Leiser Construction, LLC

National Labor Relations Board - Board Decisions

Feb 28, 2007

349 N.L.R.B. 413 (N.L.R.B. 2007)

LEISER CONSTRUCTION, LLC
349 NLRB No. 41
413
Leiser Construction, LLC and Iron Workers Local
Union No. 10, a/w International Association of
Bridge, Structural, Ornamental & Reinforcing
Iron Workers, AFL–CIO. Case 17–CA–23177
February 28, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On May 3, 2006, Administrative Law Judge Lawrence
W. Cullen issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed a limited exception, a supporting brief, and
an answering brief to the Respondent’s exceptions. The
Charging Party filed a limited cross-exception and a brief
in support of the cross-exception and in opposition to the
Respondent’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 in
part, to reverse them in part, and to adopt the recom-
mended Order as modified and set forth in full below.2
The judge found that the Respondent, a nonunion
company that performs ironwork in the construction of
commercial buildings, violated Section 8(a)(3) and (1) by
discharging and otherwise discriminating against em-
ployees David Coleman and Travis Williams because of
their union activity, by refusing to hire or consider for
hire union applicants Michael Bright and Richard Chris-
topherson, and by engaging in other coercive conduct.
As explained below, we affirm most of the judge’s unfair
labor practice findings. However, we reverse the judge’s
findings that the Respondent violated the Act by dis-
charging Williams and by prohibiting him from display-
ing a union sticker on his hardhat, and we find it unnec-
essary to pass on the refusal to consider Bright and
Christopherson for hire.
I. DISCHARGE OF DAVID COLEMAN
We adopt the judge’s finding that the Respondent vio-
lated Section 8(a)(3) and (1) by discharging employee

1 The Respondent has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 We shall modify the judge’s conclusions of law, remedy, and rec-
ommended Order and substitute a new notice to conform to our find-
ings and to the Board’s standard remedial language.
David Coleman because of his union activity.3 We agree
with the judge that the General Counsel established un-
der Wright Line4 that Coleman’s union activity was a
motivating factor in the Respondent’s decision to dis-
charge him. We also agree with the judge that the Re-
spondent failed to show that it would have discharged
Coleman even in the absence of his union activity.
In doing so, we reject the Respondent’s contention that
it discharged Coleman because he falsified his employ-
ment application by listing employers for whom he had
never worked. The record shows that this asserted justi-
fication was a pretext for discrimination. Coleman began
working for the Respondent in late December 2004,
without disclosing that he was a union organizer. It is
undisputed that the Respondent was pleased with Cole-
man’s work. On January 20, 2005, during lunch at a
local restaurant with Lloyd Leiser (the Respondent’s
owner and general manager) and other employees,
Coleman began handing out union cards. Coleman said,
“This is where the, this is where our relationship goes
south, Lloyd. . . . I’m an organizer man.” Leiser re-
sponded, “See ya.” Coleman then asked, “I’m fired?”
Leiser stated, “Yep, enjoy, good while it lasted.”
Thus, as soon as Coleman told Leiser that he was a un-
ion organizer, Leiser terminated him. Furthermore, Le-
iser told Coleman just a few minutes later that he would
not have hired Coleman if Coleman had revealed that he
was a union ironworker. Under these circumstances, we
find that the Respondent’s discharge of Coleman was not
motivated by Coleman’s falsification of his employment
history.5 See Solvay Iron Works, 341 NLRB 208 (2004)
(rejecting as pretextual the respondent’s defense that it
lawfully refused to hire an applicant because he misrep-
resented his name). Accordingly, we adopt the judge’s
finding that the Respondent violated Section 8(a)(3) and
(1) by discharging Coleman.6

3 We also agree with the judge, for the reasons stated in his decision,
that the Respondent violated Sec. 8(a)(1) by indicating to employees
that Coleman was discharged because of his union activity and by
telling Coleman that he would not have been hired if he had revealed
his union affiliation.
4 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
5 Because we reject the Respondent’s asserted justification as pretex-
tual, we need not address whether Coleman’s discharge would have
been lawful if the falsified employment history had been the real reason
for the discharge.
6 The Respondent contends that even if Coleman’s discharge was
unlawful, the Board should cut off backpay as of April 12, 2005, when
the Respondent contends that it offered to reinstate Coleman. We reject
that argument. Coleman denied that he was offered reinstatement, and
the judge credited his denial.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD414
II. ALLEGATIONS REGARDING TRAVIS WILLIAMS
We agree with the judge,7 for the reasons stated below,
that the Respondent violated Section 8(a)(1) by threaten-
ing employee Travis Williams with physical violence
because of his union activity.8
The judge also found that the Respondent violated
Section 8(a)(1) by prohibiting Williams from wearing a
union-related sticker on his hardhat and Section 8(a)(3)
and (1) by discharging Williams because of his union
activity. We reverse the judge and dismiss those allega-
tions.9
A. Facts
Williams, a union member who intended to organize
the Respondent’s employees, applied and interviewed for
a job with the Respondent on March 31, 2005. Lloyd
Leiser hired Williams, who began work on April 7, 2005.
Williams did not reveal his union affiliation during the
hiring process.
Leiser assigned Williams to a jobsite in Scott City,
Kansas, about 6 hours from Kansas City. On April 11,
2005, during his lunchbreak at the Scott City jobsite,
Williams put on a union T-shirt and a hardhat containing
union stickers and began distributing authorization cards.
Lloyd Leiser was not at the jobsite. When the Respon-
dent’s superintendent, Brian Muting, saw Williams’ un-
ion activity, Muting called Lloyd Leiser on the phone
and told him that Williams was a union member. Leiser
spoke to Williams on the phone and ordered Williams to
leave the Scott City jobsite within 15 minutes and to re-
port to another jobsite in Kansas City at 7 a.m. the next
morning.
On April 12, Williams reported to the Kansas City job-
site at about 6:30 a.m. Williams brought union organizer
and former Leiser employee David Coleman with him.
Williams wore his own hardhat, on which he displayed
several union stickers, including a sticker that depicted
someone or something urinating on a rat that was appar-
ently designated “non-union.”
Around 7 a.m., Lloyd Leiser and other employees
drove up to the jobsite. Williams began handing out un-
ion cards. Leiser told Williams that he wanted “to have a
little chat” with him. Williams asked Leiser why he had

7 For the reasons set forth in his partial dissent, Chairman Battista
finds that the Respondent did not unlawfully threaten Williams.
8 We also agree with the judge, for the reasons stated in his decision,
that the Respondent violated Sec. 8(a)(3) and (1) by suspending Wil-
liams because of his union activity and Sec. 8(a)(1) by interrogating
Williams during his job interview, by telling Williams that he was
suspended or prohibited from working because of his union activity,
and by threatening to retaliate against Williams for his union activity.
9 For the reasons stated in his separate dissent, Member Walsh
would affirm the judge and find both violations.
not allowed Williams to finish his workday in Scott City
the day before. According to Williams, Leiser replied
that he “didn’t want me talking about any of that union
bullshit to those guys and that there was a guy on that job
that could—that probably would have killed me.” Wil-
liams told Leiser that Williams was ready to go to work,
but Leiser said that “he wasn’t going to work me with . . .
that sticker on my hardhat.”10 Williams did not remove
the rat sticker. Another employee suggested to Leiser
that “we work the union guy . . . and see what the hell
union guys can do.” Williams testified that “Lloyd [Le-
iser] said, no, he don’t work with liars. He don’t run his
business that way.” Leiser then jumped on the back of a
truck along with another man. Williams walked over to
the two men and declared that he was “going on strike.”
Leiser said nothing. Williams started walking toward his
car, but then turned around and started walking back to-
ward the jobsite, at which point, Coleman told Williams
to “go ahead and go home.” Williams left.
B. Threat of Physical Violence
The judge found, and we agree, that the Respondent
violated Section 8(a)(1) by threatening Williams with
physical violence because of his union activity. When
Williams asked Leiser why Leiser had suspended him
from the Scott City jobsite, Leiser said that “there was a
guy on that job that could—that probably would have
killed” Williams for talking about the Union. Leiser
made this statement only a day after telling Williams,
upon learning of his union activity, that Leiser “[knew]
how to take care of people like [Williams].”
At the hearing, Leiser testified that the “guy” who
“would have killed” Williams was an employee who was
adamantly antiunion because he had been assaulted years
earlier by union members in Pennsylvania.11 However,
Leiser did not explain these circumstances to Williams.
Instead, Leiser simply told Williams that Williams would
be subject to physical harm at the Scott City jobsite for
exercising his Section 7 rights. Contrary to our col-
league, we find that a reasonable employee would not
interpret Leiser’s statement as merely explaining a be-
nevolent attempt to remove Williams from harm’s way.
Rather, to a reasonable employee in Williams’ situation,
Leiser’s words would convey that Williams’ union activ-
ity could lead to physical harm. Accordingly, we adopt
the judge’s finding that Leiser’s statement would rea-
sonably tend to interfere with, restrain, or coerce Wil-

