High Point Construction Group, LLC

National Labor Relations Board - Board Decisions

Jun 30, 2004

342 N.L.R.B. 406 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 36
406
High Point Construction Group, LLC and Mid-
Atlantic Regional Council of Carpenters, United
Brotherhood of Carpenters and Joiners of
America. Case 6–CA–32853–1
June 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On April 28, 2003, Administrative Law Judge Benja-
min Schlesinger issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and the
General Counsel filed limited cross-exceptions, an an-
swering brief and a motion to strike Respondent’s excep-
tions. The Respondent filed a brief in opposition to the
General Counsel’s motion.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified and to adopt the recommended Order as modi-
fied and set forth in full below.2
1. On September 9, 2003, the Board granted in part
and denied in part the General Counsel’s motion to strike
the Respondent’s exceptions to the judge’s decision. The
General Counsel contended that the exceptions did not
comport with Section 102.46(b)(1)(i) and (iv) of the
Board’s Rules and Regulations. The General Counsel
contended that the exceptions did not set forth specifi-
cally the questions of procedure, fact, law, or policy to
which exceptions were taken, and did not concisely state
the grounds for the exceptions. In an unpublished order,
the Board ruled in part in favor of the General Counsel.
Thus, the Board said that it would limit its consideration
of the Respondent’s exceptions to three matters: the su-
pervisory status of Randall Burke, the Respondent’s al-
leged threat to reduce wages, and the appropriateness of
a Gissel3 bargaining order in this case.4

1 The Respondent and the General Counsel have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
There are no exceptions to the judge’s recommended dismissals, ex-
cept for his dismissal of the allegation that the Respondent violated Sec.
8(a)(1) by interrogating Robert Riley. The General Counsel also ex-
cepts to the finding that Riley was a statutory supervisor.
The General Counsel notes that the judge mistakenly referred to
Foreman Greg Woody as Greg Moody. The record is hereby corrected.
2 We shall modify the Order to conform to our findings.
3 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
Because of our ruling on the General Counsel’s mo-
tion, we shall adopt the judge’s findings, to which no
proper exceptions were filed that the Respondent vio-
lated Section 8(a)(1) of the Act, as follows: (1) when it
intentionally and boisterously interrupted the July 27,
20025 union meeting at Randall Burke’s house, intimi-
dating employees and creating the impression of surveil-
lance of employees’ union activities; (2) when it threat-
ened employees with loss of work by telling employees
at the Merle Norman jobsite that, because the residential
agreement required less pay, the Respondent would not
know how to bid for future jobs; (3) when its owner, Tim
Shaw, interrogated employee John Snyder on July 17,
asking him “how the union meeting went last night,” and
again interrogated Snyder 2 weeks later, after the Union
filed an unfair labor practice charge, when Shaw asked
Snyder why the employees had sought out the Union
instead of settling their problems some other way; and
(4) by threatening employees with plant closure when,
shortly after the Union filed its representation petition,
Shaw approached Burke, accused him of being a union
supporter, and angrily told Burke that he, Shaw, was not
going to work under “any damn union rules” and that he
would shut down the company and file for bankruptcy
first. The judge found that Burke disseminated this
threat to at least four employees at a union meeting at his
house shortly thereafter.6
2. We disagree with the judge that the Respondent
violated Section 8(a)(1) by threatening to reduce its em-
ployees’ wages if the Union prevailed in a representation
election. The relevant facts are as follows.
The Union filed a representation petition on June 28.
The representation hearing was held on July 16, at which
time the parties signed a stipulated election agreement.
Following the hearing, Union Representative Leroy
Stanley spoke with the Respondent’s owners and its
counsel, in an attempt to persuade them to recognize the

4 Chairman Battista, dissenting, would have granted the General
Counsel’s motion in toto, without prejudice to the Respondent’s ability
to file amended exceptions.
5 All dates are in 2002 unless otherwise indicated.
6 We find it unnecessary to decide the supervisory status of Randall
Burke and Bob Riley. The Respondent contends that both are supervi-
sors. The judge found Riley to be a supervisor and Burke not to be a
supervisor. The General Counsel excepted to the finding regarding
Riley, and the Respondent excepted to the finding regarding Burke. The
General Counsel alleged that the Respondent interrogated both Riley
and Burke and that Burke was threatened with plant closure. However,
we need not resolve these alleged interrogations as they would be cu-
mulative of other unlawful interrogations we have found and would not
affect the remedy. As for the threat of plant closure, inasmuch as we
have found that it was disseminated to at least four employees, a deter-
mination of Burke’s status as an employee or supervisor is not neces-
sary to our conclusion that the threat interfered with, restrained, and
coerced employees in violation of Sec. 8(a)(1).

HIGH POINT CONSTRUCTION GROUP, LLC 407
Union without an election. To convince them, Stanley
gave them the Union’s two primary contracts: the master
agreement and the residential/light agreement (residential
agreement).7 To promote the Union’s position, Stanley
said that he could help Respondent get work, and repre-
sented that the residential agreement contained a “very
attractive rate for jobs under a million dollars.” Stanley
also said that, in order to get the benefit of the wage rates
in the residential agreement, Respondent had to sign the
master agreement, as the front page of that agreement
made clear. Stanley made no representation about any
favorable rates under the master agreement. In fact, that
agreement contained wage rates considerably higher than
the “attractive rates” of the residential agreement.
The day after the hearing, the Respondent’s co-owner,
Critchfield, went to the Merle Norman jobsite. He
showed the employees the wage rate page of the residen-
tial agreement and told them they would take a $2 cut in
wages if the Respondent signed that agreement, which
set forth lower wages than the employees were currently
receiving. The judge found that, on that same date, Shaw
“made the same threat” to employees at another jobsite,
Hastings, which was an industrial multimillion-dollar
job. Shaw told those employees that if the Union came
in, the employees would be working under the residential
agreement contract and making the wages set forth in
that agreement, about $2 less per hour than the employ-
ees were currently making.
The judge dismissed the threat allegations regarding
the statements made by Critchfield to employees at the
Merle Norman jobsite.8 The judge found that Critchfield
was entitled to make the claim that employees would
make less under the residential agreement, as the Merle
Norman jobsite appeared to require work of less than 1
million dollars and the residential agreement would
therefore apply. The judge found, however, that because
the Hastings job was a multimillion dollar job, Shaw was
not justified in making the claim that the residential
agreement would apply to that jobsite. The judge found,
therefore, that even though the comments were the same,
Shaw, unlike Critchfield, had no justification for his
claims. The judge found Shaw’s statement to be a threat
of reduced wages in violation of Section 8(a)(1). We
disagree.
We find that Shaw’s statement, like Critchfield’s
statement, was not a threat to reduce wages. The Union

