Chariot Marine Fabricators Corp.

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 339 (N.L.R.B. 2001)

CHARIOT MARINE FABRICATORS 339
Chariot Marine Fabricators & Industrial Corp. and
Mariah Boats, Inc., Single Employer and/or Al-
ter Egos and Southern Illinois Laborers District
Council affiliated with Laborers’ International
Union of North America, AFL–CIO

Mariah Boats, Inc. and Steve Danner and Southern
Illinois Laborers District Council affiliated with
Laborers’ International Union of North Amer-
ica, AFL–CIO. Cases 14–CA–24551, 14–CA–
24728–4, and 14–CA–24965
August 27, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
TRUESDALE AND WALSH
On April 23, 1999, Administrative Law Judge C.
Richard Miserendino issued the attached decision. The
Respondent filed exceptions and a supporting brief and
the General Council filed cross-exceptions and a support-
ing brief. Thereafter, the Respondent and the General
Counsel each filed answering briefs and reply briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs1 and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt his recommended Order as modifed.3

1 The Respondent filed a motion to strike certain of the General
Counsel’s cross-exceptions on the ground that they fail to comply with
Sec. 102.46(b) of the Board’s Rules and Regulations in that they do not
identify the part of the judge’s decision to which objection is made and
do not designate page citations to the record. We find that the General
Counsel’s cross-exceptions sufficiently identify the portions of the
judge’s decision the General Counsel claims are erroneous. See, e.g.,
Fiber Industries, 267 NLRB 840 fn. 2 (1984); Giddings & Lewis, Inc.,
240 NLRB 441 fn. 2 (1979). Accordingly, we deny the Respondent’s
motion to strike the cross-exceptions.
The General Counsel moved to strike the declaration of one of the
Respondent’s attorneys and a proposed settlement agreement, docu-
ments which the Respondent submitted to the Board as attachments to
its exceptions. We find merit in the General Counsel’s motion and
strike these documents. As to the declaration, which contains the attor-
ney’s recollections of pretrial telephone conversations between the
parties and the judge and between the attorney and the investigating
Board agent, the Respondent failed to introduce this document into
evidence at the hearing and thus it never became a part of the record.
See Lear Siegler, Inc., 295 NLRB 857, 862 fn. 34 (1989). As to the
settlement agreement, which the Region proposed to the parties prior to
the issuance of the complaint in this case, it is well-settled that offers of
settlement are generally not admissible. See Fed.R.Evid. 408. More-
over, the settlement agreement was never offered into evidence and
never became part of the record.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.

The judge found that Chariot Marine and Mariah Boats are not alter
egos. We decline to pass on this issue as it is immaterial to the resolu-
tion of this case.
The judge dismissed the complaint allegation that the Respondent
violated Sec. 8(a)(1) by photographing Chariot employees at the April
30, 1997 union meeting held at the Chariot facility. No exceptions
were filed to the judge’s dismissal of this allegation.
In adopting the judge’s finding that the credible evidence supports a
reasonable inference that the Respondent’s closing of its Chariot Ma-
rine facility was motivated by contemporaneous union activity at its
Mariah facility, we note that IBEW Local 702 handbilled at the Mariah
facility at the end of April 1997, not on April 18, 1997, as stated by the
judge.
The Respondent contends that about April 26, 1997, Jimmy Fulks, a
co-owner of Chariot Marine as well as an owner of Mariah Boats, and
Paul Schoen, a co-owner of Chariot Marine as well as a corporate di-
rector of Mariah Boats and its corporate counsel and agent, decided to
close the Chariot facility on May 2, 1997. The Respondent contends
that the judge erred in discrediting their testimony to this effect and
asserts that the judge’s discrediting of their testimony rests on a misat-
tribution of certain testimony and a mischaracterization of that testi-
mony. We find merit in this exception to the following extent. We
agree with the Respondent that at sec. III,B,2,b,3 of his decision, the
judge erred by attributing certain portions of Schoen’s testimony to
Fulks and by mischaracterizing that testimony. Thus, it was Schoen,
not Fulks, who testified that he and Fulks decided that they would close
the Chariot facility on May 2 soon after Schoen learned that “the [Char-
iot] building price was 1.35 million dollars and that was roughly April
18th to 21st, somewhere in that range.” (Tr. 799, 1321.) The judge
further erred by mischaracterizing this testimony of Schoen at fn. 40 of
his decision, where the judge stated that “Fulks” testified to the effect
“that the decision to close Chariot on May 2 was actually made on or
about April 18.” As Schoen’s testimony makes clear, however, April
18 was the date that Schoen learned the asking price for the Chariot
facility, not the date that Fulks and Schoen allegedly decided to close
the facility. We note further that Fulks’ testimony that the decision to
close the Chariot facility on May 2 was made on April 26 or 27 (Tr.
844) is consistent with Schoen’s testimony to the effect that the deci-
sion to close was made on April 26 (Tr. 1327).
However, merely because Fulks’ and Schoen’s testimony is consis-
tent on this issue does not establish that the Respondent did, in fact,
decide to close the Chariot facility on May 2. Indeed, other evidence
relied on by the judge in finding that the Respondent never decided to
close the facility on May 2 argues against it. In this regard, as ex-
plained by the judge, although Schoen wrote to the Board agent on
April 26, 1997, his letter did not mention the fact that, as the Respon-
dent asserts, a decision had been made to close the Chariot facility on
May 2. Further, the Respondent did not introduce into evidence any
plans for closure of the Chariot facility or any other evidence which
would support its contention that a decision had been made to close the
Chariot facility on May 2. Finally, as explained by the judge, Fulks
testified that but for the union meeting which occurred on April 30,
there were no plans to close the Chariot facility on that date (April 30).
The abrupt decision to close the Chariot facility on April 30, a decision
which the judge found was motivated by antiunion animus, argues
against a finding that the Respondent had already decided to close the
facility on May 2 for lawful reasons. Given these circumstances, we
find that the mere fact that Fulks and Schoen testified that they decided
on April 26 to close the Chariot facility on May 2 does not establish as
fact that such a decision was made on that date. Rather, we find, in
agreement with the judge, that the evidence does not support a finding
that the Respondent ever decided to close the Chariot facility on May 2.
335 NLRB No. 30
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 340
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Chariot Marine Fabricators
& Industrial Corp., West Frankfort, Illinois, and Mariah
Boats, Inc., Benton, Illinois, a Single Employer, its offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
“(a) Within 14 days from the date of this Order, offer
reinstatement at its existing Mariah facility in Benton,
Illinois, to all former Chariot production and mainte-
nance employees and truckdrivers, including but not lim-
ited to, Steven D. Danner, Brent D. Houseworth, Ronald
W. Cochran, David Wayne Frost, Phillip L. Calandro,
Michael T. Borga, Ronnie D. Rice, Nicholas E. Rey-
nolds, Terry L. Simms, Gary Simms, Brad Rohach, Ar-
thur R. Morris, and Marty E. Williams to their former
positions or, if such positions no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or other rights and privileges previously enjoyed,
and discharging if necessary any employees, not former
employees of Chariot, hired after April 30, 1997; and in
the event of the unavailability of jobs sufficient to permit
the immediate reinstatement of all such employees, the
Respondent shall place such employees on a preferential
hiring list for any future vacancies which may occur in
substantially equivalent positions at the Mariah facility.”
2. Insert the following as new paragraph 2(c) and relet-
ter the following paragraphs.
“(c) Within 14 days from the date of this Order, ex-
punge from its files any reference to the April 30, 1997
discharges of all former Chariot production and mainte-
nance employees and truckdrivers, including, but not

3 In analogous cases involving unlawful discharges, the Board has
included as part of its make-whole remedy the requirement that, in
fulfilling its obligation to reinstate the unlawfully discharged employ-
ees, the respondent discharge, if necessary, any employees hired after
the date of the unfair labor practice discharges. See, e.g., Cub Ranch
Mining, 300 NLRB 57 (1990), and American Signature, Inc., 334
NLRB 880 (2001). We amend the judge’s recommended remedy to
include such a requirement here, and we shall modify the judge’s rec-
ommended Order accordingly.
The judge inadvertently failed to include an expungement provision
in his recommended Order. We shall modify the judge’s Order to
include such a provision. We shall also modify the judge’s recom-
mended Order in accordance with our recent decision in Ferguson
Electric Co., 335 NLRB 142 (2001).
The judge included a narrow cease-and desist provision in his rec-
ommended Order. We agree with the judge that a narrow cease-and-
desist provision is appropriate in this case. See, e.g., Sterling Sugars,
Inc., 261 NLRB 472 fn. 2 (1982). Since the notice included in the
judge’s decision inadvertently includes a broad cease-and-desist provi-
sion, we shall substitute the attached notice, which includes a narrow
cease-and-desist provision, for that of the administrative law judge.
limited to, Steven D. Danner, Brent D. Houseworth,
Ronald W. Cochran, David Wayne Frost, Phillip L. Ca-
landro, Michael T. Borga, Ronnie D. Rice, Nicholas E.
Reynolds, Terry L. Simms, Gary Simms, Brad Rohach,
Arthur R. Morris, and Marty E. Williams, and within 3
days thereafter notify them in writing that this has been
done and that evidence of these unlawful discharges will
not be used as a basis for future personnel actions against
them.”
3. Substitute the following for paragraph 2(g).
“(h) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords 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.”
4. Substitute the attached notice for that of the admin-
istrative law judge.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT unlawfully create the impression of
surveillance by taking notes of employees engaged in
union activities.
WE WILL NOT tell employees attending a union
meeting that we are closing the Chariot plant because
they are engaged in union activity.
WE WILL NOT promulgate, disseminate, and maintain
an employee handbook that contains a provision that
implicitly threatens retaliatory conduct if you seek union
representation.
WE WILL NOT promulgate, disseminate, and maintain
an employee handbook that contains a provision that
discourages, restrains or interferes with your right to
organize, join, and/or support a union or to discuss the
CHARIOT MARINE FABRICATORS 341
ganize, join, and/or support a union or to discuss the
same during nonworking hours.
WE WILL NOT close our Chariot facility in West
Franklin, Illinois, in order to discourage membership in,
sympathy for, and activities on behalf of Southern Illi-
nois Laborers District Council, affiliated with Laborers’
International Union of North America, AFL–CIO, or any
other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer reinstatement at our existing Mariah facility,
in Benton, Illinois, to all former Chariot production and
maintenance employees and truckdrivers, including, but
not limited to, Steven D. Danner, Brent D. Houseworth,
Ronald W. Cochran, David Wayne Frost, Phillip L. Ca-
landro, Michael T. Borga, Ronnie D. Rice, Nicholas E.
Reynolds, Terry L. Simms, Gary Simms, Brad Rohach,
Arthur R. Morris, and Marty E. Williams to their former
positions or, if such positions no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or other rights and privileges previously enjoyed,
and discharging if necessary any employees, not former
employees of Chariot, hired after April 30, 1997; and in
the event of the unavailability of jobs sufficient to permit
the immediate reinstatement of all such employees, WE
WILL place such employees on a preferential hiring list
for any future vacancies which may occur in substan-
tially equivalent positions at the Mariah facility.
WE WILL make whole all the former Chariot produc-
tion and maintenance employees and truckdrivers, in-
cluding, but not limited to, Steven D. Danner, Brent D.
Houseworth, Ronald W. Cochran, David Wayne Frost,
Phillip L. Calandro, Michael T. Borga, Ronnie D. Rice,
Nicholas E. Reynolds, Terry L. Simms, Gary Simms,
Brad Rohach, Arthur R. Morris, and Marty E. Williams,
for any loss of earnings and other benefits suffered by
them as a result of their unlawful terminations, from
April 30, 1997, to the date of reinstatement with Mariah
Boats, Inc., less any interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, expunge from our files any reference to the April
30, 1997 discharges of all former Chariot production and
maintenance employees and truckdrivers, including, but
not limited to, Steven D. Danner, Brent D. Houseworth,
Ronald W. Cochran, David Wayne Frost, Phillip L. Ca-
landro, Michael T. Borga, Ronnie D. Rice, Nicholas E.
Reynolds, Terry L. Simms, Gary Simms, Brad Rohach,
Arthur R. Morris, and Marty E. Williams, and WE
WILL, within 3 days thereafter, notify them in writing
that this has been done and that evidence of these unlaw-
ful discharges will not be used as a basis for future per-
sonnel actions against them.

