Fluor Daniel, Inc.

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 498 (N.L.R.B. 1993)

498
311 NLRB No. 55
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 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.
2 In addition to the notice posting ordered by the judge, Member
Raudabaugh would order the Respondent to post notices at all exist-
ing sites at the time of posting. Further, Member Raudabaugh would
require that the Respondent mail copies of the notice to the
discriminatees and to all employees who worked during the outage
at the Big Rivers Wilson plant and to all employees who did similar
work at subsequent Big Rivers outages.
Member Oviatt would not require the Respondent to hire unquali-
fied applicants. He would, therefore, order hiring and backpay for
discriminatees contingent on their passing the requisite skill test for
their particular trade. If the discriminatee passes the test, Member
Oviatt would order him hired and would award backpay from the
original date. Members Devaney and Raudabaugh find it unnecessary
to resolve these issues at this time.
3 All dates are 1990 unless otherwise indicated.
4 Approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983).
5 Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th
Cir. 1960).
6 Asociacion Hospital del Maestro, 291 NLRB 198, 204 (1988);
White-Evans Service Co., 285 NLRB 81, 82 (1987).
7 ACTIV Industries, 277 NLRB 356, 374 (1985); Heath Inter-
national, 196 NLRB 318, 319 (1972).
8 As discussed infra, we have excluded applicant Edward DeWitt.
Fluor Daniel, Inc. and International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers, and Helpers, AFL–CIO. Case 26–CA–
13842
May 28, 1993
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On November 29, 1991, Administrative Law Judge
Martin J. Linsky issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
Charging Party filed a brief in opposition to the Re-
spondent’s exceptions, and the Respondent filed a
reply brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and, for the
reasons set forth below, has decided to affirm the
judge’s rulings, findings,1 and conclusions and to
adopt the recommended Order.2
The facts, more fully set forth by the judge, may be
summarized briefly as follows. The Respondent en-
tered into a 3-year contract with Big Rivers Electric
Company sometime in early 19903 to perform service
and maintenance work on various power generating fa-
cilities operated by Big Rivers. This work was to be
done during ‘‘outages,’’ i.e., when the plants were shut
down. The Respondent worked on six outages between
February and June (the ‘‘spring outages’’) and on two
more in the fall. Sometime during the fall, Big Rivers
terminated its contract with the Respondent.
In March, the Respondent received 43 applications
for employment, on which the applicants wrote the
words ‘‘voluntary union organizer’’ or its functional
equivalent. All of these applications clearly revealed
the applicant’s union affiliation. In May, the Respond-
ent received 11 more applications which contained the
words ‘‘voluntary union organizer’’ or ‘‘Boilermaker
union organizer.’’ None of these 54 applicants was
hired, although the Respondent hired 172 employees
for the spring outages and 123 for the fall outages.
The judge concluded, inter alia, that the Respondent
had violated Section 8(a)(3) and (1) by discriminatorily
refusing to hire any of these 54 applicants. The Re-
spondent excepts to this finding. We agree with the
judge that the Respondent violated Section 8(a)(3) and
(1). However, contrary to the judge, we find that Ed-
ward DeWitt did not submit an adequate application
and was not discriminated against in hiring.
In Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982),4 the Board set forth its test for cases alleging
violations of the Act turning on employer motivation.
First, the General Counsel must make a prima facie
showing sufficient to support the inference that pro-
tected conduct was a ‘‘motivating factor’’ in the em-
ployer’s action. The burden then shifts to the employer
to demonstrate that the same action would have taken
place notwithstanding the protected conduct. It is also
well settled, however, that when a respondent’s stated
motives for its actions are found to be false, the cir-
cumstances may warrant an inference that the true mo-
tive is an unlawful one that the respondent desires to
conceal.5 The motive may be inferred from the total
circumstances proved. Under certain circumstances, the
Board will infer animus in the absence of direct evi-
dence.6 That finding may be based on the Board’s re-
view of the record as a whole.7
Here, the Respondent clearly had knowledge that all
53 of the alleged discriminatees were union affiliated.8
All the applications at issue contained the words ‘‘vol-
untary union organizer’’ or its functional equivalent.
Not one of these individuals was offered a position
with the Respondent. As the judge found, each of the
alleged discriminatees had extensive pertinent work ex-
perience that was at least equal to those who were
hired and who did not indicate on their applications
that they were organizers. Only 2 of the 53 applicants,
Steven and John Coons, were ever contacted by the
499FLUOR DANIEL, INC.
9 A welder can be given either a stick-weld test or a tube-weld
test. It is undisputed that the tube-weld test is more difficult to pass.
10 The Respondent maintains a hiring policy that gives preference
to former employees. The General Counsel did not challenge the le-
gality of this system.
11 The Respondent filed a motion to supplement the record to in-
troduce the resume of Clayton M. Rogers. We grant the motion.
12 We correct the judge who found that these applicants were hired
in the fall based on their spring applications.
Respondent, however, and, as discussed infra, these
two were not hired for discriminatory reasons.
In agreement with the judge, we also find that as
part of his prima facie case, the General Counsel es-
tablished the Respondent’s union animus. In addition
to the threats and discrimination against David Bolen
in violation of Section 8(a)(1) and Section 8(a)(3), the
judge relied for his animus finding on the Respond-
ent’s treatment of Steven and John Coons in the testing
process. We agree.
Steven and John Coons were the only applicants
who had written ‘‘voluntary union organizer’’ on their
applications who were ever contacted by the Respond-
ent. Both were given a tube-weld test,9 which they
failed. Neither was hired. The judge found that this
treatment contrasted sharply with that of applicants
whose applications did not contain the words ‘‘vol-
untary union organizer’’ but who were hired. We agree
with the judge that this highlighted the Respondent’s
unlawful course of action.
The Respondent offered no explanation as to why
some applicants were allowed to take the easier stick-
weld test, why some who flunked the tube-weld test
were hired anyway, or why at least one applicant was
allowed to retake the tube-weld test after failing it. The
Respondent gave no justification for why the Coons
brothers were not allowed to either retake the test after
failing it or allowed to take the easier stick-weld test.
The only discernible difference between these other ap-
plicants and the Coons brothers was the appearance of
the words ‘‘voluntary union organizer’’ on the Coons’
applications.
We, like the judge, find that the General Counsel es-
tablished a prima facie case that the Respondent un-
lawfully failed to hire those applicants whose applica-
tions contained the words ‘‘voluntary union organizer’’
or its functional equivalent.
