Windemuller Electric

National Labor Relations Board - Board Decisions

Mar 9, 1992

306 N.L.R.B. 664 (N.L.R.B. 1992)

664
306 NLRB No. 125
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Respondent Windemuller Electric, Inc. has excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrue an administrative law judge’s credibility resolutions un-
less the clear preponderance of all the relevant evidence convinces
us that they are incorrect. Standard Dry Wall Products, 91 NLRB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
In the fifth sentence of the third paragraph of sec. IV,B, of the
judge’s decision, the date should be August 6, rather than August
16. We correct this inadvertent error.
In the absence of exceptions to the judge’s finding that the
discriminatees were ‘‘employees’’ entitled to the protection of the
Act, Member Oviatt finds it unnecessary to address the judge’s ra-
tionale in making that finding. See his dissent in Escada (USA), Inc.,
304 NLRB 845 (1991).
1 All dates herein are for 1990 unless otherwise indicated.
2 Certain errors in the transcript have been noted and corrected.
Windemuller Electric, Inc. and Local No. 107,
International Brotherhood of Electrical Work-
ers, AFL–CIO and Local No. 131, International
Brotherhood of Electrical Workers, AFL–CIO
Construction Employment Services, Inc. and Local
No. 107, International Brotherhood of Elec-
trical Workers, AFL–CIO
Windemuller Electric, Inc. and Construction Em-
ployment Services, Inc. and Local No. 107,
International Brotherhood of Electrical Work-
ers, AFL–CIO and Local No. 131, International
Brotherhood of Electrical Workers, AFL–CIO.
Cases 7–CA–30562, 7–CA–30888, 7–CA–30887,
and 7–CA–30580
March 9, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On August 9, 1991, Administrative Law Judge
Marvin Roth issued the attached decision. The Re-
spondent, Windemuller Electric, Inc., filed exceptions
and a supporting 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 brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, Windemuller Electric,
Inc., Grandville, Michigan, and Construction Employ-
ment Services, Inc., Wyoming, Michigan, their offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order.
Dwight A. Kirksey, Esq., for the General Counsel.
Peter Kok, Esq., of Grand Rapids, Michigan, for the Re-
spondent Windemuller Electric, Inc.
Mr. Roosevelt Tillman, of Wyoming, Michigan, for the Re-
spondent Construction Employment Services, Inc.
Mr. Robert Wuelfing, of Grand Rapids, Michigan, for Charg-
ing Party Local 107.
Mr. Al Moldovan, of Kalamazoo, Michigan, for Charging
Party Local 131.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. These consoli-
dated cases were heard at Kalamazoo and Grand Rapids,
Michigan, on February 11 through 15, 20 and 21, 1991. The
charges and amended charges were filed on May 17 and 23,
June 7, and August 14 and 22, 1990, by Local No. 107
and/or Local No. 131, International Brotherhood of Electrical
Workers, AFL–CIO (respectively Local 107 and Local 131
and collectively with other IBEW Locals, the Union).1 The
second amended consolidated complaint, which issued on
December 27, alleges that Windemuller Electric, Inc. and
Construction Employment Services, Inc., alleged joint em-
ployers (respectively the Company and CES and collectively
Respondents) violated Section 8(a)(1) and (3) of the National
Labor Relations Act. The gravamen of the complaint in sum
is that: the Company unlawfully prohibited its employees
from wearing union stickers on their hardhats; Respondents
engaged in coercive interrogation of employees; and the
Company refused to hire or consider for employment 29
named employees, and caused CES to lay off employees
Larry Ketcham, Tom Sosnowski, and Steve Tishhouse, CES
refused to hire, recall, or consider for employment employees
Sosnowski and Sean Redner, and Respondents caused em-
ployee William Quick to be removed from the Upjohn Con-
struction site, all because of their union membership or ac-
tivities. Respondents by their respective answers deny the
commission of the alleged unfair labor practices.
All parties were afforded full opportunity to participate, to
present relevant evidence, to argue orally, and to file briefs.
The General Counsel, CES, and the Company each filed a
brief.
On the entire record in this case2 and from my observation
of the demeanor of the witnesses, and having considered the
arguments and briefs of the parties, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
The Company, a Michigan corporation with its principal
office and place of business in Grandville, Michigan, and a
branch office near Kalamazoo, Michigan, is engaged in the
electrical construction contracting business. In the operation
of its business, the Company annually provides services val-
ued in excess of $50,000 to enterprises which annually pur-
chase goods valued in excess of $50,000 directly from sup-
pliers located outside of Michigan. CES, a Michigan corpora-
tion with its principal office and place of business in Wyo-
665WINDEMULLER ELECTRIC
ming, Michigan, is engaged in providing skilled and un-
skilled laborers to construction firms in Western Michigan.
In the operation of its business, CES annually provides labor
services valued in excess of $50,000 to the Company and
other Michigan firms, each of which annually receive at their
Michigan facilities goods and materials valued in excess of
$50,000 directly from suppliers located outside of Michigan.
The Company and CES are employers engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 107 and Local 131 are labor organizations within
the meaning of Section 2(5) of the Act.
III. BACKGROUND AND PRELIMINARY ISSUES
The operations of the Company and CES, alleged joint
employer status, alleged supervisory status of Fred
Syswerda, and the Union’s role in connection with the
alleged unfair labor practices
The Company has its principal Michigan office in
Grandville (a suburb of Grand Rapids), a branch office in
Kalamazoo (since 1989), and an office in Sarasota, Florida.
Only the Company’s Michigan operations are involved in
this proceeding, and the evidence discussed herein concerns
those operations. Michael Windemuller is company executive
vice president and in charge of all Michigan operations.
Windemuller testified that the managerial hierarchy con-
sisted, in addition to himself of: Dan Beemer, vice president
of engineering; Mark Windemuller, vice president of pur-
chasing; Chuck Alles, treasurer-comptroller; Bill Dedoes,
Kalamazoo branch manager; John Wiersma, serviceman-su-
pervisor; three project engineers (Joe Halik, Dave Beemer,
and Kevin Grime); and two general superintendents (Kirk
Strong and Dick Thompson). The Company also has job
foremen and sometimes assistant foremen. The General
Counsel contends and the Company denies that the foreman
(specifically in this case Barry Allen and his assistant and
later successor Fred Syswerda) were supervisors under the
Act. In 1990 the Company had over 300 projects, ranging in
size from a few hundred dollars to over a million dollars,
and employed between 130 and 150 employees. Windemuller
described the Company as a merit shop and an open shop.
Windemuller defined a merit shop as one in which employ-
ees were paid based on the work they did, and an open shop
as one not signatory to a union contract, and not using a
union as an exclusive service of referral. In fact, the Com-
pany does not use any union as a source of employees, either
on an exclusive or nonexclusive basis. Windemuller testified
that: ‘‘Basically I believe an open shop would be a company
that does not use people that have—that are in an organized
union.’’ From 1965 to 1970 the Company’s employees were
represented by Christian Labor Association (CLA). CLA was
decertified following a Board-conducted election. At all other
times the Company has operated nonunion. In 1978 Local
107 petitioned to represent the employees (Case 7–RC–
14817) but lost the election. The Company is a member of
the Western Michigan chapter of Associated Builders and
Contractors (ABC), whose membership consists predomi-
nantly of nonunion firms. The Company utilizes its own
workforce and from time to time hires employees. The Com-
pany, as needed, sometimes borrows employees from certain
other contractors, all nonunion. Under these arrangements the
contractors, rather than lay off employees, will loan them to
the Company on an as-needed basis. These loaned employees
work under the Company’s direction but are paid by their re-
spective employers, who are reimbursed by the Company for
the employees’ services. This system can be used only on a
very limited basis, because when one contractor is busy, gen-
erally other contractors are also busy. Since September 1989,
the Company has also used CES as a source of employees.
CES, formed in 1989, is operated by Roosevelt Tillman,
its president and owner. Tillman has one clerical assistant.
Tillman testified that CES is an employment agency for
skilled and unskilled laborers within the construction indus-
try. Tillman further testified in sum that he employs employ-
ees, sets their wage and benefit levels, and has authority to
hire, fire, and discipline them. Tillman loans out employees
to contractors, pursuant to agreements between CES and the
contractor. While on the job, the employees work under the
direction and supervision of the contractor. Tillman does not
supervise employees on a contractor’s jobsite, and rarely
even visits the jobsites. CES pays the employee, and the con-
tractor compensates CES for the employee’s labor. On Sep-
tember 29, 1989, CES and the Company entered into an
‘‘Agreement to Provide Services.’’ The agreement provided
in sum that CES would provide tradespersons to the Com-
pany in accordance with a compensation schedule, that CES
would pay the employees their wages, provide their fringe
benefits and maintain workers’ compensation insurance, and
that CES had ‘‘sole discretion to recruit, train, evaluate, re-
place, supervise, discipline and terminate the tradespersons.’’
However, CES agreed to withdraw any tradesperson deter-
mined by the Company to be unsatisfactory. The agreement
further provided that the Company would provide the em-
ployees with all necessary safety equipment. The agreement
stated that the tradespersons provided to the Company were
employees of CES and not employees of the Company, and
that CES was an independent contractor and not an agent or
employee of the Company. The agreement was similar to
that between CES and other contractors. Shortly after they
executed the agreement, CES began furnishing workers to
the Company. Company President Windemuller testified in
sum that he met Tillman at an ABC meeting, learned of his
services, and anticipated that Tillman could assist the Com-
pany in meeting its short term needs and meeting State of
Michigan equal employment opportunity standards. In Au-
gust 1990 the Company applied for a certificate of
awardability from the Michigan Department of Civil Rights.
On November 15, 1990 the Company received the certificate,
which required the Company to comply with Michigan EEO
standards as a condition of eligibility to obtain state and local
government contracts.
Upon hiring employees, CES issued each a CES employee
handbook. The handbook described CES as ‘‘an employment
agency which organizes the open shop tradespersons for bet-
ter working continuity and vocational training.’’ The hand-
book purported to set standards for layoff and recall, based
on various elements of job performance, e.g., productivity,
‘‘to promote open shop labor as a better skilled and more ef-
fective means of manning a construction site.’’ The hand-
book further provided with respect to ‘‘your supervisor,’’
that: ‘‘You are to work under the direction of the foremen
and be responsible to that person.’’ As indicated, this meant
666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the contractor’s foremen. CES had no foremen. Also as indi-
cated, the agreement between CES and the Company pur-
ported to give CES sole discretion to train, evaluate, and su-
pervise employees. In fact, only the contractor could mean-
ingfully perform these functions. CES was for all practical
purposes a one-person operation. Tillman had neither the
time nor ability to train, evaluate, or supervise personnel in
all phases of construction work. It is evident that the stand-
ards for layoff described in the CES handbook could only be
meaningfully determined by the contractors, and that Tillman
would necessarily have to depend on the contractor’s reports,
if those standards had any significance. The handbook also
set forth detailed work rules, including safety rules and obli-
gations which both employees and contractors were expected
to follow. The handbook further stated that CES would pro-
vide hardhats, the employees had to provide safety shoes and
gloves, and the contractor would provide other safety equip-
ment. In fact, the Company required all personnel, including
employees furnished by CES, to wear its own hardhats. The
handbook also instructed employees that if they had ques-
tions or concerns about safety policy or practices, ‘‘speak to
your foreman, supervisor or the [CES] office at once.’’
Separate firms which ‘‘share, or co-determine, those mat-
ters governing essential terms and conditions of employ-
ment’’ of the employees involved, are joint employers of
those employees, regardless of whether the firms are com-
monly owned, operated, or controlled. NLRB v. Greyhound
Corp. (Southern Greyhound Lines Division), 368 F.2d 778
(5th Cir. 1966), citing Boire v. Greyhound Corp., 376 U.S.
473 (1964). Accord: NLRB v. Checker Cab Co., 367 F.2d
692, 698 (6th Cir. 1966), cert. denied 385 U.S. 1008 (1967);
NLRB v. Browning-Ferris Industries, 691 F.2d 1117, 1121–
1124 (3d Cir. 1982).
