Kamtech, Inc

National Labor Relations Board - Board Decisions

Jan 31, 2001

333 N.L.R.B. 242 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 242
Kamtech, Inc. and International Brotherhood of Boil-
ermakers, Iron Shipbuilders, Blacksmiths,
Forgers and Helpers, AFL–CIO. Cases 25–CA–
25047–1 and 25–CA–25047–2
January 31, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, HURTGEN, AND
WALSH
On July 23, 1999, Administrative Law Judge Karl H.
Buschmann issued the attached decision. The Respon-
dent and the General Counsel filed exceptions and sup-
porting briefs. The General Counsel and the Charging
Party filed answering briefs to the Respondent’s excep-
tions, and the Respondent filed a reply brief, as well as
an answering brief to the General Counsel’s exceptions.
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,2 as
modified and set forth in full below.3

1 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 preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings.
The Respondent excepts to the judge’s crediting of employee Mark
Rountree notwithstanding Rountree’s 1997 conviction for shoplifting.
The Respondent contends that Rountree “lied” by failing to reveal this
conviction during his cross-examination. The record, however, does not
establish that Rountree deliberately withheld the fact of the conviction.
Although the Respondent’s counsel identified a 1983 conviction and
then asked Rountree about “other convictions,” he chose to end his
cross-examination immediately after Rountree responded by identifying
a second 1983 conviction. More significantly, the judge subsequently
noted on the record that criminal convictions involving dishonesty are
relevant in assessing credibility and admitted a Respondent exhibit
documenting Rountree’s 1997 conviction. It is accordingly clear that
the judge took the conviction and related testimony into consideration,
even though he did not refer to the conviction in his decision. See
Franklin Iron & Metal Corp., 315 NLRB 819 fn. 1 (1994).
In describing the testimony of witness Wilmer Sellers, the judge
mistakenly states that Sellers testified that while he was administering a
welding test to applicant Richard Griffin, Griffin volunteered to him
that he was a union member. In fact, Sellers testified that it was some-
time later, after Griffin had been hired by the Respondent, that Griffin
volunteered the information about his union affiliation. Sellers’ testi-
mony on this point is not material to the judge’s stated reasons for
finding Sellers’ testimony to be generally less credible than that of
witnesses Mitch Dotson and Robert Young. Thus, the error is not
grounds for overturning the judge’s credibility determination.
2 No exceptions were filed to the disposition of allegations dismissed
by the judge.
3 The General Counsel filed limited exceptions to the judge’s failure
to provide language in his recommended Order and notice explicitly
protecting the seniority and other rights the discriminatees would have
enjoyed absent the Respondent’s discrimination against them. We find
merit in these exceptions and will accordingly modify the judge’s rec-
ommended Order and notice.
1. The judge found that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by refusing to “hire or
consider for hire” Michael Cornell as a welder at its
Hawesville facility. We agree that the Respondent, due to
union animus, failed to give Cornell, a former Kamtech
welder, an opportunity to take a welding test in order to
determine whether he was qualified for a welding job.4
The welding test was an established part of the Respon-
dent’s hiring process for welders,5 and the Respondent
administered the test to a number of other job applicants
during the period when Cornell was requesting reem-
ployment. We therefore adopt the judge’s finding that the
Respondent unlawfully refused to consider Cornell for
employment.6
However, because it is unclear whether Cornell would
have passed the welding test had he taken it, we cannot
find that the Respondent unlawfully refused to hire him.

4 We reject the Respondent’s contention that the judge erred in rely-
ing on certain testimony from Ricky Cox because it was “double hear-
say.” Cox, a welder at the Respondent’s Hawesville facility whom the
judge credited as “the most impartial witness,” testified that he learned
that the Respondent needed additional welders at Hawesville. He con-
tacted Rountree (who had recently been terminated from the Respon-
dent’s Owensboro facility) to confirm that Rountree was available for
work. Cox then suggested Rountree’s name to Hawesville Pipe Fore-
man Okie Lacey, one of four foremen whom the judge found to be
statutory supervisors. (The Respondent has not excepted to that find-
ing.) Then, according to Cox:
He [Lacey] said, yeah, we need—we can use a welder, and he went
down to the office and came back later and asked me the guy’s name
again. I said Mark Rountree, and he said, well, we can’t hire him,
they’ve got him on a list down here. He started some union problems
at [the Owensboro facility], trying to organize the union.
Contrary to the Respondent’s contention, Lacey’s statements are at-
tributable to the Respondent as a party admission not barred by the
hearsay rule. E.g., Quality Control Electric, 323 NLRB 238 (1997);
Glenroy Construction Co., 215 NLRB 866 (1974), enfd. 527 F.2d 465
(7th Cir. 1975). The judge’s reliance on Cox’s testimony to support his
finding that the Respondent acted from union animus in discharging
Roundtree and in refusing to allow Cornell to take a welding test was
accordingly permissible.
5 The Respondent’s practice was to hire apparently qualified appli-
cants and administer the welding test during their first day of employ-
ment.
6 The Respondent does not dispute that under its hiring policy Cor-
nell was entitled to a hiring preference over applicants who were not
former Kamtech employees. Further, the General Counsel does not
dispute that the Respondent was in need only of “tig” welders on the
date Cornell attempted to apply. The Respondent’s assessment of
whether the applicant was qualified to work as a tig welder was de-
pendent on the applicant’s performance in the welding test, and the
Respondent’s project manager conceded that Cornell would have been
hired if he had been a tig welder. The judge’s analysis of the refusal-to-
consider violation is therefore consistent with the Board’s recent deci-
sion in FES, 331 NLRB 9 (2000).
333 NLRB No. 33
KAMTECH, INC. 243
Accordingly, consistent with FES supra, we will modify
the remedy in the judge’s recommended order to require
the Respondent, upon Cornell’s request, to administer the
welding test to determine whether he was qualified to
perform welding work of the type required at the Re-
spondent’s Hawesville facility from July through August
1996. The Respondent will be required to offer Cornell
employment and make-whole relief contingent on the
outcome of that test, as determined in the compliance
stage of this proceeding, and pursuant to the require-
ments of Dean General Contractors, 285 NLRB 573
(1987).7
2. The judge found that the Respondent unlawfully re-
fused to hire Mitch Dotson and Robert Young. The
Board’s decision in FES sets forth the framework for
analysis of refusal-to-hire and refusal-to-consider viola-
tions. The Board has decided to remand the allegations
concerning the refusal to hire Dotson and Young to the
judge for further consideration in light of FES, including,
if necessary, reopening the record to obtain evidence
required to decide the issue under the FES framework.
The Respondent has excepted to the judge’s findings
that it committed other violations of Section 8(a)(1) and
(3) of the Act. We find no merit in the exceptions and
adopt the judge’s findings. Neither these findings, nor
the findings concerning the discharge of Mark Rountree
and the refusal to consider for hire Michael Cornell,
implicate our decision in FES, and there is no reason to
delay the resolution of those portions of the case pending
the outcome of the limited remand we are ordering with
respect to Dotson and Young. Accordingly, we have
decided to issue a final Order with respect to those viola-
tions. See Masiongale Electrical-Mechanical, Inc., 331
NLRB 534 (2000).8