We disagree with the judge, however, that the treat-
ment of applicant Edward L. DeWitt was unlawful.
DeWitt’s application indicated that he was a ‘‘vol-
untary union organizer’’ and a member of Pipefitters
Local 633. It also stated that DeWitt previously had
been employed by the Respondent.10 DeWitt, however,
did not receive a mailgram which the Respondent sent
to former employees within a 200-mile radius, nor was
DeWitt hired even though he had prior Fluor Daniel
experience. The judge rejected the Respondent’s de-
fense that DeWitt was not hired, in part, because his
application was incomplete, citing the application of
four other applicants who were hired and submitted
similarly incomplete applications. The Respondent
excepts. We find merit in the Respondent’s excep-
tions.11
First, we note that the mailgrams were sent approxi-
mately 11 days before the Respondent reviewed the
applications. Thus, we cannot draw an inference that
DeWitt was not sent a mailgram because of his union
sentiments expressed on the application. Further, we
find that the judge erred in comparing DeWitt’s appli-
cation to those of Christian Volz, Clayton Rogers,
George Anderson, and Wayne Eckles. Each of these
four men had worked for the Respondent on a previous
Big Rivers project, and the Respondent already had
their complete applications on file. We also agree with
the Respondent that DeWitt’s application was insuffi-
cient. Specifically, in the section requesting informa-
tion on previous employment, DeWitt added only the
words ‘‘If [r]equested [w]ill [s]end [r]esume.’’ There-
fore, we find the judge improperly relied on the Re-
spondent’s treatment of DeWitt to infer animus, and
we find that the evidence is insufficient to show that
the Respondent violated Section 8(a)(3) and (1) by re-
fusing to hire DeWitt. We will accordingly delete his
name from the Order.
We have examined the Respondent’s rebuttal case
and find that the defenses it proffers for its failure to
hire the applicants involved here do not establish that
the same conduct would have taken place in the ab-
sence of the discriminatory motive.
The Respondent raises several defenses. First, it ar-
gues that it did not consider the 11 Boilermaker appli-
cations it received in May because they were received
in bulk. The Respondent alleges that it has a policy
against accepting such applications, although we note
that the applications were retained in the Respondent’s
files. We reject this defense. As the judge found, the
Respondent’s policy is not applied without exception.
The record reveals that the Respondent considered ap-
plications filed in bulk by the Kentucky Employment
Service.
The Respondent also defends on the basis of certain
language printed on its applications. The Respondent’s
applications state that the applications are valid for 60
days from the application date. Therefore, the Re-
spondent claims that the applications of the alleged
discriminatees submitted in March and May would not
have been valid for the fall outages which began in
September. We reject this defense as well. There is
evidence that, at a minimum, some applicants for the
fall outages were contacted about employment oppor-
tunities based on applications they filed in the spring.12
We also rely, as did the judge, on the Respondent’s
staffing memo that indicated that applications received
500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 The judge discredited the testimony of timekeeper and office
manager Ron Russell that at one point during the spring outages he
contacted all the applicants in the boilermaker and pipewelder files,
including those with the words ‘‘voluntary union organizer.’’ This
false claim lends support to our finding that the Respondent’s motive
was unlawful. Shattuck Denn Mining Corp., supra.
for the outage in April were to be kept in a file for
future staffing requirements.
We find, as a whole, that the evidence supports an
inference that the Respondent discriminatorily refused
to hire the 53 applicants. The Respondent offered no
credible reasons to explain why none of these 53 was
hired. Although many of the applicants who were of-
fered employment displayed some link to a union, we
agree with the judge that there is a significant dif-
ference between an applicant for employment who puts
on his application that he has worked in the past for
a union contractor and one who states clearly that he
is a ‘‘voluntary union organizer.’’ The latter applicant
explicitly places the employer on notice that he will try
to exercise his statutorily protected right to organize
his fellow employees. We find it reasonable to infer
that it was not just coincidental that not a single one
of the applicants who proclaimed himself to be a ‘‘vol-
untary union organizer’’ was employed and only two
were ever contacted.
We find that the Respondent’s stated motives for re-
jecting these applicants were false and that the Re-
spondent’s true motive was to discriminate against
these applicants because of their union affiliation.13
Accordingly, we conclude that the General Counsel
made a prima facie showing of unlawful motivation on
the part of the Respondent for its refusal to hire any
of these 53 applicants, as required under Wright Line.
We further conclude that the Respondent’s proffered
justifications were pretextual and find that the Re-
spondent failed to meet its Wright Line burden of dem-
onstrating that it would have taken the same action in
the absence of the union affiliation of these 53 appli-
cants.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Fluor Daniel, Inc., Green-
ville, South Carolina, its officers, agents, successors,
and assigns, shall take the action set forth in the Order,
except that Edward L. DeWitt shall be deleted from
paragraph 2(a) of the Order.
William D. Levy, Esq., for the General Counsel.
Melvin Hutson and Alfred Robinson, Esqs., of Greenville,
South Carolina, for the Respondent.
Michael J. Stapp and Michael T. Manley, Esqs., of Kansas
City, Kansas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On May 4
and 29, 1990, the International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL–
CIO (the Charging Party or Boilermakers) filed a charge and
a first amended charge against Fluor Daniel, Inc. (Respond-
ent).
Thereafter, on February 6, 1991, the National Labor Rela-
tions Board, by the Regional Director for Region 26, issued
a complaint, which, as amended at the hearing, alleges that
Respondent violated Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act) when it threatened an em-
ployee with discipline and discharge if the employee refused
to cross a picket line, when it subsequently discharged the
employee because he refused to cross a picket line, and when
it failed and refused to hire 54 applicants for employment be-
cause of their support and assistance to various unions and
because they engaged in protected concerted activity.
Respondent filed an answer in which it denies it violated
the Act in any way.
It is my conclusion as set forth more fully below that the
General Counsel, with the assistance of the Charging Party,
has proven by at least a preponderance of the evidence that
Respondent violated the Act as alleged in the complaint, as
amended.
Hearings were held before me in Owensboro, Kentucky,
on 12 days in May and June 1991, i.e., May 6–10, and June
10–14, 24, and 25, 1991.
On consideration of the entire record, including
posthearing briefs and other pleadings submitted by the Gen-
eral Counsel, Respondent, and the Charging Party, and on
my observation of the demeanor of the witnesses, I make the
following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent, a corporation with an
office and place of business in Greenville, South Carolina, as
well as various jobsites in other States of the United States,
including jobsites at Sebree, Hawesville, and Centertown,
Kentucky, has been engaged in business as a general con-
tractor in the construction industry.
