B&C Contracting Co.

National Labor Relations Board - Board Decisions

Jun 6, 2001

334 N.L.R.B. 218 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 218
B & C Contracting Co. and Northwest Ohio District
Council of Carpenters a/w the United Brother-
hood of Carpenters and Joiners of America,
AFL–CIO. Cases 8–CA–29634 and 8–CA–29914
June 6, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On June 4, 1999, Administrative Law Judge Earl E.
Shamwell Jr. issued the attached decision. The General
Counsel filed exceptions and a supporting brief. The
Respondent filed cross-exceptions, with a supporting
brief, and an answering brief1 in opposition to the Gen-
eral Counsel’s exceptions. By notice dated June 21,
2000, the Board invited the parties to file supplemental
briefs addressing the framework for analysis for refusal-
to- consider and refusal-to-hire violations set forth in the
Board’s May 11, 2000 decision in FES, 331 NLRB 9.
On July 11 and 12, 2000, respectively, the Respondent
and the General Counsel filed their supplemental briefs.2
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,3 and conclusions as further discussed below, and to
adopt the recommended Order.
1. The judge found that the Respondent did not violate
Section 8(a)(3) and (1) of the Act by failing to accept
applications from, and consider for employment, the
January 7 and 8 groups of union applicants. We agree
with the judge’s finding for the reasons set forth by him
and for the additional reasons set forth below.

1 The Respondent’s answering brief, including its posthearing brief,
which is attached to the answering brief as an appendix, is 105 pages.
Although Sec. 102.46 (j) of the Board’s Rules and Regulations states,
inter alia, that “[a]ny brief filed pursuant to [Sec. 102.46] shall not . . .
exceed 50 pages in length,” the Board inadvertently accepted the Re-
spondent’s nonconforming answering brief. We have, therefore, con-
sidered the Respondent’s answering brief in its totality.
2 In light of our discussion below, we deny the General Counsel’s
request, in his supplemental brief, to remand this case for further con-
sideration in light of FES, supra.
3 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance 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.
In adopting the judge’s finding that the Respondent did not violate
Sec. 8(a)(3) and (1) of the Act by failing to accept and consider the
February 2 and 3 faxed applications, we find it unnecessary to rely on
his statements, in fn. 76, regarding these applicants’ purported lack of
bona fides.
In FES, supra at 15, the Board recently clarified the
elements of a discriminatory refusal-to-consider viola-
tion:

To establish a discriminatory refusal to consider,
pursuant to Wright Line . . . the General Counsel
bears the burden of showing the following at the
hearing on the merits: (1) that the respondent ex-
cluded applicants from a hiring process; and (2) that
antiunion animus contributed to the decision not to
consider the applicants for employment. Once this
is established, the burden will shift to the respondent
to show that it would not have considered the appli-
cants even in the absence of their union activity or
affiliation.
. . . .
If the respondent fails to meet its burden, then a
violation of Section 8(a)(3) is established.

The judge’s findings comport with this test. Accord-
ing to the credited testimony, on January 7, approxi-
mately 11 union members visited the Respondent’s on-
site trailer at its Leipsic, Ohio project, and sought to ap-
ply for work. The Respondent was aware of these indi-
viduals’ union affiliation. The union members met with
Whitson, who served as the Respondent’s crew leader
and jobsite supervisor, and was responsible for, among
other things, hiring and firing employees at the Leipsic
project. Whitson provided applications to all the union
members who sought to apply for work on that date. Be-
fore receiving the completed applications, Whitson asked
if any of the individuals were willing to travel. None
were willing. After examining the first two completed
applications and concluding that the applicants were car-
penters, Whitson stated to the group that he needed mill-
wrights, not carpenters.
On January 8, approximately seven union members ar-
rived at the Respondent’s onsite trailer to apply for work.
The Respondent was aware of these individuals’ union
affiliation. Whitson provided all of these individuals
with applications. He also asked them if they were will-
ing to travel. None were willing. After the applicants
informed Whitson that they were members of the Car-
penters’ Union, Whitson told them that he needed mill-
wrights, not carpenters.
We agree with the judge that the Respondent did not,
as alleged in the complaint, fail to accept applications
from and fail to consider for hire the 17 named individu-
als who applied for work on January 7 and 8 because of
their union affiliation. Specifically, as the judge found,
all of the individuals were provided with, and completed,
applications. Furthermore, Whitson asked the applicants
questions relating to the two paramount qualifications
334 NLRB No. 25
B & C CONTRACTING CO. 219
required for employment with the Respondent—whether
the applicants were millwrights who were willing to
travel (willingness to travel was necessary at that time).
Thus, the Respondent did not exclude these individuals
from its hiring process. To the contrary and consistent
with the judge’s finding, Whitson considered the appli-
cants in question.4
2. We adopt the judge’s finding that the Respondent
did not violate Section 8(a)(3) and (1) of the Act by fail-
ing to accept applications from and consider for em-
ployment the group of applicants whose resumes the Un-
ion sent to the Respondent at its Leipsic, Ohio worksite
via facsimile (fax) transmission on February 2 and
3, 1998.
The judge’s findings regarding these applicants com-
port with the FES test for refusal-to-consider violations
described above. Specifically, the judge credited
Whitson’s testimony that he never physically received
the faxed resumes. Thus, the Respondent did not ex-
clude these applicants from its hiring process.
In excepting to the judge’s finding, the General Coun-
sel argues that the judge erroneously found that the Gen-
eral Counsel had failed to prove that the Respondent’s
officials ever actually received the faxed resumes. The
General Counsel contends that knowledge of a fax
transmission received by an employer’s fax machine
during regular business hours should be imputed to the
employer, regardless of whether the person to whom the
fax was addressed actually received the fax.
Although we recognize the facsimile machine as an ef-
fective and generally reliable means of communication,
we decline to adopt the rigid rule advocated by the Gen-
eral Counsel. Contrary to the General Counsel, we do
not believe that such a rule was established by the
Board’s decision in Clow Water Systems Co., 317 NLRB
126 (1995), enf. denied 92 F.3d 441 (6th Cir. 1996),
which involved a striking union’s facsimile transmission
of an unconditional offer to return to work.
There, the employer had accepted the use of its fax
machine as an appropriate means of communication. In
that context, the Board rejected a requirement that the
employer’s actual knowledge of the transmission be
shown. Rather, the Board concluded that the employer
bore the “responsibility for maintaining adequate office
procedures concerning fax transmissions, and knowledge
of the receipt of the Union’s fax communications during
regular office hours may reasonably be imputed to it.”
Id. at 127.

4 The judge stated that the issue of the Respondent’s antiunion ani-
mus with respect to the January 7 and 8 groups of applicants was moot
because the General Counsel did not establish, as a threshold matter,
that the Respondent failed to accept applications from or failed to con-
sider these individuals for hire. Assuming arguendo that the General
Counsel met his burden under FES for establishing the elements of a
refusal-to-consider violation, we would still find that the Respondent
met its burden of demonstrating “that it would not have considered the
applicants even in the absence of their union activity or affiliation”
because the applicants did not possess the two chief qualifications (as
discussed above) required for employment with the Respondent.
Here, the judge found that the faxed applications had
been received by the Respondent’s fax machine. But he
credited the testimony of Whitson, the Respondent’s
crew chief leader and jobsite supervisor at the Leipsic
site, that he himself did not receive the faxed applications
(which were addressed to the Respondent’s “superinten-
dent”) and that he had no knowledge of them. The judge
also found that the “Union chose to send the resumes to
the Company fully aware that the Company was pulling
up stakes at the Leipsic job, had laid off employees, and
was demobilizing,” but made no effort to verify receipt.
In this case, it was Whitson’s knowledge that was ma-
terial. The demonstrated receipt of the faxed applications
by the Respondent’s machine certainly created a pre-
sumption that Whitson himself had seen them. But the
Respondent rebutted that presumption by Whitson’s
credited testimony, which in light of the Respondent’s
on-going move was not inherently implausible. The
facts here, then, distinguish this case from Clow. The
Respondent cannot fairly be faulted for maintaining in-
adequate office procedures. Nor is it unfair to impose
the risk of an uncompleted communication on the Union,
which sent the resumes knowing that the Respondent’s
office might well be in disarray. In these unusual cir-
cumstances, we agree with the judge that knowledge of
the faxed resumes cannot be imputed to the Respondent.5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, B & C Contracting Co., Kis-
simmee, Florida, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.

Mark F. Neubecker, Esq., for the General Counsel.
5 This result is not inconsistent with the Board’s decision in Electri-
cal Workers Local 98 (Telephone Man), 327 NLRB 593 (1999), also
cited by the General Counsel. At issue there was the union-
respondent’s notice of a fax, which had been received during normal
business hours. The Board adopted without comment the judge’s find-
ing that the union did have notice. The judge drew an adverse infer-
ence from the failure of the union to call the individual addressee as a
witness. She also pointed out, citing Clow, that the “Board has recog-
nized that fax transmission is an effective means of communication.”
327 NLRB at 601. Here, in contrast, the recipient denying notice did
call a witness, whose testimony was credited. The circumstances,
meanwhile, strongly suggested to the sender that fax transmission was
not “an effective means of communication.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 220
Alan G. Ross, Esq. and Fred Seleman, Esq. (Ross, Brittain &
Schonberg Co., LPA), of Cleveland, Ohio, for the Respon-
dent.
Michael T. Rahn, of Northwest Ohio District Council of Car-
penters, Toledo, Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
EARL E. SHAMWELL JR., Administrative Law Judge.
This case was tried before me in Toledo, Ohio, on November 2,
3, and 4, 1998, pursuant to unfair labor practice charges filed
with the National Labor Relations Board (the Board) by the
Northwest Ohio District Council of Carpenters a/w the United
Brotherhood of Carpenters and Joiners of America, AFL–CIO
(the Union) on February 4, 1998, in Case 8–CA–29634 (and as
amended on June 18 and July 31, 1998), and on May 14, 1998,
in Case 8–CA–29914, against B & C Contracting Co. (the Re-
spondent). On July 31, 1998, the Regional Director for Region
8 issued an order consolidating these cases and a consolidated
complaint against the Respondent.
The consolidated complaint alleges that the Respondent vio-
lated Section 8(a)(1) of the National Labor Relations Act (the
Act) by cautioning an employee not to discuss his wages or per
diem with other employees and threatening not to hire any “un-
ion guys” and “guys from the [Carpenters] union.” The con-
solidated complaint also alleges that the Respondent violated
Section 8(a)(3) and (1) of the Act by failing to accept job appli-
cations from and consider for employment certain named per-
sons because of their involvement with, and support of the Un-
ion, and engaging in concerted activities.1 The Respondent
filed a timely answer to the consolidated complaint generally
denying any violation of the National Labor Relations Act (the
Act) and asserting various affirmative defenses. The decision
here reflects my consideration only of the charges remaining
after consolidation of the respective cases.
The General Counsel and counsel for the Respondent timely
filed briefs in support of their respective positions;2 the repre-
sentative for the Charging Party did not file a brief.
On the entire record in this case, including posthearing briefs
filed by the parties, and on my observation of the demeanor of
the witnesses, I make the following