Applying the foregoing test to the present case, I find that
the Company and CES shared and codetermined the matters
governing essential terms and conditions of employment of
the ‘‘tradespersons’’ referred by CES, and therefore were the
joint employers of those employees. Although CES nomi-
nally set the wage rates for the employees, those rates were
limited and substantially determined by the agreement be-
tween the Company and CES, under which CES billed the
Company on the basis of labor supplied, at an hourly rate,
depending on the employee’s qualifications, e.g., whether
journeyman or apprentice. The Company thereby ‘‘exercised
indirect but effective control over the [referred employees’]
compensation.’’ W.W. Grainger, Inc., 286 NLRB 94, 96
(1987). As indicated, CES’ handbook purported to set stand-
ards for layoff and recall. The evidence in this case, even on
the basis of Respondents’ own assertions, indicates that both
have exercised the power to lay off or recall employees re-
ferred by CES. As will be further discussed, the Company
selected alleged discriminatees Ketcham, Sosnowski, and
Tishhouse for layoff, but CES recalled alleged discriminatee
Quick from his work at the Company. The Company and
CES shared hiring of employees. The Company reviewed
CES’ personnel files and selected which employees should
be referred. Both the Company and CES exercised power to
discipline referred employees, e.g., the Company directed re-
ferred employees to remove union stickers from their hard-
hats. As indicated, CES specifically instructed referred em-
ployees to work under the direction of the contractor’s fore-
men. As the Company and CES were joint employers of the
referred employees, ‘‘each is responsible for the conduct of
the other and whatever unfair labor practices are engaged in
by the one (in connection with the referred employees) must
be deemed to have been committed by both.’’ Mar del Plata
Condominium, 282 NLRB 1012 fn. 3 (1987).
Barry Allen, an inside journeyman wireman, began work-
ing for the Company in August 1989. The circumstances
under which Allen came to work for the Company will be
discussed further. At this point it is sufficient to note that
Allen was a ‘‘salt,’’ i.e., a covert union organizer working
for a nonunion contractor. In January 1990 the Company
promoted Allen to the position of foreman. At the time the
Company had two large subcontracts on the Upjohn project
in Kalamazoo. The projects were respectively the Building
300 job, known as the power riser project, and the Floors 0
(ground level) and 1 project, for which the Company in-
stalled power and lighting. The Austin Company was general
contractor for both projects. Allen was in charge of a crew
on the Building 300 job. The crew size ranged from 2 (at
the beginning) to 25, averaging from 16 to 18, including
journeymen and apprentices. Allen testified that he was as-
signed to arrange the work on the job and act as a leader
in getting the job done. Vice President Windemuller testified
that foremen, including Allen, were responsible ‘‘to lead the
people that we put there, to get the job done and to coordi-
nate the materials and coordinate with the other trades on the
job, to make sure that we get our work done in a timely and
efficient manner.’’ Allen laid out the work for his crew, ar-
ranged to have materials available, kept time records on the
employees, signed their timecards, prepared daily production
reports for the Company and the prime contractor, and at-
tended project, coordination, and safety meetings. He initially
reported to Branch Manager Dedoes, later to General Super-
intendent Thompson, and to Mark Windemuller concerning
materials. Allen also reported to Austin’s project super-
intendent. No company personnel above the level of foreman
were regularly on the project. Company managerial personnel
(initially mainly Dedoes, later Thompson, and about monthly,
Windemuller) visited the jobsite on a total average of about
twice weekly. They would come more often if needed. The
foremen had no authority to and did not hire, fire, lay off,
recall, suspend, determine placement, transfer or formally
discipline employees, or schedule their vacations. These
functions were performed by Windemuller, Dedoes, General
Superintendents Strong and Thompson, or Project Engineer
Halik. If an employee acted improperly, the foreman would
criticize the employee, or tell him to stop, and report the
matter to the general superintendent. The foremen had au-
thority to and did grant time off, e.g., when an employee
wished to take off all or part of a day. The project manager
(for the general contractor) and the general superintendent
(for the Company) reviewed weekly the foremens’ reports to
determine if there were particular problems or needs which
had to be addressed. Management requested the foreman to
give information concerning employees’ work performance
and habits. However management also solicited such infor-
mation from rank-and-file employees. The foremen were not
systematically asked to make recommendations concerning
merit increases. That function was performed by the general
superintendents. The foremen also did not make rec-
ommendations concerning discipline or discharge. Allen
made recommendations concerning the number of employees
667WINDEMULLER ELECTRIC
needed on his crew or that a particular individual should be
hired. His recommendations were not routinely or substan-
tially followed. The Company paid its foremen an hourly
wage, which included a $1- or $2-per-hour premium above
the journeyman rate. Allen received a $2 premium because
of the size of the job. Otherwise the foremen had the same
wage structure and benefit package as rank-and-file hourly
employees. Management personnel, i.e., above the level of
foremen, were assigned company vehicles for their use, did
not wear uniforms, were paid a salary, did not get overtime
pay, had more medical coverage and a different benefit pack-
age than hourly rated employees, and received an annual
bonus and paid vacations. Foremen, like rank-and-file em-
ployees, were not assigned company vehicles, wore work
uniforms, received quarterly bonuses, were paid on an hourly
basis, including overtime pay, and did not get paid vacations.
Foremen employed by unionized (IBEW) electrical contrac-
tors in western Michigan are covered by the area collective-
bargaining contracts and included in the bargaining unit.
The Company assigned Fred Syswerda as Allen’s assistant
foreman. Syswerda received a premium of $1 per hour. Allen
instructed Syswerda to perform the same functions as Allen,
namely, to keep an eye on the employees, answer questions,
and keep the crews working. After Allen quit his job (in Au-
gust 1990) Syswerda succeeded him as foreman. Allen’s sta-
tus, i.e., as an alleged 2(11) supervisor, is not directly at
issue in this case. However the complaint alleges that in Au-
gust 1990 the Company, by Syswerda, engaged in unlawful
interrogation. In order to determine whether Syswerda was a
supervisor under the Act, it is necessary to consider the evi-
dence regarding Allen.
I find that the Company’s foremen, specifically Allen and
Syswerda, were not supervisors or agents of the Company
within the meaning of the Act. Their authority and functions
were substantially that of leadmen. They directed work in a
routine manner, making use of their skill and experience as
journeymen electricians. Disciplinary problems were simply
passed on to the general superintendent, without rec-
ommendation as to what action should be taken. They played
no formal, effective role in determining merit increases, al-
though such determination was central to the Company’s
compensation system. Management personnel were not regu-
larly on the job. However they were available and present
when necessary to deal with personnel problems, and system-
atically reviewed progress on the job, determining problems
and needs. Therefore, the fact that they were not regularly
at the jobsite, did not indicate that the foreman had a super-
visory status. Compare Tri-County Electric Cooperative, 237
NLRB 968, 969 (1978), in which the Board found that line
foremen were not supervisors, although their immediate su-
perior, the line superintendent, visited the jobsite as infre-
quently as once a month. Moreover the general contractor’s
project superintendent, to whom the Company’s foremen also
reported, was regularly at the site and directed all work. As
indicated, the foremen had no authority to make important
personnel decisions such as hiring, termination, lay off, trans-
fer, or placement of employees, nor did the Company rely
upon the foremen to make effective recommendations in
these and other matters such as discipline, staffing, pay scale,
or merit increases. I have also taken into consideration the
prevailing area practice under which foremen are considered
unit personnel, and share the same wage structure and bene-
fits as rank-and-file employees. Tri-County Electric Coopera-
tive, supra.
Historically the building trades unions erected a wall of
separation between union and nonunion labor. That practice
is reflected in the IBEW constitution and the bylaws and col-
lective-bargaining contracts of its Local unions here involved
(Local 107, based in Grand Rapids; Local 131, based in
Kalamazoo, Local 445, based in Battle Creek; and Local
275, based in Muskegon, Michigan). The IBEW constitution
prohibits a member from working for any employer ‘‘whose
position is adverse or detrimental to the I.B.E.W.’’ The area
contracts provide that the Union shall be the sole and exclu-
sive source of referrals for employment. Company Branch
Manager Dedoes was a member of Local 131, and worked
for a union contractor. In 1986, after Dedoes went to work
for the Company, internal union charges were filed against
him by reason of his having ‘‘secured his own employment
with a non-signatory contractor, Windemuller Electric in di-
rect competition with IBEW contractors in this jurisdiction.’’
Local 131 found Dedoes guilty as charged, fined him $5000,
and directed him to ‘‘terminate all employment with any and
all non-signatory employers.’’ Dedoes did not comply with
the Union’s decision.
Historically also, the building trades unions, in areas
where they were strong and a dominant factor in the indus-
try, tended to tolerate nonunion subcontractors so long as
they confined themselves to small jobs, or jobs not particu-
larly desired by union labor, because of full employment or
other reasons. In 1989 the Company obtained the two large
Upjohn subcontracts. The Company began working on the
power riser project in October 1989 and the Floors 0 and 1
project in January 1990. In the past this probably would have
precipitated a picket line. However the electrical unions have
apparently fallen on hard times. This time they used a dif-
ferent approach. Battle Creek Local 445 requested its salt,
Barry Allen, to apply for work with the Company. Allen, a
recent member of Local 131, had worked for some 20 years
as an inside wireman. For nearly all that period he worked
at Western Michigan University, whose maintenance employ-
ees were represented by AFSCME. Upon leaving Western
Michigan University he began his career as a salt. In apply-
ing at the Company, Allen disclosed his employment at
Western Michigan, but concealed his subsequent work his-
tory. He stated that he was a self-employed electrician. After
he was hired, Allen, in accordance with his duties as a salt,
sent reports to the Union, kept a diary, tape-recorded some
employer meetings, and reviewed employee lists for tele-
phone numbers. The Union compensated Allen by paying
him the difference between his wage and union scale. In the
meantime Allen competently performed his work for the
Company. As indicated, the Company promoted him to fore-
man. By letter dated June 1, Local 131 informed the Com-
pany that Allen ‘‘will be serving as our representative for the
purpose of organizing.’’ Local 131 also informed the Com-
pany that Allen gave testimony to the Board. The Company
subsequently gave Allen a pay increase. On August 3 Allen,
at Local 131’s instruction, quit his employment with the
Company. The Company does not contend that Allen’s work
performance was in any way unsatisfactory.
Allen is not alleged as a discriminatee in this proceeding.
During his tenure at the Company, the Union encouraged its
members to apply for work with the Company or CES. Some
668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
were out of work or anticipated being out of work. However
others were currently working at union scale when they ap-
plied to the Company. On October 18, 1989, a group of
union members, including union officers, accompanied by
Local 131 Organizer Alfredo Moldovan, went to the Com-
pany’s Grand Rapids facility and presented written applica-
tions for employment. Another group of applicants was ac-
companied by IBEW Muskegon Local 275 President Doug
Harmon, himself an applicant. Applicant George Vorgias
also filed applications on behalf of five other union mem-
bers. Two of the applicants (Chris Pena and Don Sidlauskas)
were not identified in this record as being members of any
IBEW Local. Some of the applications were accompanied by
letters of reference from Moldovan. Local 131 compensated
its member applicants for their time spent in applying for
work at the Company. On January 29, 1990, Local 131 Ex-
ecutive Board Member Leroy Crabtree and member John
Artz, accompanied by Moldovan, went to the Upjohn jobsite
in Kalamazoo and presented job applications to the Com-
pany. Moldovan presented applications on behalf of Local
131 President Pat Klocke, Vice President Robert Fragala, and
Executive Board Member Edwin Sturm. All but Sturm were
also among those who applied on October 18, 1989. On May
14, 1990, Fragala and Klocke, and Local 131 member Greg
Wolf, presented job applications to the Company at its Kala-
mazoo office. Christopher Widner, not identified as a union
member, presented job applications to the Company at its
Kalamazoo office on February 9 and again in March 1990.
The Company never contacted any of the above-described
applicants. The complaint alleges that the Company violated
Section 8(a)(1) and (3) by refusing to hire or consider for
employment the 29 applicants because of their union mem-
bership or union or concerted activities.
In March 1990 journeyman electricians Thomas
Sosnowski, Stephen Tishhouse, and Larry Ketcham, all mem-
bers of Local 107 or Local 131, were out of work. They
sought work through the Union, which referred them to CES.
CES hired them and eventually sent them to the Company
to work at the Upjohn project. As will be discussed, shortly
after reporting to work they displayed union insignia on their
persons. William Quick signed an authorization card for Bat-
tle Creek Local 445, but was not a member. Quick applied
to and was hired by CES, and in August 1990 CES sent him
to the Company at the Upjohn project. Shortly after reporting
to work Quick displayed an IBEW organizing committee pin.
Quick testified (through company offer of proof) that before
he reported to work at the site, Local 445’s organizer gave
him the pin, told him when to wear it, and informed him that
the Union would inform the Company and CES (as it did)
that Quick was engaged in organizational activities. Fol-
lowing his removal from the jobsite, Local 445 admitted
Quick to membership. Sosnowski, Tishhouse, Ketcham, and
Quick did not receive pay or expense money from the Union.
As indicated the four are alleged as discriminatees in this
proceeding. The complaint also alleges that CES
discriminatorily refused to hire, recall, or consider for em-
ployment, Sosnowski and Local 107 member Sean Redner.
Among the applicants and alleged discriminatees, only Local
275 President Doug Harmon was a full-time paid union em-
ployee. Five other applicants who held offices with their re-
spective locals (Local 131 Examining Board Chairman Mor-
ris Appleby, Local 131 Executive Board Member Leroy
Crabtree, Local 131 Vice President Robert Fragala, Local
131 Examining Board Member Joseph Haskins, Local 131
President Pat Klocke, and Local 275 Vice President Kathy
Bolthouse) were eligible for compensation when they acted
on official union business. As indicated, Local 131 com-
pensated its members who applied on October 18, 1989. Oth-
erwise the Union did not compensate any of the alleged
discriminatees.