CHARIOT MARINE FABRICATORS &
INDUSTRIAL CORP. AND MARIAH
BOATS, INC., A SINGLE EMPLOYER

Kathy J. Talbot-Schehl, Esq., for the General Counsel.
Timothy J. Sarsfield, Esq. and Stephen D. Smith, Esq., of St.
Louis, Missouri, for the Respondent.
Michael O’Hara, Esq., of Springfield, Illinois, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
C. RICHARD MISERENDINO, Administrative Law Judge.
This case was tried in Benton, Illinois, on May 4–8 and June 1–
3, 1998. The charge in Case 14–CA–24551 was filed by the
Union on May 2, 1997, and was amended on June 30, 1997.1
The charge in Case 14–CA–24728–4 was filed by an individual
Charging Party, Steven D. Danner, on August 18, and was
amended on November 24. The charge in Case 14–CA–24965
was filed by the Southern Illinois Laborers District Council,
affiliated with Laborers’ International Union of North America,
AFL–CIO (Union) on February 2, 1998.
A second consolidated amended complaint was issued on
February 26, 1998, alleging that (1) from about April 30
through June 19, 1997, Chariot Marine Fabricators & Industrial
Corp. (Chariot or Chariot Marine) and Mariah Boats, Inc.
(Mariah) were a single employer and/or alter egos; (2) on April
30, Chariot’s agents and/or supervisors, Paul Schoen and
Harley Greeno, engaged in unlawful surveillance of a union
meeting; (3) on April 30, Chariot’s co-owner, Jimmy Fulks,
unlawfully told its employees that he was closing the facility
and terminating all employees because of their union activities;
(4) on April 30, Chariot unlawfully terminated all its employees
and closed its facility located in West Frankfort, Illinois, be-
cause some of its employees sought to organize a union and/or
in an effort to “chill” unionism at Mariah’s facility; (5) both
Chariot and Mariah maintained identical personnel policy
manuals containing provisions which unlawfully interfered
with, restrained, and coerced employees in the exercise of their
Section 7 rights under the Act; (6) on May 5, and other various
dates thereafter, Mariah unlawfully refused to hire or consider
for hire 13 former Chariot employees, because of their alleged
union activities while with Chariot; and (7) between May 1 and
10, Mariah’s agents and/or supervisors, April Burress and John
Vincini, unlawfully interrogated an employee, Mary Nalley,
regarding her support for an “anti-union advertisement.”
Respondent’s timely answer denied the material allegations
of the second consolidated amended complaint. The parties
have been afforded a full opportunity to appear, present evi-
dence, examine and cross-examine witnesses, and file briefs.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed

1 All dates are in 1997, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 342
by the General Counsel, the Respondents Chariot and Mariah,
and the Union, I make the following
FINDINGS OF FACT
I. JURISDICTION
Chariot, a corporation that manufactured and sold custom-
made boat trailers and marine industry products, had its princi-
pal offices and manufacturing facility in West Frankfort, Illi-
nois, through April 30, 1997. During the 12-month period pre-
ceding April 30, 1997, it purchased and received at its West
Frankfort, Illinois facility goods valued in excess of $50,000,
directly from points located outside the State of Illinois. Chariot
admits and I find that at all material times it was an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
Mariah, a corporation that manufactures and sells fiberglass
boats, has its principal office and manufacturing facility located
in Benton, Illinois, and, at least through June 19, 1997, had a
secondary manufacturing facility located at West Frankfort,
Illinois. During the calendar year 1997, Mariah purchased and
received at its Benton, Illinois facility goods valued in excess of
$50,000, directly from points located outside the State of Illi-
nois. Mariah 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.
Finally, Chariot and Mariah admit and I find that, at all rele-
vant times, the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. 10(b) ISSUES
During the hearing, and in their brief, the Respondent’s
counsel sought to dismiss allegations of the complaint con-
tained in paragraphs 5C–E on the grounds that the allegations
are time-barred under Section 10(b) of the Act. I reserved rul-
ing on the motion at the hearing. For the reasons stated below, I
now grant the Respondent’s motion to dismiss these allegations
of the second consolidated amended complaint.
Paragraphs 5C–E of the complaint allege that between May 2
and 10,2 the Respondent, through its supervisors and agents,
April Burress and John Vincini, interrogated employee Mary
Nalley about whether she would support an antiunion adver-
tisement by signing the ad. The threshold issue is whether the
allegations of those paragraphs are time-barred under Section
10(b) of the Act and therefore should be dismissed.
The evidence shows that the original relevant underlying
charge in Case 14–CA–24728, which was filed by individual
Charging Party Steven Danner against Respondent Mariah on
August 18, 1997, alleges that Mariah unlawfully refused to hire
him on May 5, 1997, in violation of Section 8(a)(3) of the Act.
On November 24, 1997, Danner’s original charge was amended
to allege, among other things, that Mariah “since about May 1,
1997 and continuing on two other occasions but not later than
May 10, 1997, has interfered with, restrained, and coerced its
employees in the exercise of their rights guaranteed by Section

2 The evidence shows that the relevant time period actually extends
from May 2 through 16.
7 of the Act, as amended, by acts and conduct including inter-
rogating employees” in violation of Section 8(a)(1) of the Act.
The Respondent argues that because the amended charge
was not filed within 6 months of May 10, 1997,3 it is time-
barred and the allegations should be dismissed from the com-
plaint. The Respondent further argues that, under the criteria
established by the Board in Redd-I, Inc., 290 NLRB 1115
(1988), the interrogation allegations should not be deemed to
relate back to the original charge, which did not contain any
alleged violation of Section 8(a)(1) of the Act.
Counsel for the General Counsel does not dispute that the
relevant amended charge was not filed within 6 months of May
10, 1997. Rather, counsel for the General Counsel argues that
the allegations in the relevant amended charge are “closely
related” to the 8(a)(1) allegations in another charge filed by
another party (i.e., the charge filed in Case 14–CA–24551 by
the Union) and therefore should not be dismissed.4
The evidence shows that the original charge in Case 14–CA–
24551, which was filed by the Union against Respondent Char-
iot on April 30, 1997, alleging that Chariot unlawfully termi-
nated its employees in violation of Section 8(a)(3) of the Act.
That charge was amended on June 30, 1997, to further allege
that Chariot and Mariah were a single employer/alter ego and
that the unlawful termination of employees on April 30 was
intended to chill unionism at the Mariah facility in Benton. The
amended charge in Case 14–CA–24551 also alleges that Char-
iot/Mariah interfered with, restrained, and coerced its employ-
ees in the exercise of their rights guaranteed by Section 7 of the
Act, (1) by maintaining identical personnel policies prohibiting
nonwork-related conversation during working hours and by
impliedly threatening to reduce pay and benefits if the employ-
ees chose union representation; (2) by engaging in surveillance
and notetaking at Chariot; and (3) by informing employees at
Chariot that the plant would close and they would be termi-
nated for engaging in union activities in violation of Section
8(a)(1) of the Act.
In Redd-I, Inc., 290 NLRB 1115 (1988), the Board identified
certain factors for determining whether allegations arising from
a charge, which is otherwise untimely, can be added to a com-
plaint based on their close relationship to the allegations in a
timely filed charge. Under the “closely related” test, it must be
determined whether the otherwise untimely allegations in the
complaint (1) involve the same legal theory as the timely alle-
gations in the charge; (2) arise from the same factual circum-
stances; and (3) entail the same or similar defenses by the Re-
spondent. In assessing each of these factors, I find that the un-
timely allegations in the Danner amended charge in Case 14–
CA–24782–4 are not closely related to either the timely allega-
tions in his original charge or the timely 8(a)(1) allegations in
the Union’s charges in Case 14–CA–24551.
3 The Respondent asserts that even if the relevant timeframe was ex-
tended to May 16, 1997, consistent with a fair reading of the second
consolidated amended complaint, the allegations are still time-barred.
4 Notably, counsel for the General Counsel does not assert that the
untimely allegations of Danner’s amended charge relate back to his
original charge.
CHARIOT MARINE FABRICATORS 343
First, Danner’s original and amended charges invoke differ-
ent sections of the Act and are predicated on different legal
theories. The 8(a)(3) discrimination allegation arose in the con-
text of Mariah refusing to hire a former Chariot employee. The
legal theory was that he was not hired because of his union
support. The 8(a)(1) allegations arose in the context of asking a
current Mariah employee, if she was going to sign a newspaper
advertisement supporting Mariah’s president and denouncing
the Union. The legal theory was the Mariah supervisor’s con-
duct was coercive.
Further, the factual circumstances surrounding Danner’s
original and amended charges are not the same. The alleged
interrogation in Danner’s amended charge does not even in-
volve Danner, or anyone else seeking employment with
Mariah. Rather, it involves the alleged interrogation of
Mariah’s employee Nalley and is coincident to the spontaneous
response of Mariah management and employees to comments
made by Mayhew about Fulks. Finally, the evidence shows that
the legal defenses to Danner’s charges are not the same.
As noted above, counsel for the General Counsel fails to ac-
knowledge that the untimely allegations in Danner’s amended
charge against Mariah are not closely related to the timely alle-
gations in his original charge. Instead, she asserts that the un-
timely allegations of the Danner amended charge is closely
related to a different timely charge filed by the Union in Case
14–CA–24551. Counsel for the General Counsel does not cite
any supporting authority, and I am unconvinced from a plain
reading of Redd-I, Inc., that the General Counsel can bootstrap
a closely related argument relying solely on a charge filed by
another party in a case consolidated for trial. Even if that were
proper, I find that counsel for the General Counsel has not sat-
isfied the closely related test.
First, the two charges do not involve the same legal theory.
Danner’s amended charge, alleges the unlawful interrogation of
a Mariah employee. The Union’s amended charge alleges that
Chariot/Mariah, as a single employer, with respect to the Sec-
tion 8(a)(1) violations, unlawfully interfered with the Section 7
rights of Chariot employees by maintaining unlawful provisions
in its employee handbook, by unlawfully threatening Chariot
employees with plant closure, and by unlawfully surveilling
employees engaged in union activities. Aside from the fact that
they both allege an 8(a)(1) violation, counsel for the General
Counsel has not adequately established that Danner’s charges
and the Union’s charges allege the same unlawful objective.
While it may be argued that both involve or are “part of an
overall plan to resist organization,” the argument fails in the
absence of a concomitant single employer/alter ego allegation
in Danner’s original and/or amended charge. Likewise, the
alleged interrogation of Mariah employees in Danner’s
amended charge does not involve or arise out of the interfer-
ence with the Section 7 rights of Chariot employees in the Un-
ion’s charges. Finally, counsel for the General Counsel con-
cedes, and the record shows, that the defenses raised by the
Respondent to Danner’s amended charge and the Union’s
timely charges are different. Accordingly, the Respondent’s
motion to dismiss the allegations of paragraphs 5C–E of the
second amended complaint is granted.5
In addition, the Respondent argues at page 9, footnote 7, of
its posthearing brief that the alleged unlawful refusal to hire
Brent Houseworth on May 11, 1997, contained in Danner’s
amended charge is also time-barred. I disagree. Applying the
“closely related” test, I find that the same legal theories that
apply to Danner in the original charge, also apply to House-
worth in the amended charge (i.e., unlawful refusal to hire); that
Houseworth’s alleged refusal to hire arises out of the same
sequence of events as Danner’s refusal to hire; and to an extent,
the Respondent relies on the same defenses (i.e., that the Re-
spondent had legitimate nondiscriminatory reasons for not hir-
ing Houseworth). Accordingly, I deny the motion to dismiss the
allegations in paragraph 7B of the second consolidated
amended complaint that the Respondent unlawfully refused to
hire Brent Houseworth on or about May 11, 1997.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. The Respondent corporations
In 1989, Mariah began manufacturing luxury pleasure boats,
which are sold to boat dealers throughout the United States. Its
principal shareholder is, and always has been, Jimmy Joe Fulks,
who owns 89 percent of Mariah’s stock. Jimmy Fulks is presi-
dent and treasurer of Mariah. He and Paul Schoen, Mariah’s
corporate counsel and registered agent, are corporate directors,
along with Fulks’ wife, his son, Rance, and Mariah’s chief
financial officer, Guy W. Coons.
In 1994, Fulks and Paul Schoen founded Chariot Marine and
began manufacturing custom-made boat trailers for Mariah
boats. From the outset, almost all of Chariot’s trailers were sold
directly to Mariah or to retail boat dealers, who sold Mariah
boats.6 In 1995, Chariot started manufacturing stainless steel
parts and aluminum fuel tanks exclusively for Mariah boats.
About the same time, Mariah subleased space from Chariot in
West Frankfort, Illinois, and began manufacturing fiberglass
forms at the West Frankfort facility.
Jimmy Joe Fulks and Paul Schoen each owned 50 percent of
Chariot’s stock and were corporate directors of the Company.
Their wives, Geraldine Fulks and Bobbi S. Schoen, were the
other corporate directors. Schoen served as the president of
Chariot and its registered agent. Fulks was Chariot’s treasurer.
Bobbi Schoen, wife of Paul Schoen, was Chariot’s corporate
secretary until July 1997, when she was replaced by Rance
Fulks, son of Jimmy Fulks. Zella Furlong, Jimmy Fulks’ per-
sonal secretary at Mariah, was the corporate assistant secretary
for Chariot, as well as the corporate assistant secretary at
Mariah.

5 In light of the above finding, it is unnecessary for me to decide the
corollary issues of whether April Burress is a supervisor within the
meaning of Sec. 2(11) of the Act or an agent within the meaning of Sec.
2(13) of the Act and, if so, whether Nalley was unlawfully interrogated
in violation of Sec. 8(a)(1) of the Act.
6 Although Chariot also made two other types of trailers for Yar-
Craft, another boat manufacturer, the vast majority of its business was
done with Mariah or dealers, who carried Mariah boats.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 344
2. Organizing activity at Mariah and in the Benton-West
Frankfort area
Benton and West Frankfort, Illinois, are approximately 6
miles apart. The boating industry is the largest employer in the
Benton-West Frankfort area. In addition to Mariah, two other
boat manufacturers are located in the immediate area, Crown
Line Boats and Bombardia Boats. Thus, in a relatively small
geographic area, there is a relatively large number of boating
industry employers and employees.
In late 1989, the Union sought to organize Mariah not long
after the Company began operating. Union organizer Randy
Mayhew handbilled at Mariah’s facility, which initially was
located in Pittsburgh, Illinois.7 In the course of the organizing
activity, Mariah moved to its present location in Benton, and
the Union followed. Ultimately the Board conducted an elec-
tion in February 1990, which the Union lost. For the next 7
years, the Union made no attempt to organize any boating in-
dustry employees in the Benton-West Frankfort area.
In early 1997, the International Union of Operating Engi-
neers, Local 399 (Local 399 or IUOE) assessed the possibility
of organizing the employees of Mariah and Crown Line in Ben-
ton.8 Local 399 organizers Rodney Hale and Tom Reidelberger
testified that they toured both facilities ostensibly as potential
customers. More specifically, they testified that at Mariah, Re-
gional Sales Manager Kenneth Crews, gave them a tour during
which Hale told Crews he was a union organizer. Crews denied
that he ever gave Hale and Reidelberger a tour and testified that
he would have remembered meeting a union representative
because he has several family members who belong to Local
318, IUOE. For demeanor reasons, I credit the testimony of
Hale and Reidelberger. Even if they had not taken a tour of the
Mariah facility or met Crews, the unrebutted credible evidence
shows that the union did target Mariah for organizing activity
in March–April 1997. Indeed, the evidence shows that Hale and
Reidelberger patronized local restaurants and taverns talking to
local residents about unionizing the boat manufacturers in the
area, and that they subsequently decided to organize Mariah.
On March 31, the IUOE hosted a dinner for its downstate Il-
linois members in Mt. Vernon, Illinois, which is approximately
25 miles north of Benton. Mary Nalley, a Mariah employee,
was a guest. Hale and Reidelberger explained to her that Local
399 was considering Mariah as a potential organizing target and
solicited her help. Nalley signed a union authorization card for
Local 399. Over the next few weeks, Local 399 solicited a few
more authorization cards from Mariah employees and sched-
uled an information meeting at a local hotel for the early part of
May.