1 On November 2, 1998, at the hearing, the General Counsel orally
moved to amend the consolidated complaint to include a new par. 9,
which charged that the Respondent’s alleged conduct in parts 6(A), (B),
and (C) of the complaint violated Sec. 8(a)(1) of the Act; this charging
language had been inadvertently omitted from the consolidated com-
plaint. This inclusion of new par. 9 required the renumbering of the
remaining parts of the complaint. (See GC Exh. 2.) The Respondent’s
counsel was notified of the proposed amendment in a telephonic con-
ference in which the Respondent’s counsel, the General Counsel, and I
participated on October 27, 1998. There was no opposition to the pro-
posed amendment, which I approved on the record.
2 On December 14, 1998, the parties, pursuant to a request councel
for the General Counsel, were granted an extension of time for filing
briefs from December 15, 1998, to January 8, 1999.
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Florida corporation,
with its principal office and place of business in Kissimmee,
Florida, engages in the business of a millwright subcontractor
on construction projects throughout the United States. During
the period May 14, 1997, through May 14, 1998, in conducting
its business operations, the Respondent provided services val-
ued in excess of $50,000 for corporations which themselves
were in commerce on other than an indirect basis. The Re-
spondent admits, and I find, that at all material times through
May 14, 1998, it has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find, that at all material times,
the Union, Northwest Ohio District Council of Carpenters a/w
the United Brotherhood of Carpenters and Joiners of America,
AFL–CIO has been a labor organization within the meaning of
Section 2(5) of the Act.3
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts4
The Respondent’s business in the main entails the construc-
tion of feed and flow mills and grain, human, and pet food
processing plants, specifically the assembly and installation of
machinery, and fabrication of supporting structures used in
these facilities. The Respondent performs these services as a
subcontractor employed or retained by general contractors lo-
cated around the United States who are charged with overall
construction of mills and processing plants. The Respondent,
thus, in simplest terms, is an itinerant provider of millwright
workers and services.
Millwright work requires training, experience, and compe-
tence in mechanical work and applications. Millwrights, at a
minimum, should be able to competently fabricate and weld
metal structures and be familiar with the installation of certain
types of equipment associated with mills and processing plants,
such as conveyors, extruders, hoppers, coolers, motors, and
drivers. Millwrights are often expected to be able to operate
certain types of equipment such as forklifts and cranes, which
are utilized to move equipment and erect tall structures.
The Respondent’s main office and facility is located in Kis-
simmee, Florida, and its principal owner and president is Doug-
3 The Northwest Ohio District Council includes a number of local
unions under its aegis, including but not limited to Carpenters Local
1138, Millwrights Local 1393, Carpenters Local 248, Carpenters and
Millwrights Local 372, Carpenters and Millwrights Local 2239, and
Residential Carpenters Local 1365.
4 The findings in this section reflect my consideration of the total
body of evidence presented at the hearing, including the reasonable
inferences gleaned from this evidence. To the extent these findings
conflict with or are contrary to other evidence of record, I have specifi-
cally discredited any such conflicting or contrary evidence. Where
witness testimony is involved in these findings, I have credited the
pertinent testimony consistent herewith.

B & C CONTRACTING CO. 221
las Coberley.5 The Respondent, however, contracts to perform
millwright services throughout the United States and, conse-
quently, establishes a business presence at the various jobsites
around the country and occasionally will solicit applications for
employment from these construction sites.6 The Respondent
employs certain permanent or core employees—core hands—
who are organized into work crews that travel from job to job.
At any given time, the Respondent may have several crews out
and about the country providing millwright services. Core
hands always travel job to job. When it needs additional help,
the Respondent first attempts to hire workers near the construc-
tion site in question to reduce operating costs.7 If local hires
are not forthcoming, the Respondent will place help-wanted ads
in newspapers in localities closest to the jobsite in question.
These ads are generally placed by the Respondent’s staff in
Florida. On occasions, when advertised positions have been
filled or otherwise are unavailable, the Respondent may offer
employment at its prospective or ongoing projects in other loca-
tions to qualified applicants who respond to the ads. In such
cases, applicants are required to travel to these sites.
Beginning around July 14, 1997, and ending around Febru-
ary 1998, the Respondent performed millwright work under
contract for a general contractor, Todd & Sargent (T & S), for
the erection of a pet food processing plant in Leipsic, Ohio.8
T & S was responsible for the full scope of construction on
the project (the IAMS Pet Food project) and hired all subcon-
tractors, including the millwright companies. In addition to the
Respondent, there were three other millwright companies work-
ing at the Leipsic site—Spallinger, PMI, and Grub.9 T & S
itself performed the bulk of the millwright work and assigned
the balance to the Respondent and the other millwright compa-
nies. Pursuant to its contract with IAMS Pet Food, T & S
planned to have all machinery and equipment installed in the
plant by March 1998.10
Around January 30, 1998, the Respondent was finishing up
its assignments and had begun laying off workers at the IAMS
project. T & S determined that B & C had completed its as-
signments around this time and released them from the con-
tract.11

5 In addition to running the Company on a day-to-day basis, Douglas
Coberley is responsible for hiring and firing; Coberley also works as a
millwright on occasion. The Respondent admits, and I find, that Cober-
ley is a supervisor and/or agent within the meaning of Sec. 2(11) and
(13), respectively, of the Act.
6 The Respondent sets up its operations in onsite rented trailers.
These trailers serve as offices and employee breakrooms. The office
trailers are outfitted with telephones and a fax machine.
7 The Respondent provides a hotel or housing allowance, an hourly
per diem, and other travel related expenses to workers who have to
travel to the jobsite. By contrast, local hires are not provided these
perquisites and, thus, are preferred by the Respondent.
8 Todd & Sargent broke ground on this project around the end of
March 1977.
9 Spallinger began working at the project in September 1997; Grub
began working the site at the end of December 1997. PMI also was
preparing some specialty millwright work in December 1997. T & S’s
policy, to the extent practicable, was to hire local companies. Spallin-
ger and Grub were local millwright firms to whom T & S assigned
various aspects of the millwright work at the Leipsic project.
10 The installation of all equipment and machinery, though planned
to be completed by March 1998, was not completed until April 1998.
The Respondent’s crew leader and jobsite supervisor at the
Leipsic project was David “Dave” Whitson. Whitson began
working for the Respondent in January 1997 as a nonunion-
affiliated millwright. Whitson assumed supervisory status for
the Respondent sometime in 1997 and traveled around the
United States as a crew leader performing millwright work for
the Respondent. Whitson’s duties at Leipsic included hiring
and firing project employees, keeping and maintaining time
reports, supervising clerical workers, arranging for housing,
leasing trailers, and other administrative matters.12 When the
Respondent arrived at the Leipsic site, it had a crew of core
workers, and ran newspaper ads soliciting additional help from
the local labor force.13 The Respondent began working at Leip-
sic in July 1997 and left the project permanently on about Feb-
ruary 8, 1998.
The Union determined that the Respondent was hiring work-
ers for the Leipsic job in September 1977 through newspaper
ads appearing in local newspapers and decided to organize the
Respondent’s employees through overt and covert means. To-
wards that end, the Union undertook to “salt” the Respondent’s
labor force with undercover union members whose wages
would be subsidized by the Union if hired, and who would
report to the Union about work conditions, the number of
workers, workers’ attitude, and other matters of importance to
the Union’s organizing effort.14 Two members of Millwright
Local 1393, namely Curtis Johnson and Duane Greear, inten-
tionally not disclosing their union affiliation, applied for work
at the Respondent’s Leipsic project and were hired in Septem-
ber and November 1997, respectively, by the Respondent.15
11 The Respondent, at the time it left the IAMS project, had some
uncompleted work, that is, certain platforms, the design for which had
to be revised. Consequently, T & S released the Respondent before
these platforms were completed during the first week of February 1998
because the revisions to the platforms delayed their completion for
about a month. T & S paid the Respondent based on hours worked and
materials used, irrespective of whether there was available work for it;
extensive delays, therefore, were costly to T & S.
12 The Respondent admits, and I find, that Whitson was a supervisor
and/or agent within the meaning of Sec. 2(11) and (13) of the Act.
13 Whitson’s core crew consisted of six employees. Notably, the Re-
spondent employed as many as 18 employees at the site for about 4
months, then went to 13 employees, and ultimately had 6 employees
around 2 weeks before the end of the project. The Respondent did not
hire any additional or new employees for the Leipsic job in 1998. Two
employees—Jack Turpin and Kevin Conrad—were hired in 1997 (Au-
gust and November, respectively), but left the job for the Christmas
holidays. They returned to the job during the week of January 5–11.
(See R. Exh. 9.)
14 This is a salting case. Salting has been defined as the act of a
trade union in sending a union member or members to an unorganized
jobsite to obtain employment and then organizing the employees. A
“salted” member or “salt” is a union member who obtains employment
with an unorganized employer at the behest of his or her union so as to
advance the union’s interests there. Tualatin Electric, 312 NLRB 129,
130 fn. 3 (1993), enfd. Tualatin Electric v. NLRB, 84 F.3d 1202, 1203
fn. 1 (1996). Salting is not illegal under the Act.
15 Johnson’s application (only the questionnaire) is contained in GC
Exh. 14 and dated September 15, 1997; and Greear’s application and

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 222
The Respondent did not become aware of Johnson’s and/or
Greear’s union membership and their engaging in organizing
activities on behalf of the Union until around January 16, 1998,
when the Union notified it by letter.16 Between the time John-
son and Greear were hired and the Union’s notification to the
Respondent of their organizing activities per the January letter,
the union salts engaged in no organizing activities that came to
Respondent’s attention or was otherwise discernible by it.17
However, on January 7, 11 union members and, on January 8,
another 5 members presented themselves at the Respondent’s
Leipsic site and sought to make application for work.18 The
union status or affiliation of these was observable by virtue of
union emblems on their clothing and other paraphernalia. On
both dates, the Respondent allowed the unionists to make ap-
plication on forms provided by it. Moreover, eight of the appli-
cants also submitted forms with their applications indicating
they were union organizers.19 However, none of these appli-
cants were hired by the Respondent. Notably, none of them
ever followed up on their applications.

questionnaire, GC Exh. 12 and 12(a), respectively, are dated November
14, 1997. Johnson was interviewed and hired by Whitson. Greear
received his application and questionnaire from one of the Respon-
dent’s employees, Buril Hardin, who passed the forms on to Whitson
who hired him after a telephone interview.
16 The Union sent a letter advising the Respondent—Whitson at the
Leipsic site—of the membership/organizer status of Johnson and
Greear on or about January 16, 1998. (CP Exh. 1.) The Union also
attempted to notify the Respondent—Coberley—at the Respondent’s
Florida address of the status of Johnson and Greear by certified letter
dated January 19, 1998; however, this letter was returned to the Union
as unclaimed. (GC Exh. 9.)
17 Although Johnson and Greear reported to the Union about job-
related matters, they evidently maintained a very low organizational
profile until the Union sent the Respondent the January 16 notification
letter referenced above. Greear testified that between November 19
and the mid-December 1997, he did not actively engage in union orga-
nizing and he believed that the Respondent did not know of his union
involvement as of January 7 and 8, 1998. Johnson did not testify to any
overt union activity on his part prior to the notice letter. But, in mid-
January, both Johnson and Greear attended two meetings off the jobsite
(on January 15 and 22) to which others of the Respondent’s employees
were invited and whereat the Union was discussed. Notably, Buril
Hardin, an alleged management agent, attended one of these meetings.
As a result of these meetings, union authorization cards were signed on
January 22 by a majority (7 of 10) of the Respondent’s employees still
on the job.
18 The Respondent did not produce the actual applications for alleged
applicants Scott Blair and Gail Bowser. Scott Blair, however, credibly
testified at the hearing about his applying on January 8 and that Gail
Bowser was in his group.
19 The applications of the January 7 group are contained in GC Exh.
4; the January 8 group’s applications are contained in GC Exh. 5. The
forms submitted with the application of some of the unionists in both
groups containing the following language (on union letterhead):
“I AM A COMET ACTIVIST AND UNION ORGANIZER”
I WANT YOU TO KNOW THAT I WILL WORK HARD AND
NOT INTERFERE WITH PRODUCTION IF YOU HIRE ME.
HOWEVER, I INTEND TO ORGANIZE YOUR EMPLOYEES INTO
NORTHWEST OHIO DISTRICT COUNCIL OF CARPENTERS BY
ENGAGING IN LEGAL ORGANIZING ACTIVITIES.

