Abell Engineering & Mfg.

National Labor Relations Board - Board Decisions

Oct 18, 2002

338 N.L.R.B. 434 (N.L.R.B. 2002)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 434
Abell Engineering & Manufacturing, Inc. and Sheet Metal
Workers’ International Association, Local Union No.
20, a/w Sheet Metal Workers’ International Associa-
tion, AFL–CIO. Cases 25–CA–25966 and 25–CA–
26263
October 18, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On September 13, 1999, Administrative Law Judge C. Rich-
ard Miserendino issued the attached decision. The General
Counsel and the Respondent each filed exceptions, supporting
briefs, and answering briefs. The Respondent also filed a reply to
the General Counsel’s answering brief. On June 22, 2000, the
Board invited the parties to file supplemental briefs addressing
the framework for analysis of refusal-to-consider and refusal-to-
hire allegations set forth by the Board in FES, 331 NLRB 9
(2000). The Respondent and the General Counsel subsequently
filed supplemental briefs.
The National Labor Relations Board has considered the deci-
sion and the record in light of the exceptions and briefs, and has
decided to affirm the judge’s rulings, findings, and conclusions
only to the extent consistent with this Decision and Order.
The consolidated complaint alleged, inter alia, that the Re-
spondent’s October 1998 discharge of employee Richard Gist
violated Section 8(a)(3) and (1) of the Act. Gist was terminated
for attempting to persuade fellow employee David Bautista to
quit the Respondent for a position with another employer, at
which membership in Local 20 of the Sheet Metal Workers (the
Union) was contractually required. The judge found that Gist’s
solicitation of Bautista to take another job was protected activity
and that the solicitation did not constitute “disloyalty” to the Re-
spondent that deprived Gist of the Act’s protection, on the
grounds that Gist’s objective was to “increase membership in the
Union” and there was no evidence that he would personally have
benefited from Bautista’s taking the union job. The judge conse-
quently found the discharge unlawful. Based on that finding, he
also found that the Regional Director’s revocation of a settlement
agreement resolving allegations of earlier violations of Section
8(a)(1) and (3) (including an earlier discharge of Gist) was per-
missible, and that the Respondent had committed a number of
the presettlement violations alleged.
The Respondent excepts to all of these findings, arguing that
Gist’s attempt to persuade Bautista to quit the Respondent’s em-
ploy was disloyal conduct that deprived him of protection,
whether or not his other activities were protected. Accordingly,
the Respondent contends the settlement agreement resolving the
other allegations in the complaint was not properly revoked and
should be reinstated. The General Counsel argues to the contrary
and contends that the allegations of earlier misconduct addressed
by the revoked settlement agreement are established in the re-
cord.
On the credited record, we reverse the judge and find that, un-
der the circumstances, Gist engaged in disloyal conduct that de-
prived him of whatever statutory protection he may otherwise
have had.
Although Gist had attempted to organize the Respondent’s
three-man welder/fabricator unit, the record establishes that he
gave up that attempt when neither of the other two employees,
including Bautista, was willing to sign a union authorization card.
Gist informed Union Organizer Michael Van Gordon of his
inability to recruit a unit majority. At Van Gordon’s instruction,
Gist then informed Bautista—who had expressed some interest
in union benefits and pension—that a higher paying job located
closer to his home was available with another employer who had
a union-shop contract, and urged him to take that job. Bautista
replied that he was not interested, but Gist raised the subject again
a few minutes later, emphasizing that the job at higher pay was
available for Bautista and urging him to contact Van Gordon if
he had any questions. Bautista then asked why Gist did not take
the job himself, and Gist replied that he already had something
else “set up.” Bautista informed the Respondent’s owner of what
Gist had said to him about the other job, and Gist was discharged
later that day, which was a Friday. The following Monday, Gist
started work with another employer, confirming that he had in-
deed “set up” another job for himself.
It is clear from these facts that Gist’s organizing activity had
ceased when he attempted to recruit Bautista to work for another
employer, and that he pursued Bautista with the full knowledge
that if Bautista took that job the Respondent would lose one of
only three employees in its welder/fabricator unit. Accordingly,
Gist’s attempts to induce Bautista to quit and take another job
were unrelated to organizing the Respondent’s employees or
improving their conditions of employment with the Respondent.
Moreover, his actions would have been deeply injurious to the
Respondent, leaving it with only one employee.1 Whatever the
impact of this conduct on a larger employer, better able to absorb
the loss of one or two employees simultaneously, here the im-
pact—as Gist was fully aware—would have been at least tempo-
rarily crippling, and possibly fatal, to the Respondent.
Under this set of facts, we find that Gist’s conduct ex-
ceeded the protections of the Act.2 The facts presented
here are most analogous to those in Clinton Corn Process-
ing, 194 NLRB 184 (1971) (former employee who became

1 When Gist sought to induce Bautista to quit, he had already ar-
ranged to take a job with another employer himself.
2 We need not decide what, if any, protection a union organizer
would have to induce an employee to quit for other employment in
some other factual context.
Members Cowen and Bartlett have strong doubts that there are any
factual circumstances where the Act would protect a union organizer
who induces an employee to quit for other employment. However, they
need not decide whether there are any such circumstances inasmuch as
they find that, in the circumstances here, Gist’s conduct was unpro-
tected.
338 NLRB No. 42
ABELL ENGINEERING & MFG. 435
agent for competitor was not protected when he solicited
respondent’s employees to work for competitor), and dis-
tinguishable from those in cases where the Board found
that the protection of the Act was not lost.3
Because Gist’s actions exceeded the Act’s protection,
the Respondent committed no violation of the Act in dis-
charging him for urging Bautista to take a job with another
employer.4 We therefore find that the discharge did not
constitute a valid basis for the Regional Director’s revoca-
tion of the settlement agreement concerning the allegations
of earlier violations of the Act. We will accordingly rein-
state the settlement agreement and dismiss the consoli-
dated complaint in its entirety.5
ORDER
The consolidated complaint is dismissed and the settle-
ment agreement in Case 25–CA–25966 is reinstated.