7 The master agreement pertains to jobs that are “heavy commercial”
or industrial in nature. The residential/light agreement is applied to
those jobs for which the total construction costs are less than 1 million
dollars, and which do not fall into several categories of exception.
8 The General Counsel did not except to the judge’s dismissal of this
allegation.
had told the Respondent that the residential agreement
contained “attractive rates.” The Respondent told em-
ployees what the contract would mean to them: that they
would make less under the residential agreement than
they were currently making. Critchfield made the state-
ment at the Merle Norman jobsite, but the judge found
no violation because that job was under 1 million and the
residential agreement would apply. The sole fact that the
Hastings job, where Shaw made the same comment, was
in excess of 1 million does not warrant finding a viola-
tion with respect to Shaw’s comments. There is no evi-
dence that the Respondent’s work force was divided into
two groups—one that worked on million dollar jobs and
one that worked on less expensive jobs. The judge found
that both groups of employees were told the same thing:
that the Union’s residential contract called for less
money than the employees were currently making. Fur-
ther, there is evidence that Shaw gave the residential con-
tract to employees, and gave them the opportunity to read
it. The contract itself said that it applied only to jobs
worth less than 1 million. Shaw’s comment, like Critch-
field’s, was a simple repetition of the Union’s own prof-
fering of the residential agreement to the Respondent.
Such a comment does not constitute a violation of Sec-
tion 8(a)(1) of the Act. Cf. Montgomery Ward & Co.,
288 NLRB 126 fn. 3 (1988) (no violation for employer’s
statement that employees would not get pay raise as fre-
quently under a union because union only provided for
raises once every 3 years; the statement reflected em-
ployer’s understanding of union contract provision re-
garding frequency of pay raises, and was not a threat that
employer would grant fewer wage increases if union se-
lected as representative).
3. We find, contrary to the judge, that a bargaining or-
der is not necessary to effectuate the purposes of the Act
under the circumstances in this case. The Supreme Court
held in NLRB v. Gissel Packing Co., 395 U.S. 575, 614–
615 (1969), that “[i]f the Board finds that the possibility
of erasing the effects of past [unfair labor] practices and
of ensuring a fair election (or a fair rerun) by the use of
traditional remedies, though present, is slight and that
employee sentiment once expressed through cards
would, on balance, be better protected by a bargaining
order, then such an order should issue[.]”
Although the appropriateness of a bargaining order de-
pends on the nature and extent of the Respondent’s mis-
conduct, there are no mechanical or per se rules. Rather,
each case must be fully examined for the “infinitely vari-
ous circumstances which will influence employee per-
ceptions of such prohibited conduct.” General Stencils,
195 NLRB 1109, 1112 (1972) (Chairman Miller, dissent-
ing). Some violations, however, are so likely to under-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 408
mine majority strength and impede the election processes
that a bargaining order may be justified in the absence of
extenuating or mitigating circumstances. Such hallmark
violations include discharging employees for union activ-
ity, closing or threatening to close, and granting benefits.
A Gissel order is an extraordinary remedy, however; the
preferred route is to provide traditional remedies for an
employer’s unfair labor practices wherever such reme-
dies may be sufficient to cleanse the atmosphere of the
effects of unlawful conduct. Aqua Cool, 332 NLRB 95,
97 (2000).
In this case, the Respondent has committed a number
of 8(a)(1) violations, including unlawfully interrogating,
surveiling, and intimidating employees, and threatening
employees that there is a good possibility of a lack of
upcoming work because of the Union. The Respondent
also committed one “hallmark” violation by threatening
plant closure. This set of violations would generally pre-
clude the possibility of holding a fair election because of
its lasting adverse effect, but under the circumstances
presented here we find that the imposition of special
remedies should serve to cleanse the atmosphere of the
effects of the Respondent’s unlawful conduct, and that a
bargaining order is therefore unnecessary. In this re-
spect, we agree with the judge that the Respondent’s un-
fair labor practices are sufficiently egregious to warrant a
broad cease-and-desist order enjoining the Respondent
not only from committing again the specific violations
found, but also from violating the Act “in any other
manner.” See Hickmott Foods, 242 NLRB 157 (1979).
We also shall require that a responsible management
official of the Respondent, at its Buckhannon, West Vir-
ginia facility, read aloud to employees the notice to em-
ployees. At the Respondent’s option, a Board agent, in
the presence of a responsible management official, may
instead read the notice to employees. As the Board has
previously observed, “the public reading of the notice is
an ‘effective but moderate way to let in a warming wind
of information and, more important, reassurance.’”
McAllister Towing & Transportation Co., 341 NLRB
No. 48, slip op. at 7 (2004) (internal quotations omitted).9
ORDER
The National Labor Relations Board orders that the
Respondent, High Point Construction Group, LLC,
Buckhannon, West Virginia, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from

9 Chairman Battista does not join his colleagues in ordering this ex-
panded remedy. In the Chairman’s view, this Respondent is not a
recidivist and the violations are not egregious, and thus, the Board’s
traditional cease and desist remedy, as posted for employees, would
suffice to erase the effects of the Respondent’s unfair labor practices.
(a) Coercively interrogating its employees about their
support for the Union.
(b) Telling its employees there was a good possibility
of a lack of upcoming work because of the Union.
(c) Telling its employees that it would shut down and
file for bankruptcy if the employees selected the Union
as their representative.
(d) Engaging in surveillance and intimidating its em-
ployees where they are gathered at a Union meeting.
(e) In any other manner interfering with, restraining or
coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the National Labor Relations
Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facility in Buckhannon, West Virginia, copies of the
attached notice marked “Appendix.”10 Copies of the
notice, on forms provided by the Regional Director for
Region 6, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since July 1, 2002.
(b) During the time the notice is posted, convene the
unit employees during working time at the Respondent’s
Buckhannon, West Virginia facility, and have a respon-
sible management official of the Respondent read the
notice to the employees or permit a Board agent, in the
presence of a responsible management official of the
Respondent, to read the notice to employees.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

HIGH POINT CONSTRUCTION GROUP, LLC 409
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

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

FEDERAL LAW GIVES YOU THE RIGHT TO

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

WE WILL NOT coercively interrogate you about your
support for the Union.
WE WILL NOT tell you that there is a good possibility of
lack of upcoming work because of the Union.
WE WILL NOT tell you that we will shut down and file
for bankruptcy if you choose the Union as your represen-
tative.
WE WILL NOT engage in surveillance of you or intimi-
date you when you are gathered at a union meeting.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights set forth
above.
HIGH POINT CONSTRUCTION GROUP, LLC

Suzanne S. Donsky, Esq., for the General Counsel.
Fred F. Holroyd, Esq. (Holroyd & Yost), of Charleston, West
Virginia, for the Respondent.
John Znoy, of Morgantown, West Virginia, and Leroy Stanley,
of Bridgeport, West Virginia, for the Union.
DECISION
FINDINGS OF FACT
BENJAMIN SCHLESINGER, Administrative Law Judge. The
complaint alleges a discharge, a refusal to hire, a grant of bene-
fits, and a variety of other unfair labor practices so severe that a
Gissel1 bargaining order is warranted. Respondent High Point
Construction Group, LLC denies that it violated the Act in any
manner. The charge was filed by Mid-Atlantic Regional Coun-
cil of Carpenters, United Brotherhood of Carpenters and Joiners
of America (Union), on July 18, and amended on August 27,
2002,2 and the complaint was issued on September 20. The
hearing was held in Clarksburg, West Virginia, on November
18, and December 17 and 18.

