Bay Control Services

National Labor Relations Board - Board Decisions

Sep 30, 1994

315 N.L.R.B. 30 (N.L.R.B. 1994)

30
315 NLRB No. 7
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has excepted to some of the judge’s credi-
bility resolutions. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 In adopting the judge’s findings that Respondent Bay Control
Services (BCS) did not, as alleged, violate Sec. 8(a)(3) of the Act
by refusing to hire members of Electrical Workers Local 479 who
applied for work on December 22, 1992, and January 6, 1993, we
stress that, as the judge found, there was no showing that there were
jobs available for new hires on those dates. Thus, although BCS at
other times did hire some applicants who, like the union members
here, appeared at the jobsite seeking work, the General Counsel has
failed to establish that BCS needed employees on the specific days
that the union members sought work. Furthermore, BCS’ primary
employment need on the project was to fill low-paying helper jobs
and BCS had a policy, based on past experience, against hiring over-
qualified employees such as the journeymen electricians alleged as
discriminatees here. However, in dismissing this allegation, Members
Stephens and Devaney do not rely on the judge’s speculative com-
ments that the union members who applied for work were not bona
fide job applicants, his finding that these applicants placed an unac-
ceptable condition on BCS by requiring that they be promoted from
helper to journeyman status as soon as possible, or his reference to
and reliance on Ultrasystems Western Constructors v. NLRB, 18 F.3d
251 (4th Cir. 1994).
1 All dates are 1993 unless otherwise indicated.
Bay Control Services, Inc., an Operating Division of
Bay, Inc. and International Brotherhood of
Electrical Workers, Local 479, AFL–CIO
Bay, Inc. and International Brotherhood of Elec-
trical Workers, Local 479, AFL–CIO. Cases
16–CA–15939 and 16–CA–16068
September 30, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On March 30, 1994, Administrative Law Judge
James M. Kennedy issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and Respondent Bay Control Services filed an
answering 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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Robert G. Levy, Esq., for the General Counsel.
Neil Martin, Esq. (Gardere & Wynne), of Houston, Texas,
for the Respondents.
Larry M. Moore, Organizer, International Brotherhood of
Electrical Workers, Local 479, AFL–CIO, of Beaumont,
Texas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried before me in Port Arthur, Texas, on October 26
and 27, 1993, on a consolidated complaint issued by the Re-
gional Director for Region 16 on June 2, 1993.1 The com-
plaint is based on unfair labor practice charges filed on Janu-
ary 22 and April 20, respectively, by International Brother-
hood of Electrical Workers, Local 479, AFL–CIO (the
Charging Party, the IBEW, or the Union). The first charge
was subsequently amended. A consolidated complaint alleges
that Bay Control Services, Inc. (BCS), an Operating Division
of Bay, Inc. (Bay, Inc.) and Bay, Inc. itself have engaged in
certain violations of Section 8(a)(3) and (1) of the National
Labor Relations Act (the Act).
Issues
There are two principal issues to be decided. The first, is
whether these two construction firms have refused to hire
members of or sympathizers with the Union. Specifically,
BCS is accused of refusing to hire approximately 75 union
members because of their union membership. The complaint
asserts that these 75 applied for work on November 9–10,
1992, and that several of them on two subsequent occasions
attempted to obtain employment but were again denied. The
second issue is whether Bay, Inc., in February 1993, refused
to hire an individual named Susan Duhon as a timekeeper
because her husband was a member of the Union. Connected
to that incident is a question of whether one of the persons
involved in interviewing her unlawfully asked her whether
she would be willing to cross a picket line and whether her
husband was a union member.
Both Companies deny committing the alleged unfair labor
practices. With respect to the union craftsmen who applied
for work in November and subsequently Respondent BCS as-
serts that it was not hiring individuals with those skills and
in any event had no openings. With respect to Duhon, Re-
spondent Bay, Inc. asserts it did not ask about her husband’s
union membership and the question regarding whether she
would cross the picket line was not coercive under the cir-
cumstances presented. Specifically, it notes that the pickets
had engaged in misconduct sufficient to notify any employee
that safety was a consideration in his or her decision to be-
come or remain employed. Second, it contends Duhon was
not selected for the position, because she was not the most
qualified applicant. It further asserts that it has a dem-
onstrated hiring policy which is neutral and which in fact has
resulted in the employment of known union members or em-
ployees whose spouses are union members.
The parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to orally argue, and to file briefs. The General
Counsel and Respondent have filed briefs which have been
carefully considered. Based on the entire record of the case,
31BAY CONTROL SERVICES
as well as my observation of the witnesses and their de-
meanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint does not distinguish between BCS and Bay,
Inc. It asserts they are one and the same and, accordingly,
treats them as a single respondent which provides electrical
construction contracting services. The evidence shows, how-
ever, that both are corporations which are part of a larger
conglomerate owned by Berry Contracting, Inc. The cor-
porate structure will be described in a little more detail infra,
but it is clear that both Bay, Inc. and BCS, either individ-
ually or together, meet the Board’s nonretail standard for the
assertion of jurisdiction. The answer to the complaint admits
that ‘‘Respondent’’ has performed services valued in excess
of $50,000 for customers located outside the State of Texas.
Accordingly, I find that these Respondents are employers en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION
Although both Respondents denied the Union’s status as a
labor organization on the basis that they had insufficient
knowledge to admit or deny the allegation, it is clear that the
Union is a labor organization within the meaning of Section
2(5) of the Act. Its representative stated that it has approxi-
mately 700 members who actively seek work in the
Beaumont/Port Arthur area. The General Counsel did not
much pursue the matter, but it is not in dispute.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Both of the corporations involved here are nonunion con-
struction firms. They are engaged in various phases of heavy
industrial construction including the erection of portions of
chemical plants. They are both subsidiaries of Berry Con-
tracting, Inc., a large, heavy industrial contractor
headquartered in Corpus Christi, Texas. Bay, Inc., in general,
regards itself as a civil contractor, meaning that it performs
a large amount of what it describes as ‘‘mechanical’’ work.
BCS, on the other hand, generally regards itself as an instru-
mentation and electrical (I&E) subcontractor. It often per-
forms work for Bay, Inc. However, it has the freedom to
contract directly with other companies in providing its exper-
tise. It admits that it is often considered an operating arm of
Bay, Inc. Nonetheless, Bay, Inc. and BCS have separate
management and are considered separate profit centers inso-
far as these particular companies are subsidiaries of Berry
Contracting, Inc. Bay, like Berry Contracting, is
headquartered in Corpus Christi. BCS has its headquarters in
Houston. Berry Contracting has other incorporated divisions
which are not described with any particularity in the record,
although at least one other construction subsidiary, Mason
Construction, was mentioned and performed work on the
site.
The fact that Bay, Inc. and BCS both have different man-
agement and can contract independently of one another is of
some interest here. Nonetheless, they often work together and
when on a common jobsite will exchange employees as
needed, charging each other for the time of the particular
employee and then charging that time to the job being per-
formed for the customer. One of the means by which they
separately account for jobs and for work is to assign specific
numbers to each job. These jobs are not necessarily congru-
ent with the contracts they have signed with their customers.
They do engage in internal arrangements to acquire any ex-
pertise which a sister company may be able to provide.
In this regard, the job in question is somewhat difficult to
describe. Indeed, there seems to have been some public con-
fusion about what roles Bay, Inc. and BCS were playing on
the project in question, located in Port Neches, Texas. At
least some individuals, including a county judge (in Texas
that office is a nonjudicial one, more equivalent to a county
commissioner or supervisor) described circumstances which
were inaccurate hearsay. That judge’s description, in some
letters dealing with the project owner’s tax abatement privi-
leges, led the Union, and perhaps the General Counsel, to
mistakenly conclude that Bay, Inc., was the general or the
‘‘prime’’ contractor here. However, Luther Young, Bay,
Inc.’s industrial division manager, and the individual who
signed the business contracts, testified that it was not. In-
stead, he points out that the owner of the project is North
American Big Three, a manufacturer of industrial and liquid
gases. It is a subsidiary of a French firm called Air Liquide.
Also under the Air Liquide umbrella is a separate firm called
Liquid Air Engineering, the construction arm of that manu-
facturing concern. Bay, Inc.’s contract, according to Young,
was with Liquid Air Engineering, who signed the construc-
tion contracts with several large contractors for work on the
site. Therefore, it is clear that Liquid Air Engineering, not
Bay, Inc., was the ‘‘prime’’ contractor. Nonetheless, the
owner and the eventual operator of the plant was North
American Big Three. It is often referred to by witnesses as
the ‘‘Big Three Project.’’
Although the entire project has not been described with
real accuracy in the record, it appears that Liquid Air Engi-
neering engaged a number of industrial contractors to erect
a liquid oxygen manufacturing vessel and the connected
buildings and control systems. It appears to have been large
enough to have required its own electrical substation and a
large steel building. Contractors other than the two Respond-
ents were involved in constructing these two facilities; they
were DiShields Construction and United Builders, respec-
tively.
In late November or early December 1992, Respondent
Bay, Inc. began performing certain work on Big Three’s site
in Port Neches. For its internal accounting purposes, it des-
ignated the job as IN-405. A portion of that job was subcon-
tracted to Respondent BCS which designated its portion as
IE-429. The IN and IE designations refer to each company’s
description of the type of project. IN stands for ‘‘industrial’’
and IE stands for ‘‘instrumentation and electrical.’’ BCS’ IE-
429 was said to be about 3 percent of Bay Inc.’s IN-405.
IE-429, despite its internal designation, was mostly a civil
job. Civil work is generally regarded as involving
earthmoving and site preparation. In this respect, the portion
of the work which Respondent BCS was to perform involved
digging a lengthy trench, which at the bottom would contain
a 300-foot long rough concrete box device known as a ‘‘duct
bank.’’ Among other things, a duct bank houses underground
electrical conduits. Due to the sandy and unstable nature of
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The foregoing descriptions are pursuant to the testimony of BCS’
division manager.
