American Steel Erectors, Inc.

National Labor Relations Board - Board Decisions

Aug 26, 2003

339 N.L.R.B. 1315 (N.L.R.B. 2003)

AMERICAN STEEL ERECTORS, INC. 1315
American Steel Erectors, Inc. and David Paquette.
Case 1–CA–37051
August 26, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA, AND MEMBERS LIEBMAN
AND SCHAUMBER
On March 2, 2000, Administrative Law Judge Richard
H. Beddow Jr. issued the attached decision. The General
Counsel 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 decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.
At issue before us is whether David Paquette, an ap-
prentice coordinator and instructor for the International
Association of Bridge, Structural, Ornamental and Rein-
forcing Iron Workers, Local 474, lost the protection af-
forded to Section 7 concerted activity when he voiced his
objections to the Respondent’s application for certifica-
tion of its apprenticeship program.
Facts
The Respondent presented its apprenticeship program
for certification at a February 20, 1997 meeting of the
New Hampshire Apprenticeship Council. Paquette was
present at the meeting but did not speak. Paquette there-
after attended council meetings on May 1, June 12, and
August 25. Representatives of the Respondent, including
its president, Raymond Cilley, were present at these
meetings. At each meeting, Paquette voiced his opposi-
tion to the Respondent’s apprenticeship program, chal-
lenging the Respondent’s safety record, workers’ com-
pensation coverage, and ability to offer comprehensive
training.
At the May meeting, Paquette brought the results of a
safety record search of the Respondent’s business that he
received in response to a request he submitted to the Oc-
cupational Safety and Health Administration. After the
Respondent stated that it had an excellent safety pro-
gram, Paquette stood up and let the OSHA document
unfold to the floor. At trial, Paquette acknowledged that
he later learned that the Respondent was not responsible
for all of the violations listed on that document.
At the same meeting, Paquette alleged that from November
1, 1996, through November 30, 1996, the Respondent, who
was working on a project in Massachusetts, did not have
workers compensation insurance in that State. The apparent
basis for Paquette’s assertion was that the Massachusetts In-
dustrial Accidents Board, in response to an inquiry by
Paquette, had sent Paquette a letter stating that they had no
record concerning the Respondent. A representative of the
Respondent’s insurance company was present at the meeting
when Paquette made his allegation. He disputed Paquette’s
statement, and he presented documents to support his asser-
tion. At that point, Paquette stood up and, using his cellular
telephone, called the Massachusetts Industrial Accidents
Board. He asked one of the council members to “please talk
to somebody that there was a lapse according to the informa-
tion that I have.” No council member accepted his offer.
At the next meeting, in June, Cilley presented a memo
on which he had crossed out a majority of the alleged
OSHA violations that Paquette had shown to the council
at the previous meeting. Cilley testified that while
OSHA had cited Respondent for violations, the Respon-
dent was not responsible for a number of the violations
listed on Paquette’s document. He specifically disputed
Paquette’s claim that the Respondent was liable for 22
out of the 30 violations.1 Paquette insisted to the council
that the “cross outs” were inaccurate. However, Paquette
never contacted OSHA for an updated or corrected list.
At one meeting, Paquette told the Council that “putting
ironworkers up on the steel is like throwing babies into
the Merrimack River if they worked for [the Respon-
dent].” At the August 1997 meeting, the Council voted
to approve the Respondent’s request for certification of
its apprenticeship program.
In September 1998, the Respondent sought iron work-
ers through the New Hampshire Department of Unem-
ployment and Training. Paquette, who had 20 years’
ironwork experience and was about to lose his job with
the Union, contacted Catherine Sanderson, the Respon-
dent’s human resource and payroll administrator, and
inquired about the position. Paquette asked Sanderson
whether the Respondent would hire a union ironworker.
Sanderson replied that the Respondent considered only
an applicant’s experience, not his or her union affiliation.
Sanderson told Paquette that she would get back to him
regarding when he could come in for an interview.
Paquette then told Sanderson that working for the Re-
spondent would be an opportunity to organize its em-
ployees, and Sanderson replied “really.”
Approximately 2 weeks later, Sanderson telephoned
Paquette. She asked him if he was the same David
Paquette who had attended the Apprenticeship Council
meetings in 1997. Paquette informed her that he was
indeed the same person. Sanderson then informed
Paquette that the Respondent was denying his application
based on his actions at the council meetings.