1 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
2 All dates are in 2002, unless otherwise indicated.
Respondent, a limited liability corporation, with its main of-
fice in Buckhannon, West Virginia, is engaged in commercial
construction as both a general contractor and a subcontractor at
various jobsites in West Virginia and Pennsylvania. It is owned
and operated by Tim Shaw (Shaw), Tim Critchfield, and Chris
Critchfield, all of whom are member-managers, supervisors,
and agents of Respondent. During the year ending June 30, it
purchased and received at its Buckhannon facility goods valued
in excess of $50,000 from points outside of West Virginia and
derived gross revenues in excess of $250,000. I conclude that it
is an employer within the meaning of 2(2), (6), and (7) of the
Act. I also conclude that the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
By mid-June, Respondent’s employees had become particu-
larly unhappy that Respondent, they thought, had been deduct-
ing amounts from their wages for health insurance; yet, when
they filed claims, they were told by their health providers that
they had no coverage. On June 13, employees John Snyder and
Joe Morgan met with Leroy Stanley, the Union’s Director of
Organizing for the State of West Virginia, who gave them un-
ion authorization cards to sign, which they did, and blank cards
to solicit other employees. By June 26, the Union had secured
11 signed cards, a majority, if the General Counsel is correct
that there were 17 employees in the unit. The next day, Stanley
faxed Respondent, as well as sent his letter by mail, and re-
quested recognition. Having received no response, Stanley
called on June 28, and spoke with Chris Critchfield, who ac-
knowledged receipt of the Union’s request, but declined recog-
nition. The Union filed with the Regional Office its petition for
representation that day.
A number of events followed; and I deal with them not
chronologically, because one incident shows Respondent’s
feeling towards the Union and is helpful in resolving some
credibility issues. On July 27, the Union held a meeting or a
get-together on the back porch of employee Randall Burke’s
home, located in the country, off a rural blacktop road that turns
into gravel not far from his home, which in turn is reached by
150 yards of gravel drive. Not long after a number of employ-
ees had gathered there, Shaw arrived in a truck, with his broth-
ers, Tom, who was drinking beer, and Terry, and friends Bill
Clevenger and Chris Chapman, all described as large men.
Shaw approached his employees and asked them why he had
not been asked to be part of their meetings. The employees did
not answer. Burke’s wife told Shaw and the others that there
would be no drinking on her property and asked them to put
away their beer or to leave. Tom ignored her, and she repeated
her demand. Tom became irate, calling the employees “[n]o-
good motherfuckers” and telling them “[F]uck all of you Union
guys” and “Fuck all of you motherfuckers.” Shaw and his four
cohorts left. Stanley, having been advised that Shaw was
known to carry a gun, called the state police to file a complaint.
State Trooper John Smith came to Burke’s house and was
taking a report, when someone said that he had just seen the
same truck that Shaw had arrived in. Smith immediately got
into his squad card and pursued the truck, stopping it about a
mile from Burke’s house. Smith first interrogated designated
driver Clevenger, who explained that he had driven to Burke’s
house to “sit in the Union meeting . . . . They just asked me to

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 410
drive up that way, so I drove.” Smith next talked to Shaw, ask-
ing him the reason that the men had returned to the area near
Burke’s house. Shaw told Smith, “I’ll tell you what’s going on.
Them motherfuckers are a bunch of god-damn Union organiz-
ers and they’re fucking with my company . . . . To be truthful
with you, these guys, these guys are trying to fuck me. Just to
be honest with you, just blatant, the way it is, these guys are
trying to screw me over.” He added:

And they want me to sign, go Union. Okay. But they won’t
come right out and ask me to come to their fucking meeting.
This is a fucking union organizing meeting. But the god damn
Union, pardon my French, these guys want me to join their
Union, but they won’t invite me to their fucking meeting. Pe-
riod.

He explained the reason that he had gone to the union meeting:
“I decided, I decided on my own this evening, that I’d come
down, that they were having a meeting and I invited myself to
their meeting.” After he left the meeting, the truck was parked
at an intersection a mile from Burke’s home. He explained why
the truck had come back near Burke’s house: “I wanna know
who those people are that are trying to screw me. That’s the
only reason I was sitting down at the corner of the road.”
Little is needed to discuss the legal implications of Shaw’s
obscenities. They show, without more, for the purpose of the
various 8(a)(3) allegations, animus. By themselves, they prove
the complaint’s allegations that Respondent’s owner intention-
ally and boisterously interrupted the union meeting and intimi-
dated the employees by this show of force of five large men.
Shaw’s intention was to find out what was happening and who
was involved. That is illegal surveillance. One final point:
Shaw testified that he attended the meeting because Snyder
invited him there, testimony credibly denied by Snyder. More
importantly, Shaw told Trooper Smith that he had invited him-
self to the union meeting, which is wholly at odds with what he
testified to several times under oath. In addition, Shaw charac-
terized his uninvited appearance at the Union gathering as cor-
dial, despite the testimony that Tom told everyone that he
would leave as soon as the Union Organizer John Znoy moved
his “green piece of shit,” referring to Znoy’s vehicle, and his
obscene references to the Union. I find nothing about Shaw’s
appearance, with his four henchmen, “cordial.” His inane testi-
mony that he was in the truck “just running around together”
and that he was following the state trooper requires no more
than mention. I find his recollections purposefully at odds with
what actually happened and refuse to credit him, except when
his testimony was adverse to the interests of Respondent or
corroborated by a credible witness or so indisputably probable
that it was most likely truthful.
To the extent that it was Tom, not Shaw, that did most of the
yelling and cursing, his conduct was nonetheless attributable to
Respondent because Shaw was the one who wanted to go to the
meeting and directed Clevenger to drive him there, with all the
others, who acted as Shaw’s agents at the meeting. Indeed,
Shaw remained silent, listening to Tom’s diatribe, and implic-
itly approving of it. In addition, Tom was not unknown to the
employees as the owner of another construction company,
TKS, often working with Respondent as its contractor or sub-
contractor and regularly on Respondent’s jobsites. In fact, some
of Respondent’s employees had been employed by Tom in the
past, and Tom was, in their eyes, speaking for Shaw both as his
brother and his business associate. Finally, Shaw himself ex-
plained to the state trooper: “I didn’t feel that the unions were
good for our company, that I felt betrayed by my employees,
that I didn’t appreciate them wanting the union.”
Now, I go back a month, to the end of June, about the time of
the filing of the representation petition. At the same time, so the
complaint alleges, Respondent, in anticipation of a Board-
conducted election, transferred Laura Chewning from its office,
where, as a project manager/estimator, she was clearly a super-
visor and manager, and placed her out in the field as a laborer,
all in an attempt to “stack” the bargaining unit. As an estimator,
she priced jobs for bids; as a project manager, she wrote sub-
contracts, made purchases, attended jobsite meetings, and
worked with the architect. She also prepared Respondent’s
financial statements. Although she testified that she did not
supervise the employees on those jobs and that either Shaw or
the job superintendents did, there was sufficient evidence that
she did.
In 2001, Respondent lost $61,873. By the end of May 2002,
Respondent lost an additional $81,509. In an effort to cut its
expenses, in April or May, Respondent laid off a woman who
had been doing the bookkeeping and accounting and answering
the telephone. In March or April, Respondent also reduced
Chewning’s workweek from 5 to 4 days a week. She and Shaw
were discussing the upcoming Hastings job, where Respondent
was to build an industrial compressor for Dominion Gas Com-
pany; and he was telling her how much work he anticipated for
rebar or concrete reinforcement. Having performed a great deal
of rebar at former jobs, she made some suggestions about ways
to do the rebar better, telling him that she could read the steel
drawings, could tie steel, and could be more of a help to Re-
spondent on the job rather than in the office, where, even with
her workweek reduced to 4 days, she had insufficient work to
keep her fully occupied. Shaw promised to think about it and
ultimately assigned her to that job, on which she started on July
9. Later, she worked on the Mount Storm power plant, and
another job for Dominion Gas, before finally being laid off
several weeks before she testified at the hearing. All of her
work was as a unit worker, except for approximately 15–18
days of sporadic office work—mostly bidding jobs, preparing
one financial statement at the end of September, and preparing
some time and material billings on jobs that she had done be-
fore she went in the field—sometimes 2 or 3 days in a week,
sometimes none at all, for which she was paid at an hourly sum
of $16 an hour, somewhat more than her normal $13 (or, very
infrequently, $12) an hour rate for field work.
The Board has approved findings that employers engage in
unlawful 8(a)(1) conduct when they add employees to the bar-
gaining unit in an effort to avoid unionization. Sonoma Mission
Inn & Spa, 322 NLRB 898, 900 (1997). Here, however, al-
though there is some circumstantial evidence that Respondent’s
motivation was unlawful—indeed, she started on the Hastings
job shortly after the Union made its recognition demand—the
evidence is very slight. The Hastings job began about the same
time as the Union made its demand, and new employees were

