be used against him in any way.

(d) Modify its employment application form and any other document containing reference to the mandatory grievance-arbitration procedure established in 1996 to specify in bold print that the grievance-arbitration procedure is entirely inapplicable to any matter employees or job applicants may choose to bring before the Board.

(e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.

(f) Within 14 days after service by the Region, post at all existing jobsites copies of the attached notice marked “Appendix A.”20 Copies of the notice, on forms provided by the Regional Director for Region 17, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since April 23, 1996.

(g) Within 14 days after service by the Region, duplicate and mail, at its own expense, copies of the attached notice marked “Appendix B”21 to all individuals who were required as a condition of the application process to sign application forms agreeing to the terms of the grievance-arbitration procedure established in l996. Copies of the notice, signed by the Respondent’s authorized representative, shall be mailed to the last known address of each of these individuals.

(h) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.

Dated, Washington, D.C. July 24, 2007

Wilma B. Liebman, Member

Peter N. Kirsanow, Member

Dennis P. Walsh, Member

(seal) National Labor Relations Board

APPENDIX A

Notice To Employees

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.

federal law gives you the right to

Form, join, or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities.

We will not threaten our employees that the shop will close if we have to recognize the International Brotherhood of Electrical Workers Local Union No. 95 as their exclusive collective-bargaining representative.

We will not promulgate or maintain a no-solicitation policy that pertains only to solicitation on behalf of a labor organization.

We will not solicit employees to report to us any employee who fails to adhere to a no-solicitation policy that pertains only to solicitation on behalf of a labor organization.

We will not tell employees that union sympathizers will be laid off first.

We will not maintain a grievance-arbitration procedure as a condition of employment that interferes with employee and job-applicant access to the Board’s processes.

We will not interfere with employee and job-applicant access to the Board’s processes by attempting to enforce in any way the terms of the grievance-arbitration procedure adopted in 1996.

We will not refuse to consider for employment or refuse to hire job applicants because they express an intention to engage in union organizational activities.

We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.

We will, within 14 days from the date of the Board’s Order, offer Ron Lundien instatement to the position for which he applied or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges to which he would have been entitled absent the discrimination against him.

We will make Ron Lundien whole for any loss of earnings and other benefits he may have suffered by reason of the discrimination against him.

We will, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful refusal to consider and hire Ron Lundien, and we will, within 3 days thereafter, notify him in writing that this has been done and that the unlawful action will not be used against him in any way.

We will modify our employment application form and any other document containing reference to the mandatory grievance-arbitration procedure established in 1996 to specify in bold print that the grievance-arbitration procedure is entirely inapplicable to any matter employees or job applicants may choose to bring before the Board.

Bill’s Electric, Inc.

APPENDIX B

Notice To Employees

Mail by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.

federal law gives you the right to

Form, join, or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities.

We will not maintain a grievance-arbitration procedure as a condition of employment that interferes with employee and job-applicant access to the Board’s processes.

We will not interfere with employee and job-applicant access to the Board’s processes by attempting to enforce in any way the terms of the grievance-arbitration procedure we adopted in 1996 that you were required to agree to as a condition of your application to work for us.

We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.

We will modify our employment application form and any other document containing reference to the mandatory grievance-arbitration procedure established in 1996 to specify in bold print that the grievance-arbitration procedure is entirely inapplicable to any matter employees or job applicants may choose to bring before the Board.

Bill’s Electric, Inc.

Francis A. Molenda, Esq., for General Counsel.

Donald W. Jones, Atty. (Hulston, Jones, Gammon & Marsh), of Springfield, Missouri, for the Respondent.

Michael J. Stapp, Atty. (Blake & Uhlig), of Kansas City, Kansas, for the Charging Party.

DECISION

Statement of the Case

William L. Schmidt, Administrative Law Judge: Local 95, International Brotherhood of Electrical Workers, AFL–CIO (Local 95 or the Union) filed Case 17–CA–18629–1 on May 13, 1996, and amended that charge on May 15 and again on July 5. On June 24, the Union filed Case 17–CA–18697 and amended that charge on August 12. Thereafter, the Union filed Case 17–CA–18787 on August 26 and amended that charge on November 8. On April 13, 1997, the Union filed the charge in Case 17–CA–19112 and then amended that charge on July 31, 1997. The Regional Director for Region 17 issued the operative complaint—the third consolidated complaint—on July 31, 1997, alleging that Bills Electric, Inc. (the Company or Respondent) engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of the National Labor Relations Act (the Act). Respondent filed a timely answer denying that it engaged in the unfair labor practices alleged.

