Eldeco, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 1996

321 N.L.R.B. 857 (N.L.R.B. 1996)

857
321 NLRB No. 121
ELDECO, INC.
1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and brief adequately present the
issues and the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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 Respondent also has excepted to the judge’s decision on the
basis that it evidences bias and prejudice. After a careful examina-
tion of the record and the judge’s decision, we are satisfied that this
contention is without merit.
In adopting the judge’s 8(a)(1) findings, we find it unnecessary to
determine whether Project Superintendent Norman Mastalz’ June 8,
1994 comments about unions were coercive inasmuch as that finding
is cumulative to the judge’s other 8(a)(1) findings.
In adopting the judge’s finding that Terry Christie was a statutory
supervisor, we rely solely on the credited evidence that Christie ef-
fectively discharged employee Gregory Davis. In view of Christie’s
action in this matter, it is evident that Christie possessed the author-
ity to discharge.
In adopting the judge’s findings that the applicant-discriminatees
in this case were bona fide applicants for employment and ‘‘employ-
ees’’ within the meaning of the Act, we note that subsequent to the
judge’s decision, the Supreme Court issued its opinion in NLRB v.
Town & Country Electric, 150 LRRM 2897 (1995), in which the
Court endorsed the Board’s position that paid union organizers are
employees within the meaning of Sec. 2(3) of the Act.
3 We shall modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144
(1996).
4 Chairman Gould agrees that the Respondent’s refusal to hire
Flood Jr. was based on discriminatory considerations and was unlaw-
ful. However, in light of Flood Jr.’s testimony that he was not capa-
ble or qualified to perform the work and was thus not a qualified
applicant, Chairman Gould would not order his reinstatement and
would leave for compliance the issue of whether his backpay should
be tolled as of the time that the Respondent learned of his lack of
qualification for the job. Chairman Gould’s general position on rem-
edies is that reinstatement and other traditional remedies are not to
be awarded automatically. Cf. his concurring opinion in Paper Mart,
319 NLRB 9 (1995). See also Precision Window Mfg., 303 NLRB
946 (1991), enf. denied 963 F.2d 1105 (8th Cir. 1992); Member
Walther’s opinion in Atlas Tack Corp., 226 NLRB 222, 224 (1976).
Like his concurring opinion in Paper Mart, these opinions stress the
importance of flexibility in tailoring the remedy to the particular cir-
cumstances of each case.
Contrary to the implication of Chairman Gould, we are not award-
ing a remedy ‘‘automatically.’’ Similarly, we would not deny the
remedy automatically. Rather, we leave the matter to compliance, so
that there can be further development of relevant facts.
Eldeco, Inc. and International Brotherhood of Elec-
trical Workers, Local 776, AFL–CIO
Eldeco, Inc. and International Brotherhood of Elec-
trical Workers, Local 342, AFL–CIO. Cases
11–CA–16006, 11–CA–16140, and 11–CA–16181
July 29, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On June 9, 1995, Administrative Law Judge Howard
I. Grossman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief1 and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order as modi-
fied and set forth in full below.3
1. In adopting the judge’s conclusion that the Re-
spondent unlawfully promulgated and disparately en-
forced a drug-testing policy in order to discourage
union activities, we fully recognize that a nondiscrim-
inatory drug-testing policy may serve legitimate em-
ployer interests in addressing the problem of drug
abuse in the work force. The credited evidence in this
case, however, shows that the purpose of the drug-test-
ing program here was to ‘‘get rid’’ of union supporters
and thus was intended to serve the illegitimate purpose
of retaliating and discriminating against union support-
ers. Thus, even if, as the Respondent contends, the Re-
spondent’s discharges of Stephen Pope and Waco
Cunningham were motivated by their refusal to take
drug tests, rather than by their union sympathies, as
found by the judge, their discharges would violate Sec-
tion 8(a)(3) and (1). See CBF, Inc., 314 NLRB 1064,
1075–1076 (1994). Further, in these circumstances, we
find that the Respondent’s August 3, 1994 letters to
some of the discriminatees indicating that work was
available and that those interested should contact the
Respondent to arrange for a drug test do not constitute
valid offers of employment.
2. As the judge found, the Respondent hired numer-
ous electrician helpers at its North Charleston jobsite.
The judge found that alleged discriminatee Thomas
Flood Jr. was qualified to be a helper and that the Re-
spondent impermissibly failed to employ him. On ex-
amination by the General Counsel, however, Flood Jr.
testified that he was not capable or qualified to per-
form the work performed by helpers at the jobsite. We
conclude that Flood Jr.’s alleged lack of qualification
for the job was not the reason for the Respondent’s re-
fusal to hire him. Rather, that refusal to hire was based
on discriminatory considerations. Thus, the refusal was
unlawful. With respect to Flood Jr.’s admission that he
was not qualified for the job, we leave to compliance
the issues of whether this admission, and any other rel-
evant evidence, should operate to preclude reinstate-
ment and/or toll backpay.4
3. The complaint alleges that the Respondent refused
to employ (and failed to consider) the applicant-
discriminatees. The record shows that the Respondent
employed 35–40 employees at the North Charleston K-
Mart project after its commencement in March 1994.
858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
There are nine discriminatees who applied in North
Charleston. The Respondent employed about 19 em-
ployees at its Winston-Salem project and still sought
additional qualified employees. There are 14
discriminatees who applied in Winston-Salem. In these
circumstances, in which it appears that the
discriminatees were denied employment for discrim-
inatory reasons to actual positions that became avail-
able, and for which they were qualified, we adopt the
judge’s make-whole order with the understanding that
appropriate remedial determinations for each discrim-
inatee, such as when possible backpay began to accrue,
or may have terminated, shall be considered in the
compliance process. Casey Electric, 313 NLRB 774
(1994). Cf. Ultrasystems Western Contractors, 316
NLRB 1243 (1995).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Eldeco, Inc., North Charleston, South
Carolina, and Winston-Salem, North Carolina, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist
(a) Telling employees that a foreman had been hired
to keep the jobsite union free.
(b) Interogating employees concerning the union ac-
tivities of other employees.
(c) Threatening employees with unspecified reprisals
for engaging in union activities.
(d) Telling employees that there will not be any
union employees on the job.
(e) Telling an employee that he was being termi-
nated for engaging in union activities.
(f) Creating an impression of surveillance of its em-
ployees’ union activities.
(g) Promulgating and disparately enforcing a drug-
testing policy in order to discourage the union activi-
ties of its employees.
(h) Telling employees that the purpose of the drug-
testing program was to get rid of union employees.
(i) Discouraging membership in the International
Brotherhood of Electrical Workers, Local 342, AFL–
CIO, the International Brotherhood of Electrical Work-
ers, Local 776, AFL–CIO or any labor organization by
discharging employees of refusing to consider or to
employ applicants for employment because of their
inion or other protected activities, or by discriminating
against them in any other manner with respect to their
hire, tenure of employment, or terms and other manner
with respect to their hire, tenure of employment, or
terms and conditions of employment.
(j) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Gregory Davis, Stephen Pope, and Waco Cottingham
full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
or privileges previously enjoyed.
(b) Make Gregory Davis, Stephen Pope, and Waco
Cottingham whole for any loss of earnings and other
benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy
section of the decision.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charges, and within 3 days thereafter notify the em-
ployees in writing that this has been done and that the
discharges will not be used against them in any way.
(d) Within 14 days from the date of this Order, offer
employment to the discriminatees listed on Appendix
A.
(e) Make the discriminatees listed on Appendix A
whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them, in
the manner set forth in the remedy section of the deci-
sion.
(f) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(g) Within 14 days after service by the Region, post
at its office in Greenville, South Carolina, and at its
branch office in Charleston, South Carolina, and at its
jobsites in South Carolina and North Carolina copies
of the attached notices marked ‘‘Appendices A and
B.’’5 Copies of the notices, on forms provided by the
Regional Director for Region 11, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the
notices to all current employees and former employees
859ELDECO, INC.
1 The charge in the North Charleston case (Case 16–CA–16006)
was filed on May 6, 1994. All cases are in 1994 unless otherwise
specified. The charge in Case 11–CA–16140 (Winston-Salem) was
filed on July 28, with amended charges on September 8, 21, and 29.
Continued
employed by the Respondent at any time since August
23, 1994.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
APPENDIX A
List of Discriminatees
Thomas Flood Sr. Patrick Parsons
Thomas Flood Jr. Mack Good
Doug Michi Jr. Allen Samuels
Sean Taylor Randy Penn
Vernon Taylor Michael Thompson
David Smith Gary Maurice
James Anderson Stanley Thompson
John C. Frazier Russell Hawks
Joel Yon Jr. Kenneth Hanks
Kim Farley Daniel Vella
Larry Morgan John Compton
Paul Vogler
APPENDIX B
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 and protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT tell employees that a foreman had
been hired to keep the jobsite union free.
WE WILL NOT interrogate employees concerning the
union activities of other employees.
WE WILL NOT threaten employees with unspecified
reprisals for engaging in union activities.
WE WILL NOT tell employees that there will not be
any union employees on the job.
WE WILL NOT tell employees that they are being ter-
minated for engaging in union activities.
WE WILL NOT create an impression of surveillance
of our employees’ union activities.
WE WILL NOT promulgate and disparately enforce a
drug-testing program for the purpose of discouraging
the union activities of our employees.
WE WILL NOT tell employees that the purpose of the
drug-testing program is to get rid of union employees.
WE WILL NOT discourage membership in Inter-
national Brotherhood of Electrical Workers, Locals
342, and 776, AFL–CIO or in any other labor organi-
zation, by discharging employees or refusing to hire
applicants for employment, because of their union
sympathies, or by discriminating against them in any
other manner with respect to their employment.
WE WILL NOT in any other 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 Gregory Davis, Stephen Pope,
and Waco Cottingham full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed.
WE WILL, offer employment to the applicants for
employment on the attached list [Appendix A] and
make them whole, with interest for any losses they
may have suffered.
ELDECO, INC.
Jasper C. Brown, Esq., for the General Counsel.