3 The second part of IE-429 required BCS to fit a large amount
of tubing and instrumentation gear to the ‘‘cold box,’’ the device
which cools oxygen to the liquid state. That portion of IE-429 is of
no concern to this case. The employees assigned to it were instru-
mentation fitters and helpers.
4 The entire project, IE-429, including the more detailed cold box
work, was originally estimated to have been completed in 5 months.
5 It also advertised in another local newspaper the Beaumont En-
terprise, but the only ad which is in evidence is the one from the
Orange Leader. The November 2, 1992 issue of that newspaper con-
tained a boxed advertisement headed with the Bay, Inc. logo. It stat-
ed: ‘‘Bay, Inc. is currently accepting applications from qualified pro-
fessionals for a long-term project in Pt. Neches area. Successful ap-
plicants will possess experience in the area applied for equal to in-
dustry standards and practice.’’ It then listed openings from Novem-
ber 9 through the project completion for office manager, timekeeper,
QX/QC material control, and planner/scheduler. It went on to list for
the date November 23, 1992, through the end of the project, the fol-
lowing: craft foremen, operators (light and heavy), pipefitters, weld-
ers (stick, tig, alloy, and structural), millwrights, scaffold builders,
electricians, instrument fitters, carpenters, and ironworkers (struc-
tural).
6 An exception was the installation of temporary power throughout
the site. Bay asked BCS to perform the work on an as-needed basis.
the soil, the trench had to be approximately 45 feet wide and
approximately 7 feet deep in the center, although at some
points the bottom was as much as 14 feet below the grade.
The nature of the soil required an OSHA-certified excavation
expert to guard against cave-ins. The soil is not only unsta-
ble, but close to sea level and subject to seepage. Once the
duct bank was installed the project then required backfilling
at 1-foot intervals. Moreover, the inclement weather in this
east Texas location often interferes with construction. It is
fair to say that such a trench would, in wet weather, become
unworkable and delay the project until the trench dried out.
It was tedious and time-consuming work.2
The duct bank component of IE-429 involved an average
of eight workers. In addition, BCS had two administrative
employees and, later, several individuals who were assigned
to the instrument portion of the project, principally dealing
with the three ‘‘cold boxes.’’3 The cold box work did not
commence until months after the conduct alleged to be unfair
labor practices. BCS’ Wolfe said that portion had not begun
by the time he left the site in late May for another job.
BCS’ presence on the site, performing the duct bank work,
was a bit unusual for it. It normally does not do civil work.
In addition, the construction of the duct bank itself, i.e., the
concrete form fabrication, the rebar installation therein and
the concrete placement is not work that BCS usually per-
forms. It is more likely to be involved in instrumentation and
industrial electrical contracting. Only a small portion of this
job, approximately 10 percent, involved what might be de-
scribed as electrical, the installation of empty conduit within
the duct bank. That was very simple work, requiring a work-
er to insert lengths of plastic conduit throughout the 300-foot
length of the duct bank framework. At one end of the struc-
ture, the conduit turned upwards and was ‘‘stubbed’’ out.
None of BCS’ work involved the pulling of cable or wire
through the conduit itself. The entire project was relatively
small, scheduled for only a few months,4 and was below
ground. The last observation, that it was below ground is of
significance as will be seen infra.
BCS’ Hupe explained that the principal reason Bay, Inc.
had put BCS on the site was in order to ‘‘establish a pres-
ence’’ with Liquid Air Engineering to increase the likelihood
that it could successfully bid, together with Bay, Inc., on the
succeeding portion of the project, the so-called aboveground
work. That work would have involved the hiring of a sub-
stantial number of electricians. They would have pulled the
wire through the underground system previously installed as
well as doing all of the aboveground wiring which the plant
required. All the Bay and BCS managers agreed that the
aboveground work was the principal lure for the below-
ground bid. As will be observed, however, Liquid Air Engi-
neering did not award the aboveground contract until ap-
proximately May 1993, and then it went to an unrelated
company, SECO.
Nonetheless, in October 1992, Bay and BCS were target-
ing the aboveground work. Neither company was particularly
familiar with the availability of skilled manpower in the
Beaumont-Port Neches-Port Arthur area nor were they cer-
tain what wages they would have to pay to attract skilled
workers. They both knew that IN-405 and its subsidiary IE-
429 were about to begin. Those first contracts had been let
a little while earlier. Nonetheless, Bay, Inc. knew that it
needed workmen for its portion of IN-405. Accordingly, it
decided to advertise in at least one of the local area news-
papers, the Orange (Texas) Leader.5
The ad requested interested persons to telephone a listed
number or send a resume to Bay, Inc.’s Corpus Christi head-
quarters. It ended by announcing that ‘‘applications and re-
sumes will be accepted in person at the Holiday Inn (Park
Central) in Port Arthur on Monday and Tuesday, 11/9/92 and
11/10/92.’’
It should first be observed that the ad specifically noted
that Bay was seeking employees for a ‘‘long-term project.’’
Second, it should be observed that BCS as an employer is
not mentioned in the ad at all.
With respect to the latter observation, I have taken into ac-
count the testimony of Luther Young, Bay, Inc.’s industrial
division manager. He says he helped put the ad together.
Others involved with the ad were Mike Roberts, Bay, Inc.’s
personnel manager and, apparently, Don Dudley. Dudley,
who died in mid-February 1993, was Hupe’s predecessor as
the division manager of BCS. The incumbent in that job is
obligated, among other things, to perform bid preparation
work. According to Young, Dudley asked him to include
I&E (instrumentation fitters and electricians) craftpersons in
the ad. The purpose, he says, was not to hire those individ-
uals, but to allow Dudley to use the results as a survey for
the purpose of determining the local availability of such
craftpersons as well as to determine what wage rate he could
use in preparing the bid for the aboveground work.
In essence, that meant the only jobs which were imme-
diately available as a result of the application collections of
November 9 and 10 were the office jobs. The remainder
were in anticipation. However, Young clearly wished to be
prepared to hire the construction people he needed for IN-
405. Indeed, the evidence shows that shortly thereafter, in
early December, he did use those applications for that pur-
pose. However, Bay’s IN-405 did not require the services of
any persons having electrical skills.6
33BAY CONTROL SERVICES
7 Both Forsyth and Cloud were classified for payroll purposes as
E-1 electricians. As such their hourly rate was $14 per hour. Both
the testimony and a review of those records, in evidence as G.C.
Exh. 7, demonstrate that payroll classification system is less than
consistent. The most accurate way to determine an employee’s prin-
cipal job is by pay rate. In this system $14 is the highest pay for
a given rank-and-file job. Lesser rates indicate a less experienced or
lesser skilled employee, perhaps even a helper. Usually helpers have
an ‘‘H’’ in their classification, but not always. Both helpers and the
more highly skilled workers are often asked to perform tasks outside
their designated field. Thus ironworker helpers and electrical helpers
commonly help each other out, sometimes working side by side.
8 It should be observed here that Roberts testified that it was Re-
spondents’ practice to require a company personnel or other official
actually to witness an applicant’s signature on the second page of
the application. Furthermore, Roberts said that it is company practice
to actually be able to interview an individual or a least talk with him
or hear. He acknowledges, however, that because of the large num-
ber of applicants at the Holiday Inn, he and Young were unable to
sign all the applications as witnesses. Nonetheless, Roberts said he
regarded those to whom he had talked as valid applications even if
they had not been formally witnessed. Many of the applications
which were filed by IBEW members were in fact properly filled out
and witnessed by a company official. Others were missing the back
page (and therefore both the applicant’s signature as well as the wit-
ness’) and others were witnessed by the union officials. As will be
seen, these potential defects had no bearing on how these applica-
tions were treated.
Moreover, when IE-429 was begun, about December 7, the
I&E superintendent for BCS, an individual named Mark
Auwae, brought to the site a crew which normally worked
with him and which had not been part of the November 9
interviews. The complaint does not assert that Auwae’s deci-
sion to hire the crew with whom he normally worked is in
any way discriminatory. His crew included a foreman,
Chesser, two electricians, Forsyth and Cloud, and helpers.7
B. The Holiday Inn Applications
The Union had, of course, seen Bay, Inc.’s ad in the Or-
ange Leader. Using that tip, it decided to attempt to persuade
Bay, Inc. to hire its members. Accordingly, on November 9–
10 it rented a room at the Holiday Inn next to the room
which Roberts and Young were using. Over the course of the
2 days, they took between 300 and 400 applications. Of
those approximately 140 or so qualified as I&E applications.
Of the 140 approximately 75 were routed to Respondents by
the IBEW.8
Roberts testified that he later segregated the applications
which he had obtained at the Holiday Inn into two groups.
The first group contained all of the applications except for
the I&E applicants. The first group was transmitted to Cor-
pus Christi where each was reviewed and then sent back to
the Bay, Inc. jobsite office in Port Neches. The second
group, the instrument fitters and electricians, were also sent
to Corpus Christi. They were then sent to BCS’ Dudley at
his office in Houston. It is undisputed that these 140 or so
applications were not processed any further.
During this period Dudley became terminally ill. It quickly
became apparent to upper management that Dudley would be
unable to perform his duties. In December, BCS hired Hupe
to replace him, though he did not actually report for work
until January 4, 1993. Dudley, who was by then undergoing
chemotherapy, was reassigned to other duties within the
Company. He died in mid-February.
Hupe testified that he was unaware that Dudley in Novem-
ber had solicited applications for electricians and instrument
fitters. He says he first learned that such applications had
been taken when a Board agent, during the course of the in-
vestigation of this case, so informed him. Sometime after
Dudley’s death, the applications were found in his desk.