I heard this case at Joplin, Missouri, on April 21 and 22, 1998. On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel, the Charging Party, and the Respondent, I make the following

Findings of Fact

i. jurisdiction

The Company, a corporation, engaged in business as a commercial electrical contractor, maintains an office and place of business in Webb City, Missouri. During the 12-month period ending June 30, 1997, Respondent’s direct inflow and direct outflow exceeded the amount established by the Board for exercising its statutory jurisdiction over nonretail enterprises. Accordingly, I find that it would effectuate the purposes of the Act for the Board to exercise its statutory jurisdiction to resolve this labor dispute.

ii. alleged unfair labor practices

A. The Complaint Allegations

Complaint paragraph 5 alleges that the Company violated Section 8(a)(1) of the Act by Foreman Greg Reber’s conduct in promulgating an unlawful no-solicitation rule, soliciting employees to spy on the union activities of other employees and report them to the Company, and threatening employees with layoff for engaging in union or concerted activities. It also alleges that the Company violated Section 8(a)(1) by Foreman Roy Purdue’s conduct in threatening employees with “plant closure” if they engaged in union or concerted activities. Respondent denied that Reber and Purdue are supervisors or agents within the meaning of Section 2(11) and (13) and further denies the specific unfair labor practice allegations attributed to them.

Complaint paragraph 6 alleges that on various dates between April 23 and October 4, Respondent granted a wage increase to employees, and refused to consider or hire seven applicants for employment because those employees joined and assisted the Union in violation of Section 8(a)(1) and (3) of the Act.[1]

Complaint paragraph 7 in effect alleges that Respondent maintains a grievance and arbitration system requiring employees and applicants for employment to utilize that system as the exclusive means of resolving all legal claims against the Company. It further alleges that the Company sought to invoke that system to resolve the claims made by four applicants for employment. The complaint avers this conduct violates Section 8(a)(1) and (4) of the Act because it seeks to prevent employee access to the National Labor Relations Board (the Board). Respondent admitted the factual allegations in paragraph 7 but denied that its grievance and arbitration system violates the Act.

B. Relevant Facts

1. Background and wage rates

For about five decades Respondent has been engaged in the electrical contracting business. Throughout that time its principal office and place of business has been located in Webb City, Missouri. In addition, for the past 10 years Respondent has maintained a branch office first located in Branson, Missouri, and later moved to Nixa, Missouri, where it remained at the time of the hearing. Historically, Respondent has performed work in throughout the immediate region that includes portions of Missouri, Arkansas, Oklahoma, and Kansas.

Dale Wilson, Respondent’s president and chief executive officer, oversees the entire operation. John Reavis, Respondent’s superintendent of operations, works from the Webb City office and oversees Respondent’s projects under the direction of the Webb City headquarters. Ronald McInturff, the Nixa branch manager, supervises the Nixa office operation and the projects under direction of the Nixa office. Both Reavis and McInturff are primarily responsible for the hiring and terminating employees assigned to their particular offices, but as a rule both keep Wilson closely informed of their personnel actions and the reasons for those actions.

Workers seeking employment on projects under the direction of the Webb City office must apply at that office; those seeking employment at projects under the direction of the Nixa office must apply there. Although a couple of employees have been permanently transferred from Nixa to Webb City, these actions appear to have been at the employee’s request. Ordinarily the employees assigned to the two separate offices are not interchanged save for rare instances where work is slow. At relevant times, Respondent employed from 45 to 65 workers exclusive of its office staff.

Charging Party’s Exhibit 3, a company document dated October 13, 1995, sets forth the Company’s wage scale at that time. Whether this document represented increases in pay effective on that date is not clear. Wilson described it as the Company’s first effort to establish pay classifications. It sets forth four classifications of apprentices—first through fourth year—and separate classifications for journeyman and foreman. Each classification has a pay band except that it indicates that the pay band for the foreman classification is “$14.00 to $ ??” per hour. In the text below the pay bands, the document appears to describe the requirements for the journeyman and foreman positions and indicates clearly that movement through the apprentice level need not be tied to a time requirement in a particular classification.

On May 6, 1996, the Company adopted a new wage scale. (See GC Exh. 3.) This announcement retained the pay band concept only for the apprentice classifications and announced sizeable pay increases that ranged from as low as 70 cents per the high end of the first year apprentice rate to $6.24 per hour for a worker classed at the low end of the journeyman pay band under the October 1995 announcement. At the top end of the October 1995 pay bands, the May 1996 pay announcement would have resulted in significant increases that ranged from 70 cents per hour for the first year apprentice ($6.50 per hour before the May increase) to $3.74 per hour for the fourth year apprentice ($9.50 per hour before the May increase). However, no evidence was introduced that would permit a determination as to whether any worker actually received such a dramatic increase in pay or whether this was a mere anomaly resulting from the abandonment of the pay band system for that classification.