Raifael Williams, Esq., for the General Counsel.
James H. Hanson, Esq., of Indianapolis, Indiana, for the Re-
spondent.

3 See, e.g., Arlington Electric, 332 NLRB 845 (2000) (employee
who distributed union flyer advertising union-scale employment else-
where did not lose protection because he was not trying to induce em-
ployees to quit but rather to demand higher pay from respondent);
Technicolor Services, 276 NLRB 383 (1985) (distribution of employ-
ment applications for competitor was not disloyal because there was a
real possibility of layoff, and distribution was intended to ensure con-
tinued employment, not to injure respondent); Special Machine &
Engineering, Inc., 247 NLRB 884 (1980) (employee who posted an-
other employer’s wage rates was not disloyal because he did not urge
employees to leave respondent and posting, at most, merely invited
comparison of wages); QIC Corp., 212 NLRB 63 (1974) (group of
employees did not lose protection for attempting, on their own initia-
tive, to seek employment with competitor during pay dispute with
respondent); and Boeing Airplane Co., 110 NLRB 147 (1954), enf.
denied 238 F.2d 188 (9th Cir. 1956) (organizing a “manpower avail-
ability conference” to match engineers with prospective employers was
not disloyal conduct; conference was intended to leverage respondent’s
bargaining position on wages and also to counter employers’ “gentle-
men’s agreement” not to hire each other’s employees).
Member Cowen and Member Bartlett agree that the foregoing deci-
sions may be distinguished from Clinton Corn Processing, and that
doing so helps illustrate the unprotected nature of Gist’s conduct in the
instant case. However, they express no view regarding the merits of
those decisions.
4 Although the judge found that the Respondent acted with unlawful
animus with respect to the earlier alleged violations, he implicitly cred-
ited the Respondent’s contention that the discharge was motivated
solely by Gist’s attempt to persuade Bautista to work elsewhere and
not—as contended by the General Counsel—by his protected activity
of trying to organize the Respondent’s employees.
5 We therefore express no view as to the judge’s findings on the mer-
its of the complaint allegations of earlier misconduct. Our reinstate-
ment of the settlement agreement also makes it unnecessary for us to
consider the General Counsel’s limited exceptions to the judge’s dis-
missal of two refusal-to-consider allegations involving employee Wil-
liam Gary Rogers.
DECISION
STATEMENT OF THE CASE
C. RICHARDS MISERENDINO, Administrative Law Judge. This
case was tried in Indianapolis, Indiana, on June 7–8, 1999. The
charge in Case 25–CA–25966 was filed by Sheet Metal Work-
ers’ International Association, Local Union No. 20, a/w Sheet
Metal Workers’ International Association, AFL–CIO (Union)
on April 2, 1998,1 alleging that Abell Engineering & Manufac-
turing, Inc. (Respondent) violated Section 8(a)(1) and (3) of the
Act by refusing to hire or consider for hire union applicants
William Rogers, Dennis Wheeler, Charles Parsley,2 and Mark
Moran and by discharging on February 17, 1998, Union Organ-
izer Richard Gist because of their union activity. The charge
was amended on June 22, 1998, to allege that the Respondent
violated Section 8(a)(1) of the Act by threatening to close the
business if the employees chose to be represented by a union.
On July 31, 1998, the Union and Respondent entered into a
settlement agreement, which was approved by the Regional
Director, whereby the Respondent agreed to offer reinstatement
to Richard Gist, pay a specified amount of backpay to Mark
Moran, notify William Rogers that he, along with other appli-
cants, would be considered for employment on a non-
discriminatory basis, and post a notice. Gist was reinstated on
August 28, 1998, Moran was paid the gross amount of $2520,
Rogers was notified that he would be considered for employ-
ment if he applied, and a notice was posted from August 7 to
October 8, 1998. The Respondent filed a notice of compliance
on October 14, 1998.
In the meantime, however, on October 2, 1998, the Respon-
dent discharged Gist again and the Union filed the charge in
Case 25–CA–26263 alleging that the Respondent violated Sec-
tion 8(a)(1) and (3) of the Act by discharging Richard Gist
because he engaged in union activities.
On November 20, 1998, the Regional Director set aside the
settlement agreement and issued a consolidated complaint es-
sentially alleging the violations asserted in the charge, as
amended, in Case 25–CA–25966 and the charge in Case 25–
CA–26263.3 The Respondent’s timely answer denied the mate-
rial allegations of the complaint. The parties have been af-
forded a full opportunity to appear, present evidence, examine
and cross-examine witnesses, and file posthearing briefs.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent,4 I make the following
1 All dates are in 1998, unless otherwise indicated.
2 Charles Parsley is not named as an alleged discriminatee in this
case.
3 In addition, the consolidated complaint alleges that the Respondent
offered to re-employ Gist on February 17, if he resigned his member-
ship in the Union. (Complaint par. 5(b).)
4 On July 15, 1999, counsel for the General Counsel filed a motion
to strike Respondent’s posthearing brief on the grounds that it was
untimely filed. Respondent’s counsel responded on July 16, 1999.
Having duly considered the arguments raised therein and the trial tran-
script at p. 271, the motion to strike is denied.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 436
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Indiana corporation, is a small engineer-
ing and manufacturing company engaged in sheet metal fabri-
cating, stamping, shearing, and welding, located in Indianapo-
lis, Indiana, where during the 12-month period ending March
31, 1998, it purchased and received, sold, and shipped goods
valued in excess of $50,000 directly from and to points outside
the State of Indiana. The Respondent admits and I find that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
The Respondent also admits and I find that the Union is a la-
bor organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
1. Whether the Respondent discharged Richard Gist on Oc-
tober 2, 1998, because of union activities in violation of Section
8(a)(3) of the Act?
2. Whether the circumstances warrant revoking the settle-
ment agreement approved by the Regional Director on or about
July 31, 1998, and if so,
3. Whether the Respondent unlawfully:
(a) Told union applicants William Rogers and Dennis
Wheeler that it would close its business if the employees union-
ized in violation of Section 8(a)(1) of the Act.
(b) Offered Richard Gist re-employment on February 17,
1998, if he relinquished his union membership in violation of
Section 8(a)(1) of the Act.
(c) Refused to consider for hire William Gary Rogers since
October 28, 1997, in violation of Section 8(a)(1) and (3) of the
Act.
(d) refused to consider for hire and refused to hire Mark
Moran on February 11, 1998, in violation of Section 8(a)(1)
and (3) of the Act.
(e) Discharged Gist on February 17, 1998, in violation of
Section 8(a)(1) and (3) of the Act.
B. Presettlement Conduct
The Respondent, a small company which designs and manu-
factures mall kiosks and decorative metal pieces, is operated by
husband and wife George and Cheryl Abell. George Abell
(Abell), the president and owner, supervises the sheet metal
shop and is primarily responsible for interviewing and hiring
employees. Cheryl Abell (Cheryl), the secretary-treasurer,
oversees the office and bookkeeping duties, occasionally assists
in the shop, and occasionally assists with interviewing and
hiring.
In late October 1997, the Respondent employed about three
or four employees in its sheet metal shop. One of them, Wil-
liam Graves, a welder, was discharged by Abell for taking the
afternoon off without permission. Seeking to replace him,
Abell advertised for a replacement in the Indianapolis Star-
News on October 26–29.5 (GC Exhs. 3, 6, and 10.)

