Ironworkers Local 340 (Consumers Energy Co.)

National Labor Relations Board - Board Decisions

Jul 25, 2006

347 N.L.R.B. 578 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 57
578
Local 340, International Association of Bridge, Struc-
tural and Ornamental Ironworkers, AFL–CIO
(Consumers Energy Co.) and Thomas E. Taylor.
Case 7–CB–14096
July 25, 2006
DECISION AND ORDER
BY MEMBERS SCHAUMBER, KIRSANOW, AND WALSH
On August 19, 2005, Administrative Law Judge John
T. Clark issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings,1 findings,2 and conclusions
except as specified below and to adopt the recommended
Order as modified and set forth in full below.3
We adopt the judge’s findings that the Respondent vio-
lated Section 8(b)(2) of the Act by (1) attempting to
cause Consumers Energy to prevent its subcontractors
from employing Charging Party Thomas Taylor, and (2)
attempting to cause employers to discriminate against
Taylor by requesting that employers provide the Respon-
dent with letters precluding Taylor’s employment.4 We

1 We reverse, however, the judge’s evidentiary ruling rejecting ad-
mission of personal protection orders (PPO) that certain union officials
had obtained against Charging Party Thomas Taylor. See fn. 8.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In addition, the Respondent asserts that some of the judge’s rulings,
findings, and conclusions demonstrate bias and prejudice. On careful
examination of the judge’s decision and the entire record, we are satis-
fied that the Respondent’s contentions are without merit.
3 We have modified the language in the Order to more closely reflect
the violations found and to conform to the Board’s standard remedial
language.
4 Regarding the latter, the judge concluded, in his Conclusion of Law
4(b), that the Respondent violated the Act by “coercing employers . . .
to provide Respondent with signed letters precluding . . . Taylor . . .
from further employment.” While we agree with the Respondent that
the judge did not make a specific factual finding that the Respondent
“coerced” employers into “signing letters precluding” Taylor from
further employment, we agree with the judge that the Respondent vio-
lated Sec. 8(b)(2) by attempting to interfere with Taylor’s future em-
ployment opportunities. Thus, in agreement with the judge, we con-
clude that the Respondent, by soliciting letters, especially from em-
ployers who had not voiced any complaints against Taylor, attempted
to plant the seed that Taylor was a troublemaker and that they should
avoid hiring him, and as such, its solicitation constituted an 8(b)(2)
“attempt to cause an employer to discriminate against an employee” for
prohibited reasons. We have amended Conclusion of Law 4(b) accord-
ingly.
also adopt the judge’s finding that the Respondent vio-
lated Section 8(b)(1)(A) by threatening Taylor with
retaliation for filing charges with the Board. For the
reasons stated below, however, we reverse the judge’s
finding that the Respondent violated Section
8(b)(1)(A) by failing to refer Taylor to a job with con-
tractor Steelcon.5
Taylor, a member of the Respondent’s executive
board, is a long-time and vocal union dissident. In
December 2003 and January 2004, Taylor requested to
be placed on the Respondent’s out-of-work list. The
Respondent has no written rules or procedures regard-
ing the operation of its hiring hall. Because the hiring
hall is nonexclusive, contractors may hire members
directly, and they may refuse to hire members who
have been referred from the hall. Employers call
Business Agent Thomas Scheuneman for referrals
when they need workers.
On or about January 22, 2004, Steelcon asked
Scheuneman to refer two hook-on employees for a job
at Metro Hospital. Scheuneman referred Jim Mans-
field as steward for the job and to work as one of the
hook-on employees. At Mansfield’s request,
Scheuneman referred Darrell Kidder as the other hook-
on employee. Hook-on work requires two people to
work as a team, lifting iron beams into the air with a
crane and making sure the beams are level. Upon
learning that Kidder had been referred to the job, Tay-
lor called Scheuneman and asked about his own loca-
tion on the out-of-work list. Scheuneman said he was
at about the same place as the previous day. Taylor
asked why Kidder, who had just been laid off, was sent
out before him. Scheuneman replied that Mansfield
had been appointed the steward on the job and had
asked for Kidder as his partner. Taylor argued that it
was not the practice for the steward to select who
would work on the job and that the out-of-work list
should be used. Scheuneman said that he would call
Taylor when they needed men. A few weeks later,
Steelcon called Scheuneman to request welders for the
Metro Hospital job and asked for Taylor to be referred.
Scheuneman raised no objection to Taylor’s referral as
a welder and, in fact, referred him.

We do not, however, adopt the judge’s finding, stated in the
analysis portion of his decision, that these actions also violated Sec.
8(b)(1)(A). The complaint did not allege that the conduct violated
Sec. 8(b)(1)(A), and the judge did not include such a finding in his
conclusions of law. It is well established that other 8(b) violations do
not give rise to derivative violations of Sec. 8(b)(1)(A). National
Maritime Union (Texas Co.), 78 NLRB 971 (1948), enfd. 175 F.2d
686 (2d Cir. 1949), cert. denied 338 U.S. 954 (1950). Accordingly,
we do not find 8(b)(1)(A) violations here.
5 We have amended Conclusion of Law 3 accordingly.
IRONWORKERS LOCAL 340 (CONSUMERS ENERGY CO.) 579
In determining whether the Respondent’s failure to re-
fer Taylor as a hook-on employee was unlawful, we ap-
ply the analytical framework set forth in Wright Line.6
Teamsters Local 657 (Texia Productions), 342 NLRB
637, 637 fn. 1 (2004). To establish a prima facie case
under Wright Line, the General Counsel must establish
that Taylor’s protected concerted activity was a substan-
tial or motivating factor in the Respondent’s adverse em-
ployment actions. Id. If the General Counsel makes the
required initial showing, the burden then shifts to the
Respondent to prove, as an affirmative defense, that it
would have taken the same action even in the absence of
Taylor’s protected activity. Id.
We assume arguendo that the General Counsel met his
initial burden here. We nevertheless find that the Re-
spondent met its rebuttal burden of establishing that it
would not have referred Taylor to work with Mansfield
as a hook-on employee even in the absence of his pro-
tected activities.
There is no claim that the Respondent acted unlawfully
in referring Mansfield as steward and one of the hook-on
employees. The issue, then, is whether Scheuneman’s
selection of Kidder instead of Taylor was unlawful. The
Respondent argues that Scheuneman selected Kidder
because Mansfield requested him, and that longstanding
animosity between Taylor and Mansfield made Taylor
unsuitable for work as Mansfield’s hook-on partner.7
The preponderance of the evidence supports the Respon-
dent’s contention.
First, the Respondent established that the members of a
hook-on team must work together closely and coopera-
tively in order to safely lift into place heavy iron beams.
Referring employees who were unlikely to work success-
fully as a team would be inconsistent with this require-
ment. Second, the Respondent proved that Taylor and
Mansfield would not make a good team due to the an-
tagonism between the two men.
In June 2000, Taylor and Mansfield had a dispute on a
jobsite that escalated into Mansfield threatening to beat
up Taylor and Taylor responding, “I will gut you like a
hog.” Clearly this is evidence of conflict and animosity
between the two men. According to Taylor, the two men
subsequently worked together on jobs without incident.
Thereafter, Mansfield stopped working in the field and
became a full-time employee of the Respondent. Like

6 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
7 It is not clear from the record whether it was common to grant a re-
quest such as Mansfield’s or whether other union members were aware
of that practice. It is, however, unnecessary for us to decide that issue
because we find that the Respondent established that it would not have
referred Taylor regardless of Mansfield’s request for Kidder.
Scheuneman and Bruce Hawley, the Respondent’s
business manager, Mansfield then became a target of
Taylor’s dissatisfaction with the way the Respondent
was managed. In April 2003, the Seventeenth Judicial
Circuit Court for Kent County, Michigan, issued a
personal protection order (PPO) at Mansfield’s request
that, among other things, prohibited Taylor from
threatening to kill or physically injure Mansfield or his
minor children.8 The PPO stated on its face that the
“petition and affidavit clearly establish that petitioner
[Mansfield] is being stalked as defined by MCL
600.2950a, 750.411h & 750.411i.”9
The PPO is compelling evidence that the enmity be-
tween Mansfield and Taylor continued well into 2003.