1 The record reveals that the Respondent was responsible for, at
most, 11 of the alleged 30 violations listed in the OSHA report, includ-
ing one fatality about 8 years earlier.
339 NLRB No. 152
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1316
The Respondent’s president, Cilley, testified that he
decided not to consider Paquette for a position because
he “didn’t personally like [Paquette] based on conduct at
a meeting . . . .” Ultimately, the Respondent hired three
employees between September 1998 and March 1999,
including a class II Ironworker and two apprentices. On
July 28, 1999, the Regional Director issued a complaint
alleging that the Respondent violated the Act by refusing
to consider Paquette for hire because of his affiliation
with and his concerted activities on behalf of the Union.
Judge’s Decision
The judge recommended dismissal of the complaint.
The judge found that the General Counsel failed to pro-
vide evidence sufficient to support an inference of anti-
union animus on behalf of the Respondent. Specifically,
the judge noted that the Respondent never displayed hos-
tility toward the Union, did not have a history of reject-
ing applications from union members, and had no record
of unfair labor practices. The judge determined that the
Respondent reasonably believed that Paquette’s state-
ment to the Council equating working for the Respondent
with throwing babies into the river was an “outrageous
and defamatory exaggeration[ ].” The judge character-
ized Paquette’s assertions regarding the Respondent’s
safety record and insurance compliance as “flamboyant
misrepresentations.” The judge further stated that it
would not be unreasonable to conclude that Paquette’s
conduct was reckless enough to separate his personal
behavior from the res gestae of his alleged protected ac-
tivity. In sum, the judge concluded that “at best, the
General Counsel ha[d] made a weak case” of showing
that the basis for Respondent’s refusal to consider
Paquette for hire was his protected activity.
In considering the Respondent’s affirmative defenses,
however, the judge determined that the Respondent pro-
duced sufficient evidence to rebut the General Counsel’s
case. The judge found that the Respondent had legiti-
mate nondiscriminatory business reasons for refusing to
consider Paquette for employment, i.e., that someone
with Paquette’s demeanor would not fit very well with
the other workers and that Paquette’s interest in the posi-
tion was not sincere. The judge specifically noted that
the record “fail[ed] to show that Paquette was not con-
sidered for hire for any other reason than his offensive,
intemperate language and provocative conduct in front of
the person in Respondent’s company who had the pri-
mary hiring authority.” Accordingly, the judge recom-
mended dismissal of the complaint.
Discussion
It is undisputed that the Respondent refused to con-
sider Paquette for employment because of his conduct
before the Council. Thus, the only issue before us is
whether this conduct was or was not protected under the
Act. Once that is decided, our inquiry ends. See Neff-
Perkins Co., 315 NLRB 1229 fn. 2 (1994) (Wright Line
analysis unnecessary in single-motive case).
Since this case can be resolved based on the content
and manner of the statements made by Paquette before
the Council, we need not address whether there is record
evidence sufficient to support a conclusion that Paquette
was engaged in protected concerted activity at the time.
For purposes of this decision we will assume arguendo
that Paquette’s appearances before the Council consti-
tuted protected concerted activity. However, the “fact
that an activity is concerted . . . does not necessarily
mean that an employee can engage in the activity with
impunity.” NLRB v. City Disposal Systems, 465 U.S.
822, 837 (1984). Thus, although the Board has recog-
nized that not every impropriety committed during con-
certed activity places the employee outside the protection
of Section 7 (CKS Tool & Engineering, Inc. of Bad Axe,
332 NLRB 1578 (2000)), and the employee’s right to
engage in concerted activity must permit some leeway
for impulsive behavior (Thor Power Tool Co., 351 F.2d
584, 587 (7th Cir. 1965)), nevertheless, under certain
circumstances, concerted activity may lose the Act’s pro-
tection. When an employee is discharged for conduct
that is part of the res gestae of protected concerted activi-
ties, the pertinent question is whether the conduct is so
egregious as to take it outside the protection of the Act.
Consumers Power Co., 282 NLRB 130, 132 (1986). In
making this determination, the Board examines the fol-
lowing factors: (1) the place of the discussion; (2) the
subject matter of the discussion; (3) the nature of the
employee’s outburst; and (4) whether the outburst was,
in any way, provoked by an employer’s unfair labor
practice. Atlantic Steel Co., 245 NLRB 814, 816 (1979).
The same factors are relevant here, in the context of a
refusal-to-hire allegation.
Addressing the first two factors, we note that
Paquette’s conduct occurred during a public meeting of
the Apprenticeship Council, the purpose of which was to
evaluate and determine whether to certify the Respon-
dent’s apprenticeship program. The forum was, there-
fore, an appropriate place for Paquette to voice his con-
cerns regarding the Respondent’s program. The subject
matter that Paquette addressed before the Council, safety
records and insurance compliance, was also appropriate
to the occasion and would ordinarily fall within the realm
of protected concerted activity. Nonetheless, while the
place and subject matter may have been appropriate, the
manner in which Paquette conducted himself fell outside
the boundaries of protected activity.
AMERICAN STEEL ERECTORS, INC. 1317
During one meeting, Paquette told the Council that
“putting ironworkers up on steel is like throwing babies
into the Merrimack River if they worked for [the Re-
spondent].” Although Paquette did not use obscenities
and was not loud or threatening, this statement warrants
loss of the protection of the Act. Using vivid imagery,
Paquette’s comments portrayed the Respondent as a con-
cern with a callous indifference to the safety of its em-
ployees. Simply put, Paquette’s public statement was
sufficiently extreme to warrant forfeiture of his Section 7
protection. See Boaz Spinning Co. v. NLRB, 395 F.2d
512 (5th Cir. 1968).
The record does not indicate that Paquette’s comments
were made in the heat of the moment, nor that he was
responding to unlawful or provocative behavior by the
Respondent. Cf. NLRB v. Vought Corp., 788 F.2d 1378,
1384 (8th Cir. 1986) (“[E]mployer may not rely on em-
ployee conduct that it has unlawfully provoked as a basis
for disciplining an employee.”) (quoting NLRB v. South-
western Bell Telephone Co., 694 F.2d 974, 978 (5th Cir.
1982)). Paquette’s disparaging remarks occurred in the
absence of any labor management dispute. Rather, the
only provocation for Paquette’s conduct was the Re-
spondent’s submission, over a several month period, of
an application for certification of its apprenticeship pro-
gram.
Our dissenting colleague points out that Paquette owed
the Respondent no duty of loyalty at the time he made
his offensive statements. That is correct, but, as the dis-
sent acknowledges, the issue is whether Paquette’s
statements rendered him unfit for future employment
with the Respondent. See Dreis & Krump, 221 NLRB
309, 315 (1975) (standard is whether remarks were “so
flagrant, violent, or extreme as to render the individual
unfit for further service”). We are satisfied that
Paquette’s remarks satisfied that standard.
In sum, we find that, even assuming that Paquette was
initially engaged in protected activity when he opposed
the Respondent’s application for certification of its ap-
prenticeship program, Paquette lost any protection af-
forded by Section 7 when, through use of deliberate and
outrageous exaggerations, he accused the Respondent of
unsafe practices. Therefore, the Respondent’s decision
not to consider Paquette for hire was privileged, and dis-
missal of the complaint is proper.
ORDER
The recommended Order of the administrative law
judge is adopted, and the complaint is dismissed.