5 The ad, which appeared on October 26 and 27, sought a welder, the
ad which appeared on October 28 sought an operator, and separate ads
1. The October 1997 hirings
On the morning of October 28, union members William
Gary Rogers (Rogers) and Dennis Wheeler (Wheeler) re-
sponded in person to the advertisements. (Tr. 102; GC Exhs. 3
and 6.) Neither attempted to conceal their union affiliation.
Both wore union hats. Rogers submitted a completed applica-
tion, along with a resume, for a welder/fabricator position. His
application indicated that he was an organizer for the Union
and that he had 4 years of relevant welding experience (i.e.,
MIG, TIG, and heliarc). He also had experience using a plasma
cutter, hydraulic punch, shears and other sheet metal tools.
Wheeler submitted a completed application for a fabricator
position.6 His application likewise indicated that he was an
organizer for the Union.
George Abell interviewed Rogers and Wheeler together.
They told Abell that they were currently employed by the union
as organizers. They also told him that as organizers they ap-
plied for work at nonunion shops to try to organize the employ-
ees. Rogers and Wheeler testified that Abell told them that he
was not a union shop, that he previously had a bad experience
with a union, that he did not have many people working for
him, and that he did not need a union. According to Rogers and
Wheeler, Abell also said that if his employees decided to go
union, he would close the doors. (Tr. 105.) Abell denied mak-
ing the latter statement. (Tr. 241.)
Rogers and Wheeler were credible witnesses. Their respec-
tive testimonies were also corroborated by contemporaneous
writings, i.e., union interview logs, that were completed soon
after their interview ended. Both logs reflect that Abell said he
would close the business.
Respondent’s counsel unpersuasively argues that the inter-
view logs actually discredit their testimonies because they dif-
fer as to the order in which the conversation flowed. Rogers’
log noted that Abell said he would close the business early in
their conversation and Wheeler’s log noted that the statement
was made later. I do not attribute great significance to this dis-
crepancy because as a practical matter not everyone remembers
the same events in exactly the same way. What is important is
that both interview logs reflect that the statement was made and
that the event was recorded minutes after the interview ended.
That the logs differ to a degree enhances the integrity of the
documents as independent recollections because otherwise it
would seem as if Rogers and Wheeler copied from each other.
Adding credence to their testimonies is the fact that the
statement attributed to Abell fits with the other undisputed re-
marks that he made at the same time which show that he op-
posed unions. That is, Abell stated that he previously had a bad
experience with a union and that he did not need a union. (Tr.
153–154.)
The Respondent nevertheless asserts it is unlikely that Abell
made that remark because he gave Rogers a welding test and
told him that he was required to consider him for the job, even
though he was a union organizer. The Respondent essentially

appeared on October 29 for a welder and operator. (GC Exhs. 3, 6,
and 10.)
6 There is no evidence that a fabricator position was available at that
time.
ABELL ENGINEERING & MFG. 437
argues that the statement about closing the business that is at-
tributed to Abell is inconsistent with his actions and therefore
his denial should be credited. I do not agree. The welding test
was a part of the regular interview process. To deny Rogers the
opportunity to take the test would truly have set the stage for a
failure to consider violation. More importantly, the fact that
Abell followed the interview process does not make it any more
or less likely that he told these union applicants that if the em-
ployees ever unionized he would close the business.
Finally, having observed Abell’s demeanor, I find that his
denial was unconvincing. Thus, for demeanor, and other rea-
sons, I therefore credit the testimony of Rogers and Wheeler
that Abell stated that he would close the business if the em-
ployees decided to unionize.
After completing the welding test,7 Abell told Rogers and
Wheeler that he would be in touch, but they were never con-
tacted by Respondent.
On October 28, Paul Parker, a nonunion applicant, also ap-
plied for the welder’s job. He had previously worked with
Abell for several years at Gammon Sheet Metal and had 7 years
relevant experience as a welder. Abell considered him to be an
excellent welder and therefore hired him on the spot. According
to Abell’s unrebutted testimony, Parker was one of the first
applicants he interviewed on October 28, and that he inter-
viewed before Rogers and Wheeler.8
2. The February 1998 hirings
On January 13, 1998, Parker voluntarily quit. On February
8, Abell placed an ad in the local newspaper for a welder and
another ad on February 9 and 11 for a welder/fabricator.9 (GC
Exhs. 11, 12, and 17.) Several individuals who responded to the
ad were scheduled for interviews.
On February 10, at approximately 9 a.m., Abell interviewed
Jeff Evans, a nonunion applicant. He had 4 years of relevant
welding experience. Evans took a welding test, which he
passed, and was hired. At approximately 10 a.m., Abell inter-
viewed David L. Bautista, who had 9 years of relevant welding
experience. Although Abell was impressed with Bautista’s
qualifications and his welding skills, he did not offer him a job
because he was still living in California and was not immedi-
ately available for work.
A few hours later, at approximately 1 p.m., Richard Gist ap-
plied as a covert union applicant. He did not reveal that he was
a union member or wear any clothing that would suggest the
same. His application reflected that he worked for Zue Corpo-
ration as a welder at a pay rate of $9.50 hour. Abell and Fore-
man Neat gave Gist a welding test and were impressed. They
went to Abell’s office to discuss work experience and