10 It is not clear from the record whether Leiser expressly told Wil-
liams that “that sticker” meant the rat sticker. However, Williams did
not ask Leiser which sticker he meant, nor has Williams ever claimed
not to know that Leiser was referring to the rat sticker.
11 According to Leiser, the employee told Leiser that the employee
would “rather kill [Williams] than work with him.”
LEISER CONSTRUCTION, LLC 415
liams in the free exercise of his protected rights in viola-
tion of Section 8(a)(1). See, e.g., NLRB v. Illinois Tool
Works, 153 F.2d 811, 814 (7th Cir. 1946) (test of an
8(a)(1) violation does not turn on the employer’s motive,
but on “whether the employer engaged in conduct which,
it may reasonably be said, tends to interfere with the free
exercise of employee rights under the Act”).
C. Hardhat Sticker
The judge found that the Respondent violated Section
8(a)(1) by prohibiting Williams from displaying the rat
sticker on his hardhat. We disagree.
An employee generally has a protected right under
Section 7 to wear union insignia at work. Republic Avia-
tion Corp. v. NLRB, 324 U.S. 793 (1945). “Section 7
rights, however, may give way when ‘special circum-
stances’ override the employees’ Section 7 interests and
legitimize the regulation” of such insignia. Komatsu
America Corp., 342 NLRB 649, 650 (2004). Special
circumstances may include, inter alia, situations in which
the insignia are vulgar or obscene12 or may “exacerbate
employee dissension”13 or situations in which restriction
of the insignia “is necessary to maintain decorum and
discipline among employees.”14 In cases in which the
employer argues that special circumstances justify a ban
on union insignia, the Board and courts balance the em-
ployee’s right to engage in union activities against the
employer’s right to maintain discipline or to achieve
other legitimate business objectives, under the existing
circumstances. Albis Plastics, 335 NLRB 923, 924
(2001).
It is the employer’s burden to prove special circum-
stances. W San Diego, 348 NLRB No. 24, slip op. at 2
(2006); Inland Counties Legal Services, 317 NLRB 941,
942 (1995). Considering the vulgar and obscene nature
of the rat sticker and the narrowness of the Respondent’s
restriction, we find that the Respondent has met that bur-
den here.
First, the sticker was unquestionably vulgar and ob-
scene. The Board and courts have recognized an em-
ployer’s right to restrict the display of such insignia. See
Southwestern Bell, supra at 670 (“[i]n view of the con-
troversial language used and its admitted susceptibility to
derisive and profane construction,” respondent did not
violate Section 8(a)(1) by banning a sweatshirt stating
“Ma Bell is a Cheap Mother”); NLRB v. Mead Corp., 73

12 See Southwestern Bell Telephone Co., 200 NLRB 667, 670 (1972)
(respondent lawfully banned sweatshirt stating “Ma Bell is a Cheap
Mother”).
13 Komatsu, supra at 650 (respondent lawfully banned a t-shirt that
“invoked a highly charged and inflammatory comparison” between the
respondent’s outsourcing plans and the 1941 Pearl Harbor attack).
14 Id.
F.3d 74, 79 (6th Cir. 1996) (special circumstances arise
where, inter alia, “the slogans are patently offensive or
vulgar”).15 Contrary to our dissenting colleague’s sug-
gestion, the fact that vulgar language was sometimes
used in the Respondent’s workplace does not preclude
the Respondent from restricting vulgar or obscene insig-
nia. See Southwestern Bell, supra at 671 (distinguishing
the occasional use of obscene language in workplace
conversation from “continuously displaying what could
admittedly be construed . . . as obscenities directed at
management during the entire 7 or 8-hour workday.”).16
Second, and significantly, the Respondent’s restriction
was narrowly tailored to prohibit only the rat sticker,
without infringing on Williams’ right to display other
union-related insignia. The fact that the Respondent did
not ask Williams to remove any of the other numerous
union-related stickers on his hardhat militates against a
finding that the Respondent’s limited restriction on one
vulgar and obscene sticker was unlawful. See Sacred
Heart Medical Center, 347 NLRB 531, 534 (2006) (re-
spondent’s tolerance of other union buttons militated
against a finding that a restriction on one particular but-
ton raising patient-care issues was unlawful); Komatsu,
supra at 650 (noting that the union had displayed other
insignia without objection); Southwestern Bell, supra at
671 (noting that employees displayed other insignia
without company objection).17
Accordingly, we reverse the judge and dismiss the al-
legation that the Respondent violated Section 8(a)(1) by
prohibiting Williams from displaying the rat sticker.
D. Alleged Discharge of Williams
The judge found that the Respondent violated Section
8(a)(3) and (1) by discharging employee Travis Williams
on April 12, 2005, because of his union activity. Be-
cause the General Counsel failed to prove that Williams
was discharged, we reverse the judge and dismiss that
allegation.
“Where an unlawful discharge is alleged, it is self-
evident that the General Counsel must show, first and
foremost, a discharge.” Nations Rent, Inc., 342 NLRB

15 Although our colleague takes issue with our reliance on South-
western Bell, the case is well-established Board precedent dating back
over 30 years, and we see no reason to depart from it here.
16 Contrary to our colleague, we also do not find the lack of evidence
of a dress code or customer contact significant. Our finding of special
circumstances is not based on the Respondent’s concerns about its
public image, but on the sticker’s vulgar and obscene nature.
17 Of course, a ban on particular union insignia is not lawful simply
because it fails to prohibit all union insignia. However, in evaluating a
claim of special circumstances, we must balance the employer’s legiti-
mate interests against the employees’ Sec. 7 rights. See W San Diego,
supra, slip op. at 4–5; Albis, supra at 924. The narrowness of the intru-
sion on Williams’ rights is a relevant factor in balancing those interests.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD416
179 (2004). The standard is whether the employer’s
words or actions “would logically lead a prudent person
to believe his [or her] tenure has been terminated.” Id.
(quoting North American Dismantling Corp., 331 NLRB
1557 (2000), enfd. in relevant part 35 Fed. Appx. 132
(6th Cir. 2002)). Formal words of firing are not neces-
sary. Id. To determine what a prudent person would
logically believe as to his employment status, it is neces-
sary to consider “the entire course of relevant events”
from the employee’s perspective. Id.
Having examined the entire course of relevant events,
we find that the General Counsel has not proven, by a
preponderance of the evidence, that Williams was dis-
charged. On April 11, even after learning that Williams
was a union organizer, Leiser told Williams to report to
the Kansas City jobsite at 7 the next morning. On April
12, when Leiser arrived at the jobsite and saw the rat
sticker displayed on Williams’ hardhat, he told Williams
that he could not work with “that sticker” on his hardhat.
The clear implication was that Williams would be per-
mitted to work if he removed the sticker. Another em-
ployee then suggested that Leiser “work the union guy.”
Leiser responded—to that individual, not to Williams—
that Leiser “[did not] work with liars.” Williams then
told Leiser that he was “on strike.” Leiser said nothing;
he did not contradict Williams or otherwise question
Williams’ characterization of his status as “on strike.”
Williams started to leave, but then turned around and
started walking back toward the jobsite. Former em-
ployee Coleman—not Leiser—told Williams to “go
ahead and go home,” and Williams left.
Relying on Leiser’s statement that he “[does not] work
with liars,” our colleague contends that the Respondent’s
conduct would have led a prudent employee to believe
that he was discharged, or at least would have created “a
climate of ambiguity and confusion” that would leave a
prudent employee to believe that his job status was ques-
tionable. We disagree. Leiser had already stated to Wil-
liams that he was not permitted to work with “that
sticker,” i.e., the rat sticker, on his hardhat, implying that
he could work if he removed it. Thus, Williams knew
precisely the condition placed on his ability to resume his
work with the Respondent. We find that Leiser’s subse-
quent remark to another employee about working with
liars was insufficient to cause a reasonable employee to
believe that his job status had changed or was in ques-
tion. After Leiser’s remark, as before it, the Respon-
dent’s sole requirement was the removal of the sticker.
Instead, Williams stated that he was “on strike.” Obvi-
ously, a strike is an employee’s refusal to work, not an
employer’s refusal to permit the employee to work.
Thus, viewing events from the employee’s perspective,
even after hearing Leiser’s comment, Williams himself
did not, and reasonably would not, believe that he was
discharged.18
Moreover, in response to Williams’ statement that he
was going on strike, Leiser said nothing. He did not con-
tradict Williams or otherwise insist that Williams was
terminated. It was Coleman, not Leiser, who eventually
told Williams to “go ahead and go home.” The Respon-
dent’s silence in the face of Williams’ declaration that he
was “on strike” would, to a reasonable employee, indi-
cate that the employer acquiesced in the employee’s po-
sition that he was on strike and was not terminated.19
In support of the contention that Williams was dis-
charged, our colleague lists the unfair labor practices
committed against Williams. We agree that Williams’
suspension and certain coercive statements made to him
were unlawful. If the Respondent had in fact discharged
Williams, such conduct would be relevant to the issue of
discriminatory motive. However, it does not alter our
determination that the facts in this proceeding fail to
show that Williams was discharged.20
Based on the above, we cannot conclude that the Gen-
eral Counsel has proven a discharge. Accordingly, we
dismiss the allegation that the Respondent discharged
Williams in violation of Section 8(a)(3) and (1).