SIGNED:______________________

APPLICANT FOR EMPLOYMENT
On or about January 25, 1998, the Respondent placed an ad
in a Tulsa, Oklahoma newspaper seeking workers.20 The ad
sought millwrights, welders, and fitters who would be required
to travel. Applicants were directed to call the Respondent’s
telephone and telefax numbers at Leipsic.21 However, the ad
was placed by the Respondent for job openings at sites other
than the Leipsic project, which at the time was set to be shut
down or demobilized by the Respondent.22
On January 26, two officials of the Union—Michael Rahn,
special projects representative, and Terry Bishop, director of
organizing—visited the Leipsic site and arranged to speak to
Whitson about problems on the job, the Respondent’s possible
need for additional workers, and the Union’s willingness to
furnish workers.23 Whitson advised that the Respondent did
not need any additional workers at the Leipsic site.24
On or about January 23, Union Representative Ray Lorton
wrote25 to the Respondent (Coberley) and advised that a major-
ity of the employees at the Leipsic project had designated the
Union as its bargaining representative and demanded recogni-
tion and bargaining rights on their behalf; the Respondent was
advised that Greear had been designated organizing captain by
the Union. On or about January 26, Coberley responded by
letter to Lorton’s letter stating that the Respondent expressed its
doubt about the Union’s majority status and invited the Union
to pursue the matter before the Board.
Sometime after this meeting, the Union received a copy of
the Respondent’s January 25 ad soliciting workers from one of
the business agents in the Tulsa area. Thinking that the Re-
spondent was trying to circumvent their hiring and organiza-
tional efforts at Leipsic, the union officials assembled 14 re-
20 The ad in question is contained in GC Exh. 3.
21 The Respondent stipulated and agreed that the telephone and tele-
fax numbers contained in the ad, 419–425–4957 and 419–943–3337,
respectively, were the numbers for the Respondent’s Leipsic site.
Specifically, the Respondent stipulated that 419–943–3337 was the
number for its telefax machine located in the onsite trailer at Leipsic;
419–425–4957 was the home telephone number of the Respondent’s
secretary, Joan Hardin, then living temporarily in Leipsic.
22 Notably, both Greear and Johnson were laid off along with other
employees on January 30. There is no unfair labor practice charge
associated with their layoff.
23 Greear and Johnson accompanied these officials. Whitson asked
to record the conversation between himself and the union representa-
tives and evidently did so. However, the recording was not adduced at
the hearing.
24 Bishop originally testified on direct examination that he could not
recall Whitson’s telling him and Rahn that the Respondent did not need
any workers. However, on cross-examination, when confronted with a
sworn affidavit he provided to the Union pursuant to this case, which
indicated that he averred that Whitson told him that the Respondent did
not need workers, Bishop changed his testimony. Bishop also ac-
knowledged that in the affidavit, he averred that this was a sign on the
trailer door that read “Company not taking applications at this time.”
(Tr. 283-287.)
25 A copy of this letter is contained GC Exh. 10. The letter was sent
certified but was returned to the Union as unclaimed. Lorton believed
the Union faxed a copy to Coberley in Florida. Inasmuch as Coberley
responded to his letter a few days later, this evidently was the case.

B & C CONTRACTING CO. 223
sumes of members of Millwright Local 1393 the Union main-
tained in its files and sent these with a cover letter to the Re-
spondent by telefax on February 2, and again on February 3,
1998;26 the entire package was faxed to the Respondent’s fax
number at the Leipsic project. None of these 12 members were
hired by the Respondent.
B. The 8(a)(3) Charges
1. The January 7 and 8 union applicants
In essence, the complaint in part 7 alleges that the Respon-
dent, in spite of available job opportunities, unlawfully failed
on January 7 and 8, 1998, to accept job application from and
consider for employment the following union members:

1. Terry Bishop* 10. Patrick McGuire*
2. Scott Blair** 11. Michael Null*
3. Gail Bowser** 12. Michael Pruss*
4. Daniel Daniels** 13. David Pyles***
5. Bill Glynn** 14. Michael Rahn*
6. Dennis Haack** 15. Bill Reinhart*
7. Fred Haslinger** 16. Timothy Sternberg*
8. Jon Lamb* 17. Kevin Uthoff*
9. John McAfee*

* Allegedly applied on January 7.
** Allegedly applied on January 8.
***Application dated January 7; allegedly applied
January 8.

In support of the charges, the General Counsel called several
of the January 7 and 8 applicants and others involved with the
events occurring on those days at the Leipsic site.
Terry Bishop, a 20-year member of the residential Carpen-
ters Local and, as noted, the Union’s director of organizing at
the time of union organizing efforts at the Respondent’s Leipsic
site, testified at the hearing. Bishop stated that he and 10 other
union members, wearing various union garb, personally applied
for work at the Respondent’s Leipsic project between around
11:45 a.m. and 12 p.m. on January 7. According to Bishop,
Whitson was asked if the men could apply for jobs and Whitson
supplied them with application forms.27 Each man filled out an
application and returned it to Whitson. Bishop conversed with
Whitson about the Leipsic job and asked about hiring opportu-
nities with the Company. According to Bishop, Whitson indi-
cated that he would be hiring probably around the end of Janu-
ary.
Bishop, who included a copy of the organizer notice form
with his application, told Whitson of his intention to organize
the Respondent and asked Whitson if that posed a problem.
According to Bishop, Whitson responded that the Union’s or-
ganizing efforts were no problem with him, “but probably
[would be for] my company.” According to Bishop, Whitson
also did not mention to him anything about jobs in another state
or that employees were required to travel.

26 See GC 7. The cover letter in question is dated January 30. How-
ever, it is undisputed that the entire package was not faxed until Febru-
ary 2 at the earliest.
27 Whitson did not have enough of the forms, so he made copies us-
ing the copy feature of the fax machine in the office.
Regarding his experience and welding training, Bishop testi-
fied that he last worked in the carpenter trade in July 1996 and
performed some welding tasks as a carpenter. Bishop admitted
that he was not a millwright but claimed to know what mill-
wrights do. He understood that the IAMS Pet Food project
entailed simple cutting and welding, which he felt he was quali-
fied to perform. Moreover, it was not his understanding that
the IAMS project was in strict terms a millwright job.28 Bishop
stated that he did not know the qualifications of the men who
accompanied him to the Respondent’s trailer on January 7, or
whether they could perform the tasks associated with the IAMS
job. Bishop could only say that the men were recruited because
they were all out of work at the time and indicated they all had
cutting and welding and/or general laborers experience; he did
not ask them about their millwright skills. According to
Bishop, he applied for a cutting and welding and/or general
laborer position with the Respondent and not a carpenter posi-
tion. If a job were offered, he testified that he would have ac-
cepted a job with the Company.29 According to Bishop to his
knowledge, none of the January 7 group was hired (he asked
them to contact the Union if a job were offered and none con-
tacted him).
Michael Rahn, as noted, has served as the Union’s special
projects representative for the past 8 years and was a working
union carpenter for approximately 15 years; he also serves on
the Union’s organizing committee. Rahn testified that the Un-
ion received reports from his salts, Johnson and Greear, that the
Respondent was or would be in a hiring mode because there
was plenty of work remaining on the IAMS project.30 How-
ever, the Union was uncertain as to how many of the Respon-
dent’s employees would return to the project after the Christ-
mas holidays. Consequently, Rahn put off making any applica-
tions until around the first of the year. At the time (end of year
1997), according to Rahn, the Union had a significant number
of its members out of work; therefore he solicited members
28 Bishop testified that millwrights work on conveyors, tear apart
pumps, grout (water seal), assemble, and set equipment. He admitted
that he was not qualified to assemble equipment, install conveyors, and
fabricate transitions (a fabricated structure designed to move material
(grain or feed) from one size conduit to another).
29 Bishop’s application (GC Exh. 4) merely indicates in the position-
desired part his response of “any.”
30 The Respondent invited its employees to a Company Christmas
party around the mid-December 1997 (December 13). According to the
unrebutted, and in my view, credible testimony of several of the attend-
ing Respondent’s employees—Tracy Johnson, Curt Johnson, Duane
Greear, and Lester Saxon—Coberley, the Respondent’s president, gave
a 20-minute speech in which he, among other things, indicated to the
assembled employees that the Respondent performed a lot of work for
Todd & Sargent and was viewed quite favorably by that company, that
the Respondent needed additional personnel and would give a $200-
bonus to any employee who could recruit a worker who would stay for
at least 90 days. Curt Johnson, Greear, and Saxon specifically testified
that Coberley said that there was a lot of work to do yet on the IAMS
project. Tracy Johnson testified that Coberley said that the Leipsic job
was going to last 1 year, with lots of upcoming work needed. Curt
Johnson testified that Coberley was unsure how many workers were not
going to return to the job after the holidays and mentioned casually the
possible need for 15 to 20 workers.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 224
from the Union’s out-of-work list whom he thought or knew
had experience working in industrial facilities comparable to
the IAMS project. Rahn asked them if they were willing to
apply for work at the Respondent’s Leipsic project;31 all agreed
to apply. Rahn candidly admitted that he, Bishop, and Michael
Null (also a union organizer employee) put in applications be-
cause the Company was known to have jobs throughout the
United States and particularly did a lot of work for T & S and,
if they could get hired, they planned to travel with the Com-
pany and work with other union representatives nationwide so
as to secure an international agreement with the Union. Ac-
cording to Rahn, he instructed everyone who went to the Re-
spondent’s facilities on January 7 if offered a job to accept
whatever wages were offered. He provided each applicant with
a form indicating that he was seeking work but would also act
to organize the Respondent’s workers. Rahn essentially cor-
roborated Bishop’s testimony regarding the time of arrival of
the group which included himself, the wearing of union gear by
the applicants, and each one’s filling out and submitting an
application copied by means of the Respondent’s fax ma-
chine.32
Rahn testified that he last worked with “tools” about 4 years
ago. He also admitted that he has not earned a living working
with the implements of the carpenter’s trade for nearly 8 years.
Rahn said his prior work experience, however, included mill-
wright-type tasks; for example, fabricating, drilling, tapping,
bolting, and welding structures; refurbishing turbines, pumps,
and compressors; building metal support decks; and setting
machinery. Rahn understood that this kind of work was similar
to work at the IAMS plant. According to Rahn, he would have
accepted a job with the Respondent if offered one because he
had done the work before. Rahn candidly admitted that he
would have only worked for the Respondent as long as it took
to organize the Respondent and failing in that effort, he would
“walk away.”
Scott Blair, 15 years a member of the Carpenters Local 1138,
testified that he was told by someone (whose name he could not
recall) at the union hall about the availability of jobs at the
Leipsic site. Initially, Blair related that the Respondent’s hiring
was just being talked about at the hall.33 According to Blair, he
and a number of other members were all at the hall on January
8 and just decided to go and apply as all were then out of work.
Since he had a large passenger van, he agreed to transport the
group that included union members David Pyles,34 William
(Bill) Glynn, Dan Daniels, Don Hursch (or Hersch),35 and Gail
Bowser36 whom he picked up on the way. According to Blair,
the group arrived at the Respondent’s facilities around 11–
11:30 a.m.; all were wearing union insignia or paraphernalia—
union hats and coats with union logos. When they arrived and
found the Respondent’s trailer, they happened upon a lone sec-
retary (whom Blair did not identify by name), whom he asked
for applications. The secretary did not have enough copies of
the application and made additional ones through the fax ma-
chine. According to Blair, all six, including Bowser, filled out
an application and submitted it. Blair said he generally “chit
chatted” with the secretary, indicating that they were union
members. According to Blair, the secretary said that the Com-
pany was just working 40 hours and awaiting arrival of some
equipment. The secretary further said that all applications
would be sent to the Respondent’s main office. The secretary
told the group that the Company did have work, but it would
entail traveling. After submitting, the applications the group
left. Blair gave the secretary a union pen as a memento.