Although the PPO expired in October 2003, there is no
evidence that the animosity that gave rise to it had
ceased at the time Mansfield was referred to the Metro
Hospital job in January 2004. Indeed, that job was
Mansfield’s first after being laid off by the Respon-
dent.
The longstanding hostility between the two men is
strong support for the Respondent’s claim that it would
not have referred Taylor to be Mansfield’s hook-on
partner even in the absence of his protected activity.
Taylor’s referral to a welding position at the Metro
Hospital job only a few weeks later confirms that it
was his animosity towards Mansfield, not his protected
activity, that prevented his referral to the Steelcon
hook-on job. For these reasons, we find that the Re-
spondent met its rebuttal burden under Wright Line of
establishing that it would have taken the same action
even in the absence of Taylor’s protected activities.
Accordingly, we shall dismiss this allegation of the
complaint.

8 Scheuneman and Hawley also obtained PPOs against Taylor,
which were amended, on June 6, 2003, to allow Taylor to attend
union meetings.
The General Counsel objected to the PPOs being admitted into
evidence on hearsay grounds, and the judge rejected the documents
without stating a reason. The Respondent excepted to the judge’s
rejection of the PPOs, arguing that the documents are public court
records and as such fall under the public records and reports excep-
tion to the hearsay rule. Fed.R.Evid. 803(8). We find merit in the
Respondent’s exception and admit the PPOs into evidence. We do
not admit into evidence the underlying affidavits or other documents
relating to the PPOs.
9 Michigan Compiled Laws § 750.411h(1)(d) defines stalking as
“a willful course of conduct involving repeated or continuing har-
assment of another individual that would cause a reasonable person
to feel terrorized, frightened, intimidated, threatened, harassed, or
molested and that actually causes the victim to feel terrorized, fright-
ened, intimidated, threatened, harassed, or molested.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD580
AMENDED CONCLUSIONS OF LAW
1. Replace the judge’s Conclusion of Law 3 with the
following:
“3. The Respondent violated Section 8(b)(1)(A) of the
Act when its agent, Thomas Scheuneman, on or about
January 22, 2004, threatened retaliation against the
Charging Party, Thomas Taylor, because of his protected
concerted and dissident activities and charge filing activi-
ties.”
2. Replace the judge’s Conclusion of Law 4(b) with
the following:
“4(b) On or about August 21, 2003, by its agents,
Bruce Hawley and Thomas Scheuneman, attempting to
cause or causing employers that have collective-
bargaining agreements with the Respondent to discrimi-
nate against Thomas Taylor by requesting that the em-
ployers provide the Respondent with signed letters pre-
cluding Taylor from further employment with such em-
ployers because of his protected concerted and dissident
union activities.’
ORDER
The National Labor Relations Board orders that the
Respondent, Local 340, International Association of
Bridge, Structural and Ornamental Ironworkers, AFL–
CIO, Grand Rapids, Michigan, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Threatening retaliation against any member be-
cause of his or her charge-filing activities.
(b) Attempting to cause Consumers Energy Company,
or any other employer, to prevent its subcontractors from
employing any member because of his or her protected
concerted and dissident union activities.
(c) Attempting to cause or causing employers that have
collective-bargaining agreements with the Respondent to
discriminate against any member by requesting that the
employers provide the Respondent with signed letters
precluding the member from further employment with
such employers because of the member’s protected con-
certed and dissident union activities.
(d) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Provide written notification to Consumers Energy
Company, Robinson Cartage, Northern Boiler Mechani-
cal Contractors, Rapids Construction LLC, AZCO Con-
struction, Neux’s Welding, Erickson’s Inc., and Monarch
Welding Services, with a copy furnished to Thomas Tay-
lor, that the Respondent has no objection to the em-
ployment of Thomas Taylor.
(b) Within 14 days from the date of this Order, re-
move from its files any reference to its unlawful action
against Thomas Taylor, including all letters received
from Consumers Energy Company, Robinson Cartage,
Northern Boiler Mechanical Contractors, Rapids Con-
struction LLC, AZCO Construction, Neux’s Welding,
Erickson’s Inc., and Monarch Welding Services, and
ask the above-named employers to remove from their
files any such references, including copies of letters
concerning Thomas Taylor sent to the Respondent at
its request; and within 3 days thereafter notify Thomas
Taylor in writing that this has been done and that the
letters obtained from the contractors will not be used
against him in any way.
(c) Within 14 days after service by the Region, post
at its union office and hiring hall in Grand Rapids,
Michigan, copies of the attached notice marked “Ap-
pendix.”10 Copies of the notice, on forms provided by
the Regional Director for Region 7, after being signed
by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to members
are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not
specifically found.
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.

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
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.”
IRONWORKERS LOCAL 340 (CONSUMERS ENERGY CO.) 581
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten retaliation against you because
of your charge-filing activities.
WE WILL NOT attempt to cause Consumers Energy or
any other employer to prevent its subcontractors from
employing you because of your protected concerted and
dissident union activities.
WE WILL NOT attempt to cause or cause employers that
have collective-bargaining agreements with us to dis-
criminate against you by requesting that the employers
provide us with signed letters precluding you from fur-
ther employment with such employers because of your
protected concerted and dissident union activities.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL provide written notification to Consumers
Energy Company, Robinson Cartage, Northern Boiler
Mechanical Contractors, Rapids Construction LLC,
AZCO Construction, Neux’s Welding, Erickson’s Inc.,
and Monarch Welding Services, with a copy furnished to
Thomas Taylor, that we have no objection to the em-
ployment of Thomas Taylor.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files, and ask the employers to
remove from the employers’ files, any reference to our
unlawful action against Thomas Taylor, including all
letters received from Robinson Cartage, Northern Boiler
Mechanical Contractors, Rapids Construction LLC,
AZCO Construction, Neux’s Welding, and Erickson’s
Inc., and WE WILL, within 3 days thereafter, notify Tho-
mas Taylor in writing that this has been done and that the
letters obtained from the contractors will not be used
against him in any way.
LOCAL 340, INTERNATIONAL ASSOCIATION OF
BRIDGE, STRUCTURAL AND ORNAMENTAL
IRONWORKERS, AFL–CIO
A. Bradley Howell, Esq., for the General Counsel.
Samuel C. McKnight, Esq. (Klimist, McKnight, Sale, McClow
& Canzano, P.C.), of Southfield, Michigan, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
JOHN T. CLARK, Administrative Law Judge. This case was
tried in Grand Rapids, Michigan, on December 9–10, 2004,
and February 15–16, 2005. On February 27, 2004, the Re-
gional Director for Region 7 of the National Labor Relations
Board (the Board) issued a complaint and notice of hearing
based on an unfair labor practice charge filed on January 7,
2004, alleging that Local 340, International Association of
Bridge, Structural and Ornamental Ironworkers, AFL–CIO
(Local 340 or the Respondent) violated Section 8(b)(1)(A)
and (2) of the National Labor Relations Act (the Act).
On the entire record, including my observation of the de-
meanor of the witnesses, as well as my credibility determina-
tions based on the weight of the respective evidence, estab-
lished or admitted facts, inherent probabilities, and reason-
able inferences drawn from the record as a whole and, after
considering the briefs filed by the counsel for the General
Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits, and I find, that Consumers En-
ergy Company has at all material times had an office and
powerplant located at its Campbell Generating Complex in
West Olive, Michigan, where it has been engaged as a utility
providing electric power throughout the State of Michigan.
The Respondent further admits, and I find, that at all material
times Consumers Energy Company has been engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. That conclusion is based on the admitted allegations
that, in conducting its business operations during 2003, Con-
sumers Energy Company received gross revenues in excess
of $500,000. In addition, during that same calendar year it
purchased and received at its Michigan facilities goods and
materials valued in excess of $50,000 directly from suppliers
located outside the State of Michigan. The Respondent also
admits, and I find, that it is a labor organization within the
meaning of Section 2(5) of the Act.1
II. ALLEGED UNFAIR LABOR PRACTICES
Bruce Hawley is the Respondent’s business manager, fi-
nance secretary, and treasurer. In essence he is its chief op-
erating officer and has held that position for almost 12 years.