The Company contends (Br. 52) that ‘‘the alleged
discriminatees were not bonafide applicants for employment
because of [the Company’s] belief that they were paid union
organizers.’’ As I indicated at the hearing, I find this argu-
ment without merit as a matter of law. At the hearing, the
Company and CES did not argue that they refused to hire
or consider for employment any of the alleged
discriminatees, or took personnel action against them, be-
cause of their actual or perceived status as union organizers.
None of the Respondents’ witnesses made such a contention.
Rather, the Company argues in sum that by reason of their
actual or perceived status as ‘‘paid union organizers,’’ the al-
leged discriminatees, fell outside of the class of ‘‘employ-
ees’’ who are entitled to the protection of the Act. The argu-
ment is without merit. All union members are in a real sense,
union organizers. This is the nature of labor organizations.
They exist for the purpose of mutual aid and protection, and
their goal is to organize as many employees as possible. All
of the alleged discriminatees were working electricians. None
were by profession union organizers. They are members of
the ‘‘employee class,’’ and therefore ‘‘entitled to the Act’s
protection.’’ Oak Apparel, Inc., 218 NLRB 701 (1975); see
also Willmar Electric Service, 303 NLRB 245, 246 (1991);
Pilliod of Mississippi, Inc., 275 NLRB 799, 811 (1985); Hol-
brook Knitwear, Inc., 169 NLRB 768, 771 (1968). It is im-
material whether the alleged discriminatees sought employ-
ment with the Company or CES principally for organiza-
tional purposes or whether they received any reimbursement
from the Union. Given the transient nature of employment in
the construction industry, it would be difficult to engage in
an organizational campaign without some preconceived plan.
If persons who worked at the trade were denied protection
of the Act because they sought employment for organiza-
tional purposes or accepted union reimbursement, this would
seriously impede organizational activity in the construction
industry. Some might argue that in view of prior history or
union discrimination or exclusivity in the industry, the con-
struction unions would simply be getting their just desserts.
However two wrongs do not make a right. As the Board
pointed out in Oak Apparel, supra: ‘‘Members of the ‘em-
ployee’ class have been held entitled to the Act’s protection
whether the interference with their rights has come from em-
ployers or from unions.’’ I also reject the Company’s sugges-
tion that the alleged discriminatees and the Union were
somehow engaged in a campaign to destroy the Company’s
business. In support of this suggestion, the Company offered
in evidence a videotape of an address by the IBEW Inter-
national president, in which he exhorted the membership to
‘‘drive the nonunion element out of business.’’ The employ-
ees here involved who obtained employment with the Com-
pany, including Barry Allen, performed their work for the
Company. The Company does not contend that their work
performance was in any way deficient. As indicated, the
Company was highly impressed with Allen’s performance.
669WINDEMULLER ELECTRIC
The Act does not view union loyalty as inconsistent with
loyalty to one’s employer and job. I interpret the IBEW
president’s statement as an exhortation to fully organize the
electrical contracting industry, and in this way to drive out
the nonunion element. Unions do not exist for the purpose
of depriving their members of employment opportunities.
Moreover, insofar as the Company relies on certain court de-
cisions indicating that union organizers are not entitled to
protection against employment discrimination, I interpret
those decisions as referring to professional organizers.
Among the employees involved in this case, only Barry
Allen could arguably be regarded as one whose occupation
was that of union organizer, and Allen is not an alleged
discriminatee. I find that the alleged discriminatees were em-
ployees within the meaning of the Act, and entitled to the
Act’s protection against employment discrimination.
At this point I shall address the merits of the complaint
allegations. Chronologically the first allegations pertain to al-
leged refusal to hire or consider for employment. However
I shall first deal with the allegations of alleged unlawful lay-
off or removal from work, and related alleged interference
with union activity or coercive conduct. I do so because the
later events have actual or potential evidentiary significance
concerning the allegations of refusal to hire or consider for
employment.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Union Stickers on Hardhats, and the Layoff of
Ketcham, Sosnowski, and Tishhouse
On May 9 or 10 Company President Windemuller and Su-
perintendent Strong met with CES President Tillman. They
discussed minority recruitment. Windemuller looked at some
20 to 30 applications of CES employees, and selected 10
who could be referred to company jobs. Among these were
four or five whose work history indicated that they were
probably union members, i.e., they worked for union contrac-
tors at union scale and/or were trained through the Union’s
apprenticeship program. They included journeymen Thomas
Sosnowski and Stephen Tishhouse, and apprentice Mike
Stackpole. Also selected were journeyman and Local 131
member Larry Ketcham and journeyman Randy Miller,
whose applications did not indicate probable union member-
ship. (Ketcham testified that at Organizer Moldovan’s re-
quest, he submitted an application which falsely indicated
that he worked for nonunion contractors. The Union wanted
to see if Respondents would discriminate between union and
nonunion applicants.) Tillman referred the five employees to
the Company, and they reported to work at the Floors 0 and
1 project on Monday, May 14. Their referral sheets from
CES (Tradesperson’s Job Information) indicated an estimated
job length of 1 month. Tishhouse and Ketcham testified that
Tillman told them the job would last about one month. Till-
man testified that Strong told him the job would last 1 to 2
weeks, but he told the employees 4 weeks, because contrac-
tors usually underestimate the duration. Windemuller testified
that he anticipated the Company would need the employees
‘‘for a week or two or possibly longer, depending on when
some other people came off their projects.’’ Strong was not
presented as a witness.
When they reported to work, the employees were given
gold-colored hardhats. Each contractor on the job used a dis-
tinct color hardhat. Company personnel normally wore green
hardhats, but on this job the general contractor designated
gold for the Company. Each company hardhat bore two
stickers: a safety sticker which bore an emergency phone
number, and a company sticker containing the Company’s
name. On their second day at work Sosnowski, Tishhouse,
Ketcham, and Stackpole appeared wearing union buttons and
T-shirts, and union stickers on their hardhats. The stickers
each measured about 2-1/2 by 1-3/4 inches, and consisted of
an American flag, and underneath a union logo with the slo-
gan ‘‘BUY UNION—BUY AMERICAN.’’ Branch Manager
Dedoes and Superintendent Thompson were at the site and
saw the employees. Thompson, who knew Tishhouse, asked
if he was still in the Union and if the Union knew he was
working there. Tishhouse answered yes to both questions.
Dedoes, who knew Ketcham (they both worked for a union
contractor) said nothing. Barry Allen testified on direct ex-
amination that Thompson was visibly angry and told him
that ‘‘those union people shouldn’t be wearing union buttons
and stickers on Windemuller’s hardhats because Windemuller
wasn’t a union contractor and they should take those stickers
off.’’ On cross-examination by company counsel, Allen testi-
fied that Thompson said the hardhats were company property
and it was against policy on the site. Neither the Company
nor the general contractor had previously announced any pol-
icy prohibiting stickers on hardhats. The following day
Thompson told Allen to summon the employees who were
wearing the union stickers on their hardhats. Thompson told
the employees that they should remove all stickers from their
hardhats (including the American flag) except the safety
sticker and the company sticker. Sosnowski testified that
Thompson said they were working for Windemuller and
these were Windemuller hardhats, Windemuller was not a
union company and they did not intend to join the Union,
and they did not want the employees to have the union stick-
ers on their hardhat. Tishhouse testified that Thompson asked
them to ‘‘remove the stickers from their hardhats since it was
their property and they didn’t want the IBEW stickers on
their hardhats.’’ The employees removed the stickers and re-
turned to work. Thompson said nothing about the other union
paraphernalia, and the employees continued to wear them.
Company Vice President Windemuller testified in sum as
follows: He instructed Thompson to tell the employees to re-
move the stickers, for two reasons. First, ‘‘it detracts from
the professionalism we are trying to project to our cus-
tomers.’’ The second reason concerned an OSHA instruction,
stamped inside the hat: ‘‘Never alter or modify the shell or
suspension system.’’ A MIOSHA (Michigan) safety person
told him that stickers probably were not a good idea because
they could hide cracks which would require replacement of
the helmet. Thompson reported that the employees wore
union stickers on their clothing. Windemuller told Thompson
to ignore it. (The Company’s own employees wear company-
issued uniforms, but employees referred by CES wear their
own clothing). Thompson did not testify as a witness in this
proceeding. Consequently the testimony of General Counsel’s
witnesses concerning his statements stands uncontradicted.
I find that the Company violated Section 8(a)(1) by pro-
hibiting its employees from wearing union stickers on their
hardhats. ‘‘The right of employees to wear union insignia at
work has long been recognized as a reasonable and legiti-
mate form of union activity. . . . A rule which curtails that
670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employee right is presumptively invalid unless special cir-
cumstances exist which make the rule necessary to maintain
production or discipline, or to ensure safety.’’ Malta Con-
struction Co., 276 NLRB 1494 (1985), enfd. 806 F.2d 1003
(11th Cir. 1986). As Malta indicates, these principles apply
to employer furnished hardhats. I do not credit
Windemuller’s testimony concerning his professed reasons
for directing the employees to remove the union stickers. The
real reason was given by Superintendent Thompson, as indi-
cated by the uncontroverted testimony of General Counsel’s
witnesses. Windemuller wanted the stickers removed because
the Company was a nonunion firm, and therefore he did not
want any union identification on the hardhats, which he re-
garded as company property. It is significant that Thompson
repeated this reason to the employees after consulting with
Windemuller. Windemuller’s professed reasons were
pretextual. They would equally apply to the company stickers
on the hardhats. As the company personnel wore distinctive
colored hardhats, there was no need for a company sticker.
Nevertheless, the Company placed its sticker on the hardhats
and never directed their removal. No Federal or state rule
prohibited stickers on hardhats. The Company failed to give
a credible and valid explanation for its action. Therefore the
action was unlawful.
The following day (Thursday, May 17) Thompson in-
formed Allen that Sosnowski, Ketcham, and Tishhouse
would be laid off on Friday, May 18. Allen so informed the
employees, and they were laid off. Miller continued to work
until he quit in late July. Stackpole continued to work for the
Company until laid off in late November. Allen testified in
sum as follows: He told Thompson that the layoff was con-
trary to what Superintendent Strong told him. Strong told
Allen that borrowed employees from Allied Electrical, Inc.
(Allied) would be laid off first, because they cost the Com-
pany more than the other employees on the job. Thereafter
employees would be laid off on the basis of last in, first out.
At the time there were five Allied employees on the job.
They began work about a week before the CES employees
arrived. Thompson answered that Dedoes said to lay off the
three union people first. Allen replied that there were four.
Thompson responded that they would keep Stackpole be-
cause he cost less than the others. The following week one
of the Allied employees (Dennis Hofer) quit, and the other
four were sent back to Allied at the end of the week. Mean-
while, on Monday, May 21, the Company brought in newly
hired apprentice James Bazen as ‘‘summer help,’’ and trans-
ferred in three company employees from another job that was
winding down. Allen subsequently testified that he did not
know whether the job was winding down. Allen testified that
the three employees possibly were Todd Meert, Adam Rus-
sell, and Dick Quick. Sosnowski, Tishhouse, and Ketcham
testified in sum that when they reported back to CES, Till-
man expressed surprise that they were returned so soon, and
asked if anything went wrong. Tishhouse testified that it
looked like the job was just getting started, and there ap-
peared to be enough work for about 2 weeks. Ketcham testi-
fied that there appeared to be 3 to 6 months’ work in the
area in which they were working, and the work they were
then doing would take about a month. Tillman testified that
superintendent Strong told him the three employees ‘‘did a
great job, but we are all caught up now.’’
Vice President Windemuller testified in sum as follows:
The three employees were laid off because they were no
longer needed, and not because of their union stickers. The
Company had its own employees on the power riser project.
Austin notified the Company to stop work because Austin
had to bring in some large equipment. The Company was in-
stalling conduits, and Austin could not move in the equip-
ment if the conduits were installed. Austin said the Company
could not complete its work until July. The Company trans-
ferred Todd Meert, Adam Russell, and one other company
employee to the Floors 0 and 1 project, and laid off the three
CES employees. Branch Manager Dedoes corroborated
Windemuller’s testimony concerning the transfer. However
they did not testify why the CES employees rather than bor-
rowed employees were selected for layoff, or why Randy
Miller was not selected for layoff. As indicated Thompson
was not called as a witness. Superintendent Strong also was
not called as a witness. Consequently Allen’s testimony con-
cerning the statements of Thompson and Strong (layoff pol-
icy and selection of ‘‘the three union people’’) was
uncontradicted. The Company also did not present any cor-
roborative testimony from Austin.