7 Wheeler decided not to take the welding test because he was not
familiar with TIG welding. (Tr. 147.)
8 William C. Winesmann, another nonunion applicant, applied for a
job on October 29. He was referred by Shop Foreman Ed Neat, and was
hired for the operator position on that date. There is no evidence, or
argument, that either Rogers or Wheeler applied for that position.
9 As Abell explained, a fabricator has to shear, punch, and press to-
gether intricate metal pieces to form a subassembly. A welder fastens
the subassemblies together using different types of welding techniques.
A welder/fabricator can do both jobs. (Tr. 25–29.)
salary expectations. Abell testified that he offered Gist a job at
$10 an hour. Gist testified that when he asked for $11–12 per
hour, Abell told him that he would phone him the following
day after he conducted a few more interviews. That night, Abell
discussed the situation with his wife, Cheryl, and decided to
offer Gist $10.50 an hour. He called Gist on February 11, of-
fered him a welder job at $10.50 an hour with a pay raise in 6
months, which Gist accepted.
In the meantime, and after Gist left, union applicant Mark
Moran, overtly applied for the welder/fabricator position on
February 10. Moran submitted a completed application to
Abell showing that he was employed by the Union as an organ-
izer and attached a resume disclosing his union experience.
Moran listed Apex Industries as a former employer. Abell
asked Moran if Apex was a union contractor and Moran re-
sponded affirmatively. He also told Abell that he was em-
ployed by the Union as an organizer. Although Moran had 8
years of relevant welding experience, as well as experience as a
fabricator, Abell would not give him a welding test because he
was a union organizer and he wanted to hire a nonunion em-
ployee. (Tr. 51–52.) Abell admitted that he told Moran that he
“did not feel that it was in the best interest of the company to
hire someone who stated on his resume that he worked for the
Sheet Metal Workers and wanted to organize [the] company.”
(Tr. 51.) Abell nevertheless told Moran that he would be in
touch with him.
Finally, on February 11, Rogers and another union organizer,
Charles Parsley responded to the welder/fabricator ad. They
were wearing work clothes and union hats. Rogers told an em-
ployee of the Respondent that he wanted to check the status of
his application and Parsley said that he wanted to submit an
application. Neither were afforded the opportunity to do so.
3. Gist is discharged on February 17, 1998
On February 17, 3 days after he began working for Respon-
dent, Gist gave Abell a letter from union organizer Michael E.
Van Gordon advising Abell that Gist was a member and em-
ployee of the Union, who had been assigned by the Union to
organize the Respondent’s employees. Abell testified that when
he asked Gist why he did not disclose his union affiliation on
his application, Gist responded, “Well, I guess I falsified my
application. And you wouldn’t have hired me if I would have
put that on my application. So I guess that’s grounds for you to
dismiss me.” In contrast, Gist testified that when Abell looked
at the letter, Abell commented that Gist had lied to him and that
lying was possibly grounds for termination. In any event, Abell
did not discharge Gist at that point.
After lunch, Gist told Abell that he was taking the rest of the
afternoon off because he had a headache and sore neck from
wearing a welder’s helmet. Gist testified that Abell told him
that he was still thinking about firing him because he had lied
on his application. He also questioned whether Gist had ever
worked for Zue Corp. as stated in his application. Gist insisted
that he had worked there. Abell then told Gist that there was a
great deal of work to be done, and if he was not going to work,
he should get his “stuff and get out.” (Tr.172, 211.) According
to Gist, as he clocked-out, Abell told him that if he was to get
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 438
out of the Union, he would still have a job and he would be
paid what the Union was paying him.
Abell flatly denied that he told Gist that if he resigned from
the Union he could keep his job and would be paid at the union
pay rate. (Tr. 251.) However, a telephone conversation with
Gist that took place shortly after he was discharged undercuts
Abell’s credibility.
After leaving the Respondent’s premises, Gist went to the
union hall where he phoned Abell ostensibly to inquire about
his last paycheck. Unbeknown to Abell, Gist tape recorded
their conversation. (R. Exh. 18.) Gist told Abell that his boss,
Union Organizer Van Gordon, was upset with him because he
had taken off a half day. He asked Abell, “Were you serious
about what you said? If I was to quit here and go there, you
would pay me . . . What I was making?” Abell hesitated, and
then responded, “uh, uh, I would have to think about that be-
cause I don’t like to be deceived, ya know.” After some prod-
ding by Gist, Abell remarked that Gist was making $16 an
hour, and that he could not pay him that much money because
he did not even make that much himself.10
At that point, the transcript of the tape recorded conversation
shows that Abell undisputedly told Gist that he would have to
resign from the Union before he would take him back.

