Niblock Excavating, Inc.

National Labor Relations Board - Board Decisions

Dec 21, 2001

337 N.L.R.B. 53 (N.L.R.B. 2001)

NIBLOCK EXCAVATING, INC. 53
Niblock Excavating, Inc. and International Union of
Operating Engineers, Local Union 150, a/w In­
ternational Union of Operating Engineers,
AFL–CIO and Christian Labor Association,
Party-in-Interest. Cases 25–CA–26323, 25–CA–
26677, 25–CA–26881, 25–CA–27150–1, and 25–
CA–27232–1
December 21, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND WALSH
On May 15, 2001, Administrative Law Judge Arthur J.
Amchan issued the attached decision. The Respondent,
General Counsel, and Charging Party filed exceptions
and supporting briefs, the General Counsel and Respon­
dent filed answering briefs, and the General Counsel
filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions1 and
briefs and has decided to affirm the judge’s rulings, find­
ings,2 and conclusions and to adopt the recommended
Order as modified3 and set forth in full below.
This case arises in the context of an organizational
campaign conducted by the Charging Party among the
employees of the Respondent, an excavating and paving
contractor with facilities in Bristol and Columbia City,
1 The Respondent moved to strike the General Counsel’s exceptions
1–5 on the ground that they do not comply with Sec. 102.46(b)(1)(iii)
of the Board’s Rules in that they do not designate by precise citation
the portions of the record relied on. We deny the motion to strike be-
cause we find that the General Counsel’s exceptions and supporting
brief are in substantial compliance with the Board’s Rules.
2 The Respondent, the General Counsel and the Charging Party have
excepted to some of the judge’s credibility findings. The Board’s estab­
lished policy is not to overrule an administrative law judge’s credibility
resolutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
The judge identified Michael Lucas as an International representa­
tive of the Charging Party. In fact, Lucas is employed by the Charging
Party as a consultant.
3 We shall modify the judge’s recommended Order in accordance
with our recent decision in Ferguson Electric Co., 335 NLRB 142
(2001).
We shall also modify the judge’s recommended Order and notice to
conform to the judge’s findings of fact and conclusions of law.
Finally, the General Counsel excepts to the judge’s characterization
of owner Richard Niblock’s physical conduct against employee Larry
Corbiel, as a “touching”of Corbiel “in a hostile manner.” Niblock put
his finger in the crease of Corbiel’s nose, pushed his head back and
drew blood. The General Counsel asserts that the appropriate charac­
terization of Niblock’s action is “inflicting bodily injury.” We find
merit in the General Counsel’s exception and shall modify the judge’s
conclusions of law, recommended Order, and notice accordingly.
Indiana. The judge found that, in response to the Charg­
ing Party’s campaign, the Respondent restrained and
coerced employees in the exercise of their statutory
rights in violation of Section 8(a)(1) of the Act, rendered
assistance and support to a rival labor organization in
violation of Section 8(a)(2), and discriminated against
employees in violation of Section 8(a)(3).
As discussed below, with but one exception, we adopt
the judge’s decision in all material respects. In so doing,
however, we find it unnecessary to pass on certain of the
issues raised by the parties’ exceptions.
1. The General Counsel excepts to the judge’s failure
to find that the Respondent violated Section 8(a)(1) when
it announced at an antiunion meeting that it would in-
crease its contribution to the employees’ 401(k) plan.
We find merit to the exception.
The complaint alleged that on about September 15,
1999, the Respondent violated Section 8(a)(1) by promis­
ing its employees increased contributions to their 401(k)
plan if the employees rejected the Union as their collec­
tive-bargaining representative. The judge stated that the
“record does not support this allegation with regard to
September 15, or any other date.” We disagree. Indeed,
the judge specifically found that at a captive audience
meeting on August 24, 1999, attended by the Respon­
dent’s owners, Richard and Gary Niblock, a bank repre­
sentative announced that the Respondent was doubling
its contribution to the 401(k) plan.4 The judge also found
that approximately 6 months earlier, in early February
1999, both the Charging Party and the Christian Labor
Association (CLA) filed representation petitions with the
Board. (No election has been conducted due to the in­
stant unfair labor practice charges.)
As a general rule, an employer’s legal duty in deciding
whether to grant improvements while a representation
proceeding is pending is to decide that question as it
would if the Union were not on the scene. Great Atlantic
& Pacific Tea Corp ., 166 NLRB 27, 29 fn. 1 (1967). In
determining whether a grant of benefits is unlawful, “the
Board has drawn the inference that benefits granted dur­
ing the critical period are coercive, but it has allowed the
employer to rebut the inference by coming forward with
an explanation, other than a pending election, for the
timing of the grant or announcement of such benefits.”
Lampi, L.L.C., 322 NLRB 502 (1996), quoting United
Airlines Services Corp., 290 NLRB 954 (1988).5
4 This matter was fully litigated at the hearing, and there is no evi­
dence or contention that the Respondent was prejudiced by the minor
variance between the date alleged in the complaint and the date estab­
lished by the proof.
5 Although Lampi, supra, and United Airlines Services Corp ., supra,
concerned whether a grant of benefits is objectionable in the representa-
337 NLRB No. 5
54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Here, the Respondent has failed to establish a legit i­
mate reason for the timing of the announcement and has
therefore failed to rebut the inference that the announce­
ment was intended to induce employees to abandon their
support for the Union. Under these circumstances, we
find that the Respondent’s promise of an increased con­
tribution to the employee 401(k) plan violated Section
8(a)(1) of the Act. Speco Corp ., 298 NLRB 439 fn. 2
(1990).
2. The Respondent has excepted to the judge’s find­
ings that Superintendent Richard Bunn was a statutory
supervisor and agent of the Respondent. We adopt the
judge’s finding that Bunn was the Respondent’s agent
and that the Respondent is therefore responsible for his
actions and conduct. Consequently, it is unnecessary for
us to resolve the issue of Bunn’s supervisor status.6
3. The Respondent has excepted to the judge’s find­
ings that employee Chad Leiby was its agent and that,
based on Leiby’s conduct, it provided unlawful assis­
tance and support to the CLA in violation of Section
8(a)(2) and (1) of the Act. We find it unnecessary to
pass on these findings because we agree with the judge
that the Respondent rendered unlawful assistance and
support to the CLA by the conduct of its other agents,
including Bunn. The finding of an additional 8(a)(2)
violation based on Leiby’s conduct would be cumulative
and would not affect the Order.
4. The General Counsel excepts to the judge’s failure
to find that on two occasions in May 1999, Respondent’s
supervisors instructed employees not to talk about the
Union on company time. We find it unnecessary to pass
on the issues the General Counsel’s exception raises.
Given that we are adopting the judge’s finding that the
Respondent violated Section 8(a)(1) by Superintendent
John Bowen’s instruction to employee Larry Corbiel that
he not discuss the Union with other employees, the addi­
tional 8(a)(1) findings sought by the General Counsel
would be cumulative and would not affect the Order.
AMENDED CONCLUSION OF LAW
Substitute the following for Conclusion of Law 4.
“4. On about October 14, 1999, by Richard Niblock,
by threatening and inflicting bodily injury on Larry Cor­
biel due to his union activities.”
ORDER
The National Labor Relations Board orders that the
Respondent, Niblock Excavating, Inc., Bristol, Indiana,
its officers, agents, successors, and assigns, shall
tion context, the Board applies the same test in unfair labor practice
cases. See Lampi, 322 NLRB at 502 fn. 4, and cases there cited.
6 Chairman Hurtgen, in agreement with the judge, concludes that
Superintendent Richard Bunn was a statutory supervisor.
1. Cease and desist from
(a) Coercively interrogating employees about their un­
ion support or union activities.
(b) Instructing employees not to discuss the Interna­
tional Union of Operating Engineers, Local Union 150,
a/w International Union of Operating Engineers, AFL–
CIO.
(c) Promising employees benefits if they withdraw
their support from the Union.
(d) Informing employees that they had been laid off,
demoted, and denied a raise because of their union sup-
port or union activities.
(e) Sending letters to employees instructing them to
report to their foreperson if they feel threatened or har­
assed by employees soliciting them to sign union cards.
(f) Threatening employees with discharge and unspeci­
fied reprisals because of their union support or union
activities.
(g) Inflicting bodily injury on employees because they
support the Union.
(h) Promising employees increased contributions to
their 401(k) plans in order to induce employees to aban­
don their support for the Union.
(i) Photographing or videotaping employees engaged
in lawful picketing without proper justification, or in any
other manner placing their union activities under surveil-
lance.
(j) Rendering assistance and support to the Christian
Labor Association or any other labor organization.
(k) Promulgating, maintaining, or enforcing hiring
policies for the purpose of discouraging union activities,
including the refusal to accept employment applications,
considering employment applications for only 30 days,
purporting to hire only former employees, friends of em­
ployees, or students, and purporting to favor employees
with no experience over union supporters with experi­
ence.
(l) Requiring employees to submit to drug testing be-
cause of their union support or union activities.
(m) Changing employees’ work assignments, refusing
to assign winter work, and denying wage increases to
employees because of their union support or union activi­
ties.
(n) Suspending, discharging, refusing to hire or con­
sider for hire, or otherwise discriminating against em­
ployees for supporting the Union or any other labor or­
ganization.
(o) 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.
NIBLOCK EXCAVATING, INC. 55
(a) Within 14 days from the date of this Order, rescind
the February 8, 1999 letter instructing employees to re-
port to their foreperson if they feel threatened or har­
assed by employees soliciting them to sign union cards.
(b) Within 14 days from the date of this Order, rescind
its policy of refusing to accept employment applica­
tions, considering applications for only 30 days, purport­
ing to hire only former employees, friends of employees,
or students, and purporting to favor employees with no
experience over union supporters with experience.
(c) Within 14 days from the date of this Order, rein-
state its prior policy that applications will remain on file
for 6 months.
(d) Within 14 days from the date of this Order, offer
Kevin Weickart 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.
(e) Within 14 days from the date of this Order, offer
Michael Cramer full reinstatement to his former job of
paver operator or, if that job no longer exists, to a sub­
stantially equivalent position, and offer to assign him
winter work at the levels that existed before the discrimi­
nation against him, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
(f) Make Kevin Weickart and Michael Cramer whole
for any loss of earnings and other benefits suffered as a
result of the unlawful suspension and discharge of
Weickart and the unlawful demotion, layoff, and denial
of wage increases to Cramer, in the manner set forth in
the remedy section of the decision.
(g) Within 14 days from the date of this Order, offer
job applicants Michael Young, Brandon Taylor, Randall
Patton, Thomas Geffert, Randy Hill, Michael Kresge,
Philip Overmyer, Delbert Watson, and Kenneth Welsh
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 to which they would have been
entitled absent the discrimination against them.
(h) Make the emp loyees named in paragraph 2(g)
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.
(i) Within 14 days from the date of this Order, remove
from its files the following: any reference to the unlaw­
ful drug testing of Rick Storm; any reference to Kevin
Weickart’s refusal to take the drug test and the unlawful
suspension and discharge of Weickart for his refusal to
do so; any reference to the unlawful demotion, layoff,
and denial of wage increases to Michael Cramer; any
reference to the unlawful refusal to hire and consider for
hire Michael Young, Brandon Taylor, Randall Patton,
Thomas Ge ffert, Randy Hill, Michael Kresge, Philip
Overmyer, Delbert Watson, and Kenneth Welsh; and
within 3 days thereafter notify them in writing that this
has been done and that the discriminatory actions will
not be used against them in any way.
(j) 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.
(k) Within 14 days after service by the Region, post at
its facilities in Bristol and Columbia City, Indiana, copies
of the attached notice marked “Appendix.”7 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 Respon­
dent and maintained for 60 consecutive days in con­
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no­
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re­
spondent 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 February 1, 1999.
(l) 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
attesting to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or­
dered us to post and abide by this notice.
7 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.”
56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 coercively question you about your union
support or activities.
WE WILL NOT instruct you not to discuss the Interna­
tional Union of Operating Engineers, Local Union 150,
a/w International Union of Operating Engineers, AFL–
CIO.
WE WILL NOT promise you benefits if you withdraw
your support from the Union.
WE WILL NOT inform you that you have been laid off,
demoted, or denied a raise because of your union support
or union activities.
