Bo-Ty Plus, Inc.

National Labor Relations Board - Board Decisions

Jul 13, 2001

334 N.L.R.B. 523 (N.L.R.B. 2001)

BO-TY PLUS, INC. 523
Bo-Ty Plus, Inc. and Linda Wood. Case 11–CA–18574
July 13, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND TRUESDALE
On April 23, 2001, Administrative Law Judge George
Carson II, issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Bo-Ty Plus, Inc., Greenville,
South Carolina, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as modi-
fied.
1. Insert the following after paragraph 2(b) and reletter
subsequent paragraphs accordingly.
“(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful failure
and refusal to hire and within 3 days thereafter notify
Lisa Johnson, Ronald Bowlin, and Linda Wood in writ-
ing that this has been done and that the failure and re-
fusal to hire will not be used against them in any way.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United Government

The National Labor Relations Board has found that we vio-
lated 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.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 No exceptions were filed to the judge’s dismissal of the allegations
that the Respondent unlawfully discharged Lisa Johnson and Ronald
Bowlin.

To organize
To form, join, or assist any union
To bargain collectively though representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities

WE WILL NOT fail and refuse to hire any employees
because they have engaged in protected concerted activi-
ties.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days of the Board’s Order, re-
scind the letter that we sent to Local 929, International
Alliance of Theatrical, Stage Employees, Moving Picture
Technicians, Artists and Allied Crafts of the US and
Canada, AFL–CIO, on December 8, 1999, directing the
Union not to refer Lisa Johnson, Ronald Bowlin, and
Linda Wood to work for Bo-Ty Plus, Inc., and WE
WILL advise the Union that we have no objection to
these employees being referred to work for Bo-Ty Plus,
Inc.
WE WILL, jointly and severally with the Union, make
Lisa Johnson, Ronald Bowlin, and Linda Wood whole
for any loss of earnings and other benefits suffered by
reason of our unlawful failure and refusal to hire them,
less any net interim earnings, plus interest.
WE WILL, within 14 days of the Board’s Order, re-
move from our files any reference to the unlawful failure
and refusal to hire Lisa Johnson, Ronald Bowlin, and
Linda Wood and within 3 days thereafter notify each of
them in writing that this has been done and that the fail-
ure and refusal to hire will not be used against them in
any way.
BO-TY PLUS, INC.

Jasper C. Brown Jr., Esq., for the General Counsel.
Brian P Murphy, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This
case was tried in Greenville, South Carolina, on January 29 and
30, 2001. The charge in Case 11–CA–20235 was filed on Janu-
ary 31, 2000. A charge in a related case, Case 11–CB–3052,
was filed on April 26, 2000, and was thereafter amended. A
consolidated complaint issued on September 29, 2000. On De-
cember 28, 2000, counsel for the General Counsel filed a Mo-
tion for Partial Summary Judgment with the National Labor
Relations Board, moving that the Board find all violations al-
leged in Case 11–CB–3052 because the Respondent Union
filed no answer to the consolidated complaint. On February 22,
334 NLRB No. 74
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 524
2001, the Board granted that motion and issued an Order find-
ing that the Respondent Union violated the National Labor
Relations Act by unlawfully failing and refusing to refer Lisa
Johnson, Ron Bowlin, and Linda Wood to work because of
their involvement in filing internal union charges or supporting
those who had filed internal union charges. Stage Employees
IATSE (Bo-Ty Plus), 333 NLRB No. 54 (2001) (not reported in
Board volumes). The Board severed Case 11–CB–3052 from
Case 11–CA–18574. The complaint herein, as amended, alleges
that Bo-Ty Plus, Inc. violated the Act by discharging Lisa
Johnson and Ron Bowlin and by failing and refusing to hire, or
to consider for hire, Johnson, Bowlin, and Linda Wood at all
times after December 8, 1999.1 The Respondent’s answer de-
nies all violations of the Act. I find no violation of the Act with
regard to the alleged discharges of Johnson and Bowlin. I find
that the Respondent unlawfully failed and refused to hire John-
son, Bowlin, and Wood.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Bo-Ty Plus, Inc. (Bo-Ty or the Company),
a South Carolina corporation, is engaged in the business of
providing stage and production labor to various entities in the
State of South Carolina, including Volume Services, Inc. Vol-
ume Services, Inc., is a Delaware corporation engaged in the
management of the Bi-Lo Center in Greenville, South Carolina.
Bo-Ty annually provides services valued in excess of $50,000
to Volume Services, and Volume Services annually purchases
and receives goods and materials valued in excess of $50,000
directly from points located outside the State of South Carolina.
Respondent Bo-Ty admits, and I find and conclude, that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.2
The Respondent admits, and I find and conclude, that Local
929, International Alliance of Theatrical, Stage Employees,
Moving Picture Technicians, Artists and Allied Crafts of the
US and Canada, AFL–CIO (Local 929 or the Union), is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Overview
Bo-Ty was formed in 1998. Steve Chastain, who formerly
owned and operated Entertainment and Convention Services,
Inc., ECS, was hired as president. He was never an owner of
Bo-Ty. ESC had been engaged in the business of providing
labor to various entertainment facilities in the Greenville, South