The Company’s records tend to undercut Windemuller’s
explanation and to support General Counsel’s position. The
Company paid Allied $20.48 and $18.75 per hour for jour-
neyman labor, while it paid only $16.50 per hour for the
CES journeymen. The records further indicate that during the
construction season from May to November 1990, the Com-
pany maintained a work force which normally included four
CES employees. After the layoff the number dropped from
five to two. Thereafter in June the number increased to three,
then to four or five, and stabilized at four from August to
November. Meanwhile the Company relied heavily on bor-
rowed labor. The Company continued to use labor borrowed
from Allied, including journeymen, through the week ending
June 17, except during the week ending June 3. Beginning
the week ending May 18, the Company used two borrowed
employees from Feyen-Zylstra Electric Inc. (Feyen-Zylstra).
The rate of compensation ($19 per hour for Kevin McGuire
and $15.75 for Gary Lasecki) indicates that McGuire and
possibly Lasecki were journeymen. Lasecki worked for the
Company until late July and McGuire until early September.
The Company also used a borrowed employee from Espen
Electric during the period August 8 through 14. As indicated,
the Company laid off three journeymen from CES. The three
employees who according to Windemuller, replaced them, in-
cluded one journeyman (Russell), one apprentice (Meert),
and an unidentified employee. The Company was aware of
the prime contractor’s requirement that every subcontractor
maintain a ratio of one journeyman to one apprentice on the
job. Therefore, it is evident that the Company could not have
replaced all three laid-off employees with its own personnel.
Rather, at least one or two of them must have been replaced
by borrowed journeymen, contrary to the Company’s policy
of first laying off borrowed employees. Windemuller’s expla-
nation is not credible.
I find that the Company caused the layoff of Ketcham,
Sosnowski, and Tishhouse because of their union activity.
The Company thereby violated Section 8(a)(3) and (1). When
the four union employees displayed union paraphernalia on
their person, thereby indicating that they intended to engage
in organizational activity, the Company immediately and un-
671WINDEMULLER ELECTRIC
3 Windemuller testified that employee Marian Van Koevering wore
‘‘a pencil holder that said something about IBEW on it.’’ However
she had been a company employee for 12 years, and there was no
indication that she was about to engage in organizational activity.
4 Quick testified that he was hired by CES on August 13. How-
ever, the Company and CES records indicate that, as testified by
Tillman, the chain of events began a week earlier.
lawfully ordered them to remove the union stickers from
their hardhats. The next day the Company ordered the layoff
of the three union journeymen, contrary to its usual practice
of laying off borrowed employees before laying off CES per-
sonnel. The Company offered no explanation for laying off
the three union journeymen while retaining Randy Miller, the
only of the five CES personnel who did not wear union in-
signia. Rather, as indicated Superintendent Thompson ex-
pressly stated that Dedoes told him to lay off the three union
people first. On the basis of the Company’s demonstrated
hostility toward the union organizational activity, the timing
of the layoff, and Thompson’s admission, the General Coun-
sel presented a prima facie case that the Company laid off
Ketcham, Sosnowski, and Tishhouse because of their union
activity. As the Company’s professed reason for laying them
off was pretextual, it follows that the Company failed to
meet its burden of establishing that it would have laid off the
employees in the absence of such activity. It is immaterial
that the Company did not lay off Stackpole. Having removed
the three union journeymen, the Company effectively broke
the incipient union organizational campaign. It is also imma-
terial that the Company approved Sosnowski, Tishhouse, and
other employees for hire, knowing they probably were union
members. As will be further discussed, the Company was
willing to accept union members as employees, provided
they maintained a low profile. However the Company was
not willing to keep or accept employees who engaged in
union organizational activity or whose actions indicated that
they might engage in such activity.3 As indicated, CES told
the employees the job would last about a month. Tillman tes-
tified that contractors usually underestimate the duration, and
Miller and Stackpole remained much longer than 1 month.
I find that absent the discrimination against them, at least
two of the discriminatees also would have worked much
longer than 1 month, and that the duration of employment
of borrowed and/or CES journeymen may be considered as
a measure of the Company’s backpay liability.
B. Layoff or Removal of William Quick, and Related
Alleged Interrogation
Bill Quick, a master electrician, was hired by CES on
Monday, August 6, was sent to the Company at the Upjohn
project, and commenced working the next day.4 His applica-
tion indicated that he briefly worked for Kemp Electric, a
union contractor, and previously was a self-employed con-
tractor. The CES tradesperson job information form indicated
an estimated job length of 1 to 2 weeks. Quick testified in
sum as follows: Tillman told him the job should last until
early October. When Quick reported to the site, Thompson
introduced Fred Syswerda as his foreman. (Syswerda had just
succeeded Barry Allen.) After assigning his work, Syswerda
asked Quick if he had any union affiliation or belonged to
any union or was connected with any union. Quick answered
that he was not a union member. On Thursday (August 9),
his third day at work, Quick wore a union organizing com-
mittee pin at work. He did not see Thompson on the site
after Tuesday, and did not know if Syswerda saw the pin.
The next morning (Friday) Syswerda told him that Tillman
came by on Thursday evening with a timecard and CES
handbook, and would call him. Later that morning Syswerda
told Quick that he was disappointed with Quick, because he
lied when he said he was not affiliated with any union.
Quick responded that he did not lie because he was not a
member of a local union. Syswerda again said he was dis-
appointed. Syswerda had previously given permission to
Quick to leave work at noon in order to go out of town for
the weekend. Quick checked again, and Syswerda said there
was no problem, and he was satisfied with Quick’s work.
After leaving work Quick called CES. Tillman told him he
would not be working at the site any longer, and should re-
port to the CES office on Monday (August 13). At the time
Quick and his assigned coworker were hanging light fixtures
and had not completed their assigned work. When Quick re-
ported to CES, Tillman told him he had some work to be
done at his mother’s house. They looked at the proposed job,
and Quick asked to begin on Tuesday (August 14) Quick
worked there for 2 days. On Thursday he went, at Tillman’s
instruction to purchase materials for a service change. On
Friday he went to obtain a Michigan license, because Till-
man wanted to employ him as an electrical contractor. The
following Monday (August 20) Quick presented Tillman with
timecards for 4 days. Tillman rejected pay for Thursday and
Friday, saying that Quick did not do any productive work on
those days. Tillman offered to employ Quick as an electrical
contractor at $13 per hour. Quick, who had been working at
the company job at $12 per hour, objected to the rate and
asked if Tillman had any more work as a journeyman at $12
per hour. Tillman said he had none. Quick did not thereafter
work for CES. The parties stipulated that by letter dated Au-
gust 8 Local 445 informed the Company and CES that Quick
was engaged in organizing activities, and that Respondents
received the letter on August 9.
Journeyman Darwin Patterson replaced Quick at the
Upjohn project. CES hired Patterson on August 10. CES sent
him to the Upjohn project. He commenced work on August
13 and continued to work there until he quit in mid-Sep-
tember. Patterson testified in sum as follows: He was a union
member, but had worked only for non-IBEW contractors. He
applied for work at CES on March 15. Tillman told him
there wasn’t much doing then, but might be openings in the
future. On August 7 Patterson saw an ad (placed by CES)
for electricians. He again went to CES, and Tillman again
interviewed him. Tillman asked if he was union. Patterson
answered he was not. Tillman responded that Patterson could
lie about it, but that Tillman usually could tell by talking to
someone whether they’re being truthful or not. Tillman hired
Patterson, who never disclosed himself as a union adherent.
Syswerda was not presented as a witness. Windemuller
testified that CES removed Quick, and the Company never
requested his removal. Windemuller testified that Super-
intendent Strong subsequently told him that Tillman said he
wanted Quick on another job, and that CES sent a substitute.
Tillman testified in sum as follows: Quick’s application indi-
cated he had a union background, as he worked for a union
contractor. Tillman hired Quick on August 16 and sent him
to the Company, where he worked for 3-1/2 days. On
672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Wednesday, August 8, Tillman left a message on Quick’s
telephone answering machine ‘‘to call me Friday, report back
to the office Friday for reassignment.’’ (CES presented in
evidence a telephone bill indicating a call to Quick’s home
at 7:10 p.m. on August 8.) Tillman had a job to remodel his
mother’s home (in an apartment building) including consoli-
dation of electrical service. Quick said he had homebuilding
skills, and Tillman understood he was a licensed contractor.
In his investigatory affidavit to the Board Tillman stated that
on the evening of August 8 ‘‘I contacted Mr. Quick by call-
ing his answering machine and leaving a message for him to
see me when he stopped by the CES office for his check that
Friday.’’ He did not state ‘‘for reassignment.’’ Tillman testi-
fied that his affidavit was incorrect, because Quick was not
yet due a paycheck. Tillman further testified, as he indicated
in his affidavit, that on Thursday morning he visited the
Upjohn jobsite to bring Quick some information, including a
CES handbook and CES literature. He could not locate
Quick, and left the material at the Company’s trailer. Tillman
further testified in sum as follows: Quick reported to the
CES office on Friday afternoon. Tillman explained the job,
and Quick agreed to do it. Tillman did not tell the Company
why he removed Quick from the Upjohn project, but simply
sent Patterson as a replacement. The Company did not ask
him to remove Quick. Quick reported to the new job on
Monday, August 13, and they discussed the job. Tillman told
Quick to purchase the materials and Tillman would reim-
burse him. Quick worked on Tuesday and Wednesday, but
not on Thursday. On Friday Quick told him he went to pur-
chase materials, but needed to update his contractor’s license
in order to proceed with the service changes. Tillman thought
this was already done, but Quick said his license expired. On
Monday, August 20, Quick came to the CES office. He
wanted more money for the job, including pay for Thursday
and Friday. Tillman said he couldn’t afford it, and that Quick
didn’t work on Thursday and Friday. Quick walked out. Till-
man considered that Quick quit. Tillman testified that the
Company did not tell him not to refer people with union or
IBEW background, and that he did not interrogate Darwin
Patterson about his union background.
As found, Foreman Syswerda was not a supervisor or
agent of the Company. Therefore I am recommending dis-
missal of the allegation that the Company, by Syswerda, en-
gaged in unlawful interrogation. I have not taken Syswerda’s
statements into consideration in determining the merits of
Quick’s removal. However I find incredible, Tillman’s expla-
nation for the removal of Quick from the Upjohn job. On
Thursday, August 9, Respondents learned (through Local
445’s letter, or Quick’s open display of a union organizing
pin, or both) that Quick was engaged in union organizing ac-
tivity. The next day Quick was removed from the job. Three
months earlier, the Company similarly removed three CES
employees from the site when they displayed union para-
phernalia, thereby indicating that they intended to engage in
organizational activity. Tillman, through CES, was engaged
in the business of furnishing skilled and unskilled labor to
nonunion construction firms. He was not engaged in business
as a building contractor. The Company’s records indicate that
CES usually referred electricians to the Company for ex-
tended periods of time, ranging from about 1 to 6 months,
until the Company no longer had work for them. If as
claimed by Tillman, he felt free to arbitrarily pull a qualified
employee off a company job after 2 days’ work, for his own
convenience without notice to the Company, thereby forcing
the Company (again without notice) to familiarize the re-
placement with the work, then it is probable that CES would
not last long in business. It is also unlikely that within 2
days of dispatching Quick to the Upjohn project, Tillman
would suddenly realize that he needed Quick to remodel his
mother’s home. At the time he hired and dispatched Quick,
Tillman already knew all he had to know: that Quick had
building skills and was a master electrician, and that Till-
man’s mother’s home could use some remodeling. Neverthe-
less, he dispatched Quick to the Company. If Tillman were
sincerely interested in having Quick do the remodeling work,
then it is probable that he would have waited until the fall,
when the Company was winding down, and then offer Quick
a nice indoor job. There was nothing urgent about the re-
modeling job. I also credit Patterson’s testimony concerning
his interview with Tillman. As discussed, Tillman gave a
false explanation of his telephone call to Quick, and his ex-
planation for removing Quick from the Upjohn project was
demonstrably incredible. I have no comparable reservations
with respect to Patterson’s credibility. CES violated Section
8(a)(1) by interrogating Patterson about his union affiliation.
‘‘The Board has long recognized that questions involving
union membership and union sympathies in the context of a
job interview are inherently coercive and thus interfere with
Section 7 rights.’’ Presbyterian University Hospital, 295
NLRB 1139 (1989), enfd. 914 F.2d 244 (3d Cir. 1990).
Moreover, Tillman’s strong language demonstrated that he
intended the questioning to have a coercive effect. His stern
warning to Patterson, i.e., that the truth would out, plainly
conveyed the message that Patterson had better not be a
union adherent. Tillman’s unlawful interrogation further dem-
onstrates a discriminatory motivation on the part of both Re-
spondents. Tillman had no reason to be concerned about
whether Patterson was a union member, unless the Company
was so concerned. It is evident, particularly in light of the
unlawful termination of Ketcham, Sosnowski, and Tishhouse
that the Company did not want another Bill Quick on the
job.