7 While handbilling, Mayhew first met Jimmy Fulks, who told him
to “get the hell off his property.” (Tr. 367.)
8 At the hearing, the Respondent moved to strike the evidence show-
ing other unions organizing in the Benton-West Frankfort area on the
ground there are no allegations pertaining to any other labor organiza-
tion in the second consolidated amended complaint. I reserved ruling
on the motion until after I considered all of the evidence and argu-
ments. I now deny the motion. I agree with counsel for the General
Counsel that she is not required to plead her evidence in the allegations
of the complaint and I find that the evidence is particularly germane to
the “chilling effect” allegations contained in the complaint.
In the meantime, on April 18, Local 702, International
Brotherhood of Electrical Workers (Local 702 or IBEW) placed
handbills on the cars of Crown Line boat employees, located in
West Frankfort. Two weeks later, they also handbilled at Bom-
bardia and Mariah and scheduled an information meeting for
early May.
3. Organizing at Chariot
Around the same time that the IUOE and IBEW were seek-
ing to organize employees of the boat manufacturers in the
Benton-West Frankfort area, a Chariot employee contacted the
Laborers’ Union expressing an interest in union representation.
In late March-early April 1997, Chariot welder, Marty Wil-
liams, met with Mayhew to discuss the possibility of the Union
organizing Chariot’s employees. The two had worked together
many years earlier at Mark Twain Boats in West Frankfort,9
where the Union represented the employees and Mayhew was
the local union president.10
With the help of Williams, an information meeting was held
on the evening of April 16, at a local restaurant in West Frank-
fort. Nineteen Chariot employees (or approximately half of
Chariot’s production and maintenance work force) listened to
Mayhew explain the benefits of joining the Union and the pro-
cedures for obtaining an election or recognition. All 19 signed
authorization cards that evening.
The next morning, April 17, at approximately 7 a.m.,
Mayhew visited the Chariot facility to demand voluntary rec-
ognition. Mayhew testified that after entering through an em-
ployee entrance, he encountered Plant Manager Harley Greeno,
who took him to his office where they waited for Chariot’s
president, Paul Schoen, to arrive. According to Mayhew,
Greeno told him how he helped turn the Company around and
how encouraged he was about Chariot’s future business out-
look. Paul Schoen, on the other hand, testified that Mayhew
was found wandering through the plant without safety glasses
in a restricted area. For demeanor reasons, I credit Mayhew’s
testimony on this point. The evidence shows that after Schoen
arrived, Mayhew introduced himself, explained that he was
organizing Chariot, and asked for voluntary recognition.
Schoen replied, “I know who you are, I know what you are
about, please leave the premises.” (Tr. 372.)
After Mayhew left, Schoen called a labor attorney, who
helped him prepare a speech to the employees. At midmorning,
all Chariot employees were called to the cafeteria where they
were addressed by Schoen and Jimmy Fulks. Reading from his
prepared speech, Schoen told the employees that Mayhew was
caught trespassing that morning in the production area without
safety glasses. He said that Mayhew was asked to leave the
Company’s premise and was prohibited from returning. He
explained why Chariot did not need a union and stated that the
Company would oppose the Union’s effort to organize the fa-
cility.
9 Mark Twain Boats filed for bankruptcy and closed. Eventually
Chariot moved into the same building which formally housed Mark
Twain Boats.
10 By now, Mayhew had become director of organizing for the Un-
ion’s midwest region.
CHARIOT MARINE FABRICATORS 345
Fulks’ remarks were less restrained. He told the employees
that “Randy Mayhew [was] a lying son of bitch,” who cost him
approximately $75,000 when he tried to organize Mariah in
1989–1990. Fulks stated that he beat Mayhew once and he
would beat him again.
Later that day, Mayhew received a facsimile letter from
Fulks and Schoen stating that they declined to voluntarily rec-
ognize the Union and that “we will use all lawful means to
demonstrate to those who work here that a union is not in their
best interests.” (GC Exh. 12.) The letter also accused Mayhew
of trespassing and prohibited him from coming upon Chariot’s
premises again.
Mayhew continued to meet offsite with the Chariot employ-
ees and eventually obtained nine more authorization cards. On
April 22, the Union filed a petition for certification of represen-
tative with the NLRB’s Regional Office. On or about April 24,
NLRB Field Examiner Christopher Roche phoned Schoen to
discuss scheduling a representation hearing. According to
Schoen, he told Roche in confidence that Chariot was consider-
ing closing because it had never been profitable and its lease,
which was due to expire June 19, was not renewable. By
Schoen’s account, Roche said that if he received an affidavit
confirming that a decision to close had been made, it would
obviate the need for an election, but that it would have to say
more than “we’re thinking about it.” (R. Exh. 50(a).)
4. The events of April 30
On April 30, around 11:30 a.m., Mayhew held an organizing
meeting outside the Company’s parking lot. Standing on a grass
median, which separated the street from the sidewalk next to
the parking lot, Mayhew spoke to about 10 Chariot employees,
who sat on the ground eating their lunches. Present were Mike
Borga, Ronnie Cochran, Philip Colandro, David Frost, Brent
Houseworth, Nick Reynolds, Ronnie Rice, Terry Simms, Gary
Simms, and Marty Williams.11 A few minutes into the meeting,
Schoen came outside with Plant Manager Greeno. Schoen
walked up to Mayhew, told him he was trespassing, and asked
him to leave. Greeno stood in the parking lot a short distance
away writing on a notebook pad while occasionally looking up
toward the employees. When Mayhew refused to leave, arguing
that he was on public property, Schoen stated that he would call
the police, to which Mayhew responded, “Paul, showdowns
bore me.” (Tr. 443.)
Schoen went inside the facility, asked someone to call the
police, and spoke by phone to Fulks apprising him of the situa-
tion outside. Fulks told Schoen he was coming over. In the
meantime, Schoen went back outside with a camera to take
pictures of Mayhew and the employees. Minutes later, a West
Frankfort police officer arrived. After talking with Schoen, the
officer could not determine if Mayhew was trespassing without
investigating where Chariot’s property ended and public prop-
erty began. As the police officer was leaving, Fulks drove up,
and briefly spoke to officer, who explained there was nothing
he could do at that moment. Fulks then pulled into the Chariot
parking lot, exited his car waving his arms, and immediately

11 The evidence shows that alleged discriminatee Brad Rohach left
work at noon that day for a doctor’s appointment. (Tr. 598.)
walked over to Mayhew and the employees. Fulks told the em-
ployees, “I don’t know what you guys think you’re doing, but
you’re not going to do that at this plant. I want you all to get up,
go in and clock out and get out. This plant is closed.” (Tr. 59.)
Everyone who was at the meeting went inside to gather their
personal belongings, clock-out and leave. As they passed some
employees seated outside at a company picnic table, as well as
others inside the facility, they told them that the plant was clos-
ing down. Employee Cochran told stainless steel employees
Chris Schmidtke, Ronnie Riddle, and Jeremy Griffith that the
facility had been shut down and everyone should leave. How-
ever, lead employee, Eric Framberg, who did not attend the
meeting outside, interceded telling Schmidtke and the others,
that if they were not at the meeting they did not have to leave.
(Tr. 510–511.) As those who attended the meeting started to
leave, they were met at the door by Greeno, who inspected their
lunchboxes and personal belongings.
Steven Danner, a hearing impaired employee, who worked
as a painter in the trailer department, did not attend the union
meeting. When he saw employees gathering their lunch boxes
and heading for the door, he went up to Greeno shrugging his
shoulders in hopes of determining what was going on. Greeno
told him to go back to work. Minutes later, Danner was told to
wait in the cafeteria with the other employees, who did not
attend the union meeting.
Inside the cafeteria, Fulks and Schoen told the employees
that the facility was closed. Fulks stated that if anyone was
interested in employment with Mariah, he should write his
phone number on the back of his timecard and sign it. Schoen
then repeated the instructions to Danner and another hearing
impaired employee, Arthur Morris.12 As they completed the
back of the timecards, the employees in the cafeteria placed
them in their timecard slots and left without having their lunch
boxes and personal belongings inspected.
5. Mariah steps in for Chariot
Step 1—hiring certain former Chariot employees on May 1
After the cafeteria meeting, Fulks phoned John Vincini,
Mariah’s director of human resources, to tell him he had closed
down Chariot. He also told Vincini that if any former Chariot
employee applied for employment at Mariah, they were to be
treated like any other job applicant. Vincini then received a
phone call from Chariot’s plant manager, Harley Greeno. After
confirming that Chariot had been closed that afternoon, Greeno
told Vincini that several former Chariot employees would be
applying for jobs at Mariah. According to Vincini, Greeno said
“we need to hire some people for the stainless steel operation,
what do we need to do?” (Tr. 735.) Vincini told Greeno that
anyone interested in a job would have to complete an applica-
tion, be interviewed, and go through an orientation. Greeno
emphasized that they needed to do it as soon as possible.13 Be-
cause Mariah never had a stainless steel and aluminum parts
12 Both Morris and Danner were wearing union buttons at the time.
13 Vincini did not interview Greeno, did not know when or if he was
interviewed, and was unsure if Greeno became a Mariah employee on
April 30 or May 1. He testified, however, that on May 1, Greeno was
Mariah’s stainless steel parts and aluminum fuel tank supervisor. (Tr.
735.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 346
operation, Vincini had no idea what positions needed to be
filled or what qualifications were required to fill those posi-
tions. He nevertheless told Greeno that he could interview be-
tween 6–8 people an hour beginning at 5 a.m. the next morning.
Greeno scheduled interviews for 19 employees, none of whom
attended the union meeting.14
Greeno was also instructed by Fulks to call the employees,
who attended the lunchtime union meeting, and tell them that
they could apply for work at Mariah. In the late afternoon-early
evening of April 30, Greeno phoned some of these employees15
advising them that they could apply for jobs at Mariah by pick-
ing up an application at the former Chariot facility in West
Frankfort or Mariah’s main facility in Benton.16 However,
Greeno did not tell them when they could (or should) apply
and, unlike the employees who did not attend the union meet-
ing, Greeno did not schedule any interviews for the employees
who attended the union meeting.
Between 5–9:30 a.m., on May 1, Vincini interviewed ap-
proximately 17 former Chariot employees, none of whom at-
tended the union meeting the day before.17 With Greeno pre-
sent for most of the time, Vincini asked standard interview
questions about background and work history. Because Vincini
did not know what jobs they would be performing for Mariah,
he generally explained to the applicants that they initially
would be assigned to Mariah’s stainless steel and aluminum
parts operation at the former Chariot facility in West Frankfort .
According to Vincini, specific skills were not a paramount
concern.18 What mattered was that “they had worked at Chariot
. . . [and] [t]hey all had skills that would fit into the stainless
steel operation in one way or the other.” (Tr. 743.) By 9:30
a.m., all of the former Chariot employees, who were inter-
viewed by Vincini that morning, as arranged by Greeno, were
hired by Mariah and were working at the former Chariot facil-
ity, including David Bratts, Larry Fourez, Eric Framberg,
Robert Hearn, Gary Herron, Jeremy Griffith, Bobby Isaacs,