MEMBER LIEBMAN, dissenting.
The Supreme Court has made clear, and the Board has
repeatedly found, that the National Labor Relations Act
protects extreme language.1 In a presentation to a state
agency that oversees employers’ apprenticeship pro-
grams, union employee David Paquette criticized the
Respondent’s job-safety record and argued that the Re-
spondent’s apprentice ironworkers were at serious risk.
According to Paquette, the Respondent’s “putting iron-
workers up on steel is like throwing babies into the Mer-
rimack River . . . .” The majority finds that this state-
ment was outside the protection of the Act, permitting
the Respondent to refuse to consider Paquette for em-
ployment, on the basis of the statement. To my mind,
however, Paquette was guilty of nothing more than hy-
perbole.
Paquette was a paid advocate, seeking to persuade a
state agency, and his statement should be assessed in that
context. It may be true, as the majority points out, that
“Paquette’s disparaging remarks occurred in the absence
of any labor management dispute”: Paquette’s union did
not represent the Respondent’s employees and was not
seeking to organize them. Whatever the significance of
that fact, it is also true that Paquette was not an employee
of the Respondent when he made his statement: he owed
the Respondent no duty of loyalty then. The issue, of
course, is not whether the Respondent was privileged to
discipline or discharge a current employee, but whether it
was free to refuse to consider Paquette for employment,
after he left his union position. In this context, we
should ask whether Paquette’s language was so extreme
that it made him categorically unfit for future service
with the Respondent.2
This is a high standard—but appropriately so—and it
has not been satisfied under the circumstances here.
Thus, I would reverse the judge and find a violation of
Section 8(a)(1). “[F]ederal law gives a union license to
use intemperate, abusive, or insulting language without
fear of restraint or penalty if it believes such rhetoric to
be an effective means to make its point.” Old Dominion
Branch, supra, 418 U.S. at 283. The result of the major-
ity’s decision, I fear, will be to chill union advocates.
They must now watch their words carefully when they
criticize an employer from whom they may one day seek

