Center Service System Division

National Labor Relations Board - Administrative Judge Opinions

Sep 21, 2004

07-CA-046490 (N.L.R.B. Sep. 21, 2004)

JD–93–04
Flint, MI

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

CENTER CONSTRUCTION COMPANY, INC.
d/b/a CENTER SERVICE SYSTEM DIVISION

and Cases 7–CA–46490
7–CA–46696
LOCAL 370, UNITED ASSOCIATION OF 7–CA–46697
JOURNEYMEN AND APPRENTICES OF
THE PLUMBING AND PIPE FITTING
INDUSTRY OF THE UNITED STATES
AND CANADA, AFL–CIO

Kelly A. Temple, Esq., for the General Counsel.
Hiram S. Grossman, Esq., P.C. (Daniel & Grossman,
P.C.), of Flint, Michigan, for the Respondent.

DECISION

Statement of the Case

JOSEPH GONTRAM, Administrative Law Judge. This case was tried in Flint, Michigan on
May 18–20, 2004. In Case 7–CA–46490, the charge was filed by Local 370, United Association
of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States
and Canada, AFL–CIO (Local 370 or the Union) on August 8, 2003,1 and was amended on
August 25 and September 19. In Case 7–CA–46696, the charge was filed by Local 370 on
October 7, and was amended on November 3. In Case 7–CA–46697, the charge was filed by
Local 370 on October 7. The Acting Regional Director for Region 7 ordered that the cases be
consolidated and, on December 23, issued a consolidated amended complaint. With the
agreement of counsel, the complaint was amended at the hearing.

The amended consolidated complaint alleges that Center Construction Company, Inc.,
d/b/a Center Service System Division (the Respondent) violated Section 8(a)(1) of the National
Labor Relations Act (the Act) (1) by threatening to discipline and fire employees if they honored
a picket line at the Respondent’s facility, (2) by surveilling its employees’ activities on the picket
line, (3) by threatening adverse employment actions, including termination, if Local 370 was
selected to represent the plumbers employed by the Respondent, (4) by soliciting grievances
from, and promising better benefits to, its employees to discourage the employees from
supporting a union, (5) by promulgating and enforcing a rule prohibiting employees from
wearing shirts with union insignia, (6) by interrogating employees about their union sympathies,
and (7) by telling employees that if they were interested in a union, they should talk to the
Respondent’s owner first. The amended consolidated complaint further alleges that the
Respondent violated Section 8(a)(1) and (3) of the Act by refusing to consider and hire
1 All dates are in 2003 unless otherwise indicated.

JD–93–04

5

10

15

20

25

30

35

40

45

50
2
members of Local 370 for available positions for plumbers, and by discharging employee
Wayne Rose, and violated Section 8(a)(1) and (5) of the Act by refusing to bargain collectively
with Local 370. The Respondent admits all jurisdictional allegations, but denies that it has
committed any unfair labor practices.

On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following

Findings of Fact

I. Jurisdiction

The Respondent, a corporation, is engaged in the sale, installation, and service of
heating, air conditioning, and plumbing systems from its facility in Burton, Michigan, where,
during the calendar year preceding the filing of the present complaint, it had gross revenues in
excess of $500,000 and purchased and received goods valued in excess of $50,000 from
suppliers within the State of Michigan, which suppliers had received these goods directly from
points outside the State of Michigan. The 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 Local
370 is a labor organization within the meaning of Section 2(5) of the Act.

II. Alleged Unfair Labor Practices

A. Background

Robert Eagleson (Eagleson) is the president and owner of the Respondent. In the
1950’s, his father established Bernhart Eagleson Plumbing & Heating, which later became R.
W. Eagleson Plumbing & Heating. In 1964, Eagleson’s father established Center Construction
Company to do general construction throughout Michigan. In 1970, Eagleson took over
management of Center Construction. In 1973, Eagleson established Center Service System, the
Respondent, which, like his father’s plumbing business, primarily does residential plumbing and
heating. Kristina Eagleson, Eagleson’s daughter, has worked for the Respondent for 20 years,
and is currently the production manager. Kristina has a journeyman plumber’s license and a
master plumber’s license. Matthew Welsh is the Respondent’s plumbing supervisor. The
Respondent admits that Kristina Eagleson and Welsh are supervisors within the meaning of
Section 2(11) of the Act.

Eagleson’s father’s plumbing and heating businesses had contracts with Local 370 for
several years. Eagleson himself was a member of Local 370 for more than 15 years. The
Respondent has never had a contract with Local 370. In the 1990’s, Local 370 unsuccessfully
attempted to organize the Respondent on two occasions. Each time, Local 370 requested the
Respondent to extend voluntary recognition, and each time the Respondent refused. After the
Respondent’s refusals, Local 370 filed representation petitions with the National Labor Relations
Board, both of which were unsuccessful. The Respondent has had a contract with Local 7 of the
Sheet Metal Workers Union for over 20 years. The Respondent generally employs between 20
and 40 sheet metal workers, and 2 or more plumbers.

The basic distinction between plumbers and sheet metal workers is that plumbers deal
with piping, which is wet and carries liquid. Plumbers are also called fitters or pipe fitters. Sheet
metal workers deal with ductwork, which is dry and carries air.

JD–93–04

5

10

15

20

25

30

35

40

45

50
3

In July and August 2003, Local 370 again sought to organize the Respondent’s
plumbers. At that time, there were two potential members of the bargaining unit—Wayne Rose,
a journeyman plumber, and Lance Lockhart, a plumber’s apprentice.

B. Local 370’s Organizing Activities and Related Events Before August 17

On July 30 and 31, Rose and Lockhart, respectively, signed authorization cards for Local
370. On August 4, Benjamin Ranger, the Union’s organizer, and Mark Johnson, the business
manager, met with Eagleson in Eagleson’s office. Ranger and Johnson told Eagleson that Local
370 was organizing the Respondent’s plumbers, and had secured the signatures of the two unit
members. Ranger asked Eagleson for recognition so that the parties could start bargaining
immediately. Eagleson claimed he did not know that he had two plumbing employees, and after
confirming that he did, he asked to see the authorization cards. Ranger then showed Eagleson
the two cards signed by Rose and Lockhart.2 After examining the cards, Eagleson stated that he
would never sign an agreement with Local 370 and would go out of business before signing an
agreement with Local 370. Ranger replied he would seek other legal means to obtain
recognition.

The next day, August 5, Ranger mailed and faxed a letter to Eagleson demanding
immediate recognition of Local 370 as the representative of the Respondent’s plumbing
employees. (On August 5, Ranger also signed and mailed to the Board a representation
petition.) However, Ranger’s letter contained an inadvertent, and inconsistent, description of the
represented employees as the Respondent’s HVAC employees, rather than the plumbing
employees. The HVAC employees were already represented by the Steel Workers Union.
Eagleson claims that the letter confused him regarding the employees Local 370 sought to
represent. This claim is not credible. Moreover, Eagleson exploited the inadvertent reference to
HVAC employees in the letter to explain his own actions in refusing to recognize Local 370 and
to drive a wedge between Local 370 and Local 7 of the Sheet Metal Workers Union. On August
8, and immediately after being advised of the error, Ranger mailed and faxed a corrected letter
to Eagleson eliminating the reference to the HVAC employees.

On August 4, Eagleson met with Local 370 representatives who sought recognition on
behalf of the Respondent’s plumbing employees. Eagleson observed, inspected, and read the
cards that were signed by his two plumbing employees, and that were handed to him by
Ranger. He then lashed out at Ranger and Johnson, telling them that he would never sign a
contract with Local 370 and would rather go out of business. Thus, when Eagleson received
Ranger’s August 5 letter on that date, Eagleson knew that the reference to HVAC employees
was a mistake, and that Local 370 was, in fact, seeking to represent only his plumbing
2 All facts found here are based on the record as a whole and on my observation of the
witnesses. The credibility resolutions have been made from a review of the entire testimonial
record and exhibits with due regard for logic and probability, the demeanor of the witnesses,
and the teaching of NLRB v. Walton Mfg. Co., 369 U.S. 404 (1962). As to those witnesses
testifying in contradiction of the findings, their testimony has been discredited, either as having
been in conflict with the testimony of reliable witnesses or because it was incredible and
unworthy of belief or as more fully explained in the text. With respect to the testimony regarding
what occurred at meetings between a manager and an employee, I have also taken into
account the economic dependence of employees on employers, with awareness of an
employee’s attentiveness to intended implications of his employer’s statements which might be
more readily dismissed by a disinterested party. See NLRB v. Gissel Packing Co., 395 U.S.
575, 617 (1969).

JD–93–04

5

10

15

20

25

30

35

40

45

50
4

employees, which is what Ranger and Johnson told Eagleson on August 4. Of course, if the
letter confused Eagleson, the natural reaction would be to telephone Ranger and ask him about
the letter, i.e., to try to clear up any confusion. But Eagleson did not try to clear up any confusion
because there was none. Instead, a copy of the letter was given to the steward of the Sheet
Metal Workers Union. In this way, Eagleson tried to exploit what he knew was an inadvertent
mistake in order to drive a wedge between Local 370 and the Sheet Metal Workers Union.
When Ranger became aware of the mistake in his letter, he corrected the mistake, and mailed
and faxed a corrected letter to Eagleson on August 8.

In making my credibility determinations, I am aware that Ranger and Johnson gave one
version, and Eagleson gave another version of what occurred during their meeting. The
testimony of Ranger and Johnson has been credited and the testimony of Eagleson has been
discredited because of the demeanor of these witnesses. In addition, Ranger and Johnson
corroborate each other, and their testimony is more plausible. For example, Ranger and
Johnson testified that Ranger handed the signed authorization cards to Eagleson who examined
them for several minutes. This testimony is consistent with the purpose of the meeting, which
was to alert Eagleson to the organization of Respondent’s plumbers and to request recognition
for Local 370. Moreover, Eagleson testified that he does not recall if Ranger handed him the
cards, and he does “not believe” that he read them. (Tr. 435.)3 (This testimony is not only
incredible, it is also not determinative of the factual issue. Ranger had already told Eagleson
that the two members of the unit had signed cards, and Eagleson knew the two members of the
unit were Rose and Lockhart.) Thus, the testimony of Ranger and Johnson is also more credible
because of their specific recollection, as opposed to Eagleson’s vague recollection. On the other
hand, given the importance of the cards, Eagleson would recall if the cards were shown to him.
Accordingly, his claim of not being able to recall is itself not credible.

Johnson and Ranger also testified that Eagleson stated he would never sign an
agreement with Local 370. Eagleson testified that he said he would never sign an agreement
without seeing the contract first. Again, Eagleson’s testimony is not credible and is rejected.
Eagleson’s claimed statement essentially says nothing. Of course he would not sign an
agreement without seeing it first. Moreover, Eagleson was present in the hearing room for
Ranger’s and Johnson’s testimony, and it is apparent that he tried to conform his recollection of
these events as close as possible to what actually occurred, without acknowledging the true
meaning of what was said. As if Ranger and Johnson heard him say, “I will never sign an
agreement with Local 370,” but failed to hear the remainder of the sentence, “without seeing it
first.” Eagleson was not a credible witness. Moreover, Eagleson’s demeanor on the witness
stand displayed an antiunion animus notwithstanding his ingratiating reference to his having
been a member of Local 370 for many years. During his meeting with Ranger and Johnson,
Eagleson did not qualify his refusal to sign an agreement with Local 370, except to exacerbate
the antiunion animus contained in the statement by adding that he would go out of business
before signing an agreement with Local 370.