1 All dates are in the year 1999 unless otherwise indicated.
2 The Board in Stage Employees IATSE (Bo-Ty Plus), supra, at fn. 2,
noted that Bo-Ty did not deny jurisdiction in its answer. At the hearing
counsel for the Respondent moved to amend Bo-Ty’s answer in order
to deny jurisdiction. I denied the motion as untimely, but noted that the
issue of subject matter jurisdiction could be raised at any time. I re-
quested counsel to present any evidence disputing jurisdiction within 3
weeks of the adjournment of the hearing. No evidence disputing juris-
diction has been proffered.
Carolina, area, including the Bi-Lo Center. When Chastain
became president of Bo-Ty, ESC ceased to operate. Bo-Ty, like
ESC, obtained the individuals who performed the labor at vari-
ous entertainment facilities in the Greenville area through the
Union. Notwithstanding this arrangement, there is no allegation
or evidence that Bo-Ty had a contract with the Union. Rather,
as alleged in the complaint, Bo-Ty and the Union have “main-
tained a practice” pursuant to which the Union is “the sole and
exclusive source of employees” for employment by Bo-Ty.
Chastain permitted Bo-Ty to use the initials ESC as a trade
name to avoid confusion among former customers of ESC. On
August 9, 2000, Chastain became Director of Events for Vol-
ume Services, Inc.
The complaint is predicated upon alleged discriminatory ac-
tions taken by Chastain after Lisa Johnson and Ron Bowlin
filed internal union charges against Union Business Agent
Gene Coffey in early August. Johnson lives with Bowlin. Linda
Wood is Bowlin’s mother. She is also secretary-treasurer of the
Union. All of the complaint allegations relate to matters arising
after the filing of these internal charges.
The internal union charges against Business Agent Coffey
were heard by the executive board of Local 929 on September
13. Three members of the four-member executive board, Presi-
dent Rocky Simpkins, secretary-treasurer Wood, and recording
secretary Lea Senuik, found that Coffey had “blacklisted,” i.e.,
refused to refer, Johnson and Bowlin and recommended that he
be “[p]ut on probation and fined.” Vice President Dirk Hollo-
man was absent. The recommendation was acted upon on Sep-
tember 27. Neither Simpkins nor Holloman were present on
September 27, thus only half of the executive board, Wood and
Senuik, less than a majority, were present. Although the rec-
ommendation of September 13 was that Coffey be placed on
probation, the document reflecting the action of September 27
reports that Coffey be “[s]uspended from his office and be
fined.” On September 28 or 29 (the letter is undated), Wood
wrote Chastain a letter stating:

As Secretary-Treasurer of Local 929 it is my duty to
inform you that our Business Agent Gene Coffee [sic] has
been suspended from his position. The membership of Lo-
cal 929 has appointed Brother Jeff Henderson and Ron
Bowlin as our temporary Business Agent until our election
can be held in December. I hope you will be able to, in
good faith, work with these two very capable members of
our Local. All future work calls handled by Local 929
should be forwarded to either Jeff Henderson or Ron Bow-
lin . . . .
Although purportedly suspended, Coffey continued to
perform the functions of Business Agent. Notwithstanding
the contents of the foregoing letter, the complaint herein
alleges that, “[a]t all times material herein” Coffey was the
Business Agent of Local 929. Chastain continued to deal
with Coffey, and there is no allegation that his doing so
violated the Act.
BO-TY PLUS, INC. 525
B. Facts
1. Events prior to October 1
In July, Lisa Johnson perceived that she was not being prop-
erly referred to jobs by Business Agent Coffey, and she signed
and submitted internal charges against him. On July 16, Bowlin
had requested Susan Forrester, who testimony establishes is
Coffey’s girlfriend, to get to work after observing her rubbing
her feet instead of working like everyone else. Thereafter, Cof-
fey failed to refer Bowlin. On August 2, Bowlin signed charges
against Coffey.
Johnson and Bowlin gave their charges to Wood who, after
first showing them to President Simpkins, served them upon
Business Agent Coffey at a show at the Peace Center, an enter-
tainment facility in the Greenville, South Carolina area. Shortly
after the charges were filed, Bowlin, Johnson, and Wood spoke
with President Simpkins. Simpkins advised that he would seek
to have Johnson and Bowlin referred but cautioned them to
watch their “P’s and Q’s” and not “to talk to anybody.” After
this meeting, Johnson and Bowlin worked on August 6, 7, and
8. After August 8, Bowlin lost no work, but he was often re-
ferred to work as a stagehand rather than the higher paying job
of rigger. There is no complaint allegation in this regard. Bow-
lin testified that “Coffey was out of town . . . during this time,”
and that “[President] Rocky Simpkins gave us those work
days.”
On August 8, Bowlin and Johnson had been referred to work
for Bo-Ty at a Black Sabbath concert at the Bi-Lo Center. Cof-
fey was out of town. Susan Forrester was the job steward. After
the concert, the employees were packing equipment. Bowlin
had been assigned to drive the forklift. Johnson observed that
one of the prongs of the forklift was stuck in a pallet and
walked over to the pallet and placed her foot upon it so that
Bowlin could back the forklift away without dragging the pal-
let. Forrester observed this and directed Johnson to “come over
to her section with her people.” Bowlin recalls that Johnson
replied that “she would be just a minute.” Forrester said that
she “wasn’t going to take her mouth and she [Johnson] was
fired, to leave the building.” Johnson recalls saying that she
told Forrester to “wait a second,” and that Forrester told her
that she was “out of here,” that Johnson no longer worked “for
Bo-Ty or anybody else.” President Simpkins observed the fore-
going transaction but did not intervene. Chastain was not pre-
sent.
Following this incident, Johnson received no referrals from
the Union, but she did work on the weekends of August 13
through 15 and August 20 through 22, having been called per-
sonally by the South Carolina Children’s Theater. Johnson,
having received no referrals from the Union, spoke with
Chastain, “three or four times.” She did not specify the dates of
these conversations, nor did she assert that the asked Chastain
to take any action. She testified that, in those conversations,
Chastain stated that he had no problem with her working for
him. During this period, Bowlin testified that Chastain was
“saying we weren’t fired,” but Coffey “was telling everybody
that we were fired.” Although Bowlin used the plural “we,” his
testimony is relevant only with regard to Johnson since he was
being referred. On September 12, Johnson asked Chastain to
write the Union on her behalf. He did so the following day. The
letter, dated September 13, states, “As for Lisa Johnson, she
hasn’t been fired from Bo-Ty Plus, Inc. I have no problem with
her working again and if she does something for dismissal from
my company, then I’ll notify her that she’s fired.” (Emphasis
added.) Chastain testified that he did not know what “was going
on at the time” Forrester discharged Johnson. The statement, “if
she does something for dismissal . . . I’ll notify her,” confirms
that he knew on September 13 that the Union considered John-
son to be fired, but the record does not establish when he
learned this. On September 23, Johnson was referred by Coffey
to work on September 29. She last worked pursuant to a referral
on October 10. The conversation on September 12 was the last
conversation Johnson had with Chastain regarding the Union’s
failure to refer her properly.
After the September 13 hearing by the executive board on
the internal union charges, notwithstanding the finding that
Coffey had blacklisted Bowlin and Johnson, Johnson was not
immediately referred to work. On September 20, Bowlin
worked a NHL preseason hockey match. Following the match,
Bowlin was in an office with Chastain, union member Fred
Johnson, and Local Union President Simpkins. Bowlin told
Simpkins that it looked to him as if Johnson “was never going
to be reinstated, and Gene [Coffey] wasn’t going to give up his
office because of it, and I didn’t see the need to take any more
calls from Gene Coffey because by the ruling that we had on
the 13th, he should not have been Business Agent, because of
the fact that he did not reinstate Lisa Johnson immediately for
work.” Upon hearing Bowlin’s comment to Simpkins, Chastain
stated to Bowlin that he “did not understand what was going
on, and . . . why . . . [Bowlin] was quitting .” Bowlin did not
reply, started out the door, heard some additional comment, and
stated, “[T]his is not the time nor the place. I will not conduct
this conversation in your work place.” He then left. Bowlin, in
explaining that he did not quit, testified, “I stated that I was
quitting taking calls from Gene Coffey. I never stated that I
would not take calls from Steve Chastain directly.” The follow-
ing day, Bowlin left a message on Chastain’s answering ma-
chine. He asked Chastain “if he was going to follow the guide-