During the past 12-month period ending April 30, 1990,
Respondent, in the course and conduct of its business oper-
ations described above, purchased and received at Respond-
ent’s jobsites in the State of Kentucky products, goods, and
materials valued in excess of $50,000 directly from points
outside the State of Kentucky.
Respondent admits, and I find, that it is now and has been
at all times material, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
501FLUOR DANIEL, INC.
II. THE LABOR ORGANIZATION INVOLVED
The Boilermakers Union (Charging Party) is now, and has
been at all times material, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview
Respondent is a California corporation engaged in the en-
gineering, construction, and maintenance business throughout
the United States. It is an ‘‘open shop contractor.’’
In 1990 Respondent entered into a 3-year contract with
Big Rivers Electric Company to do service and maintenance
work on various power generating facilities operated by Big
Rivers. The service and maintenance work would be done
during what the parties to this litigation referred to as ‘‘out-
ages.’’ An ‘‘outage’’ refers to the complete shutting down of
a power generating facility so that the service and mainte-
nance work can be done. It is generally done in the spring
and fall of the year when the need for power is somewhat
less.
Big Rivers had power generating facilities in and around
Sebree, Hawesville, and Centertown, Kentucky. The facilities
located near Sebree were known as the Henderson and Green
power plants. The facility near Hawesville was known as the
Coleman power plant. The facility in Centertown was known
as the Wilson facility. A facility might have more than one
power plant, e.g., Coleman had three and the work was re-
ferred to as Coleman I, II, and III. The number reflecting not
the first or second outage but the number of the plant.
In the spring of 1990, Respondent worked on six separate
outages between February and June 1990. They were as fol-
lows:
Plant Location Dates
Henderson Sebree 2/22–3/10
Coleman I Hawesville 3/11–3/31
Wilson Centertown 4/09–4/21
Green II Sebree 4/23–5/19
Coleman III Hawesville 5/20–6/02
Coleman II Hawesville 6/02–6/30
In the fall of 1990, Respondent worked on two outages.
They were as follows:
Plant Location Dates
Green II Sebree 3 weeks in 9/90
Wilson Centertown 6 weeks in 10–11/90
In the fall of 1990, Big Rivers terminated its contract with
Respondent after less than 1 year allegedly because of poor
job performance by Respondent.
It is alleged that Respondent violated the Act when it
threatened with discipline and discharge employee David
Scott Bolen if he refused to cross a picket line and that Re-
spondent further violated the Act when it did in fact dis-
charge Bolen.
It is further alleged and this is the more complex part of
the case that Respondent failed and refused to hire 54 appli-
cants for employment because of their union activity. In each
case the employees, who were members of various locals of
the Boilermakers, Ironworkers, Pipefitters, and Laborers
Union all had the words ‘‘voluntary union organizer’’ or
similar words on their applications for employment. None of
them were hired.
I will address the two parts of this case separately.
B. Threat to Discipline and Discharge an Employee if
he Refuses to Cross a Picket Line and the Discharge
of David Scott Bolen
Respondent performed maintenance work at the outages at
the Henderson plant in Sebree, Kentucky, and on the Cole-
man I facility in Hawesville. Respondent then moved on to
the outage at the Wilson plant in Centertown, Kentucky.
Work at this outage began on April 9, 1990. One of the em-
ployees hired for the Wilson outage was David Scott Bolen.
Bolen began work on April 10, 1990. A few days later a
picket line went up at the Centertown, Kentucky jobsite. It
was prearranged by Respondent that if a picket line went up
the employees and the supervisors would meet at a nearby
IGA grocery store and figure out what to do. At the IGA
grocery store, Bolen asked Robert Wollard, whose last name
he could not remember, what would happen if an employee
refused to cross the picket line and go to work. According
to Bolen, who impressed me by his demeanor as a credible
witness, Wollard said, ‘‘Well the first time we give you an
excused absence, the second time will be a written warning
and the third time, we will terminate you.’’
Wollard testified that when he was asked the question by
Bolen he replied merely that the employee would have to
follow his heart and that corporate policy would control.
When asked what corporate policy was, Wollard claims he
said he would have to find out what that policy was because
he didn’t know what it was. He claims he later found out
that corporate policy was that no employee would be dis-
ciplined for refusing to cross a picket line.
I credit Bolen’s version of what Wollard said over
Wollard’s version. Wollard admitted that when the picket
line went up, the employees and supervision, by prearranged
agreement, met at the nearby IGA store. It is more plausible
since Wollard was one of the top supervisors at the site—
and since picketing was expected—that he would know what
the policy was at this site if the employees refused to cross
the picket line. Therefore, I believe he said what Bolen testi-
fied he said and not what he claims he said. In other words,
Wollard said what the policy was or what he thought it was
and he did not say that Respondent would follow corporate
policy and, by the way, I don’t know what the policy is. In
addition, Bolen was subsequently discharged pursuant to the
same policy Wollard expressed to him at the IGA store, i.e.,
he was discharged after the third day that he refused to cross
the picket line.
The law is clear. The right to honor a picket line is pro-
tected by the Act. A threat to discipline or discharge an em-
ployee for refusing to cross a picket line violates the Act.
See Newberry Energy Corp., 227 NLRB 436 (1967);
Torrington Construction Co., 235 NLRB 1540 (1978); West-
ern Stress, 290 NLRB 678 (1988). Accordingly, Respondent
violated Section 8(a)(1) of the Act when it threatened David
Scott Bolen with discipline and discharge if he refused to
cross the picket line at the Wilson outage in Centertown,
Kentucky. Later, Bolen called Job Superintendent Andy War-
ner at the Wilson outage and said he (Bolen) wouldn’t cross
502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the picket line but if the picket line went down call him and
he will return to work. Warner said okay but never called
Bolen. Sometime later the outage at the Wilson plant in
Centertown was completed and Respondent moved on to the
outage at the Green II facility in Sebree, Kentucky. On April
28, 1990, Bolen called Superintendent Warner at the jobsite
in Sebree and asked if there were any openings. Warner said
yes and Bolen reported to work in Sebree that very day and
worked the night shift.
The very next day a picket line went up at the Sebree job-
site. Bolen called Warner and told him that just as at
Centertown he would not cross the picket line but he wanted
Warner to call him if the picket line went down. Warner said
he would. However, Warner never called Bolen back to
work.
