Oklahoma Installation Co.

National Labor Relations Board - Board Decisions

Dec 11, 1992

309 N.L.R.B. 776 (N.L.R.B. 1992)

775
309 NLRB No. 119
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In adopting the judge’s finding of antiunion animus underlying the
8(a)(3) violations, Members Oviatt and Raudabaugh find it unneces-
sary to rely on Administrative Law Judge Joan Wieder’s decision in
Oklahoma Installation, Inc., Cases 16–CA–14647–1 and 16–RC–
9320 (Apr. 18, 1991).
We correct three inadvertent errors of the judge. First, the judge
incorrectly refers at several points to the allegedly discriminatory
joint layoff of Burgess and employee Ralph Smith as having oc-
curred on October 10, 1990, rather than on October 9. Second, in
sec. II,G,1 of her decision, the judge stated that an 8(a)(1) violation
occurred when employee Roger Davis told Burgess that the Re-
spondent was discriminating against union members in hiring. As the
judge correctly found in sec. II,A, of her decision, that information
was given to Davis by Supervisor Taylor. These inadvertent errors
do not affect the results in this case.
2See Jefferson Stores, 201 NLRB 672 (1973) (unlawful interroga-
tion allegation dismissed where, inter alia, ‘‘vote no’’ cards distrib-
uted at plant doors did not have pins by which they could be affixed
to clothing).
Oklahoma Installation Company and Carpenters
Local Union No. 223, affiliated with United
Brotherhood of Carpenters and Joiners of
America, AFL–CIO and Rick Beattie. Cases
26–CA–14107 and 26–CA–14249
December 11, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On April 16, 1992, Administrative Law Judge
Nancy M. Sherman issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions only to the extent consistent with this Deci-
sion and Order.
1. The judge found that the Respondent violated
Section 8(a)(1) through statements by Supervisor Dar-
win McBrayer on two occasions in October 1990, dur-
ing the representation election campaign. On October
10, McBrayer told employee James Burgess, a union
activist, that Burgess had ‘‘hurt [his] feelings’’ by
starting ‘‘all this Union bull’’ and by bringing union
T-shirts and union ‘‘work rule’’ booklets onto the job
and handing them out to employees. On October 12,
McBrayer angrily told employee James Stewart, an-
other union activist who openly distributed union ma-
terials to employees, that he was ‘‘disappointed’’ with
Stewart and Burgess because of their union activities
and that he had thought that they would ‘‘shoot
straight’’ with him.
In finding these statements unlawful, the judge (at
slip op. 21) relied on cases in which the Board found
that supervisors’ statements violated Section 8(a)(1) by
equating protected activity with disloyalty to the em-
ployer. We do not find those cases apposite. Absent
some direct reference by McBrayer to disloyalty, we
do not find that his expression of purely personal opin-
ions about Burgess’ and Stewart’s protected activities
in the circumstances here constitutes interference, coer-
cion, or restraint with respect to the employees’ Sec-
tion 7 rights. Accordingly, we shall dismiss the com-
plaint allegations regarding McBrayer’s comments to
employees in October 1990. Seaward International,
270 NLRB 1034, 1042 (1984).
2. The judge also found that the Respondent violated
Section 8(a)(1) when, about 1 week before the Novem-
ber 15, 1990 election, McBrayer distributed T-shirts
and caps bearing the Respondent’s logo, along with a
letter urging a ‘‘no’’ vote, to employees who had not
requested such garments.
We disagree with the judge’s acceptance of the Gen-
eral Counsel’s theory of the 8(a)(1) violation—that the
distribution of shirts and caps at the same time as the
‘‘vote no’’ letter constituted unlawful interrogation of
employee sentiment concerning the pending election.
We find the cases relied on by the judge to be distin-
guishable. In Lott’s Electric Co., 293 NLRB 297, 303–
304 (1989), enfd. mem. 891 F.2d 601 (3d Cir. 1989);
Houston Coca-Cola Bottling Co., 256 NLRB 520
(1981); and Maremont Corp., 294 NLRB 11, 40
(1989), the unlawful interrogations consisted of distrib-
uting ‘‘vote no’’ buttons or caps which, when worn or
rejected by the employees, would signal their voting
predispositions to management.
In this case, although the items of clothing distrib-
uted by the Respondent did display the company logo,
the record does not reveal that they included any addi-
tional writing or insignia indicating an explicit
proemployer or antiunion preference in the upcoming
election. Nor does the record show that any employee
was required or even asked to wear the clothing prof-
fered by the Respondent, to display or show to others
the ‘‘vote no’’ letter,2 or refrain from wearing or dis-
playing union insignia.
Thus, in the circumstances of this case, we do not
find that the Respondent attempted to pressure employ-
ees to make an observable choice or open acknowl-
edgement concerning their campaign position. We shall
therefore dismiss the 8(a)(1) allegation that the Re-
spondent unlawfully interrogated employees by distrib-
uting company shirts and caps even though accom-
panied by antiunion literature.
776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The National Labor Relations Board orders that the
Respondent, Oklahoma Installation Company, Owasso,
Oklahoma, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Telling employees that their union activity will
hurt the employment of union sympathizers and that
the Respondent is discriminating against union mem-
bers in hiring.
(b) Forbidding employees, without expressing any
limitations on location, from distributing clothing
which shows support of unionization, at times when
neither the distributor not the recipient of such clothing
is supposed to be actively working.
(c) Discouraging membership in Carpenters Local
Union No. 223, affiliated with United Brotherhood of
Carpenters and Joiners of America, AFL–CIO, or any
other labor organization by laying off employees, by
failing or refusing to hire employees, or by otherwise
discriminating in regard to hire or tenure of employ-
ment or any term or condition of employment.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) If the Respondent’s job at the Hickory Hollow
Mall in Davidson County, Tennessee, has not yet been
completed, offer employment on that job to Rick
Beattie, James Burgess, Danny Cason, Flem Roger
Davis, Michael McCutcheon, Ronald Skipper, James
Michael Stewart, and Philip Wood.
(b) Make these employees, the estate of William
Wooten, and any other employees whole for any loss
of pay they may have suffered by reasons of the dis-
crimination against them, in the manner set forth in the
remedy section of the judge’s decision.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at all of its jobs in Davidson County, Ten-
nessee, copies of the attached notice marked ‘‘Appen-
dix.’’3 Copies of the notice, on forms provided by the
Regional Director for Region 26, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Mail a signed copy of the notice to the following
employees:
(1) Every employee who worked for the Respondent
on the Green Hills Mall job on or after July 9, 1990.
(2) Unless the Respondent’s Hickory Hollow Mall
job is still in progress, to every employee who worked
for the Respondent on that job.
(3) As to other jobs in Davidson County completed
by the Respondent after July 9, 1990, to every car-
penter, apprentice carpenter, and carpenter’s helper
who worked for the respondent on that job on or after
that date.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that those allegations of the
complaint for which no violations have been found are
dismissed.
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.
WE WILL NOT tell you that your union activity will
hurt the employment of union sympathizers or that we
are discriminating against union members in hiring.
WE WILL NOT forbid you, without expressing any
limitation on location, from distributing clothing which
shows support of unionization, at times when neither
the distributor nor the recipient of such clothing is sup-
posed to be actively working.
WE WILL NOT discourage membership in Carpenters
Local Union No. 223, affiliated with United Brother-
hood of Carpenters and Joiners of America, AFL–CIO,
or any other union, by laying you off, by failing or re-
fusing to hire you, or by otherwise discriminating in
regard to hire or tenure of employment or any term or
condition of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your
rights under Section 7 of the Act.
WE WILL, if our job at the Hickory Hollow Mall in
Davidson County, Tennessee, has not yet been com-
pleted, offer employment on that job to Rick Beattie,
James Burgess, Danny Cason, Flem Roger Davis, Mi-
chael McCutcheon, Ronald Skipper, James Michael
Stewart, and Philip Wood.
777OKLAHOMA INSTALLATION CO.
1 According to Taylor’s testimony, he told both Davis and
McBrayer that Taylor wanted Davis to work on the Green Hills
project at least partly because Davis owed Taylor money, which
Davis eventually repaid.
WE WILL make these employees, the estate of Wil-
liam Wooten, and any other employees whole, with in-
terest, for any loss of pay they may have suffered by
reason of the discrimination against them.
OKLAHOMA INSTALLATION COMPANY
Jane Vandeventer, Esq., for the General Counsel.
Stephen L. Andrew, Esq., of Tulsa, Oklahoma, for the Re-
spondent.
W. J. Stricklin, Esq. and Othal Smith, Esq., of Nashville,
Tennessee, for the Charging Party.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge. These
consolidated cases were heard before me in Nashville, Ten-
nessee, on March 5 and 6, 1991. The charge in Case 26–
CA–14107 was filed against Respondent Oklahoma Installa-
tion Company (the Company) by Carpenters Local Union
No. 223, affiliated with United Brotherhood of Carpenters
and Joiners of America, AFL–CIO (the Union) on October
15 and amended on November 14, 1990; a complaint in that
case was issued on November 16, 1990. The charge in Case
26–CA–14249 was filed by Rick Beattie, an individual, on
January 10 and amended on February 13, 1991. A consoli-
dated complaint in both cases was issued on February 13 and
amended on March 6, 1991. In its final form, the consoli-
dated complaint alleges that Respondent violated Section
8(a)(1) of the National Labor Relations Act (the Act) by var-
ious statements to employees between about August and No-
vember 1990; and violated Section 8(a)(1) and (3) by laying
two employees off for 1 day on October 9, 1990; by perma-
nently laying off four employees on October 12, 1990; and
by failing and refusing to hire eight employees since about
November 29, 1990; all to discourage union activity.
On the basis of the entire record, including the demeanor
of the witnesses, and after due consideration of the briefs
filed by counsel for the General Counsel (the General Coun-
sel) and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and place of
business in Owasso, Oklahoma, and various jobsites in Da-
vidson County, Tennessee. Respondent is engaged in the in-
stallation of fixtures and interior millwork. During the 12-
month period preceding October 31, 1990, Respondent pro-
vided services valued in excess of $50,000 directly to cus-
tomers located outside Oklahoma; and purchased and re-
ceived at its Tennessee jobsites products, goods, and services
valued in excess of $50,000 directly from points outside Ten-
nessee. I find that, as Respondent admits, Respondent is en-
gaged in commerce within the meaning of the Act, and that
assertion of jurisdiction over its operations will effectuate the
policies of the Act. The Union is a labor organization within
the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Alleged Prepetition Interference, Restraint,
and Coercion
The main business of Respondent, an Oklahoma-based
construction company, is the installation of fixtures—for ex-
ample, counters, showcases, cashier stands, risers, wall at-
tachments, and display racks—in retail store buildings which
are being constructed or remodeled. In March 1990, Re-
spondent began a job in Green Hills Mall (located in David-
son County, Tennessee) which consisted of installing fixtures
in connection with the remodelling of an existing Dillard’s
department store and in a new addition to that store.