It is also undisputed that the Liquid Air Engineering
aboveground contract was not let to either Respondent. Fur-
thermore, it appears that although Dudley and others ex-
pected the Liquid Air Engineering plans to be available for
bid analysis sometime in December 1992, they were not ac-
tually released until March 1993. Either his illness or the
delay undoubtedly had caused Dudley to put the applications
aside. As previously noted, the contract itself was not award-
ed until June 1993 and, then, to another company, SECO.
Nonetheless, it is apparent that the aboveground project
which was eventually awarded to SECO would have em-
ployed about 100 persons in the electrician trade. About 30
percent would have been journeyman electricians and the re-
mainder some sort of electrical helper. BCS estimated the job
was going to last from March to September 1993, clearly
qualifying as the ‘‘long term project’’ contemplated by the
ad.
In contrast, IE-429 was originally considered to be a short-
term project involving, little in the way of electricians’ skills.
Due to extensive weather setbacks and, apparently, change
orders, that project, under BCS’ direction had not been com-
pleted even as of the date of the hearing, late October 1993,
by then focused on the tubing portion. Nonetheless, it never
carried more than eight persons who actually worked on the
duct bank itself.
C. The Union’s Efforts/BCS’ Response
As observed earlier, IE-429 began in early December
under the direct supervision of Project Superintendent Mark
Auwae. He had brought his own crew with him but did en-
gage in a certain amount of gate hiring. He did not testify
in this proceeding, and it is apparent his testimony was un-
necessary. Certainly the General Counsel has not contended
that the initial hiring of the crew was in any way unlawful.
The Union, however, was aware that ‘‘Bay’’ was performing
some work on the project. Indeed, the remainder of IN-405
(of which IE-429 was a part) began at about the same time.
The Union was undoubtedly aware that individuals with
skills other than those pertaining to the electrical trade were
being utilized. It did not understand why its people had not
been contacted. After all, at the Holiday Inn, Bay, Inc. had
clearly given the impression that hiring would take place
shortly. Indeed, for the most part it had.
Bay, Inc.’s personnel manager, Mike Roberts, acknowl-
edges that the I&E applications were handled differently and
that the I&E applicants probably were not told that their situ-
ation would be treated differently than the remaining em-
ployees. However, Roberts did have two conversations on
that subject with the Union’s organizer, Larry Moore, at the
Holiday Inn.
The first conversation, Roberts says, occurred early in the
application-taking process. Moore came in, introduced him-
self, and asked a few questions about the job. Moore advised
that he had people who would be applying for the electrical
portion of the work. He also asked when Bay would be hir-
ing and how many people the Company anticipated hiring.
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 VanMeter himself had filled out a job application at the Holiday
Inn. It would appear that his is 1 of the 20 which Moore gave to
Roberts on November 10. I reach that conclusion because
VanMeter’s application has the signature of Daniel Hetzel as the
witness. Hetzel is another union organizer and is not employed by
Respondent.
Roberts says he told Moore, ‘‘If we did get the electrical
portion of it that we anticipated getting, that we would be
hiring probably in a couple of months after the ground work
was done and the civil work was complete.’’ Moore did not
testify, and there is no evidence to the contrary.
With respect to Moore’s question regarding the number of
individuals Respondents expected to hire, Roberts said that
he didn’t have an exact answer so he simply said, ‘‘When-
ever the order came in, however many people we hire, is
how many we would hire.’’ Roberts went on to say that he
told Moore that he was ‘‘glad to take their [the IBEW] appli-
cations; they would be considered for employment.’’
Roberts had a second, inconsequential conversation with
Moore sometime during the next 2 days. He was unable to
recall that conversation in any detail. He also had a third
conversation as the second day drew to a close. He says on
November 10, shortly before they were to close the room at
the Holiday Inn, Moore came in and gave him approximately
20 applications. Roberts accepted them although he was
somewhat concerned because he hadn’t actually interviewed
these individuals and because he didn’t know for sure wheth-
er they were actually available. He had, during the course of
those 2 days, taken applications from other individuals who
had identified themselves as union members, the IBEW, the
Pipefitters local, and the Ironworkers local. Apparently he
had more confidence in the currency of those applications
than he did with respect to the 20 which Moore gave him.
Nonetheless, in that third conversation he did accept those
which Moore proffered and answered some questions which
Moore had. Specifically, he says Moore asked him how he
felt about the manpower availability in the area and whether
he was satisfied with the response he had gotten. Roberts re-
plied that he was satisfied and felt comfortable with the re-
sponse.
Roberts then says Moore went on to say something to the
effect that Moore wanted Roberts to be aware that should the
IBEW persons be hired onto the job, that the IBEW would
make every effort to organize the job, not only their own
craft, but also the other crafts which were working. When
asked what his response to that remark was, Roberts says he
told Moore ‘‘that they were welcome to work on the job if
we have jobs open. If they wanted to organize, they were
welcome to try to organize the job. Of course, being an open
shop contractor, we don’t want to be organized, but I have
worked in this area before, and it has never stopped me from
hiring any type of union personnel before.’’
In any event, not having heard from Respondents, on De-
cember 22, 1992, and again on January 6, 1993, Union Orga-
nizer Gene VanMeter went to the jobsite with several IBEW
members.9 On December 22, VanMeter entered the BCS
trailer, accompanied by several IBEW members. There he
spoke to ‘‘Mark’’ and a secretary/timekeeper. It is apparent
that the Mark to whom he spoke was Mark Auwae, the I&E
superintendent. He says he asked Mark if ‘‘our applications
were being considered.’’ Mark replied that the applications
coming from the next trailer (the Bay, Inc. trailer) were for
the ‘‘muddy ditch work.’’ One of the employees who had ac-
companied VanMeter, Jerry Gravitt, asserted, ‘‘We would be
happy to do the ditch work.’’ Mark replied that the only
folks who were being hired were helpers and those only be-
cause some had failed the drug test. At that point, VanMeter
stated, ‘‘We will be willing to do that ditch work as helpers.
We will be willing to hire in as helpers with the understand-
ing that when any available openings as journeyman elec-
tricians came along, that we would be advanced to that sta-
tus.’’
It should be observed here that none of these applicants
had previously indicated they would be willing to work as
helpers; their applications were all for the job of journeyman
electrician. VanMeter also says someone in his group, he
does not recall who, asked Mark if the group wasn’t being
hired because of their union membership. He recalls Mark
replied, ‘‘No.’’ VanMeter had brought with him photocopies
of the applications of these individuals which had previously
been delivered on March 9 or 10. Mark accepted them say-
ing he would transmit them to the office. VanMeter says
Mark told him they could expect to hear from the Employer
as soon as the next day.
VanMeter says however that no one was called. On Janu-
ary 6 he again took a number of employees, some of whom
were the same, down to the office and spoke once more to
Mark. VanMeter says he asked Mark why they hadn’t been
called. He remembers Mark saying that he was not hiring
that particular day, but he would be needing to hire because
the job was running behind and there were complications on
the job. VanMeter says he asked whether the applications
were being held and Mark said he did not know. At that
point, VanMeter again gave Mark copies of the earlier filed
applications and left them with him. He says he heard Mark
tell the office secretary to get a cover sheet prepared so he
could fax the applications to the office in Houston. VanMeter
says he once again reiterated that the electricians were pre-
pared to go to work for him and would be happy to work
and that they could do anything he had to offer.
At the hearing VanMeter acknowledged that he was not
offering himself, nor were his fellows offering themselves, as
individuals who were sufficiently qualified in skills other
than electrical to warrant making a living in the other trades.
Those trades included carpentry, rod busting (tying reinforc-
ing steel), and operating heavy equipment. He asserts that he
didn’t tell Mark that he would dig ditches, only that he
would work in a ditch doing electrical helper work. He does
admit, however, that he conditioned his fellow electricians’
offer to do the helper work on the understanding that if jour-
neyman electrical work opened up that they would be reas-
signed to it. The helper jobs paid $5–$8 per hour. The
IBEW-negotiated wage rate for journeymen was about $18
per hour. Respondent paid its electricians $14 per hour.
When VanMeter was asked why, as a journeyman elec-
trical worker, he was willing to work for less than half his
regular wage rate (the helper rate), he stated rather
unsatisfyingly, ‘‘Because it was just something I wanted to
do at the time.’’ When counsel asked him for a further ex-
planation he replied, ‘‘I don’t have one to offer you, sir.’’
35BAY CONTROL SERVICES
10 The phrase ‘‘journeyman electrician’’ has at least two meanings.
The first meaning is the dictionary definition: a worker who has
learned his trade. The second is that it is a level of experience and
skill usually acquired by undergoing an extensive apprenticeship pe-
riod sponsored by an IBEW local union. In that sense it has come
to mean an IBEW-negotiated job classification found nationwide in
IBEW collective-bargaining contracts. On occasion, the imprecise
usage of the phrase causes some lack of clarity.
11 Actual dates of hire are somewhat imprecise. The payroll record
uses Sundays as the end of a 1-week pay period. Thus, if a new
name appears on that record, I have assumed that he or she was
hired during that week. Based on the number of hours worked, I
have ‘‘guesstimated’’ the day of the week that employee commenced
work.
The foregoing description deals with the Union’s effort to
shift the applications from ‘‘journeyman electrician’’10 appli-
cations to becoming helper applications. While there is some
question, discussed below, whether that was proper, I do ob-
serve that in this same time period both Auwae and, later,
Wolfe, hired electricians. I have already noted the hiring of
Cloud and Forsyth with the initial crew on December 7.11
On December 29, a week after VanMeter’s first approach to
Auwae, two electricians were added to the crew, Langley and
Brannan. Both were hired at $14 per hour, the same rate as
E-1s Cloud and Forsyth. Yet the two new hires were carried,
not as E-1s, but as ‘‘electricians.’’ On approximately January
11, another ‘‘electrician’’ was hired at the $14 rate,
Wilkinson Jr. That was a little less than a week after
VanMeter’s second visit.
When Wolfe arrived, Cloud and Langley both left and
Goodman was brought on. He, too, was a $14-per-hour
‘‘electrician.’’