WE WILL NOT send you letters instructing you to report
to your foreperson if you feel threatened or harassed by
employees soliciting you to sign union cards.
WE WILL NOT threaten you with discharge and unspeci­
fied reprisals because of your union support or union
activities.
WE WILL NOT inflict bodily injury on you because you
support the Union.
WE WILL NOT promise you increased contributions to
your 401(k) plan in order to induce you to abandon your
support for the Union.
WE WILL NOT photograph or videotape you engaging in
lawful picketing without proper justification, or in any
other manner place your union activities under surveil-
lance.
WE WILL NOT render assistance or support to the Chris­
tian Labor Association or any other labor organization.
WE WILL NOT promulgate, maintain, or enforce hiring
policies for the purpose of discouraging union activities,
including refusing to accept employment applications,
considering employment applications for only 30 days,
purporting to hire only former employees, friends of em­
ployees, or students, and purporting to favor employees
with no experience over union supporters with experi­
ence.
WE WILL NOT require you to submit to drug testing be-
cause of your union support or union activities.
WE WILL NOT change your work assignments, refuse to
assign you winter work, or deny you a wage increase
because of your union support or union activities.
WE WILL NOT suspend, discharge, refuse to hire or con­
sider for hire, or otherwise discriminate against any of
you because you support the Union or any other labor
organization.
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 the Board’s
Order, rescind the February 8, 1999 letter instructing you
to report to your foreperson if you feel threatened or har­
assed by employees soliciting you to sign union cards.
WE WILL, within 14 days from the date of the Board’s
Order, rescind our policy of refusing to accept employ­
ment applications, considering employment applications
for only 30 days, purporting to hire only former employ­
ees, friends of employees, or students, and purporting to
favor employees with no experience over union support­
ers with experience.
WE WILL, within 14 days from the date of the Board’s
Order, reinstate our prior policy that applications will
remain on file for 6 months.
WE WILL, within 14 days from the date of the Board’s
Order, offer Kevin Weickart 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 Cramer full reinstatement to his
former job of paver operator or, if that job no longer ex­
ists, to a substantially equivalent position, and offer to
assign him winter work at the levels that existed before
the discrimination against him, without prejudice to his
seniority or any other rights or privileges previously en-
joyed.
WE WILL make Kevin Weickart and Michael Cramer
whole for any loss of earnings and other benefits suffered
as a result of the unlawful suspension and discharge of
Weickart and the unlawful demotion, layoff, and denial
of wage increases to Cramer.
WE WILL, within 14 days from the date of the Board’s
Order, offer job applicants Michael Young, Brandon
Taylor, Randall Patton, Thomas Geffert, Randy Hill,
Michael Kresge, Philip Overmyer, Delbert Watson, and
Kenneth Welsh instatement to the positions for which
they applied or, if those positions no longer exist, to sub­
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges to which they
would have been entitled absent the discrimination
against them.
WE WILL make the above-named individuals whole for
any loss of earnings and other benefits they may have
suffered by reason of the discrimination against them.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the follow-
NIBLOCK EXCAVATING, INC. 57
ing: any reference to the unlawful drug testing of Rick
Storm; any reference to Kevin Weickart’s refusal to take
the drug test and to the unlawful suspension and dis­
charge of Weickart for such refusal; any reference to the
unlawful demotion, layoff, and denial of wage increases
to Michael Cramer; any reference to the unlawful refusal
to hire and consider for hire Michael Young, Brandon
Taylor, Randall Patton, Thomas Ge ffert, Randy Hill,
Michael Kresge, Philip Overmyer, Delbert Watson, and
Kenneth Welsh; and WE WILL, within 3 days thereafter,
notify each of them in writing that this has been done and
that the unlawful actions will not be used against them in
any way.
NIBLOCK EXCAVATING, INC.
Michael T. Beck and Patricia H. McGruder, Esqs., for the Gen­
eral Counsel.
S. Douglas Trolson, Esq. (Hoffman, Drewry, Simmons), of
Indianapolis, Indiana, and Edward J. Chester, Esq., of Elk-
hart, Indiana, for the Respondent.
Michael D. Lucas, of Gainesville, Virginia, and Melinda S.
Burleson, Esq. (Baum, Sigman, Auerback, Pierson, Neuman
& Katsaros, Ltd.), of Chicago, Illinois, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in South Bend, Indiana, on January 22–26, 2001, and
March 5 and 6, 2001. The charges were filed between Novem­
ber 16, 1998 and September 8, 2000. The consolidated com­
plaint was issued September 26, 2000, and amended on No­
vember 16, 2000.
On the entire record, including my observation of the de­
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent, and the Charging Party, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, is engaged in road construction,
the installation of underground utilities, and the manufacture of
asphalt, with facilities at Bristol and Columbia City, Indiana.
Niblock Excavating annually performs services, which are
valued in excess of $50,000 in States other than Indiana, and
purchases and receives goods at its facilities, which are valued
in excess of $50,000, directly from points outside of Indiana.
Niblock admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that Local 150 of the International Union of Oper­
ating Engineers (the Union) is a labor organization within the
meaning of Section 2(5) of the Act. I also find that the Party in
Interest, the Christian Labor Association, is a labor organiza­
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Union embarked on an effort to organize Respondent by
sending one of its members to work for Niblock in February
1998.1 This employee obtained a job with Respondent and
worked for several months without disclosing his union affilia­
tion. In a possibly related endeavor, Michael Young, an organ­
izer for Operating Engineers Local 103, went to Niblock’s of­
fice in Columbia City, in response to a newspaper advertise­
ment for a paver operator in March 1998. Richard Niblock,
Respondent’s secretary-treasurer, interviewed Young on or
about March 19, 1998.2 Young heard nothing further about his
application.
In May 1998, union organizer Philip Overmyer passed out
leaflets on a Niblock jobsite. He also went to Niblock’s Bristol,
Indiana office to apply for a job on May 21 of that month with
eight other union members. When Overmyer returned to the
office on May 28, a sign stating that Respondent accepted ap­
plications between 8–9 a.m. and 4–5 p.m. had been taken down
and replaced by a sign stating that Niblock was not accepting
applications.
In June, three Niblock employees, Larry Corbiel, David Tay­
lor, and Rick Gorney, signed Local 150 authorization cards.
They did not disclose their union sympathies to Respondent. In
September, just before he quit his employment with Niblock,
Rick Gorney wore a union T-shirt to work. At about this time,
Richard Niblock held a foreman’s meeting at which he dis­
cussed what supervisors and foremen could say to employees
about the Union or unions. He used a flip chart on which he
wrote the acronym “TIPS” for the prohibited practices of
threats, interrogation, promises, and spying.3
The Layoff and Discharge of Gerald Mike Walton4 (Complaint
Pars. 7(a) and (b))
Gerald Mike Walton began working for Niblock Excavating
on April 9, 1998. He was hired on the recommendation of
1 The Union has tried to organize Niblock prior to 1998. For in-
stance, Randy Patton, a member of the Union, who is also an alleged
discriminatee in the instant case, worked for Respondent in 1994, as
part of an organizing effort.
2 Richard Niblock’s brother, Gary, is president of Niblock Excavat­
ing.
3 Among those attending this meeting were some or all operator-
foremen, who the parties agree are not supervisors within the meaning
of Sec. 2(11) of the Act. Operator-Foreman Wayne Andrews attended
this meeting as did David Walter, a project superintendent, who, unlike
other of Respondent’s superintendents has not been alleged to be a
“supervisor” or shown to be one. There is no evidence as to whether
David Taylor and Todd Plank, operator-foremen sympathetic to the
Union, attended this meeting.
4 Walton’s layoff and discharge are alleged to violate Sec. 8(a)(1)
and (3) in complaint pars. 7(a) and (b). These are the earliest alleged
unfair practice allegations that warrant analysis. Complaint pars. 5(a),
(b), and (c) relate to testimony from union supporters David Taylor and
Larry Corbiel about conversations they had with Superintendents John
Bowen and Garry Garrett. Bowen and Garrett deny these allegations
and I find their denials at least as credible as the allegations by Taylor
and Corbiel. Therefore, I conclude that the unfair practice violations
alleged in pars. 5(a)–(c) have not been established.
58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
operator-foreman David Taylor.5 Walton had no prior con­
struction experience, but did have a class A commercial driv­
ers’ license (CDL). From April until sometime in September or
October 1998, Walton worked mostly, if not exclusively, for
Operator-Foreman Ron Yoder, whom in turn was supervised by
Superintendent Gary Garrett.
Walton’s job performance, which included driving a truck
and laboring, was satisfactory until September or October,
when he sustained some sort of physical injury, which he testi­
fied was a pinched nerve.6 Walton submitted a physicians’ note
to Respondent and he was placed on an informal light-duty
status. According to Yoder, Walton “did what he could.”
However, Yoder asked Garrett to switch Walton to another
crew. At about this time Walton signed a union authorization
card. However, he never openly proclaimed or revealed his
union sympathies or affiliation.7
Garrett then assigned Walton to a crew supervised by Esti­
mator Kevin Crouch. Crouch describes Walton’s work as “a
little slow” and “slow . . . not very productive.” Crouch’s
foreman was Todd Plank, who later signed a union authoriza­
tion card. Plank described Walton’s work as, “slow but steady”
and said Walton did not shovel and clean up around curbs as
fast as other employees.
On October 15, 1998, Walton was transferred to a crew un­
der the supervision of Underground Superintendent John Bo­
wen. The operator-foreman of this crew was Mike Schaeffer.
Walton worked for Schaeffer for about 4 weeks. He performed
light-duty work including hooking up PVC pipe and light shov­
eling. Schaeffer recalled that if Walton was absent from work
he had a doctor’s excuse. As to Walton’s job performance,
Schaeffer testified:
He tried. . . . It was the things we had to do . . . put fittings in
the ground and do some shoveling stuff, it was just a job that
he couldn’t handle real well at the time because of his health
condition and the job was wearing him down and I really did
not need a fifth man at the time.
(Tr. 811.)
Walton also worked for operator-foreman Doug Andrews,
who did not testify at the hearing.8 On November 10, 1998, all
members of Andrews’ crew were sent home due to rain except
for Walton, who was required to sweep Niblock’s shop in order
to receive his “show-up” pay. A week later on November 17,
1998, Superintendent John Bowen informed Walton that he was
being laid off due to lack of initiative.
5 Taylor revealed his union sympathies to Respondent at the begin­
ning of February 1999.
6 Ron Yoder testified that Walton told him that Walton had had a
stroke.
7 I credit Ron Yoder’s testimony that he did not offer Walton a
Niblock T-shirt and that Walton never told him that he’d prefer a T-
shirt like Gorney’s (a union T-shirt).
8 Bowen testified about complaints he received from Doug Andrews
about Walton’s performance. As Doug Andrews still works for Re­
spondent, I decline to give this testimony any weight regarding the
quality of Walton’s work. I infer that it was as described by Schaeffer
and Plank; slow and adversely impacted by a physical problem of
which Respondent was aware.
On about December 18, 1998, Walton attended Respondent’s
Christmas party. Richard Niblock was very upset by the fact
that Walton was present. The next day, Respondent sent
Walton a letter informing him that he had been discharged.
During Walton’s employment with Niblock he never received
any discipline of any kind.
The General Counsel alleges that both Walton’s November
1998 layoff and December 1998 discharge were discriminato­
rily motivated and thus violated Section 8(a)(3) and (1). To
establish such a violation, the General Counsel must show that
union activity has been a substantial factor in the employer’s
adverse personnel decision. To establish discriminatory moti­
vation, the General Counsel must show union or protected con­
certed activity, employer knowledge of that activity, animus or
hostility towards that activity, and an adverse personnel action
caused by such animus or hostility. Inferences of knowledge,
animus, and discriminatory motivation may be drawn from
circumstantial evidence as well as from direct evidence.9 Once
the General Counsel had made an initial showing of discrimina­
tion, the burden of persuasion shifts to the employer to prove its
affirmative defense that it would have taken the same action
even if the employee had not engaged in protected activity.
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (lst
Cir. 1981).
Gerald Walton engaged in union activity by signing a Local
150 authorization card. Respondent demonstrated a great deal
of animus towards the organizing efforts of Local 150 and its
supporters. However, there is no credible direct evidence that
Respondent knew of Walton’s union sympathies and affiliation.