HIGH POINT CONSTRUCTION GROUP, LLC 411
hired for that job at the same time as Chewning was transferred.
So, the timing of her transfer was merely coincidental. In addi-
tion, it appears that Chewning herself made the suggestion for
her transfer, not because of the incipient union organization, but
because she was employed for only 4 days a week, Respondent
was losing money, she did not have enough work to do, and she
was attempting to preserve her own livelihood.
I find no shifting defense, as the General Counsel contends.
Respondent was trying to save money. There were less jobs to
bid on. Respondent had already terminated the employment of
the bookkeeper and had reduced Chewning’s workweek, sev-
eral months before the union campaign began. Chris Critchfield
was assuming more bookkeeping functions in the office.
Chewning became somewhat expendable (not wholly, because
she came back to the office from time to time); and her request
helped Respondent to achieve a saving of money by eliminating
a permanent job in the office and employing her in the field, as
it would have had to do, at least in hiring someone to do the
rebar work, in any event. Even that, however, did not ultimately
save Chewning’s job; and she too was eventually laid off in the
winter, a layoff she had never suffered when she was employed
solely in the office.
The General Counsel questions Respondent’s method of sav-
ing money, suggesting that it could have been done in other
ways and that Respondent paid Chewning too much for her
work as a laborer. But Respondent’s choice is not for the Board
to judge, as long as there is a legitimate, not unlawful, reason
for its action; and the amount that Respondent paid Chewning,
even though it exceeded that paid to some newly employed
laborers by as much as $3 an hour, was not shown to be a pay-
back for her vote, as opposed to the amount that it deemed nec-
essary to recompense an employee who would perform the dual
functions of production and office and bidding work, as neces-
sary. The only possible showing of an unlawful motive was
Snyder’s testimony, not denied by Chewning, that “one day she
told me that she would be glad when it was over, so she could
go back to the office.” However, there is no showing of what
“it” referred to, when she made the statement, and what was the
context of her remark. She might have been talking about Re-
spondent’s lack of work. Thus, there is no proof that Respon-
dent’s motive was solely to stack the unit. By using Chewning
in the field, Respondent employed a laborer who was skilled in
rebar, exactly what it needed, preserving her for some days in
the office to perform exactly what Respondent needed there,
but never hiring in the office another employee to replace her. I
dismiss this allegation.
Several of the alleged unfair labor practices concern conduct
involving Randall Burke and Bob Riley, both having the title
“jobsite foremen” and both, Respondent contends, are supervi-
sors. Both denied that they had or were given or exercised any
supervisory authority. Most of their time was spent working
with their tools (Burke, 80–90 percent of his time; Riley, 80
percent), the remainder recording information on daily work
sheets for Respondent’s payroll and billing purposes, and at-
tending jobsite meetings with Respondent’s project managers.
On Respondent’s larger jobs, Shaw spent the first month or two
on the jobsite, putting the operations in place, before assigning
a jobsite foreman to that project. After that, Shaw moved to
other projects and jobsites, visiting again from time to time and
maintaining contact with the jobsite foreman by telephone, but
primarily leaving them to carry out the directives of the project
manager and architects and to follow the blueprints for the job.
Burke and Riley were paid $18 per hour, $2 more than anyone
else on Respondent’s payroll. On the other hand, both were
skilled craftsman; and the mere difference of hourly rate does
not necessarily reflect supervisory status.
Regarding traditional supervisory functions, Respondent
contends that they both had the right to hire and fire employees
and exercised that authority. However, while Shaw claimed that
Burke hired and fired Ryan Hamner, without Shaw’s authoriza-
tion, Burke contacted Shaw, who told Burke to hire the man on
Respondent’s behalf, if he was needed on the job. Four or 5
days later, Shaw sent Nathan Davis to the jobsite and told
Burke to lay off Hamner. Nor is there any showing that Re-
spondent invested Burke with authority to discipline employ-
ees. He was merely a working foreman. In so holding, I do not
agree with Respondent’s contention that his control of the work
flow of the four or five employees who worked with him, per-
mitting them to leave early and requiring them to work late,
made him a supervisor. Regarding the laying off of work early,
on some occasions he sought permission; on other occasions,
he did not, but he had been permitted by Shaw to do so on very
hot days, providing that the employees still worked their 40
hours during the week. Regarding staying late, that was more
the result of the work that the employees, including Burke,
were performing. If they were pouring concrete, the work on
the forms had to continue to completion; otherwise, the job then
uncompleted would be lost. In neither event did Burke have to
exercise the independent judgment to invest him with supervi-
sory status.
In any event, allowing for early release is not among the
statutory criteria for establishing supervisory status under Sec-
tion 2(11) of the Act. This secondary indicia of supervisory
authority is insufficient, by itself, to establish Burke as a statu-
tory supervisor. Ken-Crest Services, 335 NLRB 777, 778
(2001). That he divided the tasks among the jobsite employees,
based on the blueprints, does not alter this conclusion. Brown &
Root, Inc., 314 NLRB 19, 21 (1994). Burke, as a jobsite fore-
man, was not authorized to perform work beyond what the
blueprints provided. The exercise of authority on the part of
more skilled and experienced employees (such as typical lead-
men in crafts) to assign and direct other employees in order to
assure the technical quality of the job does not in itself confer
supervisory status. Id. at 22 fn. 8. His attendance at meetings
with Respondent’s project manager and the architects on the
job are wholly unrelated to any supervisory authority; rather,
his attendance was required to understand Respondent’s direc-
tions of the manner it wanted the project to proceed. I conclude
that Burke, like Gregory Moody, another jobsite foreman,
whom Respondent stipulated was an “employee” within the
meaning of the Act, was a working foreman and an employee
under the Act.
Although Riley held the same position as Burke, he exer-
cised more supervisory authority and referred to himself as a
“superintendent.” On one occasion, John Snyder and Tom
Critchfield stopped by Shaw’s house one evening, after work,