Kenneth E. Young, Esq. and Cherie Blackburn, Esq. (Nelson,
Mullins, Riley & Scarborough), of Greenville, South Caro-
lina, for the Respondent.
Gary Maurice, Business Manager, Local 342, of Winston-
Salem, North Carolina.
Nathan Edgar, Esq., of Paragoula, Arkansas, and Donald M.
Cockroff, Business Manager, Local 776, of North Charles-
ton, South Carolina, for the Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. This
proceeding involves charges that Eldeco, Inc. (Respondent or
the Company) committed unfair labor practices at two dif-
ferent jobsites—North Charleston, South Carolina, and Win-
ston-Salem, North Carolina. Both jobs involved electrical
work in the construction of new K-Mart retail stores. The
charge pertaining to the North Charleston jobsite was filed
by International Brotherhood of Electrical Workers, Local
776, AFL–CIO (Local 776), and the Winston-Salem charges
by International Brotherhood of Electrical Workers, Local
342, AFL–CIO (Local 342) (jointly referred to as the
Union).1
860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The original charge in Case 11–CA–16181 (Winston-Salem) was
filed on August 23 and an amended charge on October 31.
2 The pleadings establish that Mastalz was a supervisor and an
agent of Respondent.
After issuance of an original complaint, a consolidated
complaint issued on October 31. As amended at the hearing,
it alleges that, at the Winston-Salem jobsite, Respondent vio-
lated Section 8(a)(1) of the Act by (1) advising its employees
that union affiliated employees would not be hired; (2) tell-
ing employees that it hired a foreman to keep the jobsite
union free; (3) interrogating employees regarding the union
activities of other employees; (4) threatening its employees
with unspecified reprisals for engaging in union activity; (5)
telling its employees that it would not have any union em-
ployees on the job; (6) telling an employee that he was being
terminated because of his union activity; (7) discriminatorily
prohibiting its employees from discussing the Union on the
job; (8) creating the impression that it was engaged in sur-
veillance of its employees’ union activities; (9) promulgating
and disparately enforcing its drug-testing policy in order to
discourage union activities by its employees; and (10) threat-
ening to discharge employees supporting the Union by im-
plementing a drug-testing policy.
The complaint also alleges that, at the Winston-Salem job-
site, Respondent discharged employee Gregory Davis, and
failed to consider and refused to offer jobs to 16-named ap-
plicants, because of their union activities and sympathies, in
violation of Section 8(a)(3) of the Act.
At the North Charleston jobsite, the complaint alleges, Re-
spondent failed to consider and failed and refused to offer
jobs to nine applicants because of their union activities, in
violation of Section 8(a)(3) of the Act.
A hearing was held before me on these matters in Charles-
ton, South Carolina, on January 18, 19, and 20, 1995. Coun-
sel for the General Counsel made oral argument at the hear-
ing, and, thereafter, Respondent submitted a brief. Based on
the entire record, including my observation of the demeanor
of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a South Carolina corporation, with an office
in Greenville, South Carolina, a branch office at Charleston,
South Carolina, and jobsites at North Charleston, South
Carolina, and Winston-Salem, North Carolina, where it is en-
gaged in electrical construction work. During the 12 months
preceeding issuance of the complaint, a representative period,
Respondent purchased and received, at its North Charleston,
South Carolina jobsite, goods and materials valued in excess
of $50,000, directly from points located outside the State of
South Carolina, and received at the same jobsite gross reve-
nues in excess of the same amount. Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED SUPERVISORY STATUS OF TERRY
CHRISTIE AND CHARLES GARCIA
A. Summary of the Evidence
1. The Winston-Salem jobsite and its employees
Some of the Company’s alleged unlawful acts were assert-
edly committed by Terry Christie and Charles Garcia at the
Winston-Salem jobsite. The complaint alleges and the answer
denies that both were supervisors and agents of the Com-
pany.
Christie testified that the Winston-Salem jobsite comprised
178,000-square feet on one level, with three to four jobs
going on simultaneously in different areas. Alleged discrim-
inatee Douglas Summers affirmed that the area was 4 city
blocks in size, and that there were 15 to 20 simultaneous
worksites. The number of the Company’s employees ranged
from 7 to about 25, depending on the stage of the job.
2. Charles Garcia and Terry Christie
Garcia was the ‘‘foreman’’ on the job when it started, but
left and was replaced in July by Christie. The latter was
raised from $10 to $12 hourly, slightly less than Garcia had
been making. Christie said that he was a ‘‘working foreman’’
and worked with his tools 60 to 70 percent of the time. He
denied authority to hire or fire. Attempting to distinguish be-
tween his status and that of Garcia, Christie stated that Gar-
cia directed employees on what work to perform. Christie
contended that, every morning, Project Superintendent Nor-
man Mastalz2 told him what jobs had to be performed that
day, Christie did not assert that Mastalz told him which em-
ployee was to perform each job.
Christie also contended that Garcia kept employee time
records and maintained invoices and packing slips, whereas
he, Christie, did neither. Mastalz supported the asserted dis-
tinction between Christie and Garcia.
Christie admitted that he moved helpers from one job to
another. However, he contended that, before moving an elec-
trician, he ‘‘usually’’ checked with Mastalz. It is difficult to
see why Christie did this, if it was he who made the initial
assignment.
Superintendent Mastalz agreed that he and Christie were
the only ‘‘supervision’’ on the job. He further testified that
he had too many responsibilities to see that the work was
done. This was Christie’s responsibility. If one job was fin-
ished, Christie moved the crew to another job. Employee
Jeffery McDaniel testified that Christie had blueprints, trans-
ferred McDaniel from one job to another, and that Mastalz
‘‘never came around.’’ Employee Tony Heath affirmed that
Christie maintained employee time records.
B. Factual and Legal Conclusions
Section 2(11) of the Act sets forth various indicia of su-
pervisory status, including the authority to ‘‘assign’’ or ‘‘re-
sponsibly to direct employees,’’ where the exercise of such
861ELDECO, INC.
3 See also NLRB v. Brown Specialty Co., 436 F.2d 372, 375 (7th
Cir. 1971), enfg. 174 NLRB 519 (1969).
4 NLRB v. Dadco Fashions, supra; Justak Bros. & Co. v. NLRB,
664 F.2d 1074 (7th Cir. 1981), enfg. 253 NLRB 1054 (1981). See
also NLRB v. Adam & Eve Cosmetics, 567 F.2d 723 (7th Cir. 1977),
revg. 218 NLRB 1317 (1975). See also F. Mullins Construction, 273
NLRB 1016, 1020 (1984).
5 Dresser Industries v. NLRB, 654 F.2d 944 (4th Cir. 1981), enfg.
as modified 248 NLRB 33 (1980).
6 Jay Sullivan, Jeffrey McDaniel, Dennis Ferris, Chris Hill, and
Charles Booe.
7 G.C. Exh. 1(z), par. 9(a).
8 G.C. Exh. 1(z), pars. 9(c), (g).
9 G.C. Exh. 1(z), par. 9(e).
authority requires ‘‘independent judgment.’’ ‘‘The functions
of a supervisor listed in the statute are disjunctive; the Board
need not show that an employee performed all or several of
the functions to support a finding of supervisory status.’’
NLRB v. Dadco Fashion, 632 F.2d 493, 496 (5th Cir. 1980),
enfg. 243 NLRB 1193 (1979).3
I find that Project Superintendent Mastalz each morning
gave Christie a list of jobs to be performed, but did not as-
sign particular jobs to particular employees. It was Christie
who did this, and who moved employees from one job to an-
other as each was completed. He also resolved employee
problems. As Mastalz frankly admitted, he himself did not
have time to do this, a statement buttressed by the large size
of the worksite and the variety of different jobs being per-
formed simultaneously. Mastalz admitted that he and Christie
were the only ‘‘supervision’’ on the job. If Mastalz did not
have time to see that the employees did the work, and if
Christie was not a supervisor, the employees would have
been working without supervision.
Christie’s statement that he worked with his tools 60 to 70
percent of the time is implausible—the employees would
have been working without supervision if this were true. I
credit McDaniel’s testimony that Christie simply laid out
work, and did not work with his tools. I also credit Tony
Heath that Christie kept employee time records.
I conclude that Christie assigned work, that he responsibly
directed employees in its performance, and that this involved
independent judgment.
At least two circuit courts of appeal have sustained the
Board’s findings of supervisory status where responsible di-
rection of work constituted a key factor in the Board’s con-
clusions,4 and one where the monitoring of timecards was a
factor.5
Based on the record and the authority cited, I conclude
that Christie was a supervisor and an agent of Respondent.
Since Garcia had more authority than Christie, according to
Respondent’s witnesses, it follows that he also was a super-
visor and an agent.
III. THE HIRING AND DISCHARGE OF GREGORY DAVIS—
ALLEGED STATEMENTS BY CHRISTIE AND GARCIA
A. Summary of the Evidence
Gregory Davis applied for work to Superintendent Mastalz
on July 7. Although Davis was a union member, he did not
disclose this fact, and there was no discussion of the Union.
Mastalz hired him immediately, and asked whether he would
consider being a foreman. Davis replied that would need a
pay raise and authority to hire and fire. Thereafter, Davis
recommended several individuals for employment, and all
were hired.6 Mastalz asked him to recommend others.
Davis affirmed that he had a conversation with Terry
Christie on July 14, about a week after Davis was hired.
Christie said that the Company was bringing up employees
from South Carolina to man the job. Davis replied that there
were qualified people in the area, and asked why the Com-
pany would go to the expense of bringing others in from the
south. Christie replied that the individuals in the area were
‘‘IBEW.’’ Davis responded that they were qualified elec-
tricians, but Christie stated that Superintendent Mastalz
would not have any union employees on the job. Jeffrey
McDaniel gave similar testimony. The complaint alleges that
Christie’s statements violated Section 8(a)(1) of the Act.7
Douglas Summers testified that on July 18, Christie asked
him whether Davis had been saying anything to him about
the Union. Christie added that he knew that ‘‘damn Greg is
Union,’’ and that he, Christie, was going to ‘‘find out.’’ The
complaint alleges that these statements constituted unlawful
interrogation, and created an impression of surveillance of its
employees’ union activities.8
An incident happened on July 23 which led to Davis’ al-
leged discharge. According to Davis, he was near Charles
Booe, and wrote on a note pad that Booe was not wearing
a hard hat. Booe said that he had not been provided with
one. Christie approached and asked: ‘‘You ain’t talking about
that Union mess too, are you?’’ Davis replied that he was,
and had a right to do so if Christie could talk about fishing
and girls. Christie then said: ‘‘You’re fired.’’ Davis replied
that Christie had just been considering making him a fore-
man, and asked why he was being fired. Christie replied,
‘‘For being Union.’’ The complaint alleges this statement as
an independent violation.9 Christie added, ‘‘Get your tools
and get out of here.’’ Booe was nearby, and told Davis that
he had been fired.