On June 19, 1990, Flem Roger Davis (Roger Davis), a
journeyman carpenter, filed a job application with Darwin
McBrayer, an admitted supervisor who was Respondent’s su-
perintendent on the Green Hills job. Also, Davis expressed
interest in that job to Leonard Taylor, a foreman for Re-
spondent on the Green Hills job and admittedly a supervisor
after June 27, 1990, who lived in the same apartment com-
plex as Davis. Davis had served his apprenticeship under
union auspices, but at an undisclosed time had withdrawn
from the Union after getting far behind in his dues. When
hiring for the Green Hills job, McBrayer had asked car-
penters already working for Respondent to recommend new
carpenters. Moreover, Davis’ job application disclosed that
although he had never previously worked for Respondent, his
most recent employment had been at a construction project,
a union job referred to in the record as the Saturn job, where
Foreman Taylor had also worked. Taylor, who has been a
member of the Union since October 1987, testimonially ad-
mitted to ‘‘vaguely’’ knowing, from hearing at union meet-
ings lists of who was in arrears, that Davis was in arrears
with his dues. Further, Taylor testimonially admitted to tell-
ing McBrayer that Taylor would like Davis to work on the
Green Hills project.1
No earlier than July 5, and probably about July 9, Taylor
sent Davis a message that if he wanted to come to work, to
come talk to Taylor at the apartment swimming pool. When
Davis arrived at the swimming pool, Taylor asked him if he
wanted to go to work at the Green Hills job. Davis said yes.
Taylor said that he would pick Davis up the following morn-
ing and he could come to work. Davis said that he was not
a union member and was in arrears with his dues. Taylor
said that he had known this; that he and McBrayer had
talked about Davis’ not being in a union and having dropped
out; and that McBrayer had said that was good and he would
go ahead and hire Davis and Ralph Smith since they had
dropped out, because McBrayer did not want to have trouble
later on down the road if he got too many more union people
on the job. Davis began to work for Respondent at the Green
Hills job on the following day.
My finding as to the date of this Taylor-Davis conversa-
tion is based on Davis’ testimony that it occurred the day be-
fore he started to work on the Green Hills job, and on Re-
spondent’s records, which show that Davis and Ralph Smith
were hired for that job during the payroll week ending
778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Ralph Smith appears on Respondent’s records as A. Smith (see
infra fn. 5).
3 The complaint contains no unfair labor practice allegations based
on this incident.
4 Taylor testified that when he told McBrayer that Burgess and
Stewart did not know whether they had a job and wanted to go back
to work, McBrayer ‘‘said that he didn’t have any problem, we had
work at the time.’’ See NLRB v. Fleetwood Trailer, 389 U.S. 375,
378–381 (1967).
5 Although the payroll record attaches this entry to the name ‘‘A.
Smith,’’both Respondent’s counsel and the General Counsel agreed
that this is the same individual as Ralph Smith.
Wednesday, July 11, and worked 20 hours that week.2 My
findings as to what was said are based on Davis’ testimony,
indirectly corroborated by Taylor’s testimony that he
‘‘vaguely’’ knew about Davis’ status with the Union. Be-
cause Taylor did not deny making this statement to Davis,
its truth or falsity has no bearing on whether it violated Sec-
tion 8(a)(1). Woody’s Truck Stops, 258 NLRB 705 (1981).
Taylor did deny, in effect, that he had the conversation with
McBrayer which Taylor described to Davis. However,
McBrayer was not asked about this matter. Because admitted
Supervisor Taylor admittedly played a part in McBrayer’s
decision to hire Davis, Davis’ testimony as to what Taylor
told him about McBrayer’s remarks on this subject is receiv-
able to prove the truth of what Taylor said. United Beef Co.,
277 NLRB 1014, 1024–1025 (1985); Security Search & Ab-
stract Co., 290 NLRB 908, 913 fn. 17 (1988), enfd. 882 F.2d
512 (3d Cir. 1989); Bohemia, Inc., 266 NLRB 761, 763–764
(1983). Moreover, for demeanor reasons, I discredit Taylor’s
uncorroborated denial that McBrayer made the remarks Tay-
lor undeniedly attributed to him during the Taylor-Davis con-
versation. See NLRB v. Walton Mfg. Co., 369 U.S. 404, 408
(1962). Although Taylor was not working for Respondent at
the time he testified on its behalf, he left work at Respond-
ent’s Hickory Hollow job because of problems in getting
along with the superintendent, Klint Traylor, who was also
the superintendent at Respondent’s only other current job
(Cool Springs Mall) in the Nashville area. At the time of the
hearing, McBrayer was still working for Respondent.
B. The August–September 1990 Picketing; the Alleged
Discriminatory Layoff of James Burgess and Ralph
Smith on October 10, 1990
Between August 20 and September 9, 1990, the Union
picketed the Green Hills jobsite with signs which claimed
that Respondent did not pay wages and benefits equivalent
to those paid by employers with whom the Union had agree-
ments. The record contains some suggestion that this picket-
ing may have had a recognitional object. A majority of Re-
spondent’s employees honored this picket line on the first
day it was set up. Among those who initially honored the
picket line were admitted Supervisors Taylor and Johnny
Morgan. Taylor returned to work on the following day. Mor-
gan eventually crossed the picket line, but the record fails to
show when.
While this picketing was in progress, employee James Mi-
chael (Mike) Stewart, a Green Hills carpenter who was the
Union’s recording secretary and was honoring the picket line,
attempted to induce other carpenters in Respondent’s employ
to sign union authorization cards. During this period, on an
occasion when Stewart was sitting in his car in Dillard’s
parking lot waiting for Green Hills carpenter James Burgess
(the union president, who was also honoring the picket line
and distributing authorization cards), Stewart was approached
by Green Hills Superintendent McBrayer and Green Hills
Foreman Taylor. Taylor asked Stewart to explain to
McBrayer the nature and purpose of the authorization cards.
Stewart said that if the Union got 30 percent of the ‘‘votes,’’
the Union could get an election, and if 51 percent of the em-
ployees voted for the Union in such an election, Respondent
would have to negotiate with it. After Stewart had given this
explanation, McBrayer said that he did not want the employ-
ees to do this on ‘‘his time’’; and that he wondered if the
election would be held while the Green Hills job was still
in progress. Stewart replied that he did not know, but be-
lieved it to be unlikely.3
So far as the record shows, all the employees who honored
the picket line were permitted to return to work on request.
Burgess and Stewart, who honored the picket line until it
was withdrawn, were surprised and elated that Taylor and
McBrayer permitted them to return.4 Employees Rick Beattie
and Davis, when they returned to work 2 days before the
picket line was withdrawn, were told by Foreman Taylor,
who had been driving them to and from work for $2 a day,
that he did not want them to ride with him any more for the
reason that ‘‘a man in his position couldn’t be seen riding
with [them] like that,’’ because ‘‘it would hurt him on his
job.’’ On dates not clear in the record, Taylor told Davis that
Taylor thought the union activity on the Green Hills job was
hurting the work, that Taylor was ‘‘a superintendent right
now,’’ and ‘‘I can’t really be socializing with you.’’
On September 6, 1990, the Union filed a representation
petition in Case 26–RC–7307, requesting essentially a unit of
Respondent’s carpenters employed in Davidson, Williamson,
and Wilson Counties, Tennessee. At the first day of the hear-
ing on the petition, on September 19, 1990, Burgess testified
on the Union’s behalf. On Monday, October 8, he came to
the job a few minutes early, and met at the gang box (where
the carpenters got their tools) with a group which included
several fellow rank-and-file carpenters and Foreman Taylor.
Burgess asked if any of them, including Taylor, would like
union T-shirts and union caps. Burgess took the sizes of
those who said they wanted these items, including Taylor.
Taylor said that he would appreciate it if Burgess did not
‘‘get caught’’ doing this on ‘‘company time;’’ Burgess said
that would be no problem. Foremen Taylor and Johnny Mor-
gan later received union caps and T-shirts, but did not wear
them.
That day, October 8, Burgess and his helper, Ralph Smith
(see infra), were relaminating and installing partitions in the
men’s restroom on the second floor. About 3 p.m. that day,
Foreman Taylor approached them and told them not to come
in on the following day, October 9. Taylor said that Re-
spondent had failed to receive a shipment of materials; that
it was Respondent’s policy to send people home instead of
laying them off; and that Burgess should call in on October
9 to see whether he was needed on the following day. Re-
spondent’s payroll record for that job states that Smith quit
on October 9.5 Foreman Taylor, whom Respondent called as
a witness, was not asked about this matter. Accordingly, I
find that on October 9 Burgess and Ralph Smith were on
layoff status. When told on October 8 to stay home on Octo-
779OKLAHOMA INSTALLATION CO.
6 Neither Smith nor Wooten testified. Assuming that the complaint
were sustained as to Smith, he would be entitled to 1 day’s backpay
at most. Wooten died before the hearing. As to Wooten’s death, I
rely on a news clipping, attached to the General Counsel’s
posthearing brief, which states that on March 7, 1991, the day after
the hearing ended, Wooten’s dead body was found floating in a lake
and appeared to have been in the water for several weeks. Respond-
ent has not questioned either the accuracy of this clipping, or coun-
sel for the General Counsel’s averment that as of the date she sub-
mitted this clipping, no public document was as yet available regard-
ing Wooten’s death.
7 Wooten worked 40 hours during the payroll week ending October
10, but his individual timesheet is not in evidence. Respondent does
not pay overtime rates unless and until the employee has worked
more than 40 hours during the current payroll week, uses a payroll
week which ends on Wednesdays, and pays employees every 2
weeks on the basis of 2 payroll weeks. Accordingly, and because the
individual timesheets each cover a calendar rather than a payroll
week, a misallocation of hours between days or consecutive weeks
on the individual timesheets would not necessarily affect the size of
the employee’s paycheck.
ber 9, Burgess and Smith had all the materials they needed
for the job. When Burgess returned to the job on October 10,
he found that the same materials were there which had been
there on October 8, and that some men’s restroom work
which had not been performed as of the end of the workday
on October 8 had been performed in his absence. Taylor tes-
tified that in September and early October, when there was
a lack of materials on the job, Respondent cut back every-
one’s hours from 10 to 8.
Except as otherwise expressly indicated, my findings in
the foregoing paragraph are based on Respondent’s records
and on a composite of credible parts of the testimony of Bur-
gess and carpenter Danny Cason. Cason testified that he
heard Taylor tell Burgess on October 8 that he and Smith
would not be needed the next day, and further testified that
on that day Smith was Burgess’ helper and helper William
Wooten was Cason’s partner. Taylor testified that he ‘‘would
think’’ Wooten was Cason’s partner during the first 2 weeks
of October, and was not asked about the layoff interview.