I also find that there is insufficient circumstantial evidence that
Niblock knew or suspected Walton of prounion sympathies.
The General Counsel has also failed to establish that Gerald
Walton’s layoff and discharge were discriminatorily motivated.
There is no credible direct or circumstantial evidence, such as
suspicious timing, that suggests discrimination with respect to
Walton’s layoff. In the last 2 months of his employment, Ge­
rald Walton was not a very productive employee. I cannot
conclude that he was laid off for pretextual reasons because
Walton was unable to adequately perform much of the work
assigned to him.
In the absence of evidence that Niblock had received any ad­
ditional information regarding Walton’s union affiliation and
sympathies, I find that Richard Niblock’s reaction to Walton’s
presence at the company Christmas party does not warrant an
finding of discriminatory motivation with regard to the dis­
charge. It is equally likely that Niblock became upset because
he had assumed that when John Bowen told Walton that he was
being laid off for lack of initiative, that Walton would under-
stand that Respondent did not want him to return to work for it
in the future.
9 Flowers Baking Co., 240 NLRB 870, 871 (1979); Washington
Nursing Home, 321 NLRB 366, 375 (1966); W. F. Bolin Co. v. NLRB,
70 F.3d 863 (6th Cir. 1995).
NIBLOCK EXCAVATING, INC. 59
Respondent’s Alleged Refusal to Hire/Refusal to Consider for

Hire Michael Young (Complaint Par.7 (c)); Discriminatory

Enforcement of Niblock Hiring Procedures (Complaint

Par. 7(d))

In late January 1999, Michael Young, the Local 103 organ­
izer who had applied for work at Niblock’s Columbia City
facility in March 1998, attended an organizer’s conference in
Joliet, Illinois. Young learned of Local 150’s efforts to organ­
ize Niblock and mentioned his attempt to secure employment
with Respondent. Young, Philip Overmyer, and International
Representative Michael Lucas decided that Young should reap-
ply for work at Columbia City.
When Young arrived at Respondent’s Columbia City office,
he noticed a sign in the window stating that Respondent was
not accepting applications as of March 16, 1998, which was the
date that he previously applied for work. Young entered the
office and told Respondent’s secretary that he had applied for
work a year previously and hadn’t heard anything. She allowed
him to fill out an application and turn it in. Respondent’s secre­
tary told Young that Niblock was now keeping applications for
only 30 days; at the time he applied in 1998, Niblock kept ap­
plications for 6 months. Young did not receive any response to
his application.
One month before Young applied, Mike Wirick, Respon­
dent’s paving foreman at Columbia City, called Steven Storm,
an experienced paver operator, with whom Wirick had worked
previously, and asked Storm if he would consider going to
work with Niblock to operate a paving machine. Storm de­
clined the offer. In April 1999, Respondent hired Rick Storm,
Steve Storm’s brother, to operate the paver at Columbia City.
Rick Storm was not an experienced paver operator.
Applicable Legal Principles
In FES, 331 NLRB 9 (2000), the Board set forth the analyti­
cal framework for refusal-to-hire violations. The General
Counsel must show that:
(1) that the respondent was hiring, or had concrete plans to
hire, at the time of the alleged unlawful conduct; (2) that the
applicants had experience or training relevant to the an­
nounced 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 dis­
crimination; and (3) that antiunion animus contributed to the
decision not to hire the applicants.
In contrast, to establish a discriminatory refusal to consider,
the General Counsel must show that (1) the respondent ex­
cluded applicants from a hiring process; and (2) that antiunion
animus contributed to the decision not to consider the appli­
cants for employment.
Once this is established, the burden shifts to the employer to
show that it would not have considered the applicants even in
the absence of their union activity or affiliation. Similarly,
once the elements of a refusal-to-hire violation are established,
the burden shifts to the employer to show that it would not have
hired the applicants even in the absence of their union activity
or affiliation.
The Board stated further in FES that, in a discriminatory hir­
ing case, whether the alleged discriminatees would have been
hired but for the discrimination against them must be litigated
at the hearing on the merits. The General Counsel must show
that there was at least one available opening for the applicants.
He must show at the hearing on the merits the number of open­
ings that were available. However, where the number of appli­
cants exceeds the number of available jobs, the compliance
proceeding may be used to determine which of the applicants
would have been hired for the openings.
With regard to Michael Young, it has been established that
Respondent was seeking to hire a paver operator when Young
applied for work in January 1999.10 Young was an experienced
journeyman equipment operator with specific experience oper­
ating an asphalt paver. Whether antiunion animus contributed
to Respondent’s decision to not to hire Young or consider him
for employment requires examination of its hiring policies in
general, as well as its stated objections to hiring Young.11
Respondent contends that Young was not hired in 1998 be-
cause Ron Modglin, its Columbia City area manager, deter-
mined that Young misrepresented his working experience on
his employment application. I find Modglin’s testimony in this
regard to be incredible and therefore pretextual. Although
Young listed his most recent construction employer as a refer­
ence, Modglin did not contact this individual or any other of the
employers Young listed on his application. Instead, he claims
to have relied on a conversation with Steven Bunn, a cousin of
Richard Bunn, Niblock’s superintendent at Columbia City, who
also worked for Young’s most recent construction employer.
Apart from the fact that I am not convinced that Modglin had
any such discussion with Steven Bunn, Respondent made no
showing that Steven Bunn had a basis for rendering any opin­
ion as to Young’s experience. I therefore find that Young was
excluded from the hiring process in 1998 for unlawful reasons.
The violation at issue, however, is Respondent’s refusal to
consider Young for employment and/or hiring him in 1999. To
the extent that Respondent relies on Modglin’s assessment of
Young’s veracity, I conclude such reliance to be pretextual. On
this basis I find that the General Counsel has established that
Young was not considered for hire and was not hired for dis-
10 Alan Mike Wirick, Respondent’s paving foreman at Columbia
City, was and is an agent of Respondent. Employees and potential
employees would reasonably believe that Wirick was reflecting com­
pany policy and speaking and acting for management, generally and
when soliciting individuals for employment, Community Cash Stores,
238 NLRB 265 (1978). Wirick did not testify at this proceeding and
thus the testimony of Steve and Rick Storm regarding their conversa­
tions with him are unrebutted.
11 Neither Richard Niblock nor Ron Modglin asserted that it relied
on the prohibition against Niblock employees working for another
employer which appears in its company hiring policies. Young’s 1998
application shows clearly that he was still employed by Local 103.
Modglin asked Young if he wanted a job in order to organize Respon­
dent. Young denied this was the case and Modglin arranged for him to
be interviewed by Richard Niblock. There is no indication that Re­
spondent told Young he would have to quit his job with Local 103 to
work for Niblock.
60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
criminatory reasons.12 As demonstrated by the hiring of Rick
Storm in April 1999, there was a job opening for Young.
Between March 16 and May 22, 1998, Respondent adopted a
policy that employment applications would remain on file for
30 days, rather than for 6 months. I conclude that this change
was made in response to Young’s attempt to gain employment
in March 1998 and was thus discriminatorily motivated. More-
over, while there is no indication that Niblock hired anyone
within 30 days of Young’s 1999 application, Respondent was
actively recruiting an exp erienced paver operator for Columbia
City. Therefore, I conclude there was a position available for
Young and that if Respondent had considered his application on
a nondiscriminatory basis, it would have hired him within 30
days of his application. I therefore find that Respondent re-
fused to hire Young on the basis of his union affiliation and
activities.
Respondent also contends that Young and the other union
applicants were not hired or considered for employment be-
cause Niblock does not accept applications and because it only
hires former employees, friends of employees or students.13
Part of this defense is not available with respect to Young,
since Niblock in fact accepted his January 1999 application.
Moreover, the policy of not accepting applications was
adopted within days of the May 22, 1998 visit to Respondent’s
Bristol office by nine union applicants. I find that this policy
was discriminatorily motivated and therefore violated Section
8(a)(3) and (1) when applied to union applicants in 1999.14
Where an employer implements a rule with the purpose of re­
stricting or preventing employees from engaging in protected
activity, Section 8(a)(1) of the Act has been violated, Tualatin
Electric, 319 NLRB 1237 (1995). The policy of hiring only
referrals, friends of current employees, students, and others
known to the Niblocks was also implemented to thwart the
Union and has also been applied in a discriminatory fashion. It
therefore violates the Act.15 Finally, the policy of retaining
12 Ron Modglin hired Glenn Brickley, a member of Operating Engi­
neers Local 103, in the spring of 1998. I find this fact irrelevant to the
issue of whether Respondent discriminatorily refused to consider for
hire or hire Michael Young. First of all, Brickley was not an organizer
and there is no indication that Respondent was aware of the renewed
effort of the Operating Engineers to organize its employees when
Brickley was hired. From Modglin’s testimony at Tr. 1101, I infer he
had no concerns that Brickley was going to engage in organizing activi­
ties when he hired him.
13 Richard Niblock described the policy as including individuals that
he and his brother “know of . . . that wants a job or they happen to stop
in and talk to us or something. [Tr. 29.]”
14 The illegality of Respondent’s hiring procedures is alleged as a
violation in complaint par. 7(d). The fact that the General Counsel
refused to proceed on a previous charge filed by the Union regarding
the hiring policy does not preclude future proceedings which are other-
wise litigable, R. E. Dietz Co., 311 NLRB 1259, 1265 fn. 10 (1993);
Ball Corp., 322 NLRB 948, 951 (1997).
15 It appears that the Union was first notified of this policy by the
July 20, 1999 letter from the General Counsel’s office of appeals.
While Respondent has had a longstanding practice of hiring applicants
referred by current employees, its policy or practice of not considering
any applicant who does not have such a referral is recent (Tr. 29) and
was implemented to thwart the organizing efforts of Local 150. More-
over, when discussing its decision to hire a number of its new employ-
employment applications for only 30 days, which was adopted
in response to Michael Young’s March 1998 application also
violated Section 8(a)(3) and (1) when applied to applicants in
1999 and 2000.16
February 1999: the Union Openly Solicits Employees; the
Christian Labor Association is Contacted and Conducts its
Meetings with Niblock Employees
On or about February 2, 1999, union organizers Philip
Overmyer and Thomas Geffert accompanied Niblock employ­
ees David Taylor and Larry Corbiel and visited the homes of a
number of other Niblock employees to encourage them to sign
Local 150 authorization cards. One of these employees con­
tacted Operator-Foreman Ron Yoder immediately after the
visit.17
Within 24 hours of this call, a number of the operator-
foreman met with each other to discuss the Local 150 organiz­
ing drive. They also met with Richard and Gary Niblock.
infer from the testimony of the three operator-foremen called as
witnesses by Respondent: Wayne Andrews, Mike Schaeffer,
and Ron Yoder, that the CLA organizational effort began at this
meeting. None of Niblock’s employees had expressed any
interest in joining the CLA until these foremen found out about
the Local 150 house calls.
The operator-foremen who met with the Niblocks were op­
posed to the presence of a union at Niblock Excavating, but, as
the following testimony shows, they decided, in the presence of
Richard and Gary Niblock, on the CLA as a vehicle to stop
Local 150:
They [Richard and Gary Niblock] just said that the 150
was trying to organize within the company and said that
there are options that we have to choose from and that it
was our choice to discuss those options and decide on
those options.
Q. Did they mention the CLA?
A. That was talked about amongst the group that was
one of the options.
(Tr. 768–769 (Wayne Andrews).)18
ees, Respondent has failed to show that many of them were recom­
mended or referred by anyone, let alone anyone who had any basis for
concluding they were suitable for employment with Niblock (other than
having no known association with Local 150). Among the new em­
ployees not shown to fit the alleged Niblock hiring criteria are: Kelly
Moyer, Shane Stoppenhagen, Cynthia White, Ryan Anders, Stephanie
Brown, David Burkey, Brodie Delcamp, Susan Dome, Juan Glassburn,
Casey Grove, Jerry Gross, Robert Kuhn, David Malone, and Jeremy
Walters. Thus, Respondent’s policy or practice of excluding applicants
who have not been recommended or referred by current employees has
been applied on an inconsistent and discriminatory basis.