After Eagleson received the fax of Ranger’s August 5 letter, he telephoned Johnson and
requested a copy of the plumbers’ proposed collective-bargaining agreement. Eagleson said
that he would like to look over the agreement and discuss what could be done.

On August 6, at approximately 6:45 a.m., Local 370 set up a picket line at the
Respondent’s facility. Ranger, Johnson, and other members of Local 370 picketed, together
3 References to the transcript of the hearing are designated as Tr.

JD–93–04

5

10

15

20

25

30

35

40

45

50
5

with Lockhart and other employees of the Respondent.4 Johnson brought the proposed
collective-bargaining agreement, and provided a copy to Eagleson inside the Respondent’s
facility. Johnson and Eagleson had a brief discussion in which Eagleson said that he had no
problem if his employees wanted to join a union. Johnson returned to the picket line, and the
picketing continued until mid-afternoon on August 6.

The question that arises is, why would Eagleson request a copy of an agreement that
he had already told Ranger and Johnson he would never sign? The answer is that Eagleson
wanted to use the agreement to further his efforts to drive a wedge between Local 370 and the
Sheet Metal Workers. Moreover, contrary to Eagleson’s statement to Johnson, Eagleson had no
intention to talk with Local 370 about what could be done with an agreement. On August 7,
Eagleson met with Patrick Ruddy, the Sheet Metal Workers’ steward, in Eagleson’s office.
Service Manager Lonnie Katt was present during the meeting, but he was not called as a
witness. Eagleson read aloud certain parts of the plumbers’ agreement that he had just received
from Johnson, told Ruddy his interpretation of the agreement, and tried to impress on Ruddy
that the plumbers were trying to take jobs away from the sheet metal workers. Eagleson then
told Ruddy, “If we let the Plumbers come in here, it is going to take three or four of your men’s
positions. Who would [you] like to get rid of here?” (Tr. 107.) Ruddy, of course, said he did not
want to get rid of anybody. A few days later, Eagleson again met with Ruddy and again told him
that the plumbers were trying to take the sheet metal workers’ jobs.

On August 6, after Johnson had provided Eagleson with a copy of the collective-
bargaining agreement, Johnson returned to the picket line. Later, Eagleson and Welsh came out
to the front of the facility and observed the picketing. The Respondent’s sheet metal workers
would not cross the picket line, and they were congregating in a parking lot across from the
facility where the Respondent’s trucks were parked. Johnson held a video camera, and he
recorded, for approximately 10 minutes, some of the activity in and around the picket line.
Welsh went back inside the facility and returned with a camera. He then took pictures of the
picket line, which included the Respondent’s workers, as well as pictures of the sheet metal
workers across the street. Welsh then walked over to the sheet metal workers and told them to
get to work or he would make sure that they would be fired.5

At approximately noon, Kristina Eagleson came out to the picket line and handed letters
to the Respondent’s employees. The letters were signed by Eagleson and stated:

Your absence on August 6th was not excused. You must report to work on
August 7, 2003 and each work day thereafter.

Additionally, you must return all company property to work on August 7,
2003 whether or not you intend to report to work on August 7th and each
work day thereafter, your retention of company property on or after August
4 The Respondent’s employees who picketed included Lockhart, Patrick Ruddy, Michael
Oliver, and Kevin Deconig.
5 In evaluating the credibility of testimony regarding the statements of supervisors, as well
as the owner, to employees, I have also taken into account the economic dependence of
employees on employers, with awareness of an employee’s attentiveness to intended
implications of his employer’s statements which might be more readily dismissed by a
disinterested party. See NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969). The
Respondent admits that Welsh and Kristie Eagleson are supervisors within the meaning of Sec.
2(11) of the Act.

JD–93–04

5

10

15

20

25

30

35

40

45

50
6

7th, 2003 is not authorized and Center Service will report to the proper
authorities that you have Center Service property without authorization.

Your failure to report for work on August 7th and work on August 7th, 2003
and each work day thereafter and return company property on August 7th
will result in Center Service imposing discipline on you.

(GC Exh. 14.) The picketing ended in the afternoon of August 6, and all employees returned to
work on August 7.

C. Applications for Employment From Local 370 Members

On August 17, the Respondent advertised in the local newspaper, the Flint Journal, for
journeymen plumbers, HVAC installers, and service technicians. The advertisement read as
follows:

PLUMBERS – State Licensed Journeyman, HVAC Installers
and Service Tech. Competitive wages, health-care benefits,
opportunity to earn monthly bonus for self motivate[d]
conscious [sic] People. Apply at Center Service, 4040 E.
Bristol Rd. Burton

(GC Exh. 6.) On August 18, Ranger called the Respondent’s offices in response to the
advertisement, and he was told by a secretary/receptionist that the Respondent was still hiring.
Ranger told some members of Local 370 about the Respondent’s advertisement for plumbers.
Other union members had already seen the advertisement.

On August 18, eight plumbers, all members of Local 370, went in a group with Ranger to
the Respondent’s offices to apply for the plumber positions advertised in the newspaper. These
union members were Maurice Cahill, Jermaine Connor, Gerald Cox, David McDermitt, Michael
Morris, Dennis Slattery, Jack Steco, and Richard Young.6 The plumbers requested applications
from the secretary/receptionist. She copied and distributed the applications to the eight
plumbers. However, she gave no instructions to the plumber-applicants concerning how or
where the applications were to be completed. The reception area was not large, and there were
not enough chairs to accommodate all of the plumbers, so they went to their automobiles in the
parking lot to complete the applications. The completed applications were then given to the
secretary/receptionist who, again, said nothing about the applications or the way in which the
plumbers had completed them.

Ranger did not complete his application on August 18. Instead, he took his blank
application to the Union’s offices, made copies, and distributed the blank applications to five
more union members. These union members, Eric Backlund, Michael Herriman, Scott Mobilio,
Kenneth Wheeler, and William Wise, completed the applications at the Union’s offices. On
6 The Respondent has possession of the applications completed by these plumbers except
for the application of Cox. Cox testified that he completed and submitted an application, and
other witnesses confirmed his presence on August 18. Accordingly, I conclude that Cox
completed and submitted an application to the Respondent on August 18. However, I do not
make any adverse inference on the Respondent’s failure to locate or produce a copy of that
application. Documents may be lost unintentionally, and I conclude that this occurred with
respect to Cox’s application.

JD–93–04

5

10

15

20

25

30

35

40

45

50
7

August 19, these union members went with Ranger to the Respondent’s offices and handed the
completed applications to the secretary/receptionist who said nothing about the applications or
the way in which they had been completed.

On October 2, three additional union plumbers went to the Respondent’s offices to apply
for a job. These plumbers were Alexander Gallant, Carl Nelson, and Chester Solarz. The
secretary/receptionist gave them each an application, which they completed in the waiting area.
They handed the completed applications to the secretary/receptionist who, like the previous two
occasions, said nothing about the way in which the applications were completed.

Thus, 16 plumbers, all of whom were members of Local 370, completed and submitted
applications for the plumber positions advertised by the Respondent on August 17. At least 13
of these plumbers were licensed, journeyman plumbers.7 Steco and Cahill are master plumbers.
The experience of the 16 plumbers ranged from a minimum of 7 years (Connor and Solarz) to
almost 50 years (Steco). The plumbers had experience in both commercial and residential
plumbing. One of the plumbers (Slattery) had worked for the Respondent in the past. Steco and
Eagleson attended the same apprentice plumbing classes together in 1965 and have been
friends since that time.

The Respondent knew that these applicants were Local 370 members. The first two
groups of plumbers entered the Respondent’s facility led by Ranger. Eagleson knew Ranger
because he had met with Ranger on August 4 when Ranger demanded recognition of Local
370. Moreover, some of the applications in all three groups of union members who applied for a
job disclosed that the applicant was a member of Local 370.8 In any event, the Respondent has
not claimed herein that it was unaware of the applicants’ membership in Local 370.

The Respondent did not call any of the Local 370 plumber-applicants for an interview, or
for any follow up information, or for any other reason. Instead, Welsh solicited Jeffrey Blasdell in
early October, long after the Respondent’s advertisement for plumbers and long after the union
plumbers had applied for the position. The Respondent hired Blasdell as a plumber on October
6. On October 20, the Respondent hired Bradley Liddell as a plumber. The Respondent also
hired David Lawrence in late August-early September and Chance Crosno in mid-October as
plumber’s helpers or apprentices. Blasdell, Liddell, and Lawrence had formerly worked for the
Respondent.

D. Interrogation of David Lawrence

David Lawrence is a plumber’s apprentice. He had worked for the Respondent as a
plumber’s apprentice from July to December 2000. He saw the Respondent’s August 17
newspaper advertisement and telephoned Welsh. Welsh asked Lawrence to bring in a resume,
but Lawrence did not. About 2 weeks later, Welsh telephoned Lawrence, asked him to come
into the Respondent’s offices to complete an application, and reminded Lawrence to bring a
7 The remaining three, Richard Young, Kenneth Wheeler, and Carl Nelson, did not testify
and their applications do not reveal whether they possess journeyman licenses. In spite of this
lack of evidence, the Respondent has not asserted the failure to prove the licensed status of
these three applicants as a reason why they were not considered for employment. In addition,
Gallant has been excluded as a discriminatee because he stated on his application that he was
available only for part-time work.
8 These include the applications of Solarz, Backlund, Mobilio, Wheeler, Wise, and Herriman.
Moreover, in Cahill’s application, he listed Ranger as a reference.

JD–93–04

5

10

15

20

25

30

35

40

45

50
8

resume. On the last Thursday in August, Lawrence went to the Respondent’s offices and spoke
with Welsh. When that interview concluded, Lawrence and Welsh went into Eagleson’s office.
Eagleson asked Lawrence how he felt about unions. Lawrence replied that there were pros and
cons. Lawrence gave Eagleson this reply because he felt that it was what Eagleson wanted to
hear, and Lawrence was anxious to get a better paying job. Eagleson told Lawrence that if he
were interested in joining a union, Eagleson could place him in the Sheet Metal Workers’ union.
Eagleson offered Lawrence a job that day as a plumber’s apprentice.

