Boydston Electric, Inc.

National Labor Relations Board - Board Decisions

Aug 25, 2000

331 N.L.R.B. 1450 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1450
Boydston Electric, Inc. and International Brother-
hood of Electrical Workers, Local 611, AFL–
CIO. Case 28–CA–13447
August 25, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On April 10, 1998, Administrative Law Judge Mary
Miller Cracraft issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief and
the Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.2
The Respondent is an electrical contractor that began
work at the Cottonwood Mall in Albuquerque, New
Mexico, in May 1995.3 In June, union members applied
for employment with the Respondent, with some obtain-
ing work and others not. Several employees engaged in
union activity, including the circulation of union cards
and information, that culminated in a strike on Septem-
ber 25.
The judge found that the Respondent violated Section
8(a)(1) of the Act by threatening an employee, Dan
Miano, with termination for soliciting for the Union on
nonworking time and by asking another employee, Larry
Chavez, whether he had signed a union card and by cre-
ating the impression that it was engaged in surveillance
of its employees’ union and other protected activities by
asking Chavez whether he was going to follow in
Miano’s footsteps.4 Contrary to the judge, for the rea-
sons set forth below, we also find that the Respondent
violated Section 8(a)(1) by interrogating Miano and
threatening him with unspecified reprisals for his union
activities, and Section 8(a)(3) by discharging him for his
union activity. We further find, contrary to the judge,
that the employees engaged in an unfair labor practice
strike and therefore the Respondent violated Section
8(a)(3) and (1) by failing and refusing to reinstate former
striking employees Ray and Shawn Garrett after their
unconditional offer to return to work. Finally, we re-
verse the judge and find that the Respondent violated
Section 8(a)(3) and (1) by failing to hire job applicants
Lloyd and Rita Beebe because of their union affiliation.5

1 We deny the General Counsel’s motion to amend the complaint to
allege that the Respondent discriminatorily promulgated its no-
distribution rule.
2 We correct the Order and notice to conform to the violations found.
3 Unless noted otherwise, all dates are in 1995.
4 There are no exceptions to these findings.
5 In the circumstances of this case, we adopt the judge’s finding that
the Respondent did not unlawfully interrogate employee Donald Mar-
tin. We note that the Board normally finds the interrogation of an
applicant during an interview to be inherently coercive. See, e.g., Cul-
ley Mechanical Co., 316 NLRB 26, 27 fn. 8 (1995). However, in this
case, Martin, in his own words, “tried to be as obvious as possible” in
showing his support for the Union when applying for the job by wear-
ing a union shirt, hat, and pencil clip and the Respondent’s representa-
tive simply asked him how long he had been in the Union. Thus, not-
ing the open advocacy of the applicant and the nature of the question
asked, we do not find this a coercive interrogation under Sec. 8(a)(1).
We also adopt the judge’s finding that the Respondent did not violate
Sec. 8(a)(3) and (1) by discharging Vince Sisneros.
The Threat and Interrogation of Miano
On September 19, Miano passed out union cards to
employees before work. As the judge found, shortly
after Miano did this, Joe Jaramillo, the field foreman and
superintendent, asked Miano why he was doing “this”
and told him that he was not doing himself or the other
employees any good. Jaramillo added that the Respon-
dent was nonunion, the job was bid nonunion, and it
would probably stay that way. Jaramillo also added that
he would do everything he could to protect his men. In
finding Jaramillo’s comments lawful, the judge noted
that Miano and Jaramillo were friends.
We find that Jaramillo unlawfully threatened Miano.
Jaramillo’s statements, in quick response and clear refer-
ence to Miano’s distribution of union authorization cards,
reasonably implied that Miano’s protected activities
might harm his interests, and thus would have reasonably
caused him to fear reprisals for engaging in such pro-
tected activities. See Long Island College Hospital, 327
NLRB 944 (1999) (advising employees to “proceed with
caution” unlawful); and Liberty Natural Products, 314
NLRB 630 (1994) (employer’s statement that employees
who signed a protest petition were stupid and that they
should have known better found unlawful), enfd. mem.
73 F.3d 369 (9th Cir. 1995). The fact that Miano and
Jaramillo were friends does not negate the coercive im-
pact of Jaramillo’s statements. In fact, such advice, “had
it come from a friend sincerely concerned for the em-
ployee’s job security, might have been all the more omi-
nous.” Jordan Marsh Stores Corp., 317 NLRB 460,
462–463 (1995). See also Olney IGA Foodliner, 286
NLRB 741, 748 (1987), enfd. 870 F.2d 1279 (7th Cir.
1989) (threats possibly intended as “friendly advice”
found violative).6
We further find that Jaramillo’s asking Miano why he
was distributing union authorization cards, in the context
of unlawfully threatening him with unspecified reprisals
for doing so, constituted coercive interrogation, in viola-
tion of Section 8(a)(1) of the Act.

6 Thus, we reject our dissenting colleague’s attempt to discount
Jaramillo’s threat as no more than an amicably offered personal opinion
about the practical difficulties faced by employees who seek union
representation on a job that was bid as nonunion. Jaramillo’s remarks
to Miano are clearly far more than that, and our colleague’s benign
characterization of them is simply not supported by the record.
331 NLRB No. 194
BOYDSTON ELECTRIC 1451
The Discharge of Miano
Contrary to the judge, we find that the Respondent vio-
lated Section 8(a)(3) of the Act by discharging Miano for
engaging in union activity. The facts are as follows. On
September 19, Project Manager Dave Akin told Miano
not to pass out union literature at the jobsite on company
time, and, on September 20, suspended Miano for his
distribution of union flyers on that day on working time.
Following the suspension, Keith Boydston, the Respon-
dent’s president, instructed Akin to examine Miano’s
application. Upon reading it, Akin noticed that Miano
had listed “self employed” for prior employment. On
September 22, Akin asked Miano where he had worked
while self-employed. Miano answered that he had
worked on various “side jobs.”7 Akin told Miano that he
needed to know the people he had worked for and their
phone numbers while he was self-employed, and told
Miano that he could not come back to work unless he
gave Akin that information. Although Miano took the
application with him, he did not provide any information
in response to Akin’s demand, and thus he did not return
to work.
The judge found that the General Counsel established
that union activity was a motivating factor in Miano’s
September 20 suspension but that the Respondent would
have suspended Miano in any event because he openly
violated its rule against circulating union literature at the
workplace on working time.8 With regard to the allega-
tion that the Respondent unlawfully discharged Miano on
September 22, it is undisputed that Miano’s distribution
of union literature was a motivating factor in the Re-
spondent’s examination of his employment application—
motivation which the judge found to be unlawful.9 Fur-
ther, the Respondent admitted in its answer to the com-
plaint that it discharged Miano “on or about September
22,” and that since that date it has failed and refused to
reinstate him. Notwithstanding the Respondent’s admis-
sion of discharge, however, the judge found that Miano
had not in fact been discharged, because he did not return
with a completed application. She concluded that it
“would be unjust to find discharge based on the answer
when the evidence is to the contrary.”

7 Miano admitted at the hearing that he had submitted an inaccurate
application, testifying that he had not included the union contractors for
whom he had worked. The evidence reflects that Shawn Garrett, an-
other employee, had similarly listed “self employed, motel mainte-
nance” on his application but there is no evidence that he was ques-
tioned about it.
8 We adopt the judge’s finding that the Respondent did not violate
Sec. 8(a)(3) by suspending Miano.
9 Indeed, the record establishes that Miano’s distribution of union
literature was the only motivating factor in the Respondent’s examina-
tion of his employment application. Thus, when questioned about the
reason for examining Miano’s application, Project Manager Akin ex-
plained “[I]t was after he was handing out fliers that we had taken a
closer look at it.”
Contrary to the judge, we find that the Respondent’s
admission in its answer that it discharged Miano on or
about September 22 is binding. In a similar circum-
stance, the Board has held that “[s]uch an admission has
the effect of a confessory pleading, and its principal
characteristic is that it is conclusive upon the party mak-
ing it.” Academy of Art College, 241 NLRB 454, 455
(1979), enfd. 620 F.2d 720 (9th Cir. 1980) (citations
omitted) (various stipulations, once entered into evi-
dence, constituted judicial admission on the respondent’s
part as to the facts contained therein). The judges, the
Board, and the parties rely on the complaints and the
answers to determine the contested issues. See Liberty
Natural Products, 314 NLRB 630 (1994), enfd. mem. 73
F.3d 369 (9th Cir. 1995), cert. denied 518 U.S. 1007
(1996) (where answer admits complaint allegation that
individual is a supervisor, General Counsel can rely on
admission and does not need to litigate that issue);
United Steelworkers Local 14534 v. NLRB, 983 F.2d
240, 247 (D.C. Cir. 1993) (where answer admits com-
plaint allegation that striking employees, through the
Union, made a written unconditional offer to employer to
return to work, employer took that issue out of the case).
We also find that the Respondent’s introduction of evi-
dence potentially in conflict with its admission does not
negate the binding effect of the admission. Similarly,
courts have repeatedly held that admissions contained in
pleadings are binding even where the admitting party
later produces contrary evidence. E.g., Missouri Hous-
ing Development v. Brice, 919 F.2d 1306, 1314–1315
(8th Cir. 1990), citing, inter alia, Davis v. A. G. Edwards
& Sons, Inc., 823 F.2d 105 (5th Cir. 1987) (even if post-
pleading evidence conflicts with admissions in the plead-
ings, admissions in the pleadings are binding on the par-
ties and may support summary judgment against the
party making such admissions). In addition, the Respon-
dent provides no reason why it did not deny in its answer
the allegation that it discharged Miano on or about Sep-
tember 22. Cf. K&W Trucking, Inc., 215 NLRB 127
(1974) (Board rejected a respondent’s reconsideration
motion based, inter alia, on the employer’s assertion that
its attorney was under a mistaken impression that it was
engaged in interstate commerce). Accordingly, we find
that the Respondent is bound by its admission that it dis-
charged Miano on or about the day the Respondent ques-
tioned him about his application. Consequently, it is
unnecessary for us to address our dissenting colleague’s
argument that it would not have been reasonable for
Miano to believe that he was discharged. The discharge
of Miano became and remained an admitted fact in this
proceeding from the time that the Respondent admitted
in its answer that it discharged him.
We further find that the General Counsel has met his
burden under Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Manage-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1452
ment Corp., 462 U.S. 393, 399–403 (1983), by providing
sufficient evidence supporting an inference that protected
activity was a motivating factor in the Respondent’s de-
cision to discharge Miano. Miano engaged in open union
activity, the Respondent unlawfully questioned and
threatened him in response to this activity, it discharged
him 3 days after the activity, and it showed its union
animus through other unlawful conduct. In agreement
with the judge, we also find that a motivating factor in
the Respondent’s examination of Miano’s application
was his distribution of union literature.
We find that the Respondent has not met its burden of
rebutting the General Counsel’s case by showing that it
would have discharged Miano in the absence of protected
conduct. The Respondent searched for a reason to dis-
charge Miano for his union activity immediately after it
found out about it, and found one in his application.10
The evidence does not reflect that the Respondent had
any other reason for its reconsideration of the applica-
tion. If Miano had not engaged in union activity, the
Respondent would not have reviewed his application and
discharged him. Accordingly, we find that the Respon-
dent violated Section 8(a)(3) and (1) by discharging
Miano.
The Alleged Unfair Labor Practice Strike and Failure to
Reinstate Strikers
We also find, contrary to the judge, that the Respon-
dent’s employees engaged in an unfair labor practice
strike. On September 22, Ray Garrett, Shawn Garrett,
Miano, and two other employees met with Brian Condit,
a union representative, and discussed the various unfair
labor practices which they believed had occurred, includ-
ing the discharge of Miano, interrogations, threats, and
the selective enforcement of solicitation rules. On Mon-
day, September 25, Ray and Shawn Garrett and the other
employees went to the jobsite, announced that they were
striking and soon departed. On February 28, 1996, Ray
and Shawn Garrett unconditionally offered to return to
work immediately. Akin told them that he did not need
any electricians at that time.
Under settled principles, a strike is an unfair labor
practice strike where the employer’s unfair labor practice
conduct constitutes one of the causes of a strike. E.g.,
Trumbull Memorial Hospital, 288 NLRB 1429, 1449
(1988). Here, the judge applied an incorrect test when
she found that the strike was not an unfair labor practice
strike because, inter alia, the unfair labor practices which
caused the strike were not “flagrant or of a serious, per-
vasive nature.” Although flagrant, serious, or pervasive
unfair labor practices may certainly cause an unfair labor
practice strike, and may even be more likely to cause one,
they are nevertheless, in the final analysis, not necessary