16 This finding is significant in determining how many job openings
were available for the six union salts who applied for work with
Niblock on June 28, 2000 (see discussion of complaint par. 7(p)
herein).
17 David Taylor, like Respondent’s wi tnesses Ron Yoder, Michael
Schaeffer, and Wayne Andrews, is an operator-foreman, which the
parties agree is not a supervisory position as defined by the Act.
18 While Andrews testified that the Niblocks did not tell the foremen
to contact the CLA, he concedes that the CLA was discussed in the
presence of Richard and Gary Niblock. From this, I infer that represen-
I
NIBLOCK EXCAVATING, INC. 61
They [Richard and Gary Niblock] just told us that it
was the employees’ choice to either—they could either
join—[be] represented by the 150, represented by the
CLA, or we could represent ourself as a non-union. It was
our choice and that was it.
(Tr. 828, Mike Schaeffer); (also see Tr. 865–866 Ron Yoder).19
operator-foreman Ron Yoder immediately contacted Michael
Koppenol, a representative of the CLA, and scheduled a meet­
ing right after work on February 4, 1999, at the Evans Cow Bell
restaurant in Bristol. Yoder arranged this meeting on short
notice because he did not want Local 150 to organize Respon­
dent. A number of Niblock employees who were on their win­
ter layoff were contacted and attended this meeting. Ron Yoder
also called Chad Leiby, a rank-and-file employee, who was
visiting relatives in Cincinnati. Leiby, who had worked for
Niblock since 1985, was still on layoff status.
Yoder told Leiby that he should return to Bristol because
Larry Corbiel was trying to help Local 150 organize Niblock.
Upon his return, Leiby was selected to spearhead the effort to
garner support from Niblock employees for the CLA. Leiby
kept Richard Niblock informed of every decision that he made
with regard to the CLA, by calling him after work (Tr. 906,
923–924). The first of these decisions was to arrange a meeting
for employees with CLA representatives at the Eby Pines res­
taurant/roller skating rink in Bristol on February 11. Most of
Niblock’s employees from Bristol and Columbia City attended
this meeting. Also in attendance was Richard Bunn, a superin­
tendent who works at Columbia City. Bunn encouraged Co­
lumbia City employees to sign authorization cards for the
CLA.20
tation by the CLA was first broached by either Richard or Gary
Niblock. I see no reason why employees opposed to unionization
would otherwise decide to contact the CLA. My inference in this re­
gard is also based on Chad Leiby’s testimony at Tr. 917, that when
Yoder called him he “did not want anything to do with any union.”
Leiby then testified in a most incredible fashion that he decided that he
wanted to be represented by the CLA after reading an NLRB brochure.
19 Contrary to Schaeffer’s testimony, I find he was at the meeting
with the Niblocks on or about February 3, 1999, about which Wayne
Andrews testified. The account of no other meeting fits the description
of the one at which the Niblocks discussed the CLA.
In relying on the testimony of Andrews, Schaeffer, and Yoder re­
garding the origins of the CLA organizational effort, I rely also by the
fact that Richard Niblock was called as a witness by Respondent after
these employees test ified. He made no effort to contradict them and
did not deny that he and his brother met with the operator-foremen soon
after learning of the Local 150 house calls and that he discussed the
possibility of the employees choosing the CLA as their bargaining
representative in this meeting or meetings.
20 See complaint par. 6(a). Larry Corbiel’s testimony in this regard
is unrebutted. Respondent did not call Bunn as a witness. He was
called as an adverse witness by the General Counsel to testify regarding
his status. However, all of the testimony in this record regarding things
said by Bunn is uncontradicted. In addition to the CLA meetings, Bunn
attended a Local 150 meeting and was not asked to leave.
Respondent’s February 8, 1999 Letter to Employees
(Complaint Par. 5(d))
At the same time that Niblock employees were being invited
to the CLA meeting at Eby Pines, Richard Niblock sent them a
letter dated February 8, which said:
A number of employees have told us that they have felt pres­
sured and harassed by Union agent[s] asking them to sign a
Union Authorization Card. They have asked us what rights
they have in this regard. We want all of our employees to
know that the decision to sign a Union Authorization card is
solely your decision. You have the right to sign a card or not
sign a card as you see fit. Nobody, including the Union has
the right to pressure you or harass you about signing those
cards. Nobody has the right to come on to your property or
into your home to ask you to sign a card unless you let them.
If you feel threatened or harassed during your working hours
we urge you to report this to your foreman, and the problem
will be immediately addressed. If this occurs during non-
working hours you have every right to call the police, just like
anyone who is harassed or threatened by another person.
The General Counsel alleges that Respondent violated Sec­
tion 8(a)(1) of the Act in sending this letter to its employees.21
The Board has held that similar letters were unlawful because
they have the potential dual effect of encouraging employees to
report to Respondent the identity of union card solicitors who
in any way approach them in a manner subjectively offensive to
the solicited employees, and of correspondingly discouraging
card solicitors in their protected organizational activities.
Niblock’s letter, by equating “pressure,” “threats,” and “har­
assment” could be interpreted by some employees to cover
lawful attempts by union supporters to persuade employees to
sign union authorization cards.22 This is particularly true since
there is no credible evidence that Local 150 supporters em­
ployed any unprotected tactics in soliciting support for the Un­
ion. Thus, Niblock’s letter would tend to restrain union sup-
porters from attempting to persuade any employee to sign an
authorization card for fear that they would be reported to man­
agement and disciplined, Arcata Graphics, 304 NLRB 541, 542
(1991); Greenfield Die & Mfg. Corp., 327 NLRB 237, 238
(1998). I therefore find that Respondent violated the Act as
alleged in complaint paragraph 5(d).
Additional Meetings
February 23, 1999 Meeting at the Bristol Missionary Church
(Complaint Par. 6(b))
Chad Leiby informed Niblock employees that another meet­
ing would be held on February 23, at Respondent’s Bristol
21 This letter, GC Exh. 27 obviously refers to solicitat ions on behalf
of Local 150, and not to solicitation on behalf of the CLA.
22 While an employer may prohibit the discussion of non work-
related topics during working time, it cannot limit such a prohibition to
unions or other protected subjects, Altorfer Machinery Co., 332 NLRB
130, 133 (2000); M. J. Mechanical Services, 324 NLRB 812 (1997).
There is no evidence that Respondent prohibited employees from dis­
cussing nonwork-related topics. Thus, it could not prohibit employees
from either encouraging co-workers from supporting the Union during
worktime or discouraging coworkers from doing so.
62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
office. However, the location was changed to the Bristol Mis­
sionary Church, at which Leiby was a parishioner. Employees
were informed of the change in a variety of ways. Niblock’s
secretary called some employees and operator-foreman Ron
Yoder remained in the parking lot at Niblock’s office to direct
employees to the church. Columbia City employees and Super­
intendent Richard Bunn attended this meeting. A representa­
tive of the bank, which manages Niblock’s 401(k) pension plan,
and a representative of Niblock’s health insurance carrier com­
pared Niblock’s benefits to what Local 150 was offering.
At Chad Leiby’s suggestion, the employees broke up into
groups by occupation—equipment operators, laborers, truck
drivers, operator-foremen, etc. Each group selected a chair-
man. This chairman was designated as the group’s representa­
tive for matters pertaining to the CLA. Paver Operator David
Bogner was selected as the CLA representative for Columbia
City. Richard Bunn was part of the operator-foreman group, not
the group of rank-and-file Columbia City employees. He par­
ticipated in the selection of a chairman for the operator-
foremen. Chad Leiby then distributed a sheet of wage and
benefit figures for different job classifications that would be
acceptable to Niblock Excavating if employees chose the CLA
as their collective-bargaining representative.
Evidentiary Basis for Findings Relating to the
February 23 Meeting
The most thorough and accurate account of the February 23
meeting, I believe, is that of David Taylor, which is uncontra­
dicted. Taylor testified at Transcript 390 that “we voted on this
wage package that we were suppose to send to the Niblock
boys.” At Transcript 248 Larry Corbiel testified that the CLA
was not discussed at the meeting, but his testimony on the next
page is consistent with that of Taylor:
Chad Leiby had a handout that he said he’d received—I
wouldn’t say he said received, but that Niblock’s would agree
to, we just had to sit down and vote on it, and the way it was
broke down is they put all the operating foremen at one table
and then all the operators, laborers, truck drivers, and pit per­
sonnel.
Operator-Foreman Wayne Andrews, called by Respondent,
confirms that a wage and benefit plan was reviewed by the
employees in these groups and that this plan was put together
by Chad Leiby. It is clear from the context of his testimony
that this plan related to how the employees would be compen­
sated if they chose the CLA as their bargaining representative.
Given Chad Leiby’s testimony that he kept Richard Niblock
informed of everything he was doing, I infer that Niblock knew
about the wage proposals presented at the February 23 meeting
beforehand and that Leiby knew when he presented them that
they would be acceptable to Niblock.
The CLA Meeting at Connie’s Corner Restaurant in Columbia
City (Complaint Par. 6(c))
A few days after February 23, Chad Leiby traveled from
Bristol to Columbia City in a company vehicle.23 Either prior
to his trip or after he arrived in Columbia City, Leiby told Re­
spondent’s area manager, Ron Modglin, and Superintendent
Richard Bunn that he wanted to meet with Niblock’s Columbia
City employees on CLA business and that he would distribute
CLA authorization cards at this meeting. He had either Modg­
lin, Bunn, or their secretary arrange for this meeting to be held
at Connie’s Corner restaurant in Columbia City, or asked them
to recommend a convenient place to meet. Respondent’s secre­
tary and/or Bunn and/or Modglin informed employees of the
meeting. Leiby arrived in Columbia City between 8:30 and
9:30 a.m. As Leiby is an hourly employee, I assume he was
paid by Niblock for all the time he spent in Columbia City.
Several hours after Leiby arrived, he and Bunn drove to Con­
nie’s Corner restaurant in a Niblock company truck.24
Employees ate lunch at the restaurant, which Leiby paid for
with funds he had received from the CLA. After lunch, Leiby
addressed the Columbia City employees and told them that it
would be difficult for paver operator David Bogner to serve as
their CLA representative. Leiby explained that due to the paver
operator’s importance to production, he would not be able to
attend CLA meetings that were held during working hours or
be able to leave work early to attend CLA meetings in Bristol.25
Leiby suggested that the employees select a different CLA
representative. Operator-Foreman Mike Wirick suggested em­
ployee Chad Rice. Superintendent Richard Bunn seconded the
suggestion and Rice became the CLA representative for Co­
lumbia City.
Evidentiary Basis for the Above Findings Regarding the
Meeting in Columbia City
Chad Leiby’s testimony is riddled with inconsistencies.
However, I infer what transpired at the Connie’s Corner meet­
ing largely from his testimony, as well as the testimony of
David Bogner. Leiby was called as a witness by Respondent,
which elicited testimony from him about the Connie’s Corner
meeting on direct examination (Tr. 907).
At Transcript 912, Leiby denied knowing who David Bogner
was. At Transcript 933, Union Representative Lucas asked
Leiby if David Bogner had called him at home to discuss con­
versations Bogner had with Columbia City employees about his
serving as CLA representative. Leiby testified that an em­
ployee from Columbia City called him, but that he did not re-
member his name. Lucas then asked whether Leiby told em­
ployees at the meeting at Connie’s Corner that it would be very
difficult for the paver operator to represent them in Bristol and
that they should select somebody else. Leiby answered, “Yes, I
23 Columbia City, which is west of Ft. Wayne, is about 55 miles
from Bristol, via State route 15 and U.S. route 30. Bristol is east of
South Bend and Elkhart, a few miles south of the Michigan/Indiana
border.
24 I credit David Bogner’s testimony that Leiby and Bunn arrived at
Connie Corner’s together in a company truck.
25 During good weather, Respondent’s crews often work more than
an 8-hour day.
NIBLOCK EXCAVATING, INC. 63
think so.” He confirmed that Chad Rice was nominated to be
the alternate representative.
