3E Co.

National Labor Relations Board - Board Decisions

Nov 23, 1993

313 N.L.R.B. 12 (N.L.R.B. 1993)

12
313 NLRB No. 7
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We adopt the judge’s conclusions that the Respondent, through
its supervisor, Werner, violated Sec. 8(a)(1) by coercively interrogat-
ing employees about their union activities, making disparaging state-
ments about employees who engaged in union activities, and threat-
ening retaliation against employees for engaging in union activities.
In finding Werner’s statements attributable to the Respondent, we
note that it is well settled that an employer is bound by the state-
ments of its supervisors. Ideal Elevator Corp., 295 NLRB 347 fn.
2 (1989). Accordingly, we disavow the judge’s discussion in sec. III
of his decision concerning whether Werner was specifically author-
ized by the Respondent to make such statements.
Member Raudabaugh finds it unnecessary to decide whether Su-
pervisor Werner unlawfully interrogated employee Tonken, as this
finding would be cumulative and would not affect the remedy.
2 The General Counsel has excepted to the judge’s failure to addi-
tionally order the Respondent to mail copies of the notice to employ-
ees who worked for the Respondent at the time of the unfair labor
practices. In this regard the General Counsel contends that it is likely
that the work at the jobsite involved has been completed and that
many of those employees no longer work for the Respondent. In
these circumstances, we find that requiring the mailing of the notice
to the above employees is appropriate to ensure that all the Respond-
ent’s employees are informed of our decision.
3 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.’’
The 3E Company, Inc. and International Brother-
hood of Electrical Workers, Local Union #567,
AFL–CIO. Case 1–CA–28534
November 22, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On July 12, 1993, Administrative Law Judge Wil-
liam A. Pope III issued the attached decision. The Re-
spondent filed exceptions, a supporting brief, and a
reply brief, and the General Counsel filed exceptions
and a supporting brief, and a brief in support of the
judge’s decision.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions1 and to adopt the rec-
ommended Order as modified and set forth in full
below.2
ORDER
The Respondent, the 3E Company, Inc., Old Town,
Maine, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Coercively interrogating its employees about
their union activities or the union activities of other
employees, and/or from threatening its employees with
layoff, discharge, or termination of their employment,
or with any other form of reprisal, for engaging in
union activities.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effecutate the policies of the Act.
(a) Post at its facilities in Old Town and Elizabeth,
Maine, copies of the attached notice marked ‘‘Appen-
dix.’’3 Copies of the notice, on forms provided by the
Regional Director for Region 1, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(b) Mail a copy of the attached notice to all employ-
ees employed by the Respondent at the Scarborough,
Maine jobsite at the time of its unfair labor practices.
Such notice shall be mailed to the last known address
of each employee. Copies of the notice, on forms pro-
vided the Regional Director for Region 1, after being
signed by the Respondent’s authorized representative,
shall be mailed immediately upon receipt by the Re-
spondent, as directed above.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has 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 violated the National Labor Relations Act and has
ordered us to post and abide by this notice.
WE WILL NOT interrogate employees about their own
union activities or the union activities of other employ-
ees.
WE WILL NOT threaten employees with layoff, dis-
charge, or loss of employment, or with any other form
of reprisal because they join, support, or assist a union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
THE 3E COMPANY, INC.
Cheryl Anne Watson, Esq., for the General Counsel.
Malcolm E. Morrell, Jr., Esq., of Bangor, Maine, for the Re-
spondent.
133E CO.
DECISION
WILLIAM A. POPE II, Administrative Law Judge. Respond-
ent 3E Company, Inc. violated Section 8(a)(1) of the Na-
tional Labor Relations Act, by making disparaging statements
about employees who engaged in union activities, interrogat-
ing employees about their union activities, and threatening
employees with layoffs or unspecified reprisals because they
engaged in union activity. The original charge was filed on
September 18, 1991. Trial was held before Administrative
Law Judge William A. Pope II on November 18, 1992, in
Portland, Maine.