For demeanor reasons, and in view of Taylor’s failure to tes-
tify about the layoff interview, I credit the testimony of Bur-
gess and Cason that Taylor told Burgess and his helper on
October 8 to stay home on October 9, credit Cason’s testi-
mony that Smith and not Wooten was Burgess’ helper on
October 8, and conclude that Burgess was mistaken in identi-
fying his helper as Wooten.6 Although it is true that Burgess’
timesheet states that he worked 8 hours a day between Octo-
ber 8 and 12 inclusive, Burgess testified without testimonial
contradiction that these entries were not on the timesheet
when he signed it; that ‘‘a lot of times’’ the time sheets were
blank when the employees signed them and the employees
were told that Respondent would fill them out later; and that
on October 9 he attended, although he did not testify at, the
second day of the representation case hearing. Some indirect
support for Burgess’ testimony about Respondent’s timesheet
practice is provided by the fact that the timesheet for that
week for Ralph Smith, which contains his at least purported
signature, states that he worked 8 hours on Wednesday, Oc-
tober 10, even though Respondent’s payroll records state that
he quit on October 9.7
C. Alleged Postpetition Interference, Restraint,
and Coercion
1. Distribution of union T-shirts and caps
While performing the Green Hills Mall job, Respondent
maintained a parking lot for its employees at a nearby
church. Most of Respondent’s employees, including Burgess,
were supposed to park in that lot, rather than the mall park-
ing lot maintained for customers, and were then shuttled to
the jobsite. Before the start of the workday on October 10,
Burgess parked his car in the church parking lot, where he
waited in the expectation of delivering the union caps and T-
shirts ordered by some of his fellow employees. However,
only two employees showed up to claim them. Foreman Tay-
lor, who had asked Burgess for a union T-shirt and cap, was
supposed to drive Burgess from the church parking lot to the
job, but he drove by and left Burgess standing there. Then,
Burgess drove his own car to the Green Hills Mall parking
garage and parked there. He distributed some caps and T-
shirts there, before the start of the working day, and the rest
at lunchtime that day. That same day, on what employee
Cason testimonially described as ‘‘not on company time,’’
Burgess passed out to his fellow employees copies of a pam-
phlet whose contents consist of a 36-page printed contract (3-
1/2 by 5-1/2 inches) between the Union and certain contrac-
tors, but whose cover bears the title ‘‘Working
Rules/Carpenters Local Union 223.’’ This contract, effective
in July 1990, calls for higher wages and more generous over-
time and weekend pay than Respondent was affording, and
also calls for employer payments into various trust funds.
The Green Hills job consisted of remodelling and enlarg-
ing an existing mall store operated by Dillard’s. Shortly be-
fore 3 p.m. on October 10, Dillard’s store manager, its con-
struction representative, and McBrayer went into the first-
floor men’s shoe department, where remodeling was then in
progress and from which (inferentially) customers were at
that time excluded. Lying beside the toolboxes of the three
carpenters working in the area were union caps, union T-
shirts, and ‘‘Working Rules’’ pamphlets. On receiving an at
least implied complaint from the store manager, McBrayer
approached Burgess, who was working in the second floor
men’s bathroom, and asked him to step outside into a hall-
way. Then, McBrayer asked Burgess what was going on.
Burgess replied that he did not know what McBrayer was
talking about. Using an obscenity, McBrayer accused Bur-
gess of ‘‘not playing fair.’’ McBrayer said that he had tried
to work with Burgess and had bent over backwards, and
asked what he was doing with ‘‘all those T-shirts . . . laying
around.’’ Burgess said that he did not see that the shirts were
hurting anybody. McBrayer said that Burgess had hurt his
feelings, and further said that a ‘‘whole pile’’ of union
‘‘books’’ was sitting on the first floor. Burgess said that he
did not know what ‘‘books’’ McBrayer was talking about,
and that Burgess was not responsible for them. Burgess
asked McBrayer to show him this ‘‘pile’’ of ‘‘books.’’
McBrayer escorted Burgess downstairs to the men’s shoe de-
partment and showed him the T-shirts, caps, and contracts
lying beside the carpenters’ work tools. McBrayer said that
he did not mind the caps and the T-shirts, but that ‘‘the
working rules are going too far . . . they’re laying around
everywhere.’’ McBrayer said that the was ‘‘not real happy’’
that this material had been ‘‘drug around in front of’’ him
780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 My findings in this paragraph are based on a composite of credi-
ble parts of the testimony of employee Cason (who was then work-
ing about 20 feet from the Burgess-McBrayer conversation in the
hallway), employee Davis (who was then working on the other side
of the bathroom wall), Foreman Johnny Morgan (who overheard the
latter part of the McBrayer-Burgess conversation), Burgess, and
McBrayer.
9 My inference that the relevant 2-week payroll period likely ended
on October 17 is based on the fact that each page of Respondent’s
payroll records for these payroll weeks covers both weeks but not
others.
in the presence of the Dillard representatives, and asked Bur-
gess to keep the literature out of their sight. McBrayer went
on to say that Burgess had a right to pass this information
out, but that he was not to distribute anything during ‘‘his
[McBrayer’s] time,’’ ‘‘company time’’ or (perhaps) ‘‘work-
ing time;’’ that Burgess was not supposed to pass out any-
thing ‘‘on the property; pass it out on the parking lot;’’ and
that thereafter, Burgess was going to have to leave this mate-
rial in the car and pass it out from the car. Burgess said that
he did not know how he had hurt McBrayer or anyone else,
that what Burgess did on his own time was his own business,
and that when the material left his hands, it was not his
property, but belonged to someone else. Burgess asked what
he had hurt. McBrayer replied, ‘‘Well, I don’t guess you’ve
hurt anything except for my feelings . . . I give you a
chance for a job and now you start all this Union bull . . .
I feel like I’ve been doing you men fair and you’re not being
fair with me.’’ Burgess said that he got his own feelings hurt
all the time, but did not see where he had broken any law.
McBrayer said, ‘‘Well, I don’t guess you have . . . I appre-
ciate your time and everything . . . but this has gone too
damn far.’’8
Employee Stewart helped pass out to Respondent’s other
Green Hills carpenters the union caps and union T-shirts for
which employee Burgess had obtained employee orders on
October 8 and which he brought to the jobsite on October
10. On observing Stewart’s activity, Foreman Taylor told
him not to do this on ‘‘company time.’’ Stewart assured him
that the distribution would be through before the 7 a.m. start-
ing hour, and Taylor said that was fine. A day or two later,
when Stewart had come to the office to obtain some sup-
plies, Superintendent McBrayer told him that McBrayer liked
the union T-shirt Stewart was wearing. Stewart asked
McBrayer whether he would like to have one. McBrayer
said, ‘‘No, thank you.’’ Then, his expression became angry.
He said that he was disappointed in Stewart and Burgess be-
cause of their ‘‘activities,’’ and that McBrayer ‘‘thought that
[they] were going to shoot him straight on this.’’ Stewart
said that he thought he was doing what was best for himself,
his family, and the Union, and that Stewart was sorry
McBrayer felt that way.
2. Processing of the representation petition
On October 18, 1990, pursuant to the Union’s representa-
tion petition, the Regional Director for Region 26 issued a
Decision and Direction of Election which found appropriate
a unit of carpenters, apprentice carpenters, and carpenters’
helpers employed by the Company in Davidson, Williamson,
and Wilson Counties in Tennessee. The Regional Director’s
Decision recites that the Company wanted to confine the unit
to the Company’s Green Hills job. The Direction of Election
consisted of the language on the printed form frequently used
for such decisions, and stated, in part, ‘‘Eligible to vote are
those in the unit who were employed during the payroll pe-
riod ending immediately preceding the date of this Decision
[that is, the payroll period ending on October 10 or (more
likely) 17],9 including employees who did not work during
that period because they were . . . temporarily laid off . . .
Ineligible to vote are employees who have . . . been dis-
charged for cause since the designated payroll period . . .
and who have not been rehired or reinstated before the elec-
tion date.’’ The Regional Director further found that 13
named individuals were eligible to vote whether or not they
would otherwise have been rendered eligible by the fore-
going language, on the ground that they met the criteria of
Daniel Construction Co., 133 NLRB 264 (1961), modified
167 NLRB 1081 (1967)—namely, they had been employed
by Respondent ‘‘for 30 days or more during the 12 months
preceding the eligibility date or were employed for 45 days
or more in the 24 months preceding the eligibility date.’’
Among these named employees were Aldridge, Cason,
Harrelson, Harrington, and Wooten. Cason and Wooten had
previously worn union T-shirts on the job; Aldridge and
Harrelson had not worn such shirts; and the record is silent
as to Harrington. In addition, the Regional Director’s deci-
sion stated:
Burgess testified that at the time he was hired
McBrayer, his superintendent, told him that the Em-
ployer had two [years’] worth of work in the middle
Tennessee area, including [an] installation [project] at
Hickory Hollow Mall [in Davidson County]. Company
president [Jack] Boler acknowledged that McBrayer
probably made the statements to Burgess. Burgess also
testified that McBrayer told him that upon completion
of the Green Hills project, the best employees would
have the opportunity to go to the Hickory Hollow in-
stallation project.
Another carpenter employed by the Employer, James
Michael Stewart, also testified, without contradiction,
that superintendent McBrayer told Burgess and him at
the time of their application for employment that the
Employer had between 18 months and two years of em-
ployment opportunities in the area for ‘‘key’’ employ-
ees, and that these ‘‘key’’ employees would begin the
Hickory Hollow project upon completion of the Green
Hills Mall project.
The Board’s formal file in Washington, D.C., of which I
take official notice, shows that on October 29, 1990, the par-
ties agreed that the election would be held on November 15,
1990, at a job trailer at the Green Hills Mall. That file fur-
ther shows that about October 31, 1990, Respondent’s coun-
sel filed a request for review of the Regional Director’s deci-
sion. That request for review reiterated Respondent’s conten-
tion to the Regional Director that the unit should be limited
to the Green Hills job. In addition, the request for review
stated that the Daniel’s eligibility formula was inapplicable
because, among other things, there was no evidence that Re-
spondent effected temporary layoffs. The request for review
further stated that it was possible that by the agreed on elec-
tion date all work on the Green Hills job would be com-
781OKLAHOMA INSTALLATION CO.
10 The job was supposed to be completed by that date, but was
not substantially completed until November 21 and (according to
Foreman Taylor) was not wholly completed until after the January
holiday sales had been held. The payroll records in evidence show
that Respondent continued to perform work on this job until at least
the payroll week ending December 19, the last week covered by
these records.
11 This finding is based on McCutcheon’s testimony. For demeanor
reasons, I do not accept Morgan’s general denial. In connection with
Morgan’s reliability, I note that the Company discharged him from
the Hickory Hollow job in February 1991 for falsifying a company
sign-in sheet. This evidence suggests that he may have little respect
for the truth, that he may entertain animus against the Company,
and/or that he may wish to ingratiate himself with the Company in
order to obtain work on other projects.
12 My findings as to this conversation are based on Beattie’s testi-
mony. Although Skipper was not asked about this conversation, for
demeanor reasons I credit Beattie over Morgan’s rather equivocal
and conclusionary denial.
13 Beattie testified at the hearing that during the conversation with
Taylor Beattie was referring to ‘‘rumors’’ that such conduct had
been engaged in by Supervisor Johnny Morgan. On timely objection,
Beattie’s testimony in this respect was not received to show the truth
of these ‘‘rumors.’’
pleted,10 and that if this turned out to be the case, Respond-
ent believed that nobody could properly be held eligible to
vote.
On November 14, 1990, the day before the election, the
Board granted the request for review on the ground that it
raised substantial issues warranting review. Accordingly, the
ballots cast in the election on November 15 were impounded.
At that election, Burgess voted and acted as the Union’s ob-
server.
3. Further alleged preelection interference, restraint,
and coercion
Employee Michael McCutcheon wore a union T-shirt and
hat two or three times after their October 10 distribution. On
two or three occasions during the month before the election,
he asked his foreman, admitted supervisor, Johnny Morgan,
‘‘if we voted for the Union, what was the chances of us get-
ting a job out there at Hickory Hollow,’’ where Respondent
was about to start another job. On each such occasion, Mor-
gan replied, ‘‘None.’’11 On one or two occasions during this
same period, McCutcheon asked Foreman Taylor, while both
of them were working, ‘‘if I voted for the Union, would I
have any chance of getting a job out there at Hickory Hol-
low?’’ Taylor said no, and that McCutcheon’s best bet was
not to vote for the Union, and then he would have a chance
of getting a job out there.