lines of . . . his agreement with us, and work closely with the
new business agents that would be replacing Mr. Coffey.”
Chastain testified that, following the hockey match on Sep-
tember 20, Bowlin stated that “he would no longer take calls
from Gene Coffey and that he quit.” Bowlin’s testimony that
Chastain commented that he did not understand why he was
quitting confirms that, on September 20, Chastain misunder-
stood what Bowlin said. Bowlin did not state that he quit.
Chastain further testified that, on the following day, he received
a message from Bowlin on his answering machine in which
Bowlin stated that he quit and requested that Chastain “override
Gene’s [Coffey’s] decisions.” I do not credit Chastain’s testi-
mony that Bowlin stated that he quit in the message left on the
answering machine. Bowlin’s request that Chastain “override”
Coffey’s decisions is inconsistent with quitting and is consis-
tent with Bowlin’s testimony that he requested that Chastain
“work closely with the new business agents that would be re-
placing Mr. Coffey.” I need not address the basis for Bowlin’s
statement that Coffey was going to be replaced. I find that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 526
Bowlin did not state that he quit. He stated that he would not
accept referrals from Coffey.
Chastain was aware that internal charges had been filed
against Coffey by Johnson and Bowlin. He acknowledged hav-
ing at least one conversation with Coffey in which this was
mentioned. On September 27, Coffey was purportedly sus-
pended by Local 929. On September 28 or 29, Chastain re-
ceived the letter from Wood advising that Coffey had been
suspended and that he was to deal with Henderson and Bowlin.
Chastain denies having any conversation with Coffey regarding
his suspension. Notwithstanding the letter advising of the pur-
ported suspension of Coffey, Chastain continued to call Coffey
for stagehands. The complaint alleges Coffey as the Business
Agent of the Union “[a]t all times material herein.”
2. Events between October 1 and December 7
In October and November, Chastain was aware that Johnson,
Bowlin, and Wood were not working, but he did not question
Coffey about this. Wood sought to speak with him about inter-
nal union affairs but he informed her he “was not in the Union
and did not want to get involved.” Johnson has received no
referrals, unless requested by name, since October 10. Bowlin
has not been referred since September 20. Wood was last re-
ferred on September 21.
Wood, although receiving no referrals after September 21,
has continued to perform her duties as secretary-treasurer of the
Union. In October or early November, Wood, accompanied by
Johnson, went to Chastain’s home to pick up assessment and
payroll checks. Wood asked Chastain when “we were going
back to work.” Chastain replied, “after December.” Wood
asked why, but Chastain did not reply. This is the last conversa-
tion that Wood recalls having with Chastain regarding working
for Bo-Ty.
In mid- or late November, Wood applied for unemployment
compensation. The agent with whom she dealt was unable to
locate any record for Bo-Ty. A form letter dated December 9 to
Wood from the South Carolina Employment Security Commis-
sion advises that her claim was being sent to the “Status Unit to
locate an employer account.” Wood also went to the Social
Security Administration. The available records at Social Secu-
rity did not reflect any payments by Bo-Ty. At a scheduled
meeting of the Union in late November, Wood informed the
members who had come to the meeting that she “had discov-
ered there was no unemployment benefits and Social Security
benefits.” She advised the members to “go and check their re-
cords . . . to make sure there were no discrepancies in their
paychecks.” The scheduled November union meeting was post-
poned until December 6. On December 6, “the discussion about
the unemployment was brought up at the rescheduled union
meeting.”
Johnson also applied for unemployment compensation and,
like Wood, discovered that the agent could locate no record for
Bo-Ty. Johnson also noted that her social security number was
missing from one of her checks. Johnson could not recall
whether she mentioned these matters at a union meeting, but
acknowledged discussing them with other employees.
There is no evidence that Bowlin applied for unemployment
or made any comment relating to the absence of records with
the Employment Security Commission regarding Bo-Ty.
At the rescheduled union meeting on December 6, Bowlin
asked President Simpkins whether Johnson and Wood were
going to be reinstated. Coffey was present. Simpkins stated that
Wood was a “victim of circumstances.” Wood also appears to
have been present when this conversation occurred and con-
firmed that Simpkins stated that she was a “victim of circum-
stance.” Although Wood testified that Simpkins gave no further
explanation, on cross-examination she testified that Simpkins
“produced the letter stating that we were no longer employed
by Bo-Ty, that we were fired for insubordination.” Wood gave
no further description of the document to which Simpkins pur-
portedly referred. Bowlin made no mention of a document. He
testified that Coffey informed him that neither Johnson nor
Wood would be referred to work because of “insubordination.”
In further conversation, Coffey laughed at Bowlin and told him
that he, Bowlin, had quit.
Wood testified that everything said at union meetings “went
straight to Mr. Chastain after the meetings.” Following the
December 6 meeting, on December 7, Wood received a mes-
sage on her answering machine from Chastain in which he
stated, “[A]fter the meeting you had last night, I’m over it.”
Thereafter, the message dealt with assessment checks. Wood
testified that, as a result of the message, she wrote a letter to
Chastain, and identified an unsigned document dated December
20 as the letter she sent. Chastain denies receiving the letter.
The letter recites her actions, including her visits to the Em-
ployment Security Commission and the Social Security Ad-
ministration. I find that the letter, whether or not Chastain re-
ceived it, confirms that Wood, after learning of problems re-
garding the Company’s unemployment account, also contacted
the Social Security Administration. The letter notes that the
Social Security Administration had no record of payments for
two years and that “they are checking back records.”
3. Events on and after December 8
On December 8, Chastain wrote a letter addressed to Coffey,
business agent, I.A.T.S.E. Local 929, stating:

Due to the continued turmoil and insubordination that has
been happening on Bo-Ty Plus, Inc., workplaces, I feel that I
must step in for the good of the whole.

Be hereby advised that I do not want Ron Bowlin, Lisa John-
son and Linda Wood on any of Bo-Ty Plus, Inc., calls. I feel
that the name calling, back stabbing, rude attitudes, shouldn’t
be in the workplace. Behavior such as this not only effects the
person that’s doing it, but it effects everyone that works with
this person, this is not good for the workplace and/or the
workers.

The answer filed by the Respondent refers to, and attaches, a
letter dated February 14, 2000, in which Chastain responded to
the unfair labor practice charge filed against Bo-Ty. The letter,
in pertinent part, explains Chastain’s decision to write the letter
of December 8:

The reason that I wrote the letter requesting that Linda Wood,
Ron Bowlin and Lisa Johnson not work for me anymore is
BO-TY PLUS, INC. 527
because of them running to everyone telling how bad I am
and how dishonest that I was, and how rich I was getting off
of everyone, etc.
. . . .

I haven’t stopped working the three due to their union
and/or protected concerted activities, but due to their
conspired insubordination due to me not interfering
with them and the Local Union.

When called as an adverse witness by counsel for the Gen-
eral Counsel at the beginning of the hearing, Chastain acknowl-
edged knowing about the dissention between Coffey and the
three alleged discriminatees. He testified that he felt that there
was disruption in the workplace as of December because of
reports that he received that Johnson, Bowlin, and Wood were
“[a]ccusing me of taking assessment money, accusing me of
cheating IRS, tax evasion, that I was going to go bankrupt.”
When called by counsel for Respondent near the end of the
hearing, Chastain acknowledged that union members informed
him that Wood had told them to confirm that their correct social
security number was being used on their checks. He testified
that, in addition to this, “people were saying that Johnson,
Wood, and Bowlin were complaining about tax evasion and
unemployment, and things of that nature.” In December, he had
“enough of these calls,” and wrote the letter of December 8.
Chastain’s letter of December 8 refers to insubordination. He
admitted that none of the three alleged discriminatees had re-
fused to follow any instructions that he gave. When questioned
about his use of the word insubordination, Chastain testified
that he was referring to “spreading rumors and lies against the
Employer.” He denied that Coffey suggested that he use the
term insubordination.
Chastain acknowledged that an investigator from the South
Carolina Employment Security Commission contacted him. He
referred the investigator to his accountant, and “they cleared it
up.” Chastain denied that he had to pay a fine. The record thus
confirms the documentary evidence and testimony of Wood
that the Employment Security Commission had to locate an
employer account for Bo-Ty. The matter was not resolved until
an investigator met with Chastain’s accountant.
Chastain never questioned any of the three employees re-
garding anything that they had allegedly stated to other em-
ployees. Chastain testified, “I don’t recall,” when asked if he
ever confronted any of the alleged discriminatees concerning
the rumors of alleged accusations. Johnson credibly testified
that she last spoke with Chastain in September, when she asked
him to write the letter on her behalf. There is no evidence that
Bowlin spoke with him after September 20. The last conversa-
tion Wood recalled in 1999 was in October or early November
when Chastain stated that she would be returned to work “after
December.” Chastain never told her that she had been insubor-
dinate.
On January 10, 2000, an International representative of the
Union, Ronald Lynch, attended a meeting of Local 929. Bow-
lin, who had purportedly been appointed steward, sought to
have Lynch address what he perceived to be problems in Local
929. Bowlin testified that he made his arguments clearly, but
the International Representative “was saying . . . he was not
familiar with the case . . . although the man had transcripts from
the trial,” presumably the trial of Coffey. In response to Bow-
lin, “the only thing that came out of . . . [Lynch’s] mouth was
‘more members, more contracts.’” Bowlin withdrew from the
Union on that day.
Johnson also resigned from the Union in January 2000.
Wood continues to serve as secretary-treasurer of the Union.
Despite the absence of any referrals, she had not, as of the date
of the hearing, filed any internal charge.
C. Analysis and Concluding Findings
1. The alleged discharges of Johnson and Bowlin
The complaint alleges that Respondent Bo-Ty unlawfully
discharged Johnson on August 8 and Bowlin on September 20.
In Wolf Trap Foundation, 287 NLRB 1040 (1988), the Board,
rejecting the principle of strict liability, held that an employer
would be held jointly and severally liable for a union’s dis-
criminatory operation of a hiring hall only if it knew or could
be reasonably charged with notice of the union’s discrimina-
tion. Notwithstanding this principle, an employer is liable for
the actions of its own supervisors, even if the supervisor is a
dual agent “acting on behalf of the Union as well as the Em-
ployer.” North Carolina Shipping Assn., 326 NLRB 280, 286
(1998). Job stewards who exercise independent judgment when
directing employees are supervisors of the employer. Vanguard
Tours, 300 NLRB 250, 251 (1990). Applying the foregoing
precedent to the facts herein, I find it immaterial that Chastain
was unaware of Forrester’s action in discharging Johnson. For-
rester’s announcement that Johnson no longer was employed
“by Bo-Ty” underscores her status as a supervisor of Respon-
dent.
In applying Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), in circumstances involving internal union activities, the
Board has recognized that dissident internal union activities,
although not “classic ‘union activities’” in support of a union,
constitute union activity. Nationwide Transport Service, 327
NLRB 1033, 1034 (1999). Pursuant to Wright Line, in the cir-
cumstances of this case, it was incumbent upon the General
Counsel, (1) to establish that the employee, Johnson, was en-
gaged in protected activity, albeit dissident union activity, (2)
that the employer was aware of that activity, and (3) that ani-
mus against that protected activity was a substantial or motivat-
ing reason for the employer’s action. The General Counsel
argues that it is “reasonable to infer” that Forrester’s termina-
tion of Johnson constituted retaliation for her filing of internal
charges. Such an inference would be permissible if the record
established that Forrester was aware that Johnson had filed
charges. The conclusion requested by the General Counsel is,
however, predicated upon two inferences, first, that Forrester
was aware that Johnson had filed charges and, second, that
Forrester retaliated against her for that action. The Board has
long held that “[i]nferences must be founded on substantial
evidence upon the record as a whole” and, since an inference is
not substantial evidence, “an inference based on an inference”
is impermissible. Steel-Tex Mfg. Corp., 206 NLRB 461, 463
(1973); Diagnostic Center Hospital Corp., 228 NLRB 1215,
1216 (1977). There is no evidence whatsoever that Forrester,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 528
who was serving as a dual agent of the Union and Respondent,