Background
The 3E Company is an electrical contractor with its home
office located in Old Town, Maine. The Company works
principally on commercial and on some industrial projects in
the State of Maine. Its Southern Division is now located in
Elizabeth, Maine, but in 1991 it operated from a mobile of-
fice located on a construction project in Auburn, Maine. At
all times relevant to this case, James Lamson was a vice
president of the 3E Company and was in charge of the Com-
pany’s Southem Division. Lamson’s responsibilities included
bidding jobs, ordering and purchasing materials for jobs, hir-
ing employees for jobs, and acting as project manager for the
Southern Division’s jobs. During the 1990–1991 period, the
3E Company’s Southern Division employed approximately
12 full-time employees and hired additional temporary em-
ployees for its jobs, as needed.
In December 1990, the 3E Company’s Southern Division
began work on a store under construction in Scarborough,
Maine, for the Sam’s Warehouse Club. Initially the Company
needed only one or two part-time employees for the job, but
by March 1991, the job had reached a stage where a larger
contingent of employees was needed, and the Company
called back to work employees who had been laid off at the
end of the preceding year and placed a newspaper advertise-
ment for new employees. Lamson picked the crew he wanted
from among over 100 applicants. He informed the new em-
ployees he hired that the Scarborough job would be short
term, lasting from 6 to 10 weeks. The 3E Company foreman
on the job until he left the Company’s employment in mid-
June was Paul Werner.
Issues
The amended complaint alleges that Respondent 3E Com-
pany violated Section 8(a)(l) of the Act at its Scarborough,
Maine, jobsite (Sam’s Warehouse Club), when, on or about
April 25, 1991, its foreman, Paul Werner, made disparaging
statements about employees engaging in union activities, and
interrogated employees about their union activities; then in or
about late April 1991, threatened employees with layoff be-
cause of their union activities; and, at various times in April
1991, threatened employees with unspecified reprisals be-
cause they had engaged in union activities.
General Counsel argues that there is credible testimony
from witnesses Charles Campbell and Elliot Tonken estab-
lishing the alleged violations of the Act. The case largely
turns on credibility, General Counsel asserts, and whereas
Campbell and Tonken were credible witnesses, the testimony
of Paul Werner, who denied making the statements attributed
to him, was vague, evasive, and inconsistent, and is not cred-
ible. Although General Counsel does not contend that Re-
spondent’s vice president, James Lamson, made any of the
alleged unlawful statements, General Counsel does contend
that his testimony was disingenuous, and should not be cred-
ited. According to General Counsel, Lamson was at the job-
site 5 or 6 days a week, and it is incredible under the cir-
cumstance prevailing at the jobsite that talk about the Union
did not come to his attention, or that he had no knowledge
of union activity.
Respondent denies that Werner made the statements attrib-
uted to him, and asserts that its vice president, James
Lamson, knew when he hired them that Tonken and another
employee named Hicks were union members. Respondent as-
serts that the testimony of Werner is more credible than that
of Campbell and Tonken. Respondent, citing Rossmore
House, 269 NLRB 1176 (1984), affd. sub nom. Hotel & Res-
taurant Employees Local 11 v. NLRB, 760 F.2d 1106 (9th
Cir. 1985), further argues that even if the alleged statements
were made, they did not violate the Act when viewed in the
reality of the workplace.
I.
General Counsel called two witnesses, Charles Campbell
and Elliot Tonken, both of whom were employed by Re-
spondent on the Scarborough (Sam’s Warehouse Club) job.
Campbell, who had worked previously for Respondent in
1990, was hired by Respondent in March 1991 for the Scar-
borough job, and worked at the site until July 1991, when
he was assigned to another jobsite, where he continued work-
ing for Respondent until September 1991. Tonken was hired
by Respondent to work on the Scarborough job on April 7
or 9, 1991, and worked there until he was laid off in mid-
July 1991. He had previously worked for Respondent in
1986 or 1987.