7 The judge’s recommended remedy would require the Respondent
to reinstate Mark Rountree to his former position, and to hire Cornell
for the position for which he applied, or to “substantially equivalent
positions at new jobsites, if necessary.” There is insufficient evidence
in the record to establish whether the Respondent has a policy or prac-
tice of transferring job applicants or employees from one site to an-
other, an issue which we find was not fully litigated in the underlying
proceeding. Accordingly, we will also defer this issue to the compli-
ance stage in accord with Dean General Contractors.
For reasons set forth in his dissents in Ferguson Electric Co., 330
NLRB 514 (2000), and Tualitin Electric, 331 NLRB 36 (2000), Mem-
ber Hurtgen disagrees with Dean, at least as applied to “salt” situations.
In Member Hurtgen’s view, it is appropriate, in these situations, to
place on the union the burden of coming forward with evidence that the
“salt” would have gone on to subsequent jobs if he had not been dis-
charged.
8 Although we agree with the judge that employee Rountree was
unlawfully discharged, we do not rely on his finding that Rountree was
discharged “for his refusal to work under unsafe conditions.” We find it
unnecessary to resolve the question of whether the assigned work was
in fact unsafe. Rather, we agree with the judge’s finding that the work
ORDER
The National Labor Relations Board orders that the
Respondent, Kamtech, Inc., Woodstock, New York, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to consider for hire applicants
for employment because they are union supporters.
(b) Interrogating applicants for employment about
their union background.
(c) Placing employees’ union activities under surveil-
lance, and creating the impression that such activities are
under surveillance.
(d) Denigrating employees for their union support.
(e) Informing or indicating to employees or job appli-
cants that applications for employment will not be con-
sidered because of applicants’ union support.
(f) Informing employees that engaging in union activi-
ties will be futile.
(g) Assigning employees to more onerous working
conditions, reprimanding employees, shortening em-
ployee breaks, and discharging employees because of
their union activities.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Mark Rountree immediate and full reinstatement to his
former job, and if that job no longer exists, in a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights he would otherwise have enjoyed.
(b) Make Mark Roundtree whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him. Backpay is to be computed on a
quarterly basis as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
(c) Within 14 days from the date of this Order, upon
his request, offer to give Michael Cornell a welding test
in order to determine whether he was qualified to per-
form welding work of the type required at the Respon-
dent’s Hawesville facility from July through August,
1996, and, contingent on the outcome of that test, offer

assignment was discriminatorily motivated, and that the Respondent
would not have insisted on pain of discharge that Rountree perform the
task as ordered had it not been for his protected concerted activity. As
noted by the judge, this finding is supported by evidence that after
discharging Rountree, the Respondent did not attempt to have any other
employee perform the task in the manner in which it had ordered Roun-
tree to perform it, and that the work was eventually accomplished by
building a scaffold, as Rountree had requested.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 244
him employment in a substantially equivalent position,
without prejudice to his seniority or any other rights he
would otherwise have enjoyed.
(d) Make Michael Cornell whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him.
(e) Within 14 days from the date of this Order, remove
from its files any reference to Mark Rountree’s written
reprimand and unlawful discharge, and any reference to
the refusal or failure to consider Michael Cornell, and
within 3 days thereafter notify each individual in writing
that this has been done and that the reprimand and dis-
charge, or the refusal to consider for employment, will
not be used against him in any way.
(f) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, Social Security payment
records, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(g) Within 14 days after service by the Region, post at
its facilities in Woodstock, New York; Owensboro, Ken-
tucky; and Hawesville, Kentucky, and all other places
where notices customarily are posted, copies of the at-
tached notice marked “Appendix.”9 Copies of the notice,
on forms provided by the Regional Director for Region
25, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive
days in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. In the event that the Respondent fails to ensure
that the notices are not altered, defaced, or covered by
any other material, or in the event that the Respondent
has gone out of business or closed any of the facilities
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since June 4, 1996.
(h) 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 with this Order.

9 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.”
IT IS FURTHER ORDERED that the issue of whether
the Respondent violated Section 8(a)(3) and (1) of the
Act by refusing to hire Mitch Dotson and Robert Young
is severed from the rest of this proceeding and remanded
to the administrative law judge for appropriate action as
noted above.
IT IS FURTHER ORDERED that the administrative
law judge shall prepare a supplemental decision setting
forth credibility resolutions, findings of fact, conclusions
of law, and a recommended Order, as appropriate on
remand. Copies of the supplemental decision shall be
served on all parties, after which the provisions of Sec-
tion 102.46 of the Board's Rules and Regulations shall be
applicable.

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

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT discharge or otherwise discriminate
against employees because they engage in union activity
protected by the Act.
WE WILL NOT fail and refuse to consider applicants
for employment because they are union supporters.
WE WILL NOT interrogate applicants for employ-
ment about their union background.
WE WILL NOT place employees’ union activities un-
der surveillance, or create the impression that employees’
union activities are under surveillance.
WE WILL NOT denigrate employees because of their
union support.
WE WILL NOT inform or indicate to employees or
job applicants that applications for employment will not
be considered because of applicants’ union support.
WE WILL NOT inform employees that engaging in
union activities will be futile.

KAMTECH, INC. 245
WE WILL NOT assign employees to more onerous
working conditions, reprimand employees, or shorten
employee break, because of their union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order,
offer Mark Rountree immediate and full reinstatement to
his former job or, if that job no longer exists, in a sub-
stantially equivalent position without prejudice to his
seniority or any other rights he would otherwise have
enjoyed.
WE WILL, within 14 days from the date of this Order,
make Mark Rountree whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against him.
WE WILL, within 14 days from the date of this Order,
upon his request, offer to give Michael Cornell a welding
test in order to determine whether he was qualified to
perform welding work of the type required at our
Hawesville facility from July through August 1996, and
offer him employment in a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights
he would otherwise have enjoyed.
WE WILL, within 14 days of this Order, make Mi-
chael Cornell whole for any loss of earnings and other
benefits suffered as a result of the discrimination against
him, contingent on the outcome of that test.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to Mark Rountree’s
written reprimand and unlawful discharge, and any refer-
ence to the refusal to consider Michael Cornell, and
within 3 days thereafter notify them in writing that this
has been done and that the reprimand and/or discharge
and/or refusal to hire or consider for employment will
not be used against them in any way.
WE WILL preserve and, within 14 days of a request,
make available to the Board or its agents for examination
and copying, all payroll records, social security payment
records, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.

KAMTECH, INC.