18 Our colleague contends that Williams’ claim to be “on strike” is
not inconsistent with a belief that he was discharged, because Williams
could have meant that he intended to protest his discharge. This is pure
speculation. The General Counsel, who had the burden to prove a
discharge, failed to elicit any testimony from Williams explaining his
“on strike” comment.
Our colleague also observes that Williams testified that he was
“fired” by Leiser. We find this conclusory after-the-fact testimony, in
response to a leading question, less meaningful than Williams’ state-
ments and actions at the time of the alleged discharge.
19 Flat Dog Productions, Inc., 331 NLRB 1571 (2000), enfd. 34 Fed.
Appx. 548 (9th Cir. 2002), cited by our colleague, is distinguishable.
The Board in that case found a discharge on the basis that the Respon-
dent’s acts created “a climate of ambiguity and confusion which rea-
sonably caused strikers to believe that they were discharged or, at the
very least, that their employment status was questionable because of
their strike activity.” Id. at 1571. In Flat Dog, the Respondent con-
tinually flip-flopped between telling the strikers that they were termi-
nated and telling them that they could return to work. Here, Leiser’s
conduct did not change back and forth. Morever, based on Williams’
declaration that he was on strike, Williams did not harbor confusion or
uncertainty as to his job status.
20 The General Counsel is not contending that there was a construc-
tive discharge, i.e., that unlawful conduct caused Williams to quit. Nor
does the General Counsel allege that Williams quit rather than remove
the sticker. To the contrary, the General Counsel alleges that Williams
was discharged by the Respondent.
Similarly, the General Counsel does not allege that Williams quit
rather than comply with the directive to remove the union sticker.
Again, the allegation is that Williams was discharged.
LEISER CONSTRUCTION, LLC 417
III. REFUSAL TO HIRE BRIGHT AND CHRISTOPHERSON
As explained in the judge’s decision, union organizers
Michael Bright and Richard Christopherson submitted
applications to the Respondent in late February 2005 in
response to the Respondent’s advertisement for iron-
workers and structural steel erectors. We agree with the
judge that the Respondent violated Section 8(a)(3) and
(1) by refusing to hire Bright and Christopherson.21
In a refusal-to-hire case, the General Counsel must
prove:
(1) that the respondent was hiring, or had concrete
plans to hire, at the time of the alleged unlawful con-
duct; (2) that the applicants had experience or training
relevant to the announced or generally known require-
ments of the positions for hire, or in the alternative, that
the employer has not adhered uniformly to such re-
quirements, or that the requirements were themselves
pretextual or were applied as a pretext for discrimina-
tion; and (3) that antiunion animus contributed to the
decision not to hire the applicants.
Dynasteel Corp., 346 NLRB 86, 89 (2005); FES, 331
NLRB 9, 12 (2000), enfd. 301 F.3d 83 (3d Cir. 2002). Once
the General Counsel makes this initial showing, the burden
shifts to the respondent to show that it would not have hired
the applicants even in the absence of their union activity.
FES, supra at 12.
We agree with the judge that the General Counsel car-
ried his initial burden.
First, as explained in the judge’s decision, Bright and
Christopherson had ample relevant training and experi-
ence.
Second, the Respondent was hiring when it refused to
hire Bright and Christopherson. Bright’s and Christo-
pherson’s applications were dated February 24, 2005.
The Respondent had advertised for employees in late
January and early February.22 In a February 21 tele-
phone conversation, the Respondent’s secretary, Tracy
Thompson, told Christopherson that the Respondent was
still hiring. Sandra Leiser does not recall exactly when
she received Bright’s and Christopherson’s applications,
except that it was sometime after February 24 or 25. The

21 We also agree with the judge, for the reasons stated in his deci-
sion, that the Respondent violated Sec. 8(a)(1) by telling Christopher-
son during a February 1, 2005 telephone call that his union affiliation
would affect his chances to be hired.
We find it unnecessary to pass on the judge’s finding that the Re-
spondent violated Sec. 8(a)(3) and (1) by refusing to consider Bright
and Christopherson for hire. The remedy for that violation would be
subsumed within the broader remedy for the refusal-to-hire violation.
See American Residential Services of Indiana, 345 NLRB 995, 996 fn.
2 (2005); Sommer Awning Co., 332 NLRB 1318, 1319 fn. 4 (2000).
22 All further dates are in 2005 unless otherwise specified.
Respondent contends that by this time, it had filled the
available openings by hiring three applicants: David
Byrd (application dated February 5), Todd Skinner (ap-
plication dated February 11), and Doug Foster (applica-
tion date unknown). Although it does appear that these
three employees were hired before the Respondent re-
ceived Bright’s and Christopherson’s applications, the
record also shows that the Respondent began hiring again
shortly after Bright and Christopherson applied. New
hire Doug Foster was supposed to report for work around
March 1, but did not show up. Sandra Leiser then began
looking for a certified welder to take his place. She ulti-
mately hired Jeff Barnum, whose application was dated
March 1. Furthermore, the Respondent hired additional
employees throughout the rest of 2005. Travis Williams
was interviewed and hired around March 31. Lloyd Le-
iser testified that the Respondent was looking for a certi-
fied welder and a laborer around that time. The Respon-
dent also advertised for employees in June, September,
and November, and hired about nine employees between
June and December.23
Third, we agree with the judge that antiunion animus
was a factor in the refusal to hire.24 The Respondent
contends that antiunion animus was not a factor, because
the Respondent had filled all of its openings before it
received Bright’s and Christopherson’s applications, and
therefore simply filed their applications away with others
received during the same time period. The Respondent
argues that when an opening arose in early March due to
Foster’s failure to show up, Sandra Leiser hired Barnum,
to whom she had spoken by phone on February 25, be-
fore receiving Bright’s and Christopherson’s applica-
tions.
We reject the Respondent’s argument. First, although
Sandra Leiser may have spoken to Barnum on February
25, her only testimony about that conversation is that she
returned Barnum’s telephone message asking for an ap-
plication. There is no evidence of any commitment to
hire him. Sandra Leiser had also talked to Christopher-
son on the phone when he called on February 1 to re-
quest an application. Second, Sandra Leiser admitted

23 Bright and Christopherson submitted their applications in late Feb-
ruary. Although Sandra Leiser testified that she did not consider appli-
cations more than 30–60 days old, the judge discredited that testimony,
and there are no exceptions to that credibility determination.
24 As the judge found, the Respondent’s other violations of Sec.
8(a)(3) and (1) during the same time period as the refusal to hire dem-
onstrate animus. However, in finding animus, Chairman Battista and
Member Schaumber do not rely, as the judge did, on the discharge of
Travis Williams, because they dismiss the allegation that Williams was
unlawfully discharged. Member Walsh would not dismiss that allega-
tion. He therefore agrees with the judge that it is additional evidence of
animus.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD418
that she may have looked through her file of existing
applications before hiring Barnum, which file, according
to Sandra Leiser, would have contained Bright’s and
Christopherson’s applications. Third, as noted above, the
Respondent advertised additional job openings in June,
September, and November and hired additional employ-
ees during that time period.
Accordingly, for the foregoing reasons, we find that
the General Counsel carried his initial burden to prove an
unlawful refusal to hire.
We also agree with the judge that the Respondent
failed to show that it would not have hired Bright and
Christopherson even in the absence of their union activ-
ity. In addition to Barnum, the Respondent hired about
10 employees, including discriminatee Travis Williams,
after Bright and Christopherson applied.25 Although
some of the new hires were former employees or refer-
rals, for whom the Respondent claimed it had a legiti-
mate hiring preference, several others were not. Of those
who were not, the Respondent has not explained why
they would have been hired over Bright and Christopher-
son.26
In sum, we agree with the judge that the General
Counsel carried his initial burden under FES, and that the
Respondent failed to prove that it would have not have
hired Bright and Christopherson even in the absence of
their union activity. We therefore affirm the judge’s
findings that the Respondent violated Section 8(a)(3) and
(1) by refusing to hire Bright and Christopherson.
AMENDED CONCLUSIONS OF LAW
1. Delete the judge’s conclusion of law 3(g) and relet-
ter the subsequent paragraph.
2. Substitute the following for the judge’s conclusion
of law 4.
“The Respondent violated Section 8(a)(3) and (1) of
the Act by its suspension of employee Travis Williams,
by its discharge of employee David Coleman, and by its
refusal to hire applicants Richard Christopherson and
Michael Bright because of their union membership and
their engagement in union and other protected concerted
activities.”