Campbell was not a union member when he was hired by
Respondent in March 1991, but he later joined Local 567 in
September 1991. He testified that he learned of Local 567
from Elliot Tonken in several conversations that took place
on the Scarborough jobsite in April 1991, during lunch or
restbreaks. Tonken told him to contact Ben Nest, an orga-
nizer for Local 567, if he was interested in joining the
Union. Campbell testified that in mid to late April, Paul
Werner, Respondent’s foreman on the job, asked him what
his conversations with Tonken were about. Campbell told
him they were about the Union. Werner said that he did not
like the idea of Tonken talking about the Union on the job-
site. He testified that Werner said that when there was a lay-
off coming up, Tonken would be one of the first laid off.
Sometime in April or May 1991, Werner showed Camp-
bell a list of names in a brown notebook that he carried with
him on the job, and said they were employees who would
be laid off. The employees whose names were on the list
were Elliot Tonken, Ed Hevey, Paul Lavelle, and Roger
Hicks. Campbell said that Werner referred to the brown note-
book for circuit numbers, panel schedules, and other general
information that foremen had to know. About a month later,
according to Campbell, five or six employees, including
those on Werner’s list, were laid off from the Scarborough
job. Campbell said that the 3E Company had as many as
about a dozen 3E Company employees working on the job,
but that the job was winding down when the layoff took
place. He said there were still a couple of 3E Company em-
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The parties stipulated that the Charging Party filed an unfair
labor practice charge on April 19, 1991, alleging that the Respondent
had violated the Act by refusing to hire certain named applicants for
employment because of their union activities. The Regional Director
determined that the charge had no merit and dismissed the case. The
Regional Director’s decision was appealed, and the appeal was de-
nied by the General Counsel.
ployees working on the job when he was transferred to a 3E
Company job in Auburn, Maine, in June 1991.
Elliot Tonken denied that there was a union organizing
campaign going on at the Scarborough jobsite, or that he at-
tempted to start a union among 3E Company employees at
the jobsite. He said that he made no attempt to hide his
union membership, and that he had IBEW stickers on his car,
truck, lunch bucket, and toolbox, and that he wore a union
pin on his jacket. He said that if he was asked about his
union membership, he acknowledged it, but he did not solicit
other employees to join the Union. In one of his conversa-
tions with Campbell, the latter asked how to join the Union,
and Tonken advised him to get in touch with Ben Nest, a
Local 567 organizer. In a conversation with Campbell near
the end of April, Campbell told him that the Company was
‘‘looking to get rid’’ of him because he belonged to the
Union.
Late in April 1991, Werner asked Tonken if he belonged
to the Union, and he replied that he did. Werner then asked
him if he was there to cause trouble, to which Tonken re-
plied that he was there only to do his job. A week or two
later, Tonken said, Werner asked him what the Union was
like. He said that others who asked him if he was a union
supporter included employees Campbell, Hicks, Hevey, and
Lavelle. On one occasion, during a lunchbreak, Campbell
asked what the Union was like and, in the presence of four
or five other employees, Tonken told Campbell about his
benefits.
Tonken testified that he applied by telephone for a job
with 3E Company after seeing a newspaper advertisement.
He recalled speaking to James Lamson’s secretary, and ac-
knowledged that he possibly spoke to Lamson on April 3.
When he started working for 3E Company on April 7 or
April 9, he was asked if he would like to work in Augusta,
Maine, in a few weeks if a job started there, and he replied
that he would. Subsequently, when he retured to work after
being off because of a work-related injury, he was sent to
a job in Augusta, but he worked on that job for only one-
half day because there was insufficient work. With Lamson’s
permission he returned the next day to the Scarborough job.
Tonken testified that two other people told him he was
going to be let go, but that when he asked Lamson on sev-
eral occasions if he was going to be laid off, Lamson said,
‘‘no.’’ Tonken said that he heard only that his and Hevey’s
names were on the list. Hevey and he were working in the
same area of the job when Lamson told them that they were
being laid off.
II.