Michael T. Beck, Esq., for the General Counsel.
Cameron S. Pierce and Eric Smith, Esqs., of Atlanta, Georgia, for the Respondent.
Michael T. Manley, Esq., of Kansas City, Missouri, for the Charging Party.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. This case was tried in Owensboro,
Kentucky, on May 5–7 and June 23–25, 1998, upon a consolidated complaint, dated April 30,
1997. The charges in support of the complaint were filed on November 12, 1996, and on April
17, 1997, as amended, by the International Brotherhood of Boilermakers, Iron Shipbuilders,
Blacksmiths, Forgers and Helpers, AFL–CIO (the Union). The allegations in the complaint
accuse the Respondent, Kamtech, Inc., of violations of Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act), including unlawful surveillance of its employees, threats di-
rected at employees, discriminatory discharges, and refusals to hire because of the applicants’
union activity.
The Respondent’s answer filed on May 14, 1997, admitted the jurisdictional aspects of the
complaint and denied the allegations of unfair labor practices.
On the entire record, including my observation of the demeanor of the witnesses and after
consideration of the briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Kamtech, Inc., headquartered in Woodstock, New York, and a manufac-
turing facility in Owensboro, Kentucky, is engaged in the construction industry doing residen-
tial, industrial, and commercial construction. With purchases and receipts at its Owensboro
facility of goods in excess of $50,000 from points outside the Commonwealth of Kentucky, the
Respondent is admittedly an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The Union has been a labor organization within the meaning of Section 2(5) of the Act.
Background
Kamtech had two projects in Kentucky, one in Owensboro and one in Hawesville. In
Owensboro, Kamtech was engaged in the construction of a paper manufacturing facility for
Kimberly-Clark from August 1995 to April 1997, which among other employees, required the
work of welders, pipefitters, riggers, millwrights, helpers, or laborers. Kamtech also performed
work on a wastewater plant for Kimberly-Clark in Owensboro. In Hawesville, Kamtech built a
boiler as part of a paper digestive system from April 1996 to February 1997. Most of the
allegations of unfair labor practices occurred on the Owensboro project under the direction of
Brian Kear, project manager and John Webster, the piping superintendent. The supervisory
hierarchy under Webster included David Umstead, general foreman, who supervised the
following foremen: Buddy Thompson, Eric Blackwell, James (Jimbo) Haberzettle, Bob Brown-
ing, and Dennis Beaton. The supervisory status of the foremen is contested by the Respondent.
In summary, the General Counsel’s case shows that in May 1996, the Union, [Boilermak-
ers] commenced an organizational campaign at Kamtech with a meeting between the Union’s
organizer, Eugene Forkin and Tony Tarlton, a Kamtech employee in Owensboro. In June 1996,
another Kamtech employee Mike Cornell joined the Union’s effort to organize the employees
in Owensboro. In May, the Union’s organizer encouraged two union members who were
unemployed, Robert Young and James Dotson, to apply for jobs at the Owensboro project.
Dotson had gone to the union hall in search for work at a time when the Union was aware that
Kamtech needed welders. The two applicants went to the jobsite in the middle of May and
spoke at the entrance through the fence to John Webster. He made a note of their names. On
June 4, 1996, John Miller, Kamtech’s office manager, called the applicants to fill out an appli-
cation and to take a welding test. The test was administered by Wilmer Sellers, Respondent’s
quality control person. He asked the applicants whether they were union affiliated. Dotson and
Young admitted that they were union members. Thereafter, Sellers informed them that they
had failed the welding test.
On June 18, 1996, union organizer Forkin met with about 20 Kamtech employees at a local
restaurant to solicit for the Union and to distribute union cards. Forkin also established an
organizing committee, which included Mark Rountree, a Kamtech employee. On June 19,
1996, the Union delivered a letter to John Webster about the organizing committee. The letter
listed the names of the union members on the committee.
Mark Rountree, employed at Kamtech since December 1995, was among those listed on the
letter. He had joined Tarlton and Cornell in prounion activities at the jobsite. Rountree was
disciplined for leaving his workstation, assigned to more onerous work, and ultimately dis-
charged on June 19, 1996. His supervisor had told him that “walls have ears.”
On June 20, 1996, Forkin and seven union members went to the Kamtech jobsite and tried
to apply for work. Forkin and Mike Tucker, one of the applicants, approached the gate and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 246
asked to speak to John Webster. Sabrina Schultz, the office secretary, spoke to the applicants.
She said that Kamtech needed welders and fitters. Forkin gave her a letter, which listed the
seven unemployed applicants and identified them as union members and asked that the letter be
given to John Webster. Schultz went back to the office and returned shortly thereafter and said
that the Respondent wasn’t hiring.
Michael Cornell who was laid off at the Owensboro site, applied for work on July 9, 1996,
at the Hawesville project and on several days thereafter. He was not hired because he was
identified as a union organizer while he worked at the Owensboro project.
On July 19, 1996, Tony Holcomb, employed since April 1996, as a pipefitter was dis-
charged ostensibly from leaving his job early. Holcomb had been a strong union supporter.
The Respondent, in a detailed brief characterized the Union’s efforts gain employment for
its members and to organize the Respondent’s employees as a “Fight Back Campaign,” and
“Project Targeting,” but the Respondent also maintains that the General Counsel failed to prove
any violations under Section 8(a)(1) and (3) of the complaint. For example, the Respondent
argues that Kamtech was not looking for employees when the union applicants attempted to
gain employment, that the applicants were in any case not bona fide applicants and that they
failed to apply properly or effectively. The Respondent also argues that Dotson and Young
falsified their applications, that their failure to pass the welding test was not influenced by
union considerations and that their reasons for applying was only motivated by financial
interest to obtain backpay and to demonstrate union loyalty. Holcomb’s discharge, according
to the Respondent, was solely caused by his poor performance and without any regard to his
union affiliation. Respondent’s justification for Rountree’s discharge was similarly explained,
as being for just cause. Rountree, according to the Respondent was discharged for refusing to
perform an assignment on his job. The Respondent further argues that certain statement made
by Foremen James Haberzettle and Bob Browning did not interfere with, restrain, or coerce
employees in the exercise of their statutory rights and that in any case, foreman were not
supervisors in the meaning of the Act. And Michael Cornell, who was laid off shortly after his
union activity, was refused employment at the Hawesville project, because Cornell was quali-
fied only as a structural welder and not as a “Tig” welder and therefore was not needed at that
project.
The issues in this case are: (a) Whether the Respondent violated Section 8(a)(1) of the Act
by coercively interrogating employees, creating the impression that their union activities were
under surveillance, informing them that their union activity would be futile, that they would not
be considered for employment because of their union affiliation, and that they should work
elsewhere; and (b) whether the Respondent violated Section 8(a)(1) and (3) of the Act when it
disciplined and discharged Mark Rountree and Tony Holcomb, and refused to hire Michael
Cornell for the Hawesville project and Mitch Dotson and Robert Young, as well as the eight
applicants (Eugene Forkin, Mike Tucker, Gregory Allen, Brian Roberts, David Ogburn, Ed
Bennett, Terry Maddex, and John Miller) at the Owensboro worksite.
In addition, it is necessary to decide whether several foremen were supervisors or agents of
the Respondent within the meaning of the Act.
Analysis
Kamtech’s Foremen were Supervisors
David Umstead at the Owensboro project and Alexander “Okie” Lacey at the Hawesville
jobsite were employed as general foremen during the relevant period in 1996 and 1997.
Umstead, general foreman of the pipe work at the Owensboro project, had five foremen under
his direction. They (James Haberzettle, Bob Browning, Buddy Thomson, Eric Blackwell, and
Dennis Beaton) each led a pipefitting crew of up to 15 welders, pipefitters, and helpers. Craig
Gaston was a field foreman. Each foreman was responsible for a certain assigned area on the
project. They were responsible for the timely and proper completion of the piping work. To
that end, they exercised discretion in assigning work to the employees, directing their work and
in disciplining them. According to John Webster’s testimony, the foremen were authorized to
discipline employees for such misconduct such as absenteeism or tardiness and they also
exercised that authority. Moreover, if an employee needed time off work, the proper chain of
authority would require him to make the request initially to his respective foreman. The
foremen held weekly meetings with their respective crews, they watched over the employees’
day-to-day work. The foremen themselves performed little piping work, most of their time was
spent in completing paperwork, inspecting employees’ work and assigning work. As a result of
each foreman’s responsibility to complete a certain assigned area of the project, it is clear that
he exercised considerable, independent discretion and judgment over his crew. The foremen
received their assignments from the General Foreman Umstead and the Project Manager
Webster. The foreman received the blueprints of his section of work from the general foreman.
While the foremen lacked the authority to hire or fire employees, they could effectively rec-
ommend that an applicant be hired or that an employee be fired. In only a few instances, their
recommendations were not followed, as for example when foreman Eric Blackwell had recom-
mended the discharge of an employee assigned to him. Webster attributed the problem to a
personality conflict. In most other respects, foremen exercised no authority to change the
Company’s work rules, promotion policy, or pay raises.
According to the express provision of Section 2(11) of the Act, the piping foremen were
supervisors. Even though they lacked the authority to hire, transfer, suspend, lay off, recall,
promote, or discharge any of the members of their crew, they had the clear authority to assign
work and to discipline employees, and to responsibly direct them.
Section 2(11) provides:

The term “supervisor” means any individual having authority, in the interest of the employer, to
hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other
employees, or responsible to direct them, or to adjust their grievances, or effectively to recom-
mend such action, if in connection with the foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use of independent judgment.