According to Wilson, the timing of the 1996 pay increase was tied to the end of the Company’s fiscal year. He explained that the Company’s fiscal year ends on March 31 and that its tax return is due on June 15. The 1996 pay raise determination, according to Wilson, resulted after the yearend accounting documents had been completed that reflected an exceptionally good year. In 1997, a further but substantially more modest increase in pay was announced on June 5 and Wilson indicated that a 1998 pay increase would likely be announced shortly after the hearing.

Regardless of the foregoing documentary evidence, some other evidence tends to indicate that the classification of employees remains largely a subjective exercise by Wilson, Reavis, and McInturff. In certain instances, as illustrated by employee Mark Miller discussed below, an employee’s pay rate would appear to be affected more by what the employee indicates he or she would be willing to work for rather than some objective standard concerning the employee’s experience in the trade.

2. The job foremen

Respondent employs job foremen to oversee the work at its various jobsites throughout the region where it operates. As noted, the conduct of two foremen, Greg Reber and Roy Purdue, is at issue in this case but Respondent denies that either Reber or Purdue were supervisors or agents at relevant times.[2] Neither testified in this proceeding.[3]

According to Wilson, the job foremen are involved primarily in “job planning” and purchasing materials. Workers assigned to jobs where Reber and Purdue served as the job foreman observed both study blueprints for the purpose of laying out project work, assign workers to particular tasks, and reassign workers to other tasks when the assigned work was completed or work with greater priority arose.

In the spring and summer of 1996, Reber served as job foreman for three geographically separated projects in the Joplin area. Ten to 12 employees worked under his direction on one such project, the Sears job. The size of the crew on the other jobs is not known but, when needed, Reber temporarily transferred employees from the Sears job to his other projects. Reber conducted jobsite safety and information meetings among the employees. In addition, he conducted Respondent’s formal apprenticeship training classes held at Joplin’s American Legion Hall. Otherwise, Reber’s duties included obtaining and providing the necessary materials for the work in progress,[4] and assigning overtime to selected employees where required. In at least one instance (Miller), Reber refused to recommend a pay increase. All the workers who testified looked to their job foreman for permission to be absent from work for personal business reasons and Wilson conceded that the foremen have such authority. Wilson further conceded that the Purdue’s duties were similar to Reber’s and that he regarded both men as capable of overseeing projects with up to 15 employees.

Job foremen are responsible for maintaining the project time records and submitting them to the office so that employees are paid in a timely fashion. Other evidence shows that Purdue distributed paychecks to crewmembers and reviewed those checks for accuracy. Under Respondent’s pay system announced on May 6, the foreman classification is paid 70 cents per hour more than the journeyman wireman classification but, according to Wilson, Purdue is paid above the listed hourly rates for foremen and general foremen. Both the foreman and general foreman classifications are eligible for a profit-based bonus on the projects they oversee. The Company provided Reber and Purdue with pickups, telephone beepers, and remote radios for use in their duties. The workers observed others in Respondent’s management hierarchy, such as Reavis and Wilson, on the project sites only infrequently.[5] Although the job foremen worked with the tools of the trade (estimated up to 60 percent of the workweek for Reber and far less for Purdue), their administrative duties occupied a substantial portion of their worktime.

3. The Union’s salting campaign

In early April 1996, Ron Lundien became an organizer for Local 95, an affiliate of the IBEW with geographical jurisdiction extending over 10 southwest Missouri counties and 2 southeastern Kansas counties. Shortly thereafter, Lundien saw company ads in an area newspaper (the Nevada Daily Mail) for “experienced electricians.” Thereafter, Lundien and Local 95 President Phil Brown visited Wilson at his office in an effort to persuade him to become a union contractor but Wilson told them he was not interested. Following this meeting, Lundien and Brown commenced an effort to organize the Company from within by having union salts seek employment with the Company.

Lundien first sought employment. On April 22, he telephoned the Company and spoke with Reavis about applying for work. Reavis invited him to the Company’s Webb City office the following day to complete an application and for a personal interview. On April 23, Lundien went to the Company, completed the application form, submitted a resume, and sat for an interview by Wilson and Reavis. His resume reflects over 20 years’ experience as a journeyman wireman and the names of electrical contractors for whom he had worked over the past 8 years. During the interview, Lundien told Wilson that he was “intent to come to work for him to make him a hand and then with the possibility of organizing his shop.”