Christie and Jay Green, a witness for Respondent, gave in-
ternally contradictory testimony. However, both testified—
Christie on cross-examination and Green on direct examina-
tion—that Christie told Davis to get his tools and leave the
job. Christie denied making the statements attributed to him
above.
Superintendent Mastalz testified that Davis left the build-
ing where he had been working, and told Mastalz that he had
been fired. He was ‘‘hysterical’’ according to Mastalz, and
the superintendent told him to get off the jobsite. Davis did
so, and never returned. Mastalz did not call him.
Mastalz and Christie had a conversation a few minutes
later. Christie told the superintendent that Davis had been so-
liciting for the Union, and that Christie told him to get off
the job. According to Mastalz, Christie ‘‘recommended’’ that
Davis ‘‘be fired.’’
Employee Tony Heath testified that, on the same day,
Christie gave him a ‘‘high five’’ and said that he had fired
that ‘‘son-of-a-bitch.’’ ‘‘What son-of-bitch?’’ Heath inquired.
Christie replied that it was Greg Davis, and Heath asked the
reason. ‘‘For talking about Union activities on the job,’’
Christie responded. Christie denied this conversation.
Mastalz testified that he called company official, Morris
Mason, about Davis, and that the latter recommended that
Davis be reprimanded rather than discharged.
862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 R. Br. 55–57.
11 Id. See discussion of the Company’s ‘‘salting agreement’’ argu-
ment, infra.
12 215 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transpor-
tation Management Corp., 464 U.S. 393 (1983).
13 G.C. Exhs. 2–4, 6–8, 13, and 40–47.
14 Possible exceptions Stephen Pope and Waco Cottingham are
discussed below.
B. Factual and Legal Conclusions
I credit Davis’ version of the July 23 conversation, par-
tially corroborated by Booe, Christie, and Green. It is
uncontradicted, as stated by Superintendent Mastalz, that
Davis came out of the building and told Mastalz that he had
been fired. As Mastalz admitted, he told Davis to get off the
jobsite, because he was ‘‘hysterical.’’ Christie then told
Mastalz that Davis had been soliciting for the Union, and
that Christie told him to get off the job.
At the hearing, Respondent’s witnesses contended that
Davis had not been fired, but had quit. In its brief, the Com-
pany argues that Christie did not fire Davis, but simply asked
him to leave the jobsite.10 This is inaccurate. Christie, a su-
pervisor, told Davis that he was ‘‘fired for being Union,’’
and to get his tools and leave the job. When Davis told
Mastalz that he had been fired, the superintendent did not
question the matter, but told him to get off the job.
Respondent argues that Davis was told to get off the job
because he was ‘‘hysterical,’’ not because of union activities.
However, Supervisor Christie told Davis that he was fired
immediately after Davis told him that he was soliciting for
the Union. There is no evidence that this part of the con-
versation was other than ordinary in nature. Although Davis
may have become disturbed after being fired, it was the dis-
charge which took place first. Christie told Davis that he was
fired for ‘‘being Union.’’ Respondent’s argument has no
merit. The asserted telephone colloquy between Mastalz and
Mason is mere window dressing.
The Company also argues that Davis ‘‘kept quiet’’ about
his union affiliation, was working ‘‘pursuant to a salting
agreement,’’ and was ‘‘waiting to bring charges against the
Company.’’11 This argument has even less merit than the
contention that Davis quit. Davis testified that he was unem-
ployed when he applied for work, that the job was one-quar-
ter mile from his house, and that he had to feed his family.
This was his primary purpose in applying for work. Davis
agreed that one of his functions was to take notes on com-
pany actions which were arguably unlawful, and report to the
Union. He denied being paid by the Union, and testified that
it was ‘‘unheard of’’ that he could be pulled off the job by
the Union. Davis was an exemplary employee who was con-
sidered by his employer for promotion to foreman, until he
engaged in union activities. He was then fired by a super-
visor for ‘‘being Union.’’
Under Wright Line,12 the General Counsel has the burden
of establishing a prima facie case that is sufficient to support
an inference that protected conduct was a motivating factor
in an employer’s decision to discipline an employee. Once
this has been established, the burden shifts to Respondent to
demonstrate that the discipline would have been administered
even in the absence of the protected conduct. The General
Counsel has presented a strong prima facie case that Davis
was discriminatorily discharged. Respondent has not rebutted
it. Accordingly, I conclude, Respondent violated Section
8(a)(3) and (1) of the Act.
I credit the consistent testimony of the General Counsel’s
witnesses as to statements made by Christie, listed above,
and alleged to be violative of the Act. I conclude that, by
each of them, Respondent violated Section 8(a)(1) of the Act.
Douglas Summers testified that, on his first day on the job,
Charles Garcia told him that the latter had been hired as
foreman to help Mastalz ‘‘because they were trying, you
know, the Union was real big in Winston-Salem and he
wanted (me) to help look over his shoulder.’’ This testimony
is uncontradicted, and the complaint alleges that it violated
Section 8(a)(1) (G.C. Exh. 1(x), par. 9(b)). I agree and so
find.
IV. THE ALLEGED UNLAWFUL REFUSAL TO HIRE
APPLICANTS AT WINSTON-SALEM
A. The Company’s Actions on Applications
for Employment
The complaint alleges that Respondent discriminatorily
failed to consider or hire various applicants for employment
from March 1 through August 11, at both jobsites. In this
section, I consider the factual issues at Winston-Salem, and
reserve legal discussion until the North Charleston applica-
tions have been considered. The complaint also alleges that
Superintendent Mastalz made unlawful statements.
Mastalz testified that he hired about 19 electricians be-
tween April 4 and August 2, and still needed help. The Com-
pany brought in employees from South Carolina to work on
the Winston-Salem job. Mastalz told Davis that he would
hire as many electricians as Davis could find if they were
as good as Davis. The latter recommended several, and
Mastalz hired them.
Several of the persons hired were union members, includ-
ing Davis. However, there is no evidence that the Company
knew this. Business Manager Gary Maurice advised members
not to disclose their union affiliation if they wanted work.
There is no evidence that union affiliation was discussed at
the time of hire or that the applicants wore union insignia.
There was no indication of such affiliation on the applica-
tions.13
From March 30 through August 11, the Company received
16 applications for employment from applicants who indi-
cated their union affiliation in various ways—by stating on
the applications that they were union organizers, that they
had been referred by the Union, by wearing union insignia,
or by frank disclosure. All were experienced electricians, and
the Company does not contest their qualifications, with two
exceptions noted below.
None of these individuals was hired.14 The Company gave
various reasons—the application was not received, the appli-
cant was hired but failed to report for work, the applicant re-
fused to take a drug test, or, simply, there was no work
available.
863ELDECO, INC.
15 Kim Farley, Larry Morgan, Paul Vogler, Patrick Parsons, Mack
Good, Allen Samuels, and Randy Penn.
16 Testimony of Allen Samuels.
17 The Company sent letters to applicants in August, which are
discussed hereinafter.
18 G.C. Exhs. 5, 9.
19 G.C. Exh. 40. 20 G.C. Exh. 17.
B. The March 30 Applications
Human Resources Director Morris Mason testified that the
Company had a contract with an employment agency, South-
ern Personnel, to provide employees for the Company. Union
Business Manager Gary Maurice and seven other appli-
cants15 applied for jobs at Southern Personnel on March 30.
There were two ladies in the office, who said that they were
‘‘hiring for the Company.’’16 Their names were ‘‘Beth’’ and
‘‘Pat.’’ They informed the applicants that the Company
would hire 10 employees immediately, and 30 to 35 later.
Further, the ladies told them that the Company would notify
the applicants selected for employment.
The complaint alleges that Patricia Kirchman, of Southern
Personnel Services, was an agent of Respondent. I need not
decide whether the ‘‘Pat’’ referred to by Samuels was Patri-
cia Kirchman. The two ladies informed the applicants that
they were hiring for Respondent, and the fact that Southern
Personnel Services was under contract with Respondent to
provide personnel is undisputed. I conclude that the rep-
resentatives in the Southern Personnel office were agents of
Respondent. Phillips Industries, 172 NLRB 2119, 2123
(1968), and Rapid Mfg. Co., 239 NLRB 465, 472 (1978).
None of the applicants received any communication from
the Company for the next 4 months.17
C. The Individual Applications
1. Larry Morgan and Kim Farley
Superintendent Mastalz claimed that he never saw the ap-
plications of Morgan or Farley.18 However, Mastalz admitted
that Southern Personnel communicated with the Company’s
project manager, and that one of the applications19 was from
Southern Personnel. Morgan’s and Farley’s are in evidence.
I conclude that the applicants filed them with Southern Per-
sonnel, and that the latter forwarded them to Respondent.
Both applications show union affiliation.
Respondent sought to establish that the applicants at Win-
ston-Salem were not bonafide applicants for employment. On
cross-examination, Morgan agreed that he had spent some
time attempting to organize employees, but denied that he
ever received any compensation from the Union. He denied
that he was ‘‘instructed’’ by the Union to take the job in
order to organize the employees, and denied that he was sub-
ject to being called off the job by the Union and told to take
another job. Asked to define a ‘‘salting agreement.’’ Morgan
answered that it was an agreement to attempt to organize the
employees of nonunion contractors. Morgan said that he ap-
plied for the job because he was out of work, he knew the
job, and it was close to where he lived.