The record shows that foremen effectively recommended candidates for employment.
Clearly, the authority of these foremen exceeded the making of routine assignments comparable
to the function of a leadman. I, accordingly, find that Haberzettle, Browning, Gaston, and
Thomson were supervisors within the meaning of the Act.
The record shows and the Respondent concedes that “Webster and Umstead were vested
with “genuine management prerogatives.” Alexander “Okie” Lacey was general foreman at the
Hawesville project. Without doubt, they, as officials to whom the foremen reported, were
supervisors within the meaning of the Act.
Wilmer Sellers who was Respondent’s quality control person administered welding tests to
prospective employees. He testified that he inspected welds, tested welders, inspected concrete,
and prepared written reports. According to Kamtech’s policy, all welders had to pass a welding
test. Sellers would determine whether an applicant would possess the skills to work as a
welder. Sellers testified that he has several different types of tests, which he can administer.
There is a “tig” weld or a “stick” weld. Test takers can take either one. They were usually
instructed to tack up two pieces of pipe, which should be “flush” or better on the inside of the
pipe. A “route pass” should be better than flush so that the inside of a pipe does not show a
concave connection. If it were somewhat concave on the inside, he would not pass a welder.
Sellers used a special mirror and a flashlight to inspect the inside of a pipe. If the pipe weld
would be flush or better but still show a “little bitty certain spot” but the rest would be slick and
smooth on the inside, he would pass the individual’s effort. Once the weld has passed visual
inspection, it is submitted to an ex-ray company. Individuals who fail to pass Sellers’ visual
inspection fail and are not employed as welders for Kamtech.
Sellers administered tests to two applicants Mitch Dotson and Robert Young. Sellers exam-
ined their welding test briefly and informed them that they had failed. As a result, they were
not hired by Kamtech.
The General Counsel and the Charging Party argue that Sellers must be considered a super-
visor within the meaning of the Act, because he had the authority to effectively recommend that
an applicant be hired or not be hired. In this regard, I agree with the Respondent, that Sellers
was not a supervisor. He had no subordinates, but functioned essentially as an agent for the
Respondent to determine an applicant’s ability to perform a job. Sellers’ assignment was an
integral part of the Respondent’s hiring process. In that function, Sellers exercised independent
judgment as to whether applicants passed or failed. His authority included the necessary
discretion to excuse imperfections of a weld in order to pass the individual. And he exercised
that authority and judgment in the interest of his employer.

KAMTECH, INC. 247
I find on the basis of the record evidence summarized above, that Sellers acted as Respon-
dent’s agent as defined in Section 2(13) of the Act, particularly in his conduct of administering
the testing of two union applicants.
Allegations Relating to Mitch Dotson and Robert Young
In late May 1996, Mitch Dotson and Robert Young, two members of the Boilermakers Un-
ion, Local 40, attempted to gain employment at Kamtech in Owensboro. Young and Dotson
had been members of Local 40 since 1977 and 1978, respectively, and were unemployed in
May 1996. They went to their Union in search of work and were informed by Joe Medley, the
union’s assistant business manager that Kamtech was hiring. They went to the Owensboro
project and spoke with John Webster through the fence at the gate. Webster told them that he
needed pipefitters, but not welders at the time but he made a note of the names. On June 5,
1996, Office Manager Johnny Miller called Dotson about a welding position. Dotson informed
Young and they reported on June 5, 1996, at Kamtech’s construction site in Owensboro. As
directed, they filled out employment applications, they watched a safety program, and took a
drug test. They were then given a welding test by Wilmer Sellers. Dotson completed the
welding test within 20 minutes, examined it with his flashlight and a mirror and thought that it
was perfect. Young also inspected Dotson’s work and found nothing wrong with it. Sellers
then inspected the weld for 30 or 45 seconds and asked whether they had been welding boilers.
They answered, yes. Sellers then asked: “Are you all union?” They said, yes, but added that
they also worked for nonunion companies. Sellers looked at the tested material again for a few
seconds and said, “you failed the test.”
Sellers then told Young to perform the welding test. When he was finished, Young thought
his test looked excellent. Sellers briefly inspected the test and similarly said that Young had
failed the test.
This scenario is based upon the credible and consistent testimony of the two applicants,
Dotson and Young. While Sellers denied asking them any questions about the Union or their
union affiliation, he generally agreed that he administered the welding test to Young and
Dotson, that he examined their work and decided that they had failed. He also recalled asking
them questions about their prior work and experience, but he could not recall anything more
specific. Sellers testified about his experience with another applicant, Richard Griffin, who had
passed Kamtech’s welding test, even though he, according to Sellers, had volunteered his union
affiliation during the taking of the test. The record, however, shows that Sellers had not
administered the test nor was he the one responsible for administering the welding test on May
28, 1996, to Griffin. It was Ricky Osteen, who like Sellers, was the welding technician on that
day. Sellers’ testimony in this regard, as well as his demeanor as a witness rendered his testi-
mony generally less credible than that of Dotson and Young.
I therefore find that Sellers interrogated the two applicants about their union background
and gave them a failing grade because they had disclosed their union affiliation. This is par-
ticularly so, because Young and Dotson not only regarded their own welding samples as
flawless, but they also inspected each other’s test results and concluded that there was nothing
wrong with them. Young and Dotson were highly experienced welders with about 20 years’
experience. Young described how Sellers examined Young’s testing sample soon after it was
finished and that after only 5 seconds Sellers concluded that Young had failed. Generally, it
takes about 30 or 45 seconds to properly examine a welding sample. It is also clear that Young
and Dotson would have been hired if Sellers had approved their tests. The reason for Sellers’
disapproval was not the inadequacy of the actual welds but Sellers’ antiunion animus, which he
had exhibited by interrogating the applicants about their union background. That the interroga-
tion about an applicant’s union affiliation during the application process is coercive, is well
settled. Such conduct violates Section 8(a)(1) of the Act. Respondent’s rejection of the two
applicants for jobs because they had revealed their union affiliation, violated Section 8(a)(1)
and (3) of the Act. The Respondent has not overcome the inference that Sellers’ testing results
were a clear pretext to keep these applicants from being employed by Kamtech. The Respon-
dent has failed to meet the test in Wright Line, 251 NLRB 1083 (1980), that Young and Dotson
would have been rejected for employment even in the absence of any union considerations.
The Respondent assailed the testimony of Young and Dotson on several grounds, including
the apparent inconsistency of the initial concealment of their union affiliation and their prompt
disclosure of it during the welding test, their tacit reaction and acceptance of a failing grade,
their inconsistent testimony about the right to reapply for a job, and their misrepresentations on
their applications. Respondent’s counsel also characterized Young’s testimony as “unmitigated
belligerence at the hearing.” In this regard, I found the testimony of Young, as well as other
witnesses remarkably restrained under the pressure of intense and often hostile cross-
examination. Moreover, none of the Respondent’s record references support counsel’s asser-
tions about the witness’ belligerence.1 I found Young and Dotson’s testimony consistent and
unequivocal. The mere failure of Dotson to recall Sellers’ statement that they had a right to
reapply does not affect his credibility. Moreover, the witnesses provided plausible reasons for
their acceptance of Sellers’ judgment of their welding tests. They also conceded during the
hearing that their applications were inaccurate, because they had attempted to hide their work
for union employers. Finally, there is no evidence showing that the applicants were motivated
by financial interests other than to gain employment and to organize the employer.
Allegations Relating to Tony Tarlton
Tarlton had been working for Kamtech at Owensboro since May 1996. In June 1996, Tarl-
ton began to discuss organizing the job with other employees. The Union prepared a letter,
dated June 19, 1996, listing 14 union organizers and informing John Webster of the organizing
effort (GC Exh. 2). Tarlton delivered the letter early on June 19, 1996, to Webster and began to
wear union insignia right after the delivery of the letter. According to Tarlton’s testimony,
General Foreman David Umstead and Foreman Haberzettle walked up to Tarlton laughing and
Umstead saying to him, “if [you] was union, why don’t [you] go work at a union job” (Tr. 42).
Umstead denied making that comment. He also denied noticing Tarlton’s union button. I
found his testimony unconvincing and credit Tarlton’s testimony. However, contrary to the
General Counsel’s and the Union’s arguments, I find that the remark was not coercive under the
circumstances. The record clearly shows that Umstead was laughing at the time he made the
comment. Indeed, Tarlton retorted, asking Umstead if he was harassing him, because of the
union button, Umstead, retreating, laughed and walked off. I find that the comment was made
more in jest than in an attempt to coerce the employee. I accordingly dismiss the allegation.
Allegations Relating to Mark Rountree
Working initially as a carpenter for Kamtech in December 1995, Rountree was transferred
to the piping crew in early 1996. General Foreman Umstead assigned him to piping foreman,
Haberzettle for about 3 weeks. He was then transferred to Foreman Browning until his dis-
charge on June 19, 1996. During that time, Browning assigned work to him, supervised him,
and disciplined him. Rountree worked together with a helper named Kenneth Lee. In his daily
routine, Rountree obtained his work assignments from Browning. Rountree worked with Lee
who would often remain with the assigned task longer in order to finish it up, while Rountree
would proceed to his next assignment.
In early June, Rountree learned from another employee, Tony Tarlton, that the Union in-
tended to organize the employees at the Owensboro project. Also discussed among the em-
ployees was a union meeting scheduled for June 18, 1996. Rountree discussed the Union and
the union meeting with other employees. On the morning of June 18, 1996, Rountree was
approached by Respondent’s safety officer who had selected Rountree and others for a random
drug test. The testing, according to Rountree, took about 2 hours. When he returned to his
workstation, he found that Browning had given him a written reprimand for being away from
his work. When Rountree protested and tried to explain that he was gone for 2 hours because
of a drug test, Browning rejected his explanation and said that he needed to watch his step and
that the walls have ears and that he better watch what he got involved in. Rountree then
appealed to Webster to explain his side of the story. But Webster supported Browning’s action.
The General Counsel and the Charging Party submit that the Respondent violated Section
8(a)(1) of the Act by unlawfully creating the impression that the employees’ union activities
were under surveillance and that the disciplinary warning violated Section 8(a)(1) and (3) of the
Act.