GIST: Yeah, so if I did jump out of here and went back
to you, if you, ya know, still wanted me, I would have a
position?
ABELL: Well, you would have to, uh, resign from the
Sheet Metal Workers Union.
GIST: Right, I realize that.
ABELL: I’d have to see that in writing.
GIST: Right.
ABELL: Well, I don’t know, because I don’t know if
you would ever truly resign from them anyway. You
would probably still try to organize a union here. [R. Exh.
18.]

This evidence corroborates Gist’s testimony about his conver-
sation at the timeclock with Abell and leaves little doubt that
resignation from the Union was a precondition for reemploy-
ment. For these, and demeanor reasons, I credit Gist’s testi-
mony that while he was clocking out on February 17, Abell told
him he could keep his job if he would resign from the Union
and that the Respondent would pay him the union pay rate.
4. Bautista is hired
In March 1998, Abell phoned Bautista, who was still living
in California, and offered him a welder’s job. He accepted and
began working for Respondent on March 31, 1998. He was
later promoted to foreman.
C. The Settlement Agreement
On or about July 29, 1998, the Union and Respondent en-
tered into an informal settlement agreement of the charge in
Case 25–CA–25966, which was approved by the Regional Di-
10 At no time during the telephone conversation did Abell ever deny
that he told Gist earlier that he would pay him the union rate if he
stayed, although he had ample opportunity to do so. This omission
lends credence to Gist’s version of their earlier conversation.
rector. It required, among other things, the Respondent to pro-
vide backpay to Mark Moran (without reinstatement); consider
William Rogers and any other applicant for employment on a
nondiscriminatory basis; offer Richard Gist full reinstatement
to his welder position (without backpay) (R. Exh. 12) and post
a notice stating that it would not tell applicants that it would
close the business if the employees decided to unionize and
offer or promise to rehire employees if they resigned their
membership in the Union. The notice also stated that the Re-
spondent would not discharge employees because of union
activity and would not refuse to hire or refuse to consider for
hire union applicants.
Gist accepted an offer of reemployment and returned to his
welder’s position on August 28, 1998. Moran was paid backpay
and Rogers was notified that he would be considered for em-
ployment on a nondiscriminatory basis. The notice was posted
from August 7 to October 8, 1998.
D. The Postsettlement Discharge of Gist
Soon after Gist returned to work, he began talking to the em-
ployees about joining the Union. On September 16, he dis-
cussed the pros and cons of unionizing with Evans and Bautista
in the breakroom and asked them if they wanted more informa-
tion. Evans immediately said no and left the breakroom.
Bautista asked for more information about benefits and pen-
sions. The following day, Gist gave Bautista the information
and an authorization card. Thus, out of the three nonsupervisory
shop employees (Evans, Bautista, and Gist), only Bautista
showed any interest in learning more about the Union. How-
ever, Bautista would not sign an authorization card.
By October 1, Gist had garnered little, if any, support for the
Union. He and Union Organizer Van Gordon therefore con-
ceived a plan to persuade Bautista to take a job with a union
contractor.
Shortly after arriving for work on October 2, Gist told
Bautista about a job paying $15 an hour with Nu-Jac, a union
contractor, on the west side of town, which was closer to where
Bautista lived. Bautista told Gist that he was not interested.
About 5 minutes later, Gist returned to tell Bautista that it was a
good job, and if he had any questions, he should talk to Van
Gordon. When Bautista asked Gist why he did not take the job,
if it was so “good,” Gist told him that he already had something
else set up.11
October 2 was also Bautista’s birthday. At lunchtime,
Cheryl Abell bought pizza for all of the employees and an of-
fice worker gave Bautista a birthday cake. During the celebra-
tion, Gist left the building and met Van Gordon in the parking
lot. Van Gordon gave Gist a birthday cake to give to Bautista,
which read “Happy Birthday from Local 20 Sheet Metal Work-
ers.” Gist went back inside and in the presence of everyone at
lunch presented Bautista with the cake telling him happy birth-
day from the Union.
As the pizza party concluded, Bautista told Abell that Gist
had told him about a job with a union contractor paying $15 an
11 The evidence shows that Gist was discharged by Respondent later
that day, Friday, October 2, and started work at Apex Industries on
Monday, October 5.
ABELL ENGINEERING & MFG. 439
hour. (Tr. 268.) Abell then met with Cheryl. He told her that
right after lunch, Gist came to him saying that the Union
wanted the Respondent “to join their ranks.” (Tr. 230.) He
also told her that Gist apparently had approached Bautista about
the Union because Bautista had confided to him that Gist had
offered him a job with a union contractor making $15 an hour.
(Tr. 230.) Cheryl wondered aloud whether they had “to put up
with this.” However, because they had rehired Gist under the
terms of the settlement agreement, they were unsure of their
legal rights. Abell left for a meeting, so Cheryl phoned their
attorney.
After speaking with their lawyer, Cheryl went out to the pro-
duction area, where Bautista and Gist were working. In the
presence of Gist, Cheryl asked Bautista if Gist had offered him
a job making $15 an hour, and Bautista responded, “Yes.”
Cheryl then told Gist to get his tools and get out.
E. Analysis and Findings
1. The unlawful discharge of Richard Gist on October 2, 1998
The primary issue here is whether Gist was engaged in pro-
tected union activity at the time he was discharged. If so, the
Respondent must show that it would have discharged him even
in the absence of protected union activity. If not, then no viola-
tion occurred.
Section 7 of the Act, in pertinent part, states:

Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage
in other concerted. [Emphasis added.]