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 412
and asked that he give a job to Kevin Critchfield. Shaw said
that he would discuss the matter with Riley to see what his
needs were. Later, he called Riley and told him that he could
use his best judgment on hiring, if he needed help, and put him
to work. Riley hired him. On another occasion Riley called
Shaw to tell him that he was looking for an employee who was
skilled in drywall work, and Sam Zerkel had stopped by, and he
had interviewed him. Shaw told him to go ahead and hire him.
Riley did so, and Zerkel started the next day. Finally, Shaw
testified that on another occasion Riley told him that he needed
some people and recommended that Shaw hire Snyder. Shaw
knew that Snyder was “a pretty good employee” and “had good
qualifications” and told him to hire him. Shaw never inter-
viewed Zerkel or Snyder. Not only did Riley hire employees,
he also fired one. When Zerkel did not work out as well as
Riley had originally thought, he terminated him, as attested to
by employee Tom Critchfield. In addition, one time, at the site
of work being done at the Yeager Airport in Charleston, West
Virginia, two employees were involved in a fight, and Riley
told Shaw that he had said to Danny Bailey: “If you are going
to be a troublemaker, you are gone.” And Bailey “quit.”
The counsel for the General Counsel contends that Shaw, not
Riley, hired Snyder based on the fact that Shaw had known of
his qualifications and that Bailey had quit and not been fired.
But the fact remains that Riley gave Bailey a strong warning
that fighting would not be tolerated, and Bailey’s quitting, if
not evidencing just the fact of departing and thus being fired,
was obviously forced on him and was a constructive discharge.
In addition, Riley had used his independent judgment in telling
Shaw that he had need for another employee and effectively
recommending that Snyder be hired. He used that same inde-
pendent judgment to recommend that Zerkel be hired, and he
also fired him. Those incidents demonstrate sufficient exercise
of authority and control of the worksite to support a finding that
he was a supervisor. Carlisle Engineered Products, 330 NLRB
1359, 1361 (2000). In addition, because the projects that Riley
worked on involved as many as a dozen employees, it is prob-
able that, to keep control of that many employees, Riley was
invested with significantly more authority than he was willing
to admit.
Because of my conclusion regarding Riley, I dismiss the al-
legations involving Respondent’s interrogation of him, noting,
however, as further evidence of Shaw’s animus, his reference to
the Union as “MF’ers.” But I conclude that Shaw did violate
the Act shortly after the Union filed its representation petition.
Shaw approached Burke, “fishing, . . . wanting to know what
was going on,” according to Burke, and then Shaw angrily
accused Burke of supporting the Union, saying he was not go-
ing to work under “any damn union rules,” and he would shut
Respondent down and file bankruptcy first. The “fishing” part
of the conversation was intended to evoke a response from
Burke, and thus constituted an illegal interrogation, followed by
threats of plant closure and filing of a bankruptcy petition, all in
violation of Section 8(a)(1) of the Act.
On July 17, Shaw approached Snyder and asked him “how
the Union meeting went last night.” Snyder replied that he had
not attended a union meeting that night. Two weeks later, after
the Union filed its unfair labor practice charge, Shaw again
questioned Snyder, this time asking why the men had gone to
the Union, instead of settling their problems some other way.
Snyder explained that he had tried to talk to Shaw about Re-
spondent’s insurance coverage 2 weeks before going to the
Union, and it had not done any good. Shaw said that that was a
weakness of his, that he did not pay any attention to what Sny-
der had to say to him. I find that these two interrogations were
unlawful. They were coercive because, among other factors,
they occurred at a time when Respondent was committing nu-
merous other unfair labor practices, and the interrogation was
being conducted by Respondent’s highest ranking official.
Medicare Assoc., Inc., 330 NLRB 935, 939–940 (2000); Ross-
more House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel &
Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th
Cir. 1985).
The representation case hearing was held on July 16, and the
parties signed a Stipulated Election Agreement. Then, Union
Representative Stanley spoke with Respondent’s owners, and
its counsel, in an attempt to persuade them to agree to recog-
nize the Union. To convince them, he gave them the Union’s
two primary contracts: the master agreement and the residen-
tial/light commercial agreement (residential agreement). To
promote the Union’s position, he said that he could help Re-
spondent get work and represented that the residential agree-
ment contained a “very attractive rate for jobs under a million
dollars.” Stanley also made it clear that, in order to get the
benefit of the rates in the residential agreement, as the front
page of that agreement made clear, Respondent had to sign the
master agreement, as to which he made no representation about
the favorable rates and which in fact contained rates considera-
bly higher than the “attractive” rates of the residential agree-
ment.
On the day after the representation hearing, Tim Critchfield
went to the Merle Norman jobsite, apparently a beauty spa, and
showed the employees the wage rate page of the residential
agreement, stating that the employees would take a $2 cut in
pay if Respondent signed that agreement, which required wages
less than what the employees were actually making. Shaw
made the same threat to the carpenters and laborers at the Hast-
ings jobsite: if the Union came in, the employees would be
working under the residential agreement contract and making
the wages set forth in that agreement, about $2 less per hour
than the wages the employees were currently making.
The complaint alleges that both Shaw and Tim Critchfield
threatened the employees that their wages would be reduced if
they chose the Union as their representative. Regarding the
Merle Norman job, that appeared to require work of less than 1
million dollars, and based on Stanley’s representation, Tim
Critchfield was entitled to make that claim, despite Stanley’s
convoluted explanation, one that I reject, that the Union’s con-
sent would have to be granted before the residential agreement
could be applied. However, the Hastings job was an industrial,
multimillion dollar job, and Shaw had no justification for mak-
ing that claim. He misstated the residential agreement’s appli-
cation to that job and omitted any mention of the master agree-
ment. I conclude, therefore, that he violated Section 8(a)(1) of
the Act by making the threat.