was aware that Johnson had filed internal union charges. For-
rester did not testify. The record provides no basis for drawing
an inference that Forrester knew that Johnson had filed charges.
Even if there were some basis for drawing such an inference, a
second inference, that the termination of Johnson was in retalia-
tion for that action, would be impermissible. I shall, therefore,
recommend that this allegation be dismissed.
Even if I were to have found that the termination of Johnson
was unlawful, I would further find that it was rescinded by
Chastain’s letter of September 13 in which he stated that he had
no problem with Johnson working again.
There is no evidence that the Respondent discharged Bowlin
on September 20. Bowlin acknowledges stating that he was
“quitting taking calls from Gene Coffey.” When Bowlin made
the foregoing statement, the only action pending against Coffey
was the recommendation that he be placed on probation. De-
spite Bowlin’s dissatisfaction with Coffey, he was the business
agent. The purported suspension of Coffey did not occur until
September 27. Although Bowlin testified that he never stated
that he “would not take calls from Steve Chastain directly,”
Chastain had no obligation to call Bowlin directly since, as
alleged in the complaint, the Respondent “maintained a prac-
tice” pursuant to which the Union is “the sole and exclusive
source of employees” for employment by Bo-Ty. Furthermore,
the complaint alleges that, “[a]t all times material herein,” Cof-
fey was the business agent of the Union. Thus, the pleadings
establish no obligation on the part of the Respondent to deal
with anyone other than Coffey. Bowlin’s unwillingness to ac-
cept calls from Coffey does not establish his termination by
Respondent. I shall, therefore, recommend that this allegation
be dismissed.
2. Failure to hire or consider for hire after December 8
The Board, in Stage Employees IATSE (Bo-Ty Plus), 333
NLRB No. 54 (2001) (not reported in Board volumes), found
that the Union violated the Act by failing to refer these employ-
ees after October 26, the 10(b) date. Although testimony and
documentary evidence establishes that none of the alleged dis-
criminatees received any referrals for some 2 months prior to
December 8, there are no complaint allegations relating to Re-
spondent Bo-Ty during this period. The complaint, in pertinent
part, alleges that, since December 8, Respondent failed and
refused to hire, or to consider for hire, Johnson, Bowlin, and
Wood, in violation of Section 8(a)(1) and (3) of the Act be-
cause they “joined, supported, or assisted the Respondent Un-
ion and engaged in concerted activities for the purpose of col-
lective bargaining or other mutual aid and protection.” There is
no probative evidence that any action taken by the Respondent
was motivated by the union activity of these employees.
Chastain took no action against them in response to Wood’s
letter advising that Coffey had been suspended and that he
should deal with Henderson and Bowlin. The only conversation
between Chastain and any of the alleged discriminatees after
Coffey was purportedly suspended was in October or early
November when Chastain stated to Wood that she would be
returned to work “after December.” Chastain’s letters and tes-
timony establish that his letter of December 8 was not moti-
vated by the union activity of these employees. Rather, as
Chastain wrote on February 14, 2000, the letter resulted from
his belief that these employees had “conspired.” I shall, there-
fore, recommend that the Section 8(a)(3) aspect of this allega-
tion be dismissed.
Chastain, in his letter of February 14, 2000, stated that he
wrote the letter of December 8 that barred these three employ-
ees from working for Respondent because of their “conspired
insubordination” and “because of them running to everyone.” I
am mindful that there is no probative evidence whatsoever that
Bowlin, Johnson, and Wood conspired. Nevertheless, “when an
employee is disciplined for concerted or union activities which
his employer mistakenly believes he had participated in, the
statute affords him relief.” Gulf-Wandes Corp., 233 NLRB 772
(1977). A respondent’s belief that protected activity has oc-
curred is controlling. Henning and Cheadle, 212 NLRB 776,
777 (1974). The statements in the Respondent’s letter and
Chastain’s testimony establish, and I find, that the Respondent
believed that these employees had engaged in concerted activ-
ity.
The concerted activity that the Respondent believed these
employees had engaged in included protected activity, specifi-
cally, complaints relating to statutory benefits. In his letter of
December 8 advising the Union that he did not want any of the
three employees working on Respondent’s calls, Chastain char-
acterized their conduct as insubordination. When testifying
regarding what he meant by that term, Chastain said that he was
referring to “spreading rumors and lies against the Employer.”
The “rumors and lies” to which Chastain referred were based
upon his receiving reports of statements that Bowlin, Johnson,
and Wood had purportedly made. His testimony established
that these included reports that Wood advised employees to
confirm that their correct social security number was being
used on their checks, and that “people were saying that John-
son, Wood, and Bowlin were complaining about tax evasion
and unemployment, and things of that nature.” Social Security
benefits and unemployment compensation are statutory bene-
fits. “[E]fforts to invoke the protection of statutes benefiting
employees are efforts engaged in for the purpose of ‘mutual aid
or protection’” when those efforts are engaged in concertedly
with other employees. Meyers Industries (Meyers II), 281
NLRB 882, 887 (1986).
The Respondent, in its brief, refers to the evidence adduced
by the General Counsel regarding Wood’s discovery that the
South Carolina Employment Security Commission had no em-
ployer record for Bo-Ty and her bringing this to the attention of
union members. The Respondent argues that this “traverses
well beyond” the allegations of the complaint, that the Respon-
dent was “not on notice of these allegations,” and that this the-
ory is not encompassed in the charge or complaint. The single
unamended charge filed against Bo-Ty alleges that Respondent
Bo-Ty, since August 1, “failed and/or refused to call and/or
refer” the three discriminatees “in retaliation for their union
and/or protected concerted activities.” The complaint alleges
that since December 8, the date of Chastain’s letter, the Re-
spondent violated Section 8(a)(1) and (3) of the Act by failing
to hire or consider for hire these employees because of they
“joined, supported, or assisted the Respondent Union and en-
BO-TY PLUS, INC. 529
gaged in concerted activities for the purpose of collective bar-
gaining or other mutual aid and protection and in order to dis-
courage employee from engaging in such activities.” (Emphasis
added.) The ultimate issue in this case is the motivation of the
employer. In litigating Respondent’s motivation, Chastain as-
serted that the Respondent’s actions were not motivated by the
dissident union activities of these employees but by their “con-
spired insubordination” and their “running to everyone telling
how bad I am.” In response to a question posed by counsel for
Respondent, Chastain testified that “people were saying that
Johnson, Wood, and Bowlin were complaining about tax eva-
sion and unemployment, and things of that nature.” The Re-