1 See, e.g., Letter Carriers (Old Dominion Branch No. 496) v. Aus-
tin, 418 U.S. 264 (1974); Linn v. Guards Union Local 114, 383 U.S. 53
(1966); Phoenix Transit System, 337 NLRB 510, 414 (2002);. Postal
Service, 241 NLRB 389 (1979).
2 Cf. Dreis & Krump Mfg., Inc., 221 NLRB 309, 315 (1975), efd.
544 F.2d 320 (7th Cir. 1976) (reviewing discharge of employee and
observing that “offensive, vulgar, defamatory or opprobrious remarks
uttered during the course of protected activities will not remove activi-
ties from the Act’s protections unless they are so flagrant, violent, or
extreme as to render the individual unfit for further service”). See also
Honda of America Mfg., Inc., 334 NLRB 746, 749 (2001) (Member
Walsh, dissenting).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1318
a job. Because the Act envisions “uninhibited, robust,
and wide-open debate,” id. at 273, not polite circumspec-
tion, I dissent.

Cristina M. Poulter, Esq., for the General Counsel.
Macon P. McGee, Esq., of Boston, Massachusetts, for the Re-
spondent.
Mickey Long, Esq., of Boston, Massachusetts, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Boston, Massachusetts, on December 1,
1999. Subsequent to an extension in the filing date briefs were
filed by the General Counsel and the Respondent. The pro-
ceeding is based upon a charge filed February 22, 1999, by
David Paquette, an individual. The Regional Director’s com-
plaint dated July 28, 1999, as amended, alleges that Respon-
dent, American Steel Erectors, Inc., of Greenfield, New Hamp-
shire, violated Section 8(a)(1) of the National Labor Relations
Act (the Act) by refusing to consider Paquette for hire on Sep-
tember 17, 1998, because of his affiliation with, and concerted
activities on behalf of the International Association of Bridge
Structural, Ornamental and Reinforcing Iron Workers, Local
474 and by telling him that he was not being considered for hire
because of his union activities.
Upon a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is contractor in the construction industry en-
gaged in the fabrication and erection of structural steel. It an-
nually performs services valued in excess of $50,000, and it
annually purchases and receives goods and materials valued in
excess of $50,000 directly from points outside New Hampshire.
It admits that at all times material is and has been an employer
engaged in operations affecting commerce within the meaning
of Section 2(2)(6) and (7) of the Act. It also admits that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent serves clients in the various New England
States and in the course of its business hires employees in the
ironworkers trade. Raymond Chilly is its president. He runs the
Respondent’s day-to-day operations and either he or one of his
sons makes all hiring and firing decisions. On July 30, 1998,
the Respondent made a job openings listing for “iron workers”
with the New Hampshire Department of Unemployment and
Training. The department posting, dated September 1, 1998,
sought:

F/T PERM. IRON WORK EXPERIENCE HELPFUL,
BUT WILL TRAIN IN 3-YR APPROVED APPREN-
TICESHIP PGM. MUST HAVE NO FEAR OF
HEIGHTS, WILL BE WORKING W/STRUCTURAL
STEEL SITES IN NH, MA, ME, AND VT. BENEFITS,
$10+HR. CALL AMERICAN STEEL ERECTORS 603-
547-6311 FOR APPT/DIRECTIONS.

For several years prior to 1998 David Paquette was em-
ployed by the Union as an appropriate coordinator and instruc-
tor. In September 1998, Paquette learned he was about to lose
his position with the Union. He was aware of the Respondent’s
job order report on file with the State and he called and spoke
to Catherine Sanderson, the Respondent’s human resource and
payroll administrator. In sequence, Paquette testified that he
asked Sanderson about the benefits listed, she responded and
asked if he was a qualified ironworker. Paquette informed
Sanderson that he had been doing steel erection for 20 years
and then recalled that at the beginning of the conversation he
has asked if the position had been filled and she said it had not.
Sanderson stated the location of various projects and Paquette
expressed an interest in southern New Hampshire. Paquette
also asked Sanderson if Respondent would hire a union iron-
worker, if that would make a difference? Sanderson replied,
“[N]o,” that it depended on experience. Paquette asked when
he could come down for an interview. Sanderson said she
would get back to him. Paquette then told Sanderson that
working for Respondent would be an opportunity to organize
the employees and Sanderson replied, “[R]eally.”
On September 14, Paquette telephoned Sanderson again.
Sanderson put him on hold and a few minutes later told
Paquette he would have to be interviewed by the owner who
was not there and told Paquette to call her again on Thursday
morning. Paquette phoned on Thursday. Sanderson was busy
but called Paquette back later that day. Sanderson asked him if
he was the same David Paquette “that was at the State Appren-
ticeship Council.” He told that her that he was the same per-
son. Sanderson then told him that his application was denied
base on his actions at the Apprenticeship Council, and hung up
the telephone.
In 1997, the Respondent applied to the New Hampshire Ap-
prenticeship Council to obtain certification for its apprentice-
ship program. Its program initially was presented to the Ap-
prenticeship Council at its February 20, 1997 meeting. Al-
though Paquette did not speak, [he] was present at meeting,
because he wanted to check out the Company’s program to see
if it was valid and whether individuals entering the ironworker
industry would be safe in learning a new career and receive
comprehensive training.
He thereafter attended council meetings on May 1, June 12,
and August 25. He spoke in opposition to the Respondent re-
quest at each meeting, reportedly challenging Respondent’s
safety record, its workers’ compensation coverage, and its abil-
ity to offer comprehensive training. There is no indication that
he identified himself at these meetings as a representative of the
Union other than the notation in the Council minutes that re-
ferred to “Paquette of the Iron Workers.” The June 12 minutes
refer to a list of OSHA violation against American Steel Erec-
tors as being pertinent to five or six other companies with that
name and that no significant violations were against the Re-
AMERICAN STEEL ERECTORS, INC. 1319
spondent, (an allegation made by Paquette), at the May 1 meet-
ing.
Paquette repeated his disproved allegations at subsequent
meetings (after dramatically making a printout fall to the floor),
and at one of the meetings, in owner Cilley’s presence (Sander-
son apparently attended all these meetings but she did not tes-
tify about what she observed), Paquette made a statement to the
Council to the effect that: “putting ironworkers up on the steel
is like throwing babies into the Merrimack River if they worked
for American Steel.”
At the August meeting the Counsel voted to approve the Re-
spondent request.
Owner Cilley stated he made a decision to not consider
Paquette for a position. When asked why he made that deci-
sion, he answered:

Because I didn’t personally like him based on conduct
at a meeting, which was held in Concord. I just didn’t like
his attitude, his demeanor. I did not feel that based on the
size of our company that he would fit in very well with the
rest of our workers. I didn’t think that he was sincere in
his requesting a job.