10 As noted above, at least one other employee listed “self em-
ployed” on his application and the Respondent did not question him
about it.
conditions to finding that there was an unfair labor prac-
tice strike. In determining whether a strike is an unfair
labor practice strike, the Board does not calculate the
relative severity of the unfair labor practices, but instead
considers only whether the strike was at least in part the
direct result of the employer’s unfair labor practices,
C&E Stores, 221 NLRB 1321, 1322 (1976); and whether
the employer’s unlawful conduct played a part in the
decision to strike, Central Management Co., 314 NLRB
763, 768 (1994).
Indeed, Citizens National Bank of Wilmar,11 cited by
the judge, sets forth the correct test, in clear terms and
fails to support the proposition for which it is cited by the
judge. Thus, in Citizens National Bank of Wilmar, the
Board stated:
[T]he correct standard in determining whether a strike
is an unfair labor practice strike is whether it is one
which is caused “in whole or in part” by an unfair labor
practice. [245 NLRB at 391; citations omitted].
The Board in Citizens National Bank of Wilmar did not
mention, much less assess, the relative gravity or extent of
unfair labor practices in determining whether there was an
unfair labor practice strike. Nor do the facts in Citizens
National Bank support a proposition that such an assess-
ment is necessary in determining whether a strike is an
unfair labor practice strike. Rather, the crucial factor in
finding that the strike in Citizens National Bank was not
an unfair labor practice strike was that, at the strike vote
meeting, the employees expressed no concern over the
sole unfair labor practice committed by the employer,
which had occurred five months before the meeting.
In this case, the judge found that the Respondent vio-
lated Section 8(a)(1) by threatening Miano with termina-
tion for distributing union literature before work and by
asking employee Chavez if he had signed a union au-
thorization card and whether he was walking in Miano’s
footsteps. In addition, we find that the Respondent fur-
ther violated Section 8(a)(1) by threatening Miano with
unspecified reprisals for his union activity and by inter-
rogating him, and Section 8(a)(3) and (1) by discharging
Miano for union activity. We also find that the unfair
labor practices were a cause of the strike. Specifically,
later in the same day of Miano’s discharge, the employ-
ees met and discussed the matters we have found to con-
stitute unfair labor practices, including the interrogations,
threats, and the discharge of Miano itself. They in-
formed the Respondent that its unfair labor practice con-
duct was the cause of the strike and went on strike the
next business day. See Walnut Creek Honda, 316 NLRB
139, 142 (1995), enfd. on other grounds 89 F.3d 645 (9th
Cir. 1996) (Board pays special attention to statements
made during negotiations and strike vote meetings).
11 245 NLRB 389, 391 (1979), enfd. mem. 644 F.2d 39 (D.C. Cir.
1981).
BOYDSTON ELECTRIC 1453
Under well-established Board law, an employer is re-
quired to reinstate unfair labor practice strikers upon
their unconditional offer to return to work. Mauka, Inc.,
327 NLRB 803 (1999). See also Detroit Newspapers,
326 NLRB 700, 766 (1998). In this case, it is uncon-
tested that Ray and Shawn Garrett made an unconditional
offer to return to work on February 28, 1996, and were
not reinstated. Accordingly, we find that the Respondent
violated Section 8(a)(3) by refusing to reinstate them
upon their offer to return.
The Failure to Hire Lloyd and Rita Beebe
We further find, contrary to the judge, that the Re-
spondent violated Section 8(a)(3) and (1) by failing and
refusing to hire Lloyd and Rita Beebe. The facts are as
follows. On June 1 and 2, 1996, the Respondent adver-
tised job openings for journeymen electricians. On June
3, Lloyd and Rita Beebe provided their completed appli-
cations for employment to the Respondent. Both wore
union hats and T-shirts and brought their young child
with them, who was also wearing a union T-shirt. Their
completed applications showed that they had graduated
from the Union’s apprenticeship training program and
had worked for union contractors in journeymen electri-
cian positions. They listed union business agents as ref-
erences, including Union Representative Condit.12 The
record establishes (indeed, the Respondent does not dis-
pute) that the Beebes had experience and training rele-
vant to the Respondent’s requirements. Yet neither was
hired. On the same day that the Beebes were rejected,
however, covert union salts Vincent Sisneros, Moran,
Beel, and Romano all submitted employment applica-
tions and all carefully concealed their union affiliation.
They were all hired. The Respondent subsequently hired
three other employees in June, within 3 weeks of rejecting
the Beebes, including Delano Whitney and Darrell Brooks.
Their applications were not shown to have evidenced any
union affiliation. Indeed, foreman/superintendent Jaramillo
testified that the Respondent did not even have any appli-
cations on file for Brooks and Whitney, and that he did
not know whether they had even submitted applications.
Jaramillo added that he did not recall the circumstances
of Brooks’ hiring, but that he had hired Whitney, who
had previously worked for the Respondent.
Boydston testified that he reviewed the Beebes’ appli-
cations, noticing that they listed Condit as a reference,
that their past employment had been with a union con-