On May 3, 1990, Bolen was effectively discharged, i.e., al-
though the picket line eventually came down neither Warner
nor anyone else associated with Respondent called Bolen and
told him to return to work. A termination slip was prepared
which stated that Bolen had voluntarily quit Respondent’s
employ, but Bolen was never given this slip. Warner claims
that Bolen called him only once and he doesn’t remember if
it was at Centertown or Sebree—whereas Bolen testified he
called Warner a number of times both at Centertown and
Sebree. I credit Bolen who impressed me as an honest man.
According to Warner, Bolen said in their conversation that
he wouldn’t work because of the picket line and wasn’t com-
ing back. Again, I credit Bolen. It is more reasonable to be-
lieve that an individual who wanted to work but felt obliged
to honor a picket line would tell the boss that he could not
cross the picket line but if the picket line was withdrawn or
came down that he needed the work and would work.
Accordingly, I find that Respondent violated Section
8(a)(1) and (3) of the Act when it discharged Bolen in May
1990. See Newberry Energy Corp., supra; Torrington Con-
struction Co., supra; and Western Stress, supra.
Interestingly enough it was Warner who told timekeeper
Ron Russell to note on the termination slip that Bolen was
a ‘‘voluntary quit’’ after 3 days absence at Sebree because
of the picket line. This is, as a practical matter, the func-
tional equivalent of discharge, which is what Wollard told
Bolen would happen when the two men spoke outside the
IGA grocery store near Centertown back in April 1990 if
Bolen missed 3 days of work because of his refusal to cross
a picket line.
C. Failure and Refusal to Hire 54 Applicants for
Employment Because of Their Union Activity
It is alleged that Respondent violated Section 8(a)(1) and
(3) of the Act when it failed and refused to hire 43 employ-
ees who applied for work in March 1990. It is further alleged
that Respondent, since May 1990, failed and refused to hire
11 additional applicants for employment. All 54 of the appli-
cants for employment had the words ‘‘voluntary union orga-
nizer’’ or its functional equivalent written on their applica-
tions for employment. None of the 54 were hired either for
the spring outages or the fall outages. I note at this point that
the employees hired for the fall outages were hired from the
list of employees who worked during the spring outages.
As noted above Respondent had a 3-year contract with Big
Rivers which ran from early 1990 to early 1993. It was ter-
minated in the fall of 1990 by Big Rivers for what Big Riv-
ers considered poor work performance by Respondent.
Respondent began work on the outages at the Henderson
plant in Sebree and the Coleman I plant in Hawesville. The
next outage was at the Wilson plant in Centertown. This was
a bigger job than the prior two jobs and Respondent needed
to solicit individuals interested in employment with Respond-
ent. Accordingly, Respondent caused the following ad to be
placed in newspapers in the cities of Bowling Green, Lex-
ington, Owensboro, and Paducah, Kentucky, Evansville, Indi-
ana, and Clarksville, Tennessee:
SHUT DOWN OPPORTUNITIES
Fluor Daniel Inc. has employment opportunities for the
following individuals on upcoming shut downs in the
Owensboro area.
*Boilermakers *Pipefitters
*Structural Ironworkers *Ironworker Welders
*Boiler Tube Welders *Pipe Welders
*Carpenters
Only individuals with experience on power plant or
heavy industrial projects need apply. Applications will
be accepted Monday thru Friday from 8 a.m. to 3 p.m.
at the Kentucky Employment Service Office located at
311 W. 2nd St., Owensboro, KY. Deadline for applica-
tions is March 23rd. After March 23rd contact:
FLUOR DANIEL, INC.
1–804–222–7117
EOE
In addition, Respondent sent the following letter to Ron
Russell, field office manager, Kentucky Employment Service,
in Owensboro, Kentucky:
Dear Mr. Russell:
Fluor Daniel is an open shop contractor and employs
individuals on the basis of their skills and qualifications
rather than upon membership in a labor organization.
Fluor Daniel has no national or local agreements with
the building trades union.
We are presently seeking individuals with heavy in-
dustrial or power plant experience in the crafts listed
below.
Boilermaker Pipefitter
Structural Ironworker Ironworker Welder
Boiler Tube Welder Pipe Welder
Carpenter
Helpers with at least 42 months or more experience
as a craft helper will also be considered. The top pay
rate for these crafts is $13.50 per hour. I have attached
a descriptive of some typical duties of each craft for
your reference.
The enclosed applications must be fully completed in
order for individuals to be considered for April 1, 1990
employment at the Wilson Power Station in
Centertown, Kentucky. We are scheduled to work two
eight hour shifts, five days per week, for approximately
503FLUOR DANIEL, INC.
1 Originally Norman R. Cole, the full-time paid business agent for
Pipefitters Local 633, was alleged as a discriminatee. The General
Counsel moved to delete him as an alleged discriminatee. I granted
the motion.
two weeks. Individuals must be willing to work night
shift and any required overtime.
Applications have also been sent to your counterparts
in Paduach, Bowling Green, Henderson, Lexington, and
Hopkinsville. Completed applications will be forwarded
to your office.
My plans are to be Owensboro March 26 to review
applications and schedule interviews. I appreciate your
assistance and look forward to working with your of-
fice.
Please call me if you have any questions.
Sincerely
James A. Boyd
Manager Human Resources
The letter was dated March 14, 1990. The ad ran in the
newspaper on March 18, 1990.
Forty-three applications were caused to be sent to the
Owensboro job service. One of Respondent’s human re-
sources managers, Jim Boyd, was responsible for processing
the bulk applications at the Owensboro job service. The
Owensboro office of the Kentucky Employment Service was
referred to by the parties in this litigation as the Kentucky
or Owensboro job service.
Forty-three of the 54 alleged discriminatees caused their
applications to be filed with the Kentucky job service. Boyd
broke applications down and placed them in various files
based on the applicants job qualifications. The following 19
applications were placed by Boyd in a ‘‘pipefitter’’ file:
Jeffrey Campbell Patrick R. O’Bryan
Ernest Carter, Jr. George T. Saltsman
Donald S. Cole Anthony O. Taylor
Wallace H. Cook, Jr. James L. Trainer
Bobby D. Crabtree Thomas G. Turner
Hubert L. Crabtree Mark G. Wagner
Edward L. DeWitt Richard A. Wall
George E. Hayes Charles H. Yeiser
Jerry L. Hurm John C. Zaremba
Joseph B. Hobbs
All the above applicants had the words ‘‘voluntary union
organizer’’ on their applications except Hubert L. Crabtree
whose application contained the words ‘‘union organization-
voluntary.’’ All the applications except that of George
Saltsman reflected membership in Pipefitters Local 633. All
applications were filled out completely except those of Ed-
ward DeWitt and George Saltsman.