Farley on cross-examination testified that Business Agent
Maurice told him that there would be work available at the
jobsite, and that Maurice would like to have union members
employed there. Farley agreed that his employment was pur-
suant to a ‘‘salting agreement.’’ Asked to define the latter,
he replied, ‘‘I try to talk to the Company and see if they’re
interested in using Union labor.’’
2. Stanley Thompson
Stanley Thompson applied at the jobsite on April 2. He is
one of the applicants whose qualifications were questioned
by Mastalz. Thompson had 15 to 16 years’ experience as a
journeyman electrician. He submitted an application showing
employment as an electrician with three different employers,
including a period of 5 years with one of them. His last job
ended in January 1994, after about 6 months of employment.
Thereafter he worked 3 days as a ‘‘flag man.’’20
The application states that he left his last employment be-
cause it was a union job and he refused to join. However,
Thompson was a union member at the time of these events,
and last paid union dues in June 30. Thompson stated that
he wore a union cap ‘‘through 1994,’’ but did not wear a
union button when he talked with Mastalz on April 2. The
superintendent, then told Thompson that he would have work
in 2 weeks, and advised him to come back.
Thompson returned on April 18. On this occasion he was
wearing two union buttons on his jacket. Mastalz told him
that he did not ‘‘have anything’’ at the time. I credit Thomp-
son’s uncontradicted testimony.
Thompson also testified that he was in the process of mov-
ing to an address different from the one indicated on his ap-
plication. He affirmed that Mastalz kept a legal pad with the
signatures of applicants. On this pad, according to Thomp-
son, he indicated the change from the old address to the new
address.
On April 4, 2 days after Thompson’s initial visit to the
jobsite, Mastalz hired Douglas Summers, who did not reveal
his union affiliation. On April 12, 8 days’ later, Mastalz
hired Terry Christie (as an electrician). I do not credit
Mastalz’ testimony that he had ‘‘nothing available’’ when
Thompson applied.
The evidence is unclear as to whether Thompson wore
union insignia, such as a hat, on his first visit. However, his
testimony that he wore two union buttons on his April 18
visit is uncontradicted. Mastalz denied knowledge of Thomp-
son’s union sympathies. I find that Mastalz did know, from
the union buttons, that Thompson at least favored the Union.
Mastalz denied any correction in Thompson’s address, tes-
timony which I do not credit.
The superintendent testified that Thompson was a
‘‘flagman,’’ not an ‘‘electrician.’’ This statement is contrary
to the documentary evidence available to Mastalz on the ap-
plication, about which he had two opportunities to question
Thompson.
3. Randy Penn and Michael Thompson
Randy Penn left Southern Personnel on March 30 before
completing his application, because of a medical appoint-
ment. He returned, but could not find anybody. Penn then
went to the jobsite and submitted his application to Super-
intendent Mastalz. He informed the superintendent that he
was a union member. Mastalz promised him a job, but never
made a specific offer at a definite wage rate. He told Penn
to come back in 2 weeks.
864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 G.C. Exh. 18.
22 G.C. Exh. 22.
23 G.C. Exh. 19.
24 G.C. Exh. 20.
On April 12, Penn and Michael Thompson, who had not
applied at Southern Personnel, went to the jobsite and talked
with Mastalz. The superintendent recognized Penn but said
he could not hire him ‘‘direct.’’ He did not need anybody.
However, he could hire Thompson ‘‘direct.’’
Thompson corroborated Penn—Mastalz did not specify
wage rates and said that he could not hire Penn ‘‘direct’’ be-
cause he had applied at a temporary service. However, he
could hire Thompson, and gave him an application. He said
that he would get back with Thompson. The latter filled out
the application and returned to the jobsite the next day, April
13. Mastalz saw him, and told him to turn in the application
at the trailer. Thompson did so.
Mastalz agreed that Penn came to see him about the end
of March. He knew that Penn was affiliated with the Union.
The superintendent denied that Penn asked about the wage
rate or the hours. Instead, he told Penn that the rate was
$9.50, and told him to fill out an employment package and
report for work the following Monday. Penn accepted the
job, but did not report for work. When he came back on
April 12, Mastalz asked him where he had been, and where
his ‘‘paperwork’’ was. Mastalz had no documentary evidence
that Penn had been hired.
With respect to Michael Thompson, Mastalz claimed that
he never submitted an application.
It is unlikely that Penn would have failed to report for
work if Mastalz had offered him a job which he accepted.
The fact that Penn did report back 2 weeks’ later is consist-
ent with his testimony that Mastalz told him to do so.
With respect to Thompson, Mastalz stated that he was not
hiring anybody at the time. Nonetheless, he gave Thompson
an application to submit. According to Mastalz, Thompson
never did so. Yet the application is in evidence,21 and the
factual issue is whether Thompson completed it, and held
onto it for almost a year before giving it to the General
Counsel—or submitted it to the Company on April 13, as he
testified.
Mastalz hired Terry Christie on April 12, and there is no
question that the Company needed electricians at the time of
these events. Mastalz’ testimony is replete with contradic-
tions, and I credit the testimony of Penn and Thompson. The
former was never offered a job, and Thompson received no
reply to the application which he filed on April 13.
4. Gary Maurice
Gary Maurice also went to the jobsite on April 12, after
filing his application with Southern Personnel on March 30.
Maurice was one of the applicants whose qualifications as an
electrician were questioned by Mastalz.
Maurice had academic training in electrical work. He is a
journeyman with 21 years of experience. In 1988, he became
the business manager of Local 342, a paid position. He con-
tinued to put in ‘‘hundreds of hours’’ in electrical work, en-
gaged in charity work, and assisted contractors in supervising
their electricians. He taught continuing education courses to
contractors in order to assist them in retaining their licenses.
He also worked for contractors, a practice which he said was
customary among business agents.
On April 12, Maurice submitted an application showing
work as an electrician from 1983 to 1986, interspersed with
some organizing work, followed by his appointment as busi-
ness manager in 1988.22
Maurice introduced himself to Mastalz, and told him that
he had already applied at Southern Personnel. The super-
intendent replied that he could not hire Maurice ‘‘directly’’
because of the prior application. Southern Personnel would
call Maurice as soon as Mastalz told the agency how many
electricians he needed.
Mastalz told Maurice that he needed helpers, not elec-
tricians. On the same day, April 12, he hired Terry Christie
as an electrician.
Mastalz contended that Maurice had not worked with his
tools for 8 years. However, on cross-examination, Mastalz
conceded that Maurice had worked ‘‘some’’ with his tools,
that he was a licensed journeyman, that he had taught elec-
tricians’ courses requiring him to meet standards established
by the state, and that as a journeyman he had to be certified
periodically and keep up with the latest developments.
I conclude that Maurice was a qualified electrician and
that Mastalz knew it. Respondent did not offer him a job.
Maurice denied that the Union had a ‘‘salting agreement.’’
It did conduct courses in how to organize employees. Mau-
rice agreed that his primary purpose was to organize the
Company’s employees. However, he affirmed, monetary con-
siderations were also a factor. He testified that work with
Respondent would have been his ‘‘primary’’ job, and that he
would have performed his Union duties during ‘‘off-hours.’’
Asked whether he would have been moonlighting at Eldeco,
Maurice denied it, and said that he would have been moon-
lighting at his union job. Asked whether he would have left
his job with Respondent if the employees had become orga-
nized, Maurice replied that he could not speculate that far in
the future.
5. Russell Hawks and Daniel Vella, June 1 and 22
Russell Hawks applied on June 1. In addition to evidence
of union affiliation on his application,23 he wore a union hat,
shirt, and had a union decal on his automobile.
Hawks came back on June 6, and Mastalz told him that
he could not find Hawks’ application. Hawks returned on
June 8, but Mastalz still could not find his application.
Hawks told Mastalz that he was a union man and would try
to organize the shop, but that he was there for work. Mastalz
replied that he had nothing against Union electricians, but
that the Company ‘‘frowned against unions altogether.’’
Mastalz told Hawks not to return, and that he would call
Hawks. The latter heard, however, that the Company was
hiring, and returned to the jobsite on June 22. Mastalz told
him that he was still not in a position to hire.
On his last visit, Hawks submitted the application of Dan-
iel Vella, at the request of business agent Maurice. The ap-
plication shows that Vella had received technical training in
fiber optics, controls, and cable splicing. He had extensive
experience as a journeyman electrician, including prior work
for the Company. The application also disclosed that he was
referred by the Union. On the back of the application is the
legend ‘‘received Eldeco, 2 pages.’’24
865ELDECO, INC.
25 G.C. Exh. 1(z), par. 9(d).
26 G.C. Exhs. 10, 11, 14, and 16.
27 Douglas Summers, Terry Christie, Chris Hill, and Philip Mappa.
28 G.C. Exh. 10.
29 G.C. Exh. 16.
30 G.C. Exh. 12.
31 G.C. Exh. 15.
Mastalz agreed that Hawks applied. He contended that he
told Hawks to check back with him, and that Hawks did so.
Mastalz then told Hawks that he could hire him the follow-
ing week, but Hawks did not return.
Mastalz testified that he knew that Hawks supported the
Union, but he denied saying that the Company frowned on
unions.
Mastalz agreed that he hired Charlie Carter on June 20,
and Tony Heath in the last week of June. This is consistent
with Hawks’ testimony that he heard that the Company was
hiring, and went back to Mastalz on June 22. I credit Hawks’
testimony that he applied on June 1, and returned to the job-
site on June 6, 8, and 22.
Hawks’ description of his discussion about the Union with
Mastalz on June 8 is detailed in nature, whereas the super-
intendent’s denial is perfunctory. Hawks was the more truth-
ful witness, and I credit his testimony that Mastalz told him
that the Company frowned on unions. The complaint alleges
that, on about this date, Mastalz threatened employees with
unspecified reprisals for engaging in union activities.25 The
allegation has merit, and I find that Respondent thereby vio-
lated Section 8(a)(1) of the Act.
I also credit Hawks’ testimony that he submitted Daniel
Vella’s application on June 22.
6. Paul Vogler, Patrick Parsons, Mack Good, and
Kenneth Hanks
On June 9, Vogler, Parsons, Good, and Hanks submitted
applications at the jobsite. Vogler, Good, and Parsons had
applied on March 30 with Southern Personnel. All four ap-
plications showed union affiliation,26 and all the applicants
wore union insignia.