12 Rita Beebe’s application reflects that she worked for DKD Electric
from April 8 through June 3, 1996, and left for “better employment.”
Prior to her work for DKD, she worked for another employer from
November 1, 1995 through February 28, 1996, and left because of a
“reduction in force.” Lloyd Beebe’s application reflects that he worked
at DKD from April through May 1996 and left for “better employ-
ment.” He worked for another employer in the previous 2 months and
left because of a reduction in force and worked for another employer
from June 1995 through February 1996 that he left because of a reduc-
tion in force. The applications state that they earned $18.70 per hour at
DKD Electric.
tractor at higher wages, and that they were currently un-
employed. Boydston testified that he did not hire Lloyd
and Rita Beebe because he did not think that they were
“real serious about coming to work for me as a good em-
ployee, employees.” Boydston testified that he felt that
way because they had brought their child with them
when they applied for work, they had been working for a
“good union contractor” at a higher wage and had quit
after a short time there, and their employment record
made them look “unstable” because they worked short
jobs. Boydston acknowledged, however, in response to
the General Counsel’s questions, that there are “many,
many reasons” why an individual may legitimately wish
to leave a higher paying position, including a desire to
advance one’s career, perform more challenging work,
gain better opportunities for promotion, work closer to
home or the family’s babysitter, or avoid conflicts with
supervisors that were not the employee’s fault. He also
agreed that individuals might do so to organize a union.
With respect to the Respondent’s refusal to hire the
Beebes, we affirm the judge’s finding that the General
Counsel met his initial evidentiary burden under Wright
Line, supra. More specifically, we find that the record
establishes that the Respondent was hiring at the time the
Beebes applied for employment, that they had experience
and training relevant to the generally known require-
ments of the position for hire (journeyman electrician),
and that antiunion animus contributed to the Respon-
dent’s decision not to hire them. See FES, 331 NLRB
No. 20, slip op. at 4. (2000).
As stated, in an effort to establish a Wright Line de-
fense, Boydston testified that he did not hire the Beebes
because he did not think they were “real serious about
coming to work for me as a good employee, employees.”
He cited their bringing their child with them, and their
having worked some short construction jobs, and he said
that he was puzzled about the statements on their
applications that they had worked for a union-contractor
making $18.70 an hour, but were looking for “better em-
ployment.” He testified that he did not think that “[he
would] fill that criteria for them.” The judge found that
Boydston’s testimony “was quite genuine and under-
standable.” As she explained, “[w]ithout more informa-
tion, it is nonsensical to leave a higher paying employer
for better employment and consider lower pay to be that
better employment.” Under those circumstances, she
found that the Respondent has satisfied its Wright Line
burden to show that the Beebes would not have been
hired even if their union affiliation had not been known.
Contrary to the judge, we find that the Respondent has
not met its Wright Line burden.
We accept the judge’s finding that one reason
Boydston did not hire the Beebes was that he had ques-
tions concerning the seriousness of their applications and
the reasons for their considering this lower paying jobs
better than their former jobs. Unlike the judge, however,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1454
we are not persuaded that the Respondent has shown by a
preponderance of the evidence that, because of those
understandable questions, it would not have hired the
Beebes even if it were not motivated in part by union
animus. What is decisive in our view is that Boydston
never raised any of those obvious questions with the
Beebes themselves. We are convinced that Boydston did
not do so because he did not want to risk having his
questions satisfactorily answered by the two union appli-
cants.
Take, for example, Boydston’s questioning why the
two parents brought their small child with them when
they applied for the jobs. The reasons why serious appli-
cants might nevertheless be accompanied by a child are
numerous and self-evident—the babysitter’s not showing
up being the most likely. But Boydston never asked the
Beebe’s about the matter, much less suggested that he
doubted their seriousness as applicants because of the
presence of their child.
Similarly, notwithstanding his questioning why the
Beebes would be willing to work for lower wages, he
never posed that obvious question to them. Rita Beebe
testified that she was willing to quit her former job and
take a reduction in pay to work for the Respondent “[t]o
help the Union organize.” She added that “not driving
two hours every morning, taking my son to the babysitter
at four o’clock in the morning, that would have sounded
pretty good to me.” Boydston conceded at the hearing
that an individual may leave a higher paying job for
many legitimate reasons, including the desire to engage
in union organizing. We find it reasonable to infer that
Boydston never raised his questions about the Beebes’
particular reasons for seeking lower paying jobs because
he did not wish to hear the legitimate explanations they
might offer.
Finally, in rejecting the judge’s analysis of the record
evidence bearing on the Respondent’s Wright Line de-
fense, we find it significant that Boydston testified that
he wanted to hire the most qualified journeyman that he
could. The Beebes’ applications showed that they had
both completed Joint Apprenticeship Training programs
and had worked for recognized contractors. Nonetheless,
shortly after rejecting the Beebes’ applications, the Re-
spondent hired Brooks and Whitney. There is no evi-
dence that the Respondent had any knowledge of qualifi-
cations possessed by Brooks and Whitney comparable to
those of the Beebes. The Respondent has not shown that
Brooks or Whitney satisfied any of the Respondent’s
hiring criteria—including even a journeyman electri-
cian’s license. As far as the record shows, the Respon-
dent asked Brooks and Whitney nothing in the hiring
process, much less how much they had been making on
their most recent jobs, how long they had worked on
their previous jobs, or why they had left those jobs. Cu-
riously, Boydston assertedly found all of those factors
critical in his review and rejection of the Beebes’ appli-
cations. Revealingly, however, and unlike the Beebes,
neither Brooks nor Whitney showed any affiliation with
or support for the Union. Our dissenting colleague, like
the judge, is apparently willing to discount all of this
evidence. In essence, he argues that the judge made an
outcome-dispositive credibility resolution in favor of
Boydston when she found that his “testimony regarding
his puzzlement about the statements on the Beebes’ ap-
plications was quite genuine and understandable.”
Boydston’s “puzzlement,” or his doubts about the
Beebe’s seriousness, even if genuine, do not overcome
the overwhelming preponderance of the evidence, fully
discussed above, which establishes that the Respondent
failed and refused to hire the Beebes because of their
affiliation with and support for the Union.
In sum, the record establishes that the Beebes met all
of the Respondent’s requirements for employment as
journeymen electricians to fill the Respondent’s adver-
tised vacancies, but they appeared for their job interviews
wearing union insignia, and they revealed their union
affiliation in their applications. They were rejected.
Instead, the Respondent hired seven other applicants
within the next 2–1/2 weeks, four of them on the same
day that it rejected the Beebes. Although the record is
largely silent as to the professional qualifications of these
seven new hires, they apparently had one thing in com-
mon with each other that clearly distinguished each of
them from the Beebes—they gave no indication whether
they were or had been affiliated with or supporters of the
Union.
Thus, we find, as fully discussed above, and contrary
to the judge, that the Respondent has failed to establish
by a preponderance of the evidence that it would have
rejected the Beebes’ applications even in the absence of
their demonstrated affiliation with and support for the
Union. We find that General Counsel has thus estab-
lished that the Respondent violated Section 8(a)(3) and
(1) of the Act by discriminatorily failing and refusing to
hire Lloyd and Rita Beebe because of that affiliation and
support.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Boydston Electric, Inc., Albuquerque, New
Mexico, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with termination for solicit-
ing for the Union on nonworking time.
(b) Interrogating employees about their union or other
protected activities.
(c) Creating the impression that it is engaged in sur-
veillance of union or other protected activities by asking
an employee whether he was going to follow in the foot-
BOYDSTON ELECTRIC 1455
steps of another employee who had engaged in union
activities.
(d) Discouraging membership in the Union or any
other labor organization by failing and refusing to imme-
diately reinstate employees upon their unconditional of-
fer to return to work after they have engaged in a strike
to protest the Respondent’s unfair labor practices.
(e) Refusing to hire job applicants because they are
members of International Brotherhood of Electrical
Workers, Local 611, AFL–CIO, or any other union.
(f) In any like or related manner, interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
full reinstatement to Dan Miano to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Miano, and within 3 days thereafter notify him in writing
that this has been done and that the discharge will not be
used against him in any way.
(c) Within 14 days from the date of this Order, offer
full reinstatement to unfair labor practice strikers Shawn
Garrett and Ray Garrett to their former jobs or, if these
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed, displacing if necessary,
any replacements hired since February 28, 1996. The
Respondent shall also be required to make them whole
for any loss of earnings and other benefits that they may
have suffered by reason of the Respondent’s refusal to
reinstate them, from the date of their offer to return to
work.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the refusal to reinstate
Shawn and Ray Garrett, and within 3 days thereafter no-
tify them in writing that this has been done and that it
will not be used against him in any way.
(e) Within 14 days from the date of this Order, offer
Lloyd Beebe and Rita Beebe employment to the same or
substantially equivalent position for which they applied,
without prejudice to any seniority or any other rights or
privileges to which they would have been entitled in the
absence of the Respondent’s hiring discrimination.
(f) Make the above-named employees whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against them. Such amounts shall be
computed in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest to be computed
as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
(g) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records, including an electronic copy of such re-
cords if stored in electronic form, necessary to analyze
the amount of backpay due under the terms of this Order.
(h) Within 14 days after service by the Region, post at
its facility in Albuquerque, New Mexico, copies of the
attached notice marked “Appendix.”13 Copies of the
notice, on forms provided by the Regional Director for
Region 28, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respon-
dent immediately on receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered 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 em-
ployees and former employees employed by the Respon-
dent at any time since September 9, 1995.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER BRAME, dissenting in part.
I agree with my colleagues that the judge properly
found that the Respondent lawfully suspended Dan
Miano and lawfully discharged Vincent Sisneros. I also
agree that the Respondent did not unlawfully interrogate
employee Donald Martin, but only for the reasons set
forth by the judge in section II,A of her decision. Con-
trary to my colleagues and in agreement with the judge,
however, I would find that the Respondent did not
unlawfully threaten and interrogate Miano through field
foreman and superintendent Joe Jaramillo’s conversation
with him on September 19, 1995; that it did not unlaw-
fully discharge Miano in violation of Section 8(a)(3) and
(1); and that it did not unlawfully refuse to hire Lloyd
and Rita Beebe in violation of Section 8(a)(3) and (1).1
Further, contrary to the majority, I would remand this
proceeding to the judge to apply the proper test to deter-
mine whether the employees engaged in an unfair labor

13 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.”
1 I agree that the General Counsel’s motion to amend the complaint
to allege that the Respondent discriminatorily promulgated its no-
distribution rule should be denied.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1456
practice strike and whether the 8(a)(1) violations she
found were the cause of the strike. Accordingly, I would
not pass at this point on the lawfulness of the Respon-
dent’s refusal to reinstate striking employees Ray and
Shawn Garrett upon their unconditional offer to return to
work.
1. In Jaramillo’s conversation with Miano, Jaramillo
asked him shortly after he began passing out union au-
thorization cards, why he was doing “this.” Jaramillo
noted that he used to be in the Union but that Miano was
not doing himself or the other employees any good be-
cause the Respondent was nonunion, the job had been
bid that way, and it was probably going to stay that way.
Jaramillo told Miano that he would do everything he
could to protect his men. Jaramillo and Miano were
friends and had worked together on other jobs.
To determine whether a statement constitutes an im-
permissible threat, it must be viewed in light of the cir-
cumstances existing when spoken and not in a vacuum.
Shen Automotive Dealership Group, 321 NLRB 586, 591
(1996), citing TRW, Inc. v. NLRB, 654 F.2d 307, 313 (5th
Cir. 1981). The Board has dismissed 8(a)(1) allegations
involving statements related to plant closure or job loss
where the remarks were clearly labeled as the supervi-
sor’s own opinion2 or occurred in casual, noncoercive
circumstances.3
In the totality of the circumstances, in agreement with
the judge, I find that a reasonable employee would not
find Jaramillo’s words to be threatening or coercive.
Jaramillo’s comments, made to a friend, did not reasona-
bly convey a threat that the Respondent would take ad-
verse action against Miano because of his union activity.
The General Counsel also has not pointed to any warning
of any adverse action contemplated by any other person
on behalf of the Respondent against Miano. Rather,
Jaramillo’s comments were made in the context of his
own personal experience with the Union and expressed
his own personal opinion about the practical difficulties
for employees seeking union representation where the
job was nonunion and had been bid that way. As the
court observed in Graham Architectural Products v.
NLRB, 697 F.2d 534, 541 (3d Cir. 1983), the First
Amendment and Section 8(c) of the Act permit “employ-
ers to communicate with their employees concerning an
ongoing union organizing campaign.” See also Federal-
Mogul Corp. v. NLRB, 566 F.2d 1245, 1251 (5th Cir.
1978) (Sec. 8(c) guarantees the right of management to
converse with employees). My colleague’s finding that
Jaramillo’s remarks implied that Miano’s union activity
might harm Miano’s interests in some way is based on
sheer speculation.