DeWitt, however, was a former employee of Respondent
and he will be discussed further on in this decision. All the
applications except DeWitt’s and Saltsman’s reflect work ex-
perience at least equal to those hired over them.
The following four applications were placed in a ‘‘boiler-
maker’’ file:
James Cauley
John H. Coons
Steven S. Coons
G. Dennis Kulmer
All four men had extensive work experience which was at
least the equal of those hired. Three of the four indicated on
their applications membership in Boilermaker Local 40 and
the fourth, James Cauley, indicated on his application that he
was a member of the Boilermakers International Union. All
four had the words ‘‘voluntary union organizer’’ on their ap-
plications.
The following two applications were placed in a ‘‘boiler-
maker pipe welder’’ file:
Ernest T. Coons
James D. Pierce
Both of these men had extensive work experience at least
the equal of those hired over them. Both men stated on their
applications that they were members of Boilermakers Local
40 and that they were ‘‘voluntary union organizers.’’
The following three applications were placed in a ‘‘pipe-
fitter welder’’ file:1
Russell W. Bell
James G. Phillips
Roger D. Sims
All three men had the words ‘‘voluntary union organizer’’
on their applications. All three had extensive work experi-
ence. Bell and Sims’ applications reflected membership in
Pipefitter Local 633 and Phillips’ application listed Pipe-
fitters Local 633 Business Agent Norman Cole as a personal
reference and his work experience showed over 7 years of
experience with TVA, a well-known union employer.
The following 12 applications were placed in an ‘‘Iron-
workers’’ file:
Ralph Angel Larry Elliott
Herschel L. Bowlds, Jr. Mark A. Farmer
Richard B. Bowlds James C. Gentry
Willis G. Beasley Ronald K. Gower
Ricky Brown Donald L. Hurst
Willis C. Dean, Jr. Gregory Parks
All of these applicants had the words ‘‘voluntary union or-
ganizer’’ or ‘‘voluntary organizer’’ on their applications ex-
cept Richard B. Bowlds. Bowlds did have on his application
that he had journeyman ironworker training and he listed
Iron Workers Local 103 Business Agent William Curtis and
Assistant Business Agent Bill Garrett as personal references.
All these men had extensive work experience.
The following 3 applications were in a ‘‘laborers’’ file:
Thomas R. Ball
Ronnie E. Burk, Sr.
James M. Jones
All three of these applications contained the words ‘‘vol-
untary union organizer—Laborers’ Local 1392.’’ All three
had experience. Although Respondent did not advertise for
laborers in the paper or in the letter to the Kentucky job
service, Respondent did hire laborers for the spring and fall
outages.
In light of the Board’s recent decisions in Fluor Daniel,
Inc., 304 NLRB 970 (1991), and Wilmar Electric Service,
303 NLRB 245 (1991), it is clear that the mere fact that
504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 In finding union animus in this case, I do not need to rely on
the animus found in the recent case involving this same Respondent
where Respondent unlawfully discriminated against 48 applicants for
employment. See Fluor Daniel, Inc., supra. Although, of course, I
could so rely. Ducane Heating Corp., 273 NLRB 1389, 1400 (1985).
these applicants made known to Respondent that they were
voluntary union organizers does not mean that they were not
bona fide applicants for employment. In addition, of course,
applicants for employment have the protection of the Act and
may not be discriminated in employment on the basis of
union activity any more than employees who are already on
the payroll. See Phelps Dodge Corp. v. NLRB, 313 U.S. 177
(1941), Stop-N-Go Foods, 279 NLRB 777 (1986).
None of these 43 alleged discriminatees were hired.
Respondent claims that in hiring employees it gives pri-
ority in hiring to persons who have previously been em-
ployed by Respondent. This is not alleged to be nor is it an
unfair labor practice.
In addition, Respondent hired a number of employees for
the Wilson outage in Centertown whose applications re-
flected some connection with organized labor, e.g., training
through union apprenticeship programs and/or employment
with known union contractors. However, none of the appli-
cants whose applications contained the words ‘‘voluntary
union organizer’’ or its functional equivalent were hired.
Jim Boyd testified that when he arrived in Owensboro on
March 26, 1990, and received the applications for employ-
ment, he only needed to fill approximately 16 positions, i.e,
he needed 6 carpenters, 2 pipe welders, and 8 boilermakers.
He had previously extended offers of employment to more
than 100 former employees of Respondent who had been so-
licited through a mailgram which Respondent had sent to
former employees of Respondent living within 200 miles of
Henderson, Kentucky. The offers of employment were for
employees to begin work at the Wilson outage in Centertown
on April 2, 1990. There was a delay in beginning work at
the Wilson plant and work did not begin until April 9, 1990.
As a result of the delay a number of persons who indicated
interest in working at the Wilson outage and who had been
offered jobs went elsewhere. Hence, Respondent needed to
hire more employees, in particular tube welders.
An analysis of Respondent’s Exhibit 22 reveals that some
172 different employees worked on the spring outages. Many
of these were laid off when work was completed at one out-
age and were recalled to work at a subsequent outage. As
noted above these were six spring outages. Respondent’s Ex-
hibit 22 reflects that approximately 79 employees when first
hired by Respondent for the Big Rivers Project had pre-
viously been employed by Respondent. Approximately 32
additional employees had some indication of union back-
ground when hired. Usually this consisted of having pre-
viously been employed by well-known union contractor and
occasionally union connection was indicated by the employ-
ee’s completion of a union-run apprenticeship program. Ap-
proximately 13 employees had both prior experience working
with Respondent as well as some union connection. How-
ever, approximately 52 employees hired by Respondent had
never worked for Respondent and had no indication of union
connection. Of course, not one single employee who had the
words ‘‘voluntary union organizer’’ or its functional equiva-
lent on their application was hired.
Respondent claims that it did not discriminate against this
group of applicants. However, massive amounts of union ani-
mus in the record reflects to the contrary. The evidence of
animus is so strong and so pervasive that I cannot except the
statements of Respondent’s agents that Respondent did not
discriminate against the applicants who had the words ‘‘vol-
untary union organizer’’ or its functional equivalent of their
applications.2
As noted above in section III,B a picket line went up in
May 1990 at the Green II outage in Sebree, Kentucky. Ron
Russell, a timekeeper and office manager for Respondent,
visited some of the picketers on the picket line and asked
why they were picketing. The picketers told Russell because
they were looking for work. Russell said that Respondent
needed tube welders and caused applications to be distributed
to the men on the picket line telling them to apply for a job.