I find that Respondents caused Quick to be removed from
the Upjohn project because the Union and Quick indicated
that Quick intended to engage in organizational activity. As
of August 8, they had no intention to terminate Quick. The
circumstances indicate that Tillman probably called Quick
that evening to tell him that Tillman would be bringing CES
material to him the next day (which Tillman did). When Re-
spondents learned of Quick’s union activity, the Company
did not (as it did in May), have a ready excuse to remove
the offending employee. Therefore the Company left it to
CES to come up with some pretext to get rid of Quick. Till-
man dutifully carried out this assignment. I further find that
by offering Quick only an arrangement as an independent
contractor, Tillman effectively terminated Quick as an em-
ployee. Tillman did so for the same motivation as Respond-
ents in removing Quick from the Upjohn project. It follows
that CES further violated Section 8(a)(3) and (1) by termi-
nating Quick. On the basis of the timing and abrupt cir-
cumstances of Quick’s removal, the Company’s demonstrated
hostility toward union organizational activity, and Tillman’s
subsequent coercive interrogation of Patterson, the General
Counsel presented a prima facie case that Respondents re-
673WINDEMULLER ELECTRIC
5 Sosnowski initially testified that Tillman called within a month
after he called Tillman. However Sosnowski admitted on cross-ex-
amination that Tillman called him about May 29, i.e., shortly after
he called Tillman.
moved Quick and CES terminated Quick because of his
union activity. As Respondents’ explanation for their action
was pretextual, Respondents failed to meet their burden of
establishing that they would have removed or terminated
Quick in the absence of such activity.
C. Additional Alleged Interrogation by CES, and
Alleged Unlawful Refusal by CES to Hire, Recall
or Consider for Employment Tom Sosnowski
and Sean Redner
Residential journeyman Keith Wolfsen applied for work
with CES on September 20. Wolfsen testified that although
working, he had too far to commute, and Local 131 Orga-
nizer Moldovan suggested he apply to CES. Wolfsen was a
member of Local 131. However his CES application form
did not indicate a probability of union membership. Wolfsen
did not answer a question on the form to: ‘‘List current pro-
fessional affiliations and organizations.’’ Prior to Bill
Quick’s termination CES did not include this question on its
application form. Wolfsen testified that when Tillman inter-
viewed him, he asked whether Wolfsen ‘‘belonged to any as-
sociations.’’ Wolfsen answered that he formerly belonged to
a refrigeration engineers’ society. Tillman described CES as
an organizer for contractors filling in for lack of their own
people. Tillman added that he was nonunion, and his calls
would be one contractor to another. The next day Tillman of-
fered Wolfsen a choice of two jobs. Wolfsen chose a jour-
neyman’s position with the Company at the Upjohn project,
at $12 per hour. Tillman said the job would last 2 weeks or
more, depending on Wolfsen’s performance. Wolfsen began
on September 24 and worked until late November, when the
Company laid off all CES personnel. Wolfsen never dis-
closed his union membership. Tillman, in his testimony, did
not deny Wolfsen’s testimony.
I find that CES violated Section 8(a)(1) by coercively in-
terrogating Wolfsen concerning his union membership. At
the time Tillman interviewed Wolfsen, the present unfair
labor practice charges were pending, including allegations,
filed on August 14 and 22, that Tillman unlawfully ques-
tioned applicants about their union membership. Tillman took
a more subtle approach. On the CES application form, he di-
rected applicants to list their current professional affiliations
and organizations. He expressly asked Wolfsen whether he
belonged to any ‘‘associations.’’ Tillman had no legitimate
reason for asking these questions, and offered no expla-
nation. The terms ‘‘professional organizations’’ and ‘‘asso-
ciations’’ are broad enough to encompass unions. See Sec-
tion 2(5) of the Act, definition of ‘‘labor organization.’’ Lest
there be any doubt of his implication, Tillman pointed out
that CES was nonunion. Wolfsen’s interview occurred
against a background of recent unfair labor practices by Till-
man. His questioning of Wolfsen was unlawful, and may be
considered as evidence of unlawful motivation in connection
with the next allegations against CES. Presbyterian Univer-
sity Hospital, supra.
The complaint alleges that since on or about September 21
CES refused to hire, recall, or consider for employment em-
ployees Tom Sosnowski and Sean Redner, because of their
union membership and activities. The thrust of the allegation
(G.C. Br. 10) is that Tillman hired and referred Keith
Wolfsen to the Company, believing him to be nonunion, in
preference to Sosnowski and Redner, whom he knew to be
union.
Sosnowski testified in sum as follows: On the Friday after
being laid off from the Company (May 25), he went to CES
to pick up his paycheck. The receptionist told him there was
no work for electricians at that time. A few days later
Sosnowski called CES, because Local 107 Organizer
Wuelfing told him that CES was sending out electricians.
Tillman told him he had just filled a call and had nothing
else at the moment. On May 29 Tillman left a message with
his wife that he should call. Sosnowski returned the call, but
Tillman said the job was now filled. Sosnowski asked about
the job. Tillman described a job in Kalamazoo for a fourth
year apprentice, which paid $10 per hour. Sosnowski said he
could not have afforded that anyway, and pointed out that he
was a journeyman.5 About a month later Sosnowski stopped
at the CES office and asked the receptionist if there was any
work for electricians. She said they had just laid off a bunch
of electricians. In November Sosnowski filed a new applica-
tion with CES. This time the form indicated that the applica-
tion was valid only for 30 days. No time limitation was indi-
cated on his initial application in April. The receptionist
again said they had just laid off a bunch of electricians.
About December 1 Sosnowski went to CES and renewed his
application. In September Sosnowski installed a telephone
answering machine in his home. However Sosnowski never
received any messages from CES.
Journeyman and Local 107 member Sean Redner testified
in sum as follows: In August he was out of work. On August
9, at the suggestion of Organizer Wuelfing, he went to CES
and filled out an application. Redner made no effort to con-
ceal his union identification. Redner listed his work history,
indicating that all but one of the contractors for whom he
worked were union contractors. Redner also indicated that he
was trained in the Union’s apprenticeship program. He listed
Wuelfing and Local 107’s business manager as references.
Redner gave his address and the telephone numbers of his
union references, but did not list his own telephone number.
Redner has a telephone answering machine, and his number
is listed. Redner testified that there was no place on the ap-
plication for a telephone number. Redner’s application was
not presented in evidence. Those CES applications which
were offered in evidence, all indicated a space for home tele-
phone number. Redner further testified that the receptionist
told him the application would be in effect for 1 year, and
if Redner had any questions, he could call either herself or
Tillman. Redner never spoke personally to Tillman and never
heard from CES.
Windemuller and Tillman testified in sum that the Com-
pany did not request CES to furnish only nonunion employ-
ees. Tillman further testified in sum as follows: When
Ketcham, Tishhouse, and Sosnowski returned from the Com-
pany, he had no work for them. On May 29 he had a job
for a journeyman with John Davis Electric, for residential
and commercial work. Tillman called Sosnowski, but there
was no answer. He next called Ketcham, who said he did not
want residential work. Tillman next called Tishhouse and left
674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a message on his answering machine that he had a job.
Tishhouse never returned the call. CES presented in evidence
a telephone bill indicating that calls were placed from CES
to Ketcham and Tishhouse on May 29 at 2:49 p.m. and 2:50
p.m., respectively (calls to Sosnowski would be local). An-
other time Tillman called Sosnowski, and this time reached
him. Tillman offered him a job at $10 per hour. Sosnowski
said that was apprentice rate, and not enough, because he
was journeyman. None of the three employees indicated that
they wished to be considered further, and Tillman did not
call any of them again. Tillman did not testify directly con-
cerning Redner’s application. However Tillman testified that
both application forms used by CES have a place for appli-
cant phone number, and that if the applicant does not put
down his or her phone number, he will not attempt to locate
the applicant by other means. CES’ receptionist was not
called as a witness. Ketcham testified in sum as follows:
When the three employees returned to CES from the Upjohn
project, Tillman said he would keep them on file and give
them a call. The following week Tillman left a message on
Ketcham’s answering machine. Ketcham returned the call,
and Tillman said he had a job. Ketcham turned it down, ex-
plaining that ‘‘it had probably been a long time since I’d
ever run a Ronex (?) and that I don’t think it would probably
be fair to that contractor for me to take that job.’’ Since then
Ketcham has not heard from CES. Tishhouse testified in sum
as follows; When the three employees returned to CES from
the Upjohn project, they said they were available for another
job. Tillman said he would be in touch with them. Some 2
to 4 weeks later Tillman left a message on Tishhouse’ an-
swering machine. Tishhouse did not return the call because
he had obtained other employment. He had no further contact
with CES.
I credit Tillman’s testimony that he twice called
Sosnowski in order to offer him employment. It is undis-
puted that Tillman called Ketcham and Tishhouse. Ketcham’s
description of the job offer indicates that it was not the same
as the fourth year apprentice job described by Sosnowski.
CES’ records indicate that Tillman called Tishhouse imme-
diately after calling Ketcham. If so, then it is probable, as
testified by Tillman, that he also called Sosnowski to offer
the same job. It is undisputed that Tillman called Sosnowski
on another occasion, in connection with the apprentice job.
It is unlikely that Tillman would call Sosnowski simply to
tell him that he had filled a job. Rather on both occasions
Sosnowski was not available when Tillman called. Given the
nature of referrals in the construction industry, which require
prompt action, Tillman had no alternative but to keep calling
until he filled the contractor’s request. Therefore it is not sur-
prising that when Sosnowski got around to calling CES, Till-
man had filled the job or jobs.
If the complaint alleged that CES refused to refer
Sosnowski in July for discriminatory reasons, I might be in-
clined to find a violation. Sosnowski testified without con-
tradiction that about that time he spoke to Tillman’s recep-
tionist, asked about work, and she said they had just laid off
a bunch of electricians. The Company’s records indicate that
in July CES referred five employees to the Company, includ-
ing two (Barnett and Hambley), whose compensation rate to
CES indicates they were probably journeymen. However the
complaint does not so allege, and Respondents were not put
on notice of any such allegation. Rather the complaint al-
leges that CES refused to hire, recall, or consider Sosnowski
for employment on and after September 21. For remedial
purposes there may be no practical difference. As discussed,
the duration of employment of CES and/or borrowed em-
ployees may be considered as a measure of the Company’s
backpay liability.
I find that the General Counsel presented a prima facie
case that CES failed to recall Sosnowski, hire Redner, and
refer either of them to the Company, because they appeared
likely to engage in union organizational activity. Specifically,
the General Counsel presented evidence that the Company
was disposed not to tolerate employees who engaged in such
activity, and that CES cooperated in removing Quick from
the Upjohn job because of such activity, coercively interro-
gated Patterson and Wolfsen in order to determine whether
they were union members, and hired and referred Wolfsen,
who appeared to be nonunion, while failing to refer
Sosnowski and Redner, who were demonstrably union adher-
ents. However I find that CES has met its burden of estab-
lishing that CES would not have referred Sosnowski or
Redner to the Company on or after September 21, even in
the absence of their union membership or affiliation. As of
September 21 (when CES referred Wolfsen), nearly 4 months
had passed since Sosnowski had any personal contact with
Tillman. On two occasions around June 1 when Tillman
called, Sosnowski could not be reached. In these cir-
cumstances Tillman could reasonably believe, as of Sep-
tember 21, that Sosnowski was not a prospect for immediate
employment. To this extent I credit Tillman’s testimony. As
indicated, Sosnowski testified that in September he installed
a telephone answering machine in his home. However he did
not inform CES of that fact. In contrast Wolfsen applied at
the very time that the Company needed a journeyman, evi-
dently as a replacement for Darwin Patterson. As for Redner,
I credit Tillman’s testimony that he would not call an appli-
cant who failed to give his or her telephone number. Tillman
could reasonably infer that a person who failed to give this
important information was not seriously interested in em-
ployment. CES had no bargaining relationship with the
Union, and was under no obligation to call Redner’s ref-
erences in order to determine whether Redner was available
for work. Therefore I am recommending that the pertinent al-
legations of the complaint be dismissed.
D. Alleged Unlawful Company Statement and Refusal
to hire or Consider Union Members or Adherents
for Employment
The remaining complaint allegations involve only the
Company as respondent.
The Company conducts monthly breakfast meetings for its
employees (one for those in the Grand Rapids area and an-
other in the Kalamazoo area). Foremen would discuss the
status of their projects. On or about January 17 Barry Allen
attended his first breakfast meeting as a foreman, at a res-
taurant in Kalamazoo. Allen testified in sum as follows: Vice
President Windemuller addressed the employees. He said the
Company needed some manpower, and that the jobs were
getting tight. Someone asked if there were any applications
on file. Windemuller answered that they had a lot of applica-
tions from the Union. The audience broke into laughter.