E. Events Involving Wayne Rose

The Respondent hired Wayne Rose as a journeyman plumber in January 2003. Rose
interviewed with and was hired by Welsh. Rose had virtually no contact with Eagleson during his
first 8 months on the job. The first conversation Rose ever had with Eagleson was in mid-
August, which was about 2 weeks after Rose had signed a union authorization card for Local
370, less than 2 weeks after that card was shown to Eagleson, and about 1 week after Local
370 had picketed Eagleson’s company. Eagleson directed Rose into Eagleson’s office so that
Rose could pick up his paycheck, and Eagleson then started talking to Rose about the
company. As Eagleson described it, he wanted to “clear up a few things” with Rose. (Tr. 451.)
Eagleson first asked Rose if he had any questions or concerns about his job. Eagleson said that
the company had an investment or retirement plan, and that the nonunion employees vested in
the plan in 3 years. Rose asked why he was not receiving health insurance. Eagleson assured
Rose that he was eligible for and would receive this insurance, and explained that the
Respondent “was a big company and sometimes things fall through the crack[s].” (Tr. 300.)

Eagleson also testified that he had heard from Welsh, Rose’s supervisor, that Rose was
unhappy. Rose denies making such a claim and his denial is more credible than Eagleson’s
assertion. Eagleson’s claim that Rose was unhappy appears to be based on Eagleson
assuming this because Rose had joined the union. Although unhappiness on the job may be
one reason an employee would join a union, it certainly is not the only reason. There is no
credible evidence that Rose was unhappy at his job, and Eagleson’s testimony that Welsh had
told him Rose was unhappy is not credible.

Eagleson talked about the history of the company and Local 370’s organizing efforts.
Eagleson described how his father had started the business and how Eagleson had continued
it. Eagleson said that Local 370 had two previous organizing drives, in 1994 and 1998, but these
organizing efforts were unsuccessful, and he “eventually got rid of the [useless] sons of bitches.”
(Tr. 271, 302.) Rose then asked Eagleson if he considered Rose to be useless, and Eagleson
replied, “No, I hear you’re a good one.” The entire discussion lasted about 45 minutes. When
Rose was leaving the office, Eagleson told him, “If you have any problems with this company,
I’m the President . . . you need to discuss these with me.” 9 The previous and normal policy of
the Respondent for handling employee complaints required the employee to make the complaint
to the immediate supervisor, and then, if the matter were not resolved, the complaint would be
referred to Eagleson.

Between 1 and 2 weeks after Eagleson’s mid-August conversation with Rose, Rose
wore a shirt into work that was emblazoned with the union logo and lettering. Nothing was said
during the morning meeting, but as Rose was getting into his truck to go to his job, Kristie
Eagleson told him to not wear the shirt on the job. She told Rose that the shirt was inappropriate
9 Tr. 272. The testimony was limited to unrepresented employees, since Rose was
unrepresented at the time of Eagleson’s statement.

JD–93–04

5

10

15

20

25

30

35

40

45

50
9

and was against company policy. She told Rose that he had to change the shirt before he got to
the job because she did not want the contractor on the job to think that the Respondent was
paying union wages. Rose replied that the shirt was new and he was going to change it anyway.
Accordingly, Rose changed his shirt before he went to the job.

The Respondent’s employees are not required to wear uniforms, although they may
purchase uniforms if they wish. Instead, the employees frequently wear t-shirts, which many
times are emblazoned with various names and logos, including professional sports teams,
college sports teams, racecar drivers, and musical groups. None of these shirts violate the
policy. The Respondent’s policy, if it may be called a policy, regarding clothing that is allowed on
the job is sporadically mentioned to the workers. There is no written policy. As Welsh and Kristie
Eagleson described the policy, prohibited shirts are shirts that contain bullet holes, pictures of
marijuana plants, swear words, offensive sayings, and religious or political messages. In his
posthearing brief, the Respondent’s counsel describes the policy as prohibiting “items
containing religious, political, offensive words, pictures or graphics.” (R’s Posthearing Br., p. 26.)
The Respondent maintains that the shirt worn by Rose, which contained the name and logo of
the Union, violated this policy. There is no evidence of any employee, other than Rose on this
single occasion, ever being cited for violation of the Respondent’s alleged clothing policy.

On September 22, Rose was working on a job in or near Clarkston, Michigan. Welsh
testified that the job was in Leonard, Michigan, but he explained that the location of the job was
5–10 miles east of Clarkston. Moreover, after Eagleson had observed Rose’s truck in the vicinity
of Pearson Road and I–75, Welsh told Eagleson that Rose had been working that day on a job
near Clarkston. Rose’s time card reflects that he worked 8½ hours on September 22. Rose lives
in Millington, Michigan. The map provided by the Respondent of the central Michigan area
shows that Clarkston abuts I–75, and that a reasonable route to take in traveling from Clarkston
to Millington is to go north on I–75, then east from the Birch Run exit. (See Tr. 291; R’s Exh. 8.)
An alternate route is to travel north on Route 15 to Millington. Although the second route
appears to be more direct, it may or may not take more time since I–75, unlike Route 15, is an
interstate highway.

At approximately 6 p.m. on September 22, Eagleson observed a company truck at
Interstate 75 (I–75) and Pearson Road.10 Eagleson telephoned Welsh who said that the truck
was assigned to Rose. Eagleson testified that he was concerned about the location of the truck
and the time it was observed because the driver should have been home by that time of day.
Notwithstanding this alleged concern, Rose’s location—on or near I–75 between the job site in
Clarkston and Rose’s residence in Millington—was at least generally where he should be in
traveling from the job to his residence. Moreover, the time of day is at least partially explained
by the fact that Rose worked 8½ hours at the job September 22. (R Exh. 7.) Eagleson told
Welsh to “Check it out and find out what he [Rose] is doing.” (Tr. 479.)

A couple of days later, Welsh called Eagleson and told him that Rose was using the
company truck on personal time. Welsh was not asked at the hearing, and did not explain, how
he knew this or how he arrived at this conclusion or whether he also knew that Rose had taken
the truck to go to the Union’s offices. Eagleson told Welsh that, in accordance with the
Respondent’s policy, Rose would have to lose the truck for a while. Eagleson told Welsh to take
the truck away from Rose for at least a week or two, but not to tell Rose this.
10 It is unclear if Eagleson observed Rose while Rose was driving on I–75 or on Pearson
Road; however, the resolution of this factual matter is not relevant to the determination of any
issue in this case.

JD–93–04

5

10

15

20

25

30

35

40

45

50
10

On Thursday, September 25, Welsh called Rose while Rose was on the job, and told
him to report back to Welsh at the Respondent’s offices at the end of the day. Welsh explained
his failure for three days to confront Rose with Eagleson’s observation as follows: “I did not want
to confront and reprimand him or discipline him for his actions until I had the opportunity to
speak in detail with Bob [Eagleson] about what was observed and when, where and why.” (Tr.
358.) Accordingly, before the Respondent made any decision on how to deal with Eagleson’s
observation of Rose on September 22, Welsh and Eagleson spoke in detail not only about when
and where Rose was observed, but also why Rose was there. And there is no dispute that Rose
was in the area of I–75 and Pearson Road because he was going to talk with Local 370 officials
about their organization of the Respondent’s plumbers.

On September 25, and pursuant to Welsh’s instructions, Rose reported to Welsh at the
Respondent’s facility at about 5:30 p.m. Welsh told Rose that Eagleson had seen him driving his
company truck in the area of I–75 and Pearson Road on Monday at 6 p.m., and he asked Rose
why he was on Pearson Road. Rose replied that he was going to the union’s offices to see Ben
Ranger. Welsh suggested that this trip was 3 to 10 miles out of the way, but in fact the trip was
a total of 3 miles (1 ½ miles each way) from I–75. Rose reminded Welsh that in the past Rose
had been allowed to use the company truck for personal reasons such as cashing his paycheck
or going to lunch, and that the distances for these trips were much greater than the distance
involved in his trip to the Union’s offices on September 22. Welsh told Rose that his truck was
going to be taken from him because of unauthorized use.

Welsh denies that he asked Rose where he was taking the company truck. This denial is
not credible, especially in light of Eagleson’s instruction to Welsh on Monday to find out what
Rose was doing. Moreover, Welsh admits that he wanted to discuss in detail with Eagleson
when, where, and why Rose was at the observed location. Welsh’s denial, which is partially
inconsistent with his own and Eagleson’s testimony, but which is in keeping with his attempt
during the hearing to avoid admitting any concern about or involvement in Rose’s union activity,
further detracts from Welsh’s credibility.

After Welsh told Rose that his truck was being taken away, Rose said he needed to
remove his tools from the truck, and he would need a ride home. Welsh and Rose went to the
truck and Rose removed his tools. While he was removing his tools, Kristie Eagleson came out
to the truck. Kristie Eagleson testified that she had heard Rose fling open the door of Welsh’s
office extremely hard. Kristie Eagleson and Welsh testified that Rose was cursing at his truck,
saying over and over again, “That’s bullshit, I quit.” Kristie Eagleson testified that “Matt told him
[Rose] since he quit, he needs to remove his belongings from the Company vehicle.” (Tr. 417.)
Upon considering their demeanor and other factors, the testimony of Kristie Eagleson and
Welsh regarding these events is not credible.

Rose was impressive as a quiet, respectful, and polite person. Indeed, when Rose was
interviewed for the job, Welsh noted that he was “clean cut, very polite.” (GC Exh. 23.)
Moreover, of the employee applications in evidence, Rose’s application is the only one that
contains a positive reference to the character traits of the applicant, further supporting the
reliability of this impression from Rose’s demeanor. The testimony of Kristie Eagleson and
Welsh that Rose repeatedly said, in a raised voice, “That’s bullshit, I quit” is out of character and
is inconsistent with the demeanor that Rose displayed and projected at the hearing. Rose
denied saying it, and his testimony is credible. Second, while they were in Welsh’s office, Rose
told Welsh that he needed to remove his tools from the truck. Therefore, Welsh would have had
no cause to tell Rose while they were at the truck that, since he quit, he should remove his
tools. Indeed, that is why they were already at the truck, so Rose could remove his tools and

JD–93–04

5

10

15

20

25

30

35

40

45

50
11

belongings. Rose did not quit, he did not tell Welsh that he quit, and he did not curse at Welsh.

Welsh drove Rose home. During the ride, Rose told Welsh that his van needed a sleeve
cylinder, and it might take Rose a day or more to get the part and install it. Rose said he would
come to work on Monday. Welsh told Rose he should come to work the next day. The next
morning, Friday, September 26, at about 8:30 a.m., Rose called the office, asked for Welsh,
who was not available, and told the secretary to tell Welsh that he (Rose) would not be in work
on Friday. Although this was the first time during his employment that Rose called the office to
report he would not be in, his telephone call in the morning of September 26, combined with his
statement to Welsh on September 25, substantially met the Respondent’s procedure for
reporting absences from work.

The Respondent argues that Rose’s testimony is inconsistent because if, as Rose
claims, he told Welsh on Thursday that he would not be at work on Friday, there would be no
reason for Rose to call the Respondent on Friday morning. However, this argument fails to
account for Welsh’s response to Rose on Thursday that Rose should still come to work on
Friday. Because of Welsh’s statement to Rose on Thursday, Rose’s telephone call to Welsh on
Friday morning to report that he would not be in work is understandable and consistent.