31 According to Rahn, none of the January 7 group were millwrights;
all of them were members of various carpenter unions associated with
the District Council.
32 It is noteworthy that Rahn offered no testimony regarding the con-
versations between Bishop and Whitson on January 7. This is unusual
to me in that according to Bishop, the conversation took place in the
rather restricted confines of the office trailer in the presence of the
entire group. The only statement Rahn attributed to Whitson at the
time concerned Whitson’s stating that the Respondent was waiting for
delayed equipment which caused him problems keeping his workers
employed for a full 40 hours.
33 Rahn testified that he solicited members to make application on
January 8 as part of his plan to have applications filed on different
days; he merely split the entire group of those he solicited in two.
Significantly, Rahn could not recall enlisting Scott Blair and opined
that perhaps another member was responsible for his being part of the
January 8 group. Blair could not remember whether he found out about
the Respondent’s hiring at the regular monthly union meeting or the
regular Monday morning gathering of out-of-work members who
signed the out-of-work list. On cross-examination, Blair conceded that
since January 8 was a Thursday, the group must have heard about the
hiring on Monday and it took him and them until Thursday.
Blair related his work experience which included dry wall
(construction) building forms and scaffold, stud work, and con-
crete framing, “all traditional (typical) carpenter’s work,” as he
described it, which he normally lists on his job applications.37
According to Blair, regarding millwright work, he has only
“helped out a little bit on different jobs;” specifically helping to
set pumps and grout (water seal).38 According to Blair, the
Respondent never called him back but if it had, he would have
accepted a job if offered.39

34 David Pyles’ application is dated January 7, 1998; he did not tes-
tify at the hearing.
35 Hursch or Hersch’s name does not appear in the complaint or
among the June 8 applications in GC Exh. 5. He also did not appear as
a witness at the hearing.
36 Bowser’s application was not produced at the hearing and, of
course, does not appear in GC Exh. 5. Bowser did not testify at the
hearing.
37 Blair’s application was not produced at the hearing.
38 Tr. 92.
39 Blair was somewhat ambiguous in regard to whether he would
have accepted employment with the Respondent. He initially testified
that traveling presented no problem but then, upon my examination,
said he would have taken into consideration where the job was, the
prevailing wages, and whether it was going to be worth his time. Blair
would not have accepted this job if it did not pay union scale and the
offer would have to include a traveler’s per diem supplement. More-
over, he would not work for a nonunion signatory company regardless
of where it was. (Tr. 96–98.) This is interesting testimony as Rahn
testified that all members who elected to participate in the Union’s
organizing campaign would have received a wage subsidy to make up
for differences between the Respondent’s wage and union scale. Also,
the members of the organizing group were all supposedly told that the
Union was seeking to organize the Respondent, which, of course,
should have alerted the applicants that the Company was nonunion.

B & C CONTRACTING CO. 225
David Whitson, the Respondent’s crew leader and chief su-
pervisor at its Leipsic IAMS Pet Food project, testified at the
hearing about the events of January 7 and 8.
According to Whitson, on January 7 around 3:45 p.m., he
went back to the office trailer to check on his messages and
discovered that there were about 10 people there; 2 of the group
approached him outside of the trailer and asked for employment
applications.40 Whitson invited the two persons into the trailer
and gave each an application. However, the others wanted to
come inside, and eventually around 10 persons and he were
occupying the 8-by-28-foot trailer. Whitson’s secretary was
not there at the time, and he had to reproduce the original appli-
cations through the fax machine in order to provide each person
with an application. Before receiving the filled-out applica-
tions, Whitson said he asked the group if any of them were
willing to travel. None were willing.41 While discussing with
Rahn the Union’s jurisdiction (19 counties in Ohio), Whitson
received the first couple of filled-out applications and noticed
“carpenters” on them, which had led him to exclaim to the
group that he did not need carpenters—he needed millwrights.
According to Whitson, he was told (presumably) by Rahn that
the Union did represent millwrights—and had some—but they
were not present at the time.
Eventually, the applicants left and on the same day, while
walking between the mill building and the silos, Whitson came
upon two employees, Greear and Tracy Johnson. According to
Whitson, Greear initiated a discussion and asked if he were
going to hire any of the applicants who had just come in.
Whitson said that he told Greear no, that he did not hire them
because he did not need carpenters.42
Whitson said that he was visited the next day by a second
group of men who arrived, according to him, around noon;
there were around seven people in this group. Whitson pro-
vided these persons with applications and asked them whether
anyone was willing to travel. They all said they were not will-
ing. The applicants told him that they were in the Carpenters
Union and he again told the group that he did not need carpen-
ters; rather, his need was for millwrights. The men left after
submitting these applications.

40 Whitson was sure that he met the group around the 3:30 p.m. em-
ployee breaktime because while they are on break, he makes rounds
checking their work; also, he usually takes his lunch around 12:30 p.m.
in the office trailer. Timing here is of no particular materiality, though
relevant, except perhaps for purposes of making credibility findings.
41 Whitson did not initially identify any particular person to whom
he was talking in the January 7 trailer interview but later in his testi-
mony, identified Rahn as one to whom he spoke on that date. Whitson
testified that it was his policy to ask prospects about their willingness to
travel because the Respondent’s other crews usually needed help and he
would pass the qualified applicant along to the appropriate crew chief.
42 According to Tracy Johnson, Whitson said in a cocky manner,
with regard to the January 7 applicants,” They were f—g union carpen-
ters, and I ain’t hiring them.” (Tr. 414.) Additionally, Greear, who saw
the January 7 applicants on the jobsite, testified that Whitson, in a
serious tone, told him that he was not going to hire them, that they were
all f—g union carpenters. The General Counsel argues that these state-
ments of Tracy Johnson not only contradict Whitson, but also show the
Respondent’s animus against the Union. These statements also form
the basis of certain 8(a)(1) charges in the complaint and will be dis-
cussed later herein.
Whitson could not recall speaking to anyone at the Company
about the second group of applicants on January 8. However,
on January 9, while in the break trailer, one of the employees
asked him if he was going to hire any of these applicants.
Whitson’s response was to say that he was not going to hire
them, as they were carpenters. According to Whitson, there
were around six employees in the break trailer when he made
this statement.43
Whitson testified about certain hiring procedures he em-
ployed as the Respondent’s crew leader in general and specifi-
cally with respect to the Leipsic job. According to Whitson,
first, persons who respond to the company’s ads or who other-
wise seek employment often will tell him they are millwrights
because they want the job. They may not actually be qualified,
and he has to determine their credentials. Second, if he does
not need workers, he will forward them to Coberley or one of
the other crew leaders who may need workers. Third, if he
needs a worker, he will take the applicant’s application and
administer a questionnaire-type examination to him to deter-
mine how much welding and/or millwright experience he has
and the wages he will be paid.44 At the time of the Union’s
application on January 7 and 8, the Respondent needed workers
for places other than Leipsic and, in fact, according to Whitson,
he would have hired all of the applicants if they were mill-
wrights.45 Thus, according to Whitson, he considered for em-
ployment all of the applicants but, having determined they were
carpenters and not millwrights, he did not offer to hire them;
and, consequently, he did not administer the questionnaire to
any of them. 46
2. The January 30 millwright resumes
Because the Respondent on several prior occasions had not
claimed various certified letters sent by the Union to the Re-
spondent at its Florida location, union officials elected to fax 14
43 Regarding the January 9 break trailer encounter, Whitson testified
as “I think it was the 9th, I was in there and I talked—I don’t remember
who it was. I talked to somebody and they [sic] asked me the same
question, if I was going to hire any of these applicants and I said, No, I
don’t need any damn carpenters.” (Tr. 782.)
44 For example, both Greear and Curtis Johnson were administered
the questionnaire examination. See GC Exh. 12(a)—Geear’s, and GC
Exh. 14—Johnson’s. Clearly the questionnaire is not always adminis-
tered to all new applicants as some employees occasionally were inter-
viewed over the telephone. Coberley, who interviewed some workers
hired for the Leipsic job in this fashion, testified that some jobs
awarded to the Company have little lead time necessitating a break
from the normal hiring process.
45 Whitson testified that Coberley then needed five people for an
Iowa job; and Jack Shockley was running a job in South Carolina.
Whitson himself was looking for workers for future jobs in Illinois and
Pennsylvania. Notably, according to Whitson, the Respondent experi-
enced a big turnover among its travelers who, by experience, do not
stay with the Company for extended periods.
46 Whitson testified having specifically considered Terry Bishop for
employment and remembered asking him if he could perform mill-
wright work when he and others filled out the applications. He also
identified Scott Blair as an applicant he specifically considered for
work with the Company.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 226
resumes and a cover letter to the Respondent’s Leipsic pro-
ject.47 As noted earlier, these resumes were sent in response to
the Respondent’s advertisements placed in a Tulsa newspaper
around January 25.
The complaint alleges in part 8, in essence, that since on or
about January 30, 1998, the Respondent discriminatorily and
unlawfully failed to accept applications from and consider for
employment, notwithstanding the availability of jobs, the fol-
lowing named persons because of their union membership and
involvement:

Leslie Atkin John C. McCarthy
Donald Bope Edward Neumeyer
Robert Chasteen Garry Parks
Denise Cowell Mark Parsons
Jeff Dougherty Keith Stanley
Calvin Hollar Christina A. Tinsley
David Ladd Joseph D. Waterfield

At the outset, it should be noted that these individuals did not
personally submit formal applications. Rather, these were ac-
tually resumes prepared by the Union that were submitted along
with a cover letter describing them as applicants. Also, none of
the 14 individuals testified at the hearing.48
The union officials involved in the claimed submission of
these resumes testified. Ray Lorton prepared the 14 January 30
resumes or, more precisely, was responsible for their prepara-
tion. According to Lorton, he spoke to each of the January 30
applicants and told each that the Union was preparing resumes
pursuant to its organizing activities slated for certain unsigned
contractors, including the Respondent.
According to Lorton, members willing to participate in salt-
ing campaigns were asked to fill out questionnaires at union
meetings. He took the information and converted the handwrit-
ten questionnaires into a resume format; these resumes are kept
on file and periodically updated. The Union has around 25
such resumes of willing members. The resumes of the January
30 group were prepared in this way and, according to Lorton,
were updated by the respective members at union meetings
occurring in either December 1997 or January 1998.
Lorton could not verify that each of the 14 had actually seen
his or her resume prior to submission. Moreover, he did not
personally consult with any of them immediately prior to sub-
mitting the resumes. However, he said that he had told each
that their resumes would be going to the Respondent. It was
Lorton’s opinion that the applicants were available for work
with the Respondent around the time of the submission because
of the recent updating and because only willing and available
members allow their names to be submitted as part of organiz-
ing campaigns or will work as salts.