A week or two before the election, in the presence of em-
ployee Ronald Skipper, employee Rick Beattie asked Super-
visor Johnny Morgan about going to work at the Hickory
Hollow Mall job. He said, ‘‘That depends.’’ Beattie said,
‘‘Depends on what?’’ Morgan looked at Beattie and said, ‘‘I
think you know.’’12 Beattie had worn his union T-shirt and
cap to work on alternate days since receiving these garments,
and had honored the picket line for all but the last 2 days.
He had also told McBrayer that Beattie was going to vote
for the Union and do what he could to see that ‘‘it went
union,’’ to which McBrayer replied that he appreciated
Beattie’s honesty.
About a week before the election, Superintendent
McBrayer approached all of 12 employees who were work-
ing within view of employee McCutcheon, and gave each of
them a T-shirt and hat bearing the company logo, along with
a letter urging a vote against the Union (see infra fn. 34).
McCutcheon—who had previously requested, received, and
worn a union T-shirt and hat—accepted and wore this com-
pany clothing from McBrayer. McCutcheon credibly testified
that he had not asked for this company clothing and, so far
as he knew, neither had any of the other employees. On No-
vember 12, Burgess, who had been laid off a month earlier,
came down to the jobsite in order to distribute to the em-
ployees during their meal break a letter in response to the
letter they had received with the company T-shirts and hats.
Before seeing the employees, he encountered McBrayer on
the second floor of the store the Company was remodeling.
Burgess told McBrayer that Burgess understood why
McBrayer was ‘‘for the Company,’’ that it was taking good
care of him, but ‘‘these other guys, none of them have a pen-
sion or health or welfare.’’ Burgess said that he like ‘‘y’
all’s’’ T-shirts and caps, that they looked nice, but that Bur-
gess liked ‘‘ours’’ better. McBrayer said, ‘‘Yeah, tick for
tack . . . you’re doing nothing but hurting these union guys,
sympathizers.’’ Burgess asked what he was talking about.
McBrayer said that what Burgess was doing would ‘‘hurt
their employment with’’ the Company, and that ‘‘It is all
politics, you know that.’’
A few days before the election, Foreman Johnny Morgan
told employee Cason, ‘‘in confidence as a friend,’’ that if he
played his cards right, he could secure a position with Okla-
homa Fixture, one of Respondent’s suppliers. Morgan went
on to say that Union Business Agent Bobby Boner had been
doing nothing for ‘‘us;’’ and that Burgess was not going to
do anything for ‘‘us’’ other than run for a state union office
after telling ‘‘us’’ he would run for a Local position. Morgan
said that he was ‘‘just going to have to go with the Com-
pany;’’ Cason said that he thought he would stick with the
Union.
Around the time of the election, employees McCutcheon
and Beattie, both of whom had worn union T-shirts on the
job, and Supervisor Taylor engaged in a discussion about
‘‘what the Union had to offer and what [the Company] had
to offer.’’ McCutcheon expressed the view that the way
‘‘we’’ had presented the Union’s case was much fairer than
the conduct of ‘‘someone around here on this job that’s run-
ning around threatening people to vote ’No’ against the
Union.’’ Taylor asked who was engaging in this conduct.
Beattie did not want to tell him;13 but asked Taylor what he
thought about that. Taylor replied, ‘‘I may have said that by
voting for the Union, it could hurt their chances of going to
another job with [Respondent].’’
4. Alleged postelection interference, restraint,
and coercion
A day or two after the election, employee Skipper, who
had honored the picket line and had worn a union hat and
T-shirt on the job two or three times a week since receiving
them about October 10, asked Supervisor Johnny Morgan
what ‘‘kind of chances would we have to go to the Hickory
Hollow Mall after all this.’’ Morgan replied, ‘‘Well, I think
you know the answer to that.’’ Skipper said, ‘‘Well, I don’t
guess we’d have much of a chance then.’’ Morgan said,
782 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 My findings in this paragraph are based on Skipper’s testimony.
For demeanor reasons, I do not believe the version of this conversa-
tion given by Morgan, who testified to telling Skipper that as to his
chances of getting a job at Hickory Hollow, ‘‘he ought to know that
for hisself.’’
15 Cason himself worked 18 hours of overtime the week ending
November 14 and 33 hours of overtime the week ending November
21.
16 The total overtime for the week ending November 21 may have
been higher. The payroll record for the week ending November 28,
which sets forth about 38 hours of overtime, contains the notation
‘‘O/T from previous week.’’
17 I can find nothing in the record to support the assertion in the
G.C. Br. 14 that on the day of the layoff, Northcott was not Burgess’
partner.
18 My findings in this sentence are based on Burgess’ testimony.
To the extent inconsistent, for demeanor reasons I do not credit
McBrayer’s testimony that Burgess received more than Northcott
solely because Burgess had definitely asked for the $12.50 and
Northcott had not. Taylor was not asked about this matter.
‘‘That’s about right.’’ Skipper testified that by the words
‘‘all of this,’’ he was referring to the outcome of the elec-
tion, where the ballots had been impounded.14
D. The Allegedly Unlawful Layoff of Employees
Burgess, Stewart, Davis, and Wooten from the Green
Hills Job on October 12
On Friday, October 12, Respondent permanently laid off
four carpenters and helpers—Burgess, Stewart, Davis, and
Wooten—from the Green Hills job; these comprised about a
sixth of the nonsupervisory carpenters and helpers on that
job. Respondent’s counsel stated at the outset of the hearing
that these employees were laid off
[B]ecause the job was coming to a close. . . . the
Green Hills job . . . was scheduled to finish around the
16th day of November, 1990, and in fact finished the
week of November 23rd, which is the week of Thanks-
giving [cf. supra fn. 10]. Historically . . . in a remodel
situation such as the Green Hills . . . the big push is
on to get a job finished before Thanksgiving, because
. . . between Thanksgiving and Christmas . . . is the
time of year that they merchandise their largest retail
volume, and they want us out of the store.
The testimony of McBrayer, Morgan, and Taylor indicates
that the decision to effect the October 12 layoff, and how
many employees to lay off, was made by McBrayer.
McBrayer, who at the time of the hearing was a supervisor
in Respondent’s employ and was called by it as a witness,
was not specifically asked why he decided to effect a layoff
on October 12, or the number he decided to lay off.
During the last two full payroll weeks preceding the lay-
off, the week of the layoff, and the first full payroll week
after the layoff—that is, during the payroll weeks ending on
October 3, 10, 17, and 24—Respondent’s nonsupervisory
carpenters and helpers worked an average of about 2.5 hours’
overtime a week each, with an individual maximum during
this period of 12.5 hours during 1 week. During this period,
the total overtime worked on the job by carpenters and help-
ers varied between about 52 and 58 hours per week. Car-
penter Cason testified that after the October 12 layoffs, man-
agement wanted the carpenters to work as many hours as
they would; and that McBrayer said that the carpenters were
going to work 7 days a week and 12 hours a day (although
‘‘it didn’t work exactly that way. We didn’t work all those
hours’’). I credit this testimony by Cason, which was not de-
nied by McBrayer or by any other member of management
and which is corroborated by Respondent’s payroll records.15
More specifically: During the payroll week ending on Octo-
ber 31, Respondent’s carpenters and helpers worked a total
of about 184 hours of overtime, with an average of about 10
hours each and an individual maximum of about 23. During
the payroll week ending on November 7, these employees
worked a total of about 320 hours of overtime, with an aver-
age of about 16 hours each and an individual maximum of
about 26. During the payroll week ending November 14,
these employees worked a total of about 280 hours of over-
time, with an average of about 17 each and an individual
maximum of about 27. During the payroll period ending No-
vember 21, these employees worked a total of about 527
hours of overtime, with an average of about 29 each and an
individual maximum of about 38 hours (worked by two peo-
ple).16 During the last day or two of this period, the three
foremen for the first time worked with their tools alongside
the rank-and-file carpenters.
Johnny Morgan, whom Burgess testimonially identified as
his foreman at the time of Burgess’ October 12 layoff, and
McBrayer testified that it was Morgan who selected Burgess
to be included in that layoff. Morgan testified that he se-
lected Burgess because ‘‘that day’’ Burgess and employee
Jessie Northcott had been installing laminate, Northcott had
done most or a lot of the laminate work by himself, North-
cott was a more qualified laminate repairer and installer than
Burgess, and Respondent by the time of the layoff was run-
ning ‘‘pretty short on the laminate work.’’ McBrayer testified
that Burgess was selected for layoff because one man was
capable of finishing the laminate job and Northcott had had
considerable experience in laminate.17 Northcott was being
paid $11.50 an hour, and Burgess was being paid $12.50,
which was Respondent’s then top rate for journeyman car-
penters and was received by about 6 of Respondent’s ap-
proximately 19 nonsupervisory carpenters. Burgess’ hourly
rate had been increased from $11.50 to $12.50 within 2
weeks after his hire on the Green Hills job. When he applied
for work there, McBrayer had told him that he would receive
such an increase after a couple of weeks if he proved to be
a good hand. He received this increase without going to
McBrayer about it, and, when advising him of the increase,
Foreman Taylor told him that he was doing a good job and
to keep up the good work.18 Foreman Johnny Morgan had
recommended Burgess for hire and, when he was working on
that job, described him as a ‘‘really good trim carpenter.’’
Northcott wore a union T-shirt and cap on the job after their
distribution on October 10 (2 days before the layoff), but
there is no evidence that he engaged in any other union ac-
tivity.
McBrayer and Taylor testified that it was Taylor who se-
lected Stewart, Davis, and Wooten for layoff. As to the rea-
sons which Taylor gave McBrayer for their selection,
McBrayer testified that these three employees ‘‘could all be
grouped together, I think. Their projects . . . were starting
to wind, but also it had been expressed to me that they were
no longer following directions as easily as they had in the
783OKLAHOMA INSTALLATION CO.
19 Dickens and Guinn may have been union members, at least at
some time. However, they openly expressed opposition to the Union
when they were on the Green Hills job.
20 Each of these numbers includes about four who worked at both
Green Hills and Bellevue.
past.’’ It is undenied that immediately after Stewart was ad-
vised of his layoff, McBrayer said that he appreciated the job
Stewart had done for him and Stewart had done a good job
for McBrayer. As to why Taylor selected Stewart, Taylor tes-
tified:
Well, Mike had been a pretty good carpenter, but
when it came down to when all the . . . I don’t know,
animosity between everybody came through, his attitude
toward his job became very poor. He had a hard time
taking instructions from me. I’d ask him to do some-
thing and he would deliberately usurp my authority and
do something contradictive.
It’s kind of like my kids, you know, I don’t have to
tell my kids why I tell them what to do, but yet he
thought that I had to explain every nook and cranny of
why he was supposed to do it that way.
When asked whether he was referring to the time of the
picket line and the union petition in stating ‘‘when the ani-
mosity came up,’’ Taylor testified, ‘‘I meant that as a cumu-
lative time. That had one part of the animosity on the job.’’
As to why he selected Davis and Wooten for layoff, Taylor
testified on direct examination that ‘‘they were working in a
shoe stockroom, and the men’s shoe stockroom was a large
stockroom, and it was a double deck stockroom, so it utilized
a lot of space, and that part of the job was ending.’’ How-
ever, on cross-examination, Taylor testified that during the
first 2 weeks of October (the layoffs occurred on October
12), ‘‘I would think’’ that Wooten was working on the main
floor men’s bathroom, with Cason as his partner.