spondent’s motivation was fully litigated. Furthermore, and
contrary to the Respondent’s argument, I find that the allega-
tion that Bo-Ty discriminated against these employees because
they engaged in protected concerted activity was clearly alleged
in both the charge and complaint.
Chastain characterized the purported accusations of these
employees as “spreading rumors and lies against the Em-
ployer,” and he referred to “taking assessment money, accusing
me of cheating IRS, tax evasion.” Accusations of criminality,
such as tax evasion, made in the course of otherwise protected
activity may remove that activity from the protection of the Act
when those accusations are made in bad faith. Pizza Crust Co.,
286 NLRB 490, 507 (1987). There is no evidence that Bowlin,
Johnson, or Wood made any accusation in bad faith, made any
accusation of criminality, or ever used the term “tax evasion.”
When an employee is terminated for misconduct while engag-
ing in activity protected by Section 7 of the Act, the employer
is not privileged to act upon a reasonable belief if, in fact, the
employee is innocent of any wrongdoing. Ideal Dyeing & Fin-
ishing Co., 300 NLRB 303, 319 (1990). As the Supreme Court
stated in NLRB v. Burnup & Sims, 379 U.S. 21, 23 (1964), “A
protected activity acquires a precarious status if innocent em-
ployees can be discharged while engaging in it, even though the
employer acts in good faith.” The burden of proof is upon the
General Counsel to show that the employer’s honest belief was
mistaken, that the alleged misconduct did not in fact occur.
Chastain’s belief that these employees were concertedly
making derogatory remarks about him was based solely upon
rumors that he heard. He never sought to verify the truth of any
statement that he heard, thus any claim that his belief was rea-
sonable is spurious. Chastain’s own statements regarding the
alleged misconduct that he attributes to the alleged discrimina-
tees is illogical and contradictory. His letter of December 8
refers to what “has been happening on Bo-Ty Plus, Inc., work-
places, . . . that the name calling, back stabbing, rude attitudes,
shouldn’t be in the workplace.” None of the alleged discrimina-
tees could have participated in this conduct because none of
them had been referred to a Bo-Ty workplace for the better part
of two months. In his letter of February 14, 2000, Chastain
referred to receiving reports of “how dishonest that I was, and
how rich I was getting off of everyone,” but, when testifying,
he accused Bowlin, Johnson, and Wood of stating “that I was
going to go bankrupt.” Chastain did not address the inherent
contradiction between getting rich and going bankrupt.
The General Counsel’s evidence reveals no false statements
by Johnson or Wood. There is no probative evidence that Bow-
lin, Johnson, or Wood said anything about Chastain cheating
the Internal Revenue Service, tax evasion, getting rich, or going
bankrupt. There is no evidence whatsoever that Bowlin made
any comment regarding Chastain’s business affairs. Johnson
and Wood separately related their discovery that the South
Carolina Employment Security Commission had no record of
wages paid to them by Bo-Ty and Johnson noted that some of
her check stubs contained no social security number. Johnson
could not recall whether she discussed this at a union meeting.
Wood made her comments at a union meeting and she urged
employees to check their pay stubs. Wood also mentioned “no
Social Security.” This statement is explained in the letter of
December 20 in which Wood reported that the Social Security
Administration had no record of her earnings from Bo-Ty and
“were checking.” The document showing that the Employment
Security Commission sought a status report for Bo-Ty and
Chastain’s admission that he was contacted by an investigator
confirm that the concerns expressed by Johnson and Wood,
none of which asserted criminality, were factually justified.
Although the comments of Johnson and Wood were not made
concertedly, Chastain’s letters and testimony establish that he
believed that Johnson, Bowlin, and Wood had conspired.
Applying the criteria of FES, 331 NLRB 9 (2000), I find that
the Respondent had a continuing need for stage hands, that
Bowlin, Johnson, and Wood were fully qualified to perform
this work, and that Respondent refused to hire these employees
because it believed they had engaged in concerted activities.
Respondent was aware that the purported concerted activities in
which these employees had engaged included complaints relat-
ing to social security and unemployment, statutory employee
benefits. Such activity is protected by Section 7 of the Act.
Although Johnson and Wood had truthfully reported their sepa-
rate discoveries at the Employment Security Commission and
Social Security Administration, Respondent, without ever veri-
fying the source of reports it received, concluded that all three
employees had engaged in “conspired insubordination.” Con-
trary to Respondent’s belief that these employees were “run-
ning to everyone” making false statements and spreading lies,
there is no evidence that any one of them made any false state-
ment that thereby rendered unprotected what Respondent un-
derstood to be their concerted conduct. General Counsel has
established that the misconduct that Respondent attributed to
these employees on the basis of unverified hearsay statements
did not occur. The Respondent, on the basis of reports it re-
ceived, believed that these employees were acting concertedly
and understood that their statements to their fellow employees
included comments regarding statutory employee benefits as
well as accusations of improprieties regarding taxes. When
employees are engaged in protected conduct, an employer is
not privileged to act upon a belief that misconduct has occurred
when, in fact, there has been no misconduct. Respondent’s
refusal to hire these employees because of its belief that they
had engaged in concerted activities there were protected by
Section 7 of the Act violated Section 8(a)(1) of the Act.
CONCLUSION OF LAW
By refusing to hire employees because they engaged in pro-
tected concerted activities, the Respondent has engaged in un-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 530
fair labor practices affecting commerce within the meaning of
Section 8(a)(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
The Respondent having unlawfully advised the Union not to
hire Lisa Johnson, Ronald Bowlin, and Linda Wood, it must
rescind the letter of December 8, 1999, and jointly and sever-
ally with the Union make these employees whole for any loss
of earning and other benefits they suffered as a result of Re-
spondent’s refusal to hire them, computed on a quarterly basis
from December 8, 1999, until the date of the rescission of its
letter of December 8, 1999, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).3
The employees of Respondent work at various venues. Inso-
far as the Respondent has no facility, I shall recommend that
Respondent be ordered to mail copies of an appropriate notice
to its current employees and any former employees who
worked for Respondent after December 8, 1999, the date of the
earliest unfair labor practice found herein. See 3E Co., 313
NLRB 12 at fn. 2 (1993).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The Respondent, Bo-Ty Plus, Inc., Travelers Rest, South
Carolina, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to hire employees because they have
engaged in protected concerted activities.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.