It is not clear whether, despite their later arrival on the
job, that Brannan, Langley, and Wilkinson Jr. were not part
of Auwae’s original crew. I note that Langley left with
Auwae in late January. Moreover, gate hiring practices usu-
ally carry with it the connotation that the person actually
standing at the gate is the one who is preferred over someone
who is not, even if they have an application on file. And,
there is no evidence that the openings which were filled by
Brannan, Langley, and Wilkinson were actually open on ei-
ther of the 2 days VanMeter appeared with his colleagues.
Wolfe, like Auwae, brought some of his own people
aboard when he arrived, including Goodman. To some ex-
tent, they replaced those who had left. Even so, I observe
that when two electricians left, Cloud and Langley, Wolfe re-
placed them with only one, Goodman.
D. Some Factual Analyses
I think it is fair to conclude that the Union’s efforts here
have been designed to either illuminate evidence of wrong-
doing on the part of Bay, Inc. and BCS or to trap them into
committing an act which is a provable violation of Section
8(a)(3) and (1). I certainly have no problem with the Union’s
attempting to obtain legitimate employment for its member-
ship. Furthermore, I think it is appropriate for a union ag-
gressively to seek to represent such employees once they
have been so employed. Finally, I also think it is appropriate
for a union to pursue the rights of the employees it rep-
resents under the Act. In the event that an employer is in fact
engaging in violations of the Act, a union should bring them
to the attention of the Board so that they may be appro-
priately dealt with. However, I am not so certain that it is
appropriate for a union to lay traps for employers who are
otherwise behaving lawfully. If a union does so, then one
must also view carefully the verities and genuineness of the
individuals who are engaging in that activity. At least one
other administrative law judge has expressed a similar con-
cern about such tactics. He believes unions who use such
schemes may be misusing the Act and may be conscripting
the Board into becoming an unwitting conspirator in an in-
equitable and wrongfully conceived trap. See Administrative
Law Judge Harmatz’ observation in J. E. Merit Construc-
tors, 302 NLRB 301, 304 fn. 18 (1991). Certainly one
should keep in mind that the Act is a shield, not a sword,
for protected activity. In this sense I think it is fair to ask
whether any of the employees who appeared at the BCS
trailer and spoke to Mark Auwae on December 22, 1992, and
January 6, 1993, were in fact legitimately interested in per-
forming the electrical helper work. As seen below, one must
be a legitimate applicant in order to be protected by Section
8(a)(3).
Unquestionably, the Union’s filing applications, and seek-
ing to obtain employment for its membership on November
9 and 10, was entirely proper, despite its obvious effort to
also organize the project. If an employer has neutral hiring
policies, presumably it will hire on the basis of skill and
ability and in doing so would eventually hire union-trained
employees who would be capable, if not more than capable,
of performing work in their profession. Once employed, the
employees have every right to seek to obtain a 9(a) relation-
ship with the employer and their union.
I credit Roberts’ testimony that Moore told him on No-
vember 10 that the Union intended to organize the job in the
event that IBEW members were hired. Roberts, however, did
not reply in a hostile manner. Instead, he advised Moore that
such applicants would be welcomed and the Union was free
to attempt to organize the project if it wished.
The fact that the employees were not hired thereafter is
not ipso facto proof that there was a discriminatory motive
involved. Keeping in mind that the project for which Roberts
was seeking electricians was the aboveground project which
never materialized, it is more likely to be true that the reason
union members were not hired to perform electrical work is
the same reason that no electrical workers were hired at that
project: the project never materialized and the employment
opportunities, at least through this Employer, never came to
fruition. The job went to another contractor. It was that con-
tractor who actually made hiring decisions for that project.
Yet the Union went further and returned on December 22
and January 6. It is here that the verities of the applicants
come into question. On December 22, VanMeter and the oth-
ers who came with him learned for the first time that BCS
was not performing much journeyman electrical work. It also
learned that BCS was hiring only helpers, some of whom
might be characterized as electrical helpers. At that point the
Union, through VanMeter, switched gears and decided to
say, whether true or not, that the journeymen applicants
wished to demote themselves to helpers, earning less than
half their normal hourly rate in circumstances under which
they could not demonstrate their actual skills. Many of the
duties required of helpers transcended a specific craft. They
were asked to perform rough carpentry work for the cement
forms, install and connect reinforcing steel, insert empty con-
36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Since this concrete was ultimately to be buried underground, the
services of expert cement finishing was not necessary.
13 There is some evidence that Wolfe did go to the Bay, Inc. trailer
where Bay’s personnel/safety man, Glenn Perritt, maintained applica-
tion files. Most of them must have been those which came from the
Holiday Inn, and therefore not electricians, as well as subsequent
walk-ins. Perritt remembers that on three occasions Wolfe asked him
for the applications of electricians which he had on file, but Perritt
does not know what Wolfe did with them. Perritt thinks he proc-
essed six BCS employees for the purpose of offering them employ-
ment but has no recollection about who they were, or what jobs they
were offered; nor does he know whether Wolfe utilized the applica-
tions in the Bay, Inc. file for the purpose of hiring them.
14 Including Cloud and Langley.
15 Though an E-1, Hottendorf’s pay was $10 per hour, unlike the
true E-1 electricians whose rate was $14 per hour.
duit into the boxes which were being built, help pour and
finish the concrete involved,12 and help the equipment opera-
tor excavate and/or backfill the ditch as needed. Except for
laying and attaching the conduit, these are not tasks which
journeyman electricians normally do and are not tasks which
they are trained to do.
When VanMeter was asked why the journeymen wished to
perform helper work at less than half their normal wage rate,
his answer was totally unsatisfactory. He said it was ‘‘some-
thing they had decided they wanted to do.’’ The only real
explanation, of course, is that the Union wanted to place its
members on the payroll of the contractor so that it could es-
tablish an organizing base. I do not have a problem with that
as a general rule, but in circumstances where skilled employ-
ees decide to abandon their skills in order to get hired for
that purpose, the decision seems to me to be quite contrived.
I must question the legitimacy of that offer. Certainly it is
a long reach to conclude thereafter that such individuals have
not been hired simply because of their union membership. It
is more likely they were not hired because they were not
deemed to be bona fide applicants for the work.
However, it is probably not necessary to reach that conclu-
sion. On December 22, VanMeter clearly attached a condi-
tion to the employment of these individuals. He told Auwae
they would be willing to be hired on the condition that they
be promoted to journeymen as soon as a journeyman job be-
came available. In imposing that condition, VanMeter was
attempting to change the Company’s hiring rules. There is no
suggestion that BCS ever agreed to those conditions or that
it ever had policies in place which accepted the imposition
of such a condition. So far as the record shows, BCS’ policy
was to hire inexperienced employees as helpers and to pay
them accordingly. With respect to the more skilled personnel,
it either trained them or hired them directly after demonstrat-
ing that they already possessed the skills. In fact, BCS (and
Bay) had policies against hiring individuals who were over-
qualified for the position being sought. There is a great deal
of testimony that Berry Contracting and its subsidiaries have
had bad experiences with individuals who were hired for jobs
beneath their skill level. As a result of those experiences it
has developed a policy of not hiring persons in such a fash-
ion. When VanMeter imposed that condition, he effectively
withdrew and negated the applications themselves.
Even so, in the final analysis, there is no showing that
there were any jobs available on December 22 or January 6.
It is true that Auwae seems to have had the occasional need
to replace a helper, and perhaps even add an electrician, but
there is no showing that he needed them on either of those
2 days. He apparently did say that sometime in the future he
might need ‘‘employees’’ because the job was suffering
some delays. Yet, with respect to the latter observation, there
is no showing that the employees who would be needed
would be journeyman electricians. Moreover, there is always
the possibility that higher management might permit the job
to extend, using fewer employees rather than increasing staff-
ing. That is an operational decision which undoubtedly
would have been made at a level higher than Auwae. Indeed,
Auwae shortly thereafter left Respondent’s employment, ap-
parently due to family considerations, and returned to his
home in Hawaii. He was replaced by Larry Wolfe on Janu-
ary 20.
Wolfe, like Auwae before him, tended to favor employees
who had worked for him before and also hired at the gate.
He did engage in a certain amount of house cleaning and
some employment opportunities did arise. There is no show-
ing, however, that Wolfe was aware of VanMeter’s presen-
tations to Auwae.13
Wolfe testified that when he arrived, he allowed some em-
ployees the choice of leaving or working under his regime.
Several chose to leave14 and he hired replacements including
a journeyman electrician named Martin Goodman, whom he
knew to be a member of IBEW Local 390. One individual,
Carl Hottendorf, who came aboard, listed as an E-1 elec-
trician, was really on the job because he was a ‘‘competent
hole person.’’ Bay, Inc.’s Bill Manley described Hottendorf
as an OSHA-certified expert in excavation. Since it was ap-
propriate for him to be doing other things when not inspect-
ing the ditch, he was assigned as a helper tying rebar.15 Fur-
thermore, when Wolfe arrived on the site, since some em-
ployees chose to stay, he inherited a few of Auwae’s em-
ployees including Vivian Bonin. As will be seen, infra,
Bonin is married to a member of IBEW Local 479 and has
made no secret of that particular fact. She continued to be
employed through the end of April 1993 when she quit to
take another job.
Finally, there is the unchallenged evidence of at least three
individuals, Wolfe; Bay, Inc.’s project manager, Bill Manley;
and Perritt that they had been told at the time they were
hired they were to hire on the basis of skill and needs and
not to concern themselves with the union membership of any
applicant. The reason for the latter admonition apparently
was because persons at the corporate level, specifically Rob-
erts, were aware that the Port Arthur/Beaumont area houses
the headquarters of several local construction unions. Roberts
may well have been honoring his earlier statements to Moore
that union applications were welcome to apply.