According to Volger and Parsons, Mastalz told them that
work had slowed down, and that there was no work avail-
able. Mack Good stated that he applied on June 9 with
Vogler, Parsons, and Hanks. Kenneth Hanks corroborated the
testimony of the other three applicants.
Mastalz agreed that he said work had slowed down. He
also conceded that he hired Philip Mappa in late May, and
Charlie Carter and Tony Heath in late June. According to
Mastalz’ testimony, he had only four electricians by June
9.27
Vogler’s application states that his reason for leaving his
last job was to organize the Company’s employees.28 He de-
nied that this was his ‘‘primary’’ purpose, but was one of
his purposes. Vogler was making $13.75 hourly with another
employer at the time of his application. Asked on cross-ex-
amination why he would take a $10 hourly job with Re-
spondent, Vogler replied that his existing job required him
to drive 150 miles daily, while the K-Mart job was 11 miles
from his residence.
Also on cross-examination, Vogler stated that there was a
‘‘salting agreement.’’ Asked to define this term, Vogler re-
plied that it was an arrangement permitting union members
to work for nonunion employers. Vogler also testified that
there was an ‘‘understanding’’ that he might be required to
work for another employer if Respondent’s employees be-
came organized. On redirect examination, however, Vogler
testified that nobody from the Union told him that he was
subject to being required to go elsewhere if the Union orga-
nized the Company’s employees. Vogler’s testimony on redi-
rect examination is consistent with the other evidence in the
case, and I accept it as his position on this issue.
Parsons also stated that there was a ‘‘salting agreement,’’
which he defined as attempting to organize the employees of
a nonunion employer. He denied that the Union could
‘‘force’’ him to quit a job and take another once his current
employer was organized. He was not paid anything for orga-
nizational work.
Parsons was working for the same employer as Vogler
when he applied, at $13.75 hourly. Asked why he would
have worked for Respondent at $10 to $12 hourly (Parsons’
estimate), he replied that he was driving 140 miles roundtrip
to his existing job, and wanted to be closer to home.
Mack Good’s application states that he left his last em-
ployer ‘‘to organize union labor.’’29 Business Agent Maurice
generally suggests places for him to work. Maurice suggested
that he try to organize Respondent’s employees.
Good said that he had taken a 1-day course in organizing.
He was working for the same employer as Vogler and Par-
sons, and had to travel 200 miles daily to work.
7. John Compton, July 13
John Compton applied on July 13. His application showed
that he had been referred by the Union.30 Compton wore a
union shirt, and told Mastalz that he would try to organize
the employees. Mastalz ‘‘grunted.’’ The superintendent told
him that he would call him, but did not do so.
Mastalz also testified that he hired five electricians on July
6 and 7, and more later in the month.
8. Allen Samuels, July 14
Allen Samuels was one of the applicants in the group that
applied at Southern Personnel on March 30. He went to the
jobsite on July 14. His application states that he was a union
organizer,31 and he wore a union hat. Mastalz told him that
he had no need for electricians at that time.
V. THE STRIKE AND THE DRUG-TESTING PROGRAM—
STATEMENTS BY MASTALZ
A. The Strike and the New Program
The complaint alleges that Respondent promulgated and
disparately enforced a drug-testing policy on August 3 for
the purpose of discouraging union activity.
As described above, Respondent unlawfully discharged
Gregory Davis on July 23. The Union then called a strike,
and intermittently picketed the jobsite for an undetermined
number of days. Superintendent Mastalz stated that he had
a severe need for employees after the strike. There is no evi-
dence that all employees went out on strike.
Prior to the strike, applicants were told that the Company
had a substance abuse policy, and employees had to sign ac-
knowledgment of this. However, they were simultaneously
told, most of them by Mastalz, not to worry about it, and
866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
32 G.C. Exh. 1(f).
33 G.C. Exh. 23; R. Exhs. 1, 3–6, 8–12. The recipients of the let-
ters included Larry Morgan and Kim Farley, R. Exhs. 1 and 3,
whose applications Mastalz denied seeing. The Company also sent
a letter to Daniel Vella, R. Exh. 20, whose application was submit-
ted by Russell Hawks.
34 G.C. Exh. 24.
35 G.C. Exh. 25.
36 G.C. Exh. 1(z), par. 9(i).
37 R. Exh. 18.
that there would be no drug tests. In fact, there were none
prior to the strike.
Morris Mason was the Company’s safety director. He de-
cided to make a safety inspection of the Winston-Salem job-
site in the latter part of July or the first part of August. This
was his first inspection of this jobsite. According to Mason,
he tried to make an inspection in the ‘‘midpoint’’ of a job,
when the ‘‘danger’’ is greatest.
According to Mason, he and Mastalz inspected the job and
those of contractors that might affect the Company’s employ-
ees. He received ‘‘indications’’ that employees of other con-
tractors were ‘‘smoking a joint’’ during breaks. Mason said
that he interviewed Respondent’s employees, and none of
them said that they had a substance abuse problem. Mastalz
told Mason that he was ‘‘comfortable’’ with his employees.
Based on these factors, and the imminence of new em-
ployees, Mason decided to implement drug testing for new
employees only. He noted the cost of drug testing—$50 per
individual.
The Union filed the initial charge on July 27.32 On August
3, Mason sent letters to applicants reading:
Eldeco, Inc. has work available for you at the K-mart
location in Winston-Salem. If you are interested, please
contact Norman Mastalz at the jobsite to arrange for a
drug test and to work out details of wages and hours.33
On August 9, Business Manager Maurice faxed the follow-
ing to Mason:
Please be advised that a number of our members, who
are also applicants for employment with your firm, as
well as alleged discriminatees in a current NLRB pro-
ceeding against your firm, have recently received cor-
respondence from you regarding possible employment.
I would like to question the conditions for employment
that you place on the known union applicants that have
not been required of the other employees. . . . In par-
ticular, I am requesting a reply from you regarding the
drug test, and would further advise you that an addi-
tional condition for employment required of only the
known union applicants is a blatant violation of em-
ployees’ Section 7 rights.34
Mason replied on the same date:
My job . . . is the safety of Eldeco employees. During
routine safety inspection . . . last week, I discovered
that our drug testing was not being done. I advised our
Superintendent Norman Mastalz to locate a clinic and
to begin the tests as soon as procedures were worked
out. I anticipated this process starting immediately. In-
cidentally, the notification your members received was
a form letter used any time we need to notify a signifi-
cant number of former employees or new applicants
that an employment opportunity exists.35
Several of the applicants testified about the Company’s
August 3 letter. None responded to it. Kenneth Hanks said
that it was a ‘‘ploy’’ to keep the union members out. Russell
Hawks stated that it was discriminatory. Other employees
characterized the letter as an offer to take a drug test, not
an offer of employment. Mack Good did not respond because
the Company failed to hire any of the applicants who applied
on March 30, after the employment agency told them that 10
would be hired immediately. Some of the applicants had ob-
tained other jobs.
B. Alleged Unlawful Statements by Superintendent
Mastalz—Implementation of the Drug Testing Program
1. Summary of the evidence
Tony Heath testified that Mark Luper was hired on
Heath’s recommendation, and was Heath’s helper. In August,
Luper told Heath that he was concerned about taking the
drug test. Heath and Luper then went to Mastalz and
Christie, and expressed Luper’s concern. Mastalz replied that
they should not worry, because the drug test was intended
to get rid of union supporters.
The complaint alleges that Christie rather than Mastalz
threatened to discharge union supporters by implementing a
drug testing program.36 However, Mastalz denied making the
statement. Accordingly, the allegation was fully litigated.
Heath testified that Luper failed the test, but was still
working at least 6 weeks’ later. Mason agreed that Luper
failed the first test, which was administered in mid-August,
but was allowed to work for more than 2 months until Octo-
ber 21, when he passed a second test.37
Heath testified about a conversation with Mastalz about a
week after the strike. Mastalz said that the Union was trying
to infiltrate the job, and that he himself had hired some of
them. The superintendent waved five or six applications in
front of Heath, and said that he was not going to have any
union men on the job. The complaint, as amended at the
hearing, alleges that these statements were violative of the
Act. Mastalz denied making the statements. I credit Heath,
and conclude that Respondent hereby violated Section
8(a)(1).
Heath affirmed that he was not in fact a member of the
Union. In the fall, he left the job to go bow hunting. After
a week of this, Mastalz called and asked him to come back
to fix some cash registers. Heath agreed to do this, did so,
and then left again. Mastalz, on the other hand, contended
that he let Heath go because of ‘‘poor workmanship,’’ then
called him back to correct some mistakes he had made on
the cash registers. Heath contended that the ‘‘rework’’ which
he did involved mistakes of other employees. He had never
been reprimanded, according to Heath.
On cross-examination, Heath, over the General Counsel’s
objection, testified that he made the following pretrial state-
ment to the Board. ‘‘Mark (Luper) smokes pot regularly as
867ELDECO, INC.
38 Fed.R.Evid. 609.
39 R. Br. 15.
40 G.C. Exh. 1(z), pars. 9(h) and 15.
41 G.C. Exh. 13.
42 R. Exh. 7.
43 G.C. Exh. 1(zz), par. 10.
do I, and he was nervous about the test.’’ The General Coun-
sel moved to strike the question and answer.
2. Factual and legal conclusions
Respondent seeks to impugn Heath’s credibility, first, be-
cause he admitted smoking marijuana. Respondent argues
that Heath thereby admitted violating the law, and that this
detracts from his credibility.
Respondent’s argument is not supported by the Federal
Rules of Evidence, which provide that a witness’ credibility
may be affected by a conviction (not admission) of certain
crimes, and that these must be punishable by death or impris-
onment in excess of 1 year, or involve dishonesty or false
statement.38 There is no evidence that Heath was ever con-
victed of smoking marijuana, much less that the requirements
of Rule 609 were met.
I deny the General Counsel’s motion to strike the testi-
mony about Heath’s smoking marijuana. However, this does
not affect his credibility, absent evidence that he was smok-
ing at the time Mastalz made the asserted statement, and that
his ability to hear and recall was impaired. There is no such
evidence.