14 Vincini testified that Green called back later to say that one former
Chariot employee, Chris Schmidtke, would not be available to inter-
view until either the afternoon of May 1 or the morning of May 2.
15 Greeno did not call David Frost, Brent Houseworth, or Marty Wil-
liams. He also did not call Brad Rohach, who was not at the union
meeting.
16 The evidence shows that Greeno did not personally speak with
each employee that he called, but instead left the information on their
answering machines.
17 Although Danner and Morris signed the back of their timecards
indicating an interest in working for Mariah, Greeno did not arrange an
interview for them and Mariah never hired them.
18 The evidence shows that the only former Chariot employees hired
on May 1, who had prior stainless steel or aluminum fuel tank work
experience were Eric Framberg, Chris Schmidtke, Chad Wilson, Paul
Johnson, James Seagers, Gary Smith, and James Morgan. See GC
Exhs. 42 (a)–(e), (m), and (s). Justin, Bobby, and Bennie Issaacs were
truck drivers at Chariot (GC Exhs. 42 (g)–(i)). Daniel Taylor worked in
plant maintenance (GC Exh. 42(k)). Ronnie Riddle was a general la-
borer (GC Exh. 42 (l)). Donald R. Morgan and Larry Fourez worked in
trailer assembly (GC Exhs. 42 (n) and (p)). David Batts was a trailer
painter (GC Exh. 42(o)), Gary Herron worked in purchasing/warehouse
(GC Exh. (q)), Randy Murphy was a machine operator (GC Exh. 42(r)),
and Robert Hearns worked in drafting/purchasing (GC Exh. 42(t)).
Bennie Isaacs, Justin Isaacs, Paul Johnson, Donald Morgan,
James Morgan, Randy Murphy, Ronnie Riddle Sr., Chris
Schmidtke, Gary Smith, and Daniel Taylor.19
Step 2—completing Chariot’s work in progress
The 17 former Chariot employees,20 who were interviewed
by Vincini early May 1, received a brief orientation session and
immediately reported for work at the Chariot facility in West
Frankfort. Under the supervision of Greeno, who overnight
became a Mariah supervisor, they essentially picked up where
the Chariot employees left off one day earlier, occupying the
same work area, using the same tools and the same materials,
and completing the same job orders. (Tr. 744.)
Step 3—selling Chariot’s trailer operation, leasing back its
equipment, and transferring the stainless steel parts and alumi-
num fuel tank operation to Mariah’s Benton facility
Over the next several weeks, and under Greeno’s supervi-
sion, the former Chariot employees hired by Mariah on May 1–
3, along with other Mariah employees, completed the stainless
steel, aluminum fuel tanks, and trailer work-in-progress at the
time Chariot closed. They assisted with the cleanup and shut-
down of Chariot, as well as the relocation of the stainless steel
and aluminum fuel tank equipment, tools, machinery, and mate-
rials to Mariah’s Benton facility.
In the meantime, on May 8, Prestige Trailers, Inc., DuQuoin,
Illinois, purchased Chariot’s trailer jigs and agreed to pay Char-
iot royalties for 3 years in return for using Chariot’s trademark.
Jimmy Fulks personally handled the transaction because of his
contacts in the boating industry. The Mercantile Bank, Mt.
Vernon, Illinois bought the stainless steel equipment and used
the proceeds to partially satisfy Chariot’s outstanding loan debt.
Mariah then leased back the equipment sold to the bank in or-
der to complete the work-in-progress.
By June 19, the former Chariot facility was vacated and all
of Mariah’s operations at West Frankfort were moved to its
Benton facility.
6. Mariah mounts a campaign against the Union
A few days after Fulks closed the Chariot facility on April
30, he called a plantwide meeting of all Mariah employees at
the Benton facility. Fulks told the Mariah employees that de-
spite rumors circulating that he had closed Chariot because of
union activity, he wanted everyone to understand that he closed
it for financial reasons. Fulks further stated that it was possible
that the Union might picket and handbill Mariah because hand-
billing had occurred at other boat manufacturers in the area.21
19 Between May 2–6, Mariah hired former Chariot employees Greg
Ramsey, James Segars, and Chad Wilson, none of whom attended the
union meeting.
20 The evidence shows that not everyone hired between May 1–6
was placed in the stainless steel and aluminum parts operation. Justin,
Bobby, and Bennie Isaacs were placed in Mariah’s “delivery” depart-
ment; Daniel Taylor was placed in Mariah’s maintenance department;
and Randy Murphy was placed in Mariah’ hull rigging/carpet depart-
ment.
21 The evidence shows that after Chariot abruptly closed on April 30,
1997, only a few employees attended the IUOE meeting in early May.
One of those who attended asked to have his union authorization card
returned to him. The evidence also shows that only one employee at-
CHARIOT MARINE FABRICATORS 347
Around the same time, Human Resources Director Vincini
drafted a newspaper advertisement, which criticized Randy
Mayhew and the Union, and praised Fulks for his community
involvement. Vincini solicited money from employees to place
the ad in a local newspaper, The ad, which appeared in the
newspaper on May 9, was also posted on a bulletin board by the
main entrance to the building and next to the employee time
clock.
A day or so later, April Burress, an upholstery leadperson,
gathered the employees in her department for a meeting in the
tacking area. She introduced Tacking Supervisor Chad Miller,
who told everyone assembled that the ad would be recirculated
for employees to sign and would be placed in the newspaper
again to show support for Fulks. He solicited donations to rerun
the ad and asked for a show of hands of those in favor of the
effort. All 50 department employees raised their hands, except
Mary Nalley and 5 others. The ad was left on Burress’ sewing
machine for employees to sign.
Shortly after this meeting, Burress privately asked Nalley if
she was going to sign the ad. When Nalley stated that she
wanted to stay neutral and did not want to get involved, Burress
began to extol the virtues of Jimmy Fulks; adding that she did
not think it was very nice that people would not sign the ad.
Nalley told her she would think about it.
A few days later, Vincini approached Nalley to see if she
wished to sign the ad. Vincini disclaimed any involvement in
drafting a petition that accompanied the ad and commented that
the few employees who had not signed it had declined because
they had family in a union. Nalley told him she too had family
in a union, but was declining because she wanted to stay neu-
tral. The ad subsequently was placed in the newspaper again
and posted near the employee timeclock.
7. The union supporters unsuccessfully seek
employment at Mariah
a. The early attempts
On April 30, Greeno personally spoke with former Chariot
employee Ron Cochran telling him that he could pickup an
application with his paycheck the next day at Mariah’s West
Frankfort facility. When Cochran arrived to pick up his pay-
check, however, he was met by Greeno, Schoen, Fulks and his
son, Rance Fulks, who told Cochran that Chariot was closed.
Although Cochran received his paycheck in an envelope, there
was no Mariah employment application inside.
While Vincini was still interviewing the individuals, who did
not attend the union meeting, the other Chariot employees, who
supported the Union, gathered at a nearby McDonald’s, and
traveled together to the Chariot facility. They too were met by
Fulks, who told them the facility was closed. From the en-
trance, however, they could see several vehicles, belonging to
former Chariot coworkers, parked in a fenced area outside the
building. On May 2, the next day, the union supporters returned
to Chariot’s facility and were met by security guards, who
turned them away.

tended the IBEW meeting. Finally, the evidence discloses that both
unions thereafter ceased their organizing efforts in the Benton-West
Frankfort area.
Steven Danner, one of two hearing impaired employees, who
did not attend the lunchtime union meeting outside, went to the
former Chariot facility on Monday, May 5 to pick up his pay-
check and a Mariah employment application. Although he
signed the back of his timecard, Greeno did not arrange an
interview for him on May 1. Instead, Greeno left a phone mes-
sage for Danner on the evening of April 30, telling him he
could submit an application when he picked up his paycheck.
When Danner arrived at the former Chariot facility on May 5,
the security guard radioed the front office, and he was allowed
to enter the building. Inside a receptionist gave him a Mariah
employment application which he completed and returned.
Before leaving, however, Danner asked to speak with Greeno,
but was told by the receptionist that Greeno was too busy.
On May 9, Mayhew and several former Chariot employees,
who supported the Union, went en masse to Mariah’s Benton
facility to pick up employment applications. As they walked
from the parking lot toward the office, Fulks intercepted the
group from behind. As he rushed toward the front of the line,
Fulks accused them of trespassing. Inside the reception area,
Mayhew encountered Fulks, his son, Rance, Warehouse Super-
visor John Griffith, and Supervisors Clint Joiner and Brian
Beardon. When Fulks reiterated that they were trespassing,
Mayhew replied that Greeno told them they could submit em-
ployment applications and that is what they intended to do.
With voices escalating, the two began arguing, which drew
Vincini to the reception area from his office down the hall.
Griffith eventually picked up a stack of employment applica-
tions and told everyone that if they would step outside, they
would receive an application. The group proceeded out to the
parking lot, where everyone, except Mayhew, received an em-
ployment application.
b. The post-May 9 attempts
Brent Houseworth received an employment application on
May 9, and submitted it on May 30. He had been a tig welder in
Chariot’s stainless steel and aluminum fuel tank department.
Vincini interviewed Houseworth, questioned him about his
skills, and asked him if there was anyone working at Mariah
whom he knew. Houseworth mentioned that Rick Witcher, was
a friend of his father. Witcher did not recommend Houseworth
for employment and Houseworth was not offered a job with
Mariah.
On July 10, Ronnie Cochran, David Frost, Michael Borga,
and Ronnie Rice, all former Chariot stainless steel department
employees, obtained and submitted employment applications at
Mariah. They were never contacted by Mariah.
On July 14, brothers Terry and Gary Simms, former welders
at Chariot submitted their employment applications to Mariah.
Neither was called or hired by the Respondent.
On July 15, Nick Reynolds, a former Chariot aluminum fuel
tank leadperson, mailed his completed employment application
to Mariah. Upon receipt, it was clipped to the applications of
Cochran and the others who applied in person on July 10. None
was contacted or hired by Respondent.
On August 13, Marty Williams, the former Chariot welder
who initiated the organizing drive, turned in his employment
application at Mariah’s Benton facility. The next day, August
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 348
14, Brad Rohach, who was a stainless steel buffer at Chariot,
submitted his employment application. Rohach had learned that
a friend had been hired by Mariah and that another was about to
be interviewed.22 Neither Williams or Rohach were contacted
or hired by Mariah.
On August 19, former Chariot painter Arthur Morris, one of
the two hearing impaired employees, who signed the back of
their timecards on April 30, obtained an employment applica-
tion at Mariah’s Benton facility, which he completed and re-
turned the next day. On August 28, 29, and 30, and September
1 and 2, Mariah advertised in the local newspaper for touch-up
painters, but never contacted or hired Morris.
B. Analysis and Finding
1. The 8(a)(1) violations
a. The alleged unlawful photographing
It is settled Board law “that absent proper justification, the
photographing of employees engaged in protected concerted
activities violates the Act because it has a tendency to intimi-
date.” F. W. Woolworth Co., 310 NLRB 1197 (1992), citing,
Waco, Inc., 273 NLRB 746, 747 (1984). It is undisputed that on
April 30, 1997, Chariot’s president, Paul Schoen, took photo-
graphs of the union organizer Randy Mayhew conducting a
union meeting on the grass median in front of Chariot’s facility
with several Chariot employees sitting around him. The Re-
spondent argues that Mayhew was trespassing and that Schoen
took the photos to preserve a photographic record of the tres-
pass for future use in a criminal trespass proceeding. The evi-
dence shows that 2 weeks earlier Schoen warned Mayhew in
writing about trespassing on Chariot’s premises and prohibited
him from coming on the Company’s property. Shortly after
Mayhew started the April 30 union meeting, Schoen walked up
to Mayhew, and told him that he was trespassing. Schoen also
stated that he would call the police if Mayhew did not leave.
When Mayhew refused to leave because he believed that he
was on public property, Schoen went inside Chariot’s building,
phoned the police, came outside again with a camera, and be-
gan taking pictures of Mayhew surrounded by the employees.
Schoen credibly testified that he took the pictures because he
“intended to prosecute a trespass action against [Mayhew] and
it just gets rid of swearing contests.” (Tr. 1330.) The evidence
shows that 2 days later, on May 2, Schoen went to the West
Frankfort Police Department, filed a complaint for criminal
trespass against Mayhew, and gave the police the photographs
taken on April 30 as evidence of where Mayhew was standing.
Thus, the evidence establishes that Schoen not only believed
that a criminal trespass had occurred, but that he acted upon
that belief by filing a criminal complaint and using the photo-
graphs to support his case. Under these circumstances, I find
that the photographs were legitimately taken to preserve proof
for subsequent legal action thereby constituting a valid defense
to the alleged unlawful photography. I therefore shall recom-
mend that the allegations of paragraph 5A of the consolidated
complaint concerning the photographing of employees be dis-
missed.

22 The evidence shows that between May 29–November 27, 1997,
Mariah hired approximately 159 employees. (GC Exh. 43.)
b. The unlawful notetaking
The undisputed facts also show that while Schoen took pho-
tos, Plant Manager Harley Greeno did more than merely ob-
serve employees attending a union meeting. He stood outside
the building within plain view of the employees, writing in a
notebook, while occasionally looking up at them. The notetak-
ing was not routine; rather it was focused on the employees
engaged in union activity. The Respondent asserts that it does
not know why Greeno took the notes or what he wrote.23 I find
that the conduct created the coercive impression of compiling a
list of union supporters for which no good cause has been dem-
onstrated.24 Monfort of Colorado, 298 NLRB 73, 86 (1990).
Accordingly, I find that Greeno’s notetaking, for which no
explanation has been offered, violated Section 8(a)(1) of the
Act.
c. The unlawful remarks of Jimmy Fulks on April 30
Paragraph 5B of the second consolidated amended complaint
alleges that on April 30, Fulks told the employees attending the
union meeting that he was closing the plant and firing everyone
because the employees had engaged in union activities. The
Respondent argues, and the evidence shows, that Fulks did not
expressly state that he was shutting down the facility because of
the union meeting.25 When one employee explained that they
were holding a union meeting, Fulks testified “I told them that I
really didn’t care what they did. I was shutting the operation
down.” Counsel for the General Counsel asserts that by
“[t]elling employees that [he] did not care what they do and that
he is closing the plant and to clock out while in the midst of a
union organizing meeting is tantamount to telling various em-
ployees that the plant is shut down because they attended the
union meeting.” (GC Br. at p. 21.)
In order to accurately assess the import of Fulks’ words, it is
important to consider the circumstances and context in which
they were made. The evidence shows that Fulks drove to the
Chariot facility because Schoen told him by phone that the
employees were holding a union meeting purportedly on Char-
iot’s property, that Mayhew declined to leave after being told
he was trespassing, and that the police had been called. As he
approached the Chariot parking lot, Fulks encountered the po-
23 Respondent’s counsel argues that the General Counsel must prove
what was written before a violation can be found, but offers no case law
in support of that position. I disagree and find that it is the conduct and
not necessarily the content that controls whether a violation has oc-
curred. I also reject Respondent counsel’s assertion that even if a viola-
tion occurred, it is too minor to warrant a remedy.
24 In contrast, the evidence supports a reasonable inference that in-
formation recorded by Greeno was later used by him to discriminate
against the union supporters. Hours after taking the notes, Greeno ar-
ranged interviews with Vincini for almost everyone who did not attend
the Union meeting. The next morning, he attended most of those inter-
views, gave guidance to Vincini during the hiring process (Tr. 742,
950), and ultimately Mariah hired everyone who was interviewed that
day. In contrast, none of the employees who attended the union meeting
was interviewed or hired by Mariah.
25 Only one witness, Brent Houseworth, testified that Fulks said, “I
don’t care what you do, I won’t tolerate a damn union, clock out and go
home.” (Tr. 315.) For demeanor, and other reasons, I do not credit this
portion of Houseworth’s testimony.
CHARIOT MARINE FABRICATORS 349
lice officer leaving. He testified that “I told him that I had been
informed that Randy Mayhew was trespassing on Chariot prop-
erty and, I wanted him off our property. I introduced myself, I
told him who I was. And I told him I wanted Mayhew off our
property immediately. He told me he had to check to make
sure, to see if he was trespassing. I told him I knew he was
trespassing. And he declined to do anything at that point.” (Tr.
1419.) Notably, Fulks did not tell the police that the employees
were trespassing or that he wanted them removed from the
premises. Thus, the evidence shows that at that point Fulks was
primarily concerned with Mayhew trespassing.
By the time Fulks reached the Chariot parking lot, however,
his attention shifted from Mayhew to the employees. The evi-
dence shows that instead of addressing Randy Mayhew, the
alleged trespasser, Fulks directed his comments solely to the
Chariot employees attending the union meeting on their lunch
break. Former Chariot employee, Marty Williams, credibly
testified that when Fulks exited his car he said, “I don’t know
what you guys think you are doing, but you are not going to do
that at this plant.”26 (Tr. 59.) What the employees were doing
was having a union meeting on their lunch hour. Fulks knew
that because Schoen told him so on the phone minutes before.
He also knew that because the union meeting was still in pro-
gress when he arrived, and because “an employee made a
statement, about us having a meeting,” to which Fulks replied,
“I told him I didn’t really care what they did. I was shutting
down the operation.” (Tr. 1419.)
In this context, and under these circumstances, the evidence
supports a reasonable inference that the union meeting was the
focus of Fulks’ comment “that you are not going to do that at
this plant,” even though he did not come right out and say it.
When coupled with the announcement that the plant was shut-
ting down, and that everyone should clock out, I agree with
counsel for the General Counsel that Fulks’ remarks were tan-
tamount to telling the employees that the plant was being
closed because of the union meeting. Accordingly, I find that
Fulks’ remarks tend to interfere with the employees’ Section 7
rights in violation of Section 8(a)(1) of the Act.
d. The employee handbook provisions
Paragraphs 6A and C of the second consolidated amended
complaint respectively allege, and the parties stipulated, that
between November 2, 1996, through April 30, 1997, and from
August 2, 1997, Chariot and Mariah respectively maintained
employee handbooks which, under a section entitled “Em-
ployee Relations,” contained the following identical provision:

[Respondent] is continually interested in providing the best
possible pay, benefits, and working conditions for the better-
ment of employees and [Respondent]. The ability and desire
of [Respondent] to continue in this manner is dependent on
the absence of outside intervention, and the restraints caused
by collective representation. While [Respondent] recognizes
the lawful rights of employees to be represented by a labor

26 Fulks did not deny making this statement. Rather, he stated that he
could not remember “all the statements” that he made while talking to
the employees and testified as what he “basically told them.” (Tr.
1418.)
organization [Respondent] does not believe such representa-
tion is in the best interests of employees and [Respondent].
[Jt. Exhs. 1 & 2, p. 5, VIII.B.]

The parties further stipulated that Chariot, as well as Mariah
provided the handbook to all employees. Counsel for the Gen-
eral Counsel asserts that the provision contains an implied
threat of loss of wages, benefits and working conditions if the
employees attempt to organize.
Section 8(a)(1) of the Act prohibits an employer from inter-
fering with, threatening, or coercing employees in the exercise
of their Section 7 rights to support or oppose a labor organiza-
tion, or to engage in or refrain from engaging in concerted ac-
tivity. This prohibition, however, is counterbalanced by Section
8(c) of the Act which states:

Expressing any views, argument, or opinion, or the dissemi-
nation thereof, whether in written, printed, graphic, or visual
form, shall not constitute or be evidence of an unfair labor
practice under any of the provisions of this Act, if such ex-
pression contains no threat of reprisal or force or promise of
benefit.

In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), the Su-
preme Court established the general standard for evaluating the
lawfulness of employer statements concerning employees’
Section 7 activity. The Court effectively framed the analytical
question as whether the employer’s statement constitutes an
unlawful threat of retaliation in response to protected activity,
or a lawful, fact-based prediction of economic consequences
beyond the employer’s control. Id. at 617–619.
The Respondent’s written assertion that its “ability and de-
sire” to continue paying the best possible pay, benefits, and
working conditions “is not couched in terms of what may hap-
pen “if” the employees seek collective representation. The
statement is unaccompanied by any objective factual informa-
tion explaining why there would likely be a change as a result
of unionization. See IPLL, Inc., 321 NLRB 463, 468 (1996).
Further, the provision conveys the impression that its ability to
continue paying the best possible pay, benefits, and working
conditions is solely within its control. I therefore find that the
written statement constitutes an implied threat of retaliatory
conduct.
The Respondent argues, however, that no violation of the
Act has occurred because the General Counsel has not proven
that any employee actually read the provision. It relies on
E & L Transport Co. v. NLRB, 85 F.3d 1258 (7th Cir. 1996),
where the court stated that an unlawful verbal statement made,
but not heard by an employee, cannot give rise to an 8(a)(1)
violation. I find that the Respondent’s reliance on E & L Trans-
port Co. is misplaced.
A verbal statement made by a supervisor, if unheard, is eva-
nescent and therefore does not tend to interfere with an em-
ployee’s Section 7 rights. On the other hand, a written provi-
sion, contained in an employee handbook that was given to all
employees, is an everlasting reference source and a perpetual
reminder to the employee of the employer’s written statement.
That is particularly true, where, as here, the employee hand-
book was represented by the employer to be a memorialization
of the terms, conditions, and standards of its personnel opera-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 350
tions, and was distributed to the employees, who were encour-
aged by the employer to “acquaint themselves fully with the
content of the [handbook].”27
Accordingly, I find that the maintenance of the above-
referenced rule violates Section 8(a)(1) of the Act.
Paragraphs 6B and D of the second consolidated amended
complaint also allege that, and the parties stipulated, that be-
tween November 2, 1996, through April 30, 1997, and from
August 2, 1997, Chariot and Mariah respectively maintained
employee handbooks which, under a section entitled “Em-
ployee Relations,” contained the following identical provision
prohibiting:

Wasting time, loitering or engaging in nonwork-related con-
versation on [Respondent] property during working hours.[Jt.
Exhs. 1 & 2, p.45, D.1.]

The General Counsel argues that the provision is overly
broad and presumptively invalid. I agree. The published rule on
its face prohibits all conversation during working hours, that is,
from the beginning to the end of workshifts, including periods
of the employees’ own time. Because employees are presump-
tively privileged to solicit union support in nonworking areas
on company property during their breaktimes, I find that the
above-reference rule violates Section 8(a)(1) of the Act. Our
Way, Inc., 268 NLRB 394 (1983).
2. The 8(a)(3) violations
a. The single-employer issue
Paragraphs 2E, F, and G of the second consolidated amended
complaint, read in tandem with paragraphs 8A–C, allege that
between April 30 and June 19,1997, Chariot and Mariah were a
single-integrated employer,28 and that the closing of Chariot
was a partial closing of the single employer, motivated by anti-
union animus, and intended to chill unionism at Mariah.
In determining whether two nominally separate employing
entities are a single employer, the Board considers four factors:
common ownership, common management, interrelations of
operations, and common control of labor relations. Dow
Chemical Co., 326 NLRB 288, 288 (1998). No single factor is
controlling and not all need be present. “Rather, single-
employer status depends on all the circumstances and is charac-
terized by the absence of the arm’s-length relationship found
between unintegrated entities.” Id. [Citations omitted.] Apply-
ing this four-factor test to the facts of the case, the evidence
shows the following.
(1) Common ownership
Mariah and Chariot are two closely held stock corporations.
Fulks owns 89 percent or the vast majority of controlling stock
of Mariah. He also owns 50 percent of Chariot’s stock, a sub-
chapter S corporation, which he helped start in 1994. The other
50 percent of Chariot’s stock is owned by Schoen, a cofounder
of the corporation. Evidence of common ownership is therefore
present.

27 See Jt. Exhs. 1 & 2, p.1.
28 Counsel for the General Counsel alternatively argues that Chariot
and Mariah were alter ego employers and that after Chariot closed,
Mariah operated as a disguised continuation of Chariot.
(2) Common management
Fulks is Mariah’s president and treasurer, as well as a mem-
ber of its board of directors. The remaining corporate directors
are his wife, Gerald Gene Fulks, his son, Rance Fulks, Mariah’s
chief financial officer, Guy W. Coons, and Schoen,29 who is
also Mariah’s corporate counsel and registered agent.
In addition, the evidence shows that Fulks was chairman of
the board of directors and treasurer of Chariot. Schoen was
Chariot’s president, registered agent, and a member of Char-
iot’s board of directors. The other Chariot directors were their
respective wives, Gerald Gene Fulks, and Bobbi S. Schoen,
who was also Chariot’s corporate secretary.30 Thus, the evi-
dence shows that control of both corporations rests with a small
group comprised of many of the same people with Fulks and
Schoen holding key management positions in both companies.
The events at issue here also underscore that Fulks was ac-
tively involved in decision-making at both corporations. It was
Fulks, not Schoen, who abruptly ordered Chariot to close down
on April 30. He did so without any vote or discussion among
Chariot’s board of directors. When asked why he did not seek
board approval, Fulks testified, “[I]it was not necessary.” (Tr.
810.) That statement, alone, supports a reasonable inference
that Fulks exercised actual control over Chariot corporate deci-
sions.
The evidence also discloses that after deciding to close Char-
iot, Fulks personally arranged for the bank to purchase Char-
iot’s equipment and then negotiated a lease-purchase agree-
ment, which allowed Mariah to acquire the same equipment,
thereby avoiding any interruption of the stainless steel work in
progress. Fulks also facilitated the transition of work to Mariah
when he instantly hired Chariot Plant Manager Harley Greeno
as a Mariah supervisor and empowered him to oversee the
stainless steel parts and aluminum ladder work previously per-
formed by Chariot. Greeno immediately arranged interviews
with Vincini, which resulted in the hiring several former Char-
iot employees, like, Eric Framberg, a leadperson in the Char-
iot’s stainless steel department, who went to work for Mariah
the next day performing essentially the same duties he had
performed for Chariot. Thus, the evidence supports a reason-
able inference that Fulks was actively involved in making key
management decisions simultaneously for both Chariot and
Mariah, and that an “arm’s-length relationship” did not exist
between these companies.
(3) Centralized control of labor relations
Indicia of centralized control of labor relations include the
virtually identical manuals of personnel policies, procedures
and operations, that were written by Fulks for Mariah and then
modified by Schoen for Chariot and Mariah. The manuals con-
tain the same policies concerning employer rights, substance
abuse, selection (hiring) and examination, hours, meals and rest
periods, compensation and payroll practices, benefit, leaves and
holidays, etc. In addition, the evidence shows that Chariot’s
29 Schoen does not own stock in Mariah.
30 The evidence shows that, Zella Ferlong, who was employed by
Mariah as Fulks’ personal secretary, also served as Chariot’s assistant
corporate secretary, and that in July 1997, Bobbi Schoen was replaced
as Chariot’s secretary, by Fulks’ son, Rance.
CHARIOT MARINE FABRICATORS 351
health benefits were centralized under Mariah for cost benefit
reasons. Chariot employees were covered by Mariah’s health
insurance plan and the cost incurred by Mariah was billed back
to Chariot.31 The evidence also reflects that an annual picnic
and Christmas party was jointly attended by Mariah and Char-
iot employees.
The evidence further shows that Fulks was actively involved
in key labor relations decisions. Schoen testified that he con-
sulted Fulks on personal decisions, like hiring the two plant
managers who preceded Harley Greeno (Tr. 1311), because he
and Fulks “had a mutual ownership interest in the business.”
The evidence also shows that at times Fulks effectively over-
shadowed Schoen, even though Schoen was president of Char-
iot. For example, on April 30, Fulks gave the orders for every-
one to go home and to shut the plant down, even though Schoen
was present. Likewise with Mariah, Fulks told Greeno to in-
form the former Chariot employees that they could apply for
work at Mariah and also instructed him to hire employees for
the stainless steel operation. The evidence further shows that,
after Chariot closed, Fulks likewise made arrangements for
Mariah to hire Chariot’s production coordinator, Fran Brock.
(Tr. 1083.) Thus, the evidence supports a reasonable inference
that, at critical times, Jimmy Fulks and Jimmy Fulks alone,
made critical labor relations decisions for both corporations
indicating a common control of labor relations.32
(4) Interrelations of operations
The undisputed evidence establishes that Chariot and Mariah
operated at a common situs at West Frankfort, Illinois.33 The
building contained approximately 212,000 square feet of space
of which Chariot occupied 80,000 square feet. Although the
two operations were separated by a firewall, Chariot and
Mariah shared the same parking lot, restrooms, breakroom, and
timeclock.34 The evidence also discloses that Chariot manufac-
tured trailers, mostly for Mariah. It was the exclusive source of
stainless steel parts and aluminum fuel tanks for Mariah boats,
which were made at Mariah’s main facility only 6 miles away.
Because most of Chariot’s trailers were made to fit Mariah’s
boat and because all of its stainless steel and aluminum parts
were custom made for Mariah, the evidence supports a reason-
able inference that the two corporations had many of the same
customers.