1 Any display of belligerence did not come from any witnesses but
from Respondent’s counsel whose demeanor was often provocative and
unnecessarily confrontational towards the employee witnesses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 248
The Respondent argues that Browning was unaware of Rountree’s union sympathy that
Browning never made the comments attributed to him and that Rountree would have been
disciplined even in the absence of any union activity.
Rountree’s testimony impressed me as specific and consistent. He appeared certain and
convincing. I accordingly credit his recollection of the incident over Browning’s testimony to
the contrary. I further find that Browning’s references to walls having ears and to watch what
he got involved in, could only be referring to Rountree’s union sympathy and the union meeting
scheduled for the same day, June 18, 1996. Rountree’s scenario on that day is supported by the
testimony of David Frew, Respondent’s safety officer, as well as documentary evidence such as
a list of employees selected for the drug test as well as a sign-in log all of which show that
Rountree was indeed subjected to a random drug test on that day. Although Frew testified that
a drug test would usually not last more than 20 minutes, he conceded in his testimony that an
employee could be delayed if a nurse were tending to an injured employee.
On the basis of the record evidence and the credible testimony of Rountree, I find that
Browning’s conduct amounted to a violation of Section 8(a)(1) for creating the impression that
the employee’s conversations about the union were overheard by management and that it
engaged in unlawful surveillance of employees’ union activities. I further find that the General
Counsel has shown that the disciplinary warning issued by Browning was motivated by union
animus. Under Wright Line, supra, the Respondent has failed to show that other employees
were similarly reprimanded for being absent from the workstation because of any drug testing.
Neither Browning nor Webster bothered to check Rountree’s excuse for his delayed absence.
Brownings’ explanation for the discipline showed that he was warning the employee about his
union talk with fellow employees.
On the following day, June 19, 1996, Rountree engaged in more open union activity and
was ultimately discharged. Tony Tarlton, who was employed as a welder, delivered a letter
prepared by the Union to John Webster on that day informing him that several employees,
including Mark Rountree, Mike Cornell, and Tony Tarlton had become union organizers.
Rountree also had union stickers and authorization cards at work and wore union insignia.
According to Rountree, his supervisor Browning was suddenly “hound dogging” (observing)
him. He saw Browning as he kicked union material off Rountree’s lunch box. During the
morning break, Rountree began to distribute union authorization cards to other employees.
Browning came into the break area after about 5 minutes of the break had elapsed and when he
saw the union activity he ordered the employees to go back to work. Rountree protested saying
that they were only 5 minutes into the break. Browning replied, “I guess we have been too
good to you.” In short, the Respondent suddenly changed its break policy because the employ-
ees had engaged in union activity. Browning also told him, “its time for you to go to be at
work, you’re supposed to be working. . . . I’ve just got the job for your instigating ass” (Tr.
159). At that point he ordered Rountree to install anchor plates on a beam 14 feet from the
bottom. This task required the drilling of a hole into concrete in order to attach a steel plate.
There was an additional drop in height of 8 feet on the other side, so that the employee working
on top of a ladder with the necessary tools would risk a fall of about 22 feet without counting a
person’s height. The task required a drill too heavy for a one handed operation. Kenneth Lee
who testified for the Respondent and who worked with Rountree testified that the drilling
required the use of both hands, so that the person operating it would have to be “tied off” with a
harness.
In any case, Browning and Rountree briefly discussed the job and Rountree pointed out the
inherent danger of working on a ladder 14 feet high with a heavy drill, and suggested the use a
lift or a scaffold. Browning, however, told him that the scaffold material was in use and the
carpenters were too busy, and that he could not use the lift. He ordered Rountree to perform the
job instantly. At that point, Rountree stated that the job was unsafe. Browning and Rountree
proceeded to debate the issue until Rountree requested the presence of a safety officer. Brown-
ing called for John Webster.
According to Rountree, the safety officer, David Frew, initially agreed with him that the
assignment was unsafe, but when Webster appeared on the scene, Frew changed his position.
After conferring with Webster, Frew said that the job was extremely difficult and that Rountree
needed to exercise caution but that the job could be done. Webster then asked Rountree
whether he was going to do the job to which Rountree answered “not likely.” Webster then
said for Rountree to gather his tools because he was fired.
The testimony of Frew, Browning, and Webster differs from that of Rountree. Webster and
Browning testified that the assignment was not any more difficult or dangerous than those,
which Rountree had done in the past. Frew denied that he regarded the job as unsafe. He
testified that he had prepared written notes concerning the incident and that he found no reason
for Rountree not to be able to do the work and that the assignment did not present a safety
issue.
Ricky Cox a pipefitter with 12 years’ experience who had worked at three projects for
Kamtech in the past, testified about the incident because he had witnessed it. He described
Rountree’s assignment as follows (Tr. 253):

Well, they had him put some overhead hangers up and
they was drilling in concrete overhead and they wanted
him to do it on a ladder, which they had give him some
prior jobs to do, but he had scaffold, but they didn’t build
him no scaffold for this crew. They wanted him to do it
off a ladder.
Well, I was around when the foreman assigned him the
job. The foreman told him to drill the holes off the lad-
der?”