Taylor testified that Stewart’s conduct in testifying at the
representation-case hearing was not discussed during the
management conference about whom to select for layoff, and
that Taylor and McBrayer did not then discuss Stewart’s
union membership or activity. Morgan testified that when he
recommended Burgess’ selection for layoff, there was no dis-
cussion about Burgess’ conduct in testifying ‘‘in a Court pro-
ceeding against the Company’’ or his union activities.
McBrayer at the time of the March 1991 hearing was a
member in good standing of Carpenters Local 429 in Arling-
ton, Texas, of which he had been a member for 14 years.
Taylor has been a member of the Union since 1987, and ob-
served the picket line for 1 day (see, supra, sec. II,B). Mor-
gan, too, is a member of the Union, to which he transferred
from a Florida local when he moved his residence, and hon-
ored the picket line for at least 1 day (see, supra, sec. II,B).
McBrayer knew when interviewing Burgess and Stewart for
hire that they were the union president and the union sec-
retary, respectively. Taylor and McBrayer knew when Davis
was hired that he had dropped out of the Union, and
McBrayer had told Taylor he could hire Davis ‘‘since he
dropped out.’’
The union activity of Burgess and Stewart before their Oc-
tober 12 layoff is summarized, supra, section II,B,C,1. Davis
honored the picket line for all but the last 2 days it was up;
as previously noted (supra, sec. II,B), on his return to work,
Foreman Taylor stopped driving him to and from work be-
cause (Taylor said) to be seen riding with Davis would hurt
Taylor on his job. In September, Davis distributed union
cards among the other workers. Foreman Taylor, who was
the first person Davis gave a card to, told Davis that
McBrayer said he did not care whether or not the employees
gave out union cards, as long as the employees did not do
it on ‘‘his time’’ and in front of Dillard’s customers. On one
occasion when a helper was signing a union card in Davis’
presence before the beginning of the lunchbreak, in a loca-
tion where they could be seen only by someone coming
down the escalator, McBrayer came down the escalator and
ended up 5 or 6 feet away from Davis. In addition, Davis
wore a union T-shirt on the job each of the last 3 days he
worked on the Green Hills job. Wooten wore union T-shirts
and hats, and orally expressed support for the Union. Of the
approximately 22 carpenters and helpers who worked during
the payroll week ending October 17, about 13 wore union T-
shirts and/or hats on the job (Bates on only the day he re-
ceived his shirt, Beattie, Burgess, Cason, Davis, Hadden,
McCutcheon, Northcott, Parker, Skipper, Stewart, Wood, and
Wooten) and about 8 did not (Aldridge, Armstrong,
Cunningham, Dickens, Guinn, Harrelson, Mevis, and B.
Morgan);19 the record fails to show whether such clothing
was worn by Harrington. Of the nine employees who are
shown to have worn such union clothing on the job and were
not laid off on October 12, the complaint alleges that five
(Beattie, Cason, McCutcheon, Skipper, and Wood), as well
as Burgess, Davis, and Stewart, were unlawfully denied jobs
on Respondent’s Hickory Hollow job.
E. The Alleged Unlawful Failure and Refusal to Hire
Beattie, Burgess, Cason, Davis, McCutcheon, Skipper,
Stewart, and Wood at the Hickory Hollow job
1. The Hickory Hollow job
On an undisclosed date in 1990, Respondent obtained a
contract for the installation of fixtures at a new Dillard’s
store in Hickory Hollow Mall, Davidson County, Tennessee.
Respondent hired its first nonsupervisory carpenters and
helpers for this job on November 25, 1990, and continued
this hiring process until at least January 24, 1991. Of the ap-
proximately 63 persons hired by Respondent during this pe-
riod as nonsupervisory carpenters and helpers, about 14 had
worked for Respondent at the Green Hills project and about
16 had worked for Respondent at the Bellevue project.20 Hir-
ing for the Hickory Hollow job was done by Superintendent
Klint Traylor, an admitted supervisor who unexplainedly did
not testify. Between November 26, 1990 (the date on which
alleged discriminatees first filed applications for employ-
ment) and February 4, 1991, Respondent received job appli-
cations from at least 56 applicants (other than the alleged
discriminatees) whom it did not hire.
2. The alleged discriminatees’ alleged applications for
work at the Hickory Hollow job
a. Cason
Cason is a journeyman carpenter with over 10 years’ expe-
rience, who was hired by McBrayer for the Green Hills job
in March 1990 and worked there until November 21, 1990,
784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Although not asked about his hiring interview with
McCutcheon, McBrayer testified that he knew nothing about any
Mount Juliet job. I find it unnecessary to determine whether this job
was mentioned, as testified to by McCutcheon. Cf. infra fns. 22, 24.
when he was laid off from that job. During the hiring inter-
view, McBrayer said that he had about 2 or 3 years’ worth
of work for the ‘‘right people’’ and if Cason was ‘‘his type
of man,’’ that McBrayer had work at Bellevue and Hickory
Hollow. McBrayer asked Cason what the ‘‘union scale’’ was
in the area. When Cason said $12.50 an hour, McBrayer said
that Cason would initially be paid $11.50 an hour, but would
be raised to $12.50 an hour if he was ‘‘worth it.’’ Cason re-
ceived this increase effective June 7, 1990.
As McBrayer knew when hiring him, Cason has been a
member of the Union at all times material here. He honored
the picket line for 2 or 3 days; wore a union jacket every
day; and wore a union T-shirt every other day after their Oc-
tober 10 distribution.
When laying Cason off from the Green Hills job on No-
vember 21, 1990 (the day before Thanksgiving), Foreman
Lanny McGaugh (admittedly a supervisor) told him that he
could go over to and check with the Hickory Hollow job,
that this job was going to be needing a lot of carpenters. On
Monday, November 26, Cason went to the Hickory Hollow
job; filed a written application, which stated (inter alia) that
he had worked for Respondent between March and Novem-
ber 1990; and had an oral interview with Traylor. While
working at the Green Hills job, Cason had worked weekends
at the Bellevue job under Traylor. During this November 26
interview, Traylor said that he did not need Cason ‘‘right
then,’’ but that Traylor had three trucks coming in the next
week, and that Cason should come in at 6 or 7 a.m. on Mon-
day, December 3, that Traylor thought he could use Cason
then. Between November 27 and December 2, Respondent
hired about 14 nonsupervisory carpenters and helpers at the
Hickory Hollow project.
In accordance with Traylor’s November 26 suggestion, on
Monday, December 3, Cason came in to talk about the mat-
ter with Traylor, who said, ‘‘I just got these men in from out
of town, . . . we’re just going to have to play it by ear,’’
and that Cason should check back again in a few days. After
that date, and until January 14 or 15, 1991, Cason came in
on seven more occasions to talk about the matter with
Traylor, who on each such occasion made substantially the
same statements he had made on December 3. In addition,
Cason telephoned about the Hickory Hollow job on three oc-
casions between December 3 and about January 16. During
the first two calls, he reached Traylor, who told him about
the same thing Traylor had told him in person. On the third
occasion, Cason reached Traylor’s secretary, who said that
Respondent would call Cason if he was needed, that ‘‘things
looked pretty good,’’ and that ‘‘they were coming right along
with the job.’’ Cason was never hired for that job. Between
December 3 and January 24, 1991, Respondent hired about
37 nonsupervisory carpenters and helpers for the Hickory
Hollow job.
b. McCutcheon
McCutcheon was hired by McBrayer for the Green Hills
job about June 13, 1990. During the hiring interview,
McBrayer said that Respondent had several other jobs to do
in the Nashville area, like Hickory Hollow and Cool Springs,
and that ‘‘more than likely,’’ management would pick out
‘‘all the best employees . . . the better carpenters, and they
would be the ones to get to go to the other stores.’’21 Re-
spondent’s payroll records state that McCutcheon’s hiring
rate was $9 an hour. About November 1, 1990, he requested
a raise, and received an increase to $10 an hour.
McCutcheon has never been a member of any local car-
penters union. His overt union activity is summarized, supra,
section II,C,3.
Like Cason, McCutcheon was laid off from the Green
Hills job on November 21, and went to the Hickory Hills
project on November 26 in search of a job. That day, he
filled out an application blank (which is not in evidence) and
talked to Traylor, who said that he did not need any help,
and that McCutcheon should come back in a week when all
the fixtures would be there. Between November 27 and De-
cember 2, Respondent hired about 18 carpenters and helpers
for the Hickory Hollow job. When McCutcheon came back
on December 3, Traylor’s secretary told McCutcheon that
she had lost his application, and he filled out another one,
which stated that he had worked for Respondent at the Green
Hills job. That day, Traylor told McCutcheon that Traylor
had already hired everyone that he needed. Between Decem-
ber 4 and 10, Respondent hired about 15 nonsupervisory car-
penters and helpers. McCutcheon came out to the job a third
time, about December 10, but was told that ‘‘they just
wouldn’t need no help.’’ Between this third and last visit and
January 24, 1991, Respondent hired about 16 nonsupervisory
carpenters and helpers for the Hickory Hill job. McCutcheon
was never hired for the Hickory Hollow Job.
c. Skipper
Skipper was hired for the Green Hills job in mid-July
1990, at $11.50 an hour. About late October, he received a
raise to $12.50. Foreman Johnny Morgan described him as
a good trim carpenter. Nobody ever told him that his work
on the Green Hills job had to be redone. Skipper is a jour-
neyman carpenter with 6 years’ experience (including 6 to 8
months as a trim carpenter before going on the Green Hills
job), who trained in a union apprenticeship program. He hon-
ored the picket line for 3 or 4 days, and wore a union cap
and T-shirt on the Green Hills job two or three times a week
from his October 10 receipt of these garments until his layoff
from that job on November 21.
After his November 21 layoff from that job, Skipper went
down to the Hickory Hollow job, but found nobody in the
office. He obtained an application blank from Foreman Ron-
nie Hays, took it home, filled it out, and took it back to the
office about 2 days after receiving it. Finding nobody in the
office, he slipped the application, which states that he had
worked for Respondent on the Green Hills job and which he
dated November 27, under the door. Respondent’s Exhibit 3
states that he applied for work on November 27. Between
November 28 and December 3, Respondent hired about 20
nonsupervisory carpenters and helpers for the Hickory Hol-
low job. About December 4, Skipper returned to Respond-
ent’s office and spoke to a secretary, who told him that there
was not going to be any hiring until after the first of the
year. Between December 5 and January 1, Respondent hired
785OKLAHOMA INSTALLATION CO.
22 Although not asked about his hiring interview with Davis,
McBrayer testified that he knew nothing about any Mount Juliet job.
I find it unnecessary to determine whether this job was mentioned,
as testified to by Davis. Cf., supra, fn. 21, infra, fn. 24.
23 On timely objection, his testimony was not received to show the
truth of these friends’ report.
about 18 nonsupervisory carpenters and helpers for the Hick-
ory Hollow job. In mid-January 1991, Skipper again went to
the Hickory Hollow jobsite, identified himself to Traylor,
and said that Skipper was there about a carpenter’s job.
Traylor said that he was not going to be hiring any more car-
penters. Between January 15 and 24, about six more car-
penters were hired for the Hickory Hollow job. Skipper was
never hired for that job.
d. Beattie and Wood
Journeyman carpenter Beattie was hired for the Green
Hills job by McBrayer about mid-June 1990 at $11.50 an
hour. During the hiring interview, McBrayer said that if he
liked Beattie’s work after 2 weeks, he would receive a $1
hourly increase. Respondent’s payroll records show that
Beattie received that increase about 2 weeks later, and con-
tinued to work on that job until being laid off on November
21. Before the Union filed its representation petition on Sep-
tember 6, Beattie heard that Respondent had the Hickory
Hollow job, and asked McBrayer about ‘‘possibly going on
other jobs.’’ McBrayer said to ‘‘just keep doing what you’re
doing,’’ that ‘‘things looked pretty good,’’ but that McBrayer
could not promise him anything. Beattie’s foremen inspected
his work, but never asked him to redo anything. Beattie’s
overt union activity is described, supra, section II,C,3.