31 Although Chariot and Mariah had separate commercial property,
auto, and umbrella liability insurance policies, the evidence discloses
that they were purchased from the same insurance carrier and that
Mariah was named as a coinsured, along with the bank, on Chariot’s
commercial property insurance policy. (Tr. 23.)
32 The Respondent nevertheless argues that day-to-day labor rela-
tions at both facilities were separately controlled by Schoen at Chariot
and Vincini at Mariah. The fact that day-to-day labor relations matters
are handled at the local level is not controlling, Task Force Security &
Investigations, 323 NLRB 674, 677 (1997), particularly, where, as here,
one corporate officer/owner can effectively dictate labor relations pol-
icy at both corporations.
33 Mariah’s main plant was located approximately 6 miles away in
Benton, Illinois.
34 Fulks testified that Mariah had its own timeclock, but the credible
evidence establishes otherwise.
In addition, the evidence shows that the products of both
corporations were often depicted in the same sales brochures35
and that Mariah’s sales personnel emphasized that Chariot
stainless steel parts were part of Mariah’s integrated manufac-
turing process. Stephen E. Coil, who in 1997 was Mariah’s
director of sales and marketing—northeast region, testified that
on a plant tour “one of the things that we talk about on our
boats is—and about the company itself is—how we’re verti-
cally integrated. Probably, more so than any company in the
industry. We build more components for our boats. So, that’s
one of the selling pitches that we use in selling. We build our
own aluminum fuel tanks. We build our own stainless steel rails
and ladders.” (Tr. 1051, 1053.) He specifically stated that in the
course of a sales presentation he would mention Chariot trailers
and stainless steel parts because that was part of the vertical
integration. (Tr. 1053.)
The interrelationship of operations between Mariah and
Chariot is best exemplified by the manner in which Mariah
took over Chariot’s entire stainless steel and aluminum parts
operation when Fulks closed Chariot. The day after Chariot
closed, its equipment for manufacturing stainless steel and alu-
minum parts was taken over by Mariah and eventually a lease-
purchase agreement was negotiated with the bank. The raw
materials for manufacturing the stainless steel and aluminum
parts, as well as the parts in progress were also taken over by
Mariah.36
The evidence also shows that half of Chariot’s work force
followed the work, along with the equipment to Mariah. Ap-
proximately 20 Chariot employees, who did not attend the un-
ion meeting, were hired by Vincini between May 1–3, and re-
turned to work at the Chariot facility under the supervision of
Harley Greeno, Chariot’s former plant manager. The ease with
which the overnight transfer was accomplished, particularly
without any preplanning, supports a reasonable inference that
the two companies were part of a highly integrated operation.
Under all of these circumstances, I therefore find that Char-
iot and Mariah were a single employer.
The General Counsel also argues, however, that Mariah was
the alter ego of Chariot. While the criteria for determining alter
ego status is similar to that used to determine single employer
status, the Board also considers in determining alter ego status
whether the two enterprises have the same business purpose
and whether the alter ego was created in order to evade respon-
sibilities of the Act. Because the two corporations did not have
the same overall business purpose (i.e., Chariot manufactured
boat trailers and Mariah manufactured boats), I find that Mariah
alternatively was not the alter ego of Chariot.
35 The Respondent argues, and the evidence shows, that Chariot paid
for a portion of the brochure and that occasionally trailers manufactured
by other companies were depicted with Mariah boats. However, that
does not detract from the evidence that Chariot stainless steel parts
were touted by Mariah as part of its integrated manufacturing process
or that most Chariot trailers were custom made for Mariah boats.
36 There is no evidence that Mariah paid Chariot for the raw materi-
als used to complete the stainless steel work in progress, which further
underscores the absence of an arm’s-length relationship between the
two corporations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 352
b. The unlawful partial closing
(1) The analytical framework
The complaint alleges, and the General Counsel argues, that the Re-
spondent Chariot/Mariah partially closed Chariot in order to stop the
unionizing effort at Chariot and to chill any threat of unionism at
Mariah’s nearby Benton facility. In the seminal case of Textile Workers
v. Darlington Mfg. Co., 380 U.S. 263 (1965), the Supreme Court held
that “a partial closing is an unfair labor practice under Section 8(a)(3),
if motivated by a purpose to chill unionism in any of the remaining
plants of the single employer and if the employer may reasonably have
foreseen that such closing will likely have the effect.” 380 U.S. at 275.
The Court stated that the following elements are necessary in order to
find an unfair labor practice:

If the persons exercising control over a plant being closed for
anti-union reasons (1) have an interest in another business,
whether or not affiliated with or engaged in the same line of
commercial activity as the closed plant of sufficient substanti-
ality to give promise of their reaping a benefit from the dis-
couragement of unionization in that business; (2) act to close
their plant with the purpose of producing such a result; and (3)
occupy a relationship to the other business which makes it re-
alistically foreseeable that its employees will fear that such
business will also be closed down if they persist in organiza-
tional activities, we think that an unfair labor practice has
been made out. 380 U.S. at 275–276.

Because direct evidence of motivation and chilling effect is
rarely available, proof of these elements may be based on “fair
inferences arising from the totality of the evidence considered
in light of the then-existing circumstances.” Darlington Mfg.
Co., 165 NLRB 1074, 1983 (1967), on remand from Textile
Workers v. Darlington Mfg. Co., supra. In determining whether
or not the proscribed “chilling” motivation and its reasonably
foreseeable effect can be fairly inferred from the totality of
then-existing circumstances, the Board considers the presence
or absence of several factors including, among other things:

contemporaneous union activity at the employer’s remaining
facilities, geographic proximity of the employer’s facilities to
the closed operation, the likelihood that employees will learn
of the circumstances surrounding the employer’s unlawful
conduct through employee interchange or contact, and, of
course, representations made by the employer officials and
supervisors to other employees.

Bruce Duncan Co., 233 NLRB 1243 (1977).
(2) Interest and relationship
As to “interest” and “relationship,” the Court and the Board
have stated that a single-employer finding, like the one above,
necessarily satisfies these elements. Darlington Mfg. Co., 380
U.S. at 276; 165 NLRB at 1077. The evidence here establishes
that the “person exercising control over” Chariot and Mariah
(i.e., Fulks), has a substantial interest and significant control
over another business (i.e., Mariah) from which he would reap
a benefit by discouraging unionization at Chariot. As shown
above, in addition to being an officer, director, 50 percent
shareholder, and active corporate decision maker at Chariot,
Fulks is the president, treasurer, director, and majority share-
holder of Mariah. Not only does the evidence show the exis-
tence of power of control, but also the actual exercise of that
power given Fulks’ involvement in events surrounding the
closing of Chariot and the transition of work to Mariah. Thus, I
find that interest and relationship elements have been satisfied.
(3) Unlawful motivation and reasonably foreseeable
chilling effect
Ample evidence exists of the Respondent’s antiunion ani-
mus. To begin with, the implied threat of loss of wages, bene-
fits, and working conditions contained in the Respondent’s
employee handbook is evidence of antiunion animus. Cf.,
Lampi LLC, 327 NLRB 222 (1998); see also Gencorp. 294
NLRB 717 fn. 1, 730–731 (1989). Contempt for the Union is
also reflected by Fulks’ words, when he precipitously closed
Chariot on April 30. According to the unrebutted evidence,
Fulks told the employees attending the union meeting on their
lunch hour, “I don’t know what you guys think you’re doing,
but you’re not going to do that at this plant. I want you all to
get up, go in and get out. This plant is closed.” (Tr. 59.) The
evidence supports a reasonable inference that Fulks was refer-
ring to the union meeting taking place on the sidewalk in front
of the Chariot, which he disapproved of. His disapproval was
further expressed by his conduct in precipitously closing the
plant.
Further evidence of antiunion animus is reflected in the man-
ner of treatment received by employees attending the union meet-
ing compared to those who did not attend the meeting. Everyone
outside at the meeting was ordered to clock out immediately
without explanation and thereafter their personal belongings were
searched as they exited. Everyone inside was asked to attend a
meeting in the cafeteria where they were told that the plant was
being closed purportedly for financial reasons. They then were
allowed to leave without having their personal belongings
searched. That evening, some, not all, of the employees who
attended the Union meeting received a phone message from plant
manager Greeno telling them that they could apply for a job at
Mariah, but without telling them when they could apply and
without any attempt to schedule an interview for them the follow-
ing morning. In contrast, Greeno arranged interviews for every-
one inside, except two employees, with Mariah Human Re-
sources Manager Vincini the next morning. The two inside em-
ployees, who were not interviewed, were wearing union buttons
at the cafeteria meeting. No one who attended the union meeting
was ever interviewed or hired by Mariah, while everyone on the
inside who was interviewed was hired the day they were inter-
viewed. I find that this evidence of disparate treatment was moti-
vated by antiunion animus.
Lastly, the timing of the closing establishes the Respondent’s
antiunion animus. The undisputed evidence shows that had it
not been for the union meeting, Fulks would not have closed
the Chariot facility on April 30. On cross-examination by the
Union’s counsel, Fulks was asked:

Q. My question is, sir, but for the union meeting which
occurred on April 30, you had not [sic] plans to close the
facility on April 30th?
A. That is correct.

CHARIOT MARINE FABRICATORS 353
(Tr. 837.) Fulks’ admission, standing alone, establishes anti-
union animus.37
In addition to the above, the credible evidence supports a
reasonable inference that the closing was motivated by contem-
poraneous union activity at Mariah’s nearby Benton facility.
The unrebutted evidence reflects that between February–April
1997, the IUOE sought to organize Mariah’s employees. Orga-
nizing director, Rodney Hale testified that he met with Mariah
employees in various cafes and bars in Benton. His testified
was corroborated by fellow IUOE organizer Tom Reidelberger
and by Mariah employee, Mary Nalley, who testified that she
met with Hale and Reidelberger in late March 1997. According
to Nalley, she agreed to help Hale organize a union at Mariah
and signed a union authorization card. When Local 399 subse-
quently obtained a few more authorization cards from Mariah
employees, it scheduled an organizing meeting at a local hotel
in the early part of May.
Also, on or about April 18, the IBEW Local 702 handbillled
at Mariah as part of an overall effort to canvas support for a
union organizing effort among the boat industry employers in
the Benton-West Frankfort area. IBEW organizer Charles
Hughart credibly testified that two members of their organizing
committee passed out handbills at Mariah. His testimony essen-
tially was corroborated by former Mariah Regional Sales Man-
ager Kenneth Crews, who acknowledged that handbilling oc-
curred at Mariah sometime between January-April 30. (Tr.
989.) Thus, the evidence establishes that on or about the same
time that the Union was seeking to represent Chariot’s employ-
ees, two other unions were engaged in organizing activity at
Mariah, and that the Respondent, through its regional sales
manager, was aware of the contemporaneous union activity.
Indeed, Fulks acknowledged that there was union activity in
the Benton-West Frankfort area and that he anticipated organiz-
ing activity at Mariah. According to Mariah employee, Mary
Nalley, Fulks told the employees that the unions were handbill-
ing and picketing the boating industry employers in the area,
and that he expected some handbilling at Mariah. (Tr. 331.) The
evidence further reflects there was an expectation that Mayhew
might picket Mariah after Chariot closed. On May 3, Schoen
faxed Mayhew a letter warning him not to come on Mariah’s
property or else he would be prosecuted for criminal trespass.
(R. Exhs. 48(a)–(b).) Thus, in addition to animus toward the
Union, the evidence supports a reasonable inference that the
decision to close Chariot was motivated by a concern about
contemporaneous union activity at, and all around, Mariah, as
well as an expectation that the Union’s organizing activity
would carryover from Chariot to Mariah.
The likelihood that unionism at Chariot would spread to
Mariah is evident from the fact that Mariah’s Benton facility
was only 6 miles from the Chariot/Mariah facility in West
Frankfort and, more importantly, that Chariot and Mariah were
housed in the same building at West Frankfort. Even though the