25 The judge found that the Respondent hired 13 employees after
Bright and Christopherson applied. However, the judge appears to be
including Byrd, Skinner, and Foster, who were hired before Bright and
Christopherson applied.
26 We do not rely on the judge’s finding that the Respondent’s
claimed hiring preference for prior employees and referrals was “un-
supported” because it was not set forth in the employee manual. Nev-
ertheless, even assuming the Respondent had such a policy, it would
not justify the failure to hire Bright and Christopherson. As explained
above, the Respondent hired other employees after Bright and Christo-
pherson applied who were not prior employees or referrals.
AMENDED REMEDY
The General Counsel and Charging Party except to the
judge’s failure to provide instatement and make-whole
relief for Bright and Christopherson in the remedy sec-
tion of his decision and the judge’s failure to provide
make-whole relief in the notice.27 We find merit in this
exception, and we amend the remedy and notice accord-
ingly. We shall order the Respondent to offer Bright and
Christopherson intstatement to the positions for which
they applied. If those positions no longer exist, the Re-
spondent shall offer them employment in substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges they would have enjoyed
absent the discrimination against them. Furthermore, we
shall order that Bright and Christopherson be made
whole for any loss of earnings or other benefits suffered
as a result of the discrimination against them. Backpay
shall be computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).28
ORDER
The National Labor Relations Board orders that the
Respondent, Leiser Construction, LLC, Madison, Kan-
sas, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling employees that it has discharged employees
because of their union affiliation and other protected
concerted activities.
(b) Telling employees that it would not hire employee-
applicants who are affiliated with a union or who engage
in other protected concerted activities.
(c) Coercively interrogating employees about their un-
ion affiliation and union membership, activities, and
sympathies.
(d) Telling employees that it had suspended its em-
ployees and/or prohibited its employees from working
because of their union and other protected concerted ac-
tivities.

27 The judge properly included both instatement and make-whole re-
lief in his recommended Order.
28 The judge recommended a broad cease-and-desist order. Chair-
man Battista and Member Walsh adopt that recommendation in the
absence of exceptions. Member Schaumber dissents from the issuance
of a broad cease-and-desist order. As fully set forth in his dissenting
opinion in Postal Service, 345 NLRB 409 (2005), Member Schaumber
notes that the Supreme Court has made clear that broad orders must be
reserved for egregious cases in which the violations are so severe or so
numerous and varied as to truly manifest a general disregard for em-
ployees’ fundamental employee rights. NLRB v. Express Publishing
Co., 312 U.S. 426 (1941); Hickmott Foods, Inc., 242 NLRB 1357
(1979). In his view, this is not such a case.
LEISER CONSTRUCTION, LLC 419
(e) Threatening employees with reprisals and retalia-
tion because of their union and other protected activities.
(f) Threatening its employees with physical violence
because of their union and other protected activities.
(g) Telling employee applicants that their union affilia-
tion and their union and other protected activities would
affect their chances to be hired by the Respondent.
(h) Suspending, discharging, or otherwise discriminat-
ing against its employees in retaliation for their union or
other protected concerted activities.
(i) Failing or refusing to hire applicants because of
their union affiliation or its belief or suspicion that they
may engage in union activities once they are hired.
(j) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed 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
David Coleman full reinstatement to his former job, or if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Within 14 days from the date of this Order, offer
Michael Bright and Richard Christopherson instatement
to the positions for which they applied or, if those posi-
tions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges they would have enjoyed absent the
discrimination against them.
(c) Make Michael Bright, Richard Christopherson,
David Coleman, and Travis Williams whole for any loss
of earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in
the remedy section of the decision.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful suspension,
discharge, and refusals to hire the above-named dis-
criminatees, and within 3 days thereafter, notify them in
writing that this has been done and that the unlawful ac-
tions will not be used against them in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Madison, Kansas, copies of the attached
notice marked “Appendix.”29 Copies of the notice, on
forms provided by the Regional Director for Region 17,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily 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, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, or sold the business or the
facilities involved herein, the Respondent shall duplicate
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 January 20, 2005.
(g) 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.
CHAIRMAN BATTISTA, dissenting in part.
Contrary to my colleagues, I would not find that the
Respondent threatened employee Travis Williams with
physical violence in violation of Section 8(a)(1).
Lloyd Leiser, the Respondent’s owner and general
manager, spoke with Williams at the 87th and Lackman
jobsite on April 12, 2005, the day after Williams’ sus-
pension from the Scott City, Kansas jobsite.1 Leiser in-
formed Williams that he had removed him from the Scott
City jobsite because he didn’t want Williams talking any
of that “union bullshit” to the group and that a guy there
“probably would have kill(ed) him.” At the hearing,
Leiser testified that his remark referred to an employee at
the Scott City jobsite whom he knew to be vehemently
antiunion.
My colleagues find that, by this statement, Leiser
threatened physical retaliation against Williams. On the
contrary, Leiser was simply saying to Williams that he
was concerned that the other employee might take action
against Williams, and that the removal of Williams took
Williams out of harm’s way. Thus, Leiser’s statement
would be perceived by a reasonable employee as demon-
strating an unwillingness to expose Williams to physical
harm, not a threat to do so. Accordingly, I would find

29 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.”
1 I agree with my colleagues that Williams’ suspension was unlaw-
ful.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD420
that the Respondent made no threat of physical violence
and I would dismiss this allegation.
MEMBER WALSH, dissenting in part.
On April 12, 2005, after unlawfully suspending em-
ployee Travis Williams and subjecting him to unlawful
threats, the Respondent’s owner, Lloyd Leiser, refused to
put Williams to work. Leiser said that he “[did not] work
with liars,” an obvious reference to Williams’ refusal to
disclose his union membership when Leiser unlawfully
interrogated Williams just 2 weeks earlier. A reasonable
employee in Williams’ situation would believe that he
was discharged, or at the very least, that his employment
status was questionable because of his union activity.
Accordingly, the judge correctly found that Williams was
discharged in violation of Section 8(a)(3) and (1). I dis-
sent from the majority’s dismissal of that allegation.1
The fact of a discharge does not depend on formal
words of firing. North American Dismantling Corp., 331
NLRB 1557 (2000), enfd. in relevant part and remanded
35 Fed. Appx. 132 (6th Cir. 2002). “It is sufficient if the
words or action of the employer ‘would logically lead a
prudent person to believe his tenure has been termi-
nated.’” North American, supra at 1557 (quoting NLRB
v. Trumbull Asphalt Co., 327 F.2d 841, 843 (8th Cir.
1964)). Furthermore, if the employer’s acts “created a
climate of ambiguity and confusion which reasonably
caused [employees] to believe they were discharged or,
at the very least, that their employment status was ques-
tionable because of their [protected] activity, the burden
of the results of that ambiguity must fall on the em-
ployer.” Flat Dog Productions, Inc., 331 NLRB 1571
(2000), enfd. 34 Fed. Appx. 548 (9th Cir. 2002). The

1 I join the majority decision in all other respects, except for the dis-
missal of the allegation that the Respondent violated Sec. 8(a)(1) by
prohibiting Williams from displaying the rat sticker on his hardhat. I
would affirm the judge and adopt the violation. Although the sticker
was vulgar, the record shows that vulgar language by both management
and employees was common in the Respondent’s workplace. There-
fore, the sticker does not appear to be out of line with the workplace
culture. Furthermore, there is no evidence that the Respondent had any
rules governing employee apparel or that Williams had any contact
with the public. Thus, there is no evidence that the sticker would harm
the Respondent’s public image.
In finding special circumstances, the majority relies on Komatsu
America Corp., 342 NLRB 649 (2004), and Southwestern Bell Tele-
phone Co., 200 NLRB 667 (1972). I dissented in Komatsu, and I ad-
here to my dissent. In any event, Komatsu is distinguishable. The
majority in that case emphasized the Union’s “clear appeal to ethnic
prejudices,” an issue not present here. Regarding Southwestern Bell, I
view that decision as poorly reasoned and something of an aberration,
as stated in my dissent in Honda of America Mfg., 334 NLRB 746, 750
fn. 2 (2001).
Accordingly, I would adopt the judge’s finding that the Respondent
violated Sec. 8(a)(1) by prohibiting Williams from displaying the
sticker.
Board considers the entire course of relevant events from
the employee’s perspective. Nations Rent, 342 NLRB
179, 180 (2004). Here, Leiser’s words and actions logi-
cally would have led Williams to conclude that he was
terminated on April 12.
The events of April 12 unfolded against a background
of hostile and unlawful antiunion activity directed at Wil-
liams. During Williams’ job interview on March 31,
Leiser coercively interrogated him about whether he was
“affiliated with any unions.” On April 11, Leiser learned
for the first time that Williams was a union organizer and
immediately suspended him and threatened him with
retaliation. Leiser told Williams to be on the Kansas
City job the next morning and not to “worry about what
you’ll be doing. You’ll do what I tell you.” On April 12,
shortly before the alleged discharge, the Respondent also
threatened Williams with physical violence, telling him
that another employee “probably would have killed”
Williams for talking about the Union. As stated in the
majority decision, the Board has found that the interroga-
tion, suspension, and threats were unlawful. This con-
duct clearly conveyed to Williams that the Respondent
was willing to threaten and retaliate against him for en-
gaging in union activity.2
When Leiser arrived at the jobsite on the morning of
April 12, he saw that Williams was there with David
Coleman, a union organizer whom the Respondent had
unlawfully discharged a few months earlier. Leiser an-
nounced to the other employees: “These guys here are
union organizers. They’re real fond of what they do, and
they’ll lie to you.” Leiser told Williams that the reason
he wanted Williams there was “to have a little chat.”
Williams then asked why he had been suspended the day
before, and Leiser made the statement that a Scott City
employee “probably would have killed” Williams. Wil-
liams stated that he was ready to work, but Leiser said
that Williams could not work with “that sticker” on his
hardhat. In Williams’ presence, another employee asked
Leiser to “work the union guy and see what . . . union
guys can do.” Leiser’s response was unequivocal. He
stated: “No, [I] don’t work with liars. [I] don’t run [my]
business that way.” Leiser then walked away. Williams
followed him and stated that he was “going on strike.”
Leiser never retracted his statement about not “work[ing]
with liars” or his refusal to put Williams to work.
Thus, over a period of less than 24 hours, Williams
was unlawfully suspended and threatened with violence