HIGH POINT CONSTRUCTION GROUP, LLC 413
In his talk with the employees at the Merle Norman jobsite,
Tim Critchfield also stated that, because the residential agree-
ment required less pay, Respondent would not know how to bid
for future jobs, the result of which, according to only one of the
General Counsel’s witnesses, Tom Critchfield, but not Riley,
was that “it could mean lack of work.” Tim Critchfield did not
directly deny Tom Critchfield’s testimony. The only reason that
Tim Critchfield would have made this statement was to threaten
a lack of work as a result of Respondent’s lack of knowledge
about how to bid for jobs. That would result in a reduction of
its bids and thus the loss of prospective work. I conclude that
Respondent violated Section 8(a)(1) of the Act.
The complaint alleges that, for the payroll week ending July
18, “Respondent initiated the payment of back fringe benefit
payments to its employees.” The General Counsel concedes
that employees who work on prevailing rate jobs are entitled to
earn an established wage, as well as receive a benefits package,
which is comprised of monies to be used for pension plans and
health insurance coverage. Employers who do not provide
fringe benefits for their employees on prevailing rate jobs are
required to remit the fringe benefit directly to the employees, so
that the employees may secure the coverage for themselves.
Before 1999, when Respondent first started providing health
insurance coverage for its employees on prevailing rate jobs,
Respondent paid its employees the fringe benefits monies by
including the amounts in their weekly paychecks. What the
counsel for the General Counsel is alleging is not that Respon-
dent gave its employees anything more or less than they were
rightfully entitled to, but that Respondent gave them “lump sum
benefits checks, for the first time ever. Something they have
never done before.” And those checks were given to some of
the employees, without explanation, making it appear that the
checks were bribes for their votes against the Union.
Since it started to supply health insurance, Respondent had
purchased insurance from two companies, first, Unicare, and
then a second, Trust Mark Insurance, from which it was at-
tempting to switch because Trust Mark had just increased its
premium from about $600 to $1000 per month per employee.
Respondent apparently found a carrier to start providing bene-
fits beginning in June and then distributed new enrollment
forms for all its employees to complete, but only one did so. As
a result, because there were no employees enrolled in the plan
and the carrier required all the employees to be covered, Re-
spondent could not make its premium payment and paid the
money instead to its employees. Respondent might have made a
stronger case to justify its entire delay in making whole its em-
ployees for the health insurance that it did not buy and might
have better explained its payments to its employees; but the
General Counsel does not suggest, and the record does not
prove, that Respondent never intended to pay its employees
these amounts, as the law required, but for the Union’s repre-
sentation petition. Indeed, following the lump sum payments,
Respondent included the amounts for insurance in its weekly
paychecks to its employees. The General Counsel does not
complain about those later weekly payments.
I fail to see anything that Respondent did unlawfully. The
General Counsel contends that, in the past, it had not paid for
insurance and never reimbursed its employees. Respondent
contended, on the other hand, that its employees were always
properly covered under the plan and that, in certain circum-
stances where employees were laid off and did not pay their
own contributions, there would be a waiting period of approxi-
mately 1 month, until the employee had worked 140 hours,
when Respondent was again responsible for payment of premi-
ums for the following month. Respondent also had no obliga-
tion to cover employees who did not work 140 hours per
month. This record is filled with numerous complaints of the
employees, but no proof that Respondent in fact failed at any
time to make the payments that its insurer required to cover
them. All there is here, at best, is double hearsay and proof that
some employees were not paid the benefits to which they
thought that they were entitled. These are claims that the em-
ployees should have pursued with their insurer.
Assuming, however, that there were proof that Respondent
skipped its premium payments, the General Counsel’s position
would be narrowed to the argument that, because Respondent
did not live up to its obligations before and failed to make its
employees whole for health insurance that it did not provide, it
may not now lawfully reimburse employees because that would
change its illegal past practice. Such an argument collapses
from its own weight. I also find no credible proof that Respon-
dent failed to tell the employees what its lump sum payments
were for. The employees knew exactly what they were being
given. No employee testified that he did not know what he was
being given. Joe Morgan, for example, did not enroll in the
insurance because he and his wife agreed that he would rather
have the money. Then, he received his money. Now, the Gen-
eral Counsel complains that, when he and the other employees
received the money, the money should not have been paid in
this fashion. I find this allegation concocted. I believe that the
employees were well aware of the choice that they had made
not to apply for insurance and to receive, instead, money to buy
their own insurance. In this respect, I believe Tim Critchfield. I
dismiss this allegation.
In early June, Shaw told Snyder that Respondent was getting
the new Hastings job and that he needed to hire more people.
Snyder asked if he would hire his stepson, Joshua Nicholson.
Shaw replied that, as soon as he hired some more experienced
labor, he would put Nicholson to work as a laborer. The Hast-
ings job began in mid-June, but Respondent did not hire
Nicholson; so on July 8, he went to another contractor, MEC, to
seek employment there. He saw Shaw there, who asked Nichol-
son what he was doing there. Nicholson replied that he was
dropping off a resume to seek employment with MEC. Shaw
asked why he was dropping off a resume: Shaw had work.
Nicholson said, “Well, you know I need to go to work as soon
as possible.” Shaw said that that was no problem; he would
have work “within a week or two,” according to Nicholson, or
“a couple, three weeks, a couple weeks,” according to his
mother, and Nicholson should get in contact with him. Shaw
even asked whether Nicholson could pass a drug test, and
Nicholson assured him that he could, and he could do it that
day. Shaw said that that was unnecessary and that he would
contact Nicholson within a week or so. Then, Nicholson, in
order to protect himself, asked, if something happened and
Shaw had no work, whether, because Shaw was a subcontractor

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 414
for MEC, he could put in a good word for Nicholson, as long as
Shaw was there. Shaw said: “No need to, I got work for you.”
Nicholson never heard from Shaw again.
I find it difficult to believe that Shaw was making up this en-
tire story, to the extent of withholding a recommendation from
MEC on the ground that he assured Nicholson of work within a
short period of time. He really thought that he would have
work. On the other hand, nothing was asked of Shaw when he
testified to explain the changed circumstances that prevented
his keeping his promise. Nonetheless, Respondent convincingly
defends on the ground that it never had need for additional
laborers and has not hired any, and that is the sole reason that it
did not hire Nicholson. The counsel for the General Counsel,
on the other hand, contends that Respondent hired two laborers,
Loren Huffman and Dustin Snyder. However, she concedes that
it was only when Shaw visited the Hastings jobsite on July 17,
to tell the employees that they would be getting a wage reduc-
tion if they selected the Union as their representative, described
above, that Snyder indicated to Respondent for the first time
that he had been in contact with the Union by noting that the
residential agreement was not the agreement that the Union had
shown him. It was only then that Respondent knew that Snyder
had been in contact with the Union, even though he had signed
a union authorization card and had been one of the in-house
leaders of the Union’s campaign. And, because the General
Counsel’s allegation of a violation—that Respondent declined
to hire Nicholson, as it had promised—is based on its knowl-
edge of Snyder’s union activities, the violation could have oc-
curred only on or after July 17, when Respondent gained
knowledge of those activities.
I have already found that the transfer of Chewning (she first
worked on the Hastings job on July 9) was lawful. Dustin Sny-
der first worked on July 8. Huffman, the last laborer hired by
Respondent, first worked on July 11, having submitted an ap-
plication the month before. The General Counsel did not prove
that these two were less experienced than Nicholson and that,
therefore, Shaw had broken his earlier promise to hire Nichol-
son only as soon as he had hired some more experienced em-
ployees. It was only on July 8, that Shaw promised to hire
Nicholson within 2 or 3 weeks, that is, toward the end of July.
By that time, both Huffman and Dustin Snyder had been work-
ing for several weeks; and, true to Respondent’s position, there
is no proof that it from that point on hired anyone else. Thus,
even if Respondent considered the fact that Nicholson was
Snyder’s stepson, and Snyder was a union advocate, or even an
in-house leader, and that was the reason that it would not have
hired him had the opportunity arisen, Respondent has demon-
strated that it did not hire another laborer, the position for
which Nicholson appears qualified. In fact, laborer Kevin
Critchfield quit on about July 19; and, when Snyder asked
Shaw to replace him with Nicholson, Shaw said that he no
longer needed to hire anyone. And he did not.
The General Counsel’s concluding argument is that Respon-
dent’s employees, particularly those on the Hastings job,
worked overtime. Instead of their working overtime, Respon-
dent should have hired Nicholson. However, there was over-
time worked on that job even before the end of the 2 or 3 weeks
when Shaw promised to put Nicholson on the payroll; and so
the overtime was not incurred in order to prevent Nicholson
from having work to do. Furthermore, the Act does not force
Respondent to hire additional employees, rather than requiring
the employees on its payroll to work overtime, particularly
when the record does not suggest even the slightest unlawful
motive. I thus find not even a prima facie case of a Section
8(a)(3) violation and dismiss this allegation. Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982); approved in NLRB v. Transporta-
tion Management Corp., 462 U.S. 393 (1983). Even assuming
that there had been a prima facie case, Respondent has demon-
strated that it had no need to hire any additional employees; and
it did not. Wright Line; Naomi Knitting Plant, 328 NLRB 1279,
1281 (1999); Manno Electric, 321 NLRB 278, 280 fn. 12
(1996).
The final allegation concerns the termination of Jasper Riley,
the son of Respondent’s employee, Bob Riley. A full-time la-
borer of Respondent from 1998, he broke into his father’s ga-
rage and stole some tools in April 2001. He was charged with
two misdemeanors, destruction of property, and petty larceny,
spent 2 weeks in jail, and then was placed on probation, with a
suspended sentence. He spent some time in a rehabilitation
center for drug addiction and then returned to employment with
Respondent, where he worked until he injured his collarbone in
an accident. After his recovery from that accident, he returned
to Respondent’s employ, but violated his parole and was sent to
a halfway house for rehabilitation. His stay there was cut short
when he breached the rules of the halfway house, resulting in
an order, dated February 27, revoking his probation and his
serving the remainder of his sentence in jail, from which he was
released on July 24.3
The day after, according to Jasper, he went to Respondent’s
office and asked Chris Critchfield to return to work. Chris said
that he had to talk to Shaw. But his brother, Tim Critchfield,
who was at first on the telephone, said that he could take care
of this problem, so he would not have to disturb Shaw in the
field. According to Jasper, he announced that he was out of jail
and ready to return to work, but Tim said, “No, not at this
time.” When Jasper asked him why, he said there were a lot of
things going on with Respondent “at this present time” and he
would not be able to employ Jasper, who asked whether he was
talking about the union organizing. Tim replied, “Well, yes, but
I am not allowed to talk about that, at this point in time.” Jasper
asked whether, after the representation election, “if everything
went smooth,” maybe he could be employed after that; and Tim
said that that was a possibility, and he would have to see after
the vote. (The representation election had been set for August
6, but was blocked by the Union’s filing of the instant unfair
labor practice charges.) Respondent never hired him.
While in jail, Jasper signed a union authorization card. More
importantly, he was the son of Bob Riley, to whom Shaw had
promised in June two or three times, testified Bob, that Jasper
had his old job when he got out of jail. Bob, however, became