The undisputed evidence shows that Gist sought to assist the
Union in two ways. First, he unsuccessfully tried to organize
the sheet metal shop employees. He spoke to them about the
benefits of joining the Union, passed out information, and tried
to get Bautista to sign an authorization card. In addition, and at
the direction of Union Organizer Van Gordon, he attempted to
persuade Bautista to take a job with a union contractor, which
would have required Bautista to join the Union. The evidence
discloses that when Gist told Bautista about a job on the west
side of town with a union contractor that paid $15 an hour, he
also told him that he would have to join the Union in order to
get the job. (Tr. 188.) Thus, the evidence supports a reason-
able inference that Gist (and Van Gordon) sought to assist the
Union by attempting to do indirectly, what they could not do
directly, that is, obtain another member for the Union. I there-
fore find that Gist’s conduct falls within the broad protective
ambit of Section 7 of the Act.
The Respondent does not argue that Gist was not engaged in
protected activity. Rather, it asserts as a Wright Line12 defense
that it discharged Gist for cause because he breached a duty of
loyalty owed to the Respondent under Indiana and Board law.13

12 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
13 The evidence shows, and the Respondent on brief effectively con-
cedes, that the General Counsel has satisfied his initial evidentiary
burden under Wright Line. The Respondent therefore elected to focus
on its Wright Line defense.
It cites Potts v. Review Board of the Indiana Employment Secu-
rity Division, 475 N.E.2d 708, 711 (Ind. Ct. App. 1985), and
Davis v. Eagle Products, 501 N.E.2d 1099 (Ind. Ct. App.1986),
for the proposition that “an employee must refrain from ac-
tively or directly competing with his employer for customers
and employees and must continue to exert his best efforts on
behalf of the employer.” (R. Br. at 18.)
Those cases are inapposite for two reasons. First, neither
case involves union or concerted activity and therefore the
spectrum of Section 7 of the Act was not invoked. Second, in
both cases, the employees engaged in a course of conduct
which sought to inure a benefit for themselves. In Potts, an
unemployment insurance case, the employee was discharged
after his employer found out that he had invested money in a
competing taxicab company. The State Court found that the
employee had breached his duty of loyalty because his own
interests were potentially antagonistic to those of his employer.
In Davis, two employees who planned to leave their employer
to form a rival company solicited fellow employees to come
work for them. They breached a duty of loyalty because while
still employed by placing their own self-interests above those of
their employer. In the present case, there is no evidence that
Gist sought to derive a benefit for himself or the union contrac-
tor. Thus, neither of these cases address the factual issue pre-
sented here.
The Respondent also argues that Board law supports its de-
fense citing Crystal Linen & Uniform Service, 274 NLRB 946
(1985). In that case, striking route driver salesmen were per-
manently replaced. They went to work for a competing com-
pany and individually solicited their former customers to switch
their business from their employer to its competitor. After they
received a formal written warning from their employer direct-
ing them to cease such conduct or face further discipline, in-
cluding discharge, the striking drivers filed an 8(a)(1) charge
which was pursued to trial. The administrative law judge, as
affirmed by the Board, determined that there was no violation
of the Act. Significantly, he found that, in soliciting their for-
mer customers, the employees were not engaged in concerted
activity. “It could not be reasonably argued that solicitation of
former customers contributed to the advancement of strike
goals or to union solidarity. The purpose of activity was to
advance individual goals and objectives, rather than any group
benefit.” Id. at 948. This was a fatal defect in the case, which
warranted dismissal of the complaint.14
Crystal Linen is readily distinguishable by virtue of the fact
that Gist was engaged in protected union activity. Indeed, the
object of his conduct was not to advance any individual goal,
rather it was increase membership in the Union by persuading
Bautista to go work for a union contractor. There is no evidence
that Gist stood to personally benefit if Bautista took the job at
Nu-Jac and there is no evidence that Nu-Jac was the Respon-
dent’s competitor. Thus, I find that Gist did not breach a duty
14 The administrative law judge alternatively noted that “employees
who compete with their employer and who solicit the employer’s cus-
tomers to switch to the competitor are disloyal and may properly be
disciplined or threatened with discipline.” Id. at 949.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 440
of loyalty to the Respondent under Indiana or Board law and
that his conduct was protected under Section 7 of the Act.
The Respondent has not asserted any other reason for the
discharge. There is no evidence that Gist engaged in other unre-
lated and indefensible conduct which would demonstrate that
the same action would have taken place even in the absence of
the protected conduct. To the contrary, the Respondent’s de-
fense is based on the same evidence showing that Gist’s con-
duct was protected under Section 7 of the Act. Thus, I find that
the Respondent has failed to prove that Gist would have been
discharged in the absence of the protected union activity. Time-
keeping Systems, Inc., 323 NLRB 244 (1997).
Accordingly, I find that the Respondent unlawfully dis-
charged Gist on October 2, 1998, in violation of Section 8(a)(3)
of the Act.
1. Revocation of the settlement agreement was justified
A settlement agreement can be set aside and unfair labor
practices can be found based on presettlement conduct, if post-
settlement unfair labor practices have been committed. Out-
board Marine Corp., 307 NLRB 1333 (1992). Gist returned to
work as part of the settlement agreement in response to the
allegation that he was unlawfully discharged on February 17 for
engaging in protected union activity. The evidence shows that
during the notice posting period, he was unlawfully discharged.
I therefore find that revocation of the settlement agreement was
justified. Accordingly, I now consider the alleged presettlement
violations.
2. The presettlement 8(a)(1) violations
Paragraph 5(a) of the consolidated complaint alleges that
Abell told union applicants Rogers and Wheeler that he would
close his business if the employees selected a union as their
collective-bargaining representative. I already have credited
their testimonies concerning this allegation and in light of that
determination I find that Abell’s assertion tends to interfere
with rights of employees under Section 7 of the Act. Accord-
ingly, I find that the Respondent violated Section 8(a)(1) of the
Act.
Paragraph 5(b) of the consolidated complaint alleges that
Abell telephonically offered Gist reemployment if he relin-
quished his membership in the Union. The credible evidence
shows that after being discharged on February 17 Gist phoned
Abell from the union hall. The conversation, tape recorded by
Gist, in pertinent part, discloses the following.