In reviewing the facts, together with the inferences which
may reasonably be drawn therefrom, I fail to see that the
General Counsel has made out the elements of a prima facie
case. The Court of Appeals for the Fourth Circuit has re-
cently described the elements of an 8(a)(3) violation in re-
gard to a claim of an unlawful refusal to hire. It listed those
elements as: (1) the employer is covered by the Act; (2) the
employer at the time of the purportedly illegal conduct was
hiring or had concrete plans to hire employees; (3) union ani-
mus contributed to the decision not to consider, interview, or
hire an applicant; and (4) the applicant was a bona fide ap-
37BAY CONTROL SERVICES
16 Obviously in the unionized portion of the industry, wages are
often fixed by master collective-bargaining agreements covering
wide geographical areas. Access to the contract alone would be suf-
ficient to assist a bidder. That is not true where there is no single
document which can be researched. Primary research into the mar-
ketplace is well within the realm of probability.
plicant. Ultrasystems Western Constructors v. NLRB, 18 F.3d
251 and citing, inter alia, J. E. Merit Constructors, supra at
303–304.
To the extent there is any question about any specific ele-
ment, for the most part Respondent BCS has demonstrated
the reasonableness of its actions. First, it is clear that both
Respondent Bay and Respondent BCS were aware of the
Union’s efforts to land jobs for its members and that the
Union intended to organize not only Respondents’ portion of
the Big Three Project but other portions of it as well. How-
ever, the element of union animus is missing entirely and, in
the case of connecting the applications to a concrete job
offer, that element is inconclusive.
Animus, of course, has not been demonstrated in the fore-
going scenario at all. In fact, one journeyman electrician,
Goodman, hired by Wolfe, was known to be a member of
an IBEW local, although not the Charging Party. Moreover,
one of BCS’ helpers, Bonin, is an IBEW wife and a strong
supporter of the IBEW. She was among the persons initially
hired and has remained employed throughout. She testified
she was treated no differently then anyone else. At the very
least that demonstrates that BCS has no particular concern
about whether an employee is a union member or is closely
connected to a union member. Nor can one conclude that it
harbors union animus from the manner in which it treated the
140 I&E applicants. The evidence clearly shows that the I&E
portion needed to be bid carefully and if Respondent was
using the applications as part of its research into the labor
costs to be included in such a bid, that seems harmless
enough. I know the General Counsel is skeptical of that ver-
sion, but two different company officials so testified and
both also testified that it is a practice which is not unusual
in the nonunionized portion of the construction industry.16
Furthermore, the General Counsel has not shown that the
75 or so electricians supplied to Bay, Inc. by the Union were
treated any differently than the 70 or so who were not. There
is no showing that any of the 140–145 applicants, whether
union or nonunion, were hired. In fact BCS treated all 140
applications in exactly the same way. Dudley put them in a
file folder and placed them in his desk. When he became dis-
abled and unable to perform his duties anymore due to ill-
ness, all 140 applications became equally lost. Moreover,
since those applications were aimed at the aboveground bid
(the long-term project), Auwae’s and Wolfe’s ignorance of
them in regard to project IE-429 is not evidence of discrimi-
natory motive. Certainly their authority to hire at the gate for
their smaller and thought-to-be short-term project, is also a
neutral circumstance.
Insofar as timing is concerned, the General Counsel has
failed to demonstrate, indeed the evidence shows to the con-
trary, that there were actual jobs available at the time any
of the electricians presented themselves. As previously noted,
the aboveground project never materialized and IN-405 did
not utilize any electricians. IE-429 was generally fully
manned, either from a superintendent’s following or by gate
hires. The General Counsel has failed to point to a single
opening on December 22, 1992, and immediately thereafter,
or January 6 and immediately thereafter, for which an IBEW
journeyman would have been suited. The only jobs which
were occasionally available were the helper jobs and we have
previously discussed Respondents’ policy against hiring over-
qualified personnel. Indeed, the General Counsel’s brief is si-
lent on the question on what sort of journeymen openings ex-
isted and when. Gate hiring, of course, generally means
qualified individuals who appear at the gate at the right time
are the ones who are hired. The General Counsel has failed
to show that any official of Respondent BCS deviated from
that practice or somehow disfavored those who were in-
volved in the Union’s efforts. One cannot simply assume, as
the General Counsel does, that a failure to hire employees
with a union background is based on that background. That
is particularly so when some of those applicants are manipu-
lating their expressed desires, reducing their request from
journeyman electrician to electrical helper. Accordingly, as
of January 6, 1993, there is no credible proof that BCS had
a policy designed to avoid the hiring of union members or
union sympathizing employees. Indeed, the only hint of that
comes in the next section involving Susan Duhon.
E. Susan Duhon
At the time of the transaction to be described below,
Susan Duhon had been unemployed for approximately 3
years. Her last employment had been for a firm called Ana-
lytical Medical Enterprises. Her resume describes her job re-
sponsibilities with that firm, for whom she had worked about
2 years, as ‘‘general office work: typing, filing, answering
phones; payroll, assisting in hiring nurses, keeping nurses’
records current.’’ Prior to that she had served as an assistant
bookkeeper/rental manager for a property management firm
and before that as a billing clerk for a leasing corporation.
Duhon, like many others, had seen the November ad and
had responded to it by going to the Holiday Inn on Novem-
ber 9. She filed an application at that time seeking a ‘‘cleri-
cal’’ job and attached her resume describing her work experi-
ence. As noted below, the jobs in question went to others.
On January 21, 1993, she filed a second application for em-
ployment at the jobsite seeking the position of ‘‘secretary.’’
At the time of her second application, Bay, Inc., in the
performance of the IN-405 project, had several administrators
employed at the site. These included Bill Manley, the project
manager; Patti Davis, the office manager; and Lauren Oakes,
the timekeeper/assistant office manager. Bay’s industrial divi-
sion manager, Luther Young, testified that he had inter-
viewed Davis at the Holiday Inn in November and that Berry
Contracting’s human resources director, Bill Carlin, in Cor-
pus Christi knew her and recommended that she be hired.
She was initially hired as the timekeeper but almost imme-
diately became the office manager. Oakes in turn became her
assistant/timekeeper. When Davis left sometime in January,
Oakes became office manager/timekeeper. She rather quickly
advised Manley that she could not perform both duties at the
same time and needed an assistant. Manley agreed and de-
cided to take action in several directions in an attempt to find
a suitable assistant.
According to Duhon, sometime on February 11 or 12, her
friend Vivian Bonin, advised her that the timekeeper’s job
was open. Bonin was then employed by BCS on the site as
an electrical helper. In response to Bonin’s tip, Duhon went
38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 The Corpus Christi headquarters may have maintained copies of
the November 9–10 applications, including Atchley’s.
18 Oakes was not called as a witness.
19 Making conditional job offers appears to be a new practice trig-
gered by the Americans with Disabilities Act. Such an offer is be-
lieved to allow employers to ask in detail about physical conditions
an applicant may have without risking violating that law.
to the jobsite a second time on February 12 and filled out
her third application. It was the first in which she actually
sought the job of ‘‘timekeeper.’’ Again, she attached her re-
sume to the application. She also spoke to Oakes.
Duhon says Oakes advised that she ‘‘would take the appli-
cation. [But] there was nothing she could do about it because
her boss was out-of-town, but she would be in touch with
[Duhon] the first of the following week.’’
In fact, the day before, Thursday, February 11, Manley
had indeed gone to Corpus Christi where, among other
things, he began pursuing names of appropriate candidates
for the opening. On the day he arrived in Corpus Christi he
spoke with fellow Manager Doug Lanier asking him for sug-
gestions. Manley knew Lanier had worked in the
Beaumont/Port Arthur area for a long time. Manley says that
Lanier suggested Sue Ellen Atchley because Lanier had for-
merly worked with that individual. Atchley, like Duhon, had
earlier filed an application in November at the Holiday Inn.
It is not clear whether that filing was known to Manley or
Perritt by the time Manley returned to the jobsite late Mon-
day morning, February 15.17 Manley says he asked Perritt to
pull Atchley’s application so apparently there was some
knowledge about it. Later, Atchley was asked to fill out a
second application and she did so on Thursday, February 18.
In the meantime, early on Monday, February 15, and be-
fore Manley returned to the site, Oakes began to move rap-
idly. It appears from the testimony of both Manley and
Young that Oakes did not have the authority to hire anyone.
She was a recent hire herself and Manley had not specifically
authorized her to go forward.18 Nonetheless, according to
Duhon, early Monday morning Oakes telephoned her leaving
a message on Duhon’s recorder. When Duhon responded,
Oakes told her to come down to the office. Duhon arrived
about 9:30 a.m. At that point Oakes told Duhon, ‘‘Let’s get
the employment papers filled out.’’ As a result, a number of
documents were completed. These included a conditional job
offer,19 a drug test consent form, and W-4 and I-9 forms.
Oakes even gave Duhon an employee number. Normally that
was not done until the end of the hiring process, but the
number was easy to determine because it usually consisted
of the last five digits of the individual’s social security num-
ber.
Oakes then took Duhon to see Glenn Perritt in a nearby
trailer. Oakes explained who Duhon was, asking whether
Perritt could get Duhon the drug test ‘‘before noon’’ so she
could begin work that afternoon. Perritt replied that he could
not; the earliest Duhon could go to work would be the next
morning.
Oakes then left and Perritt, after conducting some other
short business, proceeded to ask Duhon additional questions.
During that interview he asked her to perform some minimal
physical exercises to complete the ‘‘physical assessment’’ re-
quirement. During their discussion he learned about some
surgery which Duhon had had, also learning that it was work
related. She says he asked only for her release date. Al-
though not particularly important, I am not certain that her
memory is correct. It seems likely he would immediately ask
her for a copy of the medical release. Clearly, he did so a
little later.