He has also sat on the Respondent’s executive board, its
governing body, for almost 15 years. Thomas Scheuneman
is a business agent for the Respondent. In that capacity he is
responsible for operating the Respondent’s nonexclusive
hiring hall in Grand Rapids. Because the hiring hall is non-
exclusive, contractors may hire members directly, and they
may refuse to hire members who have been referred from the

1 Par. 9 of the complaint was amended at the start of the hearing
to replace “retain” with “refer” (Tr. 6). The Respondent’s unop-
posed motion to correct the transcript is granted. See R. Br. p. 4, fn.
1; p. 20, fn. 14; and p. 31, fn. 19. The transcript is also corrected to
indicate that the direct examination of Scheuneman was conducted
by Howell (Tr. 206).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD582
hall. The Respondent has no written rules or procedures re-
garding the operation of the hiring hall. Thomas Taylor, the
Charging Party, is a journeyman ironworker and has been a
member of the Respondent for 26 years. Taylor is a member of
the executive board, having been elected by the membership in
July 1999, and again in July 2002.
Taylor’s tenure on the executive board has not been without
conflict. He has long been an outspoken critic of Local 340’s
leadership, specifically, Hawley and Scheuneman. In the sum-
mer of 2000 Taylor voiced a complaint, during a general mem-
bership meeting, protesting the Respondent’s award of “target-
ing funds” to contractors who were laying off dues paying
members, while retaining trainees and preapprentices who,
although union members, did not pay dues. Target fund money
is provided by the dues. In essence the money is a subsidy the
Respondent provides to signatory contractors, under the terms
of the collective-bargaining agreement, to subsidize the wages
of the contractors’ union employees. The subsidy helps the
contractor to compete with nonunion contractors. During an
executive board meeting in the spring of 2002 Taylor again
addressed the topic of target funds. A proposal was made to
give target funds to a union contractor in order to gain favor
with the contractor in upcoming collective-bargaining negotia-
tions. Taylor opposed the proposal and the issue was tabled.
Later in the year Taylor learned that the funds had been ap-
proved, notwithstanding his belief that the executive board had
not voted on the proposal. Although the record indicates that
Taylor was mistaken about not voting on this proposal, Hawley
was aware that Taylor was complaining to other members that
he was not being called to vote on awarding target funds to
union contractors. Scheuneman also acknowledged that he
knew of Taylor’s complaints both directly, and from other
Ironworkers. Taylor also credibly testified that he called Hugh
Coward the Respondent’s business agent in Battle Creek,
Michigan, and a member of the executive board, to complaint
about not being called to vote on the expenditure of the target
funds.
In late December 2002 or early January 2003, Taylor con-
tacted Chris Copoch, the Respondent’s pension fund adminis-
trator, to confirm his understanding that the pension fund had
lost $24 million. The fund is jointly administered by six trus-
tees, three trustees representing the contactors and three repre-
senting Local 340. After confirming the loss with Copoch,
Taylor raised the issue with other union members. In early
2003 he spoke directly with the president of Local 340, Ken
Dumas. Dumas, along with Hawley and Scheuneman, are the
three union trustees. Taylor told Dumas that he knew that the
fund had suffered significant loses and that the money had to be
moved before they lost it all. Dumas replied that “we’re work-
ing on getting them changed,” “we’re doing what we can do.”
Taylor encouraged him to move quickly, before the entire pen-
sion fund was lost.
Hawley and Scheuneman acknowledged that they were
aware of Taylor’s complaints about the losses incurred by the
pension fund—Hawley even heard that Taylor accused him of
stealing money from the pension fund. They also admitted that
they knew that Taylor had not only made complaints to other
Ironworkers but had registered complaints with the Interna-
tional Union. Scheuneman testified that Taylor spoke at
every union meeting and most often he was critical of Haw-
ley, Scheuneman, or both. Taylor also credibly testified,
without refutation, that he and Hawley had a “very heated”
confrontation at an executive board meeting in January 2003,
over the issue of the Respondent appointing the job foreman
to also be the union steward on the same job. Taylor argued
that this practice took a job away from another member.
Taylor told Hawley that “this is your job to straighten this
out” (Tr. 240).
During the same time period there was yet another dis-
agreement between Taylor and Hawley. Taylor was working
for Robinson Cartage, a contactor, on an outside job. The
temperature was about 8 degrees above zero and Taylor
complained to his coworkers, the union steward, and the
management of Robinson Cartage about not having a warm-
ing trailer on the job. Hawley believed that a trailer was
unnecessary because the men could get warm in their vehi-
cles. Taylor spoke out on this issue at a general membership
meeting in February 2003. He emphasized that a warming
trailer was required on that job, that it was necessary under
such frigid conditions, and that the Respondent had given
Robinson Cartage $50,000 of target funds. Although the
members at the meeting, including Hawley, indicated their
approval of Taylor’s comments, Hawley confronted Taylor
at the March executive board meeting about his remarks.
Hawley told Taylor “If you’ve got something to say, you say
it in here. You don’t take it out on the floor” (Tr. 243). Tay-
lor testified that he could tell by the tone of Hawley’s voice
that he was upset. Hawley, at Taylor’s insistence and after
Taylor was laid off, contacted David Scripps, president of
Robinson Cartage and had a warming trailer brought to the
job.
In June 2003, Taylor arranged to be hired in September by
Monarch Construction, for a job at the Consumers Energy J.
H. Campbell Plant in West Olive, Michigan. Linda Reming-
ton, formerly employed as a secretary by the Respondent,
testified that she overheard Hawley talking on the telephone
with Richard Kasper sometime during the first week in Au-
gust. She was certain it was in the beginning of August, “the
week before the festival. So—about the 3rd or 5th of Au-
gust, something like that” (Tr. 20). Because the 3rd was a
Sunday the date most likely is the 5th as alleged in the com-
plaint. Kasper is responsible for managing construction pro-
jects for Consumers Energy at its J. H. Campbell Plant.
Remington’s credible and unrefuted testimony is that Hawley
told Kasper that Taylor would be a problem on the jobsite,
and that Kasper would be sorry because Taylor was a trou-
blemaker.
Business Agent Scheuneman admitted that he asked Bob
Armstrong, a member of the Respondent’s executive board,
and a foreman and steward at Robinson Cartage, to ask Dave
Mitchell, superintendent for Robinson Cartage, to write a
letter about Taylor. Mitchell testified that he was ap-
proached by Armstrong in August 2003. Armstrong said that
he had been told to ask if Mitchell would write a letter stat-
ing that Robinson Cartage did not want Taylor working for
them anymore. Mitchell said, “Absolutely not,” because he
IRONWORKERS LOCAL 340 (CONSUMERS ENERGY CO.) 583
regarded Taylor as an excellent iron-worker. (Tr. 58–59.)
Mitchell’s testimony is undisputed and I find him credible.
Remington, whose desk was between those of Hawley and
Scheuneman, heard Scheuneman tell Hawley that Mitchell
refused to write the letter. Hawley responded “that is bullshit”
and said that he would get Scripps to write it, and he did. (Tr.
23–24.)
It is undisputed that during August 2003 either Hawley or
Scheuneman solicited management officials, in addition to
Mitchell and Scripps of Robinson Cartage, to provide docu-
mentation of any trouble or problems that they had with Taylor
during his employment with their companies. The following
employers, all of whom are signatory contractors under the
terms of the collective-bargaining agreement, were solicited,
Northern Boiler Mechanical Contractors, Rapids Construction
LLC., AZCO Construction, Neux’s Welding, Monarch Weld-
ing Services, and Erickson’s Inc.
In December 2003 and January 2004, Taylor requested to be
placed on the Respondent’s out-of-work list. On January 22
Taylor learned that Ironworker Darrell Kidder, who had only
recently been laid off, was being sent out by the Respondent to
Steelcon, Inc., to work on the Metro Hospital job in Grand
Rapids. Thereafter, Taylor called Scheuneman and asked his
location on the out-of-work list. Scheuneman said he was
about the same place that he was the day before. Taylor asked
why Kidder, who had just been laid off, was sent out before
him. Scheuneman replied that Jim Mansfield, an executive
board member, was appointed the steward on the Metro Hospi-
tal job and wanted Kidder as his “traveling partner.” Taylor
argued that it was not the practice for the steward to select who
would work on the job and that the out-of-work list should be
used. Scheuneman said he would call him. Taylor said he
would go the National Labor Relations Board. Scheuneman
replied “You’re suing the [expletive deleted] Local with all
these frivolous bullshit charges and you’re putting us through
all this bullshit.” “We’re going to sue you and make you pay
all our legal fees.” Scheuneman said in conclusion “Well,
when they need men, you’ll get a call.” (Tr. 253.)