Windemuller then added that he checked with other contrac-
tors in the Grand Rapids area (referring to nonunion contrac-
675WINDEMULLER ELECTRIC
tors), and they also had a lot of applications on file—also
from the Union. Branch Manager Dedoes spoke next. He
said that if anyone knew of journeymen electricians in the
Kalamazoo area they should contact him, because they would
be needing electricians. Allen’s testimony concerning the
meeting was undisputed.
On October 18, 1989, as previously described, the Com-
pany received applications from or by a total of 26 union
members. As of January 17 none were hired. (The Company
never hired any of them.) Windemuller referred to applica-
tions ‘‘from the Union.’’ He did not say union electricians
or union members. The plain implication of Windemuller’s
remarks was that he was referring to the October 18 appli-
cants, he regarded them as being ‘‘from the Union,’’ and the
Company would not consider for employment those appli-
cants whose manner of application indicated that they were
likely to engage in union organizational activity. Dedoes lent
further emphasis to Windemuller’s remarks by indicating that
the Company would look elsewhere and anywhere for jour-
neymen electricians, notwithstanding the October 18 applica-
tions. As discussed, the applicants were employees entitled to
the protection of the Act. I find that the Company, by
Windemuller, violated Section 8(a)(1) by impliedly telling its
employees that it would not consider active union adherents
for employment. I further find that his statement may be con-
sidered as evidence of the Company’s motivation in failing
to hire the union adherents. Windemuller’s statement that he
had applications from the Union, may also be considered as
evidence of the length of time the Company kept applications
on file.
The parties stipulated that on October 18, 1989, company
receptionist Jodie Dedoes, who passed out applications to the
union member applicants, told 7 of them that their applica-
tions would be kept on file for 6 months. Jodie Dedoes was
not presented as a witness. Vice President Windemuller testi-
fied in sum as follows concerning the Company’s hiring pro-
cedure. The Company maintains three files for job appli-
cants. They are respectively for (1) licensed electricians, (2)
apprentices with electrical experience, and (3) applicants with
no electrical experience. The Company hires experienced
journeymen, but also trains employees in electrical work, in-
cluding running cable lines. When the Company needs help,
Windemuller will pull the appropriate file and review appli-
cations, beginning with the most recent. He does this because
when the Company is busy, usually other contractors are also
busy. Therefore earlier applicants would probably not be
available. ‘‘Basically,’’ the Company ‘‘will hold the applica-
tions for a period of generally 30 days, but it can be longer
if we don’t hire anybody in that interim.’’ When
Windemuller makes his selections, he will throw away the
other applications, and accumulate a new batch to be avail-
able when the Company again needs help. The Company
does not have a policy of keeping applications on file for 6
months, and Jodie Dedoes has no knowledge or authority to
state the Company’s hiring policy.
Windemuller further testified in sum as follows: When he
reviews applications, he is particularly concerned with the
applicant’s references, kind of experience and where ob-
tained, e.g., whether industrial or construction. Industrial ex-
perience is better for certain types of work, such as mainte-
nance. When Windemuller makes a preliminary choice, he
will call the best qualified person to inform him about the
applicant’s qualifications and work habits. He looks for ap-
plicants with references who work for the Company as these
are reliable. Business references are also helpful. Prior work
experience is important, and with apprentices, their edu-
cation. Windemuller also checks whether the applicant lives
in the area, has transportation, wants full-or part-time work,
expected rate of pay (i.e., whether more than the Company
pays), has physical impairments or a criminal record, has
needed tools, and has experience on nonelectrical operating
equipment. He also formerly checked whether the applicant
completed an I-9 (citizenship information) form. Winde mull-
er was under the impression that the applicant had to com-
plete this form, and therefore attached the form to the appli-
cation. However, he learned that the form was not necessary
until a person was hired, and during 1990 withdrew the form
from the application process. However he would not nec-
essarily reject an applicant for a Kalamazoo job who did not
live in that area, or lacked tools or business references, or
failed to complete the I-9 form. He received the October 18
applications from Jodie Dedoes, placed them in the appro-
priate files and handled them in the usual manner. Most of
these applicants were journeymen. He will consider IBEW
members for hire. The Company annually receives over 100
job applications. Branch Manager Dedoes operated out of his
home from June 1989 to January 1990, and had authority to
hire employees in the Kalamazoo area. In January the branch
began operating from an office in Cooper Township (suburb
of Kalamazoo). Dedoes testified in sum as follows: If the
Company is hiring, he receives applications, files them if
they meet the Company’s criteria, and keeps them on file for
30 days. He received applications at the jobsite and at his
home when he used that as his office. He pulls out the appli-
cations, reviews them beginning with the most recent, and is
particularly interested in those with references who are com-
pany employees or persons known to Dedoes. He posted a
sign at the company trailer on the Upjohn project (as will be
further discussed) that ‘‘we do not accept applications at the
job trailer.’’ He did so because there was no one at the trail-
er qualified to interview or hire. However Dedoes admitted
that he also posted the same sign at the Kalamazoo branch
office.
I find that as of October 18, the Company had a practice
of keeping job applications on file for 6 months. The Com-
pany placed Jodie Dedoes in a position where she had osten-
sible authority to answer questions concerning the application
process. The inference is warranted that when she told the
applicants that the applications would be kept on file for 6
months, she knew what she was talking about. If she did not
know the policy, or had no authority to speak, she probably
would have said so, or referred the inquiries to another per-
son. If she spoke falsely, the inference is warranted that the
Company sought to deceive union applicants. As indicated,
in late January Windemuller indicated that the applications
were still on file. It is also significant that the Company still
had the October 18 applications as of February 2, when the
Union filed its first unfair labor practice charges (Cases 7–
CA–30178 and 7–CA–30190). The period from October to
mid-April was the slow season in the construction industry.
The Company’s records indicated that it did relatively little
hiring during this period, particularly when compared to the
months of May, June, July, and August. Therefore the Com-
pany had reason to keep applications on file throughout this
676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Thomas Barnhardt, hired on August 6, was mistakenly listed as
having no application.
period, in anticipation of greater needs with the coming of
spring weather.
The Company’s records, together with stipulations of the
parties and testimony of Windemuller and Dedoes, indicates
that during the period from October 18, 1989, through Janu-
ary 31, 1991, the Company hired (or in three instances re-
called or rehired) some 44 employees. The Company did not
have application forms for eight of these employees.6 The
hired employees included journeymen and apprentices. As in-
dicated, the Company also borrowed employees from other
nonunion contractors and obtained employees from CES dur-
ing this period. Among the 26 union members who applied
on October 18, their applications indicated 1 master elec-
trician (Gary Van Koevering), 3 apprentices (Kevin
McEntaffer, Christopher Pena, and Daniel Sidlauskas), and 2
licensed as journeymen in other states (Richard Howard and
Richard Ringwald). The other 20 were Michigan-licensed
journeymen.
Local 107 Organizer Wuelfing testified in sum as follows:
In Western Michigan, two labor organizations, IBEW and
CLA, represent electricians employed by construction elec-
trical contractors. Among the applications (for 36 employees)
stipulated into evidence, of employees hired by the Company
during the period from October 18, 1989, through January
31, 1991, the initial (1987) application of Eugene Roberts in-
dicated him to be a member of Local 131. (Thereafter he
worked for the Company.) The application of Ted Hardiman
indicated that from April 1987 to May 1988 he worked in
the drafting department of a manufacturing firm, Kirchoff
Flex Cable. At that time Local 107 represented a unit of the
firm’s employees, which did not include draftsmen. The ap-
plication of Jack Osborn indicated that he worked for Kala-
mazoo Electric from October 1984 to April 1987, and there-
after for nonunion firms. Since 1989 the employees of Kala-
mazoo Electric have been represented by Local 131. How-
ever the firm was nonunion when Osborn worked there.
(Osborn’s application also indicates that he was trained in the
ABC, i.e., open shop, apprenticeship program.) None of the
other applications indicate employment by union contractors.
The complaint alleges that since on or about November
17, 1989, the Company has discriminatorily refused to hire
or consider for employment the October 18 applicants.
Therefore I shall not take into consideration the Company’s
hiring of three employees (Heintz, Swinehart, and Devries)
during the period between October 18 and November 17,
1989, as unfair labor practice conduct. I find that the General
Counsel presented a prima facie case that from November
20, 1989, until at least April 18, 1990 (6 months from Octo-
ber 18), the Company refused to hire or consider for employ-
ment the October 18 applicants, for positions for which they
were qualified, because the Company believed that they were
likely to engage in union organizational activity. As dis-
cussed, Windemuller made clear in January 1990 that he did
not intend to hire or consider the applicants, whom he re-
garded as being from the Union. The Company never hired
any of the applicants. Rather the Company consistently hired
employees whose applications and records (with one excep-
tion) indicated a non-IBEW background. When the Company
obtained union employees from CES, it promptly got rid of
them when they indicated their intention to engage in organi-
zational activity.
At this point, I shall consider the question of whether the
Company has met its burden of establishing that it would not
have hired the October 18 applicants, or any of them, in the
absence of their union membership or activity. This neces-
sitates consideration of individual hiring decisions. I shall
first consider the period from November 17, 1989, to January
29, 1990, when some of the October 18 applicants reapplied,
and Edwin Sturm applied for work with the Company. Dur-
ing this period the Company hired or recalled seven employ-
ees: Martin Proper on November 20, Daniel Kolehouse on
December 4, Richard Coy and Michael Hudnall on January
22, Todd Meert and Eugene Roberts on January 23, and
Brenda Jackson on January 29. The Company also obtained
Robert Morrison from CES during this period. Hudnall and
Roberts previously worked for the Company. The Company’s
records indicate that Hudnall was hired by the Company on
June 15, 1987, laid off on February 2, 1989, recalled on Jan-
uary 22, 1990, and laid off on January 4, 1991. The records
indicate that Roberts was hired on October 22, 1987, laid off
on January 6, 1989, and rehired on January 23, 1990.
Windemuller testified in sum as follows concerning the em-
ployees: He initially hired Proper as a truckdriver (Proper ap-
plied for a job as warehouse-driver). None of the October 18
applicants applied for such position. After some 6 or 7
months Proper asked to and was permitted to work on jobsite
as an apprentice. In 1989 CES referred apprentice Kolehouse
to work on a company job in Battle Creek. Kolehouse later
applied directly for a job with the Company (November 5,
1989). Windemuller hired him as an apprentice on December
4. His application was the most recent on file and Foreman
Gary Samons, on his own initiative, gave Kolehouse a high
recommendation. His application indicated that he worked 12
years for Reynolds Metals, whose employees were rep-
resented by a union (not IBEW). (Kolehouse’s application in-
dicated that he was enrolled in the ABC apprenticeship pro-
gram.) As indicated, Hudnall and Roberts previously worked
for the Company. Hudnall is Black. Roberts was a journey-
man and Hudnall was an apprentice. Windemuller assumed
that Roberts was still an IBEW member, because he worked
for Moore Electric, a union contractor. (Roberts’ current ap-
plication, filed on January 23, the day he was hired, did not
list his employment record.) Apprentice Brenda Jackson ap-
plied on December 29, 1989. She was then working for an-
other firm, but complained she was not learning anything.
Her qualifications were good, and she was persistent in seek-
ing employment with the Company. Windemuller knew one
of her references, who gave her a good recommendation.
When hired, her application was the most recent on file.
Jackson has since become a journeyman. Branch Manager
Dedoes hired Coy and Meert. Both were apprentices. Dedoes
testified in sum as follows: Meert came to his home and
made application (his application is dated November 9,
1989). At the time Dedoes considered him, Dedoes did not
have any other applications on file. Company Superintendent
Thompson and journeyman Larry Harness recommended
Meert. Dedoes was also impressed by the fact that Meert ran
a dairy farm, which would indicate good work habits. Coy
also came to Dedoes’ home and brought a resume. (His ap-
plication is dated January 5.) When Dedoes reviewed Coy’s
application, he had one other apprentice application on file.
677WINDEMULLER ELECTRIC
7 The General Counsel does not contend that Todd Meert’s No-
vember 9 application was a forgery. I find that he applied as indi-
cated on that date.
Neither indicated IBEW background. Dedoes chose Coy be-
cause he had more experience than the other applicant.
Windemuller testified that he considered the October 18
applications. As indicated, during the period from October 18
to January 29 the Company hired or recalled one truckdriver,
five apprentices, and one journeyman. Windemuller testified
in sum concerning the three apprentices among the October
18 applicants. None of them ever again contacted the Com-
pany. He considered their applications at the time he hired
apprentice Kirk DeVries on November 8, 1989. Christopher
Pena did not indicate he had any friends or relatives working
for the Company. His only indicated electrical experience
was working as a cable puller for a firm in Germany called
Elkom. Windemuller was not familiar with the firm, and
Pena gave no other references. Pena indicated that he was a
United States citizen, but did not complete the I-9 form.