It also was shown that no experienced ironworkers were
hired by the Respondent subsequent to its job posting, however
it was shown that a Harold Crothers Jr. applied for a position on
August 7, 1998. He was offered a class II Ironworker, position
when he was interviewed on August 21 and he started work on
September 8. The Respondent also hired two apprentices,
Douglas Snowden and Steven Olivo on October 12, 1998, and
March 25, 1999, respectively.
Discussion
Here, the General Counsel contends that the Respondent re-
fusal to consider applicant Paquette for an ironworker position
was motivated by antiunion considerations drawn from
Paquette’s appearances before the New Hampshire Apprentice-
ship Council.
A. Refusal to Hire Criteria
The Board enforces a causation test for cases turning on em-
ployer motivation, see Wright Line, 251 NLRB 1083 (1980),
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983), otherwise, the foundation of 8(a)(1) and (3)
“failure to hire” allegations rest on the holding of the Supreme
Court that an employer may not discriminate against an appli-
cant because of that person’s union status, Phelps Dodge Corp.
v. NLRB, 313 U.S. 177, 185–187 (1941).
Based on the test set forth in Fluor Daniel, Inc., 304 NLRB
970 (1991), and KRI Constructors, 290 NLRB 802, 811 (1988),
and case cited therein, the General Counsel is required to meet
an initial burden of proof and establish that (1) an individual
attempts to file an employment application; (2) the employer
refused to consider the applicant; (3) the applicant is or might
be expected to be a union supporter; (4) the employer has
knowledge of the applicant’s union sympathies; (5) the em-
ployer maintains animus against union activity; and (6) the
employer refuses to consider the applicant for hire because of
such animus. If the General Counsel does so, the employer
must establish that for legitimate reasons the applicant would
not have been hired absent the discriminatory motive.
Here, there are no issues related to Paquette’s qualification
and there are no viable issues relative to the existence of a job
opening and, otherwise, the facts essentially are undisputed as
to items (1) through (4).
B. Animus and Motivation
The record here shows neither a history of antiunion animus
nor any attendant violations of the Act by the Respondent (such
as an inquiry by the Respondent regarding the applicant’s union
status). Paquette testified that when he asked if being a union
worker would make a difference, Sanderson answered, “[N]o it
depended on experience.” This line of inquiry was not devel-
oped further when Sanderson was on the stand as the General
Counsel’s witness. Accordingly, I credit Paquette’s testimony
of what Sanderson said and I find no basis for disregarding her
plain statement and I find no basis for inferring that her state-
ment is not credible.
While Paquette’s union affiliation were volunteered in his
phone conversation with the Respondent, the General Counsel
also shows that Paquette engaged in other activity that appar-
ently identified him to the Respondent. In this connection, the
record shows Paquette took upon himself, as apprentice coordi-
nator,1 a practice of attending apprenticeship Council meetings.
The record does not show that he identified himself as a repre-
sentative of the Union in any of the meetings concerning the
Respondent, however the Council itself apparently knew that
Paquette was “of the ironworkers.”
The record does not clearly show that Paquette’s council ap-
pearances (and his persistent opposition to the Respondent’s
application) were endorsed by the Union or were made on be-
half of the Union, or others (he made no written reports to the
Union but asserts that he told union business agents of his ac-
tivities). However, I find that there is at least some ambiguous
indication that his statements have the appearance of being on
behalf of the Union and relate to the interest of other employee
and apprentices in general.
On this record there is a striking absence of any display of
hostility by the Respondent toward the Union, no history of
rejections of union members and no record of unfair labor prac-
tices that might somehow support an inference of animus.
Here, the only animus shown is the displeasure expressed by
the Respondent’s owner with Paquette’s personal demeanor
and, specifically, the defamatory allegations he made against
the Company.
Under appropriate circumstances, an individual’s appearance
on behalf of a union or other persons before a public body
could be considered an activity that normally would enjoy the