2 Moreover, it is reasonable to infer that Williams knew that em-
ployee David Coleman had been discharged after revealing his union
affiliation. Williams was organizing under Coleman’s direction, and
Coleman accompanied Williams to the jobsite on the date of Williams’
alleged discharge.
LEISER CONSTRUCTION, LLC 421
and retaliation for his union activity. The Respondent
then unequivocally refused to allow him to work, on the
basis that the Respondent “[did not] work with liars.”
Under these circumstances, a prudent employee would
conclude that he had been discharged.3
The majority makes too much of Williams’ statement
that he was “going on strike.” First, Williams had al-
ready been effectively discharged when he made that
statement. Second, Williams testified that he was “fired”
by Leiser, which contradicts the majority’s conclusion
that Williams did not believe that he had been dis-
charged. Third, declaring himself to be “on strike” could
simply have meant that Williams intended to protest a
discharge he felt was wrong.4 In short, the statement
does not preclude a finding that a reasonable employee
would believe that he was discharged.
Nor does Leiser’s silence after the strike comment un-
dermine a finding that Williams was discharged. Leiser
had already announced that he “[did not] work with li-
ars” and walked away. His failure to say anything else to
Williams does not erase the effect of his earlier words.
At the very least, Leiser’s conduct “created a climate
of ambiguity and confusion” that reasonably caused Wil-
liams to believe that his employment status was ques-
tionable because of his union activity. Flat Dog, supra at
1571. Relying on Leiser’s statement that Williams could
not work with “that sticker” on his hardhat, the majority
erroneously finds that Williams “knew precisely the con-
dition placed on his ability to resume his work.” Assum-
ing arguendo, as the majority contends, that Leiser’s