Lucas then asked whether Chad Rice was selected to be the
alternate representative. Leiby replied, “David was the person
that I talked to but then Chad got involved in it too and now as
far as who elected him to do that, I don’t know [Tr. 934].” At
Transcript 936, I asked Leiby who was the David he had just
referred to. Leiby answered, “He said David Bogner. Is that
his name?” Then Leiby insisted that he had no recollection of
David Bogner and was only familiar with the name because
Lucas had brought it up (Tr. 934–936). I conclude that regard-
less of whether Leiby recalled his last name, that he knew that
he had spoken with the paver operator named David and that
Leiby went to Columbia City in part to replace “David” as the
CLA representative with another Columbia City employee. I
also credit David Bogner’s testimony that Chad Rice was se­
lected as the CLA representative for Columbia City in Leiby’s
presence and find incredible Leiby’s testimony that he did not
know who was selected or how Rice was selected.
At Transcript 937, Lucas asked Leiby, “Do you recall ad-
dressing, in particular, how difficult it would be if the paver
operator were the representative who had to travel back and
forth?” Leiby answered, “Being the paver operator that I was,
yeah, I would address that . . . I would probably not agree with
the paver operator being the representative.” After my explana­
tion to Leiby that he should only testify to that he recalls, he
testified that he did not remember telling employees that the
CLA representative should not be the paver operator.
On redirect examination, Leiby testified that when he asked
Ron Modglin for a recommendation as to a restaurant, he did
not tell him the purpose of the meeting (Tr. 940). On recross-
examination, his testimony was exactly the opposite:
Q. You testified that you did not tell Mr. Modglin why
you wanted to meet with the employees.
Correct, in Columbia City?
A. Yes.
Q. Did Mr. Modglin ask why you wanted to meet with
his employees?
A. I would think he would, yeah.
Q. But you do not remember if he did or he did not?
A. He probably did.
Q. What did you tell him?
A. Exactly what I was doing.
(Tr. 944.)
In finding that Leiby regularly reported to Richard Niblock
as to his activities on behalf of the CLA, I also rely on the fact
that Respondent called Niblock as a witness after Leiby testi­
fied and made no effort to contradict him on this point. Like-
wise, Ron Modglin testified for Respondent after Leiby and did
not contradict Leiby’s testimony that he told Modglin “exactly
what I was doing” when telling Modglin that he wanted to meet
with Columbia City employees on or about February 25, 1999.
March 12, 1999 Meeting
Chad Leiby led another CLA meeting at his church on or
about March 12, 1999. He had arranged for a notary public to
be present. Employees were asked to sign a notarized state­
ment as to whether or not they had signed a Local 150 authori­
zation card.26 Many, if not all, of the employees signed such
affidavits. Based on Leiby’s testimony that he kept Richard
Niblock informed on every decision he made, I infer that Leiby
reported the results of his survey to Richard Niblock. Both
Local 150 and the CLA filed representation petitions with the
Board in early February 1999. No election has been conducted
due to the unfair labor practice charges filed by Local 150.
Respondent Violated Section 8(a)(2) and (1) of the Act in Ren­
dering Unlawful Assistance and Support to the Christian
Labor Association
Section 8(a)(2) provides that it shall be an unfair labor prac­
tice for an employer “to dominate or interfere with the forma­
tion or administration of any labor organization or contribute
financial or other support to it.” The allegations of the com­
plaint and the arguments made in the General Counsel’s brief
are limited solely to assistance allegedly rendered by Richard
Bunn at the CLA meetings of February 11 (at Eby Pines Res­
taurant), February 23 (in the basement of the Bristol Missionary
Church), and on about February 25, 1999 (at Connie’s Corner
restaurant in Columbia City).
For reasons set forth later in this decision, I agree with the
General Counsel that Richard Bunn was both a supervisor and
an agent of Respondent in February 1999. I also agree that
Respondent, by Bunn, rendered illegal assistance and support to
the CLA by encouraging employees to sign CLA authorization
cards at the February 11 meeting, by participating in the selec­
tion of a CLA representative for the operator-foremen at the
February 23 meeting and by participating in the selection of a
Columbia City representative for the CLA at the February 25
meeting. Moreover, Bunn’s presence at the Columbia City
meeting reasonably created the impression that the meeting was
endorsed by Respondent and that Chad Leiby spoke of behalf
of Niblock Excavating as well for himself and the CLA.
However, I find that Respondent violated Section 8(a)(2) in
respects not alleged nor argued by the General Counsel, par­
ticularly with regard to the February 23 and 25 meetings. It has
been established, largely by Chad Leiby, a witness called by the
Respondent, on direct examination, that he conferred with
Richard Niblock, on a regular basis, with respect to his activi­
ties on behalf of the CLA. From Leiby’s testimony, it is also
clear that he traveled to Columbia City primarily, if not exclu­
sively, to do business on behalf of the CLA, while being paid
by Niblock and with the knowledge and consent of Richard
Niblock and Ron Modglin. Leiby also established that Re­
spondent made the arrangements for the CLA meeting in Co-
26 Seven witnesses test ified as to what occurred at this meeting.
Three of them, Larry Corbiel, Mike Schaeffer and Ron Yoder, testified
that the notarized statement they signed also indicated whether they
supported the CLA. Four of the witnesses, David Taylor, Todd Plank,
Chad Leiby, and Superintendent David Walter testified that the state­
ment only concerned whether or not they had signed an authorization
card for Local 150. The fact that Walter, a witness called by Respon­
dent, test ified on direct examination that the statement only concerned
whether the employee has signed a Local 150 card, persuades me that
this is what transpired.
64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lumbia City, informed employees of the meeting and facilitated
their presence at the meeting.
Additionally, through the testimony of Larry Corbiel and
David Taylor, as well as the testimony of Respondent’s wit­
nesses Leiby and Wayne Andrews, I conclude that Leiby pre­
sented a wage and benefit package to Niblock employees on
February 23, 1999, on behalf of the CLA and with the prior
knowledge and approval of Richard Niblock. On the basis of
these facts, I conclude that Chad Leiby was an agent of Re­
spondent at the February 23 and Columbia City meetings, Ella
Industries, 295 NLRB 976 fn. 2 (1989), Einhorn Enterprises,
279 NLRB 576 (1986); and Ohmite Mfg., 290 NLRB 1036
(1988).
A rank-and-file employee may become an agent of his em­
ployer via either actual or apparent authority, Communications
Workers Local 9431 (Pacific Bell), 304 NLRB 446 fn. 4
(1991); Domsey Trading Corp., 310 NLRB 777, 801–802
(1993); and Community Cash Stores , 238 NLRB 265 (1978).
Leiby had actual authority to act on behalf on Respondent
through his regular consultations with Richard Niblock and
through the tacit approval of his activities in Columbia City by
Niblock, Ron Modglin, and Richard Bunn. Moreover, he also
acted with the apparent authority of Respondent. When em­
ployees were summoned to Connie’s Corner by Respondent’s
office personnel they would reasonably believe that Leiby was
acting with Respondent’s approval. Moreover, the presence of
Superintendent Richard Bunn and his participation in the meet­
ing would have reinforced that impression. Additionally, nei­
ther Modglin nor Bunn made any attempt to disabuse employ­
ees of this notion.
I therefore find that Respondent, in addition to violating Sec­
tion 8(a)(2) by Richard Bunn, violated the Act by Chad Leiby
and Richard Niblock in presenting a CLA wage and benefit
package on February 23, which had been approved by Richard
Niblock. I conclude that Respondent, through Chad Leiby,
Richard Niblock, and Ron Modglin, violated Section 8(a)(2) in
rendering assistance to the CLA in conjunction with the CLA
meeting in Columbia City on about February 25, 1999.
The Assistance Rendered to the CLA by Richard Niblock, Ron
Modglin, and Chad Leiby has been Fully Litigated and Re­
spondent has been Afforded Due Process with Regard
to these Issues
It is well settled that the Board may find and remedy a viola­
tion even in the absence of a specified allegation in the com­
plaint if the issue is closely connected to the subject matter of
the complaint and has been fully litigated. This rule has been
applied with particular force where the finding of a violation is
established by the testimonial admissions of the Respondent’s
own witnesses, Letter Carriers Local 3825(Postal Service), 333
NLRB 343 (2001); Pergament United Sales, 296 NLRB 333,
334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990); Meisner Elec­
tric, 316 NLRB 597 (1995); Hi-Tech Cable Corp., 318 NLRB
280 (1995); and Williams Pipeline Co., 315 NLRB 630 (1994).
Due process considerations are satisfied when unpled violations
are found which have been fully litigated, Seton Co., 332
NLRB 979, 981 fn. 9 (2000); Forsyth Electrical Co., 332
NLRB 801 (2000).
In the instant matter the complaint alleged 8(a)(2) violations
by virtue of assistance rendered to the CLA by Respondent at
the February 11, 23, and 25, 1999 meetings. While the com­
plaint alleges such assistance only by Richard Bunn, Respon­
dent, through its witness Chad Leiby, established that Richard
Niblock, Ron Modglin, and Richard Bunn were informed of his
activities at these particular meetings on behalf of the CLA
beforehand and that Leiby had at least their tacit approval for
these activities. Through direct examination of its own witness
and cross-examination to which it did not object, Respondent
has established that Leiby was acting as its agent and that assis­
tance was rendered to the CLA not only by Bunn, but also by
Richard Niblock and Ron Modglin. Moreover, when calling
Richard Niblock and Ron Modglin as witnesses after Leiby,
Respondent made no attempt to contradict his testimony re­
garding his conversations with Niblock and Modglin. Finally,
Respondent could have called Bunn as a witness to clarify or
contradict its involvement with regard to the Columbia City
meeting but chose not to do so.
April 1999 Alleged Refusal to Hire or Consider for Hire Philip
Overmyer and Thomas Geffert (Complaint Par. 7(e))
The General Counsel alleges in complaint paragraph 7(e)
that Respondent refused to hire or consider for hire applicants
for employment Philip Overmyer and Thomas Geffert. David
Taylor testified that on or about April 19, 1999, Niblock Super­
intendent Gary Garrett asked him if he knew anyone who was
looking for a job. Taylor testified further that he referred him
to organizers Overmyer and Geffert. Overmyer drafted a letter
memorializing this conversation (GC Exh. 14) and Taylor testi­
fied that he gave it to Garrett.
Superintendent Garret denies that he had any discussions
with Taylor hiring Overmyer and Geffert and that never re­
ceived a letter from Taylor to that effect. Given the fact that
the Union often sends such communications by certified mail
and did not do so in this instance, I find that the General Coun­
sel has not established that Taylor verbally recommended these
organizers for employment in April 1999 or that Garrett ever
received his letter. I therefore dismiss complaint paragraph
7(e).27
Respondent’s August 24, 1999 Meeting at its Bristol Facility
and August 31 Meeting in Columbia City (Complaint Pars.
5(g), (h), and (i))
On August 24, 1999, Gary and Richard Niblock conducted a
meeting for Respondent’s employees in the basement of its
Bristol office. A bank representative discussed Respondent’s
401(k) pension plan and informed employees that Respondent
was increasing its contribution to the plan. After an antiunion
video was shown, the Niblocks put a bag on “union no” buttons
27 In contrast to the purported manner of delivery of GC Exh. 14, the
June 2000 applications of union applicants were sent to Respondent via
certified mail, return receipt requested. Alleged discriminatee Randy
Patton also submitted his application via certified mail. Thus, when the
Union wants to establish that its members applied for work with a non-
union employer, it knows how to do so.
NIBLOCK EXCAVATING, INC. 65
on a table. They remained in the room while employees took
the buttons.
The next week the Niblocks conducted an almost identical
meeting in Columbia City. After the video was shown a bag of
“union no” buttons were made available. Richard and Gary
Niblock remained in the room while a number of the employees
took the buttons. Three employees, Michael Cramer, Rick
Storm, and Kevin Weickart did not take a button. An employer
violates Section 8(a)(1) when it distributes antiunion parapher­
nalia in a manner pressuring employees to make an observable
choice or open acknowledgement of their union sentiment, A.
O. Smith Automotive Products Co., 315 NLRB 994 (1994).
Thus, as alleged in complaint paragraphs 5(g) and (h), Respon­
dent violated the Act in distributing “union no” buttons in a
manner in which an employee would effectively reveal his
support for the Union to the Niblocks if the employee refused
to take one.
Complaint paragraph 5(i) alleges that on about September
15, 1999, an individual well known to Respondent promised
employees increased contributions to their 401(k) plan if the
employees rejected the Union. The record does not support this
allegation with regard to September 15, or any other date. This
allegation is therefore dismissed.