On November 27, Beattie and carpenter Don Guinn, both
of whom had been laid off from the Green Hills job on No-
vember 21, came down to the Hickory Hollow job and talked
to Superintendent Traylor. Traylor said that Respondent was
going to be doing a lot of work there, and asked about their
experience. Both of them said that they had been doing fix-
ture work for a long time. Guinn asked whether, in view of
‘‘that deal with the Union’’ at the Green Hills job, Traylor
was opposed to hiring ‘‘someone’’ or ‘‘anybody’’ who had
worked on that job. Traylor said no, that the two jobs were
separate. Beattie said that he had been working on the Green
Hills job. Traylor wrote down the names of both men, and
gave each of them an application blank to take home and fill
out.
Wood was hired by McBrayer for the Green Hills job on
June 30, 1990, as a carpenter’s helper at $9 an hour. Two
or three weeks later, Taylor, who was then Wood’s foreman,
told him that he was doing good work, that Taylor had told
McBrayer that Wood needed a raise, and that Taylor had got
Wood a 50-cent raise. At the time he went to work, Wood
was not a member of the Union. However, he wore a union
T-shirt and hat on the Green Hills job two or three times a
week from his receipt of these garments, about October 10,
until his November 21 layoff from the Green Hills job.
On November 28, Wood filled out a written application
for work at the Hickory Hollow jobsite and gave it to
Traylor. This application showed that he had worked for Re-
spondent at the Green Hills jobsite. While Wood was talking
to Traylor, Beattie came in with written application blanks
filled out by himself and by Guinn. Beattie’s application
showed that he had worked for Respondent at the Green
Hills jobsite. Traylor said that management did not know the
Hickory Hollow start date ‘‘for sure,’’ because the fixtures
had been slow to come in. He said that he would keep
Beattie and Wood in mind, and get in touch with them as
Respondent needed different carpenters. By that time, Re-
spondent had hired about nine nonsupervisory carpenters and
helpers for the job. On the following day, November 29, Re-
spondent hired about 10 more. When Beattie first checked
back with Traylor, about early December, Traylor said that
‘‘a bunch of guys’’ were coming in from Texas to fill in
until the start of another job they were supposed to go on,
and because he did not know how many there were, he could
not hire anybody. He told Beattie to check back in a couple
of weeks. Beattie did so before Christmas, but Traylor said
that he really could not tell Beattie anything.
After Wood gave his application to Traylor on November
28, Wood returned to the Hickory Hollow jobsite on three
or four occasions before the end of January. On the first such
occasion, Traylor said that carpenters were coming in from
Texas and Oklahoma, that he did not know how many were
coming in, and that Wood should come back at noon to see
how many had come in. When Wood did come back at noon,
Traylor said that Respondent had a full crew. As Wood was
leaving, he saw a man filling out an application. During sub-
sequent visits to the jobsite, Wood asked Traylor’s secretary
if Respondent needed carpenters. She asked for his name,
went to a file drawer, found his file, and then said, ‘‘No, we
have a full crew.’’ Between November 29 and the end of
January, Respondent hired about 53 nonsupervisory car-
penters and helpers at the Hickory Hollow jobsite. Beattie
and Wood were never hired for the Hickory Hollow job.
e. Davis
Davis is a journeyman carpenter who served his appren-
ticeship under union auspices. About mid-July 1990, he was
hired for Respondent’s Green Hills job by McBrayer, who
told him during his job interview that the Green Hills job
would probably last 5 to 6 months, that Respondent had
about 15 or 16 months of work in the area, that a lot of the
Green Hills employees would probably go to the Hickory
Hollow job, and that probably, most of the Green Hills em-
ployees would be sent from that job to the Hickory Hollow
or Cool Springs job.22 McBrayer further said that Davis’ hir-
ing rate would be $11.50 an hour, but after 30 days,
McBrayer would probably increase his wages to $12.50. On
an undisclosed later date, Davis asked Foreman Taylor about
a raise. He said that it would probably be done; but at the
time of Davis’ layoff from the Green Hills job, he was still
receiving $11.50 an hour.
As noted, supra, section II,D, Davis was included in the
allegedly discriminatory layoff on October 12. The first non-
supervisory carpenters and helpers on the Hickory Hollow
job were hired on November 25. Without being asked to give
dates, Davis credibly testified that he knew work was going
on at Hickory Hollow, but did not apply at first because
friends (whom he was not asked to name) had told him that
because of their union activity, Respondent was not hiring
them there.23 About January 4, 1991, shortly before lunch
time, he went to Respondent’s office at the Hickory Hollow
mall, where he saw Traylor and (on the telephone) Company
President Jack Boler. Davis asked Traylor whether he was
786 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 My findings in this sentence are based on Stewart’s and Bur-
gess’ testimony. McBrayer testified that he ‘‘possibly’’ referred to
‘‘potential’’ jobs elsewhere, but that he could not remember what he
said ‘‘as far as exacts.’’ Although he testified that at the time of this
June 1990 interview he was not aware of any other work that Re-
spondent had in the Nashville area, he further testified that he had
heard in March 1990 that a new Dillard’s store was to be built at
Hickory Hollow, and ‘‘if it’s a Dillard’s store, I’d think the possibil-
ity would be there’’ that Respondent would have that job. McBrayer
also testified in March 1991 that he knew nothing about a Mount
Juliet jobsite, which Burgess (but not Stewart) testified that
McBrayer mentioned during the job interview. I find it unnecessary
to resolve the issue as to any Mount Juliet job. Cf., supra, fns. 21,
22.
25 My finding that she made this statement is based on credible
parts of Burgess’ and Stewart’s testimony. Stewart’s testimony was
offered and received without objection or limitation. Burgess’ testi-
mony was timely objected to by Respondent’s counsel on hearsay
grounds. I stated on the record that I was not receiving Burgess’ tes-
timony to show that what the secretary said was true, and neither
the General Counsel nor union counsel has at any time questioned
the propriety of this ruling. In view of subsequently adduced evi-
dence indicating that Traylor’s secretary had authority to receive ap-
plications, cf. Fed.R.Evid. 801(d)(2)(C)(D); see also Communications
Workers Local 6012 (Southwestern Bell Telephone Co.), 275 NLRB
1499, 1502 (1985).
26 The complaint alleging that Respondent unlawfully refused to
hire Burgess and Stewart was issued on February 13, 1991. Re-
spondent’s posthearing brief errs in asserting that this complaint pre-
ceded their written applications.
hiring any carpenters. Traylor asked whether Davis had ever
done any kind of fixture work. Davis replied, ‘‘Yes, at Green
Hills.’’ Traylor said he did not know where his secretary
kept the applications, and asked Davis to return after lunch.
By the time Davis returned after lunch, Traylor’s secretary
had returned to the office and Traylor was working on the
floor. Traylor said that he was very busy, that Davis could
put in an application if he wanted to, but that Traylor already
had a full crew and did not think he was going to need any-
one. Concluding that leaving a written application was use-
less, Davis walked away without filling one out. Davis was
never hired for that job. Between January 5 and 24, Re-
spondent hired about 12 nonsupervisory carpenters and help-
ers (including 3 on January 24) for the Hickory Hollow job.
About three carpenters and helpers were terminated between
January 2 and 4.
Company President Boler, who was in the Hickory Hollow
office during Superintendent Traylor’s job interview with
Davis, testified at the September and October 1990 hearing
in the representation proceeding in which Respondent sought
to exclude the Hickory Hollow job from the Union’s peti-
tioned-for unit. A decision by Administrative Law Judge
Joan Wieder, of which I take judicial notice (see infra, sec.
II,G,2,a), on the basis of a hearing held on December 4 and
5, 1990, states (pp. 3–6) that Boler establishes Respondent’s
labor policies and relates them to the superintendents; and
that in the spring of 1990, when demoting a foreman to jour-
neyman on a job in the area of Houston, Texas, Boler told
him that he ‘‘had to learn the ways of the company’’ and
said that it would be good if he got out of ‘‘the Union’’
(Carpenters Local 233).
f. Stewart and Burgess
During the hiring interview with Stewart and Burgess
about June 26, 1990, at Green Hills, McBrayer told them that
Respondent had about 2 years of work in the area; that the
Green Hills job would last until mid or late November and
perhaps a little later; that the work at Hickory Hollow Mall
would start about the first of December; and that Dillard’s
was going to build a store at Cool Springs. McBrayer further
said that Respondent was going to take the good hands from
Green Hills to Hickory Hollow.24 McBrayer further told
them that their hiring rate would be $11.50 an hour, but that
he would give them $12.50 after a couple of weeks if they
turned out to be good hands. He stated that he was not op-
posed to paying the union scale in the area, but he wanted
to be sure that he was paying it to the people who were
qualified to get it. Such an increase was received by Burgess
before the beginning of his second week of employment, and
by Stewart a week or two later. Burgess, at least, received
this increase without asking McBrayer for it.
As previously noted, Burgess and Stewart were both in-
cluded in the allegedly unlawful October 12 layoff at Green
Hills. During the first week in December, Stewart telephoned
Respondent’s office at the Hickory Hollow project. An un-
identified female answered the telephone. Stewart gave his
name, said that he had worked at Green Hills, and asked
whether job applications were then being accepted at Hick-
ory Hollow. He testified, without objection or limitation, that
she replied that applications were not being accepted ‘‘right
now.’’ Respondent hired about 21 nonsupervisory carpenters
and helpers at the Hickory Hill job between December 1 and
7; and about 2 between December 8 and 15. In addition, Re-
spondent accepted about 15 written applications for such jobs
between December 1 and 7, and about 14 between December
8 and 15, from applicants (other than the alleged
discriminatees) whom it did not hire.
On January 14, Burgess and Stewart went to Respondent’s
office at the Hickory Hollow job. Only Traylor’s secretary
was in the office. Stewart asked her whether Respondent was
going to be doing any hiring. She said that Respondent was
taking applications, that several carpenters who had been
transferred to Hickory Hollow from other jobs which had
been temporarily shut down for the Christmas shopping sea-
son would be leaving about January 15, and that Respondent
might need to fill at least some of those positions.25 Then,
Burgess and Stewart each gave the secretary a filled out ap-
plication blank which stated that the applicant had previously
worked for Respondent.26 She asked each of them whether
he had worked at Green Hills and, when they said yes, noted
this on their application blanks. She said that Respondent
would get in touch with them if it needed anyone. After
leaving the office, Burgess and Stewart went out to the
building site and introduced themselves to Traylor. He said
that he knew them; they had worked under him at Respond-
ent’s Bellevue job during several weekends, and Traylor had
complimented Stewart’s work and expressed appreciation at
these two employees’ performance of weekend work to get
Traylor ‘‘out of a bind.’’ The two employees asked if Re-
spondent was going to be doing any hiring at Hickory Hol-
low. Traylor said that he had about 60 people there (in fact,
he had about 43 rank-and-file carpenters and helpers), did
not need anyone, and did not think he would need any car-
penters any time soon. He further said that the Cool Springs
Mall job would be starting up, and that he was going to be
787OKLAHOMA INSTALLATION CO.