47 The resumes and cover letter are contained in GC Exh. 7. The ex-
hibit also includes a so-called “send report” generated by the Union’s
fax machine. I note that the cover letter is dated January 30, 1997.
Based on the credible testimony explaining that there was a typographi-
cal error regarding the year, which in fact is commonly made early in
the new year by many people, I have considered the letter as being
authored in 1998.
48 The General Counsel did not offer any reason for their nonappear-
ance or for the nonappearance of some of the members comprising the
January 7 and 8 applicant groups.
Lorton authored the cover letter to the Respondent that ac-
companied the resumes and maintained that the information
contained in it was true to the best of his knowledge and belief
at the time.49 Lorton conceded that the resumes were solicited
and compiled with a view towards the Union’s organizing ef-
forts at certain local contractors and not based on the Respon-
dent’s Tulsa ad about which the Union had no prior knowledge.
After assembling the resumes and signing off on the cover
letter, he gave the package to Rahn for delivery to the Respon-
dent. Lorton never followed up on these applications and never
contacted the 14 individuals to get them to check on the appli-
cations made on their behalf.
According to Lorton, the Union knew that the Respondent
had “cleared the job off” and was headed for Pennsylvania by
the end of January, but because of the Tulsa ad, the Union felt
the Respondent was trying to circumvent it to avoid hiring
more union workers. Consequently, the Union decided to sub-
mit the resumes as a countermeasure.50
Rahn testified that he attempted to hand-deliver the 14 re-
sumes in the early afternoon of January 30 to Whitson at the
jobsite; however, Whitson and the crew had left early as was
the Company’s practice on Fridays, a point that had slipped
Rahn’s mind. There was no mail slot in the door of the trailer
which was otherwise locked. Accordingly, he faxed the re-
sumes the following Monday (February 2) at around 3:43 p.m.
According to Rahn, the January 30 group was comprised
solely of millwrights affiliated with Local 1393. This ploy
reflected his attempt to cover all bases with respect to antici-
pated defenses of the Respondent to what he believed was its
discriminatory practices regarding hiring union members.
Rahn testified that he had a “premonition” that an argument
would be made by the Respondent that carpenters were not
qualified to do millwright work.51
According to Rahn, after the January 7 and 8 applications by
his members, he did not instruct any to follow up or make ap-
49 In the cover letter, Lorton, among other things, stated that the 14
applicants were willing to travel and that they were qualified mill-
wrights. At the hearing, Lorton could basically only verify that the 14
were millwrights and was not able to say with certainty that they were
willing to travel. In fact, however, regarding travel, Lorton told the
members that they would be salts on local jobs (the Respondent’s and
the Protek job) because the Union, as it turns out, incorrectly thought
the Respondent was going to be at Leipsic as much as a year. Accord-
ing to Lorton, he did not mention “travel” or the need to at the Decem-
ber and January union meetings where the questionnaires were handed
out to the members willing to participate in the organizing efforts.
50 Although the Union knew that the Respondent was near the very
end of January packing up its tools, emptying trailers and such—clear
signs of leaving a job—and was thought to be moving on to another
job, to the Union this did not mean necessarily that the Respondent was
leaving the Leipsic site. This is a rather incredible proposition.
51 Evidently, Rahn’s premonition was not grounded in the occult or
providence since he testified that a Board investigator told him that the
Respondent’s position was that the work at the Leipsic site was not
carpenters’ work. However, Rahn emphatically denied that the investi-
gator influenced his decision to send the January 30 resumes and could
not remember whether this conversation took place prior to January 30.

B & C CONTRACTING CO. 227
pointments with the Respondent and, similarly, no attempt was
undertaken by the Union or any of the January 30 group be-
cause everyone had been laid off at the Leipsic site. The job
was over. Moreover, he thought that the Respondent simply
would not accept the Union’s letter52 and the ad to which the
Union was responding contained a fax number in Leipsic.
Before submitting the 14 resumes, Rahn admitted that he did
not consult with them and could not say that the persons in-
volved actually knew their resumes had been faxed to the Re-
spondent.
Rahn conceded that Whitson told them on January 26 that
the Respondent did not need workers and that the Respondent
pulled out of the job a few days later. However, in spite of
Whitson’s denial, Rahn noted that the Union had received the
Tulsa ad and, after all, Whitson had told them earlier in the
month that the Company was going to need workers but was
awaiting equipment.
Moreover, Rahn knew that Greear and Johnson had been laid
off on January 30 but also knew that two employees, Lester
Saxon and Don Hartnet, were still employed. Thus, he did not
think with confidence that the job actually was being demobi-
lized. However, Rahn admitted that he had no idea what the
remaining workers were doing on February 2.
Rahn also conceded that the January 30 applicants did not
submit true applications. He sent the resumes, nonetheless,
because employers often put unions through “hoops” such as an
instruction to “first send me resumes” when solicited for work.
Since the Tulsa ad did not specify applications only, the Union
elected to send the resumes.
As to the resumes of the January 30 group, Bishop testified
that he faxed these to the Respondent on February 3. Accord-
ing to Bishop, Rahn told him that he had already faxed the ma-
terials, but Rahn could not say that the Respondent actually
received it, as there was no printed send report. Accordingly,
Bishop took the materials from Rahn and faxed them once
more on February 3.53 Bishop stated that the millwright mem-
bers were selected because one of the salts employed at the
Company said that Whitson had indicated with respect to the
earlier applicants that they were “just damn carpenters,” and he
was not hiring them.54 The Union then decided to send the
millwright group because their qualifications would be auto-
matically established. Bishop got the names from Ray Lorton
who told him that the 14 persons would work for the Respon-
dent,55 but he did not know if they actually knew when the
resumes were sent or to whom, with one exception (Joe Water-
field). Bishop also did not know whether the January 30 appli-
cants were currently employed or otherwise were available for
work at the time of submission. Lorton said that salts Greear
and Johnson had told the Union that the Respondent was going
to hire 15 more workers at the end of the month and assumed
the positions were for the Leipsic job. Moreover, the Union
had been advised by the two salts that Whitson was going to get
rid of the entire existing crew and hire a new crew.56 To be on
the safe side, the Union wanted to put in additional applica-
tions. Based on Whitson’s reported statements and buttressed
by the newspaper ad, the Union thought that the Respondent
was hiring and the applications were sent based on that assump-
tion.57

52 Although Rahn had faxed correspondence to the Respondent’s
Florida headquarters facility to wit, the January 23 majority status
letters, he did not fax the January 30 resumes or attempt to call the
Respondent there.
53 Bishop indicated that he circled the second transmission report and
wrote “Faxed 14 applications” on GC Exh. 7. Bishop was not aware
that the Union’s fax machine kept an internal record of all materials
faxed and that Rahn’s fax had been entered into the union fax’s mem-
ory.
54 It is interesting to note that Bishop repeated a comment that Whit-
son emphatically insisted that he had made regarding those “damn
carpenters, not those f—g union carpenters.”
55 Bishop testified initially that he was present at a November union
meeting at which Lorton passed out questionnaires for the membership
to fill out. He then revised his testimony and said that he was not actu-
ally at the meeting when Lorton passed out questionnaires but was
shown a copy of the questionnaire by Lorton at a union meeting. Actu-
ally, he admitted that he did not know what Lorton had said to the
members. (Tr. 295–296.)
The Respondent claims that it never actually received the
January 30 and, accordingly, never considered these individuals
for work.58
Whitson testified that around the first week of February
(February 2–8) 1998, the Respondent was busy in what he de-
scribes as “demobilizing” or dismantling of the Leipsic job,
which included laying off workers, packing and loading tools
and equipment, returning leased trailers, and the like. Whitson
said that during that last week, he was down to only three
workers59 who were principally engaged in packing and load-
ing, and a clerical worker, Joan Hardin, who helped him load
the Company’s trailer and cleaned apartments rented by the
Company for its traveling employees. According to Whitson,
there was no construction work being performed by the Com-
pany. Whitson stated that only the office trailer had a tele-
phone and fax machine. The company from which the Respon-
dent rented the trailer was supposed to pick up the office (and
the break trailer), so all of the Company’s belongings had to be
removed. Whitson testified that he finished loading the office
equipment (including the telephone and fax) by 10 a.m. on
February 2. Whitson claims that he did not check for any mes-
sages; in fact, he did not know how to check for messages from
the fax machine, and did not know how to print the reports.60

56Whitson reportedly denied this, saying that the person who said
this was drunk.
57 Bishop also said that at the time of the faxing of the resumes, he
also thought that the Respondent had jobs going in states other than
Ohio, namely Pennsylvania and Illinois. Bishop noted that the 14 ap-
plicants provided resume information in November 1997. Therefore,
he could not say whether these 16 persons were applying for jobs only
in Leipsic or elsewhere. However, he ventured to say that the individu-
als themselves would have to be asked their intentions as to where they
would work. This point should be obvious to all.
58 Whitson specifically denied ever considering the 14 January 30
applicants because he never saw the resumes and had no knowledge of
their existence.
59 These workers were Kevin Conrad, Don Harnet, and Lester
Saxon.
60 According to Whitson, he was able to run off copies on the fax
and could send fax messages. Clerical worker Joan Hardin performed

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 228
Whitson said that he received permission from a plumbing
contractor at the Leipsic site to use its telephone and fax.61
However, the plumbing contractor’s fax was not operating so
Whitson obtained permission to use the T & S fax machine.62
Thus, according to Whitson, the Respondent’s fax machine was
out of commission and, in his view, he could not have received
the January 30 resumes on the afternoon of February 2 and,
certainly, not on February 3.
Applicable Legal Principles
An employer cannot lawfully (discriminatorily) refuse to
consider for hire or refuse to hire applicants because of union
affiliation or because the applicants may be organizers or intend
to organize the employer. Casey Electric, 313 NLRB 774
(1996); NLRB v. Town & Country Electric, 516 U.S. 85 (1995).
Preliminary to determining whether an employer has dis-
criminated against an employee in violation of Section 8(a)(3)
or (1) of the Act, the National Labor Relations Board has held
that the General Counsel must first make a prima facie showing
sufficient to support the inference that the protected organizing
activity of the employees was a “motivating factor” in the em-
ployer’s decision either not hire them or not even to consider
them at all for employment. Once this is established, the bur-
den then shifts to the employer to demonstrate that the nonhir-
ing would have taken place, even in the absence of the pro-
tected conduct. Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982); B E & K Construction Co., 321 NLRB 561 (1996).
An alleged discrimination in refusing to consider applicants
for hire, as with refusing to hire them, is discrimination in re-
gard to hire within the ambit of Section 8(a)(3). In a discrimi-
nation case, a prima facie case is made when the evidence
shows that:

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 employ-
ees.
3. That antiunion animus contributed to the decision
not to consider, interview, or hire an applicant.
4. That the applicant was a bona fide applicant.

these other functions. Whitson could not recall the brand of the Com-
pany’s fax machine but knew that it copied on regular bond paper as
opposed to a paper roll.
61 Whitson said the plumbing contractor was Regal Plumbing, which
maintained an office trailer next to his. Steve “Doogie” Ambos, Regal’s
job superintendent, confirmed at the hearing his giving Whitson per-
mission to use Regal’s telephone and fax. While Ambos was sure that
the Respondent left the site in late January or early February, he could
not be precise about the date the Respondent was moving its equipment
or when he told Whitson he could use the phone and fax. Ambos was
not aware that anyone from the Respondent actually used his telephone
or fax.
62 Michael Hullinger, T & S’s project manager at the Leipsic IAMS
project, testified that he and Whitson talked on February 2 about “get-
ting stuff returned and disconnected” (Tr. 694) and he told Whitson he
could use T & S’ phone, faxes, and copiers which were around 300 feet
from the Respondent’s trailer.
NLRB v. Ultra Systems Western Constructors, 18 F.3d 251 (4th
Cir 1994), enfg. in part, denying in part, and remanding Ultra
Systems Western Constructors, 310 NLRB 545 (1993), quoted
in the Ultra Systems Western Constructors [11], 316 NLRB
1243 (1995); 3E Co., 322 NLRB 1058 (1997).63
C. The General Counsel’s Position; Discussion
In essence, the General Counsel contends that the Respon-
dent was clearly aware of the union membership of the January
7 and 8 applicants, as well as the Union’s expressed intention to
organize its work force during January 1998. The General
Counsel further contends that the Respondent harbored animus
against the Union and this hostility operated to deny these 17
unionists an unbiased consideration for employment with the
Company when employment opportunities were available.
The General Counsel argues that in addition to the state-
ments Whitson made to Tracy Johnson and Greear which indi-
cate his hostility to the union applicants, the Respondent’s ani-
mus is also demonstrated by Whitson’s following a different
hiring procedure with respect to the application of another un-
ion member, Greg Adkins, who testified at the hearing.
According to Adkins, then an unemployed member of Car-
penters Local 1138 acting on information gained from Rahn at
the union hall, he went to the Respondent’s jobsite around 2-
2:30 p.m. on January 7, 1998, accompanied by a friend.64 Ad-
kins, who was not wearing any union identifiers, went to the
office trailer which was unoccupied. Whitson arrived shortly
thereafter and introduced himself. Adkins said he asked about
job availability, and Whitson replied that he was not hiring
anyone (for the Leipsic job) at that time, but Adkins could fill
out an application. According to Adkins, Whitson asked him
what he could do, to which Adkins replied welding, carpentry,
and cutting.65 Whitson offered him employment but only in
Iowa and Florida. However, Adkins replied that he could not
travel because of ailing parents. According to Adkins, Whitson
made reference to a group of applicants who evidently had
63 The Respondent, however, argues that the Sixth Circuit in NLRB
v. Fluor Daniel, Inc., 102 F.3d 818, 832 (1996), articulated the follow-
ing test for the establishment of a prima facie case in a refusal-to-hire
case: (1) that the employer is covered by the Act; (2) that the applicant
is covered by the Act; (3) that the applicant actually applied for a job
and was qualified for a job for which the employer was seeking appli-
cants; (4) that despite his or her qualifications, the applicant was not
hired; (5) that antiunion animus contributed to the decision not to hire
an applicant; and (6) that after rejection of the applicant, the position
remained open and the employer continued to seek applicants from
persons with the applicants qualifications. See also Architectural Glass
& Metal Co. v. NLRB, 107 F.3d 426 (6th Cir 1997), in which the Fluor
Daniel test was reiterated and determined as binding in the Sixth Cir-
cuit refusal-to hire-cases. The application of Fluor Daniel to the facts
of this case will be discussed, infra.
64 Rahn testified that he sent Adkins down to the Leipsic job because
he felt that the Union had no chance of being hired. According to
Rahn, he instructed Adkins to apply but not to wear any union insignia.
Adkins agreed and asked to take a nonunion friend with him. The
friend evidently did not apply.
65 Adkins considered himself a carpenter but could weld, fabricate
steel, and set equipment; he has done millwright work and has worked
with millwrights setting equipment. According to Adkins, he was not
administered a welding test.

B & C CONTRACTING CO. 229
earlier been onsite as union carpenters from Toledo. A few
days after the January 7 encounter, Adkins, who had reported
Whitson’s offer to Rahn, called the Respondent asking for
Whitson who was not available to check on his application.
Adkins never received a promised return call from Whitson,
and Adkins never rechecked on his application.
The General Counsel contends that Whitson treated Adkins
differently from the known union applicants solely because
Adkins’ union membership was not visible, which, in his view,
points clearly to the Respondent’s animus against the Union.
As to the January 30 group of applicants, the General Coun-
sel contends that the Respondent’s animus toward the Union
was continuing and operated to deny them consideration for
work also. The General Counsel argues that the Respondent’s
denial of receipt of these resumes is not credible and should be
rejected. All in all, the General Counsel submits that he has
prima facie met his burden to establish the unlawful treatment
of all of the union applications and that the Respondent’s de-
fenses were insufficient to overcome the charges of violations
of Section 8(a)(3) and (1).
It should be noted that with regard to the 8(a)(3) allegations,
the complaint, first, states in part 7 that the Respondent failed to
accept the applications of the 14 initial applicants. In point of
fact, the Respondent, beyond a shadow of a doubt, did indeed
accept the applications of these persons. Accordingly, this
aspect of the charges in part 7 of the complaint should be dis-
missed, and I would so recommend.
The complaint states in its remaining part that the Respon-
dent also did not consider these applicants for employment
because of the applicants’ union membership, their engaging in
concerted activities (organizing), and to discourage employees
from engaging in these activities. Thus, the issue is whether the
General Counsel has established even in a threshold fashion
that the Respondent did not “consider” these applicants at all
for employment, irrespective of their union activity or involve-
ment.66
In my view, Whitson, in any reasonable sense of the word,
did consider the applications of the January 7 and 8 group.
Whitson, whose testimony in this regard I credit, engaged the
members of both groups in conversation regarding the applica-
tions and queried them on job-related matters of importance.
For example, he asked the applicants about their willingness to
travel and none of the group was willing to travel. He also
queried them regarding their qualifications and concluded that
they were carpenters not millwrights and, thus, not qualified to
do the millwright work the Company performed. These queries
were made of both groups.67 Whitson also credibly testified
that the Respondent indeed needed workers, although not for
the Leipsic job, and that he considered all of these applicants
for employment. Whitson said he would have hired them all
but determined that they were not qualified to perform mill-
wright work. Accordingly, he did not administer the question-
naire to any of them. While the General Counsel takes issue
with the Respondent’s statements and Whitson’s handling of
the applications and asserts that these applicants were not hired
because of their union involvement, the Respondent has not
been charged in the complaint with failing to hire the union-
ists.68 The Respondent here has been charged with failing to
consider the union members’ applications. Here, too, the re-
cord does not support the allegation. Whitson clearly consid-
ered the applications and determined, for reasons having noth-
ing to do with the Union, that the group members were unwill-
ing to travel (the Leipsic job was indeed winding down), and in
his view the applicants were carpenters and not millwrights.
Whitson’s assessments and actions reflect the product of his
thinking process, which, in a word, redounds to “consideration”
of the applicants and their applications.

66 The Random House College Dictionary (First Edition) defines the
verb consider as follows: to think carefully about, especially in order to
make a decision; contemplate; or reflect on.
67 I have also credited Whitson’s testimony about the January 8 en-
counter with the applicants over that of Scott Blair. Blair notably testi-
fied he dealt with the Respondent’s secretary, and not Whitson. This
was frankly baffling to me. Also, Blair’s testimony regarding the spon-
taneity of his assembling the applicants did not jibe with the planned
motive of the venture as credibly described by Rahn, Bishop, and Lor-
ton. Since the General Counsel produced no other witnesses for the
January 8 group, Whitson’s testimony essentially by default is the more
believable.
As to Whitson’s treatment of Adkins’ application, contrary
to the General Counsel, I cannot see where, in any meaningful
way, Adkins was treated any differently from the known union-
ists. Whitson, consistent with his testimony regarding his han-
dling of the union applicants, queried Adkins regarding his
qualifications, which clearly met his definition of a person able
to do millwright work; he also queried Adkins about his will-
ingness to travel. It is clear that based on his qualifications,
Whitson would have hired Adkins; but Adkins was unwilling to
travel. Hence, he was not hired because he could not meet the
Respondent’s second criterion. Whitson’s handling of Adkins’
application differed in my view in no material way from his
handling of the January 7 and 8 applicants. I note that Rahn
sent another union member, Lyndon Coutcher,69 to apply for
work with the Respondent a few days after January 8; Coutcher
also did not wear union paraphernalia. Whitson testified that
Coutcher came to the jobsite on about January 11 and asked for
an application that was given to him. According to Whitson,
Coutcher indicated on the application his millwright experi-
ence, which prompted Whitson him to administer him the ques-
tionnaire examination.70 Whitson asked Coutcher whether he
would travel and Coutcher replied that he was willing. Whitson
told Coutcher that he was not hiring at Leipsic, but determined
that Coutcher was qualified and faxed his application to crew
leader Jack Shockley in South Carolina. According to Whitson,

68 I note that Whitson’s assessments of millwright work and carpen-
ter’s work may not be truly accurate or correct given the overlap of
attributes and requisites of the two trades. However, his determinations
were not unreasonable considering that the millwrights and carpenters,
though associated in the District Council, nonetheless maintain a clear
trade autonomy. Whitson also credibly testified that based on his defi-
nition, he has never hired a carpenter. Moreover, considering the itin-
erant nature of the Respondent’s business, the travel criterion is not
only reasonable, it seems quite integral to the Respondent’s business.
69 Coutcher did not testify at the hearing.
70 R. Exh. 11 contains Coutcher’s applicant questionnaire.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 230
Coutcher never showed up for work. Contrary to the General
Counsel, I believe that the paramount considerations for em-
ployment for the Respondent were qualification to do mill-
wright work and, at the relevant time, a willingness on the ap-
plicant’s part to travel as the Respondent’s work at Leipsic was
drawing to a close.71 On this record, I cannot find that hostility
to the Union or its organizing effort motivated the Respon-
dent’s rejection of the January 7 and 8 applicants. Rather,
Whitson’s decision not to administer the questionnaire to them
reflected his consideration of their lack of qualification in his
mind and their stated unwillingness to travel, which, in my
view, are legitimate reasons for his rejection of them as em-
ployees.
Accordingly, in my view, the General Counsel did not estab-
lish that the Respondent failed to accept the applications, nor
did he establish that the Respondent failed to consider these
applications by the preponderance standard. Since the General
Counsel failed to meet these threshold elements, I would rec-
ommend dismissal of this aspect of the complaint as to the
January 7 and 8 applications.72
Directing myself to the Respondent’s position regarding the
January 30 group of millwright applicants, the Company’s
principal defense comes through Whitson who emphatically
insisted that he did not consider the resumes because he per-
sonally never received them. At the hearing, Whitson pro-
fessed a total ignorance of these applicants and their resumes.
The General Counsel disputes Whitson and asserts that he is
being untruthful. The issue of whether Whitson received the
resumes is integral to resolving this part of the controversy.
Again, it is useful to note that the complaint in part 8 again
charges the Respondent with failing to accept the applications
of the January 30 group and consider them for employment
because of their union membership and involvement. Thus,
again, as a threshold matter, the General Counsel has the bur-
den of proof to show that Whitson, the only employee of Re-
spondent to whom the resumes were addressed and purportedly
sent, actually could be said to have received them and, then,
that he failed to accept and consider these applicants for em-
ployment because of hostility to the Union.
Pursuant to its claim that the Respondent (Whitson) indeed
did receive the faxed resumes, the General Counsel adduced the
“send” sheet generated by the Union’s fax machine which indi-
cates by two entries thereon that the resumes and cover letter
were faxed to the Respondent’s fax number at the Leipsic site
at specific times on February 2 and 3 and that the Union’s fax
machine registered receipt of the faxed materials by an “OK”
symbol to buttress its case. The General Counsel also called
several witnesses of the Respondent to testify about the last
days of the Respondent’s presence at the Leipsic site.