3 I am mindful that Bowlin stated that he would not accept referrals
from Coffey. Bowlin never “quit.” If he had quit, there would have
been no need for Respondent to include his name in its letter of De-
cember 8. Bowlin, in August, sought and received referrals from
Simpkins. I shall leave for compliance the determination of whether the
Union would have made nondiscriminatory referrals of Bowlin but for
the Respondent’s letter of December 8, 1999.
4 If 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.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, advise Local
929, International Alliance of Theatrical, Stage Employees,
Moving Picture Technicians, Artists and Allied Crafts of the
US and Canada, AFL–CIO, that the letter of December 8, 1999,
is rescinded and that it has no objection to the Union referring
Lisa Johnson, Ronald Bowlin, and Linda Wood to work for Bo-
Ty Plus, Inc.
(b) Jointly and severally with the Union, make Lisa Johnson,
Ronald Bowlin, and Linda Wood whole for any loss of earnings
and other benefits suffered by reason of its unlawful failure and
refusal to hire these employees since December 8, 1999, with
interest, in the manner set forth in the remedy section of the
decision.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(d) Mail a copy of the attached notice marked “Appendix”5
to all current employees and former employees employed by
the Respondent at any time since December 8, 1999. Such no-
tice shall be mailed to the last known address of each of the
current and former employees. Copies of the notice, on forms
provided by the Regional Director for Region 11, after being
signed by the Respondent’s authorized representative, shall be
mailed at Respondent’s expense within 14 days after service by
the Region.
(e) 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.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.
5 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.”