Russell never returned to the area to pick up the applications.
Boilermakers Organizer Barry Edwards was present on the
picket line when Ron Russell caused applications to be dis-
tributed. Edwards caused 11 applications to be completed
and mailed to Respondent by certified mail. The applications
were those of 11 boilermakers who do the kind of work that
Russell told the picketing individuals that Respondent need-
ed.
The 11 applications were those of:
Thomas Armstrong David K. James
Jimmy D. Blandford Brett A. Maupin
Steve Boggess Todd Robinson
Martin W. Drake Jeffrey Everly
Russell Gregory Michael Hardin
Frank Trovato
All 11 of these applicants had the words ‘‘voluntary union
organizer’’ on their applications except David K. James
whose application stated ‘‘Boilermaker union organizer.’’ All
but James indicated membership in Boilermakers Local 40
and James listed Boilermakers Local 40’s business agent, Jim
Parrish, as a personal reference. These 11 applications were
received by Respondent and even though solicited by Re-
spondent’s agent, Ron Russell, these applications were not
even considered because Respondent claims they were ‘‘bulk
applications’’ and Respondent’s practice is not to accept bulk
applications. But as the record reflects Respondent considers
bulk applications when it wants to do so and doesn’t when,
for one reason or another, it doesn’t want to do so. An exam-
ination of the 11 applications reveals that all 11 applicants
had a good deal of work experience.
I note that there is not one shred of evidence that the em-
ployees whose applications have the words ‘‘voluntary union
organizer’’ or its functional equivalent on them were any-
thing other than bona fide applicants for employment. Iron
Workers Local 103 Business Agent William Curtis credibly
and without contradiction testified that 200 of his 800 person
local membership was out of work in the spring of 1990. In
addition Laborers Local 1392 Business Agent Robert John-
son testified credibly and without contradiction that 200 of
his 500 local membership was also out of work in the spring
of 1990.
In addition there was credible testimony that since Re-
spondent had a 3-year contract with Big Rivers that union
employees working far from home would give serious con-
sideration to taking a job with a lot of of work at less than
505FLUOR DANIEL, INC.
3 Ron Russell testified that at one point during the spring outages
when Respondent needed welders he went through the boilermaker
and pipewelder files, which contained among other applications a
number of the applications of the discriminatees in this case, and
further that he called all the applicants in the files to include those
whose applications bore the language ‘‘voluntary union organizer.’’
I don’t believe him. There was no evidence to corroborate this part
of his testimony (such as notes on the applications) and no evidence
that any discriminatee ever received such a call.
top union pay in order to work closer to home and also to
help organize this large open-shop contractor. I refer specifi-
cally to the testimony of Roger Sims and Patrick O’Bryan.
It goes without saying that if a respondent discriminates
against an employee because of that employee’s activity on
behalf of the union that Section 8(a)(1) and (3) of the Act
has been violated even if other employees who participate in
union or other protected concerted activity are not the vic-
tims of similar discrimination. See KRI Constructors, 290
NLRB 802 (1988); Alexander’s Restaurant & Lounge, 228
NLRB 165 (1977).
In the instant case a number of employees (approximately
32) were hired for the spring outages by Respondent even
though their applications revealed some connection to orga-
nized labor, which was usually that they had worked for a
known union contractor. See Respondent’s Exhibit 22. There
is a difference, however, between an applicant for employ-
ment who has worked in the past for a union contractor and
an applicant for employment who states on his application
that he is a voluntary union organizer. The latter employee
is putting the employer on notice that he will try to exercise
his federally protected right to organize his fellow employ-
ees. Respondent is an open-shop contractor and wants to stay
that way. This is not illegal. Based on strong evidence of
union animus, however, which is discussed below, it is my
conclusion that Respondent discriminated against the appli-
cants for employment whose applications reflected that they
intended to organize Respondent’s employees.
The employees hired for the fall outages were for the most
part veterans of the spring outages. Respondent conceded
that it hired employees for the fall outages who were vet-
erans of the spring outage. None of the 54 alleged
discriminatees referred to above, i.e., the 43 whose applica-
tions were turned into the Kentucky job service in
Owensboro in late March 1990 or the 11 whose applications
were mailed to Respondent and received on May 18, 1990,
were offered employment during the fall outages.
Respondent’s Exhibit 23 is a list of the employees hired
for the fall outages just like Respondent’s Exhibit 22 is a list
of employees hired for the spring outages. Respondent’s Ex-
hibit 23 reflects that some 123 employees were hired for the
fall outages. Thirty-five were former employees of Respond-
ent; 18 had some connection with organized labor—usually
it was the fact that some time in the past they worked for
a union contractor; 18 had both worked for Respondent in
the past and had worked in the past for a union contractor;
52 of the employees hired for the fall outage had neither
worked for Respondent in the past nor did they have any
union connection.
Interestingly enough, 52 of the employees hired for the
spring outages out of 172 and 52 of the employees out of
the 123 hired for the fall outages had neither worked for Re-
spondent in the past nor did they have any connection to or-
ganized labor. Yet not one single employee out of the 54 that
had the words ‘‘voluntary union organizer’’ on their applica-
tion was hired. It is clear that the General Counsel made out
a prima facie case under Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1981). Further, considering the union animus in
this case, it is clear that the General Counsel proved its case.
Respondent unlawfully refused to hire and did so to discour-
age union membership among its employees. See Radio Offi-
cers v. NLRB, 347 U.S. 17 (1954).
D. Union Animus
As noted above there is strong evidence of union animus
in this case. It is clear Respondent did not want to have a
unionized work force. Fluor Daniel is wholly owned by
Fluor Corporation. Fluor Constructors, a unionized company,
is also wholly owned by Fluor Corporation. Yet, only former
employees of Fluor Daniel and not former employees of
Fluor Constructors are given a preference in hiring. I find
evidence of animus from the following: (1) Not one single
applicant whose application bore the words ‘‘voluntary union
organizer’’ was hired and their qualifications and job experi-
ence were at least the equal of those hired; (2) the treatment
of John and Steve Coons; (3) the treatment of David Scott
Bolen; (4) the treatment of Edward DeWitt; and (5) the cava-
lier manner in which Respondent handled the applications of
11 boilermakers it received in mid-May 1990.