And when asked whether the task was safe he stated, “I wouldn’t have done it, I felt like it
would have been an unsafe task. I would not want to do it” (Tr. 255).
The work was ultimately done by someone else after a day or so, but according to Cox,
“Yes, there was a scaffold built when they would drill” (Tr. 255).
After Rountree had refused to do the job he gathered his tools as he was ordered. On his
way to the warehouse, Browning told him that it did not have to be this way “if he had stayed
out of this” and that he should have known that Kamtech would not accept “this” but get rid of
everybody involved. Browning handed Rountree the termination slip, which reflected that he
was discharged for insubordination (R. Exh. 4).
The issue whether Rountree’s discharge was motivated by union animus is highly con-
tested. Respondent’s witnesses, Webster, Browning, Frew, and Lee testified that Rountree’s
discharge was unrelated to his union activity. Rountree and Cox testified to the contrary. Cox,
for example, testified that his Supervisor Okie Lacy at the Hawesville project needed welders
and when he mentioned Rountree’s name, Lacy said, “we can’t hire him they’ve got him on a
list down here. He started some union problems out at Kimberly-Clark, trying to organize the
union” (Tr. 256).
Cox impressed me as the most impartial witness. He was neither a disgruntled employee,
nor had he anything to gain by his testimony. His demeanor impressed me as credible and to
the point. Lee had similarly nothing to gain from his testimony, but his testimony was not as
clear. For example, Lee testified, “we do jobs like that,” but then he equivocated, saying “it
could be done a lot easier and I’m sure a little safer if it had scaffolding built” and concluding
“I was glad that he [Browning] didn’t put me in that position that day” (Tr. 1077-78). On
balance, the record shows that management in Owensboro knew about Rountree’s union
support. They scrutinized his work and his union activities. The Respondent created the
impression of surveillance, shortened the breaktime and assigned him to more onerous working
conditions as a result of his union activity and for the same reason discharged him for his
refusal to work under unsafe conditions. The General Counsel has carried the burden under
Wright Line, 251 NLRB 1083 (1980). The Respondent tried, but failed to prove that anyone
was fired for refusing to perform a safe task. There was testimony, as well as documentary
evidence that employees were discharged for their refusal to perform assigned work. In this
regard, it is important to note that the Respondent did not assign the job which Rountree was
expected to do to any other employee. Instead, the work was ultimately accomplished by
building a scaffold. I, therefore, find that the Respondent violated Section 8(a)(1) and (3) of the
Act.
Allegations Relating to Tony Holcomb
On April 1, 1996, Holcomb was hired as a pipefitter with about 5 years’ experience. He
took a welding test to qualify as a welder, but he failed the test. He was then assigned as a fitter
to join Haberzettle’s crew. Haberzettle assigned work to Holcomb for 2 weeks, then Webster