Respondent 3E Company also called two witnesses in its
case. The first was James Lamson, the Company’s vice presi-
dent in charge of its Southem Division and the Scarborough
job. Lamson testified that the job had a tight time schedule,
and that he told the employees who were hired for the job
that the job would last from 6 to 10 weeks. He said he hired
about a dozen people just for that project, including a num-
ber of people who had worked for him before. The former
employees included Elliot Tonken, Paul Lavelle, Roger
Hicks, Charles Campbell, and Ray Goodwin. Among those
who showed up at the jobsite to apply for work on April 4,
1991, was Ben Nest, who told Lamson that if he was hired
he was going to organize the 3E Company. Lamson said that
he did not hire Nest. Lamson stated that he had heard talk
a year before that the Union was interested in the 3E Com-
pany, and the Union wanted a job his company was working
on at the time to be a union job.
Lamson stated that he knew at the time he hired them for
the Scarborough job that three people, Elliot Tonken, Roger
Hicks, and Jo Jo Richard, had worked previously on union
jobs. Lamson said that it did not matter to him whether an
employee was union or nonunion. He said if an employee
had worked for him before, he judged the individual on what
he had done, not on whether he was union or nonunion.
Lamson said that he did not believe there was a union
campaign at the Scarborough job, but he suspected there was
union activity because Nest had shown up on the first day
and had said he was going to try to organize the 3E Com-
pany. Further, in April an unfair labor practice charge was
filed against the 3E Company over the Company’s failure to
hire 20 people for the Scarborough job.1 He said that when
the subject of the Union did come up in conversations, his
general response was that it did not matter to him how any-
one felt, all he wanted his employees to do was to make a
decision based on facts as to whether or not they wanted to
belong to a union. He denied suggesting that employees who
engaged in union activities would be laid off, or would oth-
erwise be in trouble.
According to Lamson, by mid-May the man-hours ex-
pended by the 3E Company on the Scarborough job had de-
clined from a high of 1000 hours per week to 300 hours per
week. The job actually lasted for some time after that be-
cause deliveries by Walmart of fixtures to be installed
slowed down. By the first part of July, the Company had
only two men working on the job, one of whom was Charles
Campbell. Campbell was sent to Auburn, Maine, to work on
a project that lasted for an additional 6 weeks.
Lamson said that he tried to keep to himself information
that a job was winding down and layoffs would be required.
He said that he would wait until the last minute to personally
lay off or terminate unneeded employees. He said that the 3E
Company did not have a layoff policy based on seniority. In-
stead, such decisions were based on an appraisal of employ-
ees’ work performance on the job. He said that he did dis-
cuss work performance of employees on the Scarborough job
with the job foreman, Paul Werner. Werner knew that Roger
Hicks had asked to be laid off first because he was moving
out of State, and that Hicks would be among the first to be
laid off. Lamson said that Paul Lavelle had an attendance
problem, and he may have told Werner that Lavelle might
be going. Otherwise, Lamson testified, he did not tell Werner
who was being laid off until the day the layoffs took place.
In May 1991, Lamson laid off four employees on the
Scarborough job and one on a job in Augusta, and there
were more layoffs in June. He said the decision regarding
who to lay off in May was difficult, except for Hicks, who
had asked to be laid off first. The others selected for layoff
included Lavelle and Hevey, who had attendance problems,
153E CO.
2 Lamson stated that he offered Tonken light duty on a job in Au-
gusta, Maine, after he returned to work following a short absence
after a back injury on the job. The Augusta job was in the early
stage of construction, and shut down because of weather conditions
after Tonken had worked there for only half a day. Lamson said that
he authorized Tonken to return to work at the Sam’s Warehouse
Club job. Lamson said that in a conversation with Tonken about
signing a workman’s compensation release, Tonken said he wanted
to talk to someone else because he did not understand what was
going on, and he told Lamson that he was a union member. Lamson
said he replied that he did not care, and agreed with Tonken that
he had hired him because of what he knew Tonken could do.
Lamson indicated that this incident was not a factor in selecting
Tonken for termination in May.