27 The record fails to show whether either of them cast ballots,
challenged or otherwise.
28 Cf. Craft Maid Kitchens, 284 NLRB 1042 (1987), finding not
attributable to the employer the conduct of an alleged supervisor
whose name had been included in a Norris-Thermador list (see Nor-
ris-Thermador Corp., 119 NLRB 1301 (1958)) in a previous rep-
resentation proceeding between the same parties, as well as in a Nor-
ris-Thermador list executed after the alleged supervisor had engaged
in the allegedly unlawful conduct. Respondent’s counsel stated at the
hearing that Taylor did not become a supervisor until June 27, 1990,
after his early May hire on the Green Hills job; and there is no evi-
dence that he had ever worked for Respondent before. A finding that
Respondent was answerable for Taylor’s prepetition conduct gains
support from Dominguez Valley Hospital, 287 NLRB 149, 150–151,
154–156 (1987), where the Board found an employer answerable for
the conduct of a supervisor, after she had allegedly been included
Continued
the superintendent there. Burgess asked whether he needed to
go over there to fill out an application. Traylor said this
would not be necessary, because he was going to take the
applications from Hickory Hollow and would call them if he
needed them. Burgess told him to let Burgess and Stewart
know if Traylor needed any help. Neither Burgess nor Stew-
art was ever hired for the Hickory Hollow job. Respondent
hired about two rank-and-file carpenters and helpers at Hick-
ory Hollow on January 14 (the day of Burgess’ and Stewart’s
written applications), about two on the following day, and
about four between January 16 and 24.
F. The Board’s Decision in the Representation Case
On December 10, 1991, after the close of the hearing in
the instant unfair labor practice case, the Board issued its
Decision on Review and Order in the representation case.
Oklahoma Installation Co., 305 NLRB 812 (1991). The
Board found appropriate a unit consisting of carpenters, ap-
prentice carpenters and carpenter’s helpers employed by the
Company in Davidson County, Tennessee. As to voting eligi-
bility, the Board affirmed the Regional Director’s determina-
tion that 13 named individuals were eligible. The Board re-
manded the representation case to the Regional Director for
action consistent with the Board’s findings. The Board’s for-
mal files in Washington, D.C., fail to show what action, if
any, was subsequently taken in connection with the represen-
tation case.
G. Analysis and Conclusions
1. The independent 8(a)(1) allegations
I find that Respondent violated Section 8(a)(1) of the Act
when Green Hills Superintendent McBrayer, admittedly a su-
pervisor, told employee Burgess on November 12, 1990, that
Burgess’ union activity and his distribution of union T-shirts
and hats would hurt the employment with Respondent of the
‘‘union guys, sympathizers.’’ In addition, I find that Re-
spondent violated Section 8(a)(1) when McBrayer told em-
ployee Burgess on October 10 that by starting all this
‘‘Union bull’’ and bringing union T-shirts and ‘‘working
rules’’ onto the job and handing them out to employees, Bur-
gess had hurt McBrayer’s feelings; and when, about October
12, McBrayer told employee Stewart that McBrayer was
‘‘disappointed’’ in Stewart and Burgess for their union ac-
tivities, that McBrayer had thought they were going to
‘‘shoot straight’’ with him. See Downtown Toyota, 276
NLRB 999, 1019 (1985); Misericordia Hospital Medical
Center, 246 NLRB 351, 357 (1979), enfd. 623 F.2d 808 (2d
Cir. 1980); Metropolitan Life Insurance Co., 256 NLRB 626,
633 (1981). Further, I find that Respondent violated Section
8(a)(1) when McBrayer distributed T-shirts and caps, bearing
Respondent’s logo, immediately after distributing letters from
Respondent urging a ‘‘no’’ vote, and to employees who had
not requested such garments. Lott’s Electric Co., 293 NLRB
297, 304 (1989), enfd. mem. 891 F.2d 601 (3d Cir. 1989);
Houston Coca Cola Bottling Co., 256 NLRB 520 (1981);
Maremont Corp., 294 NLRB 11, 40 (1989). No different re-
sult is suggested by Sterling Faucet Co., 203 NLRB 1031,
1037 (1973), relied on by Respondent, where the company
insignia in question were made available to employees at
their request. Cf. Lott’s, supra, 304.
In discussing the complaint allegations based on the con-
duct of Johnny Morgan and Taylor, neither of the
posthearing briefs refers to the following portion of the Re-
gional Director’s Decision and Director of Election, issued
on October 18, 1990, and unchanged by the Board in De-
cember 1991 in respects material here (emphasis in original):
The parties also stipulated that Lenny Taylor [and]
Johnny Morgan, . . . working foremen, were not super-
visors within the meaning of the Act. Accordingly, in
view of the stipulations of the parties, and in the ab-
sence of contrary record evidence, I shall include Lenny
Taylor [and] Johnny Morgan . . . in the unit found ap-
propriate herein.27
It is true that during the hearing before me, Respondent’s
counsel admitted Morgan’s and Taylor’s supervisory status
after July 11 and June 27, 1990, respectively. However, in
the leading case of Montgomery Ward & Co., 115 NLRB
645, 647 (1956), enfd. 242 F.2d 497 (2d Cir. 1957), cert. de-
nied 355 U.S. 829 (1957), the Board said:
Statements made by a supervisor violate Section
8(a)(1) of the Act when they reasonably tend to restrain
or coerce employees. When a supervisor is included in
the unit by agreement of the Union and the Employer
and is permitted to vote in the election, the employees
obviously regard him as one of themselves. Statements
made by such a supervisor are . . . considered by em-
ployees to be the representations[, not] of management,
but of a fellow employee. Thus they do not tend to in-
timidate employees. For that reason, the Board has gen-
erally refused to hold an employer responsible for the
antiunion conduct of a supervisor included in the unit,
in the absence of evidence that the employer encour-
aged, authorized, or ratified the supervisor’s activities
or acted in such manner as to lead employees reason-
ably to believe that the supervisor was acting for and
on behalf of management.
See Cypress Lawn Cemetery Assn., 300 NLRB 609 fn. 2,
621 (1990), and cases cited there.
Montgomery Ward is immaterial to Supervisor Taylor’s re-
marks to Davis in July 1990, when no union-represented bar-
gaining unit was in existence and (so far as the record
shows) the Union had not yet taken any position as to Tay-
lor’s inclusion in the unit specified in its representation peti-
tion filed 2 months later.28 I find that Respondent violated
788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in the voting group by agreement of the parties, partly on the ground
that the employees had not been informed of this inclusion.
29 The Green Hills job consisted of the remodeling of an existing
Dillard’s department store in a shopping mall, plus construction of
an addition to that store. I believe it fair to assume that at the time
Taylor issued these instructions, Respondent’s Green Hills employ-
ees had at least some occasion to be lawfully present, in their capac-
ity as employees, in areas which were nonworking areas with respect
to themselves, employees of other contractors working on the job,
and Dillard’s own employees. The record is likely insufficient to
permit a determination as to all of the exact locations where Re-
spondent could not have lawfully forbidden distribution of union T-
shirts and caps on the Green Hills job, which in any event has been
completed. As to whether an employer may impose as to location
the same restriction on distribution of union T-shirts and caps as on
the distribution of union literature, I note that the distribution of in-
herently useful items to employees who had previously requested
them presents less of a potential litter problem than does the dis-
tribution of unsolicited fliers and pamphlets. Cf. Stoddard-Quirk
Mfg. Co., 138 NLRB 615, 618–621 (1962); Farah Mfg. Co., 202
NLRB 666, 671 (1973) (distribution of union buttons equated with
distribution of union cards, which Stoddard-Quirk equates with solic-
itation).
30 I would in any event have dismissed the allegations based on
Morgan’s statements to employees Beattie and Skipper, on the
ground that these statements are ambiguous and insufficient to sup-
port an unfair labor practice finding.
31 Taylor’s and Morgan’s inclusion in the voting group does not
affect the probative value of their statements in connection with Re-
spondent’s motives for the personnel action attacked in the com-
plaint. Montgomery Ward, supra at 647.
32 In the absence of exceptions, on June 7, 1991, the Board adopt-
ed her findings, conclusions, and Order.
33 The Board’s decision in the representation case (Oklahoma In-
stallation, supra, 305 NLRB 812) states that ‘‘All labor relations
policies are centrally established by Boler from Oklahoma,’’ in a
context establishing that this is the same individual who in the
record before me is identified as President Jack Boler.
Section 8(a)(1) when Davis told employee Burgess, in early
July 1990, that Respondent was discriminating against union
members in hiring employees for the Green Hills job. Kessel
Food Markets, 287 NLRB 426, 427, 448 (1987), enfd. 868
F.2d 881 (6th Cir. 1989), cert. denied 110 S.Ct. 76 (1989).
Moreover, and notwithstanding Montgomery Ward, I find
that Respondent violated the Act when Foreman Taylor told
employee Stewart, who was passing out union T-shirts on the
job before the 7 a.m. start of the workday about October 10,
not to pass out T-shirts and hats on ‘‘company time’’ and
without expressing any limitations (such as the carpenters
restroom) as to location. BJ’s Wholesale Club, 297 NLRB
611 (1990); Southern Services, 300 NLRB 1154 (1990),
enfd. 954 F.2d 700 (11th Cir. 1992); Gemco, 271 NLRB
1190 (1984).29 In so finding, I deem it unnecessary to deter-
mine whether Montgomery Ward had become relevant by the
time of this incident. Assuming an affirmative answer
arguendo, at about 3 p.m. on October 10 Respondent ratified
Taylor’s conduct when Project Superintendent McBrayer told
employee Burgess (who had obtained the union T-shirts and
caps and had participated with Stewart in handing them out)
not to hand out such materials ‘‘on the property; pass it out
on the parking lot.’’
However, Montgomery Ward calls for dismissal of the
complaint allegations to Supervisor Johnny Morgan, all of
which involved conduct after the Regional Director’s
issuance of his Decision and Direction of Election, and of
the complaint allegations based on Supervisor Taylor’s al-
leged threats to employee McCutcheon during that same pe-
riod.30 Although the stipulation which caused the Regional
Director to find Morgan and Taylor eligible to vote merely
stated that they were not supervisors, under the cir-
cumstances this amounted to a stipulation that they were
properly in the voting unit.