KAMTECH, INC. 249
reassigned Holcomb to Foreman Craig Gaston’s crew. He worked on a water treatment system
for about 1 month under Gaston’s supervision. In early June 1996, Holcomb was assigned back
to Haberzettle. On June 6, 1996, Haberzettle gave Holcomb a written warning for “Failure to
perform work in a reasonable amount of time” (R. Exh. 8). Webster was aware of the repri-
mand because he had initiated it. Up to that point, Holcomb had not engaged in any union
activity. Indeed, he had rejected Mike Cornell’s solicitations on behalf of the Union.
On June 19, 1996, Holcomb signed a union authorization card and began to wear union but-
tons and stickers which identified him as member of the organizing committee. Shortly
thereafter, Haberzettle repeatedly referred to him as a “union punk” or “nothing but a union
punk.” These comments derogating an employee because of his union support were not
rebutted in the record. Such conduct interferes with the employees’ Section 7 rights and
violates Section 7 of the Act.
On or about July 12, 1996, General Foreman, Umstead transferred Holcomb from Haber-
zettle’s crew to the crew supervised by Buddy Thompson. Holcomb worked under Thomp-
son’s direction until July 22, 1996. During that time Holcomb was not reprimanded. Neverthe-
less, Thompson testified that Holcomb’s performance was deficient in the sense that he failed
to “field verify” the piping, that is he failed to properly align the prefabricated pipes to fit the
design. According to Thompson, Holcomb was also slow in his work.
On July 19, 1996, a Friday, Holcomb requested to leave work early for personal reasons.
Thompson granted Holcomb’s request provided that he finished a particular assignment.
Thompson had ordered him to finish fitting an 18-inch pipe between two connections. Hol-
comb had previously tried and failed to do the assignment properly. Webster had become
aware of Holcomb’s problems in finishing the work. It was this assignment which Thompson
had asked Holcomb to complete on that Friday, Thompson had told him that he needed that 18-
inch pipe done, to have it “out prepped and fit up for the welder.”
Holcomb left on that Friday without completing the assigned task. And Thompson finished
the job himself. On the same day, Thompson and Webster decided to discharge Holcomb.
Thompson prepared the termination notice on July 19, 1996. On Monday, July 22, 1996,
Thompson informed Holcomb that he was terminated because of unsatisfactory work. Hol-
comb refused to sign the termination notice and complained that his final check was short by a
half hour. Webster, according to Holcomb, said, “you and the union ain’t been nothing but a
pain in my ass since you’ve been there” (Tr. 211). Webster denied having made the statement.
Webster impressed me as too sophisticated to make such a comment even if he had har-
bored such a sentiment. Based on his demeanor, I credit Webster.
According to the General Counsel and the Union, the discharge was actually motivated by
the Respondent’s union animus and therefore violated Section 8(a)(1) and (3) of the Act.
Holcomb was a known union supporter and Haberzettle had shown his antiunion animus.
Holcomb could have been disciplined for his deficient work with a lesser penalty, short of a
discharge, although the record clearly supports a finding that Holcomb’s poor performance was
a motivating factor in the discharge. I accordingly find that the General Counsel has presented
a prima facie case. However, Holcomb was disciplined for his poor performance even prior to
his union activity. Assuming arguendo, that the General Counsel established a prima facie case
that the Respondent’s action against Holcomb was primarily based on the employer’s antiunion
sentiment, the Respondent has certainly carried the burden of showing that Holcomb would
have been discharged even in the absence of any union consideration. The record shows
without contradiction that Holcomb’s work was less than satisfactory. The Respondent had
assigned this employee to different foremen. They agreed that his work was poor. In my view,
the record shows that Holcomb was fired because he had an unsatisfactory work record and
then failed to complete the assigned work.
Allegations Relating to Michael Cornell
As an unemployed member of the National Transient Lodge, Michael Cornell called vari-
ous local unions, including Local 40 in early May 1996. Organizer, Gene Forkin told him to
see if Kamtech was hiring. Cornell called Kamtech, spoke to John Webster who inquired about
his work experience and reported for work on the following Monday, May 6, 1996. He went
through the application process, took a welding test and was assigned to Craig Gaston’s crew at
the waste water treatment project.
In June 1996, Cornell became involved with the Union’s effort to organize Kamtech. He
attended a union meeting, wore a union sticker, and volunteered to be a member of the organiz-
ing committee. The letter from Forkin which Tony Tarlton, another Kamtech employee,
delivered to Webster on June 19, 1996, included Cornell’s name as a member of the Union’s
organizing effort. On the first or second day of his open union support, Gaston made a com-
ment to Cornell “like that isn’t going to do any good, it’s a waste of time” (Tr. 75-76). Gaston
denied ever saying anything negative about the union to Cornell. Wayne Moore, who had
worked with Cornell as a helper, supported Gaston’s testimony to the extent that he Gaston
never said anything adverse about the Union and that he supported the employees’ rights to
engage in union activities. Supervisor Thomas similarly testified that to his knowledge Gaston
never made any adverse comments about the union.
My appraisal of the testimony of the witnesses on the issue of Gaston’s antiunion remark is
that Cornell and Thomas impressed me as credible. I believe Thomas’ statement that he had
not overheard any antiunion remarks made by Gaston. However, clearly Gaston could have
made such a comment out of Thomas’ earshot. Moore had been a county sheriff who had
subsequently worked for the Respondent on various projects. At Owensboro, Gaston had been
his foreman. Moore had been rehired by the Respondent only a few days prior to his testimony
in this case. And I do not regard him as an impartial witness. Based on his demeanor, I found
his testimony less than credible. Gaston’s testimony was vague on this issue. He merely
denied saying anything negative about the Union, although he conceded speaking to Cornell
about the Union. I accordingly credit Cornell and I find that the Respondent violated Section
8(a)(1) of the Act by indicating to the employee that the exercise of his Section 7 rights would
be futile.
Michael Cornell was laid off on July 1, 1996. Cornell testified that other employees were
similarly laid off even before his layoff, and the layoff is not alleged in the complaint as a
violation of the Act. However, on July 9, 1996, Cornell inquired at the Owensboro jobsite
about employment. A secretary told him that Respondent’s project at Hawesville needed
people. Cornell called the Hawesville jobsite stating that he was interested in a job as a welder
or pipefitter. He was asked whether he had worked for Kamtech before and said, yes, that he
had worked at the Owensboro project. Even though he provided his name and telephone
number and was told that Kamtech was hiring, he was not contacted. A few days later, he
called again and spoke to a secretary who referred him to Marvin Parks, assistant superinten-
dent. Parks confirmed that the Company was in the process of hiring and wanted to know
Cornell’s name and whether he had been employed previously by Kamtech. Parks assured
Cornell that he would call back, but the call never came. Cornell called a third time and spoke
to a person he identified as Mr. Wills, an apparent reference to Allen Wilson, the piping super-
intendent. Again he was assured that someone would call him back. At a fourth attempt,
Cornell identified himself to the secretary as “Arthur Cornell.” The superintendent, to whom
the secretary had referred the call, asked whether he was Michael Cornell. Cornell repeated
that he was “Arthur.” Again the superintendent said that he would get back with Cornell. But
Cornell never received a call from anyone at the Hawesville jobsite.
The reason for Respondent’s refusal to hire Cornell may have been explained by Ricky Cox
when he testified that superintendent Okie Lacy, referring to Rountree, said, “well we can’t hire
him, they’ve got him on a list down here. He started some union problems out at Kimberly-
Clark [Owensboro], trying to organize the union.” The same rationale is applicable to Cornell
who, like Rountree, was listed on the Union’s letter to Webster as a union organizer.
The Respondent’s witnesses Barry Roberts, project manager, and Superintendent Wilson
agreed that Cornell had called numerous times about a job. According to Roberts, he had
informed Cornell that he was not interested in structural welders but only “tig” welders or
combination welders. Roberts testified that Cornell had identified himself as a structural
welder in his first conversation and that if Cornell had represented himself to be a tig welder or
a combination welder, he would have been hired. Several weeks later, when Cornell had called
again, Cornell identified himself, as a tig welder, but Roberts did not believe him. According to
Roberts, tig welding is more complicated than structural welding and Cornell could not have
learned the skill in such a short time. Roberts believed that Cornell was lying and accordingly
decided not to give Cornell a chance to test his welding skills.
Wilson testified that during his conversation with Cornell, he had identified himself as a
structural welder, and had asked questions about the tig welding test. According to Wilson,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 250
Cornell gave several incorrect responses to some of Wilson’s questions involving the welding
test. This presumably revealed his lack of skills in the tig welding process.
Topper Thomas, one of the superintendents at the Owensboro project, similarly testified
about Cornell’s welding skills. According to Thomas, Cornell was not a tig welder and would
be unable to perform that kind of work. He testified that someone from the Hawesville project
had inquired about Cornell’s welding ability, but Thomas did not know the caller’s identity.
Roberts, who made the decision not to hire Cornell, did so without any recommendations from
anyone at the Owensboro project. He testified that he did not recall calling the Owensboro
project.
Roberts also testified that he was hiring tig welders at the time Cornell had made his efforts
to become employed.
On the basis of the record as summarized above, I find that the Respondent refused to hire
Cornell because of his union background. First, the Respondent had demonstrated its antiunion
animus in connection with the other violations of the Act. Second, the Respondent refused to
hire Rountree for union related reasons. Okie Lacey’s remark about the applicant’s name being
on a list in connection with the union is equally applicable to Cornell. Indeed, Cornell as a
former employee should have received preferential consideration pursuant to the Respondent’s
priority hiring system for former Kamtech employees. Third, the Respondent’s scenario about
Cornell’s lack of tig welding skills is implausible and unconvincing. While I believe Respon-
dent’s witnesses to the extent that the Hawesville project needed tig or combination welders,
the record shows that Respondent’s normal course of the hiring process would have included a
welding test. Applicants for welding jobs were never identified as tig welders or stickwelders
or combination welders at the initial screening process over the telephone. When the Respon-
dent needed welders, they were routinely asked to go through the hiring process, which in-
cluded a welding test. The test determined whether a welder was qualified or not. The General
Counsel has shown that Cornell, a welder with a good work record was not hired at the Hawes-
ville project because of his union affiliation. The Respondent was in the process of hiring
welders to fill available jobs. Cornell applied repeatedly as a former employee and, like other
applicants, should have been afforded the opportunity to take the welding test to determine
whether he was qualified as a welder suitable for employment at the Hawesville project.
The Respondent has failed to show that Cornell would not have been hired even in the ab-
sence of any union consideration. Wright Line, supra. The scenario that Cornell was not
qualified or lied about his ability is simply not credible. Roberts conceded in his testimony that
Cornell would have been hired if he had been a tig welder, which is an indication that jobs were
available.
Refusals To Hire or to Consider for Hire
Eight Union Applicants
On June 20, 1996, after meeting at a Holiday Inn in Owensboro, Eugene Forkin, the union
organizer, accompanied by seven union members who were unemployed, drove to Kamtech’s
Owensboro jobsite. There, Forkin and Michael Tucker went to the gate at the entrance to the
jobsite and called out to catch the attention of Respondent’s personnel inside the trailer. The
other men were instructed to stay in the car. Sabrina Schultz, the Company’s secretary, ap-
peared at the gate. Forkin told her that he was there with other applicants in search of work and
asked if Kamtech was hiring. According to Forkin, Schultz replied that they were hiring
welders and fitters. Forkin then requested to speak to John Webster and to take a letter to him.
Schultz took the letter and walked back into the trailer. The letter, dated June 30, 1996, ad-
dressed to Webster, identified all eight applicants by name and telephone number and stated
that they wished to be considered for employment and that they would exercise their rights to
organize in accordance with Section 7 of the Act (G.C. Exh. 4). Parenthetically, the applicants
had earlier agreed that “if they’re going to go in and go to work and put in application and get
hired, that they make a good hand for the company” (Tr. 520). Forkin testified that they “were
hoping [they] would get some people in there and show them [Kamtech] what kind of work
[they] could do” (Tr. 519).
After about 10 minutes, the secretary came back out to the fence and said that right now
there was a hiring freeze. Forkin then described the ensuing conversation (Tr. 524):

I asked her, I said, five minutes ago you told me you were
looking for fitters and welders. She says, well, he told me
to tell you that we have a hiring freeze on. I asked her if
John Webster had read the letter and she told me that he
had. I asked her again, I says, come on, tell me the truth,
be honest with me, five minutes ago you were out here
telling me that you needed fitters and welders and I says
now you have a hiring freeze. She said that’s just what he
told me to say. And that was the end of the conversation.