Nevertheless, she testified that he sent her back to Oakes
to obtain the drug test requisition form. After getting it both
Oakes and Duhon returned to Perritt’s office. When they ar-
rived Perritt was on the phone and Duhon could discern that
the conversation Perritt was having related to her. She hand-
ed Perritt the form but he signaled her to take it back. It was
at that point she says that he asked for a copy of the medical
release and then asked whoever he was talking to on the
phone if she should get the drug test before or after submit-
ting the doctor’s release. After ending the call, Perritt asked
Duhon whether she could get the release; he agreed to let her
call the physician for a copy of the form. She says Perritt
remarked the sooner she could get it, the sooner she could
take the drug test. At that point it was about 11:30 a.m. She
left to get the release and returned, it would seem, less than
an hour later. She attempted to give it to Perritt, but he re-
ferred her to Oakes, saying that Oakes would need to make
a copy. She took it to Oakes’ office, but Oakes was not
there. While she waited for Oakes to return, Perritt came in.
About that time Oakes appeared, was given the release, and
left to make the copy.
During those moments, she says, Perritt came over and
said to her ‘‘in a low voice,’’ ‘‘Manley wanted me to ask
you if you are aware that there is a picket line up on the
job.’’ She said she was; then he asked her whether she
would have a problem crossing it. She replied she had been
taught to respect picket lines, but realized she was an office
worker, not a craftsperson and would have no trouble cross-
ing. Then she says Perritt started to leave but turned and
asked her if her husband was a union member. She replied
that he was and testified that he then asked ‘‘Which union?’’
She told him, ‘‘The Electrical Union.’’ She says Perritt then
left the trailer. A few moments later Oakes returned and
went to her desk. Duhon asked if she was getting the drug
test form.
She says Oakes asked her if she could return between 1
and 1:30 p.m. Duhon then asked if she was going to take
the drug test right then, to which Oakes replied ‘‘No, we
have run into a problem and we have got to work something
out.’’ As a result, Duhon went home. Oakes called her at
home about 12:45 p.m. advising that corporate headquarters
had told her to hold off on hiring anyone for the position.
Duhon asked if it was because her husband was a union elec-
trician. Duhon then testified about Oakes’ response: ‘‘She
stammered and stuttered, and said that she had no idea that
he was, but no, she didn’t think that it did.’’ At that Duhon
says she told Oakes that she ‘‘knew that Mr. Manley and Mr.
Perritt knew that he was.’’ She then asked Oakes to give a
message to Manley: to tell him that she would not have trou-
ble crossing a picket line; that she owed her loyalty to the
company that she worked for and that she had worked
enough to know the meaning of the ‘‘confidentiality’’; that
if he would give her half a chance she knew she could do
the job. She says Oakes replied, ‘‘I’m sorry Susan. I am only
doing what I am told to do.’’
It should be observed here that Duhon’s reference to
Manley, and the state of his knowledge, is a bit remarkable.
Duhon had never met Manley and it is unlikely that she
39BAY CONTROL SERVICES
knew his name, despite her above testimony in which she
says Perritt made an oblique use of Manley’s name. The only
person to whom she had spoken besides Oakes was Perritt.
Furthermore, when Perritt was on the phone, under her ver-
sion, he appeared to be speaking to a personnel officer ask-
ing advice about the order in which to process some of the
paperwork. That is not something about which Manley would
have been advising Perritt. I believe there is no supportable
suggestion that Manley’s name or his position was men-
tioned or that Duhon had come to know them.
Duhon went on to testify that later that afternoon she re-
ceived a telephone call from an individual who identified
himself as Bill Manley. She says he apologized for any in-
convenience that she might have been put through, explain-
ing that Oakes did not have the authority to do what she had
done. He also told Duhon he had tried to reach her at
Perritt’s trailer earlier, before she had gone to Beaumont (ap-
parently to obtain the doctor’s release). He went on to say
that Oakes had indeed transmitted her message to him. He
asked to confirm that Duhon had told Oakes that she be-
lieved she hadn’t gotten the job because her husband was a
union electrician. When Duhon confirmed that belief, she
says he ‘‘kind of laughed,’’ and went on to say, ‘‘Oh no,
Ms. Duhon; what a spouse does is of no concern to me.’’
She again asserted that she knew the meaning of the word
‘‘confidentiality’’ and that she could do the job if he would
just let her. She says he responded that she was ‘‘really over-
qualified’’ for the position; that he needed a timekeeper. She
asserted that her resume demonstrated experience in that role,
as she had kept payroll records on the nurses in her previous
job. She says he responded that what he needed was an ‘‘ex-
perienced construction timekeeper, experienced with heavy
turnaround.’’ She denies that he told her he had someone
else in mind for the job.
She agreed on cross-examination that she did not accept
his assertion that she was ‘‘overqualified,’’ but acknowl-
edged that she had never worked as a timekeeper in con-
struction before and was not familiar with the procedures.
Furthermore, to the extent that the timekeeper job required
the incumbent to be an assistant office manager or to fill in
for the office manager as needed, she acknowledges that her
application does not show any office manager experience
whatsoever. On the stand, she asserted that the phraseology
on her resume, ‘‘secretary’’ when she worked for Analytical
Medical Services, really meant that she was the office man-
ager for that business. Even if that is so, her resume’s lan-
guage does not necessarily lead one to that conclusion.
On cross-examination, she asserts that no one (apparently
meaning Oakes) told her what the duties of the timekeeping
job would require. She was, therefore, unaware that the job
required the timekeeper to perform certain part-time office
manager duties.
It will be recalled that Duhon had filed her application
based on a tip which came from Vivian Bonin, a BCS elec-
trician’s helper. There is no showing how Bonin came to
know that there was a timekeeper’s job open at Bay, Inc. In
January she had spent a few days working in the BCS office.
Her experience in the office gave rise to some curious testi-
mony.
Bonin was hired by Auwae on December 14, 1992, and
worked until April 30, 1993, when she left to go to work for
another construction company. About January 20, Larry
Wolfe took over as the BCS I&E superintendent for the de-
parted Auwae. Bonin had suffered a nonwork injury to her
hand and Wolfe knew she was unable to work in the field
for a few days. He was attempting to acclimate himself to
the office and to determine what sort of filing system needed
to be put in place. He asked the injured Bonin if she would
work in the office and help him organize it. She remembers
he ‘‘pulled her in’’ to the office on a Tuesday or Wednesday
afternoon, but did not testify for how many days she re-
mained in the office. Her duties in the office mainly involved
filing, including putting blueprints together and trying to
make sense of the filing system, particularly the filing cabi-
net which held purchase orders.
She said at one point, a friend of hers named Glenn Larkin
came to apply for a job. She went to the filing cabinet to
obtain an application blank for him. After he had filled it out
she took it to the file drawer which contained other com-
pleted applications. As she put it with the others, she noticed
another file folder in the back which had a yellow plastic tag
labeled ‘‘union applications.’’ She testified inconsistently
about what she observed and/or knew:
Q. [By Mr. Martin] Do you know which crafts were
in those folders?
A. Sir, it was only electrical.
Q. How do you know that?
A. Because that is all of the applications that were
ever brought—that was the only applicants that came to
our trailer.
Q. No, madam. I am asking you how you knew what
was in the file. Not what you were experiencing in
terms of applications that came to the trailer.
A. Well, I don’t know the answer to that, then.
Q. You don’t know which crafts were in that folder?
A. No.
Q. It could have been electricians, or it could have
been other crafts as well, couldn’t it?
A. That would be speculation, I can’t answer to that.
Q. You just don’t know, do you?
A. No, Sir.
Q. Do you know if any persons were ever hired from
that file?
A. They were not, sir—not as long as I was there.
Q. How do you know?
A. Because I saw the names on the applications.
Q. You saw them all?
A. The first couple of them. I am familiar, I do
know quite a few members of the local union. I would
have known if they had been out on the job.
Q. And—if they were a member of another union
and they were employed in the underground work at
Bay Control? Would you know that?
A. Only if they told me.
Q. Right. So they could have been in that folder and
hired as a union applicant, and you wouldn’t have
known if they came from that file. Is that true?
A. Could have, yes.
An analysis of Bonin’s quoted testimony discloses her im-
probity. She is clearly willing to embellish whenever she
thinks she can, even as the embellishments become clear. On
direct examination counsel for the General Counsel simply
asked her to describe what she had observed in the file draw-
40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 Her knowledge of VanMeter’s activities on those dates seems
most unlikely unless someone had told her about them. She was an
electrician’s helper who usually worked on the construction site
away from the trailer. It is unlikely that she observed VanMeter and
his colleagues herself or could discern what they were doing even
if she saw them. One possible source of knowledge would be a
union member or official; another might have been Auwae. What-
ever her source, it was secondhand knowledge.
21 The order consolidating cases was issued on June 2, 1993.
22 Duhon testified after Bonin and Kibbe were called at the rebut-
tal stage.
23 Of course Bonin says she saw the file during the very beginning
of Wolfe’s tenure. If so, it must have been created by Auwae. Is
she saying that Auwae had created the folder because VanMeter had
given him copies of the earlier applications? If Auwae did so, can
one assume they had been segregated for nefarious reasons? Or, did
Auwae set them aside for handy reference? Her testimony gives no
clue to the answer to those questions.
er. She replied she had seen a file folder with a yellow tab
labeled ‘‘union applicants.’’ He did not ask her to go further.
Respondent, however, did.
On cross-examination, she said, as a factual matter, that
the file contained the applications of only electrical
craftpersons. That answer suggests she did more than simply
observe the existence of the file, that she must have looked
in the folder to see what it contained. But the next question,
asking her to tell how she knew the applicants were elec-
trical, drew the answer: ‘‘[T]hat was the only applicants that
came to our trailer.’’ That answer, and its followup, gives
her away.