37 The admission also unequivocally establishes a violation of Sec.
8(a)(3) of the Act under Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), because
Fulks admitted that had it not been for the union activity on April 30,
he would not have closed the facility on that date.
two operations were separated by a cinderblock firewall, the
evidence establishes that the Mariah employees at West Frank-
fort interfaced with the Chariot employees everyday. They
shared the same lunchroom, restrooms, parking lot, timeclock,
nominal supplies, and often borrowed each others’ equipment.
When Chariot was closed on April 30, half its work force be-
came Mariah employees, who continued working along with
the other Mariah employees at that facility until June 19, when
everyone was relocated to the Benton facility. Thus, the evi-
dence supports a reasonable inference that if the Union wanted
to parlay a successful organizing campaign at Chariot into an
organizing campaign at Mariah, the West Frankfort facility was
a likely place to start and that union activity would have likely
spread to the Benton facility which was only 6 miles away.
In addition, the space sharing arrangement at West Frankfort
and the close geographic proximity of Benton made it more
likely than not that the Mariah’s employees would see, hear,
and read about the Chariot plant closing as evidenced by the
actual chain of events which immediately followed the plant
closing. The undisputed evidence shows that when Fulks
abruptly closed Chariot, word of the closing quickly spread
throughout the building creating confusion among the other
Chariot employees, who did not know whether to leave or stay.
It is unrealistic to believe that the Mariah employees, who
shared the same lunch facilities with the Chariot employees,
were insulated from the commotion or would have likely been
insulated from learning the circumstances surrounding the
abrupt closing. Even if they did not learn of the circumstances
surrounding the closing on April 30, the evidence supports a
reasonable inference that they learned about it the very next
day, when most of the Chariot employees who did not attend
the union meeting, returned to the West Frankfort building as
Mariah employees. Thus, the evidence supports a strong likeli-
hood that the Mariah employees at West Frankfort learned
about the circumstances surrounding the closing through em-
ployee interchange or contact.
Also, the media attention which the plant closing received in
the small community of Benton-West Frankfort makes it more
likely, than not, that the Mariah employees located in Benton
learned of the circumstances surrounding the plant closing. The
evidence reveals that there was a substantial amount of local
newspaper coverage immediately following the plant closing
and that both Fulks and Mayhew spoke to, and were quoted in,
the press on numerous occasions about why Chariot was
closed. (Tr. 811.) The news coverage therefore created a
heightened awareness in the community, which included
Mariah employees, that the closing took place in the midst of a
union organizing drive.
The evidence also shows that the Mariah employees at the
Benton facility learned about the circumstances surrounding the
Chariot closing from Fulks himself. Purportedly in response to
stories that he had closed Chariot because of the union activity,
Fulks called a meeting of Mariah employees in early May,
where he denied closing Chariot because of the union and told
everyone that the plant was closed for financial reasons. (Tr.
331.) In the same breath, however, Fulks told the employees
that the Union might attempt to handbill at Mariah, because
handbilling was occurring at other area boating industry em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 354
ployers. Fulks then assured the employees that there was no
cause for alarm because he was going to hire a security force
for the Benton facility. In the greater scheme of things, it was
reasonably foreseeable that, by raising the issue and denying
that Chariot was closed because of union activity, Fulks would
bring attention to the circumstances surrounding the closing
and fuel speculation as to whether union activity was a factor.
In addition, on the heels of Fulks’ remarks, Mariah’s human
resources manager, John Vincini, embarked on a campaign to
solicit employee support and donations for a newspaper adver-
tisement, that he helped draft, chastising Mayhew, denouncing
the Union, and praising Fulks. A copy of the published adver-
tisement was subsequently circulated by Mariah supervisors for
employees to sign in a show of support for Fulks. I find that it
was foreseeable that the circulation and publication of the
newspaper ad would prolong the discussion about why Chariot
was closed, and underscore for Mariah’s employees the fact
that management was opposed to the Union.
Finally, the credible evidence shows that after Chariot was
abruptly closed on April 30, employee interest in unionizing the
boating industry employers in the Benton-West Frankfort area
dissipated. Local 399 organizer, Rodney Hale, testified that his
union held a meeting for Mariah employees at a local hotel
during the first few days of May, but only a few employees
attended. Those that did attend did not express any interest in
joining Local 399, and one employee, who previously had
signed a written authorization card, asked for it back. IBEW
Local 702 organizer Charles Hughart similarly testified that
after his union handbilled Bombardia and Mariah in late April,
it received phone calls from employees interested in joining the
union. An organizational meeting on May 3 was attended by
one Bombardia employee and a meeting on May 9 was at-
tended by three Mariah employees. After that, both Local 399
and Local 702 discontinued their efforts to organize the boat
manufacturers in the area.
In light of the Respondent’s animus toward the Union, the
timing of the closing, and the contemporaneous union activity
at Mariah, I find that the Respondent precipitously closed Char-
iot to chill unionism at Mariah. I further find that because Char-
iot and Mariah occupied the same building, and shared com-
mon areas at West Frankfort, and because of the size of the
community and the close geographic proximity of West Frank-
fort to Benton, the Mariah employees would, and did, see, hear,
and read about the circumstances surrounding the closing, and
therefore the chilling effect was reasonably foreseeable.
3. The Respondent’s defense
The Respondent first argues that Fulks and Schoen decided
to close Chariot for economic reasons. The evidence shows that
from its inception Chariot was not a profitable operation.
Marvin Samples, who became Chariot’s controller in February
1997, testified after he familiarized himself with Chariot’s fi-
nancial statements, he realized that Chariot had been losing
money for years and that it would continue losing money for
the foreseeable future. Samples explained that Chariot was
financially overextended and had difficulty paying its suppliers
on a timely basis. A monthly analysis prepared by Samples
disclosed that man-hours to produce trailers were exceeding
estimates, thereby increasing the cost of production.
The evidence also shows, however, that even though Chariot
had been losing money all along, the bank continued to extend
credit to the Company and Chariot continued to purchase pro-
duction equipment, particularly stainless steel equipment.38 The
evidence also shows, and Samples conceded, that for the period
January–April 1997, Chariot’s losses had begun to decrease and
its financial position had improved, with the stainless steel
operation actually making a profit (R. Exh. 40(a)-(e)) and the
overall operation actually producing ordinary income of ap-
proximately $90,000, rather than a net loss. (R. Exh. 62.) In
fact, in early April, shortly before the Union organizing drive
began, the Company gave most of its employees a wage in-
crease, retroactive to March. Thus, the evidence discloses that
while Chariot’s financial position was not good, that was noth-
ing new, and that it was getting better, not worse, around the
time facility closed.
The Respondent further argues that Fulks and Schoen de-
cided to close Chariot on May 2 because there was no more
work to do. Schoen testified that he and Fulks agreed on the
May 2 date because “Jimmy had told me that there were no
orders at Mariah, that Mariah didn’t have any need for Chariot
products, stainless steel or aluminum. And there were no boats
going to be built to put those products on, no trailers to
build. . . . .” (Tr. 1327.) While Fulks stated that boat production
was slow at Mariah from April–June, he also testified that
“[t]here were areas of the stainless steel and aluminum that was
running behind, lagging behind, had not kept up, that we had
things back-ordered, so to speak.” (Tr. 826.) According to
Fulks, the stainless steel parts and aluminum fuel tanks were
crucial to Mariah’s operation. As a result, 20 former Chariot
employees (or almost half of Chariot’s work force), who did
not attend the union meeting, were instantly offered employ-
ment with Mariah on May 1 in order to complete that work-in-
progress, which included the completion of trailers, even
though many of them had never before worked in the stainless
steel and aluminum department.39
In addition, Renee Brock, a former Chariot trailer production
coordinator, testified that as of Friday, April 25, there were 45
trailers on schedule, with 11 waiting to be added, and 13 trailers
that had to be developed. As of Tuesday, April 29, the number
of trailers on schedule increased to 55, with 8 waiting to be
scheduled, and 8 that had to be developed. The credible evi-
dence further shows that around this time, and for several
weeks prior to, many Chariot employees were working 50–55

38 Chariot’s monetary losses were not necessarily an incentive to
close the facility. The evidence shows that as a subchapter S corpora-
tion, the losses passed directly through to the two principal sharehold-
ers, Fulks and Schoen, who were entitled to use the losses to offset
personal income on their individual income tax returns. (R. Exhs. 60 &
61.)
39 For example, former Chariot employee, Paul Johnson, was a
warehouseman at Chariot. Justin Isaacs, Bobby Isaacs, and Bennie
Isaacs were truckdrivers who delivered trailers. Daniel Taylor worked
in plant maintenance and Ronnie Riddle was a general laborer. Donald
Morgan worked in trailer assembly, along with Larry Fouret Jr. (See
GC Exhs. 42(a)–(t).)
CHARIOT MARINE FABRICATORS 355
hours per week earning considerable amounts of overtime.
Thus, contrary to Schoen’s assertions that there was no need for
stainless steel and aluminum parts at Mariah, and that the trailer
work overall was slow, the evidence, including, but not limited
to, Fulks’ testimony, shows that there was work to be done
when Chariot closed on April 30.
Next, the Respondent argues that it decided to close Chariot
because its landlord would not extend the building lease beyond
June 19 without a proposal to buy the building. The evidence
shows that in mid-April 1997, Schoen was advised by Chariot’s
new landlord that its lease would not be extended beyond June
19, unless Chariot was interested in making a proposal to buy
the building. Schoen testified that he was not interested in pur-
chasing the building because it was in poor condition and be-
cause it would take several hundred thousands of dollars to
make repairs. Schoen further testified that he did not tell the
new owner that he was not interested in purchasing the building
because he did not want to foreclose the possibility of getting
another lease extension. (Tr. 1317.) According to Schoen, he
realized on or about April 18, that it would not be possible to
extend the lease, when the landlord’s representative, Fred
Gruen, advised him that the purchase price of the building was
1.35 million dollars. I find that at best Schoen’s testimony es-
tablishes that the Respondent had at least until June 19 before it
would be forced to vacate the West Frankfort facility, if a lease
extension could not be otherwise be obtained, or forced to close
the Company, if it could not find another location. The evi-
dence stops short, however, of establishing that the landlord
notified Schoen that premises had to be vacated by June 19 or
that there were no other suitable locations available.
The contradictory testimony of Fulks and Schoen concerning
when they decided to close Chariot on May 2 raises additional
doubts about the reasons proffered for closing the Company.
Fulks testified that he and Schoen decided that they would
close Chariot on May 2 soon after Fred Gruen told Schoen that
“the building price was 1.35 million dollars and that was
roughly April 18th to 21st, somewhere in that range.” (Tr. 799,
1321.) But Schoen testified that when Gruen told him the pur-
chase price, and he advised Fulks, they did not know exactly
what to do nor did they know exactly when Chariot might
close. (Tr. 1322–1323.) Schoen also testified that when he
spoke to NLRB Field Examiner Christopher Roche, on April
24, he did not tell him that Chariot would close on May 2 be-
cause that decision had not yet been made. When asked by
Respondent’s counsel “[d]id you specifically tell him that you
were going to be shutting down on May 2?” Schoen responded,
“No,” because “I hadn’t filed, at that time, decided to shut
down on May 2nd.” (Tr. 1324.)
Moreover, contrary to Fulks, Schoen testified that the deci-
sion to close on May 2 was not made until April 26, 2 days
after he spoke with Roche. On that date, Chariot’s attorney, Ed
Noonan, purportedly told Schoen that Roche had betrayed a
confidence by disclosing that Chariot was considering closing.
When Schoen was asked by Respondent’s counsel if he dis-
cussed the alleged breach of confidence with Fulks, he stated:

A. I did.
Q. About when would you have passed that along to
Jimmy?
A. Immediately after I learned of the breech [sic] from
Mr. Noonan.
Q. And as a result following this information did you
and Mr. Fulks?
A. Yes, we did.
Q. And what did you decide?
A. That’s when we decided that we, the plant would be
closed and production would cease permanently on May
2nd, 1997.

(Tr. 1327.) Thus, contrary to what Fulks stated, Schoen testi-
fied that the decision to close Chariot was not made until April
26, which was after he learned that the Union had filed an elec-
tion petition.
Adding further doubt to the sequence of events concerning
when the purported decision to close Chariot on May 2 was
made is the evidence showing that Schoen never told the NLRB
Field Examiner that Chariot would close on May 2, even
though he knew that there would be no need for an election if
he submitted an affidavit confirming that a decision had been
made to close Chariot. According to Schoen, he told Roche on
April 24 that “we were fixing to shut down Chariot” (Tr. 1324),
without mentioning a date, to which Roche replied that he
would need an affidavit confirming that fact.40 Although
Schoen is a lawyer, who could have easily prepared a simple
affidavit and faxed it to Roche on April 26, ending any specula-
tion as to when, if ever, Chariot was going to close, he failed to
do so. Instead, on April 26, Schoen sent Roche the following
letter, dated April 26, 1997, which states, in pertinent part:

I then told you that because our young company had never
been profitable; our losses have been substantial; and our
lease which expires June 19, 199,7 is not renewable, our
company was considering ceasing manufacturing operations
and closing its production facility. I told you we were required
to vacate the premises by June 19, 1997. You commented that
the hearing was a fact-finding proceeding and was not adver-
sarial. You discussed the possibility of an affidavit regarding a
decision to close; you said the decision to close which would
obviate the need for an election would have to be more than
“we’re thinking about it.” [R. Exh. 50(a). Emphasis added.]

Not only does Schoen’s letter never mention the possibility of
closing the plant on May 2, it does not state nor imply that a
decision had been made to close Chariot. A plain reading of the
letter reflects that at best Schoen and Fulks were only “consid-
ering” closing Chariot, which contradicts Schoen’s testimony
that he told Roche that they were “fixing to shut down Char-
iot.” Thus, the evidence shows that at no time prior to closing
Chariot did the Respondent advise the NLRB Regional Office
that it definitely was closing the facility or that the closing
would occur on May 2.

40 If Fulks’ testimony that the decision to close Chariot on May 2
was actually made on or about April 18 is to be credited, Schoen could
have told, but inexplicably did not tell, Roche that the plant would close
on May 2, thereby obviating the need for an election.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 356
Nor did the Respondent advise the NLRB Regional Office
that it purportedly had decided on April 26 to close the facility
on May 2, after Chariot closed on April 30. On cross-
examination, counsel for the General Counsel showed Schoen a
copy of the Respondent’s initial response to the subject unfair
labor practice charge, which was prepared by the Respondent’s
attorney, Mr. Noonan. (Tr. 1355–1359.) Schoen testified that
although he reviewed sections of the response in draft form, he
did not review the response in final form. Over the objection of
Respondent’s counsel, Schoen was then asked:

Q. In the drafts that he sent you was there information
that included the date that you intended the plant to close?
That the plant was going to close on May 2nd?
A. I honestly don’t recall exactly what I said at the
time.

(Tr. 1357.)

Over more objections from Respondent’s counsel, counsel
for the General Counsel then asked:

Q. Did you participate in a phone interview with a
Board Agent? Regarding the closing of Chariot?
A. Yes, I did.
Q. And Mr. Noonan participate in that telephone con-
ference call?
A. Yes.

(Tr. 1359.)

Q. During that phone interview did you advise the
Board Agent that you had intended to close the plant on
May 2nd?
A. I don’t know. Without reading it or hearing it, that
interview was over a forty-five minute to an hour period
and I don’t remember it.

Having observed the witness’ demeanor during this line of
questioning, and having listened to him respond in detail to
questions throughout his entire testimony, I find that his re-
sponses to these questions were disingenuous, evasive, and
intended only to shield the truth. I further find that the evidence
supports a reasonable inference that during the investigation
immediately following the filing of the initial unfair labor prac-
tice, the Respondent did not advise the NLRB Regional Office
that a decision had been made to close Chariot on May 2, even
though the Respondent had at least two opportunities to do so.
Further, the evidence shows that not only did Fulks and
Schoen fail to inform the NLRB Regional Office of their pur-
ported decision to close Chariot on May 2, they did not tell
anyone else. They did not tell the Chariot’s board of directors
or seek their approval. They did not tell Chariot’s chief finan-
cial officer. They did not tell any of the employees. With re-
spect to the employees, Schoen testified that he was concerned
about productivity being hurt. (Tr. 1323.)41 He explained that in
the last week or so of April, there had been “problems with
intentional act of, things that had to be intentional acts of sabo-