2 E.g., Virginia Mfg. Co., 310 NLRB 1261, 1269–1270 (1993), enfd.
mem. 27 F.3d 565 (4th Cir. 1994), and Standard Products Co., 281
NLRB 141, 151 (1986), enfd. in part 824 F.2d 291 (4th Cir. 1987).
3 E.g., Gem Urethane, 284 NLRB 1349, 1361 (1987).
My colleagues also find that Jaramillo’s questioning of
Miano during this conversation constituted unlawful in-
terrogation. I disagree. The test for determining whether
interrogations violate the Act is “whether under all of the
circumstances the interrogation reasonably tends to re-
strain, coerce, or interfere with rights guaranteed by the
Act.” Rossmore House, 269 NLRB 1176, 1177 (1984),
affd. sub nom. Hotel Restaurant Employees Union, Local
11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). The criteria
include history of employer hostility, nature of informa-
tion sought, identity of questioner, place and method of
interrogation, and truthfulness of the reply. Bourne v.
NLRB, 332 F.2d 47 (2d Cir. 1964).
Applying these principles, I find that the limited viola-
tions found by the judge4 are insufficient to conclude that
the Respondent has a history of union hostility. I also
find that Jaramillo’s one question to his friend (why was
Miano doing “this,” i.e., union activity) did not require a
response and was rhetorical in nature.5 I also find that
the question was general and nonthreatening in nature.
Moreover, Jaramillo was a frontline supervisor, Miano
was an open union supporter, and the conversation took
place in a common area at the workplace. Further, unlike
my colleagues, I take into account the undisputed testi-
mony concerning the friendly relationship between
Jaramillo and Miano. See Sunnyvale Medical Clinic, 277
NLRB 1217 (1985) (lawful talk was “friendly” and “cas-
ual” and their relationship was “friendly”). Thus, I con-
clude that the question did not constitute unlawful inter-
rogation.
2. I also agree with the judge that the Respondent did
not discharge Miano, either directly or constructively,
and therefore I find that the Respondent did not unlaw-
fully discharge Miano in violation of Section 8(a)(3) and
(1). I also find, in agreement with the judge, that the
Respondent’s answer admitting that it discharged Miano
“on or about September 22” does not preclude this find-
ing. As I conclude that the Respondent did not discharge
Miano, I find it unnecessary to apply Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U. S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393, 399–
403 (1983).
The facts are as follows. On September 20, the Re-
spondent lawfully suspended Miano for distributing un-
ion flyers during working time. Following the suspen-
sion, at the request of Keith Boydston, the Respondent’s
4 The judge found that the Respondent violated Sec. 8(a)(1) by
threatening an employee with termination for soliciting for the Union
on nonworking time; by interrogating an employee as to whether he
had signed an authorization card for the Union; and by creating the
impression of surveillance by asking the employee whether he was
going to follow in the footsteps of another employee who had engaged
in union activities.
5 The court in Federal-Mogul Corp. v. NLRB, supra, 566 F.2d at
1251, observed that no evidence was provided showing that the ques-
tioning was for the purpose of reprisals.
BOYDSTON ELECTRIC 1457
president, Project Manager Dave Akin reviewed Miano’s
application and, on September 22, asked Miano for
whom he had worked while “self employed.” Akin gave
Miano the opportunity to correct his application by pro-
viding the names of the places and people, with tele-
phone numbers, and told him not to return until he had
provided that information.6 However, Miano did not
return. At the hearing, he admitted that he had falsified
his application.7
To prove an element of a wrongful discharge, the Gen-
eral Counsel must show that “the words or action of the
employer would logically lead a prudent person to be-
lieve his tenure had been terminated.” NLRB v. MDI
Commercial Services, 175 F.3d 621, 626 (8th Cir. 1999),
quoting NLRB v. Hale Mfg. Co., 570 F.2d 705, 708 (8th
Cir. 1978). I conclude that the Respondent’s asking
Miano to provide a complete and truthful application,
without more, is insufficient to lead Miano to believe that
he had been discharged.8 As Miano did not put the Re-
spondent to the test by returning with a truthful applica-
tion, my colleagues’ conclusion that the Respondent dis-
charged Miano has no basis in the evidence. As a result,
I conclude that Miano quit or abandoned his job.
Moreover, I do not agree with my colleagues that the
Respondent’s answer admitting that Miano was dis-
charged on or about September 22 precludes this finding.
As the judge found, the General Counsel and the Re-
spondent fully litigated the facts and the circumstances
concerning Miano’s union activity and his departure.
Thus, the General Counsel did not rely on the answer to
its prejudice. Cf. Academy of Art College, 241 NLRB
454, 455 (1979), enfd. 620 F.2d 720 (9th Cir. 1980),
cited by the majority, and Kroger Co., 211 NLRB 363
(1974) (parties did not offer evidence on a subject be-
cause they acted in reliance on the stipulation). Further-
more, the General Counsel provided evidence, through
Miano’s own testimony, that Akin asked him to provide
more information about his “self employment” and gave
him a blank application. In addition, the facts are not
necessarily inconsistent with the Respondent’s answer.
The Respondent may have subsequently recorded
Miano’s quit or abandonment of his job as a “discharge”
on September 22. Accordingly, I find that it would be
fundamentally unfair to ignore the clear evidence show-

6 In cross-examination, Miano admitted that he had falsified his ap-
plication by stating that he had been “self employed” when he had been
employed by union contractors. Miano testified that he thought that it
would hurt his chances of obtaining the job if the Respondent knew that
he was with the Union.
7 The record reflects that the Respondent had, in the past, asked
other employees at the time of their applications to provide additional
information.
8 The Respondent’s request was reasonable because an employer
“has the right to demand that its employees be honest and truthful in
every facet of their employment.” NLRB v. Mueller Brass Co., 509
F.2d 704, 713 (5th Cir. 1975).
ing that the Respondent gave Miano the opportunity to
correct his application and return to work.9
3. “[A]n unfair labor practice strike is strike activity
initiated in whole or in part in response to certain unfair
labor practices committed by the employer.” Pirelli Ca-
ble Corp. v. NLRB, 141 F.3d 503, 515 (4th Cir. 1998),
denying enforcement in part of 323 NLRB 1009 (1997).
I agree with the majority that the judge did not apply the
proper test, under which a causal link must be established
between the unfair labor practice and the onset of the
strike. Id. at 517. The Pirelli court also cautioned that
the Board “must be wary of self-serving rhetoric of so-
phisticated union officials and members inconsistent with
the true factual context.” Id. at 518 and cases cited
therein. The determination of causation is a fact-
intensive question appropriate for the judge to resolve.
California Acrylic Industries, Inc. v. NLRB, 150 F.3d
1095, 1100 (9th Cir. 1998) (the proper inquiry is
whether, in each case, the employees voted to strike at
least in part because of the unfair labor practices, but the
Board should not apply a “mechanical rule because it
places form over substance” and “invites manipulation”).
As a result, I would remand this issue to the judge to
apply the proper test and determine whether the 8(a)(1)
violations she found were the cause of the strike, and,
therefore, whether the Respondent violated Section
8(a)(3) by refusing to reinstate the Garretts upon their
offer to return.
4. Finally, I agree with the judge that the Respondent
did not violate Section 8(a)(3) and (1) by not hiring
Lloyd and Rita Beebe. On June 3, 1996, Lloyd and Rita
Beebe submitted applications for employment. They
wore union hats and they and their small son were wear-
ing union t-shirts. The Respondent’s president,
Boydston, reviewed their completed applications. He did
not hire them, although he hired other individuals at that
time and during the month of June.
As Boydston explained at the hearing, their applica-
tions showed that they had left jobs with a “good” con-
tractor at $18.70 an hour and that they were looking for
better employment with the Respondent, even though
Boydston was only offering $14 an hour. Consequently,
the judge found that Boydston’s puzzlement about the
statements on the Beebes’ applications was “quite genu-
ine and understandable” and credited his explanation that
he did not hire the Beebes because they did not appear to
be serious about working for the Respondent. Thus, the
judge accepted Boydston’s testimony concerning his
9 I also find that the Respondent did not constructively discharge
Miano. The Board found in Crystal Princeton Refining Co., 222 NLRB
1068 (1976), that the General Counsel must show that the burden im-
posed on the employee must cause, and be intended to cause, a change
in his working conditions so difficult or unpleasant as to force him to
resign and that the burden was imposed because of the employee’s
union activities. In this case, the Respondent did not impose a difficult
or unpleasant burden, but simply required Miano to submit an accurate
and truthful application.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1458
nondiscriminatory reasons for not hiring the Beebes. I
see no basis for overturning the judge’s credibility reso-
lution and finding, which is well supported by the facts.10
Nor should the Board substitute its own hiring judgment
for that of the Respondent. Cf. NLRB v. GATX Logistics,
Inc., 160 F.3d 353, 357 (7th Cir. 1998), enfg. 323 NLRB
328 (1997), and cases cited therein (Board did not im-
properly substitute its own business judgment or act as a
“super-personnel” department).11 Thus, assuming ar-
guendo, without deciding, that the General Counsel met
his initial burden to show Lloyd and Rita Beebes’ union
activity was a motivating factor in the Respondent’s de-
cision not to hire them, the Respondent established that it
would have taken the same action notwithstanding their
protected activity. Wright Line, supra.
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 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.
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 and protec-
tion
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT threaten employees with termination
for soliciting for the Union on nonworking time.
WE WILL NOT interrogate employees concerning
their Union or other protected activities.
WE WILL NOT create the impression that we are en-
gaged in surveillance of our employees’ union or other
protected activities by asking an employee whether he
was going to follow in the footsteps of another employee
who had engaged in union activities.
WE WILL NOT discourage membership in the Inter-
national Brotherhood of Electrical Workers, Local 611,
AFL–CIO, or any other labor organization by failing and