GIST: Yeah, so if I did jump out of here and went back
to you, if you, ya know, still wanted me, I would have a
position?
ABELL: Well, you would have to, uh, resign from the
Sheet Metal Workers Union.
GIST: Right, I realize that.
ABELL: I’d have to see that in writing.
GIST: Right.
ABELL: Well, I don’t know, because I don’t know if
you would ever truly resign from them anyway. You
would probably still try to organize union here. [R. Exh.
18.]

Thus, the evidence shows that Abell introduced the idea of
resigning during the conversation and preconditioned Gist’s
reemployment on resigning from the Union. Accordingly, I find
that the Respondent violated Section 8(a)(1) of the Act.
4. The presettlement 8(a)(3) allegations
Paragraph 6(a) of the consolidated complaint alleges that
since on or about October 27, 1997, the Respondent has refused
to consider for hire William Rogers because of his union
affiliation. Wright Line, supra, establishes the analytical frame-
work for deciding refusal-to-consider/hire discrimination cases
turning on employer motivation. The General Counsel must
persuasively establish that the evidence supports an inference
that protected conduct was a motivating factor in the em-
ployer’s decision.15 Specifically, the General Counsel must
establish that the alleged discriminatee submitted an employ-
ment application, was a union member or supporter, known
suspected to be a union supporter by the employer, who har-
bored antinunion animus, and who refused to consider and/or
hire the alleged discriminatee because of that animus. Big E’s
Foodland, 242 NLRB 963, 968 (1979). Inferences of animus
and unlawful motive may be inferred from the total circum-
stances proved and in some circumstances may be inferred in
the absence of direct evidence. Fluor Daniel, Inc., 304 NLRB
970 (1991). Once accomplished, the burden shifts to the em-
ployer to persuasively establish by a preponderance of the evi-
dence that it would have made the same decision even in the
absence of protected activity. T&J Trucking Co., 316 NLRB
771 (1995).
a. The alleged refusal to consider Rogers for hire on
October 28, 1997
There is no dispute that Rogers submitted a completed appli-
cation and resume for employment on October 28 and that he
did not conceal the fact that he was an organizer employed by
the Union. The credible evidence also shows that Abell told
Rogers that he was opposed to unionizing and why, as well as
what would happen if his employees did chose a union to repre-
sent them.16 Abell nevertheless took the application, inter-
viewed Rogers (and Wheeler), and gave Rogers a welding
test,17 all of which are part of the hiring process. Thus, the evi-
dence shows that Rogers was “considered” for hire.
That Rogers was not hired on October 28 does not change
this conclusion. The Respondent persuasively argues that by the
time Abell interviewed Rogers on October 28, he had already
hired former coworker Paul Parker who had more welding ex-
perience than Rogers. Counsel for the General Counsel does
not argue, and there is no credible evidence, that Parker was not
hired before Rogers. Thus, the evidence fails to show that the