3 The majority notes that Leiser ordered Williams to report to the
Kansas City jobsite even after learning that Williams was a union mem-
ber. However, based on Leiser’s statement to Williams on April 11 not
to “worry about what [he’ll] be doing” and Leiser’s statement on April
12 that the reason he wanted Williams there was “to have a little chat,”
it would not have been clear to Williams whether Leiser intended to put
him to work at the Kansas City site.
The majority also contends that the Respondent’s unlawful suspen-
sion and 8(a)(1) violations with respect to Williams are relevant only to
discriminatory motive, not to whether Williams was discharged. In
determining whether a discharge occurred, however, the Board must
view the events from the employee’s perspective. That perspective
includes the series of unlawful antiunion acts directed at Williams that
preceded his alleged discharge. A reasonable employee in Williams’
situation would naturally consider his recent treatment by the Respon-
dent in forming the belief that he had been discharged.
4 The majority also observes that after Williams said he was going
on strike and walked away, he turned around and began walking back
to the jobsite, until Coleman told him to go home. To the extent the
majority suggests that Williams was coming back to work and therefore
must not have believed that he had been discharged, the evidence does
not support such a finding. Leiser testified that Williams was not wear-
ing a hardhat at this time and had “dropped his stuff off at the car.”
Coleman’s statement to Williams to “go ahead and go home” is consis-
tent with a belief by Coleman—who witnessed the events—that Wil-
liams had been discharged.
statement implied that Williams could work if he re-
moved the sticker, Leiser then indicated just the opposite
by stating “No, [I] don’t work with liars.” Those were
the Respondent’s last words on the matter. Therefore, it
would not be at all clear to a reasonable employee that he
could resume work if he removed the sticker. Instead,
the Respondent’s contradictory messages would lead a
reasonable employee to believe that his job status was
questionable. The Respondent had the burden to remove
that uncertainty and clarify Williams’ status. Flat Dog,
supra. It plainly failed to do so. Accordingly, the judge
correctly found that the Respondent discharged Williams
in violation of Section 8(a)(3) and (1).
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 Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT tell employees that we have discharged
employees because of their union affiliation and other
protected concerted activities.
WE WILL NOT tell employees that we will not hire em-
ployee-applicants who are affiliated with a union or who
engage in other protected concerted activities.
WE WILL NOT coercively interrogate employees about
their union affiliation and union membership, activities,
and sympathies.
WE WILL NOT tell employees that they are suspended
and/or prohibited from working because of their union
and other protected concerted activities.
WE WILL NOT threaten employees with reprisals and re-
taliation because of their union and other protected ac-
tivities.
WE WILL NOT threaten employees with physical vio-
lence because of their union and other protected activi-
ties.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD422
WE WILL NOT tell employee applicants that their union
affiliation and their union and other protected activities
would affect their chances to be hired by us.
WE WILL NOT suspend, discharge, or otherwise dis-
criminate against employees in retaliation for their union
or other protected concerted activities.
WE WILL NOT fail or refuse to hire applicants because
of their union affiliation or our belief or suspicion that
they may engage in union activities once they are hired.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of the rights
set forth above.
WE WILL, within 14 days from the date of the Board’s
Order, offer David Coleman full reinstatement to his
former job, or if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL, within 14 days from the date of the Board’s
Order, offer Michael Bright and Richard Christopherson
instatement to the positions for which they applied or, if
those positions no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges they would have enjoyed absent
the discrimination against them.
WE WILL make Michael Bright, Richard Christopher-
son, David Coleman, and Travis Williams whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against them, less any net interim
earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful suspension, discharge, and refusals to hire the above-
named discriminatees, and within 3 days thereafter, no-
tify them in writing that this has been done and that the
unlawful actions will not be used against them in any
way.
LEISER CONSTRUCTION, LLC
Anne Peressin, Esq. for the General Counsel.
Thomas M. Moore, Esq., for the Respondent.
Michael J. Stapp, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me in Overland Park, Kansas, on January
31, and February 1, 2006. The complaint is based on an
amended charge filed by Iron Workers Local Union No. 10,
affiliated with International Association of Bridge, Structural,
Ornamental & Reinforcing Iron Workers, AFL–CIO (the Union
or the Charging Party) with the National Labor Relations Board
(the Board) and alleges that Leiser Construction, LLC (the
Respondent or Leiser Construction) has committed violations
of Section 8(a)(1) and (3) of the National Labor Relations Act
(the Act). The complaint is joined by the answer filed by the
Respondent wherein it denies the commission of any violations
of the Act.
After due consideration of the testimony and evidence re-
ceived at the hearing and the briefs filed by the parties, I make
the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. THE BUSINESS OF THE RESPONDENT
The complaint alleges, Respondent admits and I find that at
all times material herein the Respondent is and has been a cor-
poration, with an office and place of business in Madison, Kan-
sas, and it has been engaged in the construction industry pro-
viding construction services including steel erection services to
commercial enterprises, that during the 12-month period ending
December 31, 2004, Respondent in conducting its business
operations, purchased and received at its Madison facility
goods valued in excess of $50,000 directly from points located
outside the State of Kansas, and performed services valued in
excess of $50,000 in states other than the State of Kansas and
that Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that at
all times material herein, the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
This case involves the Union’s efforts to organize Respon-
dent’s ironworker employees and the Respondent’s response to
these activities. Lloyd Leiser and his wife Sandra Leiser are
management employees of Respondent and the owners of Re-
spondent. Lloyd Leiser is the general manager of Respondent
and Sandra Leiser is the office manager of Respondent. Both
Lloyd and Sandra Leiser are Section 2(11) supervisors and
Section 2(13) agents of Respondent under the Act. Respondent
has been in business approximately 10 years and performs
ironwork for the construction of commercial buildings. It is a
nonunion company and performs ironwork primarily in the
western portion of Missouri and in Kansas. Typically Respon-
dent employs approximately 10 individuals in the field per-
forming ironwork in two or more crews under the direction of
leadmen and working foremen, all of whom report to Lloyd
Leiser. Respondent’s office in Madison, Kansas, is staffed by
Sandra Leiser and her receptionist and secretary Tracy Thomp-
son and her assistant Sheena Scheck. Lloyd Leiser spends vir-
tually all of his time in the field overseeing the crews and ob-
taining material and keeping the crews supplied with necessary
equipment and material. Lloyd and Sandra Leiser keep in con-
tact by phone during the workday. Lloyd checks into projects to
be bid and forwards this information to Sandra Leiser who
prepares bids for new contracts. Respondent receives applica-
tions for employment at the office and applicants are often
interviewed initially by Sandra Leiser who sorts through these
applications to cull down the applicants to those that appear to
have the most experience for the work. On a typical month
when Respondent has not advertised for employees, it may
LEISER CONSTRUCTION, LLC 423
receive about 10 applications at the office. During periods
when Respondent has advertised in local newspapers for candi-
dates, it may receive 30 applications in a week. Sandra Leiser
apprises Lloyd of the promising candidates for hire and they
make decisions together. On occasion Sandra may make the
hiring decision herself. Respondent maintains an employee
manual which encompasses various rules and employment
policies. Both Lloyd and Sandra Leiser testified they do not
generally follow the manual but rather handle matters on a
case-by-case basis.
In December 2004, union organizer David Coleman learned
of a steel erection job at the Oak Grove Middle School in Kan-
sas City, Missouri, which was being constructed by the Re-
spondent. He went to the jobsite and spoke to Lloyd Leiser
about employment. He filled out a job application using false
references of nonunion contractors so as not to be identified as
a union supporter or member. He was hired by Leiser and
worked there approximately a month prior to his discharge by
Lloyd Leiser on January 20, 2005, when he identified himself
as a union organizer and attempted to hand out union cards to
other employees following their lunch at a restaurant. His dis-
charge by Lloyd Leiser was immediate.
Prior to this, Union President, Organizer, and Assistant Busi-
ness Agent Richard Christopherson went to Respondent’s job-
site which was off of 7 Highway, Perimeter Park on January 11,
2005, and spoke to Lloyd Leiser who had been previously de-
scribed to him by Coleman. He saw Coleman on the job but
neither he nor Coleman acknowledged each other. Christopher-
son gave Lloyd Leiser one of his union business cards and
spoke to him about Respondent becoming a signatory to the
Union’s contract with companies performing steel erection
work in the Union’s territory and told him that he could send
him some ironworkers. Leiser told him he had tried this in De-
troit and had received nothing but bad help out of that hiring
hall. Christopherson told him the Union had a lot of good help
he could send him. Leiser said he was not interested.
On February 1, 2005, Christopherson telephoned Respon-
dent’s office in Madison, Kansas, and spoke to Sandra Leiser
and asked if Respondent was taking applications for ironwork-
ers. She told him they were and that they had plenty of work.
He asked her if she could send him two applications as he had a
“buddy” who might also want to apply. She asked him why
they had not gone through the Iron Workers Union that repre-
sented the iron workers in the Kansas City area as he had given
her a Kansas City address as to where to send the applications.
He asked her if it would make a difference if they were union
members and she said sure it would. He told her that he and his
buddy Michael Bright were union organizers and intended to
organize Respondent. He asked her if they could receive appli-
cations and she agreed to send them applications. However by
February 21, 2005, they had not received the applications.
Christopherson telephoned Respondent’s office again and
this time spoke to Respondent’s secretary Tracy Thompson and
told her he had spoken to Sandra who had told him she would
send them applications but that they had not received them.
Tracy agreed to send them two more applications which were
received a few days thereafter. Both Christopherson and Bright
partially filled out the applications which were sent to the Re-
spondent. There were several places on the applications for
them to list the most recent employers with their job title and
rate of pay. Christopherson put down that he had been an iron-
worker for 24 years and listed his ironworker apprenticeship
and various certifications and his current union position as or-
ganizer of the Union and business agent but he did not list the
names of any employers. Bright did the same thing on his ap-
plication, claiming 28 years of iron working experience his
ironworker apprenticeship and various certifications and his
current position as the Union’s business agent and organizer but
not listing any employers. The applications were sent in on
about February 24 and received by the Respondent about that
date. This was during a period when Respondent was hiring.
However Christopherson and Bright were never contacted by
the Respondent.
The complaint alleges Respondent violated Section 8(a)(1)
of the Act as follows:
(a) On January 20, 2005, at the Shorthorn Restaurant by tell-
ing its employees that it had discharged employees because of
their union affiliation and other protected concerted activities.
(b) On January 20, 2005, at the West Star jobsite telling em-
ployees that it would not hire employee-applicants who were
affiliated with a union or who engaged in union or other pro-
tected concerted activities.
(c) On March 31, 2005, at the 87th and Lackman jobsite in-