10 See NLRB v. Castaways Management, 870 F.2d 1539, 1542–1543
(11th Cir. 1989) (in assessing credibility, judge properly considered the
consistency and straightforwardness of the testimony and whether it
related to the “logical consistency” of the record).
11 By arguing that Boydston should have quizzed the Beebes regard-
ing his puzzlement, my colleagues misperceive the nature of the proc-
ess and realities of the workplace. The Respondent does not bear the
burden of resolving questions concerning an individual’s application.
Rather, if an applicant has a serious interest in a position, he or she
should anticipate and address possible concerns raised by statements
made in his or her application.
refusing to immediately reinstate employees upon their
unconditional offer to return to work after they have en-
gaged in a strike to protest our unfair labor practices.
WE WILL NOT refuse to hire job applicants because
they are members of the International Brotherhood of
Electrical Workers, Local 611, AFL–CIO, or any other
union.
WE WILL NOT in any like or similar manner, inter-
fere with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Dan Miano reinstatement to his for-
mer position, and make him whole, less any net interim
earnings, with interest, for any loss of earnings and other
benefits he may have suffered because of our unlawful
discharge of him.
WE WILL offer Ray Garrett and Shawn Garrett rein-
statement and make them whole for any loss of earnings
and other benefits resulting from our refusal to reinstate
them, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful discharge of Dan Miano and the refusal to
reinstate Ray Garrett and Shawn Garrett, and WE WILL,
within 3 days thereafter, notify them in writing that this
has been done and that the discharges and the refusal to
reinstate will not be used against them in any way.
WE WILL, within 14 days from the date of the
Board’s Order, offer Lloyd Beebe and Rita Beebe em-
ployment to the same or substantially equivalent posi-
tions for which they applied, without prejudice to their
seniority rights or privileges to which they would have
been entitled in the absence of our hiring discrimination,
and make them whole for any loss of earnings and other
benefits resulting from our refusal to hire them, less any
net interim earnings, plus interest.

BOYDSTON ELECTRIC, INC.

Mitchell Rubin, Esq., for the General Counsel.
Wayne E. Bingham, Esq. (Crider, Calvert, & Bingham), of
Albuquerque, New Mexico, for the Respondent.
Brian J. Condit, Assistant Business Manager, International
Brotherhood of Electrical Workers, Local 611, AFL–CIO,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, Administrative Law Judge.
This case involves alleged interrogations, threats, prohibition of
distribution of literature on nonworking time, retaliation, sus-
pension, discharge, unfair labor practice strike, failure to rein-
state unfair labor practice strikers, disparagement of supporters
of International Brotherhood of Electrical Workers, Local 611,
AFL–CIO (the Union), and failure to consider for hire due to
union activities.1
1 The case was tried in Albuquerque, New Mexico, on January 21 to
24, May 21 to 24, and July 21 to 23, 1997. The charge in Case 28–CA–
13447 was filed by the Union on December 5, 1995, amended on De-
BOYDSTON ELECTRIC 1459
All parties were afforded full opportunity to appear, to intro-
duce relevant evidence, to examine and cross-examine wit-
nesses, and to argue the merits of their respective positions. On
the entire record, including my observation of the demeanor of
the witnesses,2 and after considering the briefs of counsel for
the General Counsel, the Charging Party, and Respondent, I
make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Boydston Electric, Inc. (Respondent), a New Mexico corpo-
ration, is an electrical contractor with an office and place of
business in Albuquerque, New Mexico. Respondent annually
purchases and receives goods and materials valued in excess of
$50,000 from enterprises located within the State of New Mex-
ico, which enterprises, in turn, purchased and received the
goods and materials in interstate commerce directly from points
outside the State of New Mexico. Respondent admits and I find
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent has performed nonunion commercial electrical
construction work in the Albuquerque area for about 20 years.
Keith Boydston, president, manages the operation generally,
while Dave Akin is the project manager, and Joe Jaramillo
serves as field foreman and superintendent. In late 1994 and
early 1995, Respondent performed work at an Intel construction
site in Albuquerque. Over a 2- to 3-month period, it lost 40
employees, all of whom quit to work for unionized contractors,
thus suffering a severe personnel shortage. There is no dispute
that this loss upset Respondent.
In May 19953 Respondent began electrical construction work
at the Cottonwood Mall site. Employment applications were
taken by Jaramillo or Akin at the job trailer or by Boydston at
Respondent’s office.
A. Alleged Interrogation of Martin
Overt union applicant, Donald W. Martin, completed an ap-
plication for employment with Respondent on July 10 at the job
trailer. Martin wore a union shirt, hat, and pencil clip: “I tried to
be as obvious as possible.” Martin listed IBEW as his current
employer, “because I believe I work for the IBEW.” Three
IBEW representatives were listed as his references. Martin did
not recall the name of the man who took his application. How-
ever, the physical description of this man fits that of Jaramillo.
In any event, according to Martin, the man noticed that he was
union and asked Martin how long he had been a union member.