3 The counsel for the General Counsel moves to amend the official
Tr. at p. 209 L.4, to reflect the date “July 24,” rather than “July 4.” The
amendment is granted. Jasper previously answered that he was released
on July 24.

HIGH POINT CONSTRUCTION GROUP, LLC 415
troublesome to Respondent when the union campaign began.
Within days of the Union’s demand for recognition, Shaw and
Tim Critchfield asked him if he had been in contact with the
Union. When he denied that he had, Shaw told him that he was
“was a lying motherfucker.” Tim Critchfield told Shaw not to
say that. Shaw left, and Critchfield again asked if he had had
contact with the Union, which Riley again denied. The point
being, according to the General Counsel, both obviously sus-
pected Riley as a union organizer, and that supplies the unlaw-
ful motivation for the discharge and the refusal to rehire his
son, Jasper. (Had Bob not been a supervisor, I would have these
questions to be unlawful interrogations.)
The difficulty with the General Counsel’s case, and Respon-
dent’s defense, too, is that no one has told the truth. Neither
Bob nor Jasper Riley testified truthfully to the full nature of
Jasper’s legal problems, taking the position that what caused
Jasper initial trouble was the mere destruction of property and
the further violation of parole because he returned to the half-
way house 10 minutes late and was thus incarcerated for an
additional 5 months. Poignantly omitted from their narration
was Jasper’s kicking in of his father’s garage door and stealing
of a chain saw from his father, so that the initial charge that his
father levied against him was not only destruction of his prop-
erty but also the petit larceny of his saw. What caused Jasper
trouble at the halfway house was not a 10-minute lateness but
his failure to remain free from the use of drugs. I find that the
testimony of Bob Riley and his son cannot be relied on. They
were both interested in protecting Jasper in order to get his job
back, concealing in their testimony Jasper’s past drug use.
This finding does not fully dispose of this allegation, because
neither the testimony of Shaw nor Tim Critchfield was consis-
tent. Each claimed that one or the other of them, they could not
definitively state who, terminated Jasper’s employment at a
much earlier date. Their testimony was not mutually corrobora-
tive. If Jasper is to be believed, when he asked for his job back
in July, Tim never told him that he had been terminated earlier.
And Tim did not directly deny Jasper’s allegation that on July
25, Tim suggested that the failure to rehire him was due to the
upcoming election. Furthermore, Respondent never sent him a
termination notice. Finally, their testimony is at odds with Re-
spondent’s position statement given to the Regional Office
during the investigation of the underlying charge. That stated
that Respondent terminated Jasper in June, while Shaw testified
April or June, and Critchfield testified February or March, and
the personnel file reflects December 10, 2001.
Nonetheless, I distrust Bob Riley’s false attempt to help his
son so much and Jasper’s attempt to disclose his criminal viola-
tions that I am inclined to refuse to credit their testimony about
their conversations with Shaw and Tim Critchfield concerning
Jasper’s return to work; and I accept as truthful, at least reflect-
ing the understanding and motivation of Tim Critchfield, his
testimony, including his statement, not denied by Bob Riley,
that Bob had specifically told Tim about Jasper’s drug prob-
lems, as follows:

He was arrested for stealing tools from his father, and
we did hire him back after that. And he was in an ATV [all
terrain vehicle] accident. [A]lso at that time went into, as I
understand, a drug rehab center. We hired him back again,
I think he worked another three weeks, and he was sent
back to rehab center
. . .
[H]is father talked to me on numerous times about the
drug problems [Jasper] had been having, ever since he
married a woman, and started hanging out at the local strip
club. And he said, he got into problems at that time, and
continued to have drug problems.
He said they put him back into the drug treatment cen-
ter, and then, I’m not sure when he came to me the last
time, and said that he had been accused of stealing, and
tested positive for drug use in the rehab center, and he was
going back to jail.
At that time I told him I didn’t want him back; that I
couldn’t give him any more chances.
. . .
I told his father, in, it was probably February or early
March, whenever he went back to jail, his father came to
me, and told me that he was—wouldn’t be back for a long
time because, his words, he said he was caught doing
drugs in the rehab center, and stealing, and that he would
be going back to jail. So I told him that I didn’t want him
back at that time.