A. Paragraph 10 of the Complaint
Paragraph 10 of the complaint alleges that “[o]n or about
January 22, 2004, Respondent, by its agent Tom Scheuneman,
threatened retaliation against the Charging Party because of his
charge-filing activities against the Respondent.” Paragraph 11
alleges that the Respondent’s conduct, set forth above, has been
restraining and coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act, in violation of Section
8(b)(1)(A) of the Act.
The Respondent only disputes Taylor’s recollection that
Scheuneman said “We’re going to sue you” and contends that
Scheuneman merely stated that “we ought to sue” (Tr. 494).
Were I to find it necessary to make a credibility determination
on this matter I would credit Taylor’s more specific and em-
phatic testimony over Scheuneman’s generalized statement. I
find, however, that the Respondent’s distinction is without
significance. I also find no support in the record for the Re-
spondent’s contention that because Taylor was a member of the
executive board that he knew that Scheuneman did not have the
authority to instigate a lawsuit.
A threat by a union to resort to civil courts as a tactic cal-
culated to restrain employees in the exercise of rights guaran-
teed by Section 7 of the Act has long been held to violate
Section 8(b)(1)(A). Electrical Workers Local 11, 258 NLRB
374, 375 (1981). Accordingly, I find that the Respondent has
violated Section 8(b)(1)(A) of the Act when its agent, Tom
Scheuneman, threatened Taylor that the Respondent was
going to sue him and make Taylor pay all the Respondent’s
legal fees.
Additionally, I find no merit to the Respondent’s conten-
tion that a letter dated July 29, 2004 (R. Exh. 7) from its
attorneys to Taylor stating that the Respondent “has not and
will not retaliate or discriminate against you in any way be-
cause you have filed unfair labor practices charges” has
remedied the violation. See Passavant Memorial Area Hos-
pital, 237 NLRB 138 (1978). Accord: Sam’s Club, 322
NLRB 8, 9 (1996), enfd. 141 F.3d 653 (6th Cir. 1998).
B. Paragraphs 7, 8, and 9 of the Complaint
Each of theses paragraphs allege that the Respondent, by
its agents, took certain actions against Taylor because of his
protected concerted and dissident union activities. Before
addressing the individual allegations some tenets need to be
reviewed.
Section 8(b)(2) of the Act provides that it is an unfair la-
bor practice for labor organizations “to cause or attempt to
cause an employer to discriminate against an employee in
violation of subsection (a)(3)” of the Act—that is, “in regard
to hire or tenure of employment or any term or conditions of
employment to encourage or discourage membership in an
labor organization.” “[D]irect evidence of an express de-
mand by [a labor organization] is not necessary where the
evidence supports a reasonable inference of a union request.”
(Citations omitted.) Avon Roofing & Sheet Metal Co., 312
NLRB 499 (1993). “It is immaterial that no explicit threat or
demand was made,” Carpenters Local 2396 (Tri-State
Ohbayashi), 287 NLRB 760, 763 (1987), because it is firmly
established that the statutory requirement of “cause or at-
tempt to cause” is satisfied by an “efficacious request,” San
Jose Stereotypers (Dow Jones & Co..), 175 NLRB 1066 fn. 3
(1969), or by “an inducing communication . . . in terms cour-
teous or even precatory.” NLRB v. Jarka Corp. of Philadel-
phia, 198 F.2d 618, 621 (3d Cir. 1952).
Although the Respondent does not operate an exclusive
hiring hall, even where a union operates a nonexclusive hir-
ing hall, it violates Section 8(b)(1)(A) of the Act when it
discriminates against members in retaliation for their pro-
tected activities. Whenever the General Counsel’s case rests
on the Respondent’s discriminatory motivation, as it does
here, the Board has held that the analytical framework eluci-
dated in Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
applies. See, e.g., Teamsters Local 657 (Texia Productions,
Inc.) 342 NLRB 637, 637 fn. 1 (2004).
Under Wright Line, the General Counsel must introduce
persuasive evidence that animus toward the protected activity
was a substantial or motivating factor in the Respondent’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD584
action. Once that has been done, the burden of persuasion
shifts to the Respondent to demonstrate that it would have
taken the same action even in the absence of the protected ac-
tivity. Manno Electric, 321 NLRB 278, 280 fn. 12 (1996). To
sustain the initial burden, the General Counsel must show (1)
that the employee was engaged in protected concerted activity;
(2) that the Respondent had knowledge of the activity; and (3)
that the activity was a substantial or motivating reason for the
Respondent’s adverse action. Naomi Knitting Plant, 328
NLRB 1279, 1281 (1999). Direct evidence of unlawful motiva-
tion is seldom available and it may be established by circum-
stantial evidence and the inferences drawn from that evidence.
E.g., Abbey Transportation Service, 284 NLRB 689, 701
(1987); FPC Molding, Inc. v. NLRB, 64 F.3d 935, 942 (4th Cir.
1994); Shattuck Denn Mining Corp., 362 F.2d 466, 470 (9th
Cir. 1966). The Board has long held that a Respondent “cannot
simply present a legitimate reason for its actions but must per-
suade by a preponderance of the evidence that the same action
would have taken place even in the absence of the protected
conduct.” Key Food, 336 NLRB 111, 112 (2001). (Citations
omitted.) “A finding of pretext necessarily means that the rea-
sons advanced by the [Respondent] either did not exist or were
not in fact relied upon, thereby leaving intact the inference of
wrongful motive established by the General Counsel.” Lime-
stone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d
799 (6th Cir. 1982).
1. The General Counsel’s case
The counsel for the General Counsel has established that at
least as early as the summer of 2000, approximately 1 year after
being elected to the executive board, Taylor was at odds with
the leadership of Local 340. Taylor spoke out at general mem-
bership meetings, as well as executive board meeting, concern-
ing what contractors were receiving job targeting funds and the
conditions under which they received the funds. During the
summer of 2000 Scheuneman warned Taylor that he had better
watch what he said at the general membership meetings or he
would be blackballed. Scheuneman denies making the threat. I
find, contrary to Scheuneman’s denial, that Taylor appeared to
be the more credible witness when testifying about this inci-
dent. In addition to Taylor’s demeanor when testifying about
this incident, I find the threat consistent with the threat that
Scheuneman admits making to Taylor, above, and that was
found to be a violation of the Act.
Undaunted, Taylor continued to criticize the leadership of
Local 340, especially Hawley and Scheuneman. He voiced his
complaints to individual members, during general membership
and executive board meetings, and to the International Union.
It is undisputed that Taylor is an outspoken individual who is
not the least bit reluctant to share his opinions and beliefs on
any topic, especially Hawley’s and Scheuneman’s inadequacies
in the administration of Local 340. During the spring of 2002
Taylor continued to complain about the use of the target fund.
On one occasion he opposed disbursing target funds to gain
favor with a contractor with whom the Respondent had upcom-
ing collective-bargaining negotiations. Although the issue was
tabled, it was eventually passed by the executive board. At
times the executive board votes on issues by telephone. Taylor
believed at the time, erroneously it appears from the record,
that he had not been contacted to vote on the measure. He
expressed his belief in a telephone conversation with Hawley
who responded with a vulgarity and hung up on him. Al-
though Hawley testified extensively about the target funds,
his testimony regarding his knowledge of Taylor’s com-
plaints about his handling of the funds was evasive and ob-
fuscatory. He eventually conceded that he knew that Taylor
was complaining about not being asked to vote on disburse-
ments, and that he had stopped calling him, but he never
specifically refuted Taylor’s testimony regarding swearing
and hanging up on him. I credit Taylor, and find that his
testimony regarding the incident provides additional evi-
dence of animus towards him by Hawley, an admitted agent
of the Respondent.
Taylor’s protected activities continued to irk Hawley dur-
ing 2003. In January Taylor addressed the general member-
ship meeting about Robinson Cartage receiving targeting
funds, but refusing to provide a warming trailer on the job.