cember 6, 1995, and March 12, 1996, and complaint issued March 28,
1996. The charge in Case 28–CA–13806 was filed on July 10, 1996,
and the complaint issued August 30, 1996. The charge in Case 28–CA–
13860 was filed on August 15, 1996, and the complaint was issued
November 6, 1996. On November 7, 1996, Case 28–CA–13860 was
consolidated with Cases 28–CA–13447 and 28–CA–13806.
2 Credibility resolutions have been made based upon a review of the
entire record and the exhibits in this proceeding. Witness demeanor and
inherent probability of the testimony have been utilized to assess credi-
bility. Testimony contrary to my findings has been discredited on some
occasions because it was in conflict with credited testimony or docu-
ments or because it was inherently incredible and unworthy of belief.
3 All dates hereafter are in 1995 unless otherwise specified.
Jaramillo testified that he did not recall Martin and denied ask-
ing Martin how long he had been in the Union.
Interrogation is not, by itself, a per se violation of Section
8(a)(1). Interrogation is coercive if, under all the circumstances,
it reasonably tends to interfere with, restrain, or coerce employ-
ees in the exercise of their Section 7 rights. Emery Worldwide,
309 NLRB 185, 187 (1993). Under this totality of circum-
stances approach, such factors as whether the interrogated em-
ployee is an open or active union supporter, the background of
the interrogation, the nature of the information sought, the iden-
tity of the questioner, and the place and method of the interro-
gation are examined. Sunnyvale Medical Clinic, 277 NLRB
1217 (1985). It is unnecessary to resolve the credibility conflict
between Martin and Jaramillo as neither the question nor the
context in which it was asked suggest any element of coercion
or interference. See Rossmore House, 269 NLRB 1176, 1177
(1984), enfd. sub nom. Hotel & Restaurant Employees Local 11
v. NLRB, 760 F.2d 1006 (9th Cir. 1985). Martin was an open
union supporter. It would have been difficult for anyone not to
have noticed his union paraphernalia. In the totality of circum-
stances, if Jaramillo noticed Martin was a union member and
asked how long he had been in the Union, such question was
noncoercive. No other threat or promise of benefit was made in
conjunction with the question. Accordingly, I find no violation.
B. Alleged Statement to Ray Garrett that Respondent Would
not Hire Another Electrician if it Meant Hiring Union
Ray Garrett, a covert union applicant whose employment ap-
plication carefully concealed any union affiliation, was hired by
Respondent on August 21. He testified that about a week after
he started work, he spoke with Jaramillo telling him that Re-
spondent needed more men because the sheetrock contractor
was installing walls faster than the electrical conduit was being
installed by Respondent, thus covering up the area where the
conduit was to be placed. Jaramillo agreed. Ray Garrett asked if
Respondent had received applications and Jaramillo responded,
according to Ray Garrett, that all the applicants were union and,
“Boydston Electric wouldn’t hire another man if they had to
hire a union man.” Jaramillo denied making this statement.
Jaramillo was an impressive witness. He was extremely ar-
ticulate, forthright, thoughtful, and focused. On the other hand,
I also found Ray Garrett’s presentation to be highly believable
if somewhat emphatic and over rehearsed. Under these circum-
stances, I find Jaramillo’s denial more inherently believable
than Ray Garrett’s account. This finding is based in part on a
comparison of the demeanor of the two witnesses and is also
based on the lack of any foundation to indicate that Respon-
dent’s applicants were all union at the time of this conversation
in late August. Assistant Business Manager Brian Condit stated
that in months prior to July, he had sent in excess of 30 union
members to apply for work with Respondent and openly dis-
play their union affiliation. However, there is no evidence to
indicate that these were the only applications Respondent had
received and, in any event, Respondent’s practice was to keep
applications for 30 days. Accordingly, the pre-July applications
would no longer have been on file at the time of this conversa-
tion. Moreover, Jaramillo hired applicants whom he knew to be
union members. Under these circumstances, I credit Jaramillo’s
denial and find no violation.
C. Alleged Interrogation of Ray Garrett
During a later conversation between Jaramillo and Ray
Garrett, Garrett testified that Jaramillo said, “You’re an old
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1460
union man, aren’t you?” Garrett denied that he was. Jaramillo
denied asking this question. For the reasons noted above, I find
the denial of Jaramillo the more credible of the two statements.
D. Alleged Interrogation of Stygar
In response to leading questions, Stygar, an uncooperative
witness who said he could not remember his application con-
versation, testified that during that conversation with Dave
Akin on September 14, Akin asked if Stygar was, ”a standing
union member or nonunion.” Akin testified extensively about
the application interview with Stygar stating that he reviewed
Stygar’s application, asked him about prior jobs, discussed
Stygar’s acquaintance with some of Respondent’s employees,
and discussed former employers of Stygar’s with regard to
knowing the same people at those locations. Akin recalled that
he discussed the application with Jaramillo and Jaramillo told
him he had worked with Stygar before and Stygar was a good
electrician. Akin also recalled checking two references. Akin
denied that he asked Stygar whether he was with the Union.
Akin was generally cooperative and straightforward in his
demeanor. On the other hand, Stygar was a reluctant witness
and, on the one hand disavowed his affidavit as perjured, while
at the same time utilizing it to refresh his recollection on sev-
eral occasions. Stygar was disenchanted with the Union and the
salting program. He exhibited bitterness at joining the Union
because he understood there would be a steady supply of job
opportunities and a high benefit package. When these expecta-
tions were not fulfilled, he left the Union.
Moreover, Stygar’s testimony regarding his conversation
with Akin was phrased generally. When asked, “Do you recall
if anything was said about union in this conversation,” he re-
sponded, “That’s said everywhere around this whole state, from
every—not any contractor in town. They would like to know if
you are a standing union member, or nonunion.” When ques-
tioned further about who asked this question, Stygar responded
that Akin asked it.
On balance, I find Akin’s denial more credible based on a
comparison of demeanors and recollections. I also find Akin’s
denial the more inherently plausible version of events. Akin
and Stygar knew common personnel from various other jobs
and Jaramillo told Akin to hire Stygar because Jaramillo had
worked with him before. Given the references in which Akin
had confidence, I find it implausible that he would have asked
about union affiliation. Accordingly, this allegation is dis-
missed.
E. Events of September 19
1. Alleged threat of termination and prohibition of distribution
of union literature
On September 19, Dan Miano, a covert union applicant who
concealed his union affiliation when he applied for employment
with Respondent, reported to work prior to the 7 a.m. starting
time and began handing out union authorization cards to em-
ployees who were gathered in the parking lot. Miano wore a
union shirt and cap. Miano gave a card to Foreman James Gar-
cia who, according to Miano and other covert salts, Garrett,
Martinez, and Stygar, told Miano he was fired. Miano re-
sponded that he was on his own time. Garcia denied that he told
Miano he was fired. In any event, Garcia went into the job
trailer and then came back to Miano telling him he had to speak
with Akin before he went to work.
When Miano reported to the trailer, according to Miano,
Akin told him not to pass out any union literature at all on the
jobsite. Akin testified that he told Miano not to pass out union
literature on the jobsite on company time.
I find that Garcia did threaten discharge of Miano for dis-
tributing union cards. Although I did not find Miano to be an
especially impressive witness, when his testimony is combined
with that of Ray Garrett, whom I found believable, and Marti-
nez, and additionally confirmed by Stygar, who showed ani-
mosity toward the Union, I find it more plausible than not that
Garcia made the threat. In addition, I note Garcia’s relatively
young age and his admission that he interrogated another em-
ployee and from this I infer a lack of sophistication in labor
relations matters. According to Miano, when Garcia told him he
was fired, Miano replied that he was on his own time. Garcia
also recalled that Miano mentioned that he was on his own time
at some point during the conversation. According to Stygar,
when Garcia told Miano that he was fired, Miano, “just stood
around laughing, giggling, and having a good old time, and said
he wasn’t going nowhere. He had no write [sic] to fire him.”
As to the alleged prohibition of distribution of union litera-
ture, I note that Miano was less than candid in some respects.
For instance, when he testified regarding a conversation he had
with Condit prior to applying at Respondent, Miano stated that
he asked Condit if there was anywhere he might be able to go
to work. According to Miano, Condit told him he could fill out
an application at Cottonwood Mall and let Condit know if he
got hired. This was the full extent of Miano’s conversation with
Condit. However, I find it implausible that something more was
not stated with regard to the salting program or, at a minimum,
about filling out the application in either an overt manner or a
covert manner to conceal any relationship to the Union. Ac-
cordingly, based upon their relative demeanors and inherent
probability, I resolve the credibility conflict between Akin and
Miano by finding that Akin did tell Miano not to distribute
union literature on company time but did not, as alleged, pro-
hibit Miano from distributing union literature during non-
working time.
2. Alleged interrogation of Miano and threat of loss of jobs
Jaramillo and Miano had worked on other jobs together and
had become friends. In fact, Jaramillo was with Miano when he
was injured on another job and helped carry him out to receive
medical attention. Jaramillo recommended Miano to Akin and
told Akin to do everything he could to hire Miano because he
was a hard worker. In any event, according to Miano, shortly
after Miano began passing out union authorization cards,
Jaramillo spoke to him asking him why he was passing out the
cards. Jaramillo told Miano that he used to be in the Union but
Miano was not doing himself or the other employees any good
because Respondent was non union, that was the way the job
had been bid, and it was probably going to stay that way. Ac-
cording to Miano, Jaramillo added that if the job went union,
the employees would lose their jobs due to a contract clause
which stated that the job could not become union for 1 year.
Jaramillo concluded that he would do everything he could to
protect his men and Miano said he had to take care of himself.
Jaramillo agreed that he spoke with Miano and asked why he
was doing “this,” telling Miano that he was not doing himself
or the other employees any good and that Respondent was non
union, that was the way the job was bid, and it would probably
stay that way. Jaramillo also agreed that he told Miano he
BOYDSTON ELECTRIC 1461
would do everything he could to protect his men. Jaramillo
specifically denied telling Miano that if the job went union, the
employees would lose their jobs. Based upon their relative
demeanors, as fully explicated above, I credit Jaramillo’s de-
nial.
Jaramillo explained that when he asked Miano, why are you
doing “this,” he meant why are you not working at full effort.
Jaramillo thought Miano was preoccupied by something else.
However, Jaramillo did not explain this to Miano and I find that
in the context of the conversation, a reasonable person would
have understood that by “this,” Jaramillo was referring to Mi-
ano’s activity on behalf of the Union. Accordingly, I find that
Jaramillo asked Miano about his motives for engaging in union
activity. Miano was an open union advocate at the time
Jaramillo asked the question. Jaramillo and Miano had known
each other as friends for a number of years. Based on the total-
ity of the circumstances, I find that neither the question nor the
context in which it was asked suggest any element of coercion
or interference. See Sunnyvale Medical Clinic, supra; Rossmore
House, supra.
3. Alleged interrogation of Chavez and impression
of surveillance
Garcia testified that on September 19, the day Miano passed
out authorization cards, Garcia asked employee Larry Chavez if
he had signed an authorization card. There is no evidence that
Chavez was an open union adherent. I find this interrogation
coercive. Ray Garrett overheard this same conversation and
added that Garcia additionally told Chavez, “You’re trying to
walk in the same footsteps as Dan Miano, aren’t you.” Garcia
denied this portion of the conversation. On balance, I find Ray
Garrett’s recollection more believable than Garcia’s denial. As
mentioned above, Ray Garrett was a highly believable witness
while Garcia was more tentative. Accordingly, I find the inter-
rogation and impression of surveillance as alleged.
4. Alleged threat of discharge
Union salt Shawn Garrett overheard a conversation on Sep-
tember 19 between Foremen Garcia and Luis Perez in which
Garcia allegedly said there was nothing Respondent could do
about Miano passing out union literature unless he was caught
doing it during working time and, “some way or other, I’m
going to catch him doing it even if he’s not.” Garcia denied
making this statement. Perez also denied that Garcia made such
a statement but Perez recalled a conversation several days later
when Garcia reported that Miano was passing out a union leaf-
let on company time. Garcia told Perez he could not do any-
thing about it.
Shawn Garrett impressed me only as a well-rehearsed wit-
ness. When asked questions which he had not previously heard,
he became uncertain. He stated that, “there was a lot going on
in his life,” during the fall of 1995. He also did not provide an
affidavit until January, long after his September 1995 employ-
ment with Respondent. On the other hand, Perez was a very
direct, if somewhat cryptic, witness who impressed me as very
reliable. I find Perez’ recollection of the conversation to be
more accurate and accordingly dismiss this complaint allega-
tion.
5. Alleged threat regarding signing an authorization card
According to Shawn Garrett, Garcia approached him on Sep-
tember 19 and told him not to even think about signing an au-
thorization card. Garcia denied this. As between Garcia and
Shawn Garrett, I credit Garcia. This allegation is dismissed.
6. Alleged disparate enforcement of apparel code
Also according to Shawn Garrett, Garcia told employee Julio
Chavez to remove a union sticker from his shirt. Garcia denied
this. Company policy prohibits stickers or writing on hardhats
only. As above, I credit Garcia’s denial and dismiss this com-
plaint allegation.
F. Suspension of Miano
On September 20, Miano distributed union flyers at the sign-
in table during the first 5 minutes of working time. Garcia told
Miano that the distribution was prohibited4 and Miano re-
sponded that he did not care. Jaramillo told Miano to report to
the job trailer. Upon reporting to the trailer, Akin suspended
Miano for the day. On the following day, Stygar testified he
placed a stack of cartoons at the sign-in table before he signed
in. Shawn and Ray Garrett testified that this was after starting
time and Stygar handed them the cartoon. Ray Garrett testified
that Stygar handed out four to six cartoons and then laid six or
seven of the cartoons on Garcia’s desk. Stygar and Garcia de-
nied that Stygar handed Garcia a cartoon.5 Garcia stated that he
did not know that Stygar had distributed the cartoon on work-
ing time although Garcia admitted that he had seen the cartoon.
Stygar was not suspended. I credit Stygar and Garcia regarding
the method and timing of the distribution and find that Garcia
was unaware that the cartoon was distributed by Stygar and, in
any event, that Stygar distributed the cartoons before he signed
in.
In late August and September, two employees of Respondent
sold burritos at the Cottonwood Mall site. According to some
witnesses, this occurred after 7 a.m. at the sign-in table. Ac-
cording to other witnesses, this occurred before 7 a.m. in the
parking area. In any event, I find that Respondent had no
knowledge of burrito sales during working time. I specifically
credit Boydston, Akin, Jaramillo, Garcia, and Perez based on
their relative demeanors when they testified that they were
unaware that burritos were sold during working time.
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Management Corp., 462 U.S. 393,
399–403 (1983), the Board articulated the allocation and order
of proof in cases involving 8(a)(1) or (3) violations which turn