When Bob Riley asked Shaw to reconsider his decision
about Jasper in July, Shaw reaffirmed then the decision that
Tim Critchfield had made previously, thus explaining part of
the discrepancy in Respondent’s overall story. Nicholson’s
testimony demonstrates that Respondent was concerned about
the use of drugs by its employees. Although it is true, as the
General Counsel contends, that Respondent continued to em-
ploy several other persons who had criminal problems, those
related to the use of alcohol, one involving a driving violation.
While I do not minimize the conduct, there is clearly no rela-
tion to the type and nature and extent of Jasper’s conduct,
which kept him away from work for such a long period.
It may well be that the General Counsel has presented a
prima facie case of discrimination under Wright Line, solely
because of Jasper’s relationship to his father; but Respondent
has proved that it would have taken the same action, even in the
absence of Jasper’s perceived union activities. Wright Line;
Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999); Manno
Electric, 321 NLRB 278, 280 fn. 12 (1996). Clearly, Respon-
dent has hired no one after Jasper was released from jail. I also
reject once again the General Counsel’s contention about the
amount of overtime warranting the hiring of another laborer.
Even assuming the validity of that argument, there was not
enough overtime to warrant the hiring of both Nicholson and
Jasper. Finally, the General Counsel contends that Respondent
should give Jasper some preferential treatment in recalling
employees from layoff, thus replacing other employees to make
room for Jasper. The General Counsel has not proved that Re-
spondent followed any such practice in the past. I dismiss this
allegation.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 416
The Gissel Request
In Douglas Foods Corp., 330 NLRB 821, 821-822 (2000),
enfd. in part, remanded in part 251 F.3d 1056 (D.C. Cir 2001),
the Board wrote:

In Gissel, the Supreme Court “identified two types of em-
ployer misconduct that may warrant the imposition of a bar-
gaining order: ‘outrageous and pervasive unfair labor prac-
tices’(‘category I’) and ‘less extraordinary cases marked by
less pervasive practices which nonetheless still have the ten-
dency to undermine majority strength and impede the election
processes’ (‘category II’).”4 The Supreme Court stated that in
fashioning a remedy in the exercise of its discretion in cate-
gory II cases, the Board can properly take into consideration
the extensiveness of an employer’s unfair labor practices in
terms of their past effect on election conditions and the likeli-
hood of their recurrence in the future. If the Board finds that
the possibility of erasing the effects of past practices and of
ensuring a fair election (or a fair rerun) by the use of tradi-
tional remedies, though present, is slight and that employee
sentiment once expressed through cards would, on balance, be
better protected by a bargaining order, then such an order
should issue.5
______________________________
4 Charlotte Amphitheater Corp. v. NLRB, 82 F.3d 1074, 1078
(D.C. Cir. 1996) (quoting Gissel, 395 U.S. at 613–64).
5 395 U.S. at 614–615.

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

All full-time and regular part-time construction employees
employed by High Point Construction Group, LLC at its
Buckhannon, West Virginia, facility; excluding office clerical
employees and guards, professional employees and supervi-
sors as defined in the Act.

The employee sentiment was demonstrated in the General
Counsel’s proffer of properly authenticated union authorization
cards. I count the cards of the following employees, which were
signed by June 26, the day that the Union filed its petition for a
representation election: Snyder, Tom Critchfield, Morgan,
Burke, Tim Vincent, Kevin Critchfield, Carl George, Thomas
McClain, and Gary Miller. I have not considered the cards of
Bob and Jasper Riley. Because there were only 15 employees in
the unit, excluding the Rileys, the Union, with 9 cards, repre-
sented a majority of Respondent’s employees on June 26,
within 5 days of the date that Respondent committed its first
unfair labor practice.
Respondent’s actions were serious, severe, and swift. Within
days of the Union’s filing its representation petition, Shaw
threatened Burke that, if the Union was elected by the employ-
ees, he would close Respondent and file for bankruptcy. Burke
disseminated this threat to four other employees at a meeting at
his house shortly thereafter. I presume that those employees
disseminated this threat of closure to yet other employees.
Tellepsen Pipeline Services Co., 335 NLRB 1232, 1233 fn. 7
(2001), enforced in principal part 320 F.2d 554 (5th Cir. 2003);
Springs Industries, 332 NLRB 40, 40–41 (2000). This threat
was a “hallmark violation,” highly coercive and having a last-
ing effect on election conditions. Climatrol, Inc., 329 NLRB
946, 948 (1999); Precision Graphics, 256 NLRB 381 (1981),
enfd. 681 F.2d 807 (3d Cir. 1982). The barging into the Union’s
meeting at Burke’s house was indeed serious and undoubtedly
threatening to the employees, whose attendance at union meet-
ings declined thereafter. Tom Critchfield hid, so as not to be
seen; but he was seen even after Shaw left Burke’s house, but
waited down the road to see who was leaving. Burke quit his
job, refusing to be sent on an assignment where he would have
had to work with Shaw’s brother, Terry. In addition, Respon-
dent threatened that the employees would face reductions in
their pay and that there would not be as much work for them to
do because of the intervention of the Union. In sum, Respon-
dent threatened its employees’ wages, jobs, and physical safety.
There was nothing more to threaten.
Respondent made it painfully obvious that it utterly con-
trolled the employees’ destiny by its threat of closure and de-
claring itself bankrupt. The mere posting of a notice is inade-
quate to dispel the notion that the employees’ jobs are at total
risk should they seek to organize. Assuming that their jobs
remain, the next threat is that they will earn less, either because
Respondent will enter into an agreement that will ensure that
they earn less, or that Respondent will not bid on jobs, thus
ensuring less hours of work. That assuredly will not be forgot-
ten. In this case, there is even more: the threat of physical harm,
which had to be the intended result of Shaw’s action in barging
into the Union’s meeting. Tim Shaw’s vile epithets remain,
long after any 60-day posting of the Board’s notice.
The employees have a Section 7 right to organize. They can-
not do so under the threat of the loss of their jobs, the loss of
wages, and the fear of thuggery, instilled by the highest level of
management, Electro-Voice, Inc., 320 NLRB 1094, 1096
(1996). There is no likelihood of a fair election here. From the
decline of attendance at union meetings and Burke’s quitting,
there is ample evidence that the unfair labor practices tended to
dissipate that majority and destroy any chance of the holding of
a fair rerun election. I recommend a Gissel bargaining order.
CONCLUSIONS OF LAW
1. By coercively interrogating its employees about their sup-
port for the Union, threatening its employees with reduced
wages if they choose the Union as their collective-bargaining
representative, telling its employees that there was a good pos-
sibility of a lack of upcoming work because of the Union, tell-
ing its employees that it would shut down and file for bank-
ruptcy if the employees selected the Union as their representa-
tive, and engaging in surveillance and boisterously intimidating
its employees where they were gathered at a union meeting,
Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act.
2. By embarking on its course of illegal conduct as set forth
in paragraph 1 above, and refusing on and after June 28, to
recognize and bargain with the Union as the exclusive collec-
tive-bargaining representative of the employees in the appropri-
ate collective-bargaining unit, Respondent has engaged in un-

HIGH POINT CONSTRUCTION GROUP, LLC 417
fair labor practices affecting commerce within the meaning of
Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act, including bargaining with the Union. Given
the serious nature of the unfair labor practices found and the
likelihood that they will be repeated by Shaw in particular, I
shall recommend broad cease-and-desist language, pursuant to
Hickmott Foods, 242 NLRB 1357 (1979).
[Recommended Order omitted from publication.]