Welsh claims that Rose called the office on Friday, September 26, and that he talked
with Rose on the telephone. Welsh claims that Rose tried to rescind his resignation during that
telephone call. The Respondent did not call its secretary as a witness, nor did it offer any
corroborating evidence to support Welsh’s claim that he spoke with Rose or to refute Rose’s
claim that he left a message with the secretary. Moreover, Welsh claims that, during this alleged
telephone conversation, he told Rose that he did not have the time to talk, but Rose should call
him on Monday morning. However, on that same day, Eagleson signed a letter addressed to
Rose (which Rose denies receiving) stating that his resignation has been accepted. (R Exh. 6.)
It is not likely that Welsh would have invited Rose to call and discuss Rose’s job status when, on
the same day, the president and owner of the company had signed a letter stating that Rose
was no longer an employee. In considering the demeanor of Welsh and Rose, and all of the
circumstances, including the previous aspects of Welsh’s testimony found to lack credibility,
Welsh’s testimony regarding the telephone call, as well as his testimony about his meeting with
Rose on Monday, September 29, is not credible.

In addition, Welsh testified that, in the September 26 telephone conversation, he told
Rose to telephone the office on Monday. However, Rose did not telephone the office on
Monday; rather, he came into the office. This is consistent with Rose’s testimony that he had not
quit on Thursday and had not talked to Welsh on Friday.

The Respondent has a policy concerning the use of company trucks. Essentially, the
policy is that company trucks are not to be used for personal purposes. However, like the
Respondent’s alleged work clothing policy, the Respondent’s truck policy is not written.
Moreover, there are exceptions to the policy that might be termed de minimus exceptions. For
example, employees use company trucks to cash their paychecks and to pick up personal items
at a store on their way to and from work. The Respondent claims that every personal trip must
be approved in advance; however, in practice, preapproval is not sought or necessary in the de
minimus situations. Nevertheless, and in keeping with this policy, the Respondent has taken
trucks away from employees who were caught using their trucks outside of working hours.11
11 In two egregious cases, the employees were discharged, but those cases are not comparable
to the present case.

JD–93–04

5

10

15

20

25

30

35

40

45

50
12

Rose arrived in work on Monday, September 29, at 7:45 a.m., and, at Welsh’s request,
entered Welsh’s office. Welsh told Rose that he (Welsh) had thought about Rose’s situation all
weekend, that he knew Rose was not happy working there, that he felt Rose would be happier if
he were not working for the Respondent, and that he would accept Rose’s resignation. Rose
replied that he did not resign and he did not understand how Welsh could presume to know how
or what Rose was feeling. Welsh, having already decided, with or at the behest of Eagleson, to
fire Rose, and maintaining the charade Welsh and Eagleson had initiated, simply replied that he
accepted Rose’s resignation.

Welsh claims that when he met with Rose on September 29, Rose again tried to rescind
his resignation. Welsh claims that he told Rose that the resignation could not be rescinded
because (1) Welsh felt that Rose was not happy working for the Respondent, and (2) Rose had
performance problems. As noted above, Welsh is not a credible witness. Moreover, Welsh’s
claim that Rose had resigned on September 25 has already been rejected. Accordingly, and for
all of the foregoing reasons, Welsh’s testimony regarding his meeting with Rose on September
29 is not credited except to the extent that it is corroborated by Rose. For example, and as
noted above, Welsh stated to Rose during their September 29 conversation that he felt Rose
was not happy working for the Respondent.

Although Welsh’s testimony that he mentioned performance problems to Rose is not
credited, the fact that Welsh presently makes that claim is considered. Welsh testified that he
had previously discussed performance problems with Rose. However, no documents were
offered to substantiate or corroborate such discussions. The Respondent has never disciplined
Rose for, nor has Welsh documented, any alleged performance problems. However, Welsh
cited the Williamston job, where Rose worked September 23 and 24, for Rose’s alleged
performance problems. Rose had to be sent back twice to correct code violations on that job.
Welsh testified that he told him Rose how the Williamston job should be fixed. However, Welsh
is not a licensed plumber. Therefore, assuming Rose followed Welsh’s instructions, it is just as
likely that Welsh was as responsible as Rose for the two trips to correct the job. In conclusion,
Welsh did not cite Rose for performance problems either when Rose was terminated or before
that time. And the job for which Welsh claims there was a performance problem, the correction
of the problem was as much the fault of Welsh as Rose.

III. Analysis

A. Section 8(a)(1)

1. Threat to fire employees for honoring picket line

Nonstriking employees who honor a picket line set up by their coworkers are engaged in
activity protected by the Act. Accordingly, an employer may not discharge or threaten to
discharge an employee who honors a picket line. American Transportation Service, 310 NLRB
294, 296 (1993), quoting ABS Co., 269 NLRB 774, 774–775 (1984) (discharge); Sunnyside
Home Care Project, 308 NLRB 346 (1992) (threat to discharge). On August 6, while the
Respondent’s employees and Local 370 picketed the Respondent’s facility, the employees who
were members of the Sheet Metal Workers Union refused to cross the picket line. Welsh
threatened these employees with discharge if they did not return to work. This threat interfered
with, restrained, and coerced the employees in the exercise of their Section 7 rights.
Accordingly, by making this threat, the Respondent violated Section 8(a)(1).

JD–93–04

5

10

15

20

25

30

35

40

45

50
13
2. Letter threatening discipline of employees who honor the picket line

An employer may not discipline or threaten to discipline employees who honor a picket
line. American Transportation Service, supra. On August 6, while Local 370 was picketing the
Respondent’s facility, the Respondent delivered letters to its employees who were members of
the Sheet Metal Workers Union. The letters threatened discipline against the employees if they
did not report for work on August 7. The letters also imposed discipline on the employees by
requiring them to return all company property on August 7, and threatening that if they did not,
“proper authorities” would be notified. Thus, the threat of discipline was compounded with the
threat of possible arrest. The threat and discipline set forth in the Respondent’s August 6 letters
interfere with the employees’ Section 7 rights, and violate Section 8(a)(1) of the Act.

The Respondent claims that it engaged in these threatening and disciplinary actions
because its employees had failed to comply with the call-in policy. The Respondent claims to
have a call-in policy, although, again, this policy is not in writing. The call-in policy requires
employees to notify the Respondent by 8 a.m. on any day they will be absent from work. The
policy assists the Respondent in scheduling work and work projects.

The Respondent’s factual argument fails to address the facts involved in its threats and
discipline. First, the Respondent threatened the employees with discipline without regard to the
call-in policy. (“Your failure to report for work on August 7th and work on August 7th, 2003 and
each day thereafter . . . will result in Center Service imposing discipline on you.”) Thus, the
Respondent threatened to impose discipline on its employees solely for their honoring the picket
line in the future, not for failing to comply with the call-in policy in the past. Second, the
discipline that was imposed—return of company property—was more severe than the
Respondent’s usual response to a violation of the call-in policy, which was a warning (that is, no
discipline). (Tr. 487–488.) Accordingly, the Respondent’s factual defense to the present charge
is rejected.

The Respondent’s violation of Section 8(a)(1) is established, as set forth above, by
Board precedent dealing with discipline and threats of discipline because of Section 7 activities.
However, if the Respondent’s interests in maintaining efficient assignments of work to its
employees were to be balanced against the employees’ Section 7 rights in refusing to cross the
picket line, see Business Services by Manpower, 272 NLRB 827 (1984), enf. denied 784 F.2d
442 (2d Cir. 1986), the conclusion would be the same. The Respondent offered no evidence
concerning the extent to which, if at all, its business was disrupted by the employees’ failure to
comply with the call-in policy. Moreover, the picket line was set up at 6:45 a.m., and the
employees who refused to cross the picket line congregated next to the company’s trucks in the
parking lot across the street from Eagleson’s office. The Respondent not only knew the identity
of the employees who were refusing to cross the picket line, Welsh even took their picture.
Thus, the information that the Respondent would obtain from the observance of its call-in policy
was timely obtained in any event. Accordingly, this case is “plainly distinguishable” from
Business Services by Manpower, supra. See Western Stress, Inc., 290 NLRB 678, 679 (1988).

The Respondent violated Section 8(a)(1) by disciplining and threatening to discipline its
employees for their protected activity in honoring a picket line at the Respondent’s facility.

3. Surveillance

Absent proper justification, photographing employees engaged in protected concerted
activities constitutes unlawful surveillance because it has a tendency to intimidate employees,
implant the fear of future reprisals, and interfere with the exercise of Section 7 rights.

JD–93–04

5

10

15

20

25

30

35

40

45

50
14
Photographing in the mere belief that something might happen is not a sufficient justification. F.
W. Woolworth Co., 310 NLRB 1197 (1993); Waco, Inc., 273 NLRB 746 (1984). The employer’s
motive when it surveils employees’ protected activities is not an essential element of an 8(a)(1)
violation. The test is whether the conduct interferes with the free exercise of Section 7 rights.
American Freightways Co., 124 NLRB 146, 147 (1959). The Board has determined that an
employer interferes with its employees’ free exercise of their Section 7 rights when it takes
photographs of them on a picket line. Thus, surveillance may be unlawful without regard to
whether the employees know of it. Starbrite Furniture Corp., 226 NLRB 507 (1976).

The Respondent argues that Lockhart was the only employee who picketed, and he was
on layoff at the time of the picketing. Without regard to the relevance of this factual argument, it
is inaccurate. Ruddy picketed, together with other employees such as Mike Oliver, Dan Parker,
and an employee identified only as Kevin.

The Respondent also argues that there was no need for it to take pictures of the
employees on the picket line. Presumably, this argument is preliminary to another factual
argument, viz., that the employees on the picket line were not actually intimidated by having
management take their photographs on the picket line. But a defense to a charge of unlawful
surveillance by the taking of photographs of picketers is not whether the employer had no need
to take the photographs, but rather, whether the employer can prove that it had a need to take
the photographs. Moreover, the violation of 8(a)(1) does not depend on the employees’
subjective reaction to the unlawful activity. E.g., Sunnyside Home Care Project, Inc., 308 NLRB
346 fn. 1 (1992).

The Respondent also argues that Welsh started taking photographs after he saw Ranger
videotape some of the activity. “[T]he Board requires an employer engaging in such
photographing or videotaping to demonstrate that it had a reasonable basis to have anticipated
misconduct by the employees. ‘[T]he Board may properly require a company to provide a solid
justification for its resort to anticipatory photographing.’” National Steel & Shipbuilding Co., 324
NLRB 499 (1997), quoting NLRB v. Colonial Haven Nursing Home, 542 F.2d 691, 701 (7th Cir
1976). The Respondent presented no evidence that it anticipated picket line misconduct.
Accordingly, the Respondent’s argument that Welsh started taking photographs after he saw
Ranger videotape some of the picket line activity does not address, much less meet, the
Board’s imposing justification test.

The Respondent admits that it took photographs of the employees in the picket line at its
facility. The picket line was composed, inter alia, of the Respondent’s employees. The
Respondent has failed to prove a justification for the photographing. Accordingly, the
Respondent has violated Section 8(a)(1) of the Act.