4 Although Garcia was not present when Akin told Miano that he
could not distribute during working time, Garcia said he was aware that
Akin had told Miano about the prohibition of distribution during work-
ing time.
5 Ray Garrett’s testimony is somewhat confusing on the issue of
whether Stygar actually handed a cartoon to Garcia. Ray Garrett was
asked, “To who, if anybody, did you see him pass out this flier to?” He
responded, “Uh—he passed it out to James Garcia and Vernon Tye,
because they rolled up in the truck, after he had passed them out to us.”
The next question, “What was James Garcia’s response?” was an-
swered, “He didn’t say anything to Randy [Stygar].” Finally, “About
how many fliers did you see Randy [Stygar] pass out by the [sign-in]
table that morning?” was answered, “Six or seven, probably maybe a
half a dozen he laid on James Garcia’s desk.” On cross-examination,
Ray Garrett stated, “No, Randy handed it right straight to me, and right
straight to Sean and two or three, four other guys, and then there was a
stack on the desk, too.” I find, based on the totality of this testimony,
that Ray Garrett’s testimony is best understood as stating that Stygar
placed a stack of cartoons on Garcia’s desk rather than handed a car-
toon directly to Garcia.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1462
on employer motivation as follows: First, the General Counsel
must make a prima facie showing sufficient to support an infer-
ence that protected activity was a motivating factor in the em-
ployer’s decision. Upon making such a showing, the burden
shifts to the employer to demonstrate that the same action
would have taken place even in the absence of the protected
activity.
In Manno Electric, 321 NLRB 278, 280 fn. 12 (1996), the
Board stated that it had traditionally described the General
Counsel’s burden as that of establishing a prima facie case.
Noting, however, that in Southwest Merchandising Corp. v.
NLRB, 53 F.3d 1334, 1340 fn. 8 (D.C. Cir. 1995), the court
suggested that the General Counsel’s burden might be more
appropriately described as a burden of persuasion, the Board
concluded that the change did not represent a substantive
change in Wright Line and restated that test as follows: “the
General Counsel [must first] persuade that antiunion sentiment
was a substantial or motivating factor in the challenged em-
ployer decision. The burden of persuasion then shifts to the
employer to prove its affirmative defense that it would have
taken the same action even if the employees had not engaged in
protected activity.”
I find that there is evidence of activity, knowledge, animus,
and timing and hence the General Counsel has established that
union activity was a motivating factor in Miano’s suspension. I
find, however, that Respondent would have suspended Miano
in any event because he openly violated its rule6 and told Re-
spondent that he did not care.
G. Alleged Interrogation Regarding Union Affiliation
of Applicant
According to Stygar, on September 20, Jaramillo asked him
about an applicant, William Kirby, with whom Stygar had pre-
viously worked. Jaramillo asked whether Kirby was union or
nonunion and Stygar replied that Kirby was nonunion.
Jaramillo denied this and I credit him based upon the relative
demeanor of Stygar and Jaramillo fully articulated above.
H. Alleged Solicitation of Ray Garrett to Rrequest that Miano
Refrain from Union Activities
According to Ray Garrett, Jaramillo approached him early on
September 21 and asked him to talk to Miano and tell him to
quit passing out union material on the job. Jaramillo denied
this. I credit Jaramillo’s denial based on the relative demeanor
credibility resolutions of Ray Garrett and Jaramillo as set forth
above.
I. Discharge of Miano
Following the suspension of Miano, Boydston instructed
Akin to examine Miano’s application. Akin noticed that the
application listed “self employed” for prior employment. On
September 22, Akin asked Miano where he had worked when
he was self employed. Miano answered that he had done “side
jobs” for various people. Akin asked for the places, people, and
phone numbers and told Miano he could not come back to work
until he provided the information. Miano did not provide the
information. There is no dispute that one of the reasons
Miano’s application was examined was his distribution of un-
ion literature. However, although I find that the motivation for
examination of the application was unlawful, I do not find that

6 There is no allegation that the rule was discriminatorily promul-
gated.
Miano was discharged. Both Miano and Akin agree that Miano
asked to take the application home in order to provide names
and address. Other employees had been similarly requested to
provide additional information, although in these instances,
they were asked to supply information at the time of their ap-
plication. In any event, Miano never returned. I do not find that
a reasonable person would have determined that he was dis-
charged under these circumstances.7
J. Alleged Statement that Miano was Taken off the Job
Because of Union Activity and Alleged Interrogation
At about 3 p.m. on September 22, Boydston addressed the
employees. He told them they could wear union stickers as long
as they were not on the hardhats. He told them they could not
distribute union literature on working time. According to Mar-
tinez and Stygar, in response to a question from Martinez, ei-
ther Jaramillo or Akin said that Miano was run off because he
lied on his application and for his union activities. Both
Jaramillo and Akin denied such a statement and I credit their
denials. Stygar asked about selling burritos on company time
and Boydston said he was unaware of such a practice but would
put a stop to it.
According to Martinez, immediately after the meeting, he
overheard a conversation between Akin, Jaramillo, and Stygar
in which Akin asked Stygar who was selling burritos. Stygar
responded that Akin should ask his foremen. Jaramillo asked
Stygar if he was union. Stygar answered, no. Jaramillo asked
Stygar why Stygar asked so many questions during the meeting
and Stygar responded that he always said what was on his
mind. Stygar recalled that Jaramillo asked him if he was union
or nonunion because Stygar had, “asked a lot of funny ques-
tions.” Jaramillo denied interrogating Stygar. Generally, I was
unimpressed with Martinez’ recollection of the facts. Stygar, as
mentioned before, was an erratic, uncooperative witness. I
credit Jaramillo’s denial of the interrogation.
K. Alleged Unfair Labor Practice Strike
Later on September 22 Miano, Shawn and Ray Garrett,
Chavez, and Martinez met with Condit at the union hall and
discussed the various unfair labor practices which they felt had
occurred including interrogations, threats, selective enforce-
ment of solicitation rules, and the discharge of Miano. The
employees also attended COMET8 training and voted to engage
in an unfair labor practice strike of Respondent on Monday,
September 25.
At about 8 a.m. on Monday, September 25, Miano walked
onto the job and started yelling, “Electricians on strike.” Shawn
and Ray Garrett, Chavez, Stygar, and Martinez joined him.
They marched around the job for 15 to 20 minutes yelling that
they were on strike because of unfair labor practices. Shawn
Garrett videoed the strike. The employees returned to the union
hall, watched the video, and signed a letter to Respondent stat-
ing that they were on strike due to unfair labor practices.
7 Respondent admitted in its answer that Miano was discharged on or
about September 22, 1995. Where, as here, all parties agree on the
words that were utilized during the conversation between Akin and
Miano and the matter was fully litigated despite the answer to the com-
plaint, I find that it would be unjust to find discharge based on the
answer when the evidence is to the contrary.
8 “COMET” is the acronym for Construction Organizing Member-
ship Education Training.
BOYDSTON ELECTRIC 1463
I have found only three unfair labor practices. In one in-
stance, I have found that Garcia threatened discharge of Miano
for distributing union literature before work. Miano told Garcia
he was on his own time. Akin told Miano he could not distrib-
ute union literature during working time. No action was taken
against Miano on that date and, in fact, according to Stygar,
Miano did not take Garcia’s threat seriously. Later Boydston
told all assembled employees that they could not distribute
literature on working time or place union insignia on hardhats.
Accordingly, prior to voting on whether to strike, all employees
knew that the prohibition against distribution of union literature
applied only to working time.9 In the other instance, Garcia
asked Larry Chavez if he signed a union authorization card and
whether he was walking in Miano’s shoes. There is no evidence
that this isolated remark was specifically discussed at the strike
vote meeting. These unfair labor practices are neither flagrant
or of a serious, pervasive nature. Accordingly, I do not find that
the strike was an unfair labor practice strike. See, e.g., Citizens
Bank of Willmar, 245 NLRB 389, 391 (1979).
L. Alleged Interrogation of Mark Vilegas
On September 26 Vilegas completed an application for em-
ployment with Respondent listing union apprenticeship train-
ing, four union contractors as past employers, and business
agents as references, utilizing the union’s address. According to
Vilegas, Jaramillo asked him if all the contractors he listed
were union and Vilegas responded, yes. Jaramillo denied that
he interrogated Vilegas. As mentioned before, Jaramillo was a
highly credible witness. Although Vilegas was also a somewhat
impressive witness, showing thoughtfulness in his answers, as
between the two witnesses, I credit Jaramillo. Accordingly, this
allegation is dismissed.
M. Alleged Failure to Reinstate Unfair Labor Practice Strikers
On February 28, 1996,10 Ray and Shawn Garrett uncondi-
tionally offered to return to work immediately. Akin told them
that Respondent did not need any electricians at that time. He
advised them to check back from time to time to see if Respon-
dent needed anyone. I have found that no unfair labor practice
strike occurred. Accordingly, the Garretts’ reinstatement rights
are those of economic strikers. The issues of whether the strike
had been abandoned and whether the Garretts had been perma-
nently replaced were not litigated. Therefore, this issue is left to
compliance.