1 There is no probative showing that the Union directed him to do so
or that the Union instructed him to make the statements he made at
these meetings. Otherwise, it is noted that the Union is not a party
herein, and no representative of the Union appeared as a witness. There
is no indication that the Union endorsed his actions other than his self-
serving statement that as coordinator he would go to Apprenticeship
Bureau meetings and monitor the industry (he has no written job de-
scription for his position). Coincidentally, it appears the Union re-
moved him from this position within the next year.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1320
full protection of the Act. Some appearances, however, might
not be considered to be concerted activity, see Pikes Peak Pain
Program, 326 NLRB 136 (1998), and some activity can be
considered to be so egregious as to take it outside the protection
of the Act. Here, I find that the Respondent’s owner reasonably
believed that Paquette used outrageous and defamatory exag-
gerations by stating that working on steel for the Respondent
was the equivalent [of] throwing babies into a river (as well as
flamboyant misrepresentations about its OSHA records and
insurance compliance). Thus, Paquette went well beyond chal-
lenging the safety aspects of the Respondent’s business and
equated its construction practices with the deliberate murder of
helpless infants. In owner Cilley’s belief, the manner in which
Paquette presented his opinions to the Council displayed “con-
duct,” “attitude,” and “demeanor” affected his potential em-
ployability and here, I find that it would not be unreasonable to
find that Paquette’s reckless abuse of his free speech rights
separated his personal behavior from the res gestae of his al-
leged protected activity.
At best, the General Counsel has made a week case of showing
that the Respondent’s refusal to consider Paquette for hire might
have been based on his participation in protected union activity
and, under the circumstances I find it appropriate also to consider
the Respondent’s defenses under the Wright Line criteria.
C. Refusal to Consider
Here, I find that the preponderance of the evidence success-
fully rebuts the General Counsel’s case and I conclude that the
Respondent clearly has shown that had legitimate business
reasons and concerns, unconnected with the applicant’s alleged
union activity, that motivated its decision not to consider him
for hire. Based on what reasonably was considered to be egre-
gious behavior by Paquette, owner Cilley concluded that based
on the size of the Company, someone with Paquette’s de-
meanor would not fit very well with other workers and that it
was important to have ironworkers that work well with each
other. He also felt that Paquette wasn’t sincere in his request
for a job. Accordingly, I find that the record fails to show that
Paquette was not considered for hire for any other reason than
his offensive, intemperate language and provocative conduct in
front of the person in Respondent’s company who had the pri-
mary hiring authority.
Here, the Respondent had no history of antiunion animus or
history of any unfair labor practices and there is nothing to
indicate that the Respondent would attempt to retaliate against
Paquette merely because of his appearance before the State
Council in opposition to the Respondent’s apprenticeship appli-
cation.
Owner Cilley’s demeanor was forthright and persuasive and,
on this record, I conclude that Cilley’s decision was controlled
solely by his negative impression of Paquette based not on
union animus but on Paquette’s outrageous exaggerations. I
also find that he had legitimate doubts about the trustworthiness
and successful employability of someone who was seeking
employment in the very position he has disparaged by stating
that working for the company was so risky that putting iron-
workers on structures being fabricated was like throwing babies
into a large river. Accordingly, I find that the Respondent has
successfully shown that it relied upon legitimate independent,
nondiscriminatory reason for its refusal to consider the Charg-
ing Party’s application for employment.
Under these circumstances, its is clear that the applicants’
union or protected activity was not the basis for the Respon-
dent’s decision and that it had a legitimate reasons for its ac-
tions which would have resulted in the same decision even in
the absence of any protected union activity. See Heilger Elec-
tric Corp., 325 NLRB 966 (1998). I, therefore, find that the
General Counsel has not carried its ultimate burden and it has
not shown that any violation of the Act occurred, as alleged.
Accordingly, it must be recommended that the complaint be
dismissed.
CONCLUSIONS OF LAW
1. Respondent American Steel Erectors, Inc. is an employer
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Respondent is not shown to have engaged in conduct
violative of the Act as alleged in the complaint.
ORDER2
The complaint is dismissed in its entirety.

2 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”