Respondent next argues that Heath was biased because
Mastalz ‘‘let him go’’ and then called him back to repair
mistakes he had made. I do not credit Mastalz’ testimony.
There is no documentary evidence that the Company ever
reprimanded Heath, much less discharged him. Heath testi-
fied without contradiction that he socialized with Supervisor
Christie after leaving the Company. I accept his version of
these events.
Respondent further argues: ‘‘There was absolutely no evi-
dence that union applicants were tested any differently than
non-union applicants. There was no evidence that drug test-
ing impacts union applicants more significantly than non-
union applicants.’’39
The fact remains that, after the strike, the Company ex-
cused existing employees from being tested, while it insisted
on testing the applicants. The latter supported the Union,
while Respondent had reason to believe that the nonstriking
existing employees supported the Company. That the testing
may have been administered uniformly to new applicants
does not blur the fact that the program was applied dispar-
ately to known union supporters who had already applied,
while company supporters were excused. This disparity es-
tablishes that the program was discriminatorily administered.
Other evidence supports this conclusion. The timing of
Mason’s visit to the jobsite, immediately after the strike, sug-
gests that the visit was motivated, in part at least, by the
strike. Mason’s reasons for excusing the remaining employ-
ees—they assured him that they were not smoking marijuana,
while Mastalz felt ‘‘comfortable’’ with them—are not per-
suasive. Mason’s statement about the $50-per-test cost of
drug testing as a reason for not testing existing employees
is difficult to understand, given the size of the job, the
amount of money undoubtedly involved, and Mason’s as-
serted fear of ‘‘danger’’ on the jobsite. The fact that Luper
was allowed to work for 2 months after failing a drug test
casts further doubt on the bona fides of the program. Finally,
I credit Heath’s testimony that Mastalz said the purpose of
the program was to get rid of union supporters.
I conclude, as alleged, that the drug-testing program was
administered disparately in order to discourage union activity
and violated Section 8(a)(1) of the Act.40
I credit Heath’s testimony that Mastalz told Heath and
Luper that the purpose of the drug-testing program was to
‘‘get rid’’ of union supporters. Thus constituted a threat to
discharge union supporters as alleged in the complaint, and
was unlawful.
I further credit Heath’s testimony that, about a week after
the strike, Mastalz waved some applications in front of Heath
and said that he would not have any union men on the job.
This statement violated Section 8(a)(1).
C. Stephen Pope and Waco Cottingham
Stephen Pope was a union member. He testified that he
was hired by a temporary service, Labor Finders, to work at
the Winston-Salem jobsite. Nothing was said about taking a
drug test. Pope went to the jobsite on August 8, wearing a
union T-shirt. He told Mastalz that he was a union member.
Mastalz asked him whether he knew there was a strike, and
Pope replied that he wanted to work anyway. He reported for
work the next day, August 9, and worked 2 days. At the end
of the second day Mastalz told him that the fees of the tem-
porary service were too high, but that he would be willing
to hire Pope directly. However, Pope would have to take a
drug test. Pope asked whether any of the employees then em-
ployed at the jobsite had taken the test, and Mastalz replied
that they had not been required to do so. Pope asked whether
they would have to take a test in the future, and again re-
ceived a negative answer. Pope refused to take the test, and
was discharged.
Waco Cottingham was not a union member. He applied at
the jobsite on August 9. There was nothing on his applica-
tion to indicate that he supported the Union,41 and he did not
wear any union insignia. Mastalz looked over his application
and hired him immediately.
Cottingham signed the standard form acknowledging that
the Company had a substance abuse policy and that he might
have to take a test in the future.42 Cottingham did not read
it, and there was no discussion of drug testing.
On August 10, Cottingham ate lunch with Pope, who was
wearing a union T-shirt and cap. Mastalz and another super-
visor saw them together. Cottingham continued to work for
about a half-day on August 11. Mastalz then told him that
he had to take a drug test. Cottingham refused, and Mastalz
discharged him for that reason.
VI. THE ALLEGED DISCRIMINATION AT
NORTH CHARLESTON
A. Respondent’s Jobs in the Charleston Area
The complaint alleges that Respondent discriminatorily re-
fused to offer jobs to nine applicants at its North Charleston,
South Carolina jobsite.43 The Company’s branch office was
located in North Charleston, and it had several jobs in the
868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
44 The pleadings establish that Edward Ball was a supervisor and
an agent of Respondent.
45 Samuel Grimsley, Steve Barium, Keith Greenhill, Earnest
Deary, and Scott Warheit.
46 Thomas Flood Sr., Thomas Flood Jr., Douglas Michi, James
Michi, Sean Taylor, Vernon Taylor, David Smith, and James Ander-
son.
47 G.C. Exhs. 26–27, 31–34, and 36.
48 G.C. Exh. z, par. 7.
49 G.C. Exh. 1(bb), par. 18.
50 Vernon Taylor testified that Thomas Flood Sr. and Douglas
Michi used the word ‘‘we’’ in discussing the reason for the visit.
51 David Smith, Sean Taylor, and Vernon Taylor.
52 Thomas Flood Sr., G.C. Exh. 20; Thomas Flood Jr., G.C. Exh.
31; Sean Taylor, G.C. Exh. 32—referred by David Cockroft, a union
business agent; and Douglas Michi, G.C. Exhs. 36 and 37.
53 David Smith, G.C. Exh. 26; Vernon Taylor, G.C. Exh. 33; and
James Anderson, G.C. Exh. 34.
54 James Michi is not alleged as a discriminatee in this proceeding.
55 It is not clear whether this would apply to Thomas Flood Jr.
56 G.C. Exhs. 36 and 37.
Charleston area—in the language of General Superintendent
Edward Ball,44 at ‘‘Cross,’’ ‘‘Orangeburg,’’ ‘‘Myrtle
Beach,’’ and at a new K-Mart store.
The K-Mart job started in March, according to Ball, and
was finished in October. There were 35 to 40 employees
there at one time or another. Ball testified that he hired a
helper on March 14, and by the week of March 25 had two
or three electricians at the jobsite. The latter were transfers
from other jobs. Ball also testified that he hired new elec-
tricians, or rehired former employees, whom he identified.45
Ball said that there were others whom he could not recall.
He averred that most of the electricians were hired ‘‘toward
June, July, August,’’ but agreed that he had more than three
electricians at the K-Mart jobsite ‘‘before May.’’
B. The Applications at the North Charleston Office—the
Supervisory Status of Chris Momeir and Judy Bardsley
1. The group applications
a. The supervisory issue
On March 1, eight individuals applied together for em-
ployment at Respondent’s North Charleston office.46 All ex-
cept one, Thomas Flood Jr., applied for jobs as electricians.
None of the applications specified a particular jobsite.47
Thomas Flood Jr. applied for a job as an apprentice. He
testified that he was a high school student at the time of his
application, and could have accepted only a part-time job.
However, Flood averred, he graduated in May.
Thomas Flood Sr. was selected as spokesman for the ap-
plicants, and had conversations with alleged Supervisors
Chris Momeir and Judy Bardsley.
Richard Zeron, manager of Respondent’s North Charleston
branch, and an admitted supervisor, testified that Momeir
was director of operations and, that he was in charge of the
Company’s estimating facilities. He hires estimators, and
‘‘oversees a few jobs in the Columbia area.’’ According to
Zeron, Judy Bardsley was the Company’s purchasing agent
at North Charleston, worked in the office, and hired and fired
office personnel.
The complaint alleges that Momeir and Bardsley were su-
pervisors and agents.48 Respondent’s answer asserts that
Momeir and Bardsley were ‘‘administrative office person-
nel,’’ but says nothing about their representative status. In a
separate section the answer states that all allegations are de-
nied unless specifically admitted.49
The complaint does not allege unlawful statements or ac-
tions by Momeir or Bardsley. However, the issue remains as
to whether their statements and knowledge of the applicants
may be attributed to Respondent. On the basis of their au-
thority to hire and fire. I conclude that they were supervisors
and agents of Respondent
b. The group applications
The eight applicants on March 1, had previously obtained
application forms, and had filled them out. Thomas Flood
Sr., the spokesman, first spoke with a receptionist, and then
with Bardsley and Momeir. He announced that the group was
from the IBEW.50 At least three of the applicants wore union
insignia.51 Four of the applications indicated union affili-
ation52 while three of them indicated as prior employers
companies which recognized unions.53
During the March 1 visit, Chris Momeir told the applicants
to return the following Friday, March 4, and talk to General
Superintendent Edward P. Ball. All of the March 1 applicants
except James Michi54 returned on March 4. Ball was not
there. According to David Smith, whom I credit, Super-
intendent George Kelly, an admitted supervisor, told the
group on March 4, that the Company expected to hire 20
employees. He mentioned other jobs coming up, including
the one in Winston-Salem. The applicants were notified that
they would be ‘‘contacted,’’ and that all hiring would be
done at the jobsite after that. General Superintendent Ball
testified that he knew that the group that came with Flood
were ‘‘Union men.’’ He also acknowledged that all were
qualified electricians.55
2. The individual applications and visits to the jobsite
a. Douglas Michi Jr. and James Anderson
As indicated, Michi and Anderson applied with the group
of applicants on March 1, and returned on March 4. On
March 25, Michi went to the jobsite, where he spoke with
Supervisor George Kelly. The latter told Michi that he need-
ed employees, but first had to check with General Super-
intendent Ball. Kelly asked Michi to return in a few weeks.
I credit Michi’s uncontradicted testimony.
Michi and Anderson went to the jobsite on April 5, and
again spoke with Kelly. The latter said that he would have
to check with General Superintendent Ball about filling out
an application. Michi replied that he had already done so.
Kelly made an appointment with the employees at 9 a.m. the
next day.
Michi went to the office the next morning, but Kelly was
not there. Michi then went to the jobsite, where Kelly in-
formed him that Ball did not have his application. Michi
agreed to fill out another application. He did so, and attached
a resume. The application showed that his last job had been
as a ‘‘union electrician,’’ while the resume listed his experi-
ence and expertise, and at least one prior employer whose
employees had been organized by a union.56
869ELDECO, INC.