Based on Lundien’s candid assertion that he intended to organize Respondent’s employees, Reavis felt that Lundien was not a serious applicant for employment. Reavis assumed that Lundien received pay for his organizing activities and asserted that he preferred to hire employees who needed work rather than those already working. According to Reavis, the Company had no openings for an organizer and, in any event, he would not likely hire anyone who asserted, in effect, that they intended to engage in another concurrent sideline such as selling insurance or bibles. In any event, Reavis claimed that the Company had no further openings at that time. Lundien never received an employment offer from the Company.[6]

From the time of Lundien’s application through May 14, Respondent hired three employees, Mark Miller, Philip Morrison, and Steven Denby, at the Webb City office. Miller, a former employee and a union salt, applied on April 24 and began work on April 27. Relevant facts about his brief tenure are detailed below. Morrison, a journeyman with experience similar to or greater than Lundien’s, started work on May 6 but Reavis claims that he actually arranged for Morrison to commence his employment 2 or 3 weeks earlier and prior to the time that Lundien submitted an application. This arrangement, Reavis claims, was made at Morrison’s request.[7] The Company hired Denby on May 14 and he started to work on May 15 at a pay rate in the middle of the Company’s 4th year apprentice scale. Denby’s application reflects that he worked for the Company from October 1995 until his discharge in January 1996.[8]

The day after Lundien submitted his first application, he instructed Mark Miller, formerly employed by the Company from 1992 to 1994 and recently accepted into union membership, to apply for employment. Miller called the Company on April 24 and spoke with Reavis. After Reavis told Miller that the Company needed electricians, Miller went to the Webb City office, completed an application, and sat for an interview by Reavis. During the interview, Miller claimed to have worked most recently for two nonunion residential electrical contractors and otherwise provided no indication that he had recently become a union member.[9] By the conclusion of the interview, Reavis had hired Miller for work at $10 per hour, the amount sought by Miller on his application, and assigned him to the Company’s project at the Sears store in Joplin starting April 27.

Miller reported to the Sears jobsite at starting time on April 27. Reber provided him with his work assignment and Miller worked through the morning without incident. At the lunchbreak, Miller met with Lundien and Brown in the Sears parking lot and they provided him with union stickers that he put on his hard had and a union T-shirt that he wore back to the project following lunch. Lundien and Brown accompanied Miller and the three men spoke with Reber. Miller requested that his pay be increased to $13 per hour under the Respondent’s wage scale. Reber rejected Miller’s request for increased pay and when pressed further, Reber refuse to “bother” higher management (Wilson or Reavis) with Miller’s request. Although Lundien claims that he advised Reber that Miller would strike if his pay was not increased, in fact Miller returned to work that afternoon.

Shortly after the lunchbreak ended, Reber, a former member of the Union, called the 10 or 12 employees on the jobsite to a meeting. At the meeting, Reber introduced Miller as a union member and told the other employees that Miller was there “to organize the employees and to share the ideas of the Union way of life.” Reber also told the employees that if Miller did so during work hours they should report that to him personally because Miller could only do so “legally during break times or off hours––off work hours.” Finally, Reber told the employees that as soon as the job was caught up, there would be layoffs and that the last person hired, obviously Miller, would be laid off first.[10] At the end of the day, Miller asked Reber if his pay increase had been approved. Reber told him that it was not and that he did not intend to seek approval for Miller’s requested increase from higher management. Miller did not return to work the following day or thereafter. Instead, he took a job with another contractor.

On April 29, Lundien called the Company’s office, spoke with Reavis, and asked again if any jobs were available. At that time, Reavis told Lundien that there were no jobs available. Reavis also told Lundien that his previous application would be good for a year. Lundien made another similar call to the company office on May 13 but spoke with Wilson on this occasion. Wilson told Lundien that there were no jobs available at that time and that applications had to be “re-signed” every 30 days.

In the meantime, on May 6 Reber went to the Union’s office with a copy of the Company’s new wage scale. Reber told Lundien that there was no further need to organize Respondent’s employees as they now made as much or more than union employees did. Wilson claims that he admonished Reber when he later disclosed this visit to the Union’s office.

On May 14, Lundien arranged to have union members Randy Claggett, Gerry Fleming, Jack Massey, and Lyn Uto accompany him to the Company’s office to apply for work. Lundien took a video camera along to videotape their application process. Once inside the Company’s relatively small office, the Company’s receptionist provided applications to the four men while Lundien videotaped the process. When Wilson learned that Lundien was videotaping in the reception area, he requested Lundien to cease. Lundien refused and Wilson returned to an inner office where he instructed a secretary to telephone the police because of the “disturbance.” Lundien continued to videotape until the two police officers arrived about 10 minutes later. At that time, the police officers escorted Lundien outside. According to Wilson, two of the applicants had completed their applications by about the time that the policemen arrived and they accompanied Lundien outside. Shortly thereafter, the other two applicants completed their forms, put them on the receptionist’s desk and left the office. During his redirect examination, Wilson described his reaction in this manner:

Q. And how did it impress you when they come in May 14, 1996, with their video cameras? Did you consider that was helpful to them getting a job?

[Intervening objection overruled.]

The Witness: Again, it’s similar to what I was saying a while ago. They come in and wanted the—some—ask for some applications.