3 Werner said that he had an inkling of an impending layoff, but
that he did not know what else the Company had to offer employees.
and Tonken, whose production was not quite as much as
Lamson thought it should be. Also a factor in deciding
whom to lay off, according to Lamson, was his desire to cut
back on the number of high-paid employees on the job.2
Those terminated by Lamson on the same day in May were
Ed Hevey, Elliot Tonken, Roger Hicks, Paul Lavelle, and
Keith Kendall.
Lamson testified that he never saw Paul Werner with a
brown notebook. He said that he observed that Werner car-
ried a small green and white notebook in which employees’
daily time was kept, and a three-ring binder in which he kept
his daily foreman’s reports. Lamson denied ever discussing
union activity with Werner, other than organizing activity.
Paul Werner, Respondent’s foreman on the Scarborough
job and its second witness, denied having any conversations
with Charles Campbell or Elliot Tonken about unions. He
said that Lamson visited the site regularly, and sometimes
stayed the entire day. He said that Lamson never gave him
a list of employees who would be laid off. Werner denied
that he ever made such a list or showed such a list to Camp-
bell or Tonken. Werner denied that he ever carried a small,
brown notebook on the job.
When initially questioned about union activity on the Scar-
borough job, Werner said that someone, he did not recall
whom, mentioned the Union, but he took it rather lightly.
According to Werner, ‘‘somebody may have come up to me
and asked me what I know about the union, which is very
little, and what my thoughts are which are none. And that
would have been the extent of it.’’ Later in his testimony,
however, Werner acknowledged that there was considerable
talk about the Union among Respondent’s employees on the
Scarborough job. He said that everybody on the job was talk-
ing about the Union, and he acknowledged that he told
Lamson that some employees were asking questions about
the Union. According to Werner, Lamson told him ‘‘not to
get in to it, unless I wanted to,’’ and ‘‘don’t let my work—
what I have to do at the job be affected.’’ Werner denied
that he referred any employees to Lamson to get answers to
their questions about the Union. He denied making any gen-
eral comments to employees about unions. He said that he
knew nothing at the time of the unfair labor practice charge
filed against the Company, and he was not aware the Union
wanted the Company off the jobsite.
Werner stated that employees often asked him if they were
going to be laid off, because everyone knew it was a short
project and they wanted to know if they would be sent on
another project. He said that his response was that he did not
make those decisions. Werner said that the first he knew
there was going to be a layoff in May 1991 was on the after-
noon Lamson actually laid the employees off.3
Werner acknowledged that he knew Tonken was a union
supporter from general talk on the job. He said he did not
recall what was said, or who said it. He did not recall hear-
ing it from Tonken, nor did he recall hearing Tonken talking
about the Union. He also said he did not recall seeing
Tonken’s union pin. Werner said he had no knowledge of
Campbell’s position regarding the Union.
Werner denied any close association with the 3E Company
employees, stating ‘‘[t]ypically I did not break with the guys
nor did I take lunch with them.’’
III.
Having had the opportunity to observe the demeanor of the
witnesses as they testified, as well as the opportunity to
weigh the testimony of each in light of the extent to which
their testimony is corroborated or not corroborated by the
testimony of other witnesses or by other evidence in the
case, I find that the testimony of Charles Campbell and Elliot
Tonken is more credible than that of Paul Werner. Campbell
and Tonken appeared to testify in an open and direct manner,
compared to Werner, who appeared to be evasive and intent
on avoiding being pinned down to detail.
I credit the testimony of Campbell and Tonken, and I find
as fact in this case that Werner questioned Campbell about
his conversations with Elliot Tonken, and after learning that
the conversations concerned the Union, told Campbell that he
did not like the idea of Tonken talking about the Union on
the job. I find further that Werner told Campbell that when
a layoff came up, Tonken would be one of the first to be
laid off. I also find that Werner showed Campbell a list of
names, which included Tonken’s name, in a brown notebook,
and said they were the employees who would be laid off. I
further credit the testimony of Elliot Tonken that in late
April 1991 Werner asked him if he belonged to the Union,
and on Tonken’s admission that he did, asked Tonken if he
was there to cause trouble. Subsequently, Werner asked
Tonken to describe what the Union was like.