Shortly thereafter, Hawley ordered Taylor to confine his
comments to the executive board meetings and not make
them at the general membership meetings. Also in January,
Hawley and Taylor had a heated argument over appointing
foremen to also be the job steward. Hawley also knew that
Taylor was complaining to the International Union about the
mismanagement of the Local. Hawley had also been told
that Taylor had conveyed to the International his belief that
Hawley had stolen money from the pension and targeting
funds. Hawley admitted that he was unhappy with the accu-
sations and Scheuneman confirmed that Hawley was upset
by the complaints.
As set forth above, Linda Remington credibly testified that
during the first week of August 2004 she overheard Haw-
ley’s call to Richard Kasper, who is responsible for manag-
ing construction projects for Consumers Energy. Hawley
said that Taylor would be a problem on the jobsite, and that
Kasper would be sorry because Taylor was a troublemaker.
Remington also credibly testified, without contradiction, that
Hawley, upon learning that Mitchell would not provide a
letter denouncing Taylor, said “Bullshit” and that he would
obtain the letter from Scripps, the owner of Robinson Cart-
age. Remington also testified, in response to a question
asked on cross-examination, that there was animosity be-
tween Local 340 officers and Taylor.
Based on the foregoing I find that the General Counsel has
met his initial burden of showing that Taylor’s protected
conduct and other dissident union activity was a motivating
factor in the Respondent’s actions against Taylor. The bur-
den now shifts to the Respondent to show that the same ac-
tion would have taken place even in the absence of Taylor’s
protected activity.
2. The Respondent’s defenses
a. Paragraph 7 of the complaint
This paragraph alleges that on or about August 5, 2003,
Hawley attempted to cause Consumers Energy Company
from allowing the employment of the Charging Party by its
subcontractors because of his protected concerted and dissi-
IRONWORKERS LOCAL 340 (CONSUMERS ENERGY CO.) 585
dent union activities.
In addition to being an agent of the Respondent, Hawley is
the president of the West Michigan Building Trades, an asso-
ciation of 15 unions. Acting in both capacities Hawley at-
tended a meeting with Kasper, in June or July 2003, to discuss
staffing for upcoming work. According to Hawley, Kasper
stated that he wanted to avoid any work stoppages or disrup-
tions. Hawley claims that after the meeting he told Kasper, as
he had previously done, that the only way to work out issues
related to the work force was to have the contractors present
because they hire the workers. Hawley used Taylor as an ex-
ample of a man who “does not get along,” but who was hired
by a subcontractor. Kasper asked Hawley what he was talking
about. Hawley told him of a year–old incident where Taylor
threatened a boilermaker, concerning a jurisdictional dispute
between the trades, regarding which trade would perform a
specific job function. Taylor was working for Alstom Power, a
subcontractor of Consumers Energy, at the time. Hawley
claims that Kasper asked him if he wanted Kasper to do some-
thing about Taylor and Hawley said “no,” he only wanted con-
tractors to attend prejob conferences. (Tr. 535–537.)
When questioned by the Respondent’s attorney, Hawley
stated that it was in October 2003 when he called Kasper and
informed him that Taylor was once again employed by a con-
tractor. He claims that he called because he received several
calls from business agents of other trades complaining that
Monarch Welding had begun to hire workers without having a
prejob conference. His stated purpose was to request that
Kasper insist that Monarch have a prejob conference. Hawley
did admit that, included with a complaint that Monarch was
hiring relatives, he added that Monarch had even hired Taylor,
the same guy that he (Kasper) had previously complained about
being a problem.
Richard Kasper was subpoenaed by the counsel for the Gen-
eral Counsel to testify. Kasper appeared to be a totally credit-
able witness, who was unbiased and disinterested in the out-
come of the proceeding. His lack of total recall of the events
enhanced his credibility. As he testified, the entire incident
amounted to nothing more than receiving a call from Hawley
that caused him to make a simple inquiry. He testified that he
did not recall the exact date of the conversation, but agreed that
it was sometime in the summer of 2003. He remembered Haw-
ley saying that the Ironworkers were having some issues with
Taylor. As a result of the conversation Kasper discovered that
Taylor was employed by Monarch. When Kasper made inquiry
of Monarch he was told that they had no issues with Taylor.
Kasper also testified that at no time did Monarch report any
problems with Taylor. Kasper acknowledged that Hawley, at
some point in time, had communicated a complaint from some
members of the West Michigan Building Trades that some
contractors were not holding prejob conferences. However, he
clearly indicated that Consumers had no intention of becoming
involved in who its subcontractors hired.
When question by counsel for the General Counsel, Hawley
said that his call to Kasper occurred in early August. That re-
sponse is consistent with Remington’s credible testimony that
she heard Hawley call Kasper during the first week in August,
“the week before the festival” (Tr. 20), and Kasper’s recollec-
tion that it occurred sometime in the summer. When being
questioned by Respondent’s counsel Hawley stated, without
clarification, that the call was made in October. I find that
Hawley’s call to Kasper, where he alerted Kasper that Taylor
was a troublemaker and that Kasper would be sorry that Tay-
lor was hired, occurred during the first week of August.
Counsel for the General Counsel also correctly points out
that Hawley stated in his affidavit to a Board agent that he
did not recall speaking with Kasper about Taylor. Hawley
admitted that it was only shortly before the trial began that he
submitted a letter correcting his affidavit, and admitting that
he had talked to Kasper. As set forth above, at the trial he
not only remembered talking to Kasper about Taylor, but in
doing so on two occasions, and exhibited absolutely no hesi-
tancy in telling the details of each conversion. I do not be-
lieve that Hawley could accurately relate two conversations
with Kasper but not, at an even earlier point in time, ever
recall having spoken with Kasper about Taylor.
I find that Hawley is not a totally credible witness. I do
not doubt that he pressed Kasper, on various occasions, to
encourage the subcontractors to hold prejob conferences. As
alluded to by Hawley (Tr. 566), a major benefit of a prejob
conference is that the unions and the subcontractor can either
resolve before hand, or at least minimize, potential jurisdic-
tional disputes among the trade unions. Putting aside for the
moment Taylor’s alleged language, a jurisdictional dispute
was the crux of his disagreement with the boilermaker. Ju-
risdictional disputes are not unusual and Kasper indicated
that he was familiar with disputes over work assignments.
This being so, why then did Hawley feel it necessary to pro-
vide Kasper with an example of why prejob conferences
were needed. Even more to the point, why was it necessary
to identify Taylor by name. Especially in light of the fact
that Kasper had not a clue regarding the incident Hawley was
talking about, a clear indication that Kasper had either for-
gotten the incident or, what is far more likely, never knew
about it in the first place. Even more telling is that Hawley,
an Ironworker, who acknowledges “gray areas” of work
jurisdiction between the trades (Tr. 520), put the entire blame
for the dispute squarely on Taylor. Not once did he suggest
that the boilermaker was in the wrong for trying to do Iron-
workers work. Paul Marvin, an Ironworker who was the
general foreman on the Alstom job, and who was present on
the day of the incident, describes the work in question as
“red iron . . . that can be awarded, to the Pipe Fitters but, as
an Ironworker, you always try to keep red iron as yours (Tr.
159).”
Hawley testified that he told Kasper during the call, that
Monarch had hired Taylor “the same guy that he [Kasper]
had complained about before and had been a problem before
(Tr. 539).” I find no predicate in the record for the assertion
that Kasper had any previous problem with Taylor. Kasper
was never asked about any problem he might have had with
Taylor. Kasper’s credited testimony, both his language and
his demeanor when testifying, left no doubt that Kasper had
never been, and had no intention of being, involved in the
hiring practices of Consumers’ subcontractors, let alone hav-
ing any “problem” with an employee of a contractor. Fur-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD586
thermore, Kasper’s actions after the conversation are inconsis-
tent with that assertion. Had Kasper had a problem with Taylor
he need not ask Monarch anything about Taylor. All that was
required was for Kasper to order Monarch to remove Taylor
from the job, a fact acknowledged by Hawley as a right under
the collective-bargaining agreement.