terrogating its employees about their union affiliation and union
membership, activities and sympathies.
(d) On April 11, 2005, in a telephone conversation and on
April 12, 2005, at 87th and Lackman jobsite telling employees
that it had suspended its employees and/or prohibiting its em-
ployees from working because of their union and other pro-
tected concerted activities.
(e) In a telephone conversation on April 11, 2005, and on
April 12, 2005, at its 87th and Lackman jobsite threatening its
employees with reprisal and retaliation because of their union
and other protected concerted activities.
(f) On April 12, 2005, at its 87th and Lackman jobsite threat-
ening employees with physical violence because of their union
and other protected concerted activities.
(g) On April 12, 2005, at its 87th and Lackman jobsite pro-
hibiting employees from wearing union emblems or logos at
work.
(h) During a telephone conversation wherein Sandra Leiser
on February 1, 2005, told employee-applicants that their union
affiliation and their union and other protected concerted activi-
ties would adversely affect their chances to be hired by Re-
spondent.
I find the Respondent violated Section 8(a)(1) of the Act as
follows:
(a) and (b) On January 20, 2005, at the Shorthorn Restaurant,
Lloyd Leiser discharged employee David Coleman after Cole-
man disclosed that he was a union organizer, Leiser told Cole-
man he was fired because he was an organizer, Lloyd said, “see
you.” When Coleman asked if he was fired, Lloyd said, “Yep.
Good while it lasted.” After this Coleman returned to the job
site to return Lloyd’s hard hat to him. At that point Coleman
asked Leiser if he would have hired him if he had informed him
he was a union ironworker and Leiser said, “No.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD424
In the above instances Leiser’s comments to Coleman that he
was discharged and would not be hired because of his union
affiliation were made in the presence of Leiser’s employees and
were inherently coercive and violative of Section 8(a)(1) of the
Act.
(c) Travis Williams testified that on March 31, 2005, he met
with Lloyd Leiser in an interview for a job and that during the
interview Leiser asked him if he was affiliated with any unions
in the area.
I find that the inquiry about Williams’ affiliation with any
unions in the area during a job interview was inherently coer-
cive and violative of Section 8(a)(1) of the Act.
(d) through (g) On April 11, 2005, Travis Williams dis-
closed he was a voluntary union organizer and attempted to
organize the other employees at the Scott City, Kansas jobsite
where he was working. Respondent’s superintendent, Brian
Muting, to whom he had disclosed his intentions said that he
needed to call Lloyd Leiser and commented that “Lloyd is
probably going to do to you what he did to the last person.”
Muting called Lloyd and said, “They did it again. He’s a mem-
ber of the Local.” Muting then told Williams that he needed to
drive back to Kansas City and be on Lloyd’s job at 7 o’clock in
the morning. Williams did not know which job was Lloyds.
Muting then called Lloyd again and Lloyd said to be at the 87th
and Lackman job. Muting then gave the phone to Williams and
Lloyd said, “you weaseled your way in didn’t you.” He said,
“That’s all right. I know how to take care of people like you.
You just be on my job at 7 o’clock in the morning and don’t
worry about what you’ll be doing. You’ll do what I tell you.
You’ve got 15 minutes to get off that job.” Lloyd was yelling
when he made the above comments. Williams then left the
jobsite.
On the next day Williams went to the 87th and Lackman job
site accompanied by Coleman as Williams was apprehensive of
what Lloyd might do. Leiser showed up about 7 o’clock. There
were other employees on the jobsite. Williams told them he was
a member of the Union and that he was there to organize the
Respondent and offered them union cards. He told Leiser he
was there to work. Leiser said, “Well, the reason I want you
here is to have a little chat.” Leiser also said he did not want
Williams talking about any of “that Union bullshit” to those
guys and that there was a guy on that job that “probably would
have killed me.” Williams told Leiser he was there to work.
Leiser said he was not going to work him with the union sticker
on his hard hat. Another employee suggested that they work
Williams to see what he can do and “Lloyd said, no, he don’t
work with liars.” Williams then left and told another person
standing there that he was going on strike.
I find the foregoing evidence supports a finding that Respon-
dent violated Section 8(a)(1) of the Act on April 11 and 12,
2005, by telling Williams in the presence of other employees
that he was suspended or to leave the jobsite on April 11 and
was refused the right to work on April 12. On both occasions
Leiser’s comments were threats of reprisal and retaliation be-
cause of their union and other protected concerted activities. On
April 12, Leiser’s comments to Williams that someone on that
job would have probably killed him was a threat of physical
violence. The prohibition to Williams by Leiser on April 12,
that he could not work while wearing a union sticker on his
hardhat was also violative of Section 8(a)(1) of the Act.
(h) The comments made by Sandra Leiser during a telephone
conversation with Union Business Agent Richard Christopher-
son that his union affiliation and that of Business Agent Mi-
chael Bright would affect their chances for employment vio-
lated Section 8(a)(1) of the Act.
The Discharge of David Coleman
David Coleman is a full-time organizer for the Union. In
early December 2004, he learned from another union member
that the Respondent was engaged in a job at the Oak Grove
Middle School in Kansas City, Missouri. He discussed this with
Richard Christopherson who is the Union’s assistant business
agent, president and organizer and with Michael Bright who is
Respondent’s business agent and organizer. It was decided that
Coleman would apply for a position with Respondent as an
ironworker. Coleman approached Owner Lloyd Leiser on the
jobsite seeking employment as an ironworker. Leiser gave him
an application and he filled it out and returned it to Leiser. Al-
though Coleman had considerable experience as an ironworker
through work at various contractors through referrals by the
Union, he did not list any union employers. During his initial
discussion with Leiser, he was told by Leiser that Respondent
was a nonunion company and he indicated this was not a prob-
lem. Coleman was hired and worked at the Oak Grove jobsite
from December 30, 2004, until January 20, 2005. By the ac-
counts of both Lloyd Leiser and Coleman, Coleman did good
work and this was acknowledged by Leiser. On January 20,
2005, Coleman went to lunch with Lloyd Leiser and several
other crew members at the “Shorthorn” restaurant. Immediately
after lunch, Coleman told Lloyd Leiser, “this is where our rela-
tionship goes south” and proceeded to hand out union cards. He
also told Leiser, “I’m an organizer, man.” Leiser said, “See
you.” Coleman asked, “I’m fired?” “Leiser said, “Yep. Good
while it lasted.” Coleman then returned separately to the jobsite
to retrieve his tools and to return Lloyd Leiser’s hardhat which
had been left in Coleman’s vehicle as Leiser had rode with
Coleman to the restaurant. On his return to the jobsite he spoke
with Leiser and asked him if he would have hired him if he had
disclosed his union membership to him and Lloyd said, “No!”
At the hearing Leiser did not dispute the foregoing testimony of
Coleman but testified he offered to return Coleman to work.
Coleman denied this. I credit Coleman. Leiser contended that
he had discharged Coleman for falsifying his application. It is
undisputed that Leiser had not checked Coleman’s references.
It also appears from the record that Respondent does not usu-
ally check the references of applicants it hires.
The Suspension and Discharge of Travis Williams
Employee Travis Williams testified that in December of
2004, he observed a Leiser construction jobsite off of 7 High-
way and 83rd Streets. In February 2005, he went to this jobsite
and asked an employee named Jim Wills if Respondent was
hiring. Wills told him he thought they were hiring and gave him
the office telephone number. He called the telephone number
and talked to a lady named Tracy and asked her if Respondent
was hiring. She told him they were hiring and said she would
mail him an application. He received an application a couple of
LEISER CONSTRUCTION, LLC 425
days later. He had worked for union companies prior to this and
wrote down these employers’ names as references on the appli-
cation. After he received the application he went to the union
hall and spoke to Coleman who told him Respondent would
probably not hire him with the union references on the applica-
tion. He had already called Tracy and asked her to send him
another application which he received a couple days later. He
filled out the second application without the union references
on it and sent this to Respondent. He wrote “ironworker” on the
top of the application where it asks the position being applied
for. Williams listed three nonunion employers where he had
worked including himself as self-employed. Under the category
of skills on the application he listed welding, metal side barns,
tie bar, torch work, woodwork, metal roofs and electrical work
all of which he has done. He also has several skills which he
did not list which involve the ironworking trade such as he has
batted up, worked with cranes and I-levels and completed the 3-
year ironworker apprenticeship program. He omitted these
skills so as not to reveal his union affiliation. He mailed the
application to Respondent and did not initially hear from Re-
spondent. He telephoned and again talked to Tracy who said
they were still hiring. She found his application and called him
back and asked him to come in for an interview with Lloyd
Leiser. He met with Lloyd Leiser at the Sunrise Assisted Living
facility at 87th and Lackman jobsite wearing a recording device
and tape recorded the conversation he had with Lloyd Leiser.
The tape and transcript thereof were introduced into evidence
and reflect Williams’ recollection of the conversation. He did
not reveal any of his union work history to Leiser. During the
conversation Leiser asked him if he was affiliated with any
union in the area. Leiser told him that he had no experience at
the type of work involved but he thought he would give Wil-
liams a “shot.” Leiser told Williams he needed to talk to his
wife Sandra and they would probably get hold of him in a day
or two with wages. Tracy telephoned him the next day. She
offered him $11 per hour and he accepted this. He went to the
Respondent’s office in Madison, Kansas, and was given a drug
test and he went through a safety oriented class on April 4,
2005. He commenced work with Respondent on April 7, 2005,
a Thursday, and was assigned to the Scott City, Kansas jobsite.
He also worked on April 8, a Friday. He did not work Saturday
or Sunday. He worked on Monday, April 11th at the Scott City
job. He worked with two other employees known to him as
Brian Muting and Dan. After lunch on that date he called
Coleman to apprise him he was going to hand out union au-
thorization cards. He put on his regular hardhat which had a
number of union stickers on it and a long-sleeved T-shirt which
had “ironworkers” on it and went over to Brian’s truck and told
Brian he was a member of Iron Workers Local 10 and was
there to organize Leiser Construction and offered him an au-
thorization card. Brian declined to take the card. He then went
to Dan’s truck and told him the same thing and offered him a
card and Dan declined to take it. He then went back to his vehi-
cle, put on Leiser’s hardhat, and safety glasses and his other
shirt and tried to return to work. Brian stopped him and said he
needed to call Lloyd first and see what Lloyd wanted to do.
Brian said, “Lloyd is probably going to do to you what he did
to the last person.” Brian called Lloyd and said, “They did it
again. He’s a member of the Local.” Brian got off the phone
and told him that he should be on Lloyd’s job at 7 a.m. in the
morning. He (Williams) did not know which job, Lloyd wanted
him at, so Brian called Lloyd again and Lloyd said he wanted
him at the 87th and Lackman job. Brian then told him that
Lloyd wanted to talk to him and handed him the phone. Lloyd
said, “You weaseled your way in, didn’t you?” and “That’s all
right. I know how to take care of people like you. You just be
on my job at 7 o’clock in the morning and don’t worry about
what you’ll be doing. You’ll do what I tell you. You’ve got 15
minutes to get off that job.” Williams then left.
Williams testified that he asked Coleman to meet him at the
87th and Lackman jobsite on the next morning as he feared
there might be a fight and he was scared. Williams and Cole-
man met at the jobsite at 6:30 a.m. the next morning, and both
parked across the street. Williams had his tools and his hardhat
on. Coleman placed some literature regarding the Union’s
wages and benefits on Respondent’s equipment. Leiser arrived
around 7 a.m. with a passenger in his truck and three or four
more cars pulled up at the same time. Leiser parked his truck
about six feet from Williams and a passenger got out of Le-