There is no evidence that James Lamson, Respondent’s
vice president, interrogated employees about their union ac-
tivities or the union activities of other employees, or that he
threatened employees with layoffs or unspecified reprisals
because they engaged in union activities. I find, however,
that there is credible evidence, much of it from Lamson,
himself, that he was aware of Elliot Tonken’s union member-
ship, as well as union membership by at least two other em-
ployees he hired for the Scarborough job, and he knew that
the Charging Party Union was interested in organizing the 3E
Company’s employees. He admitted that he did not hire Ben
Nest after Nest made the statement he would try to organize
Respondent if he was hired for the Scarborough job, and the
parties stipulated that the Charging Party Union filed an un-
fair labor practice charge concerning Respondent’s failure to
hire a number of applicants for jobs on the Scarborough job.
(The parties stipulated that the charge was dismissed as not
meritorious.) Lamson said that he suspected that there was
union activity at the Scarborough jobsite. Lamson was not
recalled to the witness stand to deny Werner’s testimony that
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The General Counsel does not have to establish that either Camp-
bell or Tonken, or any other employee, actually felt threatened by
Werner’s interrogation and threats, or that Respondent 3E Company
intended to produce that effect. The test is an objective one. As stat-
ed in Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055 (1st Cir.
1981), cited by the Respondent. It is enough to show that ‘‘the em-
ployer’s actions would tend to coerce a reasonable employee.’’
he told Lamson that employees were asking about the Union,
and Lamson told him not to get involved unless he wanted
to.
Although there is no evidence that Lamson had direct
knowledge of Werner’s interrogation of employees, or that
he knew that Werner threatened retaliation against employees
for engaging in union activities, there is ample evidence from
which it can be inferred that he opposed union organization
of his employees, as demonstrated by his refusal to hire a
job applicant who openly stated that if he was hired he
would try to organize the Company’s employees. From
Lamson’s failure to deny Werner’s testimony that he was au-
thorized by Lamson ‘‘to get into’’ the union talk on the job
if he ‘‘wanted to,’’ I find that not only did Lamson fail to
instruct Werner to remain neutral concerning union activity,
he implicitly authorized Werner to take whatever action he
wanted to with regard to union talk on the job. Viewed in
this context, l find that even if Werner’s statements and ac-
tions were not explicitly authorized by Lamson, he gave
Werner such broad discretion to act that Werner’s statements
and actions were within the scope of his employment.
IV.
Threatening employees, whether explicitly or implicitly,
with termination of employment if they engage in union ac-
tivities is a well-established violation of Section 8(a)(1).
Kona 60 Minute Photo, 277 NLRB 867 (1985); Baddour,
Inc., 281 NLRB 546, 548 (1986).
The Board’s test for determining whether interrogation of
employees concerning their union activities or the union ac-
tivities of other employees is violative of the Act is set out
in Rossmore House, 269 NLRB 1176, 1177 (1984), enfd. sub
nom. Hotel & Restaurant Employees Local 11 v. NLRB, 760
F.2d 1006 (9th Cir. 1985). In that case, the Board said that
the basic test for evaluating whether interrogations violate
the Act is ‘‘whether under all the circumstances the interro-
gation reasonably tends to restrain, coerce, or interfere with
rights guaranteed by the Act.’’ The Board went on to over-
rule the per se rule that it had established in PPG Industries,
251 NLRB 1146 (1990), stating that it ignored the reality of
the workplace at least with respect to an employer’s ques-
tioning of open and active union supporters about their union
sentiments, in the absence of threat or promises. The totality
of the circumstances test must be applied, even when the in-
terrogation is directed to employees whose union sympathies
are unknown. Sunnyvale Medical Clinic, 277 NLRB 1217
(1985). Some of the factors taken into consideration by the
Board in determining whether under the totality of the cir-
cumstances the interrogation was coercive include whether
the person interrogated was an open and active union sup-
porter whether there is a prior history of employer hostility
toward union supporters whether the questions were general
and nonthreatening, and whether the management official had
a casual and friendly relationship with the employee being
questioned. Sunnyvale Medical Clinic, supra at 1218.