I fully credit Kasper’s testimony and I find that his recollec-
tion encompassed all that was said during the phone conversa-
tion. Kasper clearly remembered exactly why Hawley called—
to remind him that Taylor, “that troublemaker” was once again
employed by one of Consumers’ subcontractors, along with the
implication that Kasper “would be sorry” if he did not act to
remove Taylor. I further find that Hawley called Kasper during
the first week of August, over a month before Taylor actually
began work for Monarch. Hawley admitted that he learned that
Taylor had gotten a job and that in the “normal course of
things” he does not call a contractor when he learns that an
Ironworker has gotten work on his own. I also find that Haw-
ley used his conversation with Kasper regarding prejob confer-
ences as a ruse to have Kasper connect Taylor’s name and a
year-old incident, with problems. Kasper, by asking Hawley if
he wanted Kasper “to do something” about Taylor, indicated
that he was attuned to Hawley’s message. Hawley’s call to
Kasper was a subtle attempt to have Kasper cause Monarch to
terminate Taylor because of his protected concerted and dissi-
dent activities. Carpenters Local 2396 (Tri-State Ohbayashi),
287 NLRB 760, 763 (1987); San Jose Stereotypers (Dow Jones
& Co.), 175 NLRB 1066 fn. 3 (1969); NLRB v. Jarka Corp. of
Philadelphia, 198 F.2d 618, 621 (3d Cir. 1952).
Accordingly, I find that the Respondent failed to show that
the same action would have taken place even in the absence of
Taylor’s protected activity and I find that the Respondent has
violated Section 8(b)(1)(A) and (2) of the Act, as alleged.
b. Paragraph 8 of the complaint
Paragraph 8 alleges that since on or about August 21, 2003,
the Respondent, by its agents Hawley and Scheuneman, has
coerced employers that have collective-bargaining agreements
with the Respondent, to provide the Respondent with signed
letters precluding the Charging Party from further employment
with such employers because of his protected concerted and
dissident union activities.
On August 13, 2003, Taylor filed an unfair labor practice
charge alleging that the Respondent would not put him to work
and that when he got “his own jobs they [the Respondent] tell
the contractors not to hire me.” The charge names two indi-
viduals and the contractors who employ them, and states that
shortly after Taylor was hired directly by those individuals,
they were approached by Scheuneman who told those individu-
als that Taylor should not have been hired. [R. Exh. 4(a).] In
an attempt to refute the charge Hawley decided “to call em-
ployers, just to prove that it was not us, trying to keep him from
work. It was contractors telling us that they did not want him.”
Hawley admits that obtaining documentation was not an origi-
nal idea, but one he learned at the National Labor College and
at seminars conducted by the International Union and the Na-
tional Building Trades. He states that he was told “when you
have somebody you have a problem with, just make a docu-
ment, put it in a file; get a letter, from the contractor, put it in
the file, make sure you keep things documented.” (Tr. 543–
544.)
Scheuneman’s testimony differs somewhat. He also im-
plies that the solicitation of letters would be limited, but lim-
ited to those contractors who had complained about Taylor,
in Hawley’s version the solicitation should be limited to
those contractors who told the Respondent that they did not
want Taylor sent to the job. Scheuneman also testified that
he and Hawley never discussed calling contractors who had
not complained about Taylor. (Tr. 465, 475.)
Although I agree with Hawley’s instructors, I also believe
that documentary evidence that is prepared spontaneously
and contemporaneously with the incident or event that the
document purports to memorialize, is generally given greater
probative weight than that which is prepared long after the
incident or event occurred, and is solicited. The Respondent
offers only the Erickson letter as a letter that is alleged to
have been prepared spontaneously and contemporaneously
with the incident.
The Erickson letter (GC Exh. 4) was drafted by Steve
Erickson, president of Erickson’s Inc., allegedly in 1997, a
day or two after he laid off employees Taylor and John
Klanderud, for engaging in a fist fight. Scheuneman was the
rigging foreman on the job. Erickson testified on direct ex-
amination that Scheuneman called him and he “believes”
Scheuneman asked him to send Scheuneman a copy of the
letter that Erickson sent in 1996 or 1997. When questioned
on cross-examination, literally only minutes later, Erickson
could only recall that Scheuneman said “something to do
with Tom Taylor.” (Tr. 344, 348.) Scheuneman testified
that he called Erickson and “told him that we had some com-
plaints, from Tom Taylor, that we were denying him [em-
ployment] . . . . [I]f there was any way he could write me a
letter saying that he had problems with Taylor in the past.”
According to Scheuneman, Erickson said that he had already
written a letter to the Local. Scheuneman said that it must
have been before he began working for the Respondent.
Erickson said that he would look through his “files and see if
I can find it and he said, I will just redo it.” (Tr. 467–468.)
It is somewhat ironic, yet of concern, that notwithstanding
Hawley’s expressed belief in documentation, the only letter
which allegedly was sent in close proximity to the incident it
documented cannot be found. Indeed, Scheuneman did not
even make an attempt to locate the letter.
Erickson initially testified that he terminated Taylor and
Klanderud for fighting. The letter states that they “were
promptly fired and removed from the site.” Later he admit-
ted that they were laid off. He claims that was easier for
him. Easier perhaps, but layoff most certainly carries a much
different connotation. Taylor also testified, in contrast to the
letter, that he was not notified of the layoff until the next day.
General Counsel Exhibit 4 is allegedly a purported copy of
the letter Erickson sent in 1997, except for the date. The
“letter” is a single page fax. The Erickson letterhead is in the
upper right-hand corner. “Fax,” in bold letters is in the upper
left, and directly beneath is the typical “fax information” i.e.,
to, from, subject, phone and fax numbers, and the date,
IRONWORKERS LOCAL 340 (CONSUMERS ENERGY CO.) 587
which is August 1, 2003. At the very top of the sheet is the
date the fax was sent, August 29, 2003. Erickson stated that the
letter was “probably on my computer” and “I probably updated
it.” “I might have updated it and re-sent it.” And finally, in
response to a question to compare (in his mind) General Coun-
sel Exhibit 4 with the letter he sent in 1997, he stated “I would
have changed the date. (Tr. 344.) Erickson was never asked,
nor did he attempt to explain why he would change the date on
an original document that he was going send to Scheuneman as
a purported copy of the document he wrote in 1997. Further-
more, the August 1, 2003 date appears to be the date the fax
was prepared. No date is in the portion of the fax that contains
the purported letter. Respondent’s counsel takes a leap of faith,
not supported by the record, and claims that the letter was mis-
takenly dated August 1, 2003, but was faxed on August 29,
2003 (R. Br. at 12 fn. 10). Counsel apparently bases his con-
clusion on testimony that he elicited from Scheuneman (Tr.
469):
Q. Do you recall when you got that letter?
A. The fax came through, on August 29th, on a Fri-
day, at 11:00 a.m.
Q. Okay. So, the letter must be misdated but the fax
date is correct.
A. The fax is correct. That is when it came, to our of-
fice.
Thus, the record is left with Respondent’s counsel concluding
that the letter is misdated; I do not share his conclusion. It is
difficult to accept this discrepancy as just a simple mistake.
Obviously, one number is at the beginning of the month, and
the other at the end. Moreover, the actual numbers are signifi-
cantly dissimilar, i.e., it is not August 1 but should be 21. It is
conceivable that the fax was prepared on August 1, before the
charge was filed, but not sent until after. The name “Tom” in
the salutation is also of interest. Is it just coincidence that the
current business agent, and the person who requested the copy,
is Tom Scheuneman and that the business agent in 1997, before
Scheuneman, was also named Tom? Or is this another, forgot-
ten, example of Erickson updating a document that purports to
be a copy.
I am uncomfortable not only with the discrepancies in the
letter, but with the total absence of any attempt at explanation.
Accordingly, I give credence to the letter only to the extent that
it was faxed to the Respondent on August 29, 2003. Because of
the discrepancies in the letter, and Erickson’s failure to address
the discrepancies, as well as his shockingly abrupt lost of mem-
ory on cross-examination, I credit his testimony only to the
extent that it accords with Taylor’s. Taylor testified that Erick-
son told him that he felt that he had to lay both men off, or be
sued by Klanderud. In that same conversation Erickson assured
Taylor that when things settled down he would bring Taylor
back. Taylor credibly testified that he worked for Erickson in
1998, 2000, and 2002 without incident. Assuming that Erick-
son ever said that he would never hire Taylor, clearly he had a
change of heart. The letter, under any circumstance, would be
of only slight probative value. Taylor also credibly testified
that he called Erickson in June or July 2003 and asked for
work. Erickson said he had none. Taylor asked him if he had
signed a letter, Erickson said “no” and that when work was
available he would hire Taylor, but he has never called Tay-
lor.