9 Garcia’s unlawful threat of discharge was not “effectively repudi-
ated” pursuant to Passavant Memorial Hospital, 237 NLRB 138, 138–
139 (1978) (effective repudiation requires that it be timely, unambigu-
ous, specific to the coercive conduct, free from other unfair labor prac-
tices, adequately published to all employees, and set forth assurances
that no further interference with Sec. 7 rights will occur); see also,
Gaines Electric Co., 309 NLRB 1077, 1081 (1992). However, under all
the circumstances, I find that employees understood that they could
distribute union literature on nonworking time. See, e.g., Mohawk
Liquer Co., 300 NLRB 1075 fn.1 and 1086 (1990) (failure to fully
remedy pursuant to Passavant did not prolong strike); Cf. Filene’s
Basement Store, 299 NLRB 183, 209 (1990) (after vice president inter-
fered with employee’s distribution of union literature, no effort was
made by company to clarify action to employees and fact that employee
knew he was acting within the long-posted solicitation and distribution
rules irrelevant).
10 All dates hereafter are in 1996 unless otherwise specified.
N. Alleged Interrogation of Dave Ramirez
In his posthearing brief, counsel for the General Counsel
moved to amend the complaint to allege that on May 30, either
Jaramillo or Akin interrogated applicant Ramirez regarding his
union affiliation. The new allegation is closely connected to the
subject matter contained in the complaint. Respondent did not
cross examine Ramirez regarding this unalleged interrogation.
However, it did question Akin regarding whether he took Ra-
mirez’ application. Akin said he did not take Ramirez’ applica-
tion but he thought Jaramillo had. Jaramillo was never asked
about the interrogation which Ramirez attributed either to him
or Akin. Finally, Respondent did not discuss this issue in its
posthearing brief assumably because it was unaware that coun-
sel for the General Counsel would seek to amend the complaint
in its posthearing brief. Under these circumstances, I do not
find that this matter was fully litigated. See, e.g., Consolidated
Printers, 305 NLRB 1061, 1063–1064 (1992); Femco Machine
Co., 238 NLRB 816, 818 (1978). Accordingly, this amendment
is not allowed.
O. Alleged Failure to Hire Lloyd Beebe or Rita Solano-Beebe
On June 1 and 2, Respondent advertised for journeymen
electricians. On June 3, Rita and Lloyd Beebe completed appli-
cations for employment with Respondent. Both wore union hats
and shirts. Their small son accompanied them and also wore
union insignia. The Beebes completed applications indicating
graduation from Joint Apprenticeship Training, prior work with
union contractors, and union business agents as references.
Neither was hired. Covert union salts Sisneros and Moran were
at Respondent’s office at the same time as the Beebes. They did
not wear union insignia and carefully concealed their union
affiliation on their applications. They and covert union salts,
Beel and Romero, were hired on June 3. Beel and Romero did
not indicate any potential union affiliation on their applications.
Respondent hired three additional employees in June. None of
their applications indicated any union affiliation.
Boydston testified that he reviewed the Beebes applications.
He was aware that they listed Condit as their reference that
their past employment had been at union scale, $18.70 per hour,
and that they were currently unemployed. Their applications
stated that they were seeking better employment. He testified
that he did not hire them because,

Well, they was working for DKD making $18.70 an hour,
working for them for one month, and looking for better em-
ployment. I don’t think I felt, that I’d fill that criteria for them.
I didn’t think they was real serious about coming to work for
me as a good employee, employees.

When asked why he felt they were not serious, he responded,

Bringing their child to work with them. They said they were
looking for better employment and they quit a job at $18.70
an hour there’s a good contractor—a good union contractor—
why would they want to come to work for me at $14 an hour?

Utilizing the Wright Line framework, I find that there is am-
ple proof of union affiliation, knowledge of the affiliation, and
some degree of animus toward the Union due to their prior
tactics. However, I also note that Respondent had hired known
union supporters in the past. Boydston’s testimony regarding
his puzzlement about the statements on the Beebes’ applica-
tions was quite genuine and understandable. Without more
information, it is nonsensical to leave a higher paying employer
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1464
for better employment and consider lower pay to be that better
employment. Under these circumstances, I find that the Beebes
would not have been hired even if their union affiliation had not
been known.
P. Alleged June 3 Interrogation of Beel
Beel testified that as he left Respondent’s office on June 3,
Boydston met him and asked him whether one of his past em-
ployers was a union company. Beel said it was not. Beel was
told to report to work the next day. Boydston denied asking
Beel about the past employer. He stated he would never have
asked such a question because he knew that particular employer
was nonunion. This interrogation was not set forth in the com-
plaint. Counsel for the General Counsel seeks to add it by mo-
tion in his posttrial brief. I find in this case that the matter is
closely related to other allegations in the complaint and it was
fully litigated in that Respondent cross-examined Beel and
questioned Boydston about the interrogation. I further find that
as between Beel and Boydston, Boydston was the more credi-
ble witness. Boydston was careful and thoughtful in his re-
sponses and maintained this demeanor throughout several days
of examination by counsel for the General Counsel pursuant to
Rule 611(c). Boydston also already knew the nonunion status
of Beel’s prior employer and therefore would have had no rea-
son to question an applicant for employment about that fact.
Accordingly, this allegation is dismissed.
Q. Alleged June 4 Interrogation of Sisneros and Moran
Moran and Sisneros worked for Respondent in 1994 at the
Intel job. Akin, Jaramillo, Perez, and Garcia were supervisors
on that job and knew that Moran and Sisneros had gone to work
for union contractors at the Intel site after working for Respon-
dent. According to Sisneros, on his first day of work, Akin
asked Moran if he was still in the Union and why he was look-
ing for a job at a nonunion shop. Akin denied that he interro-
gated Moran. When foreman Perez entered the room, he recog-
nized Moran and Sisneros and, according to Sisneros, asked if
they were still in the Union. Perez denied this. Moran and Sis-
neros were initially assigned to Garcia’s crew. According to
Sisneros, Garcia asked them whether they were happy with the
Union.
These interrogations were not alleged. In his posttrial brief,
counsel for the General Counsel seeks to amend the consoli-
dated complaint to add these further allegations. The interroga-
tions are closely related to allegations contained in the com-
plaint and these matters were fully litigated in that Respondent
cross-examined the General Counsel’s witnesses and ques-
tioned its own witnesses regarding the interrogations.
Turning to the merits of the allegations, in each instance I do
not credit Sisneros over Respondent’s witnesses. Based on their
relative demeanors, I find that the denials of Akin, Jaramillo,
Perez, and Garcia are the more credible. Accordingly, although
the amendment is allowed, this allegation is dismissed.
R. Alleged Disparagement of Union Supporters and Unspeci-
fied Threat of Reprisals by Garcia
Ramirez and Sisneros were assigned to move a lift on June 8.
While taking a rest stop, Ramirez and Sisneros testified they
were hit by wet sunflower seeds and looked up to see Perez and
Garcia a level above them. It was extremely noisy at that time.
Perez told the men to get back to work. Beel overheard Garcia
and Perez a short time later. According to Beel, Garcia said
that, “[t]he Union’s no good bastard . . . and that they hated
them all, and that they didn’t work and they were too slow.”
Perez responded, “Yes,” and they walked away from Beel’s
position.
According to Perez and Garcia, Perez threw dry sunflower
seeds at Ramirez and Sisneros and told them to get back to
work. The reason he threw the sunflower seeds was to get their
attention because he tried yelling to them and they could not
hear him. Both Perez and Garcia denied that either of them spit
and both denied stating that they hated the Union.
I credit Perez’ and Garcia’s denial over the testimony of
Ramirez and Sisneros based upon the relative demeanors of
these witnesses.
S. Alleged Unlawful Discharge of Sisneros
On June 4, his first day of work for Respondent, Sisneros
was assigned to work for Foreman Garcia. Garcia recalled
speaking to Sisneros on the first day he worked on Garcia’s
crew and told him to speed up—that he was going a little too
slowly. The next day, Garcia recalled speaking to Sisneros in
the morning, asking him to work a little faster, and in the after-
noon, Garcia recalled telling Sisneros that the apprentices were
hanging more fixtures than he was. On June 5, according to
both Jaramillo and Garcia, Garcia complained to Jaramillo
about Sisneros’ production. Jaramillo spoke with Sisneros that
day and asked him why he was not working. According to
Jaramillo, Sisneros said that he needed to read the prints and
get material. Sisneros assured Jaramillo that he would buckle
down and get the work done. According to Jaramillo, this did
not occur and, thinking there might be a personality conflict
between Sisneros and Garcia, on June 8, Sisneros was assigned
by Jaramillo to Perez’ crew.
Perez testified that he spoke with Sisneros on four occasions
warning him about his slow performance. According to Perez,
Sisneros wasted time, failed to get supplies prior to beginning a
task, and failed to complete work in a timely manner, some-
times taking twice as long at an assignment as Perez antici-
pated. Jaramillo received the same complaints from Perez that
he had received from Garcia and once again spoke to Sisneros
who told Jaramillo that Perez was out to get him. Jaramillo told
Sisneros to do what he could. Then Jaramillo asked another
foreman, Vernon Tye, to take Sisneros. Tye refused. Sisneros
was discharged by Jaramillo on June 12. The reason for dis-
charge was lack of production.
Respondent’s foremen acknowledged that other employees
wasted time and did not work as fast as expected on occasion.
However, whenever they were told to get back to work or speed
up, these employees complied. 11
There is no dispute that Respondent had knowledge that Sis-
neros was a union member. There is evidence of animus toward
the Union. Accordingly, I draw an inference that Sisneros’
union membership was a motivating factor in Respondent’s
decision to discharge him. However, I find nevertheless that
Respondent would have discharged Sisneros in the absence of
his union membership. The credited evidence indicates that
Sisneros did not work up to speed and was repeatedly warned

11 General Counsel also relies upon the alleged horseplay of two
foremen in arguing that Sisneros was treated disparately by Respon-
dent. The foremen denied the horseplay. I credit the denials of the
foremen regarding these incidents.
BOYDSTON ELECTRIC 1465
that he needed to speed up. He did not change his progress.
Accordingly, I find that his discharge did not violate the Act.
CONCLUSIONS OF LAW
By threatening an employee with termination for soliciting
for the Union on nonworking time and by interrogating an em-
ployee as to whether he had signed an authorization card for the
Union and whether he was going to follow in the footsteps of
another employee who had engaged in activities in behalf of the
Union, Respondent has engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(1) and Sec-
tion 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 and to take certain affirmative action designed to effectu-
ate the policies of the Act.
[Recommended Order omitted from publication.]