71 It is here again worth noting that in spite of the Union’s steadfast
view that the Respondent was going to be working at the Leipsic site
for a long period, as much as a year, that clearly this was not true.
Notably, both Adkins and Coutcher were offered jobs out of state and
certainly communicated that information to Rahn and the Union.
72 Since I believe that the General Counsel did not meet its burden in
proving these threshold elements, the issue of animus becomes moot.
However, with respect to these applicants, the General Counsel’s ar-
guments advanced in his brief to support animus are not persuasive.
Under the facts and circumstances of this case, it appears to me that the
union members were given a fair opportunity to apply for jobs and were
considered for jobs based on the Respondent’s stated criteria—
willingness to travel and qualification to do millwright work. In short,
in my view, the evidence of animus on this record was weak to non-
existent with respect to these January 7 and 8 applicants.
Don Hartnet73 testified that the Respondent began the demo-
bilizing process at Leipsic on Monday, February 2, and he had
been dismissed by noon on February 4. According to Hartnet,
as of the time of his dismissal, everything had been picked up
in the break trailer, but there was “stuff” in the office trailer.
He could not recall, however, what he exactly saw in the office
trailer. Hartnet thought that he made telephone calls from the
office trailer and there was still some equipment in the office
trailer on February 4. The tool maintenance worker, Lester
Saxon, testified and confirmed that around February 2, Whitson
started dismantling the job and he helped with the loading
chores. According to Saxon, he personally took the Respon-
dent’s fax machine out of the office trailer on the evening of
February 3 and put it in the back of the Company’s trailer.
Saxon testified that at the time he removed the fax, it was
hooked up; he unhooked it to remove it, and there was a roll of
carbon-type paper in the machine.
The Respondent called as a purported expert on telefax ma-
chines, Ron Schmidt. The General Counsel opposed the Re-
spondent’s motion to declare Schmidt a fax machine expert, but
withdrew his objection in his brief. I took Schmidt’s testimony
and held in abeyance my ruling on his expertise and opinion
with respect to fax machines and their operations, features, and
characteristics. Rule 801 of the Federal Rules of Evidence
provides as follows:

If a witness is testifying as an expert, his testimony in
the form of an opinion is limited to such an opinion as is:
(a) Related to a subject that is sufficiently beyond
common experience that the opinion of an expert would
assist the trier of fact; and
(b) Based on matter (including his special knowledge,
skill, experience, training, and education) perceived by or
personally known to the witness or made known to him at
or before the hearing, whether or not admissible, that is of
a type that reasonably may be relied upon by an expert in
forming an opinion upon the subject to which his testi-
mony relates, unless an expert is precluded by law from
using such matter as a basis for his opinion.

Guided by this rule, and considering Schmidt’s training and
other credentials and his testimony which demonstrated a
breadth of knowledge of and experience with a broad range of
commercial fax machines, and being impressed with his candor
and the impartiality of his testimony, I would conclude that
Schmidt possessed the requisite expertise regarding fax ma-
chines and give his opinion testimony the weight accorded to
experts.
73 Hartnet began working for the Respondent on December 29, 1997;
he became a member of Millwrights Local 1393 after leaving the Re-
spondent’s employ.

B & C CONTRACTING CO. 231
In essence, Schmidt testified that a confirmation or send re-
port generally indicates the date and length of time the trans-
mission took and will indicate an “OK” where the faxed mate-
rials have been transmitted through the telephone lines and
have been received at the other end. Schmidt testified it is pos-
sible, however, for a machine to register an OK for the receipt
of the transmitted material but the documents may not have
actually been received at the other end. Schmidt pointed out
several scenarios which could produce such a result: (1) docu-
ments being placed in the fax upside down so that the receiving
machine receives blank paper; (2) the receiving machine was
unplugged temporarily and then reconnected; (3) the receiving
machine was out of paper;74 and (4) the transmission line was
faulty. Schmidt was doubtful about intentional tampering, e.g.,
tampering with the machine’s clock feature. Schmidt saw no
obvious tampering with the machine or its mechanisms here.
Schmidt examined the send report associated with the Janu-
ary 30 group transmission and opined that from a mechanical
point of view the 29 pages of documents were sent and received
by respective fax machines of the Union and the Respondent.
However, according to Schmidt, unless the parties involved
verified the receipt, one could not be absolutely sure that the
documents were actually received on the receiving end. Ac-
cording to Schmidt, the “OK” simply indicates an electronic
“hookup” between the send machine and the receiving machine
through means of the telephone lines. In his view, “received”
could mean the transmitted material is still in a machine mem-
ory or has been printed and sitting in a receiving tray but no one
ever physically picked it up. Schmidt finally opined that his
examination of the documents in question would lead him to
conclude that the “OK” on the send report in question more
likely than not meant that the 29 pages of documents were re-
ceived by the receiving fax machine.75 I will conclude, based
on the totality of the credible evidence, that the Respondent’s
fax machine did receive the 14 resumes and cover letter associ-
ated with the January 30 group on February 2 and 3. In my
view, Whitson was mistaken in his testimony that he had
packed up the company fax machine around 10 a.m. on Febru-
ary 2, and in that regard, I have credited Saxon’s testimony that
he personally removed the machine on the evening of February
3, a plausible time frame considering that the machine was
receiving transmittals as of the afternoon of February 3.
However, be that as it may, receipt of the materials via ma-
chine does not establish that Whitson actually received the
resumes for purposes of the relevant charge.
Whitson basically admits and contends that he did not accept
or consider the applications of the January 30 group, but not
because of union involvement, but because he simply never
physically received them. Thus, it is the General Counsel’s
burden to prove that consistent with the charge, Whitson did
receive the resumes and engaged in unlawful conduct with
respect to his handling of them. Notably, here, the Union chose
the methodology—fax—to deliver the resumes to the Respon-
dent and quite against commonsense or good practice, in my
view, never followed up on its submission at the time, or ever.
Moreover, the Union chose to send the resumes to the Com-
pany fully aware that the Company was pulling up stakes at the
Leipsic job, had laid off employees, and was demobilizing. If
there ever was a time for the Union to verify communications
with the Respondent, the first week of February 1998 was the
time. But nothing was done to verify the receipt of these re-
sumes by the Respondent. In my view, the General Counsel
produced no directly corroborative evidence to rebut Whitson’s
denials. Whitson was a generally credible witness, and nothing
in his demeanor or testimony suggested that he was not being
truthful regarding his nonhandling of the resumes. Thus, on
balance, the General Counsel again has not met a threshold
burden of showing that Whitson ever physically received the
January 30 resumes. Failing in that threshold aspect, the charge
of discriminatory conduct—discriminatorily failing to accept
and consider the resumes—fails as well. I would recommend
dismissal of this aspect of the complaint.76

74 Schmidt noted that most sending machines will not usually record
an “OK” in such cases unless the machine possessed a memory feature.
Where there is a memory feature, the machine will generate a report
that the documents were sent. Schmidt was not familiar with the man-
ual for the Union’s machine but has worked on this model. (See GC
Exh. 15.)
75 Schmidt, technically trained and knowledgeable about fax ma-
chines, said that in spite of an assumption of receipt based on the “OK,”
he would, nevertheless, follow up the transmittal with a telephone call
to the receiving party to confirm the receipt of the items faxed.
D. The 8(a)(1) Charges
In part 6 of the complaint, the Respondent is charged with
three specific instances of violations of Section 8(a)(1) of the
Act.
1. The November 17, 1997 statement about wages
The complaint alleges in part 6(a) that on or about November
17, 1997, Whitson unlawfully cautioned an employee not to
discuss his wages or per diem with other employees; the em-
ployee in question was Duane Greear. Whitson, in answer to a
question posed by me with respect to this allegation, admitted
that the allegation was true.77 Whitson explained how the
statements came to be made. Essentially, Whitson wanted to
hire Greear but the Respondent’s wage rate—$12.50 per
hour—was not acceptable to Greear who wanted $14 per hour.
76 I note in passing that among the several defenses offered by the
Respondent, the lack of bona fides of the applicants comprising the
January 30 group resonates with me. In my view, the January 30 re-
sumes were merely collected by the Union with little or no input from
the named applicants regarding their sincere interest in working for the
Respondent. None of these persons testified at the hearing, and no
reason was given for their nonappearance. I have rejected the charge
regarding the January 30 group for the reasons stated above, not be-
cause of a lack of bona fides as argued by the Respondent. However, in
addition to the weak showing of animus against the Union here, I
would have been persuaded to a finding of lack of bona fides in these
applicants. Accordingly, had I reached the issue, I believe that the
General Counsel failed in making out a prima facie case under either
the Wright Line analysis or the Fluor Daniel standard, and a recom-
mended dismissal would have ensued.
77 At the conclusion of the General Counsel’s direct examination of
Whitson, I asked Whitson to read over the complaint’s parts 6(a), (b),
and (c). I then proceeded to ask him in series whether the allegations
contained in these respective parts were true, and he answered in the
affirmative as to the truthfulness of the allegations. (See Tr. 600–601.)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 232
Greear, as a local job prospect, was not entitled to the $1.50
hourly per diem the Respondent normally paid to travelers.
However, Whitson told Greear he would pay him the per diem
but, inasmuch as he had other local workers on board, he asked
him not to discuss this arrangement with them. Whitson in-
sisted that he did not caution Greear not to discuss his wages
but only his per diem. Greear testified that Whitson told him at
his interview that the Company could not pay him the $15 per
hour he requested on his application but that he would pay him
$12.50 plus a $1.50 per diem. Greear said he accepted the offer
but Whitson asked him not to discuss his wages with anybody
else. Greear said that he made no response to Whitson’s re-
quest.78
2. The January 7, 1998 statement not to hire “any union guys”;
the January 7, 1998 statement not to hire “guys from the Car-
penters Union”
In part 6(b) of the complaint, it is alleged that Whitson and
Buril Hardin,79 while in the Respondent’s job trailer at the
Leipsic site, threatened not to hire any union guys. This charge
stems from statements Whitson allegedly made to Tracy John-
son in the jobsite break trailer. Tracy Johnson testified that
after the January 7 group of applicants left the site, he jokingly
asked Whitson whether he was going to fire all of the existing
crew and hire a new crew (presumably drawn from the appli-
cants). According to Tracy Johnson, Whitson responded to him
in a very cocky tone, “[t]hey were f—g union carpenters and I
ain’t hiring them.” According to Tracy Johnson, Whitson made
this statement in the presence of Greear, who was sitting across
from him (Johnson), but there were other employees at the
other table.
The complaint in 6(c) charges that again in the break trailer
on January 7, Whitson threatened not to hire “guys from the
Carpenters union.” Greear testified about this incident. Ac-
cording to Greear, referring to the January 7 group whom he
earlier had seen in the office trailer, he asked, in the presence of
Tracy Johnson who was seated across from him, when the sec-
ond shift was going to start. According to Greear, Whitson, in
a serious tone and in the presence of other employees, said to
him that he was not going to hire them, that they were all f—g
union carpenters.80 None of the employees made any response
to the comment.
Saxon also testified and stated that he saw a group of people
apply for work on January 7. Later, in the break trailer, he
overheard Whitson respond to a question (from an unidentified
employee) as to whether the applicants were a new crew to be
hired by the Respondent. According to Saxon, Whitson, “in an
arrogant tone” said that all of the applicants were carpenters,
and he was not going to hire any of them.

