NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,496, BAY CONTROL SERVICES, INC., AN OPERATING DIVISION OF BAY, INC. and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 479, AFL-CIO., (Sep. 30, 1994), National Labor Relations Board, (Sep 30, 1994)

The General Counsel has excepted to some of the judge’s credibility resolutions. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. [19 LC ¶66,308] 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

In adopting the judge’s findings that Respondent Bay Control Services (BCS) did not, as alleged, violate Sec. 8(a)(3) of the Act by refusing to hire members of Electrical Workers Local 479 who applied for work on December 22, 1992, and January 6, 1993, we stress that, as the judge found, there was no showing that there were jobs available for new hires on those dates. Thus, although BCS at other times did not hire some applicants who, like the union members here, appeared at the jobsite seeking work, the General Counsel has failed to establish that BCS needed employees on the specific days that the union members sought work. Furthermore, BCS’ primary employment need on the project was to fill low-paying helper jobs and BCS had a policy, based on past experience, against hiring over-qualified employees such as the journeymen electricians alleged as discriminatees here. However, in dismissing this allegation, Members Stephens and Devaney do not rely on the judge’s speculative comments that the union members who applied for work were not bona fide job applicants, his finding that these applicants placed an unacceptable condition on BCS by requiring that they be promoted from helper to journeyman status as soon as possible, or his reference to and reliance on Ultrasystems Western Constructors v. NLRB, [127 LC ¶11,039] 145 LRRM 2641 (4th Cir. 1994).