57 G.C. Exh. 30.
58 G.C. Exh. 35.
59 G.C. Exh. 21.
60 G.C. Exh. 28.
61 R. Exh. 15.
62 G.C. Exh. 29.
63 G.C. Exh. 1(a).
b. John C. Frazier
Frazier went to the Company’s office on March 1, but was
not with the group that applied on the same day. A secretary
was present, and Frazier filled out an application. It lists as
prior employers five different companies whose employees
were organized by a union, including the Bechtel Company
at Savannah River.57 The secretary said that they would be
hiring about 10 employees in 2 weeks.
Frazier returned on April 1, and the secretary again told
him that the Company would be hiring 10 employees within
2 weeks. The Company stipulated that Frazier was a quali-
fied electrician. He was a union member.
c. Joel Yon Jr.
Joel Yon Jr. went to the Company’s office on April 15,
saw a secretary, and submitted an application which listed
five former employers, all of whose employees were rep-
resented by a union. Four were located in the Charleston
area, and the fifth was the well-known Bechtel Company.58
Yon was a union member, and was well qualified as a jour-
neyman electrician. General Superintendent Ball admitted
that he knew that one of Yon’s former employers (I. B.
Abel) employed union electricians.
d. Thomas Flood Sr.
Flood’s application shows work as an electrician for var-
ious employers up to 1988. Thereafter, it states, he worked
as an ‘‘electrician and union organizer’’ for the Union.59 On
cross-examination, Flood denied that he was paid as an orga-
nizer at the time of his application. He applied because he
needed work. Subsequently, in January 1995, Flood received
a paying job as an organizer with the Union.
Flood was employed previously by Respondent at a hos-
pital job in 1991. His separation report lists him as excellent
or good in all categories, and states that he was eligible for
rehire.60
Flood was working on the hospital job in 1991. He said
that he left the job because he felt that Respondent’s work
was substandard. Subsequently, another employee filed
charges against the Company with the state licensing agency.
Flood was served with a subpoena by this individual, and ex-
ecuted an affidavit dated April 8, which supported the
charges.61 Office Manager Richard Zeron testified that he re-
ceived a copy of this affidavit together with the charges
against the Company.
Flood returned to the office on April 15, with duplicate
applications. Zeron called him into his office, and challenged
the assertions in Flood’s affidavit. According to Zeron, Flood
did not rebut Zeron’s claim that the charges against the Com-
pany did not have merit. There was a subsequent hearing be-
fore the state licensing board, in November or December, at
which Flood testified against the Company. Zeron affirmed
that the charges against the Company were dismissed. He
stated that he did not want Flood as an employee because
of this matter, but made no recommendation to General Su-
perintendent Ball.
Flood testified that he was working in March for another
company which had a job at the ‘‘Miles Complex’’ in
Charleston. Respondent was also working on this job, and its
foreman was Norman Mastalz, later to be promoted and
transferred to the job in Winston-Salem, described above.
Flood had previously known Mastalz, and told him in late
March on the Miles Complex job that he had applied for
work with Respondent. Mastalz ‘‘laughed and snickered’’
and told Flood that neither he nor anybody else in the Union
would be employed by the Company. Mastalz denied this
conversation. Flood was the more truthful witness, and I
credit his testimony.
C. The Employment of Samuel Grimsley—the Absence
of Union Employees
Samuel Grimsley was not a union member. He applied for
work on May 2. His application had no indication of union
affiliation,62 and Grimsley did not wear any union insignia.
He had never worked for Respondent previously. He was
hired immediately and went to work the next day.
Grimsley worked for about a month. He testified that there
were no union employees. General Superintendent Ball con-
firmed that the Company did not have a union contract at
any of its jobsites.
D. The Filing of the Charge, and Respondent’s
Communications With Some of the Applicants
The Union filed the charge in the North Charleston case
on May 6.63 Thereafter, in June, the Company purported to
offer employment to several of the applicants complaint
issued on June 17.
VII. LEGAL CONCLUSIONS ON THE ALLEGED REFUSAL TO
CONSIDER AND HIRE THE APPLICANTS
A. The North Charleston Case
The Board has stated the following requirements to estab-
lish a discriminatory refusal to hire:
Essentially, the elements of a discriminatory refusal-
to-hire case are the employment application by each al-
leged discriminatee, the refusal to hire each, a showing
that each was or might be expected to be a union sup-
porter or sympathizer, and further showings that the
employer knew or suspected such sympathy or support,
maintained an animus against it, and refused to hire the
applicants because of such animus. [Big E’s Foodland,
Inc., 242 NLRB 963, 968 (1979).]
On March 1, seven of the nine alleged discriminatees to-
gether filed applications at the Company’s office, and were
told to return on March 4, for a meeting with General Super-
intendent Ball. They returned, but Ball was not present. They
were told that they would be ‘‘contacted,’’ and that hiring
would thereafter be done at the jobsite. I conclude that the
applicants submitted applications which required no further
action to perfect them.
870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
64 R. Br. 34.
65 R. Exh. 16.
66 Thomas Flood Sr., Thomas Flood Jr., Douglas Michi Jr., Sean
Taylor, Vernon Taylor, David Smiht, James Anderson, and John
Frazier.
John C. Frazier also filed an application on March 1, and
Joel Yon did so on April 15. Neither was told that he had
to do anything further to complete the application, and I con-
clude that they were valid applications.
There is no doubt that the Company knew that the seven
applicants who filed together on March 1 were union sym-
pathizers. Thomas Flood Sr. announced it in the office, some
of the applicants wore union insignia, some of the applica-
tions frankly stated union affiliation, and some listed former
employers who employed union personnel. Finally, General
Superintendent Ball admitted knowing this.
I reach the same conclusion with respect to Frazier and
Yon, who applied separately. Both were union members, and
both listed as former employers only companies that em-
ployed union employees. Ball admitted knowing this with re-
spect to one of Yon’s former employers. These listings are
sufficient to warrant a finding of company knowledge of the
union sympathies of the applicants. KRI Constructors, 290
NLRB 802 (1988); and Alexander’s Restaurant & Lodge,
228 NLRB 165 (1977).
Despite the fact that the job started in March with three
electricians, and the Company had more at the jobsite in
April and May, the Company did not employ any of the ap-
plicants, had no union electricians at the jobsite, and in fact,
did not have any at any of its jobsites. This disparity is suffi-
cient to warrant an inference of animus against union mem-
bers and sympathizers. In addition, the Company engaged in
evasive tactics in order to avoid hiring union sympathizers.
General Superintendent Ball was not present for interviews
on March 4, after the applicants were told to be there for that
purpose. Superintendent Kally’s responses to Douglas
Michi’s repeated efforts to get employment at the jobsite
constituted further evasion. Finally, the Company’s unfair
labor practices at the Winston-Salem jobsite buttress a con-
clusion that it had animus against union sympathizers.
The Company argues that Thomas Flood Jr. was a high
school student and could not have accepted part-time work
at the time of his application.64 The Company never tested
this with a job offer. Flood graduated from high school in
May, at a time when the Company needed employees and
Flood had an application on file. Flood requested a position
as an apprentice, and the evidence shows that the Company
hired numerous helpers. I conclude that Flood was qualified
to be a helper.
Respondent further argues that the reason it did not hire
Thomas Flood Sr. was his participation with a former em-
ployee in civil litigation against the Company. However, this
dispute was not ongoing at the time Flood filed his applica-
tion on March 1. His affidavit in support of the litigation was
dated April 8, more than 5 weeks after his application. The
Company needed electricians according to Superintendent
Kelly’s statement to Douglas Michi, on March 25, and the
actual electricians which it hired. The first evidence of Com-
pany knowledge of Flood’s participation in the civil litigation
was on April 15, when Flood talked with Office Manager
Zeron.
Although the Company was hiring at or shortly after the
applications, a finding of a discriminatory refusal to hire
does not depend on the existence of a vacancy. In this con-
nection, the Board has stated:
Under the Act, an employer must consider a request
for employment in a lawful, nondiscriminatory manner,
and the question whether an applicant has been given
such consideration does not depend upon the availabil-
ity of a job at the time an application for employment
is made. Consequently, the Act is violated when an em-
ployer fails to consider an application for employment
for reasons proscribed by the Act and the question of
job availability is relevant only with respect to the em-
ployer’s backpay obligation. [Shawnee Industries, 140
NLRB 1451, 1452–1453 (1963), enf. denied on other
grounds 333 F.2d 221 (10th Cir. 1969).]
A determination of job availability and possible backpay li-
ability is left to the compliance phase of the proceeding.
Apex Ventilating Co., 186 NLRB 534 fn. 1 (1970). The
Court of Appeals for the Fourth Circuit has stated that the
requirement of job availability is satisfied ‘‘if the employer
at the time of the purportedly illegal conduct was hiring or
had concrete plans to hire employees.’’ Ultra Systems West-
ern Constructors v. NLRB, 18 F.3d 251, 256 (4th Cir. 1994).
Respondent in this case was both hiring and had concrete
plans to hire at the time of its refusal to consider or employ
Flood and the other applicants.
Respondent introduced a document announcing categories
of hiring priorities. The first two were (1) current company
employees (transfers), and (2) former employees with good
records.65 Since the Company had no union employees at the
K-Mart job, and no union contracts anywhere, the effect of
this system was to preclude union members from employ-
ment. D.S.E. Concrete Forms, 303 NLRB 890 (1991). How-
ever, when former employees Thomas Flood Sr. and David
Vella applied, the Company did not hire them. Samuel
Grimsley was neither a union member nor a former em-
ployee. When he applied, he was hired immediately and went
to work the next day. This disparity graphically portrays the
discriminatory nature of Respondent’s actual hiring policy.
Finally, the Company argues that it did make offers to
some of the applicants. However, they came only after the
unfair labor practice charge had been filed, are questionable
as to whether they constitute offers of employment, and are
appropriately left to the compliance stage of this proceeding.
As for the availability of jobs, the existence of jobs at
other of Respondent’s jobsites may appropriately be consid-
ered. The applicants did not specify any particular jobsite in
their applications, and the existence of jobs at other locations
was stated to them by Superintendent Kelly. Ultrasystems
Western Constructors, 310 NLRB 545 (1993).