4. Threat to fire employees of the Sheet Metal Workers Union if Local 370
were selected to represent the Respondent’s plumbing employees

The threat of job loss is one of the most flagrant examples of interference with Section 7
rights. Sheraton Hotel Waterbury, 312 NLRB 304 (1993). On August 7, Eagleson, in the
presence of his service manager, told Ruddy, the Sheet Metal Workers Union steward, “If we let
the Plumbers come in here, it is going to take three or four of your men’s positions. Who would
[you] like to get rid of here?” This threat of job loss if the plumbers were to select Local 370 as
their representative interferes with the Section 7 rights of all the Respondent’s employees, and
violates Section 8(a)(1) of the Act.

JD–93–04

5

10

15

20

25

30

35

40

45

50
15
The Respondent contends that Eagleson’s statement to Ruddy constituted Eagleson’s
opinion of the effect that Local 370’s collective-bargaining agreement would have on the sheet
metal workers, and that Section 8(c) of the Act protects Eagleson in voicing his opinion. This
contention is rejected. If an employer makes a prediction of the effects unionization will have on
the company, “the prediction must be carefully phrased on the basis of objective fact to convey
an employer’s belief as to demonstrably probable consequences beyond his control.” NLRB v.
Gissel Packing Co., 395 U.S. 575, 618 (1969). Eagleson’s threat that three or four sheet metal
workers would lose their jobs does not meet this test.

The bargaining unit that Local 370 seeks to represent consists of two plumbers. The unit
does not consist of any sheet metal workers. Local 370 did not solicit any workers to sign cards
other than the Respondent’s two plumbers. When Ranger met with Eagleson on August 4,
Ranger told Eagleson that the plumbers had signed cards and presented these two cards to
Eagleson. Eagleson was also aware of the employees Local 370 represented because he was
formerly a member of Local 370. Notwithstanding Ranger’s August 5 letter, which contained an
inadvertent reference to the Respondent’s HVAC employees, Eagleson was not confused about
the specific employees of the Respondent that Local 370 sought to represent.

Eagleson also claims that Local 370’s collective-bargaining agreement seeks to
represent sheet metal workers. Again, however, this contention is belied by Local 370’s
organizing efforts and its demand for recognition. Moreover, the Respondent presented no
evidence of any jurisdictional disputes between the sheet metal workers and the plumbers, nor
evidence of the plumbers union claiming jobs performed by the sheet metal workers, either at
the Respondent or any other company. In short, the Respondent presented no evidence of
objective facts supporting “demonstrably probable consequences” upon which Eagleson’s threat
was made.

The cases cited by the Respondent to support its contention that Eagleson’s threat to
Ruddy did not unlawfully interfere with the employees’ Section 7 rights are inapposite. In
Airstream, Inc. v. NLRB, 877 F.2d 1291 (6th Cir. 1989), the employer told its employees about a
new job awareness program soon after the union filed an election petition. The court found that
the employer’s communications concerning the awareness program did not unlawfully interfere
with the employees’ Section 7 rights. However, the lawfulness of communications concerning a
benefit from an employer during an organizing drive is inapposite to the question in the present
case concerning the lawfulness of the employer’s threat of the loss of jobs should the union be
successful in an organizing drive.

Of course, the general proposition must be kept in mind: “an employer is free to
communicate to his employees any of his general views about unionism or any of his specific
views about a particular union, so long as the communications do not contain a ‘threat of
reprisal or force or promise of benefit.’” NLRB v. Gissel Packing Co., supra at 618. However, the
operative distinction between the present case and the cases relied on by the Respondent is
that Eagleson threatened his employees with the loss of jobs if Local 370 were selected to
represent the plumber employees, whereas none of the cases cited by the Respondent involved
a threat of job loss resulting from protected activity.

Thus, in Atlantic Forest Products, 282 NLRB 855 (1987), the Board found that speeches
made by the employer’s managers before an election did not threaten plant closure and the loss
of benefits in violation of Section 8(a)(1). A prominent fact relied on by the Board in reaching its
conclusion was that none of the speeches contained a direct threat of the adverse
consequences. In the present case, however, there was a direct threat: “If we let the Plumbers
come in here, it is going to take three or four of your men’s positions.” Accordingly, Atlantic

JD–93–04

5

10

15

20

25

30

35

40

45

50
16
Forest Products is not controlling and does not modify the well-established principle that the
threat of job loss because of organizing activity interferes with Section 7 rights.

In Blue Grass Industries, 287 NLRB 274 (1987), the Board found that a manager’s
reference to a separate company’s plant, that had shut down after a strike, did not constitute a
threat to close if the employees selected the union. There was no direct threat of adverse
consequences as there was in the present case. In Salvation Army Residence, 293 NLRB 944
(1989), the Board found that the employer’s statement that the union belonged to the Mafia was
protected by Section 8(c) as a privileged expression of opinion. In Sears, Roebuck & Co., 305
NLRB 193 (1991), the Board found the employer’s statement that the union might send
someone out to break employees’ legs to collect dues, although flip and intemperate, was an
expression of personal opinion protected by Section 8(c). The Board noted that to constitute a
threat the threatened action must be within the party’s power to carry out, whereas the alleged
threatened action by the employer was not ascribed to the employer, but to the union. The
Respondent cites Safety Kleen Oil Services, 308 NLRB 208 (1992) (miscited as “Troxel Co.”),
but this case lends no support to the Respondent’s position. In NLRB v. Pentre Electric, Inc.,
998 F.2d 363 (6th Cir. 1993), the employer stated that, based on the company’s customer base,
it would lose customers if the union were selected; however, the employer explained that the
company would still prosper. The court noted that “[t]he record is simply devoid of any evidence
that [the employer] suggested that Pentre might close its doors.” Id. at 370. Similarly, none of
the remaining cases cited by the Respondent, Beverly Enterprises, 310 NLRB 222 (1993),
Hampton Inn, 309 NLRB 942 (1992), and Flexsteel Industries, 311 NLRB 257 (1993), involved
direct threats of job loss or adverse consequences. Unlike these cases, the present case
involves a direct threat by the employer that three or four jobs would be lost if the union, Local
370, were selected as the plumbers’ representative.

The Respondent argues herein that Eagleson did not make a threat that three or four
jobs would be lost if Local 370 were selected to represent the plumbers. This factual argument
may explain the Respondent’s reliance on inapposite cases that did not involve such a threat.
Nevertheless, Ruddy was a credible witness, and his testimony regarding his meeting with
Eagleson has been credited. Moreover, it is apparent that Eagleson intended to provoke a clash
between the Sheet Metal Workers Union and Local 370, and his threat to Ruddy is consistent
with that intent.

In summary, the Respondent has failed to present objective facts to support the
demonstrably probable consequence, beyond the Respondent’s control, to justify or support its
threat that three or four jobs would be lost. Eagleson’s threat that such jobs would be lost if
Local 370 were selected to represent the Respondent’s plumbers is a threat that is not
protected by Section 8(c). For all of the foregoing reasons, Eagleson’s threat violates Section
8(a)(1).

5. Eagleson’s threat of adverse employment actions and
solicitation of grievances during his discussion with Rose

a. Threat

In his discussion with Rose in mid-August, Eagleson told Rose that, after Local 370’s
previous two unsuccessful organizing drives, he “eventually got rid of the [useless] sons of
bitches.” Rose then asked Eagleson if he considered Rose to be useless, and Eagleson replied,
“No, I hear you’re a good one.” The General Counsel argues that the implicit, unlawful threat in
Eagleson’s first statement was that Eagleson would also get rid of Rose for his current support
of Local 370. I disagree.

JD–93–04

5

10

15

20

25

30

35

40

45

50
17

The question is, considering all the circumstances of Eagleson’s statement, did it
reasonably tend to interfere with Rose’s Section 7 rights. Sunnyside Home Care Project, Inc.,
308 NLRB 346 (1992). The resolution of this question is difficult and is close. The statement
does not contain a direct threat. On the other hand, the statement does demonstrate, in a clear
and arguably threatening manner, Eagleson’s antiunion animus. The statement links, with no
justification or explanation, employees who support a union with useless “sons of bitches.”
Nevertheless, Eagleson assured Rose, immediately after this statement and in response to
Rose’s question, that he did not consider Rose to be useless. (Of course, the question by Rose
is evidence that he felt threatened by the statement. However, the immediate reassurance by
Eagleson would have eliminated Rose’s concern.) In the absence of other evidence to show
that the statement could reasonably be understood as a threat to discharge Rose for his union
support, I conclude the General Counsel has not sustained his burden of proof that the
statement constituted an unlawful threat. Accordingly, I will recommend that this charge be
dismissed.

b. Solicitation of grievances

An employer interferes with the Section 7 rights of employees by soliciting employee
grievances and promising to remedy them during a union organizational campaign. Safety
Kleen Oil Services, supra at 209. In addition, when an employer institutes a new practice of
soliciting employee grievances during a union organizational campaign, “there is a compelling
inference that he is implicitly promising to correct those inequities he discovers as a result of his
inquiries and likewise urging on his employees that the combined program of inquiry and
correction will make union representation unnecessary.” Embassy Suites Resort, 309 NLRB
1313, 1316 (1992), citing Reliance Electric Co., 191 NLRB 44, 46 (1971).

At the end of the mid-August meeting, Eagleson told Rose, “If you have any problems
with this company, I’m the President . . . you need to discuss these with me.” This was a change
from the previous policy of the Respondent for handling employee complaints. The previous
policy required the employee to initially go to the immediate supervisor before going to
Eagleson. Eagleson’s solicitation of complaints or problems from Rose through a new
procedure interfered with Rose’s Section 7 rights. House of Raeford Farms, 308 NLRB 568, 569
(1992) (“It is well established, however, that an employer cannot rely on past practice to justify
solicitation of employee grievances if the employer significantly alters its past manner and
methods of solicitation during the union campaign.”) Accordingly, the Respondent violated
Section 8(a)(1) of the Act through Eagleson’s unlawful solicitation of complaints from Rose in
mid-August.

6. Prohibition against wearing shirts with union insignia

The right to wear union insignia at work has long been recognized. Republic Aviation
Corp. v. NLRB, 324 U.S. 793 (1945). In the absence of special circumstances, a restriction on
the wearing of union buttons or insignia constitutes a violation of Section 8(a)(1). Virginia
Electric & Power Co., 260 NLRB 408 (1982). Mere contact with customers or other persons is
not a special circumstance. Id.

When Kristie Eagleson directed Rose to remove his union shirt, she told him that she
did not want the contractor to think that the Respondent was paying union wage. However, the
Respondent has failed to establish the reasonableness, much less the probability, of such an
inference by a contractor or anyone else. Moreover, even if a contractor were to make such an
inference, the Respondent failed to show how this inference would be detrimental in any way.

JD–93–04

5

10

15

20

25

30

35

40

45

50
18
Indeed, it seems just as likely to generate a favorable reaction as an unfavorable one, but it is
not necessary to speculate because the Respondent has failed to offer any proof on the matter.