Daniel Sidlauskas gave no references to check. (In fact, he
attached letters of reference from Guardsman Products, Inc.,
his most recent employer.) Sidlauskas’ only indicated elec-
trical experience was with Guardsman. However his low rate
of pay ($4.50 to $6.25 per hour) did not suggest that he did
skilled work. Sidlauskas’ application did not indicate a union
background. Kevin McEntaffer indicated that he was a fourth
year apprentice, but did not list his employers and gave no
references (McEntaffer indicated that he did electrical work
for ‘‘Local #275’’ from 1986 to 1989). He did not complete
the I-9 form. As for the selected applicant, Kirk DeVries, his
application was the most recent on file at the time of selec-
tion. (DeVries applied on October 20.) DeVries indicated
that he worked for three electrical firms (including Feyen
Zylstra) and described his work. He listed two company per-
sonnel (Fred Syswerda and Jeff Newman) as references.
Windemuller checked with Newman, who taught DeVries in
an electrical apprenticeship training program. Newman spoke
highly of DeVries. Windemuller concluded that DeVries was
the best qualified of the four apprentice applicants.
Barry Allen testified in sum as follows: After the January
breakfast meeting, Superintendent Thompson told him there
were a lot of projects coming up, they were looking for jour-
neymen, and would scrounge around wherever the Company
could get them. Thompson said he would (and did) call Eu-
gene Roberts, who had previously been laid off for lack of
quality work. Roberts subsequently worked for Moore Elec-
tric, a union contractor, until he was laid off. Roberts re-
ported to work with journeymen Syswerda and Fred Slot
(both transferred from another job), recalled apprentice
Hudnall, and newly hired apprentice Todd Meert. On their
first day at work, Superintendent Strong had Roberts,
Hudnall, and Meert fill out applications. Strong told Roberts
that he needed to fill out a new application in order to update
the information. The General Counsel did not present any
other evidence concerning the qualifications of the applicants
(successful or not) beyond that contained in their applica-
tions. On February 2 and 5 respectively, Locals 131 and 275
filed unfair labor practice charges, alleging that the Company
violated Section 8(a)(3) by bypassing union applicants when
it hired an electrician on January 22. The Board’s Regional
Director declined to proceed on the charge, noting that the
hired employee (Roberts) was a member of Local 131 and
qualified to perform the work for which he was recalled. No
appeal was taken from this determination.
I find that the Company has met its burden of establishing
that it would not have hired any of the October 18 applicants
at any time through January 29, even in the absence of their
union membership of activity. I specifically credit
Windemuller’s testimony that he considered the three appren-
tice applications filed on October 18, but that DeVries’ appli-
cation indicated that he would be a better choice. In so doing
I have taken into consideration the pertinent applications and
the criteria which Windemuller testified that he used in con-
sidering applicants. I find (as Windemuller himself admitted)
that even in 1989 he would not reject an applicant for failure
to complete the I-9 citizenship form. (The Company hired
Proper and Coy, although they did not complete the form.)
Even putting aside this factor, Windemuller would have hired
DeVries. As discussed, the Company, at least as of October
1989, kept applications on file for 6 months. However, I
credit Windemuller’s testimony to the extent that I find that
once having considered and rejected an applicant (as with
Sidlauskas, Pena, and McEntaffer), Windemuller would not
again consider that applicant if other qualified applicants
were available. I also credit his testimony, and that of
Dedoes, that they first considered the most recent applicant.7
As for Roberts, he was as indicated the only journeyman
hired by the Company during the period from October 24,
1989, through January 29, 1990. As the Regional Director’s
dismissal of the earlier charges was not appealed to the
Board’s General Counsel, the Regional Director’s determina-
tion does not preclude reexamination of Robert’s selection,
in connection with the present charges. However, the rea-
soning of that earlier determination is persuasive. If the
Company had a mindset at this point to avoid hiring union
adherents who might engage in organizational activity, it is
unlikely that the Company would do so by rehiring a former
employee who it knew to be a union member. The Company
had no assurance that Roberts would not engage in organiza-
tional activity. I find that the Company did not act unlaw-
fully by recalling Roberts without considering the October 18
applicants. As the Company did not hire any other journey-
men during the period from November 17, 1989, through
January 29, 1990, it follows that the Company demonstrated
that it would not have hired any of the nonapprentice Octo-
ber 18 applicants, even in the absence of their union mem-
bership or activity.
I shall next address the period from January 30 through
April 25. Barry Allen testified in sum as follows: When Or-
ganizer Moldovan came to the Upjohn jobsite on January 29,
he introduced himself, and Crabtree and Artz as applicants,
to Superintendent Thompson. Thompson called Dedoes, who
told him to take the applications. Thompson had no forms
in the trailer, but Moldovan had company job applications.
Crabtree and Artz filled out applications. Moldovan also pre-
sented applications from Sturm, Fragala, and Klocke on
IBEW forms. After Moldovan, Crabtree, and Artz left,
Thompson posted a sign on the trailer door stating that no
job applications would be taken at this trailer as of this date.
During the period from January 30 through April 25 the
Company hired four employees: Timothy Bartelds on Feb-
ruary 6, John Garcia Jr. on March 12, John Halverson on
678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
March 19, and Jack Osborn on April 25. Osborne, formerly
an employee of A & K Electric, worked for the Company
as a borrowed employee for about 5 weeks in February and
March. Windemuller testified in sum as follows: When the
Union filed the initial unfair labor practice charges (February
2 and 5), he sent the October 18 applications to his attorney
connection with the investigation. He did not retain copies
for his files. All other 1989 applications would have been de-
stroyed in accordance with his usual procedure. The January
29 applications received at the Upjohn jobsite, and the appli-
cations subsequently received in Kalamazoo, were not for-
warded to the Company’s Grand Rapids office. Among the
October 18 applicants he would not have hired Gary Van
Koevening, because he previously worked for the Company
and left the jobsite without giving any notice. Windemuller
hired Bartelds, whose application was the most recent
(Bartelds applied on January 15). He had no electrical expe-
rience, but was persistent about wanting to get into the trade.
He listed as references his brother and a journeyman elec-
trician, who both worked for the Company. They said he
would do an excellent job. Bartelds had a good work and
school record. Windemuller checked with his current em-
ployer and other business references, and received favorable
reports. Windemuller hired Garcia (Hispanic, applied on
March 9). Garcia was a high school student and participating
in an electrical training program. On recommendation from
his instructor, the Company hired Garcia to do part-time gen-
eral work. Upon completing high school the Company subse-
quently offered him an apprenticeship. Windemuller also
hired Halverson (who applied on March 5). The Company’s
personnel record lists him as a cable lineman, but he was ac-
tually hired as a high voltage lineman, which is a specialized
and more skilled position. Halverson graduated from a high
voltage school and had experience with a utility company.
Windemuller would not have hired a regular journeyman for
this position. However a licensed journeyman or master elec-
trician can probably do cable work. Dedoes hired Osborn
(who applied on March 12). Dedoes testified that he knew
and was satisfied with Osborn’s abilities, as demonstrated by
his working as an apprentice borrowed from A & K Electric.
At the time Dedoes considered Osborn, he had no other ap-
prentice applications on file.
I credit the testimony of Windemuller. I specifically find
that the Company did not and could not consider the October
18 applications for a legitimate reason, namely, that
Windemuller forwarded the applications to his attorney in
connection with the investigation of the initial unfair labor
practice charges. Among those applicants, only Artz,
Crabtree, Fragala, and Klocke, all journeymen, renewed their
applications (on January 29). Sturm, the other January 29 ap-
plicant, was also a journeyman. The October 18 applicants
were aware, on the basis of what receptionist Jodie Dedoes
told them, that their applications would be kept on file for
a period of 6 months, i.e., until April 18, 1990. I specifically
credit Windemuller’s testimony that applications received in
Kalamazoo were not forwarded to Grand Rapids. The Gen-
eral Counsel does not allege that any of the alleged
discriminatees applied at Grand Rapids after October 18. I
find that Windemuller did not, for valid reasons, have any
applications from the alleged discriminatees in his file when
he hired Halverson (the only journeyman hired during the pe-
riod from January 30 through April 25). I find that the Gen-
eral Counsel failed to prove that the Company at any time
since November 17, 1989, has discriminatorily refused to
hire or consider for employment the 22 employees who ap-
plied on October 18 and did not thereafter reapply (Morris
Applebey, Kathy Bolthouse, Larry Deltavin, Doug Harmon,
Joe Haskins, Randy Horneber, Rick Howard, John
Kemperman, David King, Bob Laben, Kevin McEntaffer,
Chris Pena, Rick Ringwold, Don Sidlauskas, David Snoop,
Robert Stark, Al Stone, Mark Szekely, Charles Thies, Gary
Van Koevering, George Vorgias, and Randy Williams). I fur-
ther find that the Company met its burden of establishing
that it would not have hired any of the January 29 applicants
during the period from January 29 through April 25, even in
the absence of their union membership or activity. In sum,
all were journeymen who applied at the Upjohn jobsite, the
Company hired only one journeyman during this period, and
Windemuller did not have the union members’ applications
in his file when he hired Halverson.
The complaint alleges one other alleged discriminatee who
applied with the Company prior to April 25. The parties stip-
ulated that Christopher Widner presented a job application at
the Kalamazoo office on February 9 and a second application
at that office in March. A copy of his first application, not
obtained from the Company, was presented in evidence. The
second application was not presented in evidence. Widner
was not called as a witness. The February 9 application indi-
cates that Widner was applying for a job as an apprentice or
driver. The application contains nothing which would suggest
that Widner was a union member. His only electrical training
was in high school. He worked for two electrical firms, in-
cluding Webb Electric, a union firm, but as a low paid helper
doing general labor. As indicated, Branch Manager Dedoes
testified that he kept applications for 30 days. I do not credit
this assertion. Dedoes hired Todd Meert on January 23, al-
though Meert applied on November 9, 1989. I find that
Widner’s applications were on file, or should have been in
accordance with Dedoes’ usual procedure, when Dedoes
hired Jack Osborn. However, I find that the General Counsel
failed to present a prima facie case that the Company dis-
criminated against Widner for union related reasons. Specifi-
cally, the General Counsel failed to show that Widner was
a union member or adherent, or that the Company had rea-
son, even mistaken reason, to believe he was a union mem-
ber or adherent. Therefore, whatever Dedoes’ reason for dis-
regarding Widner’s application, the General Counsel failed to
prove a reason prohibited by the Act.
On May 14, Robert Fragala, Pat Klocke, and Greg Wolff,
a Local 131 member, went to the Company’s Kalamazoo of-
fice and presented job applications. This was the third appli-
cation for Fragala and Klocke and the first for Wolff. The
May 14 applications, which were not presented in evidence,
contained an entry on the form which indicated that they
would be held for 30 days. Prior company forms did not
contain such notice. Company records indicate the notation
was placed on applications in May and June. Windemuller,
in his testimony, professed to be unable to explain the
change. The prior applications of Fragala and Klocke plainly
indicated that they were union electricians. Fragala testified
in sum that he again so indicated in his May 14 application.
At this point I shall consider the remaining six alleged
discriminatees (Artz, Crabtree, Fragala, Klocke, Sturm, and
Wolff). The record does not indicate Wolff’s status. The
679WINDEMULLER ELECTRIC
other five were journeymen. I shall specifically address the
question of whether the Company discriminatorily refused to
hire or consider them for employment during the period from
April 26, 1990, through January 31, 1991. The Company did
most of its hiring during the period from May 2 through Sep-
tember 10, the peak of the construction season. During this
period the Company rehired 1 employee (Charles Kroodsma),
recalled another (Steven Lewis), and hired 27 others. There-
after the Company did no hiring until shortly before the
present hearing, when it hired Kevin Gardner, who applied
on January 30, 1991. Kroodsma, a journeyman, applied on
April 23 and was hired on May 2. Windemuller testified that
Kroodsma previously was employed by the Company in
1987, worked for about a year and a half, and was actually
rehired on May 2. On May 2 the Company hired Jerome
Keller, a self-employed master electrician. Windemuller testi-
fied that he hired Keller, who said he had nothing to do and
needed work. Windemuller told Keller he would take him,
probably only for a short period of time (Keller worked for
the Company until October 5). Journeymen Timothy Duane
and Adam Russell were hired by the Company on May 14.
Their applications were dated May 5 and May 6 respectively.
Branch Manager Dedoes testified that they applied on the
same day, and that he hired both in accordance with his
usual evaluation. On May 21 Windemuller hired apprentice
Ted Hardiman and James Bazen, also unlicensed.