Only 2 of the 54 applicants who wrote ‘‘voluntary union
organizer ‘‘on their applications were ever even called by
Respondent.3 They were Steve and John Coons, who are
brothers. They are also members of Boilermakers Local 40,
and their applications reflected as much.
The Coons brothers showed up at the Wilson outage in
Centertown, Kentucky, on April 9, 1990, after one of them
was called by Supervisor Jan Linscome and Linscome said
both he and his brother could test for a position. They were
to be tested to see if they were qualified to be hired. There
are two tests that a welder can be given, i.e., a plate or stick
weld test and a tube weld test. All sides concede that a tube
weld test is the more difficult test. The Coons brothers took
the tube weld test and although they thought they passed the
test they were told they had not passed. Both brothers
credibly testified that both before and after taking the tube
weld test for Respondent that they have taken and passed
other tube weld tests although both concede they have failed
the test on occasion. The Coons brothers found out they
flunked the test when they called Respondent to get the re-
sults, although Respondent had told them that it would call
them. They were told they flunked the test and would not
be hired. The Coons brothers were not offered the oppor-
tunity to take a second tube weld test nor were they given
the opportunity to take the easier stick or plate weld test.
This contrasts sharply with the way in which other applicants
whose applications did not contain the words ‘‘voluntary
union organizer’’ were treated. For example, David Scott
Bolen told the test givers that he didn’t think he could pass
the tube weld test so they let him take the easier plate weld
test which he passed and he was hired. Troy and James
Hilburn, two brothers, took the tube weld test like the Coons
brothers and both flunked the test but were hired anyway. In-
deed, Troy Hilburn was fired for cause during the spring out-
506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Christopher Caldwell, Ralph Roach, Ricky Payton, and Chris Ar-
nold were hired by Respondent for the fall outages based on their
applications for employment during the spring outages. They had not
been hired in the spring.
age but rehired for the fall outage. Gary Harper flunked the
tube weld test but was given a second test, passed it, and
was hired. Joe Poehlin was given the easier plate weld test
rather than the more difficult tube weld test and was hired.
Respondent’s union animus is also demonstrated by its
treatment of David Scott Bolen. In the first instance he was
hired after taking the plate weld test, which is the easier of
the welding tests, after he said he wasn’t good enough to
pass the tube weld test. Supervisor Robert Wollard told
Bolen that an employee would be disciplined and discharged
if he refused to cross a picket line, and, lastly, Bolen was
effectively discharged when he honored a picket line.
Respondent’s union animus is also demonstrated by its
treatment of Edward L. DeWitt. DeWitt’s application was
submitted in March 1990 through the Kentucky job service
in Owensboro. DeWitt’s application reflected that he was a
voluntary union organizer and a member of Pipefitters Local
633. It reflected, also, that he had previously been employed
by Respondent. Two things are interesting (1) although Re-
spondent claims it sent mailgrams to former employees of
Respondent living within 200 miles of Henderson, Kentucky,
as DeWitt did, DeWitt was never sent a mailgram, and (2)
although Respondent claimed it gave priority in staffing the
project to former employees of Respondent DeWitt was
never offered a job yet Respondent hired approximately 84
employees during the spring outages who had not previously
worked for Respondent and it hired 70 employees for the fall
outages who had never previously worked for Respondent.
At the hearing before me Respondent claims that DeWitt was
not hired in part because his application was not complete,
i.e., he didn’t list all former employees. However, a number
of people were hired whose applications were similarly in-
complete, e.g., Christian Volz, Clayton Rogers, George An-
derson, and Wayne Eckles. It is clear by at least a preponder-
ance of the evidence that DeWitt was discriminated against
by Respondent because his application reflected that he was
a voluntary union organizer and a member of a union inter-
ested in organizing Respondent’s work force.
The last evidence of union animus is the manner in which
Respondent handled the 11 applications of boilermakers
mailed to it and received by Respondent on May 17, 1990.
Respondent claims it did not consider these applicants for
employment because their applications were received in bulk
and Respondent’s policy is not to accept bulk applications.
None of these 11 applicants had their applications returned
to them by Respondent with a letter or notation to the effect
that bulk applications are not accepted. Respondent also ac-
cepted bulk applications when it wants to and when it is in
Respondent’s interest not to accept bulk applications it cites
a policy against the acceptance of bulk applications. Ron
Russell clearly solicited applications on behalf of Respondent
at Sebree in May 1990. Since he did not collect the applica-
tions on the spot, it was not unreasonable to believe they
should be mailed to Respondent as they were. Respondent
merely received the 11 applications and ignored them. Need-
less to say all 11 applications reflected the applicants mem-
bership in Boilermakers Local 40 and that the applicant was
a voluntary union organizer.
Respondent’s applications contain printed language that
the application is valid for 60 days from application date.
Respondent argues that in light of that the applications of the
54 alleged discriminatees submitted in March and May 1990
would not have been valid applicants for the fall outages be-
ginning in September 1990. However, Human Resources
Manager Jim Boyd prepared the staffing memo for the Wil-
son outage in Centertown and the staffing memo provided
that the applications should be kept in a file to be used for
future staffing requirements and indeed Respondent’s super-
visor, Jan Linscome testified he used applications filed in the
spring for staffing purposes for the fall outages.4 Linscome
also testified that there was turnover in all crafts during the
outages.
REMEDY
The remedy for the threat to discipline and discharge an
employee if he refuses to cross a picket line should be a
cease and desist order and the posting of a notice. The rem-
edy for the unlawful discharge of David Scott Bolen should
be, in addition to a cease-and-desist order and the posting of
an appropriate notice, an order to reinstate Bolen and an
order to make him whole. The remedy for the unlawful fail-
ure and refusal to hire the 54 applicants for employment
should include, in addition to a cease-and-desist order and
the posting of an appropriate notice, an order to hire these
54 employees and make them whole.
Obviously the Big Rivers project is over as far as Re-
spondent is concerned since Big Rivers, rightly or wrongly,
terminated its contract with Respondent because of Big Riv-
ers’ view that Respondent’s job performance was poor. Re-
spondent is a major employer which undertakes projects
throughout the United States. Bearing in mind that Respond-
ent, after Big Rivers terminated its contract, went on to other
projects in this part of the country and elsewhere and that
employees in the construction industry move from jobsite to
jobsite and further bearing in mind Respondent’s practice of
giving priority in hiring to employees who have worked for
it in the past the right of the aggrieved 55 discriminatees
(which includes Bolen) to reinstatement and backpay should
extend beyond the termination of Respondent’s contract with
Big Rivers in the fall of 1990. See Dean General Contrac-
tors, 285 NLRB 573 (1987).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act when it
threatened an employee with discipline and discharge if he
refused to cross a picket line.