For the same reason, it is not necessary to decide whether the Respondent’s desire to
have contractors believe that it does not pay union scale constitutes a “special circumstance”
exempting the Respondent’s alleged clothing restriction from the general right of employees to
wear union insignia recognized in Republic Aviation. See NLRB v. Harrah’s Club, 337 F.2d 177
(9th Cir. 1964); United Parcel Service, 195 NLRB 441 (1972). However, it should be noted that,
especially in light of there being no requirement to wear uniforms and the Respondent’s
allowance of many other logos on employees’ work t-shirts, this case does not involve a claim of
presenting to contractors or to the public an image of neatly uniformed workers. See United
Parcel Service, Inc., supra.

The Respondent argues that the violation, if any, was de minimus. Supporting this
argument is the fact that Rose had intended to remove his union shirt before starting work.
Nevertheless, this violation is more than a mere technicality. Rose was allegedly directed to
remove his union shirt in accordance with the Respondent’s policy, yet the Respondent has not
yet rescinded or modified that policy. Moreover, this violation was one of several violations
committed by the Respondent after Local 370 told Eagleson and showed Eagleson that all his
plumbing employees had signed authorization cards. The Respondent’s de minimus contention
is rejected.

The Respondent claims that it has had a policy for many years prohibiting the wearing of
clothing that has religious, political, offensive sayings, or offensive pictures. However, the
Respondent has not explained how a shirt that displays a union insignia fits within one of these
prohibited categories. A shirt bearing only a union’s insignia does not contain religious, political,
or offensive sayings or offensive pictures. Thus, either Rose’s union shirt did not violate the
Respondent’s work clothing policy, leading to the inference that the policy was unlawfully
enforced against Rose because he had recently joined Local 370 in the midst of an organizing
campaign. Or, Rose’s union shirt did violate the Respondent’s work clothing policy, as the
Respondent claims, leading to the conclusion that the policy and the enforcement of the policy
violate the Act. In either event, the Respondent’s direction to Rose to remove his union shirt
interfered with his Section 7 rights, and violated Section 8(a)(1).

7. Interrogation

Questions concerning union sympathies in the context of a job application interview are
inherently coercive, and are violative of Section 8(a)(1), even when the interviewee is
subsequently hired. Rochester Cadet Cleaners, Inc., 205 NLRB 773 (1973).

When Lawrence reported to the Respondent’s in late August for a job interview, he first
met with Welsh and was then brought to Eagleson’s office. Eagleson asked Lawrence how he
felt about unions. Lawrence replied that there were pros and cons, an answer he felt Eagleson
wanted to hear. Eagleson’s question is inherently coercive and violates Section 8(a)(1).

Moreover, if all the circumstances of the interrogation of Lawrence were considered, the
result would not change. The test of whether an unlawful interrogation has occurred is whether,
under all the circumstances, the alleged interrogation reasonably tends to restrain, coerce, or
interfere with the employees in the exercise of rights guaranteed by the Act. Rossmore House,
269 NLRB 1176 (1984), affd. sub nom. Hotel Employees Local 11 v. NLRB, 760 F.2d 1006 (9th
Cir. 1985). In making this determination, all of the surrounding circumstances must be
considered. Either the words themselves or the context in which they are used must suggest an

JD–93–04

5

10

15

20

25

30

35

40

45

50
19

element of coercion or interference. Id. Relevant circumstances include the time and place of
the interrogation, the method used, the personnel involved, the nature of the information sought,
the known position of the employer, whether the employee was given assurances that there
would be no reprisals, whether a valid purpose for the interrogation was communicated to the
employee, the truthfulness of the employee’s response, and whether the person being
questioned is an open union adherent. Performance Friction Corp., 335 NLRB 1117 (2001),
citing Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964); Rossmore House, supra; Sunnyvale Medical
Clinic, 277 NLRB 1217 (1985).

The place of Eagleson’s interrogation of Lawrence was Eagleson’s office. Eagleson is
the Respondent’s president and owner. No valid purpose was communicated to Lawrence.
There is no evidence of whether Lawrence knew Eagleson’s feelings about unions, although
Eagleson did say to Lawrence that if he wanted to join the Sheet Metal Workers Union,
Eagleson would help. Of course, Lawrence was applying for a plumbing position and would not
be a member of the sheet metal workers bargaining unit. Lawrence was given no assurances
that there would be no reprisals, and Lawrence was not an open union adherent. Lawrence did
not say whether his answer was truthful, but truthfulness was not Lawrence’s concern. His only
concern was to give Eagleson an answer he felt Eagleson wanted.

Under all the circumstances, the factors weigh in favor of a conclusion that Eagleson’s
questioning Lawrence as to how he felt about unions was coercive. Indeed, the circumstances
of Eagleson’s interrogation of Lawrence about Lawrence’s union sympathies were inherently
coercive. Accordingly, Eagleson’s interrogation of Lawrence violated Section 8(a)(1) of the Act.

B. Section 8(a)(1) and (3)

1. The union members who applied for
the advertised plumber opening

To establish a discriminatory refusal-to-hire in violation of Section 8(a)(3) of the Act, the
General Counsel must prove the following: (1) the Respondent was hiring or had concrete plans
to hire; (2) the applicants had experience or training relevant to the announced requirements of
the position for hire or the requirements were applied as a pretext for discrimination; and (3)
antiunion animus contributed to the decision not to hire the applicants. FES, 331 NLRB 9, 12
(2000). Once this is established, the burden shifts to the Respondent to show that it would not
have hired the applicants even in the absence of their union affiliation. “If the respondent asserts
that the applicants were not qualified for the positions it was filling, it is the respondent’s burden
to show, at the hearing on the merits, that they did not possess the specific qualifications the
position required or that others (who were hired) had superior qualifications, and that it would
not have hired them for that reason even in the absence of their union support or activity.” Id.

The Respondent does not expressly concede, but nor does it dispute, that the General
Counsel has satisfied the above three elements establishing a violation of Section 8(a)(3).12
Rather, the Respondent argues that it would have refused to hire the union applicants without
12 Eagleson testified that he is not sure whether he needed plumbers on the date the
advertisement appeared in the newspaper. Nevertheless, the Respondent did not assert this as
a reason why he did not hire the union applicants. Moreover, whether or not Eagleson is
presently sure he needed plumbers when the advertisement appeared, the fact remains that he
advertised for a plumber on that date and spent $382.92 doing so.

JD–93–04

5

10

15

20

25

30

35

40

45

50
20

regard to their union affiliation. Accordingly, it is only necessary to briefly consider the three
elements of the General Counsel’s prima facie case.

Element 1. On August 17, the date of the Respondent’s advertisement in the Flint
Journal, the Respondent had concrete plans to hire at least one journeyman plumber. This is
shown by the Respondent’s advertisement, which prominently listed an opening for a
journeyman plumber. Moreover, the Respondent did hire two journeymen plumbers in October
(although the need to hire two, rather than one, plumbers may have arisen after the Respondent
discharged Rose in September.)13 The only qualification listed in the advertisement was a state
(journeyman) license. Element 2. On August 18, seven qualified, journeymen plumbers applied
for the available, journeymen plumber position(s) at the Respondent (consisting of the eight
applicants, less the application of Young, who the General Counsel did not prove was a
journeyman plumber). On August 19, four qualified, journeymen plumbers applied for the
available, journeymen plumber position(s) (consisting of the five applicants, less the application
of Wheeler, who the General Counsel did not prove was a journeyman plumber). On October 2,
one qualified, journeymen plumbers applied for the available, journeymen plumber position(s) at
the Respondent (consisting of the three applicants, less the application of Nelson, who the
General Counsel did not prove was a journeyman plumber, and the application of Gallant who
was only available for part-time work). All of these 12 applicants were members of Local 370
and they all met the single, publicly announced requirement for the position—a state license.
See GM Electrics, 323 NLRB 125, 128 fn. 13 (1997), cited in FES, supra at 12. Element 3. The
Respondent knew the applicants were union members, and it does not argue otherwise. The
Respondent’s antiunion animus is established by all the facts set forth herein, and especially
Eagleson’s statement to Ranger that he would never sign an agreement with Local 370 and that
he would go out of business before he would do so, as well as Eagleson’s statement to Rose in
which he called union members useless “sons of bitches.”

The Respondent argues that it refused to hire the union applicants for various, non-
discriminatory reasons, and these alleged reasons are incorporated, in a shotgun approach, in
the Respondent’s answer to the complaint in this proceeding. For example, the Respondent
asserts that 10 applicants (Cahill, Connor, McDermitt, Slattery, Morris, Steco, Young, Herriman,
Mobilio, and Wheeler) were not considered because their applications were not filled out in the
Respondent’s building. However, there was no such requirement or condition when these
applicants submitted their applications, and the Respondent did not tell the applicants of any
such requirement. Moreover, there is no evidence that any other applications, much less the
applications of Blasdell, Liddell, and Crosno, were completed or were required to be completed
in the Respondent’s building.

The Respondent claims that certain applications (Cahill, Connor, McDermitt, and
Slattery) were not considered because the applicants did not answer or did not follow
instructions in answering the questions in the application relating to general knowledge.
However, Blasdell, Lawrence, and Crosno also did not answer the general knowledge
questionnaire. Moreover, Liddell failed to answer many of the questions in the questionnaire,
and answered the questionnaire in the same, supposedly wrong, way as Cahill, Connor,
13 On August 17, the Respondent also had concrete plans to hire two plumber’s helpers or
apprentices, which is proven by the hiring of Lawrence in late August and Crosno in October.
The hiring of two plumber’s apprentices corroborates the determination that the Respondent
had concrete plans to hire at least one journeyman plumber because, under state law, an
apprentice is required to work with a licensed plumber. Therefore, two apprentices would be
available to work with the Respondent’s expected complement of two journeymen plumbers.

JD–93–04

5

10

15

20

25

30

35

40

45

50
21

McDermitt, and Slattery.14 In addition, Rose, who was hired in January 2003, completed his
application in the same, supposedly wrong and disqualifying, manner.

The Respondent claims that certain applicants (Cahill, Connor, McDermitt, Slattery,
Steco, Morris, Young, Herriman, Wheeler, and Nelson) failed to state in their applications that
they had residential, as opposed to commercial, plumbing experience. First, no such
requirement or preference was listed in the Respondent’s advertisement for the position.
Second, the Respondent’s application does not ask the applicant to differentiate between or to
highlight residential and commercial plumbing experience. Third, every applicant from Local 370
listed experience on his application with a plumbing contractor who performed residential as
well as commercial plumbing.

The Respondent claims that the applications of Backlund, Herriman, and Wise were not
considered because their applications stated that they were currently working, and the
Respondent (allegedly) does not hire plumbers who are currently working. (GC Exh. 1(t); Tr.
339.) However, the applications of Rose, Lawrence, and Liddell state that they were then
currently working, and the Respondent did not reveal any hesitancy in hiring them. (GC Exh. 23,
34; R Exh. 10.) The Respondent also claims that the applications of several union members
were not considered because references were not provided in the applications. However,
Blasdell and Liddell also failed to list references in their applications.