Applying the Rossmore House totality of the cir-
cumstances standard to the facts as I have found them in this
case, I find that even when viewed in the reality of the work-
place, Foreman Paul Werner’s interrogation of Respondent’s
employees Charles Campbell and Elliot Tonken was threat-
ening and ‘‘reasonably tend[ed] to restrain, coerce, or inter-
fere’’ with their rights guaranteed by Section 7 of the Act,
and, therefore, the interrogation violated Section 8(a)(1) of
the Act. Also violative of Section 8(a)(1) were his thinly
veiled threats that the Company would terminate the employ-
ment of employees who engaged in union activities.
Although it appears that Tonken openly acknowledged his
union membership, the extent of Campbell’s union sym-
pathies or activities was unknown to Werner. It is clear from
the record that Werner did not have a ‘‘casual and friendly’’
relationship with either Campbell or Tonken, such as might
indicate to the two employees that his questioning of them
about their union activities was casual and nonthreatening.
To the contrary, his relationship with the employees on the
Scarborough job was strictly that of supervisor to subordi-
nates, and because of that sharply defined formal relation-
ship, the employees could reasonably conclude that anything
said by Werner to them represented the Employer’s position.
In the context in which it occurred, Werner’s interrogation
of Campbell and Tonken and his actions could reasonably
have been perceived by them as threatening and coercive,
and intended to discourage their participation in union activ-
ity or face loss of employment.4 Werner did not limit his
questioning of Campbell and Tonken to casual and friendly
inquiries. Instead, his interrogation and actions showed union
animus sufficient to coerce a reasonable employee. In Camp-
bell’s case, Werner not only questioned Campbell about his
union activities and the union activities of Tonken, but also
he went on to say that he did not like Tonken talking about
the Union on the jobsite, and then said that Tonken would
be one of the first laid off. The clear impact of that statement
was a threat that the Company would terminate the employ-
ment of employees who engaged in union activities. Subse-
quently, Werner reinforced that threat by showing Campbell
a list of names which included Tonken’s name, and identi-
fied the list as a list of employees who would be laid off.
Werner’s statements and actions were a clear warning to
Campbell that engaging in union activities would result in
being laid off by the Company. In Tonken’s case, Werner’s
inquiry about his union membership was immediately fol-
lowed by a demand to know if Tonken was there to cause
trouble. The reasonable implication of that question was that
Werner equated union membership with trouble for the Em-
ployer, something which Tonken could reasonably interpret
as a threat to his continued employment by 3E Company.
The unlawful interrogation of employees and threats by
Paul Werner are attributable to Respondent 3E Company,
even though there is no evidence that the Company’s man-
agement specifically authorized him to interrogate employees
or to threaten them with reprisals for engaging in union ac-
tivities. 3E Company Vice President James Lamson was fully
aware that there was union activity, though short of an orga-
nizing effort, at the Scarborough jobsite, and he gave his
subordinate permission to get involved in union activities of
the employees, if he wanted to, with the only limitation
being that he was not to let what he had to do at the job
be affected. By virtue of his supervisory position Werner was
173E CO.
clothed with the apparent authority to speak for the 3E Com-
pany. Lamson failed to place any restrictions, other than an
ambiguous admonition not to let what he had to do at the
job be affected, on Werner’s authority to take any action he
wanted concerning employee union activity at the jobsite.
Under these circumstances the 3E Company is responsible
for the violations of Section 8(a)(1) of the Act by its super-
visor (foreman) on the Scarborough, Maine job.
CONCLUSION OF LAW
By coercively interrogating employees about their union
activities and the union activities of other employees, and by
threatening employees with layoff or unspecified reprisals
because they engaged in union activities, Respondent 3E
Company, Inc. has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist.
[Recommended Order omitted from publication.]