iser’s truck and the other employees began to gather there. Wil-
liams told them he was a member of Local 10 and was there to
help organize the Respondent and offered them authorization
cards. He told Leiser he was there ready to go to work. Leiser
said, “Well, the reason I want you here is to have a little chat.”
Leiser told Williams he had told him to leave the jobsite yester-
day because he didn’t want him talking any of that “Union
bullshit” to the group and there was a guy on that job that
“probably would have kill(ed)” him. Williams told Lloyd he
was there to work. Lloyd told him that he would not permit him
to return to work with the sticker on the hardhat which Wil-
liams was wearing. Lloyd testified that the hardhat had a car-
toon on it that depicted someone urinating on a rat identified as
a nonunion construction firm. Lloyd said he did not work with
liars and did not run his business that way. Williams began to
leave but turned back and told Lloyd he was going on strike
and then left.
ANALYSIS
I find that General Counsel has established a prima facie
case that both Coleman and Williams were unlawfully dis-
charged because of their union affiliation and engagement in
protected concerted activity. In both cases these two employees
were hired by Respondent upon the submission of job applica-
tions to Respondent and after having been interviewed by Re-
spondent. In the case of Coleman it is undisputed that he was
praised for doing good work by Lloyd Leiser. In the case of
Williams it is undisputed that no work performance issues were
involved in his discharge. However, once Lloyd Leiser learned
of their union membership and their attempt to organize Re-
spondent’s employees, Coleman was immediately discharged
and Williams was immediately suspended and discharged on
the next morning.
In NLRB v. Town & Country Electric, 516 U.S. 85 (1995) the
United States Supreme Court recognized that the rights of un-
ion organizers to apply for jobs and to hold those jobs are pro-
tected by Section 7 of the Act. Their union organizer status
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD426
does not diminish their rights to the protection of Section 7 of
the Act. In the instant case the evidence clearly establishes that
Coleman and Williams did not commit any act which would
deprive them of the protection of the Act. Clearly they were
discharged because of their engagement in protected concerted
activities and their status as union organizers.
Under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982), the Gen-
eral Counsel has the initial burden to establish that:
1. The employees engaged in protected concerted ac-
tivities.
2. The employer had knowledge or at least suspicion
of the employees’ protected activities.
3. The employer took adverse action against the em-
ployees.
4. A nexus or link between the protected activities and
the adverse action underlying motive.
Once these four elements have been established, the burden
shifts to the Respondent to prove, by a preponderance of the
evidence that it took the action for a legitimate non-
discriminatory business reason. In Fluor Daniel, Inc., 304
NLRB 970 (1991), the Board said that once the General Coun-
sel makes a prima facie case that protected conduct was a moti-
vating factor in the employer’s decision, the burden shifts to the
employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct.
In the instant case all of the elements set out in Wright Line,
above, as also addressed by Fluor Daniel, above, have been
satisfied. The undisputed testimony establishes that Coleman
and Williams were engaged in protected concerted activities in
their efforts to organize Respondent’s employees. Lloyd Leiser
became aware of this and immediately discharged Coleman and
immediately suspended Williams and discharged him the next
morning for their engagement in their efforts to organize Re-
spondent’s employees, thus establishing the nexus between the
protected activities and the adverse action underlying motive. I
find that the General Counsel has established prima facie cases
of violations of Section 8(a)(1) and (3) of the Act and that Re-
spondent has failed to rebut the prima facie cases by the pre-
ponderance of the evidence.
The Refusal to Hire/Consider for Hire
The Respondent ran ads in local newspapers advertising for
ironworkers between December 20, 2004, and November 2005,
it hired 13 ironworkers following the filing of the applications
of Christopherson and Bright. The Respondent’s records show
it accepted applications from several employees who had sub-
mitted applications after Christopherson and Bright submitted
their applications and who were hired. Both Christopherson’s
and Bright’s applications showed 24 years and 28 years of
ironwork experience respectively although they did not list any
of their employers but referenced only their status as union
officials.
The elements that General Counsel must prove to establish a
refusal-to-consider for hire are:
(1) the employer excluded applicants from the hiring
process and
(2) antiunion animus was a contributing factor for the
employer’s failure or refusal to consider the applicants for
hire. FES, 331 NLRB 9, 15 (2000). Once these two ele-
ments have been established, the burden shifts to the em-
ployer to prove that it would not have considered the ap-
plicants in the absence of their union activities. Wright
Line, above.
The elements of a refusal-to-hire case are:
(1) that the employer was hiring, or had concrete plans to hire,
at the time of the alleged unlawful conduct; (2) that the appli-
cants had experience or training relevant to the announced or
generally known requirements of the positions for hire, or in
the alternative, that the employer has not adhered uniformly to
such requirements, or that the requirements were themselves
pretextual or were applied as a pretext for discrimination and
(3) that antiunion animus contributed to the decision not to
hire the applicants. FES, supra; Wright Line, supra, FES, 331
NLRB 9, 12 (2001), enfd. 301 F.3d 83 (3d Cir. 2002).
In the instant case I find that the General Counsel has estab-
lished a prima facie case of the refusal to consider for hire alle-
gation and the refusal to hire allegation. Christopherson’s tes-
timony is unrebutted. He contacted Respondent by telephone on
February 1, 2005, spoke to Sandra Leiser and asked for applica-
tions for himself and Bright. He disclosed to Sandra Leiser that
he and Bright were union organizers and asked whether this
would make a difference and Sandra Leiser said well sure it
would and laughed and then said at least I can send you an
application. When the applications were not received by Chris-
topherson and Bright, Christopherson called Respondent again
on February 21, 2005, and spoke to Sandra Leiser’s secretary
Tracy. She agreed to send them applications which they re-
ceived in a couple days. Christopherson did not tell Tracy that
he and Bright were union organizers prior to this request. Other
employees such as Travis Williams on two occasions and ap-
plicant Steve Miller asked for applications and received them
within a couple days. Although Christopherson and Bright filed
their applications on about February 24, 2005, they have never
been contacted by Respondent as of the date of the hearing in
this case, although they clearly appear more qualified on the
basis of their claimed experience than any other applicant
whom Respondent hired between December 2004, and the date
of the hearing. Both Christopherson and Bright have completed
their 3-year apprenticeship and have over 20 years of iron-
worker experience and have welding and other certifications.
Sandra Leiser told Christopherson that Respondent was looking
for welding experience and Tracy told him they were still look-
ing to fill the positions for which Respondent had advertised in
various local newspapers during the period from December
2004 to February in 2006. Respondent’s antiunion animus has
been demonstrated by the independent 8(a)(1) violations in-
cluding interrogation concerning applicant Travis Williams’
union affiliation, threats of retaliation and physical violence and
statements made by Lloyd Leiser that he would not hire union
members and Sandra Leiser’s statement to Christopherson that
his and Bright’s status as union organizers would make a dif-
ference (presumably a negative one) in their chances for hire.
Additionally the Respondent’s animus is demonstrated by the
LEISER CONSTRUCTION, LLC 427
two Section 8(a)(1) and (3) cases wherein Coleman was dis-
charged immediately upon his disclosure that he was a union
organizer and Travis Williams was immediately suspended and
discharged the next morning after he disclosed he was a union
organizer. The evidence clearly demonstrates that Respondent
had plans to hire and was in the process of hiring when Chris-
topherson and Bright applied. Respondent hired at least 13
employees after Christopherson and Bright filed their applica-
tions.
Respondent’s defense to the exclusion of Christopherson and
Bright from its hiring process and the refusal to hire them is
without merit. I find that Respondent’s arguments such as its
assertions that it has hired other union members or union affili-
ated applicants is unconvincing as these instances all involved
other unions or tenuous or dated relationships. In no case did
Respondent cite an instance wherein it hired a member or af-
filiate of the Union in this case wherein the Union was attempt-
ing to organize its employees. I do not credit Sandra Leiser’s
assertion at the hearing that Respondent does not consider ap-
plications more than 30 to 60 days old, and her contention that
Christopherson’s and Bright’s applications would not accord-
ingly have been considered more than 30 to 60 days after Feb-
ruary 24, 2005, which was the date on their applications. This
assertion is refuted by the hire of applicant Joe Taylor whose
application was more than 9 months old at the time of his hire
and applicant Steve Kozubek’s application which was more
than 60 days old when Respondent hired him. Respondent’s
contention that it gives preference to prior employees or refer-
rals is unsupported by the record evidence. There is no refer-
ence to such a policy in Respondent’s policy manual.
Accordingly, I find that Respondent has failed to rebut the
prima facie cases of the unlawful refusal to consider for hire
and to hire.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by:
(a) Telling employees that it had discharged employees be-
cause of their union affiliation and other protected concerted
activities.
(b) Telling employees it would not hire employee-applicants
who were affiliated with a union or who engaged in union or
other protected concerted activities.
(c) Interrogating an employee about his union affiliation.
(d) Telling employees that it had suspended its employees
and/or prohibited its employees from working because of their
union and other protected concerted activities.
(e) Threatening its employee with reprisals and retaliation
because of his union and other protected concerted activities.
(f) Threatening its employee with physical violence because
of his union and other protected concerted activities.
(g) Prohibiting its employee from wearing union emblems or
logos at work.
(h) Telling an employee applicant that his union affiliation
status as an organizer and union official would adversely affect
his chances to be hired.
4. Respondent violated Section 8(a)(1) and (3) of the Act by
its suspension and discharge of employee Travis Williams, its
discharge of employee David Coleman and by its refusal to
consider for hire and to hire employee-applicants Richard
Christopherson and Michael Bright because of their union
membership and their engagement in union and other protected
concerted activities.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
THE REMEDY
Having found the Respondent has engaged in the above vio-
lations of the Act, it shall be recommended that Respondent
cease and desist therefrom and take certain affirmative actions
designed to effectuate the policies and purposes of the Act and
post the appropriate notice. It is recommended that Respondent
cease the unlawful threats, interrogations, prohibitions, suspen-
sion and discharges, and refusals to consider for hire and to hire
found above and offer immediate reinstatement to employees
Travis Williams and David Coleman. It is recommended that
Respondent rescind the unlawful suspension and discharges.
The employees shall be reinstated to their prior positions or to
substantially equivalent ones if their prior positions no longer
exist. The employees shall be made whole for all loss of back-
pay and benefits sustained by them as a result of Respondent’s
unfair labor practices. It is recommended that employees Chris-
topherson and Bright be considered for future employment in
accordance with nondiscriminatory criteria and if it is shown
that they would have been hired for any job openings, they
shall be hired and made whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
them. All of the backpay amounts shall be computed in the
manner prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987) at the “short-term Federal rate”
for the underpayment of taxes as set out in the 1986 amendment
to 26 U.S.C. Section 6621.
[Recommended Order omitted from publication.]