After Dave Mitchell of Robinson Cartage refused to pro-
vide unfavorable comments about Taylor, because he re-
garded Taylor as an excellent worker, Hawley said “Bullshit”
and called David Scripps, president of Robinson Cartage,
directly. The Robinson Cartage job is where Taylor advo-
cated for a warming trailer to be placed on job, in opposition
to Hawley’s position. The letter Scripps sent is brief, redun-
dant, and offers no reason why Robinson Cartage no longer
wants Taylor sent to any of its jobs. (GC Exh. 2.) Scripps
testified that he had approached Hawley during a lull in a
collective-bargaining session during the summer of 2003
(after the trailer incident) and “said something” about prob-
lems that Brian Barnes (the job superintendent before
Mitchell) had made him aware of with Taylor. Scripps’ tes-
timony, even on direct examination, was vague, inconsistent,
and confusing. When asked if he told Hawley whether he
would hire Taylor in the future, he responded “No. I just
said when—when I asked for men to be sent out to a job, I
just did not want Tom Taylor sent out, to the job.” In re-
sponse to the question of why he did not want Taylor sent to
a job he stated, “I think he was—I will put it this way: like a
rotten apple where he would kind of, spread disharmony with
the crew and all the men, on the jobsites and the customers
notice that, as well.” Notwithstanding the previous response
when asked if he ever confronted Taylor he replied, “No. I
never had a need to.” (Tr. 378–379.)
Scripps admitted that he was only an “occasional visitor”
to the jobsite where Taylor worked (Tr. 377). He also said
that he could only recall the conversations that he had with
Barnes regarding Taylor, but none that he may have had with
Mitchell. Scripps never offered any evidence of customer
involvement, let alone dissatisfaction, with Taylor. It is ap-
parent from Scripps’ testimony that his knowledge of Taylor,
slight though it is, is based exclusively on second-hand in-
formation from Barnes regarding Taylor actions in trying to
obtain a warming trailer. Even Hawley acknowledged that
Taylor’s complaint regarding the warming trailer was legiti-
mate. It is also clear, from the brevity of their discussion,
that Hawley knew that the only issue Scripps had with Tay-
lor was about the warming trailer and that Scripps’ decision
never to rehire Taylor was unreasonable and unjustified.
Hawley’s unquestioned acceptance of Scripps’ letter
makes it patently clear that the Respondent’s only interest in
soliciting these letters was to interfere with Taylor’s attempts
at future employment. Hawley asked Scripps to put in writ-
ing the complaints that he had made to Hawley about Taylor
(Tr. 545). The letter mentions no complaints, nor does it
indicate any reason for dissatisfaction with Taylor. Scripps
invites Hawley to contact him if he has any questions or
concerns, but there is no evidence that Hawley ever felt the
need to do so. The fact that Hawley was satisfied with the
letter, without more, is indicative of the true purpose of the
solicitation.
AZCO is the only contractor named in Taylor’s August
13, 2003 charge that was called by the Respondent. Taylor
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD588
alleged in the charge that he was hired directly by AZCO’s
field superintendent, Bob Polsin. Thereafter, Scheuneman told
Polsin that he should not have hired him. Taylor alleged a vio-
lation of Section 8(b)(1)(A) and (2) of the Act. AZCO was the
structural steel contractor on the DeVos Convention Center in
2002. Polsin did directly hire Taylor and Klanderud. After
doing so he told Scheuneman. Scheuneman said “good luck.”
Polsin, not surprisingly, asked “what do you mean by that.”
Scheuneman told him that the two men did not get along very
well, but there would not be a problem as long as Polsin had
good supervision. Scheuneman then gratuitously volunteered
that neither man got along with nonunion employees, but again,
he assured Polsin that with good supervision Taylor would be
all right. The Respondent submits that subsequent to receiving
the charge, Hawley spoke to Polsin and asked him to document
some of his problems with Taylor. The Respondent acknowl-
edges that the letter (GC Exh. 3) is “basically positive.” The
letter also gives no indication that AZCO had any reason to
reject Taylor for employment in the future. Nor is there evi-
dence that Polsin, or any AZCO personnel, had ever had any
complaint about Taylor. Indeed, no witness from AZCO was
presented to testify. Not only did AZCO not complain about
Taylor but in 2004 he was offered reemployment. Thus, there
is no justification for the solicitation of AZCO for a letter on
Taylor. AZCO never hinted that it would not rehire Taylor,
hence Hawley’s reason—to establish that “it was contractors
telling us that they did not want him” is bogus, as well as is
Scheuneman’s—to only solicit letters from contractors who had
complained about Taylor. The AZCO solicitation meets neither
criterion.
Scheuneman also never reconciled his testimony that he and
Hawley never spoke about calling employers who had not
complained about Taylor (Tr. 475), with his call to Robert B.
Hubert, chief engineer for Northern Boiler Mechanical Con-
tractors. Scheuneman acknowledged calling Hubert, during the
summer of 2003, and asking if Northern Boiler had any “trou-
bles” with Taylor on any projects, and if they did would they be
willing to document the troubles. Northern Boiler had none.
Once again there is no evidence, other than Respondent’s wish-
ful thinking, that there had ever been a problem with Taylor.
Based on the foregoing, I am convinced that the Respondent
was attempting to take advantage of a fortuitous event—the
filing of a Labor Board charge, to expedite its attempts to inter-
fere with Taylor’s future employment opportunities. As such I
find the reason advanced by the Respondent to be a pretext,
thus leaving intact the inference of wrongful motive established
by the General Counsel.” Limestone Apparel Corp., 255
NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982). I find
that the Respondent violated Section 8(b)(1)(A) and (2) of the
Act as alleged.
c. Paragraph 9 of the complaint
This paragraph alleges that on or about January 22, 2004,
Respondent, by its agent Scheuneman, failed to refer the Charg-
ing Party to a job with Metro Hospital because of his protected
concerted and dissident activities and charge-filing activities.
In January 2004, Scheuneman was asked to refer two “hook-
on” men to work for Steelcon, a contractor, on the Metro Hos-
pital job. Scheuneman referred Jim Mansfield and Darrell
Kidder. On January 22, Kidder told Taylor that he (Kidder)
was being sent to the sent Metro Hospital job, notwithstand-
ing that Kidder had only recently been laid off from another
job, and had not yet signed onto the out-of-work list. Taylor,
who had been on the out-of-work list for 2 months, called
Scheuneman and asked his ranking on the list. Scheuneman
replied that he was about at the same place as he was yester-
day. Taylor testified that this was Scheuneman’s standard
answer to that question. Taylor said that he knew about Kid-
der and asked why Scheuneman was not going by the list.
Scheuneman replied that Mansfield, who had been appointed
steward on the job, had asked for Kidder as a traveling part-
ner. Taylor told Scheuneman that it was not a practice for
the steward to pick his own people and that it was Scheune-
man’s job to follow the list. Scheuneman said that he would
call Taylor when they needed men. The conversation ended
when Scheuneman made a threat to Taylor, which I found
violated Section 8(b)(1)(A) of the Act, above.
There can be no doubt of Scheuneman’s animosity to-
wards Taylor. Even during the brief exchange set out above,
Scheuneman could not refrain from giving Taylor a snide,
non-responsive answer to a simply, inoffensive, question.
When Taylor spoke of exercising his right to go the Board to
challenge Scheuneman’s allowing Mansfield to select a
“traveling partner,” who was not even on the out of work list,
Scheuneman responded by threatening Taylor with financial
loss.