First, her response fails to meet the thrust of the question;
it avoids a direct answer. Second, she has backed away from
her suggestion that she actually knew the applications in the
file were from electricians; now she concedes that she was
making an assumption that they were electricians because
she somehow knew that only electricians had come to the
site to make application. Simultaneously she must also be
conceding that the file may have contained applications of
persons other than electricians, because she must realize her
assumption might not be accurate. Therefore, she has backed
away from her earlier testimony that the file contained ‘‘only
electrical.’’ Third, by saying that electricians had come to the
BCS trailer, she seems to know about VanMeter’s presen-
tations of December 22, 1992, and January 6, 1993.20
When counsel, recognizing that she had not answered his
question, continued to ask how she knew what was in the
file, she conceded she didn’t know, that she was only specu-
lating. That acknowledgment, of course, requires a finding
that her testimony cannot be relied on. Yet, despite her con-
cession that she didn’t know who or what was in the file,
undaunted, she asserted that she knew that the persons in the
folder had not been hired. That, of course, is illogical. If she
didn’t know who was in the file, she couldn’t very well have
known who was or was not hired from the file. Apparently
recognizing her inconsistency, she reverses herself again,
claiming she had seen some names, ‘‘at least the first couple
of them.’’ That is clear embellishment. Even so, that effort
is illogical because she goes on to say that the reason she
knows persons were not hired from the file is because she
is able to recognize the names of most of the IBEW mem-
bers. Assuming that she can recognize the names of most of
the 700 working members, that fact still does not explain
how she knew persons from the file were not hired. She
never knew who was in that file. She didn’t even know
whether there were any IBEW names in that file. The two
or so which she now claims she saw were not identified ei-
ther by name or by union affiliation.
It is quite clear that this witness has dissembled while de-
scribing this file.
It gets worse. Bonin says that the first person she told
about observing this file was Duhon, but not until about 2
weeks after Duhon was turned down for employment in mid-
February. She supposedly mentioned it to Duhon several
more times thereafter. She also says she reported it to Chris
Kibbe, a union field organizer. She could not remember
when she told Kibbe, saying that it occurred ‘‘when all the
trial was put together and it was decided that everything
would be—there would be a hearing in all of this. . . . They
decided to combine both these cases together at some point
in time. Was it April or May, maybe even June? . . . That
is when I talked to them [sic] about it.’’21 Neither Duhon nor
Kibbe was asked to corroborate Bonin on the point.22 What
is clear, however, is that Bonin did not tell anybody from the
NLRB about it until a week before the hearing. At that time
she advised counsel for the General Counsel who learned of
it for the first time. She did not give a prehearing statement
to any Board agent.
Respondent offered contrary evidence about the existence
of such a file and the General Counsel obtained a denial
from Wolfe. The witness most familiar with the site office
paperwork, specifically the application files, was Perritt. He
maintained those files for Bay, Inc. and has some working
knowledge of files maintained by BCS. He testified that he
had never seen any file or file folder marked ‘‘union applica-
tions.’’ Similarly, Wolfe said he did keep some applications
on site at the BCS trailer, but they were not separated in any
way.23
Frankly, I do not find Bonin to be worthy of belief. She
is clearly a witness of convenience. Her claim that a file
folder existed labeled ‘‘union applications’’ is simply an
after-the-fact effort to bolster a thin case. She is either at-
tempting to give aid and comfort to her good friend Duhon,
a scenario I believe to be the most likely; or is demonstrating
solidarity with her husband’s union. It is simply made of
whole cloth and must be rejected outright. If she had really
seen such a file in January as she said, she would not have
waited until 2 weeks after her friend Duhon was turned down
for the job to inform Duhon about it. She had tipped Duhon
to the job. Moreover, had Duhon really been aware of it and,
according to Bonin, she repeated the story to Duhon several
times thereafter, Duhon would have promptly informed the
Union or a Board investigator, yet she did not. It is undoubt-
edly true that the General Counsel did not ask either Duhon
or Kibbe to confirm Bonin’s story because neither could
have done so. Bonin’s effort to enhance the case must be re-
jected. Specifically I find that her testimony about the exist-
ence of a file labeled ‘‘union applications’’ is false. There-
fore, no union animus can be inferred from or found in
Bonin’s testimony.
In making that finding, I do not reject out-of-hand the re-
mainder of the General Counsel’s case with respect to
Duhon. Certainly Duhon’s situation requires Respondent Bay
to explain itself further. In this regard, both Perritt and
Manley have recollections different from those of Duhon.
41BAY CONTROL SERVICES
24 At least one of those, Rose Marie Mullins, who had filed an ap-
plication on February 10, probably warranted a closer look.
25 It should be observed here that Respondent, in its answer to the
consolidated complaint, admitted that Oakes was a supervisor within
the meaning of Sec. 2(11) of the Act and an agent within the mean-
ing of Sec. 2(13) of the Act. It does not follow from that admission
that she had the authority to hire or fire.
26 From an extrapolation of testimony, I find the picketing began
in early February. It lasted for 3 or 4 weeks, including the days
when Duhon was under consideration.
27 Although the record does not conclusively establish which
union(s) established that picket line, it seems that they were con-
struction unions other than the Charging Party, and it was directed
at contractors who were working at the site other than Bay, Inc. or
BCS.
28 Perritt testified that both Patti Davis and Lauren Oakes had ear-
lier advised that they did not want their cars kicked in. As a result
he and Manley had a few discussions about whether they should
park their vehicles at a nearby grocery store to permit Manley to
drive them in together in his large Chevrolet Suburban. The record
does not establish that he advised Duhon of this thinking in any de-
tail.
Manley testified that one of the things he did to search for
candidates for the timekeeper’s slot, besides speaking to La-
nier, was to ask Perritt to pull the clerical applications which
Perritt had on file at the site. Curiously, he acknowledges
that he never really looked at those which Perritt retrieved
and put on his desk.24 Nonetheless, Manley was well aware
of the culture and hiring preferences which his company fol-
lowed. He knew that all the Berry Contracting, Inc. subsidi-
aries give preference for hire to satisfactory employees who
have worked for one of them previously. They also give
preference to individuals who are known by managers to be
competent and on whose recommendations other managers
can rely. Furthermore, Manley was well aware that construc-
tion experience was a primary factor in hiring a clerical be-
cause an experienced employee did not need to undergo
much training.
Accordingly, having received the recommendation from
Lanier regarding Atchley, the first thing he did on Monday
morning when he turned his attention to the matter was to
ask Perritt for Atchley’s application. That he did so, given
Respondent’s policies and practices, can hardly be considered
unexpected.
He was not aware that Oakes and Perritt were processing
Duhon’s application. He had not authorized Oakes to proceed
on the matter and his own actions have to be characterized
as the initial actions of the person who was going to be mak-
ing the decision. Oakes’ maneuvering was not.25 Thus, when
Perritt informed Manley that Oakes was processing another
candidate for the job, Manley needed immediately to deal
with that issue. Manley says at the time he called Perritt to
ask for Atchley’s application and learned about Duhon, he
asked that Perritt hold off on Duhon because he had not re-
viewed her application. Furthermore, he had not given Oakes
any instructions on the question and had not even given her
permission to interview anyone. Perritt recalls that Manley
asked him to stop the interview and to hold up on hiring
Duhon because he wanted to look at other applications.
Perritt also remembers Manley saying at the same time that
it ‘‘might be a good idea to ask if these applicants would
be able to cross a picket line to go to work.’’
Perritt says he then asked Duhon if she would have any
problem crossing the picket line to come to work, explaining
that there had been, within the last few days, and weeks,26
a sporadic picket line established by some construction
unions.27 He went on to tell her that there had been some
damage to some automobiles which had been kicked and hit
and that it was possible that Bay’s employees might have to
come to work an hour or so late,28 after the pickets would
have left.
Perritt says Duhon replied that she didn’t personally have
a problem, but observed that her car was registered to her
husband, an IBEW member. It was traceable to him through
the license plate number. Perritt says she told him she need-
ed to ask her husband if he had a problem with her crossing
such a line. He says he told her that she ought to check with
her spouse and get back to him after they had discussed it.
Perritt agrees that a few moments later he took Duhon’s
entire ‘‘package’’ to Manley and did in fact report her an-
swer to him. He also told Manley that he had advised her
that they were going to hold off on hiring her, but in the
meantime she would check with her husband about his pos-
sible concern over the picket line.
At that point Perritt says Manley telephoned Human Re-
sources Director David Carlin in Corpus Christi. Manley,
with Perritt present, asked Carlin whether they were bound
to honor the conditional job offer which Oakes had extended
to Duhon. He says Carlin asked him if Duhon was qualified.
Manley advised that she was, but that Atchley seemed to
have more construction experience and could double as of-
fice manager. Carlin replied they were not bound by the con-
ditional job offer.
In addition, Manley mentioned that Duhon’s husband was
a member of the IBEW. Carlin asked how they had found
that out and Perritt told him he had asked her about crossing
the picket line and learned it as she explained her husband’s
possible concern. At that point Carlin said he was going to
leave the decision in the hands of the project manager.
Manley says at that time he did not know what he was
going to do. He obviously had not yet made a decision be-
cause he had not had the opportunity to determine whether
Atchley was available. Both he and Perritt agree that Duhon
probably could have served in the capacity. Yet Atchley’s
background was clearly superior to Duhon’s. Perritt called
Atchley on February 16 and ascertained that she was avail-
able to work. She later filled out a fresh application form on
February 18 and was hired.
After Manley made his decision, he telephoned Duhon at
her home. He says he advised her that he had hired someone
else and he was sorry for the inconvenience, but that they
would keep her application on file.
Manley denies Duhon’s testimony that he ever told her she
was ‘‘overqualified.’’ Instead, he says, he told her that she
did not have construction experience and her background
was really not suitable for the job. He says he advised her
that the person he had found was someone who had consid-
erable experience in construction timekeeping and construc-
tion practices. I credit him on this point. Duhon’s claim to
the contrary is, I find, unnecessary embellishment. She was
definitely not overqualified and there was no reason for
Manley to misstate his reason for choosing someone else,
even if he had another secret, but illegal, motive.