78 Greear did not specifically indicate whether he complied with
Whitson’s request not to discuss his arrangement with Whitson.
79 The General Counsel contends that Hardin was a supervisor or
agent of the Respondent within the meaning of Sec. 2((11) and/or Sec.
2(13) of the Act. The Respondent disputes this but concedes that Har-
din was a working foreman. Hardin did not testify at the hearing.
Except for being mentioned in the charges, Hardin was not testimoni-
ally implicated in the 8(a)(1) charges so his supervisory or agency
status is irrelevant, and, therefore, I need not rule on his status under the
Act.
80 The Respondent provided its employees three daily break peri-
ods—in the morning (around 10 a.m.), lunch (around noon), and after-
noon (around 3:30 p.m.). According to Greear, Whitson’s statement
was made on the last or afternoon break.
Whitson admitted to conversing with Green and Tracy John-
son by chance on January 7 in the aftermath of the applicants’
departure. According to Whitson, the conversation with Greear
and Johnson did not occur in the break trailer but while he was
walking between the mill building and the silos. Whitson said
he happened on Greear and Johnson, and Greear asked him if
he was going to hire any of the applicants. According to
Whitson, he told them “No!” and also told them he did not hire
them because he did not need any carpenters. Whitson admit-
ted that on January 9 in the break trailer, he said “No, I don’t
need any damn carpenters,” and there were about six people in
the trailer at the time. Whitson emphatically denied saying he
was not going to hire “any union guys.”81
Applicable Legal Principles
Employer interference, restraint, or coercion of employees
who exercise their statutory right to form, join, or assist labor
organizations are unlawful under Section 8(a)(1) of the Act.
The test under Section 8(a)(1) does not turn on the employer’s
motive or whether the coercion succeeded or failed. The test is
whether the employer engaged in conduct which it may be
reasonably said tends to interfere with the free exercise of em-
ployee rights under the Act. Gissel Packing Co., 395 U.S. 575
(1969); Almet, Inc., 305 NLRB 626 (1991); and American
Freightways Co., 124 NLRB 146, 147 (1959); Thus, it is viola-
tive of the Act for the employer or its supervisor to engage in
conduct, including speech, which is specifically intended to
impede or discourage union involvement. F. W. Woolworth
Co., 310 NLRB 1197 (1993); Williamhouse of California, Inc.,
317 NLRB 699 (1995). The test of whether a statement or
conduct would reasonably tend to coerce is an objective one,
requiring an assessment of all the circumstances in which the
statement is made as the conduct occurs. Electrical Workers
Local 6 (San Francisco Electrical Contractors), 318 NLRB
109 (1995).
Turning to the alleged violations, the General Counsel con-
tends that Whitson’s admonition to Greear regarding his wages
clearly was intended to interfere with the free exercise of rights
guaranteed under the Act and could reasonably be said to dis-
courage employees in discussing a matter of mutual concern to
them. As noted by the General Counsel, the Board clearly has
condemned an employer prohibition against employees’ dis-
cussing wages among themselves. Waco, Inc., 273 NLRB 746
(1984). Absent a showing of substantial and legitimate busi-
ness interests supporting such a policy, employees may not be
81 Whitson, reflecting on my question and his admission regarding
the part 6(b) statement said that Buril Hardin was not in the job trailer
on January 7 and, in fact, according to the Respondent’s pay records,
Hardin was not working that day. (See R. Exh. 9.) Therefore, accord-
ing to Whitson, when on my examination, he admitted to the truthful-
ness of the allegation in part 6(b), he was mistaken because neither he
nor Hardin was in the break trailer when he encountered Johnson and
Greear.

B & C CONTRACTING CO. 233
precluded from discussing their own wages with each other.
International Business Machines Corp., 265 NLRB 638 (1992).
The Respondent asserts that Whitson did not direct Greear
not to discuss his wages, but only his per diem, because of the
Respondent’s policy not to pay local workers a daily subsis-
tence allowance. Thus, the Respondent’s defense to the No-
vember 7 statement is bottomed on a mixture of a narrow defi-
nition, “wages” and justifiable company policy. In my view,
Greear and Whitson were negotiating his wages pure and sim-
ple, and Whitson merely employed the Respondent’s allowance
of a per diem to travelers as a device to get Greear an additional
$1.50 per hour, which Whitson hoped would bring the Respon-
dent’s offer more in line with Greear's wage demand. To say
that in the context of their negotiation that per diem was sepa-
rable from Greear’s “wages”—the Respondent’s position—is
tantamount to sophistry and must be rejected.
Moreover, the Respondent clearly violated its own stated
policy in granting Greear a wage concession through the per
diem policy, which clearly did not apply to a local worker such
as Greear. Thus, in no way can it be gainsaid that there was a
substantial and legitimate business reason/interest undergirding
Whitson’s warning to Greear not to discuss their arrangement
with the other workers. The clear upshot of Whitson’s state-
ment in my mind was unreasonable interference with Greear’s
and, derivatively, the other employees’ free exercise of their
Section 7 rights. I would conclude that the Respondent violated
Section 8(a)(1) of the Act with regard to Whitson’s November
7 statement to Greear.82
Regarding the January 7 statements allegedly made by
Whitson to Tracy Johnson and Greear, the General Counsel
contends that these statements not only are violative of Section
8(a)(1) but supply evidence of animus by the Respondent to the
Union. The Respondent contends that Whitson did not make
the statements attributed to him to by Johnson and Greear and
that in any event, at least as to Johnson, their conversation was
jocular in nature and therefore innocuous. I would first note
that the alleged January 7 statements supporting the charges in
parts 6(b) and (c) seem to have been made at the same time and
place, inasmuch Greear and Johnson, if their testimony is to be
believed, were each a witness to strikingly similar statements
Whitson allegedly made to them and others in response to a
question posed by each man to Whitson. As such, the charges
in parts 6(b) and (c) appear to be duplicitous, if not confusing.
Thus, in short, if Johnson’s testimony is to be credited, he
asked Whitson in the presence of Greear about the Respon-
dent’s plans to hire the applicants and Whitson responded to
him as alleged. On the other hand, if Greear is to be believed,
he, too, in the presence of Johnson, asked Whitson a similar
question about the Respondent’s plans to hire the group and
received Whitson’s reply as alleged. This is an unseemly, if not
bizarre, set of circumstances. The whole issue is compounded
by Whitson’s complete denial of making the statements attrib-
uted to him and suggesting yet another scenario for his re-
sponse to questions from Johnson and Greear about the Re-
spondent’s plans for the applicants. Then Saxon, without men-
tioning Greear and Johnson, claims to have overheard Whitson
say he was not going to hire carpenters in the break trailers at a
time that would seem to correspond to Johnson’s and Greear’s
testimony.

82 The Respondent suggests that Greear was not a credible witness. I
found that with respect to this incident, Greear was credible. By con-
trast, I did not find Whitson wholly forthcoming, and his change of
testimony did not help his cause.
As with all charges, the General Counsel has the burden of
proof with respect to these allegations which, in my view, turn
wholly on the credibility of the witnesses. Clearly, by his own
admission, Whitson on two occasions did tell employees that he
was not going to hire the January 7 applicants and perhaps the
January 8 ones as well. And he spoke in terms of not hiring
them because they were “carpenters,” reflecting his stated view
of their lack of qualification or desirability for purposes of the
Respondent’s needs. Whether he said “union” carpenters is the
real issue, profanities notwithstanding. If I were convinced that
he said “union carpenters,” “union guys,” or some other pointed
reference to the applicants being union members, then I would
find that the General Counsel has met its burden. In such a
case, the statements would indeed be coercive because it seems
clear that many of the Respondent’s employees were aware that
a group of union applicants had descended on the jobsite, and
in the end none were hired. In this instance, one could rea-
sonably say that Whitson’s statements were unreasonably coer-
cive, and hence unlawful. However, on this record, I did not
see the General Counsel’s witnesses as any more credible in
their claims than Whitson in his denials. Greear was a salt and
cannot be considered impartial; Johnson joined the Union evi-
dently after being converted to the Union’s cause and is not
impartial in that sense. As for Saxon, he merely overheard
Whitson say he was not going to hire carpenters, a point Whit-
son owned up to throughout the hearing. In my view, the
evidence regarding the January 7 allegations is in equipoise.
Accordingly, the General Counsel has failed in its burden of
proof, and I would recommend dismissal of the charges in parts
6(b) and (c) of the complaint.
CONCLUSIONS OF LAW
1. The Respondent, B & C Contracting Co., is an employer
engaged in commerce within the meaning of the Act.
2. Northwest Ohio District Council of Carpenters a/w the
United Brotherhood of Carpenters and Joiners of America,
AFL–CIO is a labor organization within the meaning of Section
2(5) of the Act.
3. By its supervisor’s telling an employee, Duane Greear, not
to discuss his wages and/or per diem allowance with the Re-
spondent’s employees, the Respondent violated Section 8(a)(1)
of the Act.
4. The Respondent has not violated the Act in any other way,
manner, or respect.
THE REMEDY
Having found that the Respondent has engaged in an unfair
labor practice warranting a remedial order, I shall recommend
that it cease and desist from engaging in such conduct and that
it take certain affirmative action designed to effectuate the poli-
cies of the Act.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 234
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended83
ORDER
The Respondent, B & C Contracting Co., Kissimmee, Flor-
ida, its officers, agents, successors, and assigns, shall
1. Cease and desist from telling prospective or current em-
ployees not to discuss their wages and per diem with other em-
ployees.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in Kissimmee, Florida, and at jobsites in remote locations
where the Respondent is currently conducting business opera-
tions, copies of the attached notice marked “Appendix.”84
Copies of the notice, on forms provided by the Regional Direc-
tor for Region 8, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent immedi-
ately upon receipt and maintained for 60 consecutive days in
conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since January 7, 1998.

83If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.
84 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT tell our prospective or current employees not to
discuss their wages or per diem with other employees.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of rights guaranteed you
by Section 7 of the Act.

B & C CONTRACTING CO.