The evidence establishes that Taylor is competent to per-
form the hook on work, and the Respondent does not contend
otherwise. The Respondent does assert that “hooking on”
requires teamwork, and thus, Mansfield was allowed to se-
lect his partner. What immediately comes to mind is why the
individual selected is not referred to as the “hooking on part-
ner.” I believe that phrase would be far more descriptive
than “traveling partner,” which in my mind connotes car-
pooling. Taylor may also have been confused because he
specifically challenged the steward’s right to choose a travel-
ing partner. When asked by counsel for the General Counsel
if he had ever told other of the Respondent’s members of this
right of the steward, Scheuneman said “I have never told
anybody that. It happens.” However, in response to counsel
for the General Counsel’s very next question, did he ever tell
Taylor that a steward had that right, Scheuneman’s said, “I
may have” and then proceeded to admit that he and Taylor
argued over that subject, until Scheuneman threatened Tay-
lor. (Tr. 492–493). A shifting reason, like the one offered
here, supports an inference that the reason proffered is a
pretext. Enjo Architectural Millwork, 340 NLRB 1340
(2003).
Scheuneman also testified that he would not have even
considered Taylor for the hook on job because Taylor and
Mansfield do not get along. This conclusion is based on an
incident that happened in June 2000 when Taylor was work-
ing for Mansfield. Taylor testified that he and Mansfield
were having a dispute. Mansfield, who Taylor said was
huge, close to 400 pounds, told him that he was going to beat
him up. Mansfield was standing over Taylor at the time and
IRONWORKERS LOCAL 340 (CONSUMERS ENERGY CO.) 589
Taylor said “I will gut you like a hog” and Mansfield backed
off (Tr. 512). Taylor creditably testified, without contradiction,
that since that incident he and Mansfield have worked together
several times and that Taylor has also worked for him. I find
that Taylor’s past history with Mansfield is not the real reason
that he was not referred to the Metro Hospital job.
I find, based on the strong evidence of animus against Tay-
lor, and the Respondent’s shifting explanations, that the real
reason that Taylor was not referred to the Metro Hospital job
was to punish him for his protected concerted and dissident
activities and charge-filing activities. Accordingly, I find that
the Respondent violated Section 8(b)(1)(A) of the Act, as al-
leged.
It is necessary to address, and reject, one last contention ar-
gued by the Respondent. Throughout the proceeding the Re-
spondent has attempted to portray Taylor as a quasi-sociopath
who, since being elected to the executive board in 1999, “has
created a long record of threatening contractors, members of
Local 340 and the staff and leadership of Local 340.” This
contention is not supported by credible evidence.
The only credible testimony of an actual altercation was the
fight that occurred in 1997 between Taylor and Klanderud.
Taylor credibly testified that the altercation was initiated by
Klanderud. Even as between the two participants the incident
seems well in the past. They were hired together by AZCO and
apparently worked that job without incident.
The threat to Mansfield occurred in 2000 at the Donnelly
plant in Newaygo, Michigan. ABB was the contractor that
employed the men. Taylor admitted making the statement, but
to him it was a matter of self-defense. Taylor was not dis-
missed or reprimanded for making the statement. Mansfield
did not testify, nor is there evidence that the Respondent at-
tempted to solicit a letter from either Donnelly or ABB. Tay-
lor, as set forth above, credibly testified he has also worked
with Mansfield, since the exchange, without incident.
The only other threatening statement that Taylor acknowl-
edged occurred on a Friday evening in 2000 when Taylor was
at home drinking beer. He was called by Tim Brennan, an
ironworker and a member of the Respondent. He told Taylor
that Hawley said that he was trying to get a committee together
to throw Taylor out of the Local. Taylor said, “if a man messes
with another man’s livelihood, he is liable to get shot. Taylor
offered no explanation other than he had had a few beers and
ironworkers talk like that. (Tr. 616–617).
Paul Marvin, Taylor’s general foreman on the Alstom job,
attributed several threats of violence to Taylor. In addition to
the boilermaker with whom Taylor had the jurisdictional dis-
pute, Marvin said Taylor made threats to himself, Superinten-
dent Joe Cory, Hawley, and Doug Powell, a safety coordinator.
Marvin specifically stated that he took the threats seriously. I
assume that Marvin also took seriously the punch he claims
Taylor threw at him. I do not credit Marvin’s testimony regard-
ing either the alleged threats or the punch. Taylor credibly
denied the threats. Marvin’s testimony is inconsistent with his
affidavit and his actions, or more accurately, his inactions.
Marvin, Taylor’s general foreman, neither reprimanded nor
dismissed Taylor for any of the alleged misconduct. Marvin
offers that Taylor was not discharged because Taylor is “proba-
bly one of the best Ironworkers there is” (Tr. 163), that may
be so, but I still find Marvin’s testimony incredulous. Even
more incredible is Marvin’s reaction after Taylor swings, and
misses, “I just stood there and smiled. . . .” Taylor is not a
large man. He appears to be middle-aged, with a compact
build. Marvin is also, however, not of imposing stature. I
find it beyond belief that he withstood an assault on his per-
son with only a smile on his face. Once again, the Respon-
dent did not attempt to obtain a letter from the contractor
regarding the numerous threats alleged by Marvin, which
apparently occurred in early 2002.
The testimony of Pete Cinder is also inconsistent with his
affidavit. He testified that he heard Taylor make threats
about the Respondent’s officials a hundred times during a 6-
week period. In his affidavit he mentions hearing a threat
only one time. Cinder also testified that during that same
time period he allowed Taylor to ride to work with him. I
find it doubtful that Cinder was willing to ride with Taylor,
for 2 hours a day, with Taylor being engaged in what must be
described as a continuous rant. Cinder also admitted that
after he reported the alleged threats to Scheuneman he signed
a petition stating that he did not believe Taylor was a threat
to any member of the Respondent. He claims that he signed
the petition as a result of peer pressure. Peer pressure may
also explain the totally exaggerated testimony of the other
witnesses who testified regarding the threats.
Linda Remington acknowledged the animosity between
Taylor and the Respondent’s officers. She testified that she
did not like the way Taylor was being treated. I do not think
she is alone in her belief. Taylor has supporters, or he would
not have twice been elected to the executive board. But he
also has detractors some of whom testified during the hear-
ing. It would appear that there is a faction within the Re-
spondent, and the members are choosing sides. Regardless,
in this instance it is clear that the Respondent has undertaken
unlawful actions in an attempt to restrain Taylor in the exer-
cise of the rights guaranteed him in Section 7 of the National
Labor Relations Act.
CONCLUSIONS OF LAW
1. Consumers Energy Company is an employer within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent, Local 340, International Association
of Bridge, Structural and Ornamental Ironworkers, AFL–
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. The Respondent violated Section 8(b)(1)(A) of the Act
by
(a) On or about January 22, 2004, by its agent Thomas
Scheuneman, failing to refer Thomas Taylor, the Charging
Party, to a job with Metro Hospital because of his protected
concerted and dissident activities and charge-filing activities.
(b) On or about January 22, 2004, by its agent Thomas
Scheuneman, threatening retaliation against Thomas Taylor,
the Charging Party, because of his protected concerted and
dissident activities and charge-filing activities.
4. The Respondent violated Section 8(b)(2) of the Act by
(a) On or about August 5, 2003, by its agent Bruce Haw-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD590
ley, attempting to cause Consumers Energy Company from
allowing the employment of Thomas Taylor, the Charging
Party, by its subcontractors because of his protected concerted
and dissident union activities.
(b) On or about August 21, 2003, by its agents Bruce Hawley
and Thomas Scheuneman, coercing employers that have collec-
tive-bargaining agreements with Respondent, to provide Re-
spondent with signed letters precluding Thomas Taylor, the
Charging Party, from further employment with such employers
because of his protected concerted and dissident union activi-
ties.
5. The unfair labor practices committed by the Respondent
are unfair labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to ef-
fectuate the policies of the Act.
The Respondent having taken unlawful action against
Thomas Taylor shall be ordered to make him whole for any
loss of earnings and other benefits he may have suffered as a
result of the Respondent’s unlawful actions. Backpay shall
be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
I shall also order that within 14 days of the date of this
Order the Respondent shall provide written notification to
Consumers Energy Company, Robinson Cartage, Northern
Boiler Mechanical Contractors, Rapids Construction LLC.,
AZCO Construction, Neux’s Welding, Erickson’s Inc., and
Monarch Welding Services, with a copy furnished to Thomas
Taylor, that it has no objection to the employment of Thomas
Taylor.
[Recommended Order omitted from publication.]