Michael Tucker who accompanied Forkin during the conversation with Schultz, generally
corroborated Forkin’s testimony, but he did not recollect Schultz’ initial remark that the Re-
spondent was hiring welders and fitters.
When asked whether the Respondent ever contacted him or anyone on that list for a job,
Forkin said, no.
The Respondent’s version of the job application by Forkin and the seven union members
differs in certain respects. Sabrina Schultz testified that she told the applicant as soon as she
was asked about the prospects for employment, “there wasn’t any openings” (Tr. 890).
I resolve the inconsistent testimony of the witnesses in favor of Schultz’ recollection of
what she said on that day, I found her to be credible and to be in a better position to recall what
she had said than any hearsay testimony to the contrary. Second, Tucker did not corroborate
Forkin’s testimony in that regard. Thirdly, the record is not inconsistent with her representation
to the applicants that the Company was not hiring. Project manager Kear testified, that by June
17, 1996, the paper machine at Owensboro was substantially completed, which permitted the
Respondent to reduce its work force. According to Kear, there was very little work left for
pipefitters and welders after June 17, 1996. The Respondent’s staffing reports show that
employment decreased between April 1996 and June 1996, from 216 to 152 field employees.
According to Kear, the trend continued ranging from 135 employees in July 1996, to 100 in
August 1996. Other documentary evidence shows that the number of welder positions at
Owensboro decreased from 33 welders in June to 25 welders in July 1996 (R. Exh. 52–66).
While the Respondent conceded that it hired a few individuals to replace those who had left
their jobs, the Respondent hired a total of 17 employees between June and August 1, 1996 (R.
Exh. 55). Six of those were hired as pipewelders and six were pipefitters. The testimony of
Kear and Johnny Miller, Respondent’s office manager shows that the replacement welders and
fitters were hired in accordance with the Company’s preferential hiring policy, and that most of
them were prior Kamtech employees.
The General Counsel and the Charging Party, nevertheless, argue that the record supports a
finding that the Respondent violated Section 8(a)(1) and (3) of the Act, because the eight union
applicants were not hired and not even considered for hire because of their union affiliation.
They argue that Forkin and the seven union applicants attempted to seek employment in the
same fashion as other applicants who were hired, that is by going to the jobsite looking for
work, but that the eight applicants were not permitted to fill out applications. They further
argue that the Respondent has demonstrated union animus and has refused to hire other indi-
viduals for that reason. According to the General Counsel, a prima facie case of discrimination
has been made by showing that the applicants filed employment applications, i.e. Forkin’s
letter, that the employer refused to hire the applicants, that they were suspected or known to be
union supporters and that other individuals without union affiliation were hired. Fluor Daniel,
Inc., 304 NLRB 970 (1991). The Charging Party submits that even if the record does not
support a refusal to hire, it is clear that a refusal to consider for hire has been established.
Here, the employer was faced with a mass application request, otherwise the eight union
applicants used an application process similar to that used by other successful candidates.
Clearly, it has been shown that the Respondent has refused to hire other applicants because of
union considerations. I also agree that the record shows that the applicants were amply quali-
fied as either welders or as pipefitters and that they would have been qualified to perform the
work available at the Owensboro jobsite. However, the record shows convincingly that the
Respondent was not in a hiring mode on June 20, 1996. The Respondent refused to afford
Forkin and his seven union members to fill out job applications, because the Respondent had no
immediate need for additional employees. On June 19, 1996, only one day earlier, the Respon-
dent had decided and was committed to hire two applicants. And on July 13, 1996, even
Schultz was laid off. According to her testimony, consistent with that of Kear and Miller, there

KAMTECH, INC. 251
was little hiring from late June onward. She also testified that prior to her layoff other crews
had been laid off. Although six welders and six fitters were hired in July and August 1996,
they were replacements. The record consisting of unrebutted documentary evidence shows that
one pipefitter reported for work on June 26, 1996. He had been engaged for employment by
Webster on June 19, 1996. The Respondent hired one fitter on July 1, 1996, and one welder on
July 15, 1996. Three fitters were hired on July 18 and July 23, 1996, and one welder was hired
on July 29, 1996. The actual hiring was accordingly not inconsistent with Respondent’s
representation on June 20, 1996, that it was not hiring. Moreover, the record further shows that
the employees hired were, with one exception, former employees of the Company. On balance
I find that the General Counsel has failed to make out a prima facie of discrimination. Under
Wright Line, supra, I further find that the Respondent has demonstrated that the eight applicants
would not have been hired even in the absence of any union considerations. They did not meet
the criteria under Kamtech’s preferential hiring policy. That policy was not shown on this
record to be discriminatory. I accordingly dismiss this aspect of the complaint.
CONCLUSIONS OF LAW
1. The Respondent Kamtech, Inc. is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. The Union, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers and Helpers, AFL–CIO, is a labor organization within the meaning of Section 2(13) of
the Act.
3. The Company’s foremen, John Webster, Okie Lacey, James Haberzettle, Bob Browning,
Jim Umstead, Craig Gaston, and Buddy Thomson were supervisors within the meaning of 2(11)
of the Act. Wilmer Sellers, quality control technician, was an agent within the meaning of
2(13) of the Act.
4. The Respondent violated Section 8(a)(1) of the Act by:
(a) Coercively interrogating applicants for employment about their union membership;
(b) Creating the impression among employees that their union activities were under sur-
veillance;
(c) Denigrating employees and calling them derogatory names because of their union ac-
tivities;
(d) Informing employees that their applications for employment would not by considered
because of their union affiliation;
(e) Informing employees that engaging in union activities would be futile.
5. The Respondent violated Section 8(a)(1) and (3) of the Act by:
(a) Issuing a written discipline to its employee Mark Rountree, because of his union sup-
port;
(b) Assigning more onerous working conditions to its employee Mark Rountree, because of
his union activities;
(c) Changing the length of employees’ breaks from 10 minutes to 5 minutes because of the
employees’ union activities;
(d) Discharging Mark Rountree, because of his union activities;
(e) Refusing to hire or consider for hire Mitch Dotson and Robert Young because of their
union affiliation.
(f) Refusing to hire or consider for hire Michael Cornell because of his union support.
6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent violated Section 8(a)(1) and (3) of the Act, 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. Having found that the Respondent unlawfully issued a written repri-
mand to Mark Rountree, assigned him to more onerous working conditions, changed the
breaktime, and terminated his employment, the Respondent must offer him reinstatement to his
former job or, if that job no longer exists, to a substantially identical position and make him
whole for any loss of wages or other benefits be suffered as a result of the discriminatory
actions against him in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950) and New
Horizons for the Retarded, 283 NLRB 1173 (1987). Having refused to hire or consider for hire
Mitch Dotson, Robert Young, and Michael Cornell, the Respondent must offer them jobs which
they were denied or, if these jobs no longer exist, to substantially equivalent positions at new
jobsites, if necessary, and make them whole for any loss of earnings and other benefits as a
result of the discrimination in accordance with the same authorities cited above.
[Recommended Order omitted from publication.]