I conclude that eight of the applicants at the North
Charleston jobsite filed valid applications on March 1,66 and
that one of them, Joel Yon Jr., filed on April 15. Respondent
failed to consider these applications and failed to employ the
applicants because of their union membership or sympathies.
Accordingly, Respondent violated Section 8(a)(3) and (1) of
the Act.
871ELDECO, INC.
67 R. Br. 44.
68 R. Br. 45.
69 Willmar Electric Service v. NLRB, 968 F.2d 1327, 1329–1331
(D.C. Cir. 1992), cert. denied 113 S.Ct. 1252 (1993); and NLRB v.
Henlopen Mfg. Co., 699 F.2d 26, 30 (2d Cir. 1997). See also Escada
(USA) Inc. v. NLRB, 970 F.2d 89 (3d Cir. 1992), enfg. without com-
ment 304 NLRB 845 (1991).
70 Town & Country Electric v. NLRB, supra; NLRB v. Elias Bros.
Big Boy, 327 F.2d 421, 427 ((6th Cir. 1964); and H. B. Zachry Co.
v. NLRB, 886 F.2d 70 (4th Cir. 1989).
B. The Winston-Salem Job
Respondent argues that although the union members were
not full-time union organizers, ‘‘they were subject to the
local union’s job salting organizing resolution, pursuant to
which they could work for non-union employers only if they
worked for organizational purposes and were expected to
leave the job upon notification by the Union.’’67 Accord-
ingly, Respondent continues, they were not bona fide appli-
cants for employment, citing the Eighth Circuit Court of Ap-
peals decision in Town & Country Electric v. NLRB, 34 F.3d
625 (1994), denying enf. of 309 NLRB 1250 (1992).
There is no credible evidence to support the factual
premise of this argument. There is no documentary evidence
of a ‘‘salting resolution,’’ and Business Manager Maurice de-
nied that there was one. Although some of the witnesses said
there was a ‘‘salting agreement,’’ their description portrayed
it as an agreement to try to persuade employers to use union
labor (Farley), or, simply, to organize the employer’s em-
ployees. This is no more than a statement of their statutory
rights.
Respondent made extensive efforts on cross-examinaion of
the General Counsel’s witnesses to establish that they were
required to obey an order from the Union to resign and go
to another job once the shop was organized. These attempts
were unsuccessful. There is no evidence that any members
were paid anything by the Union for their organizational
work.
Respondent puts special emphasis on the cases of Good,
Vogler, and Parsons. The first two stated on their applica-
tions that their purpose was to organize Respondent’s em-
ployees, and all were referred to the job by Business Agent
Maurice.68
However, all three applicants gave a persuasive reason for
seeking the K-Mart job, even at the lower rate of pay—they
were driving excessive miles to get to their current job, and
the Company’s jobsite was closer to home.
The circumstances upon which the Eighth Circuit based its
denial of bona fide status to union organizers in Town &
Country, supra (34 F.3d at 629), are not present here—there
was no union pay of any kind; there was no ‘‘requirement’’
that they could work for nonunion employers ‘‘only’’ if they
performed organizational duties; and the Union had no au-
thority to require them to leave and take a job with another
employer.
I conclude that all the union members were bona fide ap-
plicants for employment Fluor Daniel, Inc., 304 NLRB 970
(1991), and Casey Electric, 313 NLRB 774, 786 (1994).
Gary Maurice was an employee of the Union, a job which
he intended to keep, performing his union duties during
‘‘off-hours.’’ Although he intended to organize the employ-
ees, Maurice testified that a job with Respondent would have
been his primary job. Maurice was unable to ‘‘speculate’’ on
whether he would have left this job if the employer’s em-
ployees had become organized. There is no evidence that he
would have been required to leave.
The Board’s position is that ‘‘full-time paid union organiz-
ers are ‘employees’ entitled to the Act’s protection.’’ Town
& Country Electric, 309 NLRB 1250, 1258 (1992); and
Sunland Construction Co., 309 NLRB 1224, 1230 (1992).
Some of the circuit courts of appeal have agreed with the
Board,69 while others have disagreed.70 It would serve no
useful purpose to repeat the contending arguments. This issue
is presently before the Supreme Court. In the meantime, I am
bound by Board law, and conclude that Gary Maurice was
a bona fide applicant and an ‘‘employee’’ entitled to the pro-
tection of the Act.
The evidence detailed above shows that from March 30
through mid-July, Respondent received 14 applications from
applicants who were qualified electricians, and whom it
knew to favor the Union. The Company failed to hire them
at times when it needed electricians, and was hiring other ap-
plicants who did not evidence any union affiliation. It also
engaged in the unlawful acts of interference with employee
rights set forth above, and unlawfully discharged Gregory
Davis.
On August 3, a week after the Union filed the initial
charge in the Winston-Salem case, Respondent sent letters to
some of the applicants suggesting that they go to the jobsite
and ‘‘arrange for a drug test.’’ I have found that the drug
test was discriminatorily implemented so as to impact known
union supporters while excluding existing employees who
did not engage in the strike on July 23. I conclude that the
letters did not constitute offers of employment.
Stephen Pope was actually hired by a temporary employ-
ment service. Nothing was said about a drug test. When he
arrived for work, Mastalz learned that he was affiliated with
the Union. After 2 days of work by Pope, Mastalz said that
the fees of the employment service were ‘‘too high,’’ but
that he could hire Pope ‘‘directly.’’ However, Pope would
have to take the drug test. When Pope refused, Mastalz dis-
charged him. This was a pretext engaged in for the purpose
of giving Mastalz an opportunity to discharge an employee
who, he learned, favored the Union.
The complaint alleges that Respondent failed to hire Pope
on August 11. Actually, he was hired by the temporary serv-
ice on behalf of the Company. The fact that Mastalz let Pope
work for 2 days shows that the temporary service was an
agent of Respondent. I conclude that Pope was discrimi-
natorily discharged on August 11, and that the matter has
been fully litigated.
Waco Cottingham had been hired directly by the Com-
pany, but made the mistake of having lunch with Pope, then
known to be a union adherent. After already being hired,
Cottingham was discharged on August 11 for refusal to take
the discriminatory drug test. The circumstances of this dis-
charge were also fully litigated.
I conclude that the reason for the discharges of Pope and
Cottingham was their union sympathies, and that Respondent
violated Section 8(a)(3) and (1) of the Act in doing so.
The fact that Daniel Vella’s application was submitted by
another employee does not impair its authenticity under es-
tablished Board law. Indeed, the Company tacitly recognized
this by sending Vella one of its August 3 letters.
872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
71 Kim Farley, Larry Morgan, Paul Vogler, Patrick Parsons, Mack
Good, Allen Samuels, Randy Penn, and Gary Maurice—all on
March 30; Stanley Thompson, April 2; Michael Thompson on April
12; Russell Hawks on June 1; Kenneth Hanks on June 9; Daniel
Vella on June 22; and John Compton on July 13.
72 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621. Interest accrued before January 1,
1987 (the effective date of the amendment) shall be computed as in
Florida Steel Corp., 281 NLRB 651 (1977).
I conclude that the applicants filed valid applications on
the dates indicated below,71 Respondent failed to consider
and failed to hire the 14 applicants because of their union
affiliation in violation of Section 8(a)(3) and (1) of the Act.
I receive General Counsel’s Exhibit 6.
In accordance with my findings above, I make the follow-
ing
CONCLUSIONS OF LAW
1. Eldeco, Inc., is an employer engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Electrical Workers, Local
776, AFL–CIO, and International Brotherhood of Electrical
Workers, Local 342, AFL–CIO are labor organizations with-
in the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act at its
Winston-Salem, North Carolina jobsite by (1) advising its
employees that a foreman had been hired to keep the jobsite
union free; (2) interrogating employees regarding the union
activities of other employees; (3) threatening employees with
unspecified reprisals for engaging in union activity; (4) tell-
ing employees that there would not be any union employees
on the job; (5) telling an employee that he was being termi-
nated because of his union activities; (6) creating the impres-
sion that Respondent was engaging in surveillance of its em-
ployees’ union activities; (7) promulgating and disparately
enforcing a drug-testing policy in order to discourage union
activities of its employees; and (8) telling employees that the
purpose of the drug-testing program was to get rid of union
employees.
4. Respondent violated Section 8(a)(3) and (1) of the Act
by:
(a) Discharging employees Gregory Davis on July 23,
1994, and Stephen Pope and Waco Cottingham on August
11, 1994, because of their union activities and sympathies.
(b) Failing to consider for employment and failing to em-
ploy the applicants listed on the attached Appendix A, be-
cause of their union sympathies and activities.
5. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent has not violated the Act except as specified
here.
REMEDY
It having been found that the Respondent has committed
certain unfair labor practices, it will be recommended that it
be ordered to cease and desist therefrom, and to take certain
remedial actions intended to effectuate the policies of the
Act.
It having been found that Respondent unlawfully dis-
charged Gregory Davis on July 23, 1994, and Stephen Pope
and Waco Cottingham on August 11, 1994, it is rec-
ommended that Respondent be ordered to offer each of them
reinstatement to his former position, without prejudice to his
seniority or other rights and privileges previously enjoyed. It
is further recommended that each of them be made whole for
any loss of earnings and other benefits he may have suffered
by reason of Respondent’s conduct from the date of his un-
lawful discharge to the date of Respondent’s offer of rein-
statement, in the manner prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).72 I shall
also recommend that Respondent be required to remove from
its records all references to their discharges, and notify the
discriminatees that it has done so, and will not rely on same
for any future discipline of them.
I shall further recommend that the duration of the remedy,
including whether Davis, Pope, or Cottingham would have
been transferred to other of Respondent’s jobs, be left to the
compliance stage of the proceeding. Dean General Contrac-
tors, 285 NLRB 573 (1988).
It having been found that Respondent unlawfully refused
to consider for employment and to employ the individuals
listed on Appendix A, it is recommended that Respondent be
ordered to offer them employment and make them whole for
any loss of earnings they may have suffered, as determined
in compliance proceedings as set forth above.
[Recommended Order omitted from publication.]