Complaint Paragraph 5(j): Alleged Violations by Superinten­
dent John Bowen on or about October 5, 1999
Prounion employee Larry Corbiel was written up for missing
a day of work on October 5, 1999.28 Corbiel testified that after
giving him the write-up, Superintendent John Bowen said that
he heard that Corbiel had been talking about the Union on the
job and that this would not be tolerated by Niblock.
Bowen testified that he told Corbiel to “quit bugging” em­
ployee Nathan Spyker about the Union. According to Bowen,
Nathan Spyker’s brother, employee Ryan Spyker, complained
to him, so he went to discuss the matter with Nathan Spyker.
Bowen testified that Nathan Spyker told him that “Larry
wouldn’t take no for an answer and every chance he got he was
about [sic] Nathan about joining the 150.”
I dismiss the allegation in complaint paragraph 5(j)(i), that
Bowen created an impression that employees’ union activities
were under surveillance. The General Counsel has not estab­
lished that an employee in Corbiel’s situation would reasonably
believe that surveillance, rather than voluntary disclosures by
employees, brought his solicitation on behalf of the Union to
Bowen’s attention, Sage Dining Service, 312 NLRB 845, 846
(1993).
On the other hand, I find the violation alleged in complaint
paragraph 5(j)(ii), in that Bowen violated Section 8(a)(1) in
instructing Corbiel not to discuss the Union with other employ­
ees, including Nathan Spyker. Corbiel, in soliciting the support
of other employees for the Union, engaged in protected activ-
ity.29 Even if I were to assume the accuracy of Bowen’s hear-
say testimony, I would conclude that Respondent illegally re-
strained and interfered with Corbiel’s Section 7 rights. The fact
that an employee may not want to hear a solicitation, or re-
28 This writeup is not alleged to be an unfair labor practice.
29 See fn. 22, supra.
peated solicitations on behalf of the Union does not negate the
solicitation’s protected status. This is so even if the employee
subjectively considers such appeals as “harassment,” Nicholas
County Health Care Center, 331 NLRB 970 (2000). In the
instant case, however, Respondent has established nothing
more than the fact that Bowen found it objectionable that Cor­
biel was seeking support for the Union from other Niblock
employees.
Alleged Unfair Labor Practices Committed on or about
October 8, 1999 (Complaint Pars. 5(k) and 7(f) and (g))
The General Counsel alleges that Respondent violated Sec­
tion 8(a)(1) on or about October 8, 1999, by refusing to issue
keys to its Bristol facility to prounion employees, by instituting
a drug testing policy and by discriminatorily requiring David
Taylor to submit to a drug screen. On or about the day in ques­
tion, David Taylor and Todd Plank, who were open and promi­
nent supporters of the Union, discovered that the keys which
Respondent had provided them to its facility no longer worked.
Taylor and Plank had been issued such keys, as had all other
operator-foremen working at Bristol.30
At least one operator-foreman, Wayne Andrews, had been
issued new keys without asking for them when the locks were
changed. Plank never asked for a new key and there is no evi­
dence as to whether Taylor did so. Conversely, Respondent has
offered no explanation as to why Taylor was not issued a new
key at the same time as Andrews. I conclude that the record is
insufficient to establish that Respondent failed to issue Taylor
and/or Plank a key in order to interfere with, restrain or coerce
them in the exercise of their Section 7 rights. I therefore dis­
miss complaint paragraph 5(k).
On or about the same day that Taylor discovered that his key
no longer worked, he was required to submit to a drug screen.
Respondent’s drug screening program was instituted long be-
fore the beginning of the Union’s organizing efforts. Therefore
I dismiss complaint paragraph 7(f) that alleges that Niblock
violated Section 8(a)(1) in instituting this policy. Paragraph
7(g) alleges that the policy was discriminatorily applied to Tay­
lor.
As a general proposition I credit the testimony of Kevin
Crouch, an estimator/project manager at Niblock, as to how
Respondent’s drug testing program works. Crouch determines
when some of Respondent’s employees are going to be tested.
Testing is generally done on a monthly basis from May to No­
vember, when Niblock has a full complement of employees.
Crouch enters numbers corresponding to each employee into a
computer program, which selects three employees from Bristol
and two–three employees from Columbia City to be tested. All
five–six employees are generally tested on the same day.
On October 8, the record shows that two Bristol employees
besides Taylor were selected for drug testing. Unlike the test­
ing of Rick Storm and Kevin Weickart, discussed below, there
is nothing suspicious about the timing of Taylor’s selection.
Other than generalized animus towards Taylor’s union activi­
ties, there is nothing that suggests that his selection was other
30 In 1999, Plank was no longer an operator-foreman. His change in
status has not been alleged to constitute an unfair labor practice.
66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
than random. I conclude that this is insufficient to establish
discriminatory motive. I therefore dismiss complaint paragraph
7(g).
Allegations of Threats and Assault by Richard Niblock upon
Larry Corbiel (Complaint Par. 5(l))
Larry Corbiel, one of the leaders of the Union’s organiza­
tional drive, testified that on October 14, 1999, Richard
Niblock approached him on a jobsite and started shaking his
finger at Corbiel saying, “I always knew you were a piece of
shit.” Corbiel then testified that Niblock told him he would
“get him someday,” put his finger in the crease of his nose and
pushed Corbiel’s head back, drawing blood.
Richard Niblock’s testimony regarding this incident is as fol­
lows:
I went on the job site and he [Corbiel] was laughing at me or
smiling or something, standing there, and I didn’t notice him
doing any work. So I stopped and talked to him about that
. . . I said get your butt back to work or do something.
Q. Anything else said in that conversation?
A. Oh, I don’t know. He said . . . smarted off to me.
Said something. I can’t remember what it was.
Q. And what did you say?
A. Just get your butt back to work, do something.
(Tr. 1138–1139.)
I find that Richard Niblock’s testimony falls short of a credi­
ble denial of Corbiel’s account. First of all, he failed to address
Corbiel’s claim of physical contact. Secondly, he never di­
rectly denied threatening Corbiel. I therefore conclude that
Corbiel’s account of the incident is credible. I also conclude
that the threat and physical contact violated Section 8(a)(1).
Although Corbiel did not specifically tie the incident to his
union activity, the record does not suggest any credible alterna­
tive reason for Richard Niblock’s animus towards Corbiel.
Prior to this incident the Union had sent a letter to all Niblock
employees with pictures of Corbiel, Taylor, Todd Plank, and
Scott Cook at the top, informing employees that the Union was
suing Respondent for alleged violations of the State of Indi­
ana’s prevailing wage rate laws. Thus, I conclude that
Niblock’s threats were related to Corbiel’s union activities.
Respondent Videotapes Prounion Employees on Strike (Com­
plaint Par. 5(m)); Discriminatory Drug Testing of Rick Storm
and Kevin Weickart; The Suspension and Discharge of Kevin
Weickart for his Refusal to Submit to a Drug Test (Complaint
Pars. 7(h), (i), and (j))
On Tuesday, October 19, 1999, six prounion employees from
the Bristol facility; Larry Corbiel, David Taylor, Todd Plank,
Scott Cook, Alan Pearson, and Mark Morgan went on strike.
Three prounion employees at the Columbia City facility; Mi­
chael Cramer, Rick Storm, and Kevin Weickart, went on strike
the same day. Richard Niblock arranged for photographs and
videotapes to be taken of the Bristol strikers. The Board has
long held that absent proper justification, the photographing of
employees engaged in protected activities violates the Act be-
cause it has a tendency to intimidate, F. W. Woolworth Co., 310
NLRB 1197 (1993). As no justification for the photographing
and videotaping of the strikes has been offered, I conclude that
Respondent violated Section 8(a)(1) as alleged in paragraph
5(m) of the complaint.
On Thursday, October 21, the strikers offered to return to
work unconditionally. Cramer, Storm, and Weickart returned
to work at a jobsite near Columbia City on Friday morning,
October 22. Within an hour and half, Superintendent Richard
Bunn appeared at this jobsite and informed Storm and Weickart
that they had been selected for a drug test. Storm accompanied
Bunn to the testing facility; Weickart refused to take the test
and said he had to make a telephone call before deciding
whether to submit to the test on another day. Area Manager
Ron Modglin told Weickart that he had 5 days to decide
whether to take the test.
The next day, Weickart worked a half day as did all the
members of his crew. Modglin told Weickart that he had talked
to Gary Niblock and Respondent was afraid that he would be
able to neutralize the evidence of drugs in his system unless he
submitted to the test that day. Modglin told Weickart that he
would fire him if Weickart refused to take the test. Weickart
again declined to submit to the drug sampling and was dis­
charged.
I conclude that the decision to require Storm and Weickart to
submit to drug testing was discriminatorily motivated. First of
all, the timing of the test, immediately after the strike is suspi­
cious. While Respondent claims that there is no set schedule
for its drug testing, it has failed to offer any explanation for
why tests were conducted on October 22.
Moreover, Estimator Kevin Crouch, who administers the
drug testing program, testified that drug tests are generally done
monthly and that employees from Bristol and Columbia City
are tested on the same day. Respondent has offered no
explanation for why there was drug testing on or about October
8 and again on October 22. Moreover, Crouch conceded that it
is possible to assure the selection of certain employees by
entering only a few numbers into the computer program. While
he denies ever doing this, I do not find his denial credible.
Given the proximity to the strike, the departure from normal
practice by testing twice in the same month and not testing at
both facilities on the same day, I infer the “random” selection
process was rigged so that union supporters were selected for
testing. Respondent also had reason to suspect that Weickart
might test positive, which gave it an additional reason to select
Weickart and is part of the reason I conclude that his selection
was not the result of a random process.31 Niblock employees
who test positive for drugs are required to undergo rehabilita­
tion and submit to followup testing until the results are nega­
tive.
Since the decision to have drug tests on October 22, was mo­
tivated by a desire to retaliate against employees for union ac­
tivity, the selection process was designed to assure the testing
31 There were at least rumors that drug paraphernalia had been found
in Weickart’s truck a few weeks earlier.
Given the relatively small number of employees at Columbia City
(less than 20), I assume that it is well within the realm of probability
that if numbers corresponding to all the employees were put into the
computer, Storm and Weickart’s could have been randomly selected.
However, for the reasons set forth above, I conclude a bona fide ran­
dom selection did not occur.
NIBLOCK EXCAVATING, INC. 67
of union strikers and Respondent did not discharge employees
who failed their drug tests, I find that Kevin Weickart would
not have been suspended or discharged in absence of his union
activities. See Eldeco, Inc., 321 NLRB 857 (1996); Wayne
Mfg. Co., 317 NLRB 1243, 1245 (1995); CBF, Inc., 314 NLRB
1064, 1075–1076 (1994).32 I therefore find a violation of Sec­
tion 8(a)(3) and (1) as alleged in complaint paragraphs 7(h), (i),
and (j).
December 1999 Layoff of Michael Cramer and Discriminatory
Change in Work Assignment (Complaint Pars. 5(n)–(w);
7(k) and (l))
Michael Cramer first worked for Niblock Excavating in the
summer of 1997. After working elsewhere in 1998, he was
rehired by Ron Modglin in early 1999 at Columbia City. When
interviewing with Modglin and Superintendent Richard Bunn,
Cramer told them he would need to be employed during the
winter months. Bunn told him that he could drive a truck to
Respondent’s asphalt plant during the winter.
After working for Niblock for several months, Cramer was
assigned to the job of paver operator and operated the paving
machine for the rest of the summer. He operated the paver on
prevailing wage jobs, where he made $23 per hour, compared
with the $17.40 per hour that laborers were paid. The paver job
also entails much less manual labor.
On August 31, 1999, Cramer was one of three employees
who did not take a “union no” button in the presence of Richard
and Gary Niblock, when they were placed on a table at an em­
ployee meeting. Shortly thereafter, Cramer signed a union
authorization card and wore a Local 150 hat to work. On Octo­
ber 19, he was one three prounion Columbia City employees to
go on strike for 2 days. On or about December 14 or 15, the
Union sent all Niblock employees a letter, which was highly
critical of Respondent. At the top of the first page were photos
of eight employees, including Cramer.