15 Manno Electric, 321 NLRB 278 fn. 12 (1996).
16 Other evidence of animus is Abell’s statement to Moran on Febru-
ary 10, 1998, that “he did not feel that it was in the best interest of the
Company to hire someone who stated on his resume that he worked for
the Sheet Metal Workers and wanted to organize [the] Company” (Tr.
51), and his statement to Gist that he would reemploy him if he re-
signed from the Union.
17 Wheeler declined to take the test because he did not have the re-
quired welding skills.
ABELL ENGINEERING & MFG. 441
Respondent refused to consider William Rogers for hire on
October 28, 1997.
b. The refusal to consider Rogers for hire
on February 11, 1998
The undisputed evidence shows that on February 10, 1998,
Abell interviewed and hired Jeffrey Evans for the
welder/fabricator position. The credible evidence also shows
that on the same day, Abell interviewed Gist after Evans. Even
though Abell had not planned to hire two employees, he was so
impressed with Gist’s experience and welding skills, that he
made him an offer at $10 an hour, which Gist turned down.
Unsure what pay rate Gist might accept, Abell continued with
the interviews. After discussing the matter that evening with his
wife, Cheryl, Abell called Gist the next day February 11, and
offered him a job at $10.50 an hour, which Gist accepted.
Sometime on February 11, Rogers and fellow union appli-
cant, Charles Parsley, went to the Respondent’s office. Rogers
wanted to check the status of his earlier application and Parsley
wanted to submit an application. Both were wearing union hats.
Rogers was not given the opportunity to review his file and
Parsley was not given an application. The Respondent did not
explain why, except to argue on brief that the position was
filled when Abell offered the job to Gist. However, the General
Counsel has not shown that a job was available at the time they
applied. There is no evidence that Rogers applied before Gist
accepted the job nor is there any evidence that as part of its
normal hiring process the Respondent considers applications
kept on file. There is no evidence that the Respondent inter-
viewed any job applicants after Gist accepted the job offer on
February 11 or after Rogers and Parsley left the Respondent’s
offices.
As a part of his initial evidentiary burden, the General Coun-
sel must establish that a job was available when Rogers applied
on February 11. He has failed to do so. Thus, no violation can
be found. Accordingly, I shall recommend that the allegations
of paragraph 6(a) be dismissed.
c. The unlawful refusal to consider and refusal to hire
Mark Moran on February 10, 1998
Paragraph 6(b) of the consolidated complaint alleges that the
Respondent refused to consider for employment and refused to
hire Mark Moran because of his union affiliation. The evidence
shows, and the Respondent does not dispute, that the General
Counsel has satisfied his initial evidentiary burden under
Wright Line. Rather, the Respondent argues on brief that it did
not violate the Act because Abell had already hired Evans and
offered Gist a job at the time Moran applied for employment.
The Respondent asserts that if either individual had turned
down the offers or not shown up for work as expected, then a
position would have been available. The evidence, however,
does not support the argument.
It is undisputed that Evans was the first interviewed and first
hired on February 10. It is also undisputed that Abell decided to
hire another welder after interviewing Gist. The evidence stops
short, however, of establishing that there was a job offer out-
standing to Gist when Moran sought to apply for the job later
that day. Rather, it shows that Abell was impressed with Gist’s
experience and skills and offered him $10 an hour, but Gist
wanted $11–12 an hour. (Tr. 245, 170.) In other words, he re-
jected the $10-an-hour job offer. At that point, the unrebutted
testimony of Gist is that Abell told him he would contact him
the next day after interviewing some other people. (Tr.170.)
One of those applicants was Moran, who submitted an appli-
cation showing that he was an organizer for the Union and who
told Abell the same. Although Moran had 8 years of relevant
welding experience, as well as experience as a fabricator, Abell
did not give him a welding test, which was part of the interview
process, because Moran was employed as an organizer for the
Union. Abell admitted that he told Moran that he “did not feel
that it was in the best interest of the Company to hire someone
who stated on his resume that he worked for the Sheet Metal
Workers and wanted to organize [the] Company.” (Tr. 51.)
Thus, the evidence establishes that at the time Moran applied
for the employment, the welding position was available and
there was no job offer outstanding to Gist. I therefore find that
the Respondent failed to consider Moran for hire because of his
union affiliation.
The undisputed evidence shows that Moran was not hired by
the Respondent. In order to prove that it would not have hired
Moran even in the absence of his union affiliation, the Respon-
dent must show that Gist was more qualified than Moran for the
job. The Respondent does not argue and has submitted no evi-
dence showing that Gist was the better candidate of the two. I
therefore find that the Respondent has not satisfied its eviden-
tiary burden.
Accordingly, I find that on February 11, 1998, the Respon-
dent failed to consider and failed to hire Mark Moran for the
welding/fabricator position in violation of Section 8(a)(3) of the
Act.
d. The unlawful discharge of Richard Gist
on February 17, 1998
Paragraph 6(c) of the consolidated complaint alleges that
Gist was unlawfully discharged on February 17 because of his
union activity. The Respondent’s Wright Line defense is that
Gist would have been discharged in any event because he was
insubordinate and because the Respondent has treated similarly
situated employees in the same manner. Abell testified that
Gist gave him an ultimatum when he told him he was leaving
because he had a sore neck and headache from welding. He
also testified that a few months earlier he terminated a nonun-
ion employee, William Graves, who similarly told him that he
was taking the afternoon off.
Gist credibly testified, however, that when he told Abell that
he was leaving, Abell said that he was thinking about firing him
anyway for falsifying his application (i.e., failing to write down
that he was an organizer for the Union). (Tr. 172.) While Abell
denied that Gist was discharged for being a union organizer, he
did not deny making that statement. This evidence therefore
calls into question whether Abell would have perceived Gist’s
statement as an “ultimatum” had it not been for the fact that
earlier that day, Gist gave him a letter from the Union stating
that he was an organizer. In other words, the evidence supports
a reasonable inference that he was already contemplating firing
Gist because he did not tell him that he was a union organizer.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 442
Also, the credible evidence shows that Abell was willing to
treat Gist differently than Graves if he resigned from the Union.
Gist credibly testified that as he clocked out on February 17,
Abell told him that if he got out of the Union, he could keep his
job and get paid the union pay rate. A few hours later, Abell
repeated again that resigning from the Union was a precondi-
tion of reemployment. Thus, despite the so-called ultimatum
defense, the evidence shows that Abell was willing to retain
and/or reemploy Gist if he resigned from the Union. The evi-
dence therefore supports a reasonable inference that Abell
would not have terminated Gist in the first place, but for his
union activity. Accordingly, I find that the Respondent violated
Section 8(a)(3) of the Act by discharging Richard Gist on Feb-
ruary 17, 1998.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
engaging in the following conduct.
(a) Telling applicants for employment that it would close the
business if the employees selected a union to represent them for
collective-bargaining purposes.
(b) Telephonically offering a former employee re-employ-
ment if he relinquished his membership in the Union.
4. The Respondent violated Section 8(a)(3) of the Act by
engaging in the following conduct.
(a) Refusing to consider for hire and refusing to hire Mark
Moran on February 10, 1998.
(b) Discharging Richard Gist on February 17, 1998.
(c) Discharging Richard Gist on October 2, 1998.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent has not otherwise engaged in any other
unfair labor practice alleged in the complaint in violation of the
Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that the Respondent refused to consider for
hire and refused to hire Mark Moran in violation of Section
8(a)(3) and (1) of the Act, I shall recommend that the Respon-
dent be ordered to immediately offer him employment at the
rate paid welders/fabricators hired by the Respondent with
commensurate experience; if necessary, terminating the ser-
vices of employees hired in his stead, and to make him whole
for wage and benefit losses that he may have suffered by virtue
of the discrimination practiced against him computed on a quar-
terly basis as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), less any interim earnings, with the amounts due and
interest thereon computed in accordance with New Horizons for
the Retarded, 283 NLRB 1173 (1987).
Having found that the Respondent unlawfully discharged
Richard Gist in violation of Section 8(a)(3) and (1) of the Act, I
shall recommend that the Respondent reinstate him to his for-
mer job or, if such job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or other
rights and privileges previously enjoyed; if necessary, terminat-
ing the services of employees hired in his stead, and to make
him whole for wage and benefit losses that he may have suf-
fered by virtue of the discrimination practiced against him for
the period February 17 through August 28, 1998 (the date of
the first discharge to the date of reinstatement), and from Octo-
ber 2, 1998, to the date the Respondent offers reinstatement,
computed on a quarterly basis as prescribed in F. W. Wool-
worth Co., supra, less any interim earnings, with the amounts
due and interest thereon computed in accordance with New
Horizons for the Retarded, supra.
[Recommended Order is omitted from publication.]