4. Respondent violated Section 8(a)(1) and (3) of the Act
when it discharged David Scott Bolen because he refused to
cross a picket line.
5. Respondent violated Section 8(a)(1) and (3) of the Act
when it failed and refused to offer positions to any of 54
discriminatees listed below in paragraph 2 of my rec-
ommended Order because they engaged in the protected con-
certed activity of letting Respondent know they were vol-
untary union organizers.
507FLUOR DANIEL, INC.
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
6 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.’’
6. The above unfair labor practices affect commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Fluor Daniel, Inc., Greenville, South
Carolina, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to discharge and discipline employees be-
cause they refuse to cross a picket line.
(b) Discharging employees because they refuse to cross a
picket line.
(c) Discouraging employees from engaging in activities on
behalf of a labor organization by refusing to hire job appli-
cants because they are members or supporters of unions, or
because they indicate on their employment applications that
they are voluntary union organizers.
(d) In any like or related manner interfering with, restrain-
ing, or coercing its employees or applicants for employment
in the exercise of their Section 7 rights protected by the Act.
2. Take the following affirmative action deemed necessary
to effectuate the purposes and policies of the Act.
(a) Offer David Scott Bolen full reinstatement to his
former position and offer to the below listed individuals em-
ployment in positions for which they applied or, if those po-
sitions no longer exist, to substantially equivalent positions,
without prejudice to their seniority and other rights and privi-
leges.
Pipefitters Local 633 Iron Workers Local 103
Jeffrey Campbell Ralph S. Angel
Ernest Carter, Jr. Herschel L. Bowlds, Jr.
Donald S. Cole Richard B. Bowlds
Wallace H. Cook, Jr. Willis G. Beasley
Bobby D. Crabtree Ricky Brown
Hubert L. Crabtree Willis C. Dean, Jr.
Edward L. DeWitt Larry Elliott
George E. Hayes Mark A. Farmer
Jerry L. Hurm James C. Gentry
Joseph B. Hobbs Ronald K. Gower
Patrick R. O’Bryan Donald L. Hurst
George T. Saltsman Gregory Parks
Anthony O. Taylor
James L. Trainer
Thomas G. Turner Laborers Local 1392
Mark Wagner Thomas R. Ball
Richard A. Wall Ronnie E. Burk, Jr.
Charles H. Yeiser James M. Jones
John C. Zaremba
Boilermakers Local 40
Boilermakers Local 40 Thomas Armstrong
James Cauley Jimmy D. Blandford
John H. Coons Steve Boggess
Steven S. Coons Martin W. Drake
G. Dennis Kulmer Jeffrey Everly
Russell Gregory
Michael Hardin
Boilermakers Local 40 David K. James
Ernest T. Coons Brett A. Maupin
James D. Pierce Todd Robinson
Frank Trovato
Pipefitters Local 633
Russell W. Bell
James G. Phillips
Roger D. Sims
(b) Make the individuals listed in paragraph 2(a) and
above whole for any loss of pay and other benefits suffered
by them. Backpay to be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987) (see generally Isis Plumbing Co., 138 NLRB 716
(1962)).
(c) Expunge from it files any reference to the discharge of
David Scott Bolen and the unlawful refusal to hire the em-
ployees listed above and notify them in writing that this has
been done and that evidence of this unlawful conduct will
not be used as a basis for future personnel action against
them.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at all of its jobsites within a 75-mile radius of
Owensboro, Kentucky, copies of the attached noticed marked
‘‘Appendix.’’6 Copies of this notice on forms provided by
the Regional Director for Region 26, after being duly signed
by Respondent’s authorized representative, shall be posted
immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to en-
sure that said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten to discharge and discipline employ-
ees because they refuse to cross a picket line.
WE WILL NOT discharge employees because they refuse to
cross a picket line.
WE WILL NOT discourage employees from engaging in ac-
tivities on behalf of a labor organization by refusing to hire
job applicants because they are members or supporters of
unions, or because they indicate on their employment appli-
cations that they are voluntary union organizers.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed to them under Section 7 of the Act.
WE WILL offer David Scott Bolen immediate and full rein-
statement to his former position if that position no longer ex-
ists, to a substantially equivalent position, without prejudice
to his seniority and other rights and privileges and WE WILL
offer to the below listed applicants employment in positions
for which they applied or, if nonexistent, to substantially
equivalent positions:
Pipefitters Local 633 Iron Workers Local 103
Jeffrey Campbell Ralph S. Angel
Ernest Carter, Jr. Herschel L. Bowlds, Jr.
Donald S. Cole Richard B. Bowlds
Wallace H. Cook, Jr. Willis G. Beasley
Bobby D. Crabtree Ricky Brown
Hubert L. Crabtree Willis C. Dean, Jr.
Edward L. DeWitt Larry Elliott
George E. Hayes Mark A. Farmer
Jerry L. Hurm James C. Gentry
Joseph B. Hobbs Ronald K. Gower
Patrick R. O’Bryan Donald L. Hurst
George T. Saltsman Gregory Parks
Anthony O. Taylor
James L. Trainer
Thomas G. Turner Laborers Local 1392
Mark Wagner Thomas R. Ball
Richard A. Wall Ronnie E. Burk, Jr.
Charles H. Yeiser James M. Jones
John C. Zaremba
Boilermakers Local 40
Boilermakers Local 40 Thomas Armstrong
James Cauley Jimmy D. Blandford
John H. Coons Steve Boggess
Steven S. Coons Martin W. Drake
G. Dennis Kulmer Jeffrey Everly
Russell Gregory
Michael Hardin
Boilermakers Local 40 David K. James
Ernest T. Coons Brett A. Maupin
James D. Pierce Todd Robinson
Frank Trovato
Pipefitters Local 633
Russell W. Bell
James G. Phillips
Roger D. Sims
WE WILL expunge from our files any reference to the dis-
charge of David Scott Bolen and any reference to the unlaw-
ful refusal to hire the applicants listed above and notify them
in writing that this has been done and that evidence of this
unlawful conduct will not be used as a basis for future per-
sonnel action against them.
WE WILL make the discriminatees whole for any loss of
pay or benefits they suffered because of the discriminations
against them, plus interest.
FLUOR DANIEL, INC.