2. The 8(a)(3) and (1) allegations
a. Respondent’s antiunion animus
The evidence demonstrates that Respondent strongly op-
posed union representation of its employees. Thus, in mid-
June 1990, Company President Boler described the ‘‘ways of
the company’’ as calling for its personnel to get ‘‘out of the
Union’’ (see infra). Although he made these remarks at a
company jobsite in Houston, Texas, Boler establishes Re-
spondent’s corporate labor policies and relates the labor poli-
cies set by him to the various job superintendents, who oper-
ate within parameters set by him (see infra). Consistent with
these remarks by Boler (his immediate superior), Green Hills
Superintendent McBrayer, although himself a longstanding
member of one of the Union’s sister carpenter locals, told
Supervisor Taylor, who in July 1990 relayed this message to
employee Davis, that McBrayer did not want to have trouble
later on down the road if he got too many more union people
on the Green Hills job; and told Union President Burgess,
about 10 days before that job ended and while Superintend-
ent Traylor was hiring employees for Respondent’s Hickory
Hollow job, that Burgess’ distribution of union T-shirts and
hats on the Green Hills job would hurt the employment with
Respondent of ‘‘union guys, sympathizers.’’ Similarly, Green
Hills supervisors Taylor and Johnny Morgan told Green Hills
employee McCutcheon that if he or the Green Hills employ-
ees voted for the Union, he would have no chance of going
to work for Respondent on the Hickory Hollow job.31
The foregoing findings as to Boler are based on Adminis-
trative Law Judge Joan Wieder’s April 18, 1991, decision in
Oklahoma Installation, Cases 16–CA–14647–1 and 16–RC–
9320, of which the General Counsel has moved that I take
judicial notice.32 Respondent’s opposition to this motion is
based essentially on the ground that these facts as to Boler
are immaterial because there is no evidence that he person-
ally participated in deciding on the layoffs, and failures or
refusals to hire, attacked in the complaint. Unlike Respond-
ent, I do not regard this circumstance as rendering irrelevant
the findings of Judge Wieder referred to here. Rather, such
evidence suggests, at the very least, that the corporate labor
policies established by Boler, and related by him to the job
superintendents operating within the parameters set by him,
included his opposition to unionization. Accordingly, the
General Counsel’s motion that I take judicial notice of Judge
Wieder’s decision is by granted.33 Further, in light of such
evidence, the statements and conduct of Green Hills Super-
intendent McBrayer and Green Hills Supervisors Taylor and
Johnny Morgan consistent with Boler’s views, the evidence
that Boler was present in the Hickory Hills jobsite office
when former Green Hills employee Davis unsuccessfully
asked Hickory Hills Superintendent Traylor for a job, and
789OKLAHOMA INSTALLATION CO.
34 Burgess testified that the antiunion letter distributed with the
company T-shirts and caps had been written by Boler, and that Boler
had passed out this clothing. However, McCutcheon testified that
this letter was written by ‘‘his lawyer, or something like that,’’ refer-
ring to McBrayer; that McBrayer engaged in the distribution activity
observed by McCutcheon; and that the letter and clothing were dis-
tributed about November 8, by which date Burgess had been perma-
nently laid off. The letter is not in evidence.
35 The lowest paid carpenter left on the payroll received an over-
time rate of $13.50 an hour, higher than the $12.50 straight time rate
received by the highest paid laid-off carpenter. Much of the
postlayoff overtime was worked by carpenters at an overtime rate of
$18.75 an hour.
Traylor’s unexplained failure to testify, lead me to infer that
both Green Hills Superintendent McBrayer and Hickory Hol-
low Superintendent Traylor attempted to effectuate Company
President Boler’s desire to avoid a union bargaining obliga-
tion.34
b. The allegedly unlawful layoff of Burgess and Smith
on October 10, 1990
McBrayer knew before hiring Burgess that he was the
union president. Burgess honored the picket line throughout
the period it was maintained; distributed union authorization
cards among his fellow employees; and on September 18,
1990, testified on the Union’s behalf at the representation
case hearing. Just before work on October 8, 1990, Burgess
asked fellow employees whether they would like union T-
shirts and union caps, whereupon Supervisor Taylor (who
was present) said that he would appreciate it if Burgess did
not get caught doing this on ‘‘company time.’’ Later that
same day, Taylor told Burgess and his helper, Smith, not to
come in the following day because Respondent had failed to
receive a shipment of materials. Burgess and Smith in fact
already had all the materials they needed for the work they
were performing. Furthermore, when there was a lack of ma-
terials on the job, Respondent’s practice during this period
was to cut back hours rather than to lay employees off.
Moreover, when Burgess returned to the job on October 10,
he found that some of this work had been performed in his
absence. Thereafter, during a conversation with Stewart into
which McBrayer interjected the subject of union T-shirts,
McBrayer said that he was disappointed in Stewart and Bur-
gess because of their ‘‘activities.’’ When coupled with Re-
spondent’s anxiety to prevent organization of its employees,
such evidence shows that Burgess was laid off because of his
union activity, in violation of Section 8(a)(3) and (1) of the
Act. Because there was in fact no shortage of materials, the
only reason given for the layoff, the inquiry described in
NLRB v. Transportation Management Corp., 462 U.S. 393,
401–403 (1983), is logically at an end. See Limestone Ap-
parel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th
Cir. 1982).
Although there is no evidence that Smith engaged in any
union activity or that Respondent thought he did, I conclude
that his layoff, too, violated Section 8(a)(1) and (3) of the
Act because it was effected in an attempt to lend credence
to Respondent’s contention that Burgess was laid off because
of a shortage of materials for the work both of them had
been performing. Wonder State Mfg. Co. v. NLRB, 331 F.2d
737, 738 (6th Cir. 1964); NLRB v. Armcor Industries, 535
F.2d 239, 243 (3d Cir. 1976); O’Dovero Construction, 264
NLRB 751 (1982).
c. The layoffs on October 12, 1990
Further, I find that Respondent violated Section 8(a)(3)
and (1) by laying off employees Burgess, Stewart, Davis, and
Wooten on October 12, 1990. More specifically, I find that
Respondent’s decision to effect a layoff on that day was not
motivated by an honest belief that it had more workers than
it needed but, rather, was motivated by a desire to rid itself
of these four employees because of their union activity. Fur-
ther, I find that even assuming Respondent’s decision to ef-
fect a layoff was economically motivated, Respondent’s deci-
sion to include these four employees in the layoff was moti-
vated by their union activity.
The overt union activity of Union President Burgess has
been summarized, supra, section II,B,C,1. As previously
found, employee Stewart, whom Respondent knew to be the
Union’s recording secretary, honored the picket line during
the entire period the line was maintained, distributed union
authorization cards in Superintendent McBrayer’s presence,
and testified on the Union’s behalf at the representation case
hearing. Further, on October 10 both Burgess and Stewart
openly distributed union T-shirts and union caps to their fel-
low employees before work or during the lunchbreak. Em-
ployee Davis honored the picket line all but the last 2 days
it was up, distributed union cards in the presence of Super-
intendent McBrayer and Foreman Taylor, and wore a union
shirt on the job. Employee Wooten wore a union T-shirt and
hat on the job, and openly said that he supported the Union.
Moreover, after the October 12 layoffs, management want-
ed the remaining employees to work as many hours as they
would; McBrayer went so far as to say that the carpenters
were going to work 7 days a week and 12 hours a day (al-
though they did not in fact do so); the amount of overtime
worked on the job greatly increased; and some of the em-
ployees worked such long hours (up to 78 hours a week) that
their ability to work efficiently may well have been impaired.
However, even with this sharp increase in Respondent’s pay-
roll expenses,35 Respondent was unable to complete the job
by November 15, the day it was supposed to be completed;
did not substantially finish it until November 21, which was
the day before the Thanksgiving start of the Christmas shop-
ping season; and did not wholly complete the job until after
the holiday sales in January. In view of these facts, and be-
cause Respondent never (so far as the record shows) at-
tempted to recall any of these laid-off employees to the be-
hind-hand Green Hills job, I do not believe that Respond-
ent’s decision to lay off these four union sympathizers a
month before the job was supposed to end was motivated by
honest business judgment; rather, I conclude that Respondent
decided on a premature layoff for the purpose, at least in
part, of reducing the number of union sympathizers in its
employ.
Furthermore, and regardless of Respondent’s reasons for
deciding to effect a layoff on October 12, I conclude that the
inclusion of these four employees was motivated, at least in
part, by their union activity. Union President Burgess and
Union Recording Secretary Stewart had received wage in-
790 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
36 In view of this testimony by McBrayer and Taylor, and for de-
meanor reasons, I do not credit Taylor’s and Johnny Morgan’s testi-
mony that during the conference about whom to lay off, the employ-
ees’ union activity was not mentioned. See Walton Mfg., supra at
369 U.S. at 408.
creases which brought them to Respondent’s top level for
nonsupervisory carpenters; and Wooten’s wages had been in-
creased from $8 to $8.75. Burgess’ work had been com-
plimented by Foreman Johnny Morgan; Stewart’s work had
been complimented by McBrayer on the very day of Stew-
art’s layoff. Moreover, the reasons which McBrayer ascribed
to Taylor for the selection of Davis, Stewart, and Wooten,
and the reasons Taylor gave for the selection of Stewart, sug-
gest in themselves that such reasons were these employees’
union activity: thus, Taylor testified that he selected Stewart
because of the coming up on the job of animosity part of
which was the picket line and the union petition; and
McBrayer testified that Stewart, Wooten, and Davis ‘‘could
all be grouped together . . . they were . . . no longer fol-
lowing directions as easily as they had in the past.’’36 Fur-
ther, as to Davis and Wooten, McBrayer’s testimony about
the reasons Taylor gave for their selection is inconsistent
with Taylor’s explanation (‘‘they were working in . . . a
large stockroom [which] utilized a lot of space, and that part
of the job was ending’’). Such testimony by Taylor is incon-
sistent with his testimony that Wooten was then working in
the main floor men’s bathroom as a helper to Cason; and,
even standing alone, raises the question of why the spacious-
ness of the almost-completed stockroom caused Taylor to se-
lect Davis and Wooten for layoff, rather than other employ-
ees. Moreover, Morgan’s testimony that he selected Burgess
for layoff, rather than the lower paid Northcott, because
Northcott had more laminating skills, is difficult to square
with Morgan’s further testimony that not much more lami-
nating work had to be performed.
In other words, as to both Respondent’s decision to effect
a layoff and its decision to include these four employees in
that layoff, the reasons relied upon by Respondent (to the ex-
tent they are lawful reasons) are pretextuous—that is, they
either did not exist or were not relied on. Accordingly, Re-
spondent has failed to meet its burden of showing that even
in the absence of the laid-off employees’ union activity, Re-
spondent would have effected a layoff and would have in-
cluded these four employees in the layoff. See NLRB v. E.
I. Du Pont de Nemours & Co., 750 F.2d 524, 529 (6th Cir.
1984); American Licorice Co., 299 NLRB 145, 148 fn. 22
(1990); Limestone Apparel Corp., supra at 722; Turnbull
Cone Baking Co., 271 NLRB 1320, 1354–1357 (1984), enfd.
778 F.2d 292, 296–297 (6th Cir. 1985), cert. denied 476 U.S.
1159 (1986). Accordingly, I find that Respondent violated
Section 8(a)(3) and (1) of the Act by laying off employees
Burgess, Stewart, Davis, and Wooten on October 12, 1990.
d. The alleged failures and refusals to hire for the
Hickory Hollow job
In addition, I find that Respondent violated Section 8(a)(3)
and (1) of the Act by failing and refusing to hire, for the
Hickory Hollow project, employees Burgess, Stewart, Davis,
Beattie, Cason, McCutcheon, Skipper, and Wood. All of
these employee engaged in overt union activity. The union
activity of Union President Burgess, Union Recording Sec-
retary Stewart, and Davis is summarized, supra, sections
II,B,C,1, and D. All five of the remaining employees wore
union T-shirts on the Green Hills job; and Beattie, Cason,
and Skipper honored the union picket line. Green Hills Su-
perintendent McBrayer had told Burgess, Cason, Davis,
McCutcheon, and Stewart during their hiring interviews that
Respondent would have work at other projects in the area,
including the Hickory Hollow project, for at least the better
Green Hills employees. Similarly, before the filing of the
representation petition, McBrayer told Green Hills employee
Beattie that his chances of getting work at other jobs to be
performed by Respondent ‘‘looked pretty good.’’ Further-
more, of the approximately 63 nonsupervisory employees
hired by Respondent for the Hickory Hollow job between