Windemuller testified in sum as follows: He hired Hardiman,
who is Black, Hardiman had a good work history, and he
discussed Hardiman’s performance with an owner of Johnson
Electric, Hardiman’s most recent employer (however
Hardiman indicated on his application that he left Johnson
Electric because of ‘‘tardiness’’). Windemuller also believed
that hiring Hardiman would aid the Company in obtaining a
Michigan Certificate of Awardability. Hardiman’s application
indicated that he worked for Smith Industries, a unionized
(not IBEW) employer. Windemuller hired Bazen as summer
help (he worked for the Company until October 5).
Windemuller knew Bazen’s father, who requested
Windemuller to hire Bazen. Windemuller regarded Bazen as
‘‘a very knowledgeable individual for the limited experience
he had.’’ On June 4 the Company hired Jeffrey Cook and
Scott Meert. Cook applied on June 4. There is no application
for Meert. The Company’s records indicate that both were
apprentices. Windemuller testified that Cook was hired by
Superintendent Strong, who was knowledgeable about his
background. Windemuller further testified that Scott Meert
was actually hired as a truckdriver.
On June 5 the Company hired journeyman Salvador
Logrande, whose application is dated June 4. Logrande’s ap-
plication correctly indicated that he worked only for non-
union electrical contractors, although he worked for a UAW
organized manufacturer (Rapistan). The application did not
indicate or suggest any IBEW affiliation. In fact Logrande
was a union member or adherent who was referred to CES
by the Union. Logrande, who was presented as a General
Counsel witness, testified in sum as follows: In May he was
laid off and looking for work. The Union suggested CES,
among other prospects. He applied at CES and was inter-
viewed by Tillman. About a week later Tillman said he had
a job in Kalamazoo, but shortly thereafter told him that the
job was done. A friend told him that the Company was hir-
ing, and suggested that he contact Logrande’s former super-
visor, who now worked in the Company’s field service de-
partment. Logrande contacted the person (Roger Klinge) who
agreed to be his reference. Logrande applied at Grand Rapids
(he listed Klinge on his application). A sign was posted on
the door: ‘‘Not accepting any applications.’’ Logrande gave
his resume to the receptionist. She said they were not hiring
then, but she would pass on his resume to management. On
Friday (June 1) Superintendent Strong called him, saying that
he read Logrande’s resume. Logrande mentioned Klinge.
Strong indicated he would check with Klinge. Later that day
Strong called back. He told Logrande to come in on Monday
(June 4) and fill out an application (which he did). On Mon-
day they discussed wages. Logrande requested $13 per hour.
Strong said the starting pay was $10.90 per hour, but he
could get a $2-per-hour raise within 90 days. Logrande
agreed. He began work the next day, and continued to work
for the Company until December 14, when he and other em-
ployees were laid off for lack of work. He did not disclose
his union affiliation to management. Windemuller testified in
sum as follows: Logrande was one of the 10 CES employees
approved by him when he reviewed CES’ files. After
Logrande applied directly to the Company, both he and
Strong interviewed him. Windemuller was under the mis-
taken belief that Logrande was a minority applicant, specifi-
cally, Hispanic. (In fact, he is of Italian ancestry.)
The Company did not hire any other employees during the
30 days following May 14. The next hire was Steven Lewis,
on June 16. The Company’s records indicate that Lewis, a
journeyman who is Black, was hired on February 29, 1984,
went on leave of absence on January 26, 1990, and returned
on June 16, 1990. Windemuller testified that since hiring
Logrande, he has not hired any journeymen for building and
construction work. He hired Lewis as a cable foreman (rate
of pay $14.76 per hour). The Company’s records indicate
that during the period from July 9 through September 10, the
Company hired seven apprentices, one part-time apprentice,
eight in the category of ‘‘cable lineman,’’ one shop em-
ployee, one truck driver, and one ‘‘electrician.’’ The cable
linemen were hired at $10 per hour or less (one apprentice
was hired at $10.75 per hour). Their applications indicate
that they were not licensed journeymen. The ‘‘electrician,’’
Leonard Shilt, was hired on September 10 at a rate of $15.80
per hour (high by company standards). Windemuller testified
that he hired Shilt as an electrician serviceman, the same job
as performed by Roger Klinge. The work required extensive
and specialized experience, and Shilt had the requisite expe-
rience.
Windemuller, in his testimony, did not claim that he con-
sidered any of the January 29 or May 14 union applicants
when hiring during the period in question. This would be
consistent with his position, which I have credited, that ap-
plications presented in Kalamazoo were not forwarded to
Grand Rapids. Dedoes, in his testimony, also did not claim
that he considered any of these applications. As to the Janu-
ary 29 applications, this would be consistent with his asser-
tion, which I have not credited, that he did not keep applica-
tions more than 30 days. Dedoes further did not claim that
he considered the May 14 applications when he hired jour-
neymen Russell and Duane on May 14. As indicated, Dedoes
testified that he had only the applications of Russell and
Duane before him when he decided to hire them. The Gen-
eral Counsel failed to prove that Fragala, Klocke, and Wolff
680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
presented their applications before Dedoes considered Russell
and Duane. Therefore I credit Dedoes. Dedoes did not there-
after hire any journeymen.
The General Counsel did not present any evidence con-
cerning Greg Wolff’s qualifications. The parties simply stipu-
lated that he was a member of Local 131. Therefore I find
that the General Counsel failed to present a prima facie case
that Wolff was qualified for any position for which the Com-
pany was hiring. I am therefore recommending that the alle-
gation pertaining to him be dismissed. As to the remaining
five alleged discriminatees, I find that the Company would
not have hired them even in the absence of their union activ-
ity. Therefore the Company met its burden of proof in this
regard. Although the evidence indicates that at least some-
times Dedoes kept applications on file for more than 30
days, it is unlikely that Dedoes or Windemuller would seri-
ously consider applications over 3 months old, where the ap-
plicants had not contacted the Company since filing. By May
14 the construction season was under way. Experienced and
qualified journeymen, even if unemployed in January, would
probably be back at work by May. Moreover, the applica-
tions of Fragala, Artz, and Klocke are significant in this re-
gard, even as to hiring decisions made after May 14, when
Fragala and Klocke again applied. Their applications show
them to be among the elite of union labor. (As indicated,
Klocke and Fragala were president and vice president respec-
tively of Local 131.) The applications of Fragala, Artz, and
Klocke indicate they were continually employed in recent
years, even through the winter, at union scale which ranged
from $18 to $20 per hour (far above company pay). Sturm
used a union application form and gave only sketchy infor-
mation. However, his application indicated that as of January
29, he was currently employed with a union firm. It is evi-
dent that these applicants were not suffering from lack of
employment, low wages, or lack of qualifying experience.
Although Fragala, Klocke, and Artz indicated that wages
were ‘‘negotiable,’’ it is unlikely that Windemuller or
Dedoes would seriously believe that such electricians wanted
to leave their current employment to work for the Company.
The same is also true for others among the October 18 appli-
cants. Indeed, Bob Loben indicated that he expected $18.80
per hour, and Gary van Koevering, $16.50 per hour. Plainly,
such applications could not be taken seriously. In contrast,
union member Salvador Logrande was unemployed when he
sought work from CES and the Company. Logrande’s experi-
ence also tends to corroborate the testimony of Windemuller
concerning criteria used by the Company in selecting per-
sonnel. Logrande obtained company employment through the
use of a personal reference who worked for the Company,
and by his persistent efforts involving personal contact. It is
evident, as Windemuller testified, that he regarded these as
significant factors. The Act does not prohibit an employer
from relying upon such criteria. In contrast the alleged
discriminatees did not use company references, and made no
efforts to seek employment with the Company beyond pre-
senting their applications. I further find, in light of the fac-
tors discussed above, that the ‘‘cable linemen’’ hired by the
Company during the period from July 9 through September
10 were not journeymen positions. Journeyman Steven Lewis
was not a new hire, but an employee returning from a leave
of absence. Charles Kroodsma was a rehired company em-
ployee. The only other persons hired by Windemuller for li-
censed positions during the period from April 26 through the
end of 1991 were Jerome Keller, a master electrician hired
as a personal favor, union member Logrande, and Leonard
Shilt, hired for a specialized position. In sum, I find that the
General Counsel failed to prove that the Company
discriminatorily refused to hire or consider the union appli-
cants for employment, and I am recommending that the perti-
nent allegations of the complaint be dismissed.
CONCLUSIONS OF LAW
1. The Company and CES are each employers engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. At all times material the Company and CES were and
are joint employers of employees referred to the Company by
CES.
3. Local No. 107, Local No. 131, and other Locals of
International Brotherhood of Electrical Workers, AFL–CIO
are labor organizations within the meaning of Section 2(5) of
the Act.
4. By discriminatorily causing the layoffs of Larry
Ketcham, Tom Sosnowski, and Steve Tishhouse, and by
discriminatorily causing removal of William Quick from the
Upjohn jobsite, thereby discouraging membership in the
Union, the Company has violated and is violating Section
8(a)(3) of the Act.
5. By interfering with, restraining, and coercing employees
in the exercise of the rights guaranteed in Section 7 of the
Act, the Company and CES have engaged, and are engaging,
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
6. The General Counsel has failed to prove that the Com-
pany or CES discriminatorily refused to hire, recall, or con-
sider employees for employment because of their union or
concerted activities or to discourage such activities.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents committed violations of
Section 8(a)(1) and (3) of the Act, I shall recommend that
they be required to cease and desist therefrom and from like
or related conduct, and to take certain affirmative action de-
signed to effectuate the policies of the Act. As the employ-
ment involved was temporary, I shall not recommend a rein-
statement remedy. However I shall recommend that Respond-
ents be ordered to make whole Ketcham, Sosnowski,
Tishhouse, and Quick for any loss of earnings or benefits
they may have suffered by reason of the discrimination
against them. I shall further recommend that Respondents be
ordered to expunge from their records any reference to the
employees’ unlawful layoff or removal, and to inform them
that its unlawful conduct will not be used as a basis for fur-
ther personnel action against them. See Sterling Sugars, 261
NLRB 472 (1982). Backpay shall be computed in accordance
with the formula approved in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as computed in New Hori-
681WINDEMULLER ELECTRIC
8 Under New Horizons, interest on and after January 1, 1987, is
computed at the ‘‘short-term Federal rate’’ for the underpayment of
taxes as set out in the 1986 amendment to 26 U.S.C. § 6621.
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
10 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
zons for the Retarded, 283 NLRB 1173 (1987).8 It will also
be recommended that the Company be required to preserve
and make available to the Board or its agents, on request,
payroll and other records to facilitate the computation of
backpay and reimbursement due.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondents, Windemuller Electric, Inc., Grandville,
Michigan, and Construction Employment Services, Inc., Wy-
oming, Michigan, joint employers, their officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in International Brotherhood
of Electrical Workers, AFL–CIO, its constituent or affiliated
local unions, or any other labor organization, by laying off,
causing removal, or otherwise discriminating against employ-
ees because of organizational or other lawful union activity.
(b) Telling or suggesting to employees that they will not
consider union electrician applicants for employment.
(c) Interrogating employees, including job applicants, con-
cerning their union membership, activities, or sympathies.
(d) Prohibiting employees from wearing union stickers on
their hardhats or other clothing.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole Larry Ketcham, Tom Sosnowski, Steve
Tishhouse, and William Quick for any losses they suffered
by reason of the discrimination against them, as set forth in
the remedy section of this decision.
(b) Expunge from their files any reference to the layoff or
removal of Ketcham, Sosnowski, Tishhouse, and Quick, and
notify each of them in writing that this has been done and
that evidence of such actions will not be used as a basis for
future personnel actions against them.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post copies of the attached notice marked ‘‘Appen-
dix.’’10 Copies of said notice on forms provided by the Re-
gional Director for Region 7, after being signed by Respond-
ent’s authorized representatives, shall be posted by Respond-
ents immediately upon receipt thereof, and be maintained by
them for 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondents to ensure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondents have
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discourage membership in International
Brotherhood of Electrical Workers, AFL–CIO, its constituent
or affiliated local unions, or any other labor organizations, by
laying off, causing removal, or otherwise discriminating
against employees because of organizational or other lawful
union activity.
WE WILL NOT tell or suggest to employees that we will
not consider union electrician applicants for employment.
WE WILL NOT interrogate employees, including job appli-
cants, concerning their union membership, activities, or sym-
pathies.
WE WILL NOT prohibit employees from wearing union
stickers on their hardhats or other clothing.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights to guaran-
teed you by Section 7 of the Act.
WE WILL make whole Larry Ketcham, Tom Sosnowski,
Steve Tishhouse, and William Quick for losses they suffered
by reason of the discrimination against them, with interest.
WE WILL expunge from our files any reference to the lay-
off or removal of Ketcham, Sosnowski, Tishhouse, and
Quick, and notify them in writing that this has been done
and that evidence of our unlawful actions will not be used
as a basis for future personnel actions against them.
WINDEMULLER ELECTRIC, INC.