41 If work was as slow on April 26 as Schoen testified that it was, it
is difficult to understand exactly how much productivity could be hurt
in the few days remaining before the purported closing on May 2.
tage.” (Tr. 1323.) Although Fran Brock, who also handled cus-
tomer complaints, testified that she received “a lot more com-
plaints” in April, the evidence discloses that many of these
problems were detected in late March–early April (R. Exhs. 26
& 27), rather than at the end of April as testified by Schoen.
Further, there is no evidence that any of these mistakes were
intentional nor does the evidence disclose who was responsible
for them. According to Brock, the final inspection of all trailers
was done by Larry Fourez and Tommy Young, and that not-
withstanding the mistakes, at least Fourez was hired by Mariah
immediately after the Chariot plant closed. And contrary to the
impression that Schoen sought to foster, a more plausible ex-
planation for the problems in workmanship is provided by the
evidence showing that between February–April 1997, Chariot
hired several new and inexperienced workers to replace em-
ployees who left, which coincided with the increase in com-
plaints. Thus, when viewed in its totality, the evidence reveals
that there was little or no reason for Schoen not to have told the
employees that a decision purportedly had been made to close
the facility by the end of the week.
What makes the Respondent’s story even less credible is the
evidence showing that there was no plan for closing down the
facility on May 2. When Fulks was asked what was going to
happen on May 2 to the equipment, the materials, and the work
that was in progress, he responded, “wasn’t sure. I was going to
try and get with the bank and work out something with the
bank, or Chariot would have filed bankruptcy. It would have
been one of the two options.” (Tr. 843.) The only thing that
Fulks knew for sure was that he “knew it would take us several
weeks to completely close it down.” (Tr. 842.) Beyond that, he
could not provide any specifics of how the shutdown was going
to proceed.
It is difficult to believe that a businessman, and an attorney,
who personally invested well in excess of $150,000 each in a
business, and who were personal guarantors on the bank loan
for the equipment, would make a decision to close the facility
in a few days without having completely and thoroughly con-
sidered the ramifications of the decision, without making a few
phone calls to banks, suppliers, and customers, and without
even advising their own board of directors, chief financial offi-
cer, and plant manager.
I therefore find that, as Fulks admitted (Tr. 837), had it not
been for the union meeting on April 30, Chariot would not have
been closed on that date or on any other date in the approximate
time period.42 While the evidence shows that Chariot had been
losing money, that its lease quite possibly would not have been
extended beyond June 19, and that it ultimately may have
closed, the credible evidence does not show that a decision had
been made to close the facility on May 2 or June 19 or on any
other date certain in the foreseeable future. At the very least,
the evidence shows that while Chariot may have closed some-
time in the future, the Respondent accelerated the closing be-
cause of union activity and in order to chill the possibility of
42 I am also unpersuaded by the Respondent’s assertions that the de-
cision to close Chariot on April 30, instead of May 2, because Schoen
felt that his management authority had been undermined by Mayhew’s
remarks outside the plant.
CHARIOT MARINE FABRICATORS 357
unionism at Mariah. Accordingly, I find that the Respondent
Chariot/Mariah, a single employer, closed its Chariot facility
for the purpose of chilling unionism at Mariah in violation of
Section 8(a)(3) and (1) of the Act.
4. The refusal to consider/hire the 13 discriminatees
Having found that the Respondent Chariot/Mariah unlaw-
fully closed the Chariot facility in order to chill unionism at
Mariah, it is unnecessary for me to decide whether the Respon-
dent unlawfully refused to consider and/or hire the 13 alleged
discriminatees on an individual basis because the remedy, if a
violation was found, would be commensurate with the rein-
statement and backpay remedy set forth below.
CONCLUSIONS OF LAW
1. The Respondent, Chariot Marine Fabricators & Industrial
Corp. is an employer within the meaning of Section 2(2) of the
Act and is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Respondent, Mariah Boats, Inc., is an employer
within the meaning of Section 2(2) of the Act and is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
3. The above-referenced Respondents are a single employer.
4. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
5. The Respondent, Chariot/Mariah, a single employer, vio-
lated Section 8(a)(1) of the Act by engaging in the following
conduct:
(a) Unlawfully creating the impression of surveillance by
taking notes of employees engaged in union activities.
(b) Unlawfully telling employees attending a union meeting
that the Chariot plant was being closed because they were en-
gaged in union activity.
(c) Promulgating, disseminating, and maintaining an em-
ployee handbook that contains a provision that implicitly
threatens retaliatory conduct if the employees seek union repre-
sentation.
(d) Promulgating, disseminating, and maintaining an em-
ployee handbook that contains provision that discourages, re-
strains, and interferes with employees’ rights to organize and/or
support a union.
6. The Respondent, Chariot/Mariah, a single employer, vio-
lated Section 8(a)(3) of the Act by closing Chariot in order to
discourage membership in, sympathy for, and activities on
behalf of a union at Mariah.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
In most circumstances, where an employer has unlawfully
closed a plant and, in some instances, transferred its operations,
thereby discharging employees for discriminatory reasons, the
Board’s usual remedy is to require the employer to restore the
operation in question and to reinstate all discriminatorily termi-
nated employees, unless the employer can show that restoration
of the status quo ante would be unduly burdensome.43 See Lear
Siegler, Inc., 295 NLRB 857, 861 (1989), and cases cited
therein.44 However, where a reopening remedy would likely be
unduly burdensome and is unnecessary to effectuate the poli-
cies of the Act, the Board has found that the employer’s unlaw-
ful conduct will be sufficiently remedied by a full make-whole
order covering the employees of the closed facility. See La
Conexion Familiar & Sprint Corp., 322 NLRB 774, 781
(1996); Purolator Armored, Inc., 268 NLRB 1268, 1269
(1984), enfd. 764 F.2d 1423 (11th Cir. 1985). In the circum-
stances of this case, I find that an order requiring the Respon-
dent, a single employer, to reopen its Chariot Marine plant
would be unduly burdensome and therefore not appropriate.
The evidence shows that Chariot had two main components: an
unprofitable trailer operation and a profitable stainless steel and
aluminum fuel tank operation. When the Respondent closed
Chariot on April 30, it discontinued the trailer operation, i.e.,
the unprofitable part, and continued the stainless steel opera-
tion, i.e., the profitable part, in the same manner with the same
jobs using the same equipment. Eventually, the stainless steel
operation was transferred to the Mariah facility in Benton, Illi-
nois (6 miles away), where the operation continued to exist at
the time of hearing. In view of Chariot’s financial condition at
the time of its closure, requiring the reopening of that facility, 2
years later, while not threatening the economic survival of
Mariah, in all likelihood would require Mariah to endure an
indefinite period of offsetting Chariot’s overall losses with
profits from the stainless steel operation or possibly boat sales
revenues. See, La Conexion Familiar & Sprint Corp., 322
NLRB at 780–781. In addition, and because Chariot occupied
leased premises, it would be required to find and lease new
premises, which might prove difficult in a small community
like Benton-West Frankfort. Accordingly, I conclude that,
instead of requiring the Respondent to reopen the Chariot facil-
ity, the Respondent’s unfair labor practice will be sufficiently
remedied by the full make-whole order below.45
Because the Respondent unlawfully closed its Chariot plant
in West Frankfort , Illinois, in order to chill unionism at its
Mariah facility in Benton, Illinois, thereby terminating all of the
Chariot production and maintenance employees and truck driv-
ers on April 30, 1997, it shall offer reinstatement at its existing
Mariah facility in Benton, Illinois, to all these employees, in-
cluding, but not limited to, Steven D. Danner, Brent D. House-
worth, Ronald W. Cochran, David Wayne Frost, Phillip L.
Calandro, Michael T. Borga, Ronnie D. Rice, Nicholas E. Rey-
nolds, Terry L. Simms, Gary Simms, Brad Rohach, Arthur R.
Morris, and Marty E. Williams, to their former positions46 or, if

43 Neither counsel for the General Counsel or the Charging Parties
have requested a reopening remedy in this case. On the other hand,
Respondent has not argued that a reopening would be unduly burden-
some.
44 But see also, NLRB v. Special Mine Services, 11 F.3d 88 (7th Cir.
1993).
45 See, Southeastern Envelope Co., 206 NLRB 933, 951–955 (1973);
see also, Cub Branch Mining, 300 NLRB 57, 62 (1990).
46 This aspect of the remedy is appropriate in light of the undisputed
evidence showing that after closing Chariot on April 30, Mariah con-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 358
such positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights and
privileges previously enjoyed; and in the event of the unavail-
ability of jobs sufficient to permit the immediate reinstatement
of all such employees, the Respondent shall place those for
whom jobs are not now available on a preferential hiring list for
any future vacancies which may occur in substantially equiva-
lent positions at the existing Mariah facility in Benton, Illinois.
In order to remedy the losses that these employees may have
suffered as result of the Respondent’s unlawful conduct, I rec-
ommend that the Respondent be ordered to make whole all
production and maintenance employees and truckdrivers, in-
cluding, but not limited to, Steven D. Danner, Brent D. House-
worth, Ronald W. Cochran, David Wayne Frost, Phillip L.
Calandro, Michael T. Borga, Ronnie D. Rice, Nicholas E. Rey-
nolds, Terry L. Simms, Gary Simms, Brad Rohach, Arthur R.
Morris, and Marty E. Williams, for any loss of earnings and
other benefits suffered by them as a result of the Respondent’s
unlawful conduct from the date of April 30, 1997, to the date
the Respondent makes an offer of reinstatement, less any in-
terim earnings, computed in accordance with the Board’s usual
formula set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as computed in the manner set forth in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended47
ORDER
The Respondent, Chariot Marine Fabricators & Industrial
Corp., West Frankfort, Illinois, and Mariah Boats, Inc., Benton,
Illinois, a Single Employer, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Unlawfully creating the impression of surveillance by
taking notes of employees engaged in union activities.
(b) Unlawfully telling employees attending a union meeting
that the Chariot plant was being closed because they are en-
gaged in union activity.
(c) Promulgating, disseminating, and maintaining an em-
ployee handbook containing a provision that implicitly threat-

tinued the stainless steel and aluminum fuel tank operation; immedi-
ately hired 20 former Chariot employees, who did not attend the union
meeting; assigned them to their former stainless steel positions; or
assigned them to other stainless steel positions, even though they had
no prior stainless steel experience (e.g., Gregory Ramsey, Jeremy Grif-
fith, Ronnie Riddle, Donald Morgan, David Batts, Larry Fourez, Gary
Herron and Robert Hearns); or assigned them to their former non-
stainless steel positions (e.g., Justin, Bobby, and Bennie Isaacs as driv-
ers, and Daniel Taylor as maintenance); or in the case of Randy Mur-
phy, assigned him to an entirely different job outside of stainless steel.
See GC Exhs. 42 and 45. The undisputed evidence also shows that all
of these employees were paid a starting wage equal to what they were
paid at Chariot, even though in some cases it was higher that the regular
Mariah wage (Tr. 950).
47 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
ens retaliatory conduct if the employees seek union representa-
tion.
(d) Promulgating, disseminating, and maintaining an em-
ployee handbook containing a provision that discourages, re-
trains, and interferes with employees’ rights to organize and/or
support a union.
(e) Closing the Chariot facility for the purpose of discourag-
ing membership in, sympathy for, and activities on behalf of
the Southern Illinois Laborers District Council, affiliated with
Laborers’ International Union of North American, AFL–CIO,
or any other labor organization.
(f) 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 effec-
tuate the policies of the Act.
(a) Offer reinstatement at its existing Mariah facility in Ben-
ton, Illinois, to all former Chariot production and maintenance
employees and truck drivers, including, but not limited to, Ste-
ven D. Danner, Brent D. Houseworth, Ronald W. Cochran,
David Wayne Frost, Phillip L. Calandro, Michael T. Borga,
Ronnie D. Rice, Nicholas E. Reynolds, Terry L. Simms, Gary
Simms, Brad Rohach, Arthur R. Morris, and Marty E. Wil-
liams, to their former positions or, if such positions no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously enjoyed;
and in the event of the unavailability of jobs sufficient to permit
the immediate reinstatement of all such employees, the Re-
spondent shall place those for whom jobs are not now available
on a preferential hiring list for any future vacancies which may
occur in substantially equivalent positions at the existing
Mariah facility in Benton, Illinois.
(b) Make whole all former Chariot production and mainte-
nance employees and truckdrivers, including, but not limited to,
Steven D. Danner, Brent D. Houseworth, Ronald W. Cochran,
David Wayne Frost, Phillip L. Calandro, Michael T. Borga,
Ronnie D. Rice, Nicholas E. Reynolds, Terry L. Simms, Gary
Simms, Brad Rohach, Arthur R. Morris, and Marty E. Wil-
liams, for any loss of earnings and other benefits suffered by
them as a result of the Respondent’s unlawful conduct from the
date of April 30, 1997, to the date the Respondent makes an
offer of reinstatement, less any interim earnings, computed in
accordance with the Board’s usual formula set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as com-
puted in the manner set forth in New Horizons for the Retarded,
283 NLRB 1173 (1987).
(c) Within 14 days from the date of this Order, rescind the
policy which appears on page 5, VIII.B of Chariot’s Manual of
Personnel Policies, Procedures and Operations and maintained
since November 2, 1996, discouraging collective representation
and implying that the employees will lose wages, terms, and
conditions of employment if they seek union representation.
(d) Within 14 days from the date of this Order, rescind the
policy which appears on page 45, D.1 of Chariot’s Manual of
Personnel Policies, Procedures and Operations and maintained
since November 2, 1996, prohibiting all conversation, including
conversation about unionization, on company property during
working hours.
CHARIOT MARINE FABRICATORS 359
(e) Within 14 days from the date of this Order, rescind the
policy which appears on page 5, VIII.B of Mariah’s Manual of
Personnel Policies, Procedures and Operations and maintained
since August 2, 1997, discouraging collective representation
and implying that the employees will lose wages, terms, and
conditions of employment if they seek union representation.
(f) Within 14 days from the date of this Order, rescind the
policy which appears on page 45, D.1 of Mariah’s Manual of
Personnel Policies, Procedures and Operations and maintained
since August 2, 1997, prohibiting all conversation, including
conversation about unionization, on company property during
working hours.
(g) Preserve and, within 14 days of a request, provide at the
office designated by the Board or its agents, a copy of all pay-
roll records, social security payment records, timecards, per-
sonnel 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, and if requested, the originals of such re-
cords shall be provided to the Board or its agents in the same
manner.
(h) Within 14 days after service by the Region, post at its fa-
cility in Benton, Illinois, copies of the attached notice marked
“Appendix.”48 Copies of the notice, on forms provided by the

48 If this Order is enforced by a Judgment of the United States court
of appeals, the words in the notice “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.’’
Regional Director for Region 14, after being signed by the Re-
spondent'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 in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since November 2, 1996.
(i) Within 14 days after service by the Region, mail a copy of
the attached notice marked “Appendix”49 to all productions and
maintenance employees and truck drivers who were employed
by the Respondent Chariot Marine Fabricators & Industrial
Corp. at its West Frankfort, Illinois, facility at any time from
the onset of the unfair labor practices on November 2, 1996,
found in this case until the completion of these employees’
work at that jobsite on April 30, 1997. The notice shall be
mailed to the last known address of each of the employees after
being signed by the Respondent’s authorized representative.
(j) 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.

49 See fn. 48, above.