The Respondent argues that it hired Blasdell and Liddell as journeymen plumbers
because they were former employees and their work had been satisfactory. However, Slattery
had also worked for the Respondent in the past, and there was no evidence that the
Respondent was dissatisfied with his work. Moreover, the Respondent’s argument does not
answer why it had previously—long before it hired Blasdell and Liddell—refused to hire any of
the union applicants. The Local 370 plumbers applied for the Respondent’s advertised plumbing
position the day after the advertisement appeared in the newspaper. The Respondent failed to
contact any of the union applicants, and it waited almost 2 months before soliciting Blasdell and
hiring Blasdell and Liddell. It is reasonable to infer that the Respondent wanted and needed the
plumbers for which it advertised when the advertisement appeared. There was no apparent
need to delay approximately 2 months in hiring plumbers, especially after so many qualified
plumbers had applied for the job the day after the advertisement appeared. Moreover, if the
Respondent had a practice or policy or preference of hiring plumbers that it had previously
employed, there was no need for it to incur the expense of the advertisement ($382.92) or to
spend the time in distributing, receiving, processing, and reviewing other applications. In fact,
the Respondent’s interest in hiring plumbers it formerly employed is a pretext that only arose
after the Respondent received the applications from the qualified plumbers who were members
of Local 370, the union that was seeking to represent the Respondent’s plumbing employees.

Steco and Cahill are master plumbers, whereas Blasdell and Liddell are journeymen
plumbers. This is affirmative proof the superior qualifications of Steco and Cahill. In addition, the
experience of the 12 union plumbers ranged from a minimum of 7 years (Connor and Solarz) to
almost 50 years (Steco). The union plumbers had experience in both commercial and residential
plumbing. Steco and Eagleson attended the same apprentice plumbing classes together in 1965
and have been friends since that time.

14 These applicants, as well as Liddell, placed check marks next to listed plumbing
categories in which they had experience. The questionnaire instructed the applicant to state
“yes or no.”

JD–93–04

5

10

15

20

25

30

35

40

45

50
22
The Respondent’s explanations for its refusal to hire any of the Local 370 applicants are
not credible, do not withstand factual analysis, and are belied by its actions in hiring Blasdell
and Liddell. In short, the Respondent’s reasons for its refusal to hire, or to even interview or
contact, any of the 12 qualified plumbers who applied for the advertised position are pretextual.
Accordingly, the inference of wrongful motive established by the General Counsel remains
intact. Limestone Apparel Corp., 255 NLRB 722 (1981). The Respondent violated Section
8(a)(3) and (1) of the Act in its refusal to hire any of the union applicants for its advertised
plumber position.

2. Discharge of Rose

Under the test set forth 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 (1983), when the employer is alleged to have violated Section 8(a)(3) in
discharging an employee, the General Counsel has the burden of proving by a preponderance
of the evidence that antiunion sentiment was a motivating factor in the discharge. To meet this
burden, the General Counsel must offer credible evidence of union or other protected activity,
employer knowledge of this activity, and the existence of antiunion animus. Briar Crest Nursing
Home, 333 NLRB 935 (2001). Once such unlawful motivation is shown, the burden shifts to the
employer to prove its affirmative defense that the alleged discriminatory conduct would have
taken place even in the absence of the protected activity. Id.; Wright Line, supra. If the
employer’s stated motive is found to be false, the circumstances may warrant an inference that
the true motive is an unlawful one. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470
(9th Cir. 1966). Nevertheless, the employer’s defense does not fail simply because not all of the
evidence supports it, or even because some evidence tends to negate it. Merrilat Industries, 307
NLRB 1301, 1303 (1992). The ultimate burden of proving discrimination always remains with the
General Counsel. Wright Line, supra.

The evidence presented to satisfy the General Counsel’s initial burden must be analyzed
separately from the evidence presented in the Respondent’s defense. Pace Industrial, 320
NLRB 661 (1996), enfd. 118 F.3d 585 (8th Cir. 1997). Nevertheless, an employer’s stated
reasons for an adverse employment action against an employee can be considered as a part of
the General Counsel’s initial burden, and if those reasons are pretextual, they can support an
inference that the employer had an unlawful motive. Black Entertainment Television, 324 NLRB
1161 (1997). The entire record may be examined to ascertain whether the adverse employment
action was motivated by protected activity. Thus, in determining whether the evidence
presented has satisfied the General Counsel’s initial burden, the evidence is not limited to the
evidence introduced by the General Counsel, but can also include the reasons advanced by the
Respondent for the discharge and any additional evidence offered at the hearing by the
Respondent. American Gardens Management Co., supra at fn.5; Williams Contracting, 309
NLRB 433 (1992).

Rose engaged in protected or union activity by signing an authorization card for Local
370. The Respondent knew of his protected activity because Rose’s signed card was shown to
and read by Eagleson on August 4. In addition, Rose later wore a union shirt to work that Kristie
Eagleson directed him to remove. Antiunion animus is shown, inter alia, by Eagleson’s
statement to Ranger that he would never sign an agreement with the Union and by Eagleson’s
derogatory comment to Rose about union members. The Respondent’s commission of 8(a)(1)
violations also demonstrates animus. Greyston Bakery, 327 NLRB 433 (1999). Accordingly, the
General Counsel has established that Rose’s discharge was motivated by an unlawful purpose
prohibited by Section 8(a)(3).

JD–93–04

5

10

15

20

25

30

35

40

45

50
23
In defense, the Respondent argues that its discharge of Rose was not discriminatory
because it did not “discharge” Rose. Rather, the Respondent claims that it simply refused to
allow Rose to rescind his alleged voluntary resignation. This argument is based on facts that
have not been found in this case and that have been specifically rejected. Accordingly, the
Respondent’s defense is rejected.

Notwithstanding, even if its factual argument were accepted, the Respondent’s defense
does not prove enough because if Rose had voluntarily resigned, the question remains, what
was the Respondent’s motivation for refusing to allow Rose to rescind his resignation. See
Merrow Machine Co., 337 NLRB 421 fn. 1 (2002). Rose’s use of his truck in going to the Union’s
offices on his way home from his job in Clarkston would not justify the Respondent’s action. This
is seen from the Respondent’s initial decision to take back Rose’s truck, rather than discharge
him, in imposing discipline for Rose’s unauthorized use of the truck. Moreover, the Respondent
did not discharge other employees when they engaged in similar conduct.

The Respondent claims that, on September 25, Welsh told Rose that the Respondent
would not allow Rose to rescind his resignation because of performance problems Rose had in
a job in Williamston about 1 week previously. Rose denies that Welsh told him of any
performance problems, and Rose is a more credible witness. In any event, the Respondent’s
claim is itself not credible. Rose had worked for the Respondent since January. The only job
that Welsh could identify where Rose allegedly had a performance problem was the Williamston
job, and this job was done within about 1 week of the day Rose was discharged. Moreover, if
performance was actually a problem in Rose’s employment, it would likely have been
documented or mentioned to Rose while he was employed. But it was not. The evidence in this
case, especially when considered with the Respondent’s antiunion animus, compels the
conclusion that the issue of a performance problem is an issue the Respondent contrived after
Rose was discharged.

The pretextual and mendacious nature of the Respondent’s explanation for its
termination of Rose is also seen in Welsh’s statement to Rose that he (Welsh) knew Rose was
not happy working for the Respondent. Rose had never said this to Welsh or Eagleson, and he
had done nothing to substantiate this contrived claim. Rather, Welsh was seeking Rose’s
concurrence so that Rose’s imminent discharge would seem less harsh, or even consistent with
Rose’s wishes. Pretext is also seen in the charade instigated by Welsh and Eagleson regarding
Rose’s alleged resignation. Rose had not told Welsh that he quit. Rather, Welsh and Eagleson,
knowing they wanted to discharge Rose, but lacking a justifiable reason for doing so, pretended
Rose had told Welsh that he quit. Then, when Rose came to work on Monday, September 29,
and knowing nothing of Welsh’s and Eagleson’s contrivance, he was surprised to hear Welsh
talk about his resignation. Although Rose protested that he had never resigned, Welsh
continued the charade and told Rose that his resignation was accepted. In any event, Welsh’s
statement to Rose does not alter the substance or the nature of the Respondent’s action, which
was the discharge of Rose.

Because the reasons advanced by the Respondent for its discharge of Rose are false
and a pretext for its actual motive in taking that action, the Respondent necessarily did not rely
on those reasons in taking its action. Accordingly, there is no need to further address these
reasons because a finding of pretext “leav[es] intact the inference of wrongful motive
established by the General Counsel.” Limestone Apparel Corp., 255 NLRB 722 (1981). The
Respondent’s discharge of Rose violated Section 8(a)(3) and (1) of the Act.

JD–93–04

5

10

15

20

25

30

35

40

45

50
24
C. Gissel bargaining order

An employer may be directed to bargain with a union that has not been certified by the
Board in two categories of cases. The first category comprises “’exceptional’ cases marked by
‘outrageous’ and ‘pervasive’ unfair labor practices.” NLRB v. Gissel Packing Co., 395 U.S. 575,
613–614 (1969). The second category (category II) includes “less extraordinary cases marked
by less pervasive practices which nonetheless still have the tendency to undermine majority
strength and impede the election processes,” and where at one point the union had majority
support in the bargaining unit. . . . If the Board finds that the possibility of erasing the effects of
past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies,
though present, is slight and that employee sentiment once expressed through cards would, on
balance, be better protected by a bargaining order, then such an order should issue.” Id. at 614–
615.

“Certain violations have been regularly regarded by the Board and the courts as highly
coercive. These are the so-called ‘hallmark’ violations and their presence will support the
issuance of a bargaining order unless some significant mitigating circumstance exists.” NLRB v.
Jamaica Towing Co., 632 F.2d 208, 212 (2d Cir. 1980). The discharge of an employee because
of union activity is such a hallmark violation and “is one of the most flagrant means by which an
employer can hope to dissuade employees from selecting a bargaining representative because
no event can have more crippling consequences to the exercise of Section 7 rights than the loss
of work.” Mid-East Consolidation Warehouse, 247 NLRB 552, 560 (1980).

The lasting effect of an employer’s unfair labor practices is heightened when the
bargaining unit is small. As the Board noted in River West Development, 311 NLRB 591 fn. 1
(1993), “Particularly in a small unit, the impact of discharging one-third of the unit [one of three
unit employees was discharged] has a greater effect and is likely to chill Sec. 7 rights in the
entire unit.” The chilling effect of the Respondent’s discharge of Rose in the present case is
greater than in River West Development because Rose represented 50 percent of the
employees in the unit.

The coerciveness and lasting effect of the employer’s actions is also magnified when
high management officials commit the unfair labor practices. Debbie Reynolds Hotel, 332 NLRB
466 (2000). In the present case, the Respondent’s plumbing manager/sales manager, the
Respondent’s president and owner, and the owner’s daughter committed the unfair labor
practices. Thus, the Respondent’s highest management complement and entire ownership
undertook and participated in unfair labor practices that demonstrated the Respondent’s attitude
toward the union and toward organizing efforts on behalf of the union. Such actions have a
“tendency to undermine majority strength and impede the election process.” Cassis
Management Corp., 323 NLRB 456, 460 (1997).