42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
29 In this regard, I do note that there is after-the-fact evidence that
union electricians and pipefitters have been hired. I do not concern
myself with the evidence and testimony covering October 1993 to
the effect that Respondent BCS hired some electrical helpers ac-
quired through the Union. That incident occurred well after the mat-
ters which are the subject of the complaint and are therefore subject
to possible manipulation. It is an entirely collateral matter. Accord-
ingly, it is not a proper part of this case.
30 277 NLRB 1217 (1985).
Manley remembers that Duhon asked if he was not hiring
her because her husband belonged to the Electrical Workers
Union. He says he replied, ‘‘No, I did not know your hus-
band was a member of the union. It doesn’t have anything
to do with my decision on hiring you. I believe we have
union people working out here for us at this time.’’ He says
that they continued talking but he does not recall what else
was said except he remembers telling her he was not looking
for someone to train, that he needed someone who was thor-
oughly experienced; that this was a ‘‘fast track job.’’
I should observe here that Manley was being somewhat
disingenuous with Duhon. In fact he did know by then that
Duhon’s husband was an IBEW member. Perritt had so re-
ported it to him and they had discussed the situation with
Carlin on the telephone. Nonetheless, it appears that
Manley’s assessment of the relative experience of the two
applicants is correct. Atchley had worked in various clerical
capacities with construction firms between 1988 and July
1992. Furthermore, she had the specific recommendation of
a fellow Bay, Inc. manager who had worked with her in the
past.
IV. ANALYSIS AND CONCLUSIONS
In the foregoing factual section, I have already performed
a certain amount of credibility and factual analysis. Specifi-
cally I have determined that the IBEW’s journeymen elec-
tricians were not bona fide applicants for the electrical help-
ers’ job. And, it appears that they wished to impose condi-
tions of their own on the hiring decision-making process
which Respondent BCS was not obligated to accept, i.e., the
applicants’ requests to be hired as helpers on the condition
that they be promoted to journeyman electricians when such
openings appeared. Additionally, there is virtually no evi-
dence that any journeyman electrical positions were available
at the time the offer was made. Therefore, the inference of
animus which the General Counsel wishes me to draw under
Fluor Daniel, 304 NLRB 970 (1991), is not appropriate here.
The circumstances are simply too ambiguous. Thus, the Gen-
eral Counsel has failed to demonstrate by credible evidence
that Respondent Bay did anything improper with respect to
the I&E applications which were taken at the Holiday Inn on
November 9–10. There is nothing to contradict the testimony
that those applications were taken for the purpose of re-
searching the labor market to make an intelligent bid on the
aboveground portion of the work and the aboveground por-
tion of the work never materialized, for BCS’ bid was unsuc-
cessful.
Therefore, aside from the discredited testimony given by
Bonin, none of the elements of a prima facie case is present.
The element of union animus is missing because Bonin’s tes-
timony cannot be relied on. Accordingly, I conclude that the
General Counsel has failed to prove that Respondent has a
policy of refusing to hire employees with a union back-
ground.29
With respect to Duhon, it is appropriate to first determine
whether the element of animus is present. The General Coun-
sel specifically relies on the incident in which Perritt inquired
whether Duhon would cross the picket line of a stranger
union and his learning that Duhon’s husband was a union
member to conclude they were factors in Manley’s decision
not to hire her. I do not concur.
First, it is quite clear that the question regarding the picket
line would not have come up had the pickets not been engag-
ing in rough activity. The line was directed at other employ-
ers. It is undisputed that the pickets in question had recently
engaged in boisterous conduct resulting in property damage.
Automobiles had been kicked and struck as they crossed the
picket line. This had engendered a certain amount of fear
within Respondent’s office staff. It is also undisputed that
Superintendent Manley and Safety/Personnel Officer Perritt
had discussed the best way to offer employees a safe pas-
sage. Tentative plans been made to allow office workers to
come in late and to offer them a ride in Manley’s private ve-
hicle from a nearby grocery store. Obviously, employee safe-
ty was on Manley’s mind.
It is true that there is a credibility discrepancy between
Perritt and Duhon over whether Perritt described the risks at
this picket line. Nonetheless, it seems to me that Perritt’s
version is somewhat more credible than Duhon’s. It will be
recalled that Perritt testified that he was reminded to ask
Duhon about her willingness to cross such a line shortly be-
fore he actually asked the question. He says that he did in-
form Duhon about the risk, although he is not certain exactly
how far he went with that information. He observes that it
was in response to his mentioning the risk of property dam-
age that Duhon advised him that her car was registered to
her husband, a union member, and she needed to discuss the
circumstances with him first.
Under her version, Perritt’s question regarding her willing-
ness to cross the picket line was unaccompanied by any ex-
planation. That seems unlikely given the nature of this picket
line. I observe that it is the legal responsibility of employers
to provide employees with a safe place of employment. If
they fail to do so, and injury results, the employer may be
liable for not informing the employee of the risks. It seems
most likely therefore that Manley wanted Perritt fully to ad-
vise this prospective employee of a risk of danger so that she
could make an informed decision about whether she wanted
the job. Therefore, I cannot credit her recollection that Perritt
said nothing about the reason for his question.
Accordingly, I find as a factual matter that Perritt did in-
form Duhon of the risk of the picket line and was simply
asking whether that risk was acceptable to her. In that cir-
cumstance, I cannot see where a Section 7 right has been ab-
rogated. For any interrogation, under the rule of Sunnyvale
Medical Clinic,30 to constitute a violation of the Act, it must
be coercive and have the object or result of causing an em-
ployee to abandon rights guaranteed under Section 7 of the
Act. Even before the Board’s decision in Sunnyvale, asking
an employee about his or her intentions in the event of a
strike was not prohibited outright. If the inquiry had a legiti-
mate purpose, such as assisting the employer in determining
43BAY CONTROL SERVICES
31 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982); also NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983).
32 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
whether he can remain in business during a strike, the ques-
tion was considered lawful and permissible. Industrial Towel
& Uniform Service, 172 NLRB 2254 (1968). That test for
lawfulness was subsequently refined in Mosher Steel, 220
NLRB 336 (1975). There, the Board, citing Industrial Towel,
supra, stated its rule: ‘‘[Q]uestions about employee strike in-
tentions are not per se unlawful but must be judged in light
of all the relevant circumstances.’’ Following that rule, and
preceding Sunnyvale by only a few months, the Board in
American Thread Co., 274 NLRB 1112, 1113 (1985), held
a single, isolated question to a job applicant during a period
of contract negotiations about whether he would cross a pick-
et line in the event of a strike not to be a violation. Implicit
in that decision is the requirement that there be evidence of
coercion. A few months later, in a different context, the coer-
cion requirement became explicit in Sunnyvale.
Coercion cannot be found here. Perritt had no intention of
coercing Duhon from engaging in a Section 7 right, only to
inform her of circumstances regarding her work which might
make her uncomfortable—a risk of damage to her vehicle or
to herself in the event the picket line continued to be rough.
She responded by saying she needed to discuss the risk with
her husband, hardly the response of someone being denied
a Section 7 right. Compare the employee’s response in Amer-
ican Thread. Accordingly, I find this questioning to be non-
coercive and therefore not violative of the Act; nor do I find
it to be evidence of union animus.
Furthermore, it seems more probable that Duhon would re-
spond to Perritt’s question concerning the picket line by re-
viewing with her husband any problems that he might have.
That in itself would inform Perritt that her husband was a
union member, yet its revelation was simply an incidental
answer to his lawful question. Therefore, I do not find that
Perritt coercively interrogated her about her husband’s union
membership. Nonetheless, the issue of whether Respondent
utilized that knowledge in its decision-making process re-
mains open.
I shall, for the purpose of analysis here, assume that Re-
spondent did take that information into consideration as it
analyzed the appropriate candidates to be selected. I observe
in that regard that there is no question that of the two can-
didates, only one had a significant working history in the
construction industry: Atchley, not Duhon. Furthermore,
Atchley had the benefit of having been recommended by
Manley’s fellow manager. She was a reasonably well-known
quantity. Duhon had never worked in the construction indus-
try and would have required a certain amount of training
which Atchley would not need. Finally, Atchley had a dem-
onstrated office manager background while Duhon did not,
at least according to her own resume. All these factors clear-
ly favored the selection of Atchley.
If one assumes that the General Counsel has made out a
prima facie case with respect to Respondent’s decision not
to hire Duhon, under the Wright Line31 rule, the employer
may successfully defend by establishing that the same action
would have taken place even in the absence of the protected
conduct. Wright Line, supra at 1089. In this regard, I think
it is clear that Respondent Bay has demonstrated that it
would have made the same decision that it did even with the
knowledge that Duhon’s husband was a union member. First,
I observe that Bay, Inc.’s sister, or operating arm, BCS, al-
ready employed one person whose spouse was known to be
a union member. That was Vivian Bonin and, while it may
be true that Bonin’s circumstances were a bit different since
she actually worked for BCS and since she was already on
board when she announced her husband’s membership, she
acknowledged that no one treated her any differently once
that fact was known. Second, that sister had hired at least
one union journeyman, Goodman. Therefore, union member-
ship considerations do not appear to exist. Third, it is likely
that Manley was a bit miffed at Oakes for having proceeded
into the hiring process without him. He certainly wanted to
have input over who was hired and did not want to be rushed
by the newly promoted Oakes. Finally, Atchley was, without
question, the superior candidate. She was fully experienced
and needed no training. Duhon, objectively, did not offer
even an equal background. Accordingly, assuming the Gen-
eral Counsel has made out a prima facie case regarding the
rejection of Duhon as an applicant, I conclude that Respond-
ent Bay, Inc. has fully rebutted it.
CONCLUSIONS OF LAW
1. Bay Control Services, Inc. and Bay, Inc. are employers
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 General Counsel has failed to prove that either Bay
Control Services, Inc. or Bay, Inc. has engaged in any viola-
tions of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended32
ORDER
The complaint is dismissed in its entirety.