A few days afterwards, on or about December 18, 1999,
Richard Bunn informed Cramer that he was being laid off for
the winter. Cramer asked Bunn why he was being laid off.
Bunn told him the layoff was the result of the last union letter.
Only three or four employees at Columbia City worked for
Respondent throughout the winter of 1999–2000; Modglin,
Bunn, Terry Noel, the dirt foreman, who Respondent had hired
in March 1999, and possibly Mike Wittekind, the asphalt plant
operator. Everyone else, including Paving Foreman Mike
Wirick, was laid off until the spring.33
32 I decline to credit Kevin Crouch’s test imony that the Respondent
discharged another employee who allegedly submitted a sample of
somebody else’s urine and then subsequently tested positive. Given
Crouch’s failure to adequately explain the suspicious circumstances of
the October 22 test and the lack of any specificity regarding the circum­
stances of this other employee’s discharge, e.g., the name of the other
employee who was discharged, I am unwilling to take Crouch’s test i­
mony at face value. Moreover, it appears that it would be more consis­
tent with Respondent’s drug testing policies to have required such an
employee to submit to drug counseling and have a supervisor accom­
pany the employee to all subsequent testing to assure that the employee
did not cheat in submitting urine samples.
33 Many employees desired to be laid off over the winter.
On February 7, 2000, Superintendent Richard Bunn called
Cramer at home. Bunn told Cramer that he would not have
been laid off had it not been for the Union’s letter. On Febru­
ary 11, Cramer, who had worked over the winter for a union
contractor, visited Modglin’s barn, which was used by Respon­
dent for storage. Bunn met Cramer there and told him again
that he had screwed himself with the Union’s letter but that he
could “fix” everything with the Niblocks by withdrawing from
Local 150. That evening Bunn called Cramer at home and
repeated his suggestion over the telephone. Bunn also told
Cramer that if Local 150 became the bargaining representative
for Niblock, Ron Modglin could send Cramer back to the union
hall and get another employee to replace him.
In early April 2000, Cramer was recalled by Respondent to
work at Columbia City. His wages at Niblock were supple­
mented by $400 per month he was being paid by the Union as a
“volunteer organizer.” In 2000, Cramer mainly performed
laborer’s work and never ran the paver. On or about April 5,
Bunn told him that he would still be running the paver if it
weren’t for the “union shit.” Bunn also told Cramer he would
be put back on the paver if he withdrew from Local 150. Later
in April, Bunn told Cramer that Respondent couldn’t have him
running the paver if he was going out on strike.
Bunn had an number of other conversations with Cramer in
April, May, and June 2000, in which he again indicated that
Cramer was not running the paver due to his union affiliation
and activities, and that he could get the paver job back by with-
drawing from the Union in writing. On June 9, he became very
angry at Cramer and accused him of giving Terry Noel’s ad-
dress to the Union.
I find that Respondent, by Richard Bunn, violated Section
8(a)(1) as alleged in complaint paragraphs 5(o)–(w), by re-
straining, coercing, and interfering with Michael Cramer’s Sec­
tion 7 rights by threatening and interrogating him about his
union affiliation and activities. I also find Respondent violated
the Act by promising Cramer benefits if he abandoned his sup-
port for the Union.
On the basis on Bunn’s statements to Cramer, I also con­
clude that Respondent laid Cramer off in December 1999 and
removed him from the paver operator’s job in April 2000 be-
cause of his union activities. Thus, I conclude that Respondent
violated Section 8(a)(3) and (1) as alleged in complaint para-
graphs 7(k) and (l). In view of the admissions by Richard
Bunn, I reject Ron Modglin’s alternative explanation for the
layoff, i.e., that Terry Noel had a class A commercial driver’s
license while Cramer only had a class B license.
Richard Bunn was called as an adverse witness by the Gen­
eral Counsel, but was never called by Respondent. Thus
Cramer’s account of his conversations with Bunn are uncontra­
dicted. Moreover, when a party fails to call a witness who may
reasonably be assumed to be favorably disposed to it, an ad-
verse inference may be drawn regarding any factual question on
which the witness is likely to have knowledge, International
Automated Machines, 285 NLRB 1122, 1123 (1987). I draw
such an inference and conclude that if he had been called as a
witness by Respondent, Bunn’s testimony under oath would
have confirmed the substance of his conversations with Cramer.
68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Status of Richard Bunn
Richard Bunn was hired by Niblock in 1997 to be a working
foreman. In 1998, he was promoted to superintendent.34 Bunn
reports directly to Respondent’s area manager, Ron Modglin
and is one of three salaried employees at Columbia City.35
Bunn determines how work is to be performed and which
pieces of equipment are to be used on a project. Bunn, Modg­
lin, and Estimator Mike Maggert determine crew assignments.
Bunn’s work and his decisions are reviewed by Modglin very
minimally.
Bunn supervises the paving crew foreman, Mike Wirick, an
employee with 21 years of experience, and the dirt crew fore-
man, Terry Noel. He has the authority to resolve any differ­
ences of opinion between these foremen. The foremen are to
contact Bunn if there is any problem on their jobsites they can-
not handle. Bunn spends a significant amount of time driving
between Niblock’s jobs to check on their progress. He spends
some amount of time operating equipment.36 Bunn also pro­
vides assistance to estimator Mike Maggert, primarily in deter-
mining how many hours it will take for Niblock to complete a
project.
An example of Bunn’s status with regard to rank-and-file
employees concerns the drug testing scheduled for Rick Storm
and Kevin Weickart on October 22, 1999. Modglin put Bunn
in charge of informing these employees that they were selected
for drug testing and taking them to the test facility. Bunn also
has the authority to discipline employees in conjunction with
Modglin. Bunn has the authority to sign written disciplinary
notices; the foremen do not.
Richard Bunn is clearly an agent of Respondent. A person is
an agent under Board law if employees would reasonably be­
lieve that the individual was reflecting company policy and
speaking and acting for management, Community Cash Stores ,
238 NLRB 265 (1978). This is certainly true in the case of
Bunn. For example, when Bunn showed up at their jobsite to
tell Storm and Weickart that they were required to go for a drug
test, they would reasonably believe that he was imparting this
34 I conclude that Bunn has been a superintendent and statutory su­
pervisor since at least April 1998 on the basis of the testimony of David
Bogner. Moreover, Modglin testified that Bunn, but not Foreman
Randy Kindig (Mike Wirick’s predecessor), had the authority to sign a
written warning notice issued to an employee at that time, GC Exh. 25,
exhibit R-1.
35 The other two are Modglin and Asphalt Plant Operator Mike Wit­
tekind. Foremen Wirick and Noel are hourly employees.
36 It is impossible to determine what percentage of his time, Bunn
actually spends doing construction work. He gave two confusing and
somewhat inconsistent answers to questions regarding this issue. When
asked how his job duties changed when he became a superintendent,
Bunn initially replied, “Was taken off the equipment a bit more. Freed
up a little bit from the equipment, unless we get real super busy. Then
I’m back on it.” In the next breath he claimed to spend 60–65 percent
of his time operating equipment. I do not find the last statement credi­
ble. In this regard, I credit Rick Storm’s testimony that he saw Bunn
daily and sometimes several times a day when Bunn came to his jobsite
to consult with Storm’s foreman.
Even Modglin operates construction equipment when Respondent is
very busy.
information to them on behalf of Niblock Excavating and was
speaking and acting for the Niblocks and Ron Modglin.
Section 2(11) of the Act, defines “supervisor” as “any indi­
vidual having authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to direct
them, or to adjust their grievances, or effectively to recommend
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.”
Since a “supervisor” is not an “employee,” a party seeking to
exclude an individual from the category of an “employee” has
the burden of establishing supervisory authority. The exercise
of independent judgment with respect to any one of the factors
set forth in Section 2(11) establishes that an individual is a
supervisor. I conclude that Richard Bunn was a “supervisor” on
the basis of his authority to responsibly direct employees in
their work, as well as to discipline or effectively recommend
the discipline of employees. Bunn’s authority in these areas
was not routine or clerical and did require the use of independ­
ent judgment. I would note that Bunn appears to be the Co­
lumbia City counterpart of Superintendents Roger DeBolt, John
Bowen, and Gary Garrett, who Respondent concedes are super-
visors at Bristol.
Refusal to Hire or Consider Brandon Taylor for Hire on or
about April 4, 2000 (Complaint Par. 7(m))
Brandon Taylor, the son of prounion operator-foreman
David Taylor, went to Respondent’s Bristol office with his
mother on about April 4, 2000, to apply for employment. The
receptionist told them Niblock was not hiring. Mrs. Taylor
then entered the office and asked for Julie Crawford, Respon­
dent’s secretary. Julie Crawford told Mrs. Taylor that she
would talk to somebody about a job for Brandon.37 She appar­
ently did so since Richard Niblock became aware of the fact
that Brandon Taylor was seeking employment with his com­
pany. Respondent did not offer Brandon Taylor a job.
Within 30 days of Brandon Taylor’s visit to the Niblock of­
fice, Respondent hired at least five new employees. David
Burkey was hired on April 6. Like Brandon Taylor, he appears
to have had no prior construction experience. On April 10,
Respondent hired Dale Davidhizer, who also apparently had no
prior construction experience. The same day, Respondent hired
Shane Stoppenhagen to work at Columbia City. The record is
devoid of any indication that Stoppenhagen had any prior con­
struction experience. The same is true of John Lukins and Ja­
son Edwards, hired on May 1, to work at Columbia City.
Richard Niblock offered two reasons for Respondent’s fail­
ure to hire Brandon Taylor. First, he “might have” considered
the fact that several years previously both David Taylor and
Brandon’s brother were arrested for a marijuana-related of­
fense. I find this explanation pretextual because Respondent
hired a number of employees, including Michael Walton, based
in part on David Taylor’s recommendation, after his arrest.
37 Although the testimony regarding the conversation between Mrs.
Taylor and Julie Crawford is hearsay evidence, Richard Niblock’s
testimony confirms that he was aware that Brandon Taylor had sought
employment with Respondent.
NIBLOCK EXCAVATING, INC. 69
The second reason is that David Taylor did not personally
recommend his son for employment or ask Respondent to hire
him. I find this second rationale pretextual as well because this
“requirement” for employment was applied disparately. All
Richard Niblock could recall about David Burkey was that he
“thinks” Burkey went to employee James Sonntag’s church.
He did not testify that Sonntag recommended Burkey or asked
Respondent to hire him. Niblock testified that Dale Davidhizer
was a friend of his daughter; he did not testify that his daughter
or anyone else recommended or asked him to hire Davidhizer.
Ron Modglin’s explanation for the hiring of Shane Stoppen­
hagen was, “trying to remember . . . I believe he was a friend of
Scott Harris.” Respondent has made no claim that anyone rec­
ommended or asked it to hire Stoppenhagen. Similarly, Modg­
lin testified that John Lukins was a friend of Foreman Mike
Wirick. He did not testify that Wirick recommended or asked
him to hire Lukins.
Applying the FES criteria to Brandon Taylor, I conclude that
Respondent was hiring, that Brandon Taylor was qualified for
the positions Respondent was filling—since there were no
qualifications other than perhaps having no known or suspected
association with Local 150, and that animus towards his fa­
ther’s activities and/or a suspicion that Brandon Taylor might
support the Union played the decisive role in Respondent deci­
sion not to hire him.38 I therefore find that Respondent violated
Section 8(a)(3) and (1) in failing and refusing to hire Brandon
Taylor since April 4, 2000.
Refusal to Hire/Consider for Hire: 11 Union-Affiliated Appli­
cants Since about May 15, 2000 (Complaint Par. 7(n))
David Taylor testified that he placed a letter recommending
his son Brandon Taylor and 10 union apprentices for employ­
ment with Respondent in Gary Garrett’s mailbox. Garrett de­
nied ever receiving such a letter. I dismiss this paragraph of the
complaint because the General Counsel has not established that
Respondent received applications for employment from these
individuals.
Refusal to Hire/Consider for Hire: Randall Patton (Complaint
Par. 7(o))
Randall Patton worked for Respondent for 2 to 3 months in
1994 as a union salt. He did not disclose his union affiliation
until about 3 weeks prior to the end of his employment. Patton
contends he was fired by Respondent for union activity. Re­
spondent contends he quit. Unfair labor practice charges were
filed on Patton’s behalf, which were settled by the General
Counsel and Respondent. As part of the settlement, Niblock
agreed to expunge from Patton’s records two written warnings
he received after his employment ended and agreed that they
would not be used against him in any way.