Although Rose is entitled to reinstatement and backpay, these remedies would not erase
the coercive effect of the Respondent’s conduct. In light of the small size of the bargaining unit,
the unit employees, whether they constitute one or more employees, will likely know about his
discharge and the underlying message. River West Development, supra. Moreover, Rose would
not likely risk another period of unemployment “by engaging in further attempts to improve [his]
working conditions, in the absence of a bargaining order.” Cassis Management Corp, supra.
The ownership and management of the Respondent remains the same as when Rose was
unlawfully discharged, which “can serve only to reinforce in the minds of the employees the
lingering effects of the Respondent’s violations.” State Materials, Inc., 328 NLRB 1317 (1999).

JD–93–04

5

10

15

20

25

30

35

40

45

50
25
The Respondent’s unfair labor practices other than its hallmark violation of discharging a
union supporter also contribute to the coercive and durable effects of its conduct. Thus, the
Respondent’s coercive interrogation of an applicant for a plumber’s position regarding his
feelings about unions and the Respondent’s threat to discharge and discipline employees for
honoring a picket line are actions that the employees are likely to remember.

The possibility of erasing the effects of the Respondent’s unfair labor practices by
applying traditional remedies and conducting a fair election is slight. In addition, a bargaining
order is necessary to protect the free expression of employee sentiment as evidenced by the
authorization cards. Accordingly, a bargaining order is warranted under category II of the Gissel
standard.

Conclusions of Law

1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.

2. The Union is a labor organization within the meaning of Section 2(5) of the Act.

3. The Respondent violated Section 8(a)(1) of the Act by threatening to discipline and
discharge its employees for honoring a picket line at its facility; by unlawfully photographing its
employees who were engaged in picketing; by threatening to discharge employees if the Union
were selected to represent its plumbing employees; by unlawfully soliciting complaints from its
employees and changing the manner in which complaints are handled during the Union’s
organizing drive; by unlawfully prohibiting the wearing of shirts with union insignia; and by
unlawfully interrogating a job applicant concerning his viewpoint on unions.

4. The Respondent violated Section 8(a)(1) and (3) of the Act by unlawfully refusing to
hire and to consider for hire the 12 union applicants for the position of journeyman plumber.

5. The Respondent violated Section 8(a)(1) and (3) of the Act by unlawfully discharging
Wayne Rose.

6. The following employees of the Respondent constitute a unit appropriate for
bargaining within the meaning of Section 9(b) of the Act:

All full-time and regular part-time journeymen plumbers, plumber
apprentices, and plumber helpers engaged in the fabrication, installation,
and service of plumbing equipment employed by Respondent at its facility
located at 4040 E. Bristol Road, Burton, Michigan; but excluding all office
clerical employees, professional employees, guards and supervisors as
defined in the Act, and all employees currently included in the bargaining
unit represented by Sheet Metal Workers International Union, Local Union
No. 7.

7. At all times since August 4, 2003, and continuing to the present date, the Union has
been the exclusive representative of all the employees within the appropriate unit for purposes
of collective bargaining.

8. By engaging in the above-described violations of Section 8(a)(1) and (3), the
Respondent has undermined the majority strength of the Union and has impeded the election
processes.

JD–93–04

5

10

15

20

25

30

35

40

45

50
26

9. The unfair labor practices found herein are sufficiently pervasive, and have the
tendency to undermine the Union’s majority strength and to impede the election processes, as
to warrant a remedial order requiring the Respondent to recognize and bargain with the Union
as the exclusive collective-bargaining representative of the Respondent’s employees in the
above-described appropriate unit.

10. The unfair labor practices set forth above affect commerce within the meaning of
Section 2(6) and (7) of the Act.

Remedy

Having found that the Respondent has engaged in certain unfair labor practices, it must
be ordered to cease and desist and to take certain affirmative action designed to effectuate the
policies of the Act.

Having found that the Respondent has engaged in substantial and pervasive unfair labor
practices calculated to destroy the Union’s majority status, that traditional remedies for such
unfair labor practices are unlikely to eliminate their lingering and coercive effects, and that the
chances of holding a fair election are slight, I shall recommend that the Respondent be required
to recognize and bargain with the Union as the exclusive collective-bargaining representative of
its employees in the appropriate unit.

Having found that the Respondent unlawfully refused to hire one of the applicants for the
available journeyman plumber position for which the Respondent advertised in the Flint Journal
on August 17, 2003, it is ordered that the Respondent shall offer one of the applicants, listed
below, immediate employment in that position, and that such applicant be made whole for any
loss of earnings and other benefits suffered as a result of the discrimination against him in
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in
accordance with New Horizons for the Retarded, 283 NLRB 1173 (1987):

Maurice Cahill, Jermaine Connor, Gerald Cox, David McDermitt, Michael Morris,
Dennis Slattery, Jack Steco, Eric Backlund, Michael Herriman, Scott Mobilio,
William Wise, and Chester Solarz.

Having found that the Respondent unlawfully discharged Wayne Rose, I shall order that
the Respondent offer him reinstatement and make him whole for any loss of earnings and other
benefits in accordance with F. W. Woolworth Co., supra, plus interest in accordance with New
Horizons for the Retarded, supra.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended15

15 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.

JD–93–04

5

10

15

20

25

30

35

40

45

50
27
ORDER

The Respondent, Center Construction Company, Inc., d/b/a Center Service System
Division, Burton, Michigan, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Failing and refusing to consider for hire, and refusing to hire, job applicants on
the basis of their union affiliation or other protected activities.

(b) Discharging or otherwise discriminating against any employee on the basis of
the employee’s union affiliation or other protected activity.

(c) Threatening to discipline or to discharge its employees for honoring a picket
line at its facility.

(d) Threatening to discharge its employees if its employees select United
Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL–CIO (the Union) to represent them.

(e) Photographing its employees who are engaged in protected activities.

(f) Soliciting complaints from its employees or changing the manner in which
complaints are handled while a union is conducting an organization drive.

(g) Prohibiting its employees from wearing shirts with union insignia.

(h) Interrogating applicants for employment concerning their viewpoints on
unions.

(i) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) On request, bargain with the Union as the exclusive representative of the
employees in the following appropriate unit concerning terms and conditions of employment
and, if an understanding is reached, embody the understanding in a signed agreement:

All full-time and regular part-time journeymen plumbers, plumber
apprentices, and plumber helpers engaged in the fabrication, installation,
and service of plumbing equipment employed by Respondent at its facility
located at 4040 E. Bristol Road, Burton, Michigan; but excluding all office
clerical employees, professional employees, guards and supervisors as
defined in the Act, and all employees currently included in the bargaining
unit represented by Sheet Metal Workers International Union, Local Union
No. 7.

(b) Within 14 days from the date of this Order, the Respondent shall offer
immediate employment to one of the discriminatees from the following list without prejudice to
the discriminatee’s seniority or any other rights or privileges he would have enjoyed had the
Respondent hired him when he applied. If the position for which this discriminatee should have

JD–93–04

5

10

15

20

25

30

35

40

45

50
28

been hired no longer exists, the Respondent shall offer him immediate employment in a
substantially equivalent position without prejudice to his seniority or any other rights or privileges
he would have enjoyed had the Respondent hired him when he applied.

Maurice Cahill, Jermaine Connor, Gerald Cox, David McDermitt, Michael Morris,
Dennis Slattery, Jack Steco, Eric Backlund, Michael Herriman, Scott Mobilio,
William Wise, and Chester Solarz.

(c) Make the selected discriminatee whole for any loss of earnings and other
benefits suffered as a result of the discrimination against him as set forth in the remedy section
of this decision.

(d) Within 14 days from the date of this Order, remove from its files any reference
to the unlawful refusal to hire any of the 12 discriminatees set forth in paragraph (a) above, and
within 3 days thereafter notify them in writing that this has been done and that the refusal to hire
them will not be used against them in any way.

(e) Within 14 days from the date of this Order, offer Wayne Rose full
reinstatement 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.

(f) Make Wayne Rose whole for any loss of earnings and other benefits suffered
as a result of the discrimination against him in the manner set forth in the remedy section of the
decision.

(g) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of such
records 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 Burton,
Michigan copies of the attached notice marked “Appendix.”16 Copies of the notice, on forms
provided by the Regional Director for Region 7, after being signed by the Respondent's
authorized representative, shall be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive 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 covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and former employees employed by
the Respondent at any time since August 4, 2003.

16 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”

JD–93–04

5

10

15

20

25

30

35

40

45

50
29
(i) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.

IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.

Dated, Washington, D.C. September 21, 2004

Joseph Gontram
Administrative Law Judge
JD–93–04
Flint, MI

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT refuse to hire or fail and refuse to consider for hire job applicants on the basis of
their union affiliation or other protected activities.

WE WILL NOT discharge or otherwise discriminate against any employee on the basis of the
employee’s union affiliation or other protected activity.

WE WILL NOT threaten to discipline or discharge any employee for honoring a picket line at our
facility.

WE WILL NOT threaten to discharge employees if they select United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and
Canada, AFL–CIO (the Union) to represent them.

WE WILL NOT unlawfully photograph employees who are engaged in picketing.

WE WILL NOT solicit complaints from employees or change the manner in which complaints
are handled while a union is conducting an organization drive at our facility.

WE WILL NOT prohibit employees from wearing shirts with union insignia.

WE WILL NOT interrogate applicants for employment concerning their viewpoints on unions.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7 of the Act.

WE WILL, on request, bargain with the Union and put in writing and sign any agreement
reached on terms and conditions of employment for or employees in the bargaining unit.

WE WILL, within 14 days from the date of the Board’s Order, offer Wayne Rose full
reinstatement 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.

JD–93–04
Flint, MI

WE WILL make Wayne Rose whole for any loss of earnings and other benefits resulting from
his discharge, 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 Wayne Rose, and WE WILL, 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.

WE WILL, within 14 days from the date of the Board’s Order, offer one of the 12 discriminatees
listed below full instatement to the journeyman plumber position to which that person applied in
response to our advertisement in the Flint Journal on August 17, 2003 or, if that job no longer
exists, to a substantially equivalent position, without prejudice to his seniority or any other rights
or privileges he would have enjoyed had he been hired when he applied.

Maurice Cahill, Jermaine Connor, Gerald Cox, David McDermitt, Michael
Morris, Dennis Slattery, Jack Steco, Eric Backlund, Michael Herriman,
Scott Mobilio, William Wise, and Chester Solarz

WE WILL make the applicant who is offered the journeyman plumber position whole for any loss
of earnings and other benefits resulting from our failure and refusal to hire him, less any net
interim earnings, plus interest.

WE WILL within 14 days from the date of this Order, remove from our files any reference to the
unlawful refusal to hire any of the discriminatees, and WE WILL, within 3 days thereafter, notify
them in writing that this has been done and that the refusal to hire them will not be used against
them in any way.

Center Construction Company, Inc., d/b/a Center
Service System Division
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Room 300, Detroit, MI 48226-2569
(313) 226-3200, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (313) 226-3244.