In April 2000, Patton went to Respondent’s Bristol office
with 10 to 12 other Local 150 members and attempted to apply
for work. He and the other members were told that Respondent
38 It does not matter whether a refusal to hire was motivated by the
union activities of the applicant or the union activities of the applicant’s
relative, Crown Cork & Seal Co., 255 NLRB 14, 42 (1981); Copes-
Vulcan, Inc., 237 NLRB 1253, 1257 (1978), enfd. in pertinent part 611
F.2d 440 (3d Cir. 1979).
was not accepting employment applications. In June, Patton
sent Respondent a certified letter asking for employment. He
received a return receipt but no response from Niblock.
When asked why Patton was not offered employment in June
2000, Richard Niblock, who conceded that he saw Patton’s
letter, testified:
when he was working for us, he was running an off road truck
and he wrecked it and we felt that he was responsible for the
damage that was caused to it and then he got on a dozer and
he hit one of our hydraulic excavators with a doze.
(Tr. 47.)
Richard Niblock later testified that these incidents were not
the subjects of the warnings that Respondent agreed to remove
from Patton’s records and that he was not disciplined for these
incidents. I find it incredible that Respondent would send Pat-
ton two disciplinary notices but not document incidents that
were sufficiently serious that it would never consider hiring
him again. Rather, I conclude that the reason given by Niblock
for refusing to hire Patton is pretextual and Respondent refused
to hire Patton because of his union affiliation and activities.
Applying the FES criteria to Patton, I find the General Coun­
sel has established a refusal to hire violation. Respondent hired
numerous employees in May, June, and July 2000. Patton, who
had been a journeyman operating engineer for 7–8 years when
he applied, was certainly qualified by experience and training
for the positions into which these employees were hired. Re­
spondent knew Patton was a member of Local 150 from his
prior employment with Niblock. I find that antiunion animus
contributed significantly to Respondent’s decision not to hire
Patton. It is clear from this record that Respondent went to
great lengths to avoid hiring union sympathizers, particularly
those it suspected would try to assist Local 150 in organizing.
These efforts included discriminatorily changing its hiring pro­
cedures so as to make it nigh impossible for any union organiz­
ers, full-time or volunteers, to acquire employment with
Niblock. Further, I have found Respondent’s affirmative de­
fense pretextual. The degree to which Respondent went to
avoid hiring union salts and its pretextual explanation for its
refusal to hire Patton establish discriminatory motivation, Fluor
Daniel, Inc., 304 NLRB 970, 971 (1991); Reeves v. Sanderson
Plumbing Products, 530 U.S. 133 (2000).
Although, it is not clear when in June 2000, Patton submitted
an application, there was an opening available for him regard-
less of when he applied. Respondent hired new employees on
May 1, 8, 10, and 22; June 5, 6, and 12; and July 5. Thus, I
conclude that Respondent violated Section 8(a)(3) and (1) in
refusing to hire Randall Patton.
Alleged Refusal to Hire/Consider to Hire of Six Union Em­
ployees who Applied June 28, 2000 (Complaint Par. 7(p))
On June 28, 2000, union organizer Philip Overmyer sent Re­
spondent six virtually identical letters via certified mail, return
receipt requested.39 Each letter was signed by or for a full-time
39 Respondent stipulated that it received all six letters. It is unclear
when they were received. This may have significance with regard
whether there were job openings for the six applicants, if Niblock’s 30-
70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employee of the Union. They were Business Agent Kenneth
Welsh, Overmyer, and organizers Thomas Geffert, Randy Hill,
Michael Kresge, and Delbert Watson. These letters began by
reciting that the Union had been informed by the director of
appeals of the NLRB’s Office of General Counsel that Respon­
dent had a “longstanding policy of hiring only former employ­
ees, friends of employees or students.”
Each letter also stated that the applicant had tried to apply for
work with Niblock at both the Bristol and Columbia City of­
fices and had never been allowed to complete a job application.
The letters recited that the applicant was a journeyman heavy
equipment operator, who was willing to accept employment at
any position, including laborer. Each letter also stated that the
applicant was “known as a union sympathizer, organizer and
job applicant by several of your management employees . . . I
wish to ascertain how to get around your ‘not-taking-
applications’ signs and ‘not hiring’ or ‘not accepting applica­
tions’ assertion in order to be considered for hire or hired on the
same basis that others, who are not known union sympathizers,
who have been considered for hire or hired.” The letters ended
with an attachment signed by five Niblock employees: David
Taylor, Larry Corbiel, Alan Pearson, Ben Joy, and Mark Mor­
gan recommending each applicant for employment. Niblock
Excavating made no response to any of the letters.
In responding to questions from the General Counsel as to
why organizer Kresge was not hired, Richard Niblock, first
replied that “[w]e thought that it [the letter] looked kind of
argumentative. Like he was . . . trying to get around our—
some kind of hiring policy or something.” This testimony is
essentially a concession that Kresge and the other organizers
were not considered for hire due to antiunion animus. A few
moments later, Niblock added, “We must not have needed any-
body at the time.” Richard Niblock gave similar answers with
regard to other June 28 applicants. Despite this contention,
Respondent rehired Scott Harris on July 5, 2000, Brodie Del­
camp on July 31, Matt Toby on August 1, Ryan Spyker on
August 7, Damien Payne on August 10, David Taylor on Au-
gust 13, Adam Gilbert on August 22, and Justin Stabler on
August 24.
On the last day of the hearing, while testifying on direct ex­
amination, Richard Niblock added the contention that Respon­
dent prefers to hire employees without experience over those
with experience. However, he conceded that there have been
exceptions to this policy. I find pretextual Richard Niblock’s
claim that these six applicants were not hired because Respon­
dent has a preference for employees with no prior experience
over those with experience. Not only has Niblock not uni­
formly adhered to this preference, it has offered no explanation
as to why it gives such a preference in some cases and not oth­
ers. Moreover, Ron Modglin’s testimony regarding his skepti­
cism regarding Michael Young’s experience belies the assertion
that Respondent holds an applicant’s prior construction experi­
ence against him.40
day shelf life for applications was not discriminatorily motivated. Re­
spondent hired one new employee on July 31 and another on August 1.
40 Respondent also wanted to hire Steven Storm because of his ex­
perience as a paver operator. In assessing Respondent’s motive for
The General Counsel has established a refusal-to-consider
and a refusal-to-hire violation.
The General Counsel has established a refusal-to-hire viola­
tion with regard to the June 28, 2000 applicants. I have found
that Respondent changed its hiring policy between March and
May 1998 so that applications remained on file for only 30 days
instead of 6 months. I have also found that this change was
discriminatorily motivated in that it was a response to the ap­
plication by Local 103 organizer Michael Young. Respondent
hired more than six new employees within 6 months of its re­
ceipt of the June 28, 2000 union applications.41 Even if the 30-
day policy were not discriminatory, the General Counsel estab­
lished a refusal to hire violation. Respondent hired at least one
and possibly three employees within 30 days of receiving the
union applications. The six union applicants are qualified to do
the work performed by Respondent’s employees and they were
not considered for hire or hired due to their union affiliation
and activities. Niblock has not established an affirmative de­
fense to either the refusal to consider or refusal to hire.
CONCLUSIONS OF LAW
Respondent violated Section 8(a)(1) of the Act by:
1. Sending its February 8, 1999 letter to its employees in­
structing them to report to their foreman if they feel threatened
or harassed by other employees soliciting them to sign union
authorization cards.
2. By Richard and Gary Niblock, on about August 24 and
31, 1999, remaining in a room where they could determine
which employees took a “union no” button and which employ­
ees did not do so.
3. By John Bowen, on or about October 5, 1999, in instruct­
ing Larry Corbiel to stop soliciting an employee to sign a union
authorization card and/or to support the Union.
4. On about October 14, 1999, by Richard Niblock, by
threatening and touching Larry Corbiel in a hostile manner due
to Corbiel’s union activities.
5. On about October 19, 1999, by photographing and taking
videos of employees engaged in lawful picketing at Respon­
dent’s Bristol facility.
6. By Richard Bunn, on about February 7, 2000, in inform­
ing Michael Cramer that he had been laid off over the winter
and had not received a raise because of his union activities.
7. By Richard Bunn, on various occasions between February
and June 2000, in informing Michael Cramer that he would
have worked over the winter of 1999–2000 but for his union
activities, that he had been laid off due to union activity; in
neither considering nor hiring the June 2000 union applicants, I note
that when an employer vacillates in offering a rational and consistent
account of its actions, an inference may be drawn that the real reason
for its conduct is not among those asserted, Black Entertainment Tele­
vision, 324 NLRB 1161 (1997). I draw such an inference here.
41 Respondent has not raised any 10(b) defenses in this case. How-
ever, Sec. 10(b) would not bar the finding of a violation in light of the
application of the 30-day rule to applicants in June 2000, regardless of
the fact that the Union was informed of the change in May 1998. I
would also note that the record indicates that Respondent, on a number
of occasions, refused to allow union applicants to update their applica­
tions.
NIBLOCK EXCAVATING, INC. 71
soliciting Michael Cramer to withdraw his support for the Un­
ion; informing Michael Cramer that he would be running the
paving machine were it not for his union activities; promising
Cramer that he would be allowed to operate the paving machine
if he renounced his affiliation with and support for the Union
and interrogating Cramer about his union activities.
Respondent violated Section 8(a)(2) and (1) by rendering as­
sistance and support to the Christian Labor Association:
1. By Richard Bunn, on February 11, 1999, in encouraging
employees to sign cards authorizing the Christian Labor Asso­
ciation (CLA) to be their collective-bargaining representative.
2. By informing employees through its agent Chad Leiby on
February 23, 1999, as to the benefits that would be granted to
employees by Respondent if they chose the Christian Labor
Association (CLA) as their collective-bargaining representative
and by participating in the selection of a CLA representative for
the operator-foremen through Richard Bunn.
3. By its agents including Richard Niblock, Ronald Modglin,
Richard Bunn, and Chad Leiby in arranging for a CLA meeting
on about February 25, 1999, at the Connie’s Corner Restaurant
in Columbia City, Indiana, in encouraging and facilitating the
attendance of employees at that meeting, by compensating
Chad Leiby for time spent promoting the CLA and by Richard
Bunn’s participation in the selection of a Columbia City repre­
sentative for the CLA.
Respondent violated Section 8(a)(3) and (1) of the Act by:
1. Refusing to hire and consider for hire Michael Young
since about February 1, 1999.
2. Since at least early 1999 in enforcing discriminatory hir­
ing policies designed to exclude union members or supporters
from employment, including the refusal to accept employment
applications, considering employment applications for only 30
days, purporting to hire only former employees, friends of em­
ployees or students, and purporting to favor employees with no
experience over union supporters with experience.
3. Requiring Rick Storm and Kevin Weickart to submit to a
drug screen on about October 22, 1999.
4. Suspending and discharging Kevin Weickart on about
October 22 and 23, 1999, for his refusal to submit to a dis­
criminatorily motivated drug screen.
5. Laying off Michael Cramer for the winter on about De­
cember 22, 1999.
6. Removing Michael Cramer for the job of paver operator
since April 4, 2000.
7. Refusing to hire or consider for hire Brandon Taylor since
April 4, 2000.
8. Refusing to rehire or consider for hire Randall Patton
since about June 12, 2000.
9. Refusing to hire or consider for hire since June 28, 2000,
Thomas Geffert, Randy Hill, Michael Kresge, Philip Overmyer,
Delbert Watson, and Kenneth Welsh.
REMEDY
Having found that the Respondent has engaged in certain un­
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu­
ate the policies of the Act.
The Respondent having discriminatorily discharged Kevin
Weickart, discriminatorily laid off, demoted and denied a raise
to Michael Cramer, and having discriminatorily refused to hire
other employees, it must offer them reinstatement or instate­
ment, and make them whole for any loss of earnings and other
benefits, computed on a quarterly basis from date of discharge
to date of proper offer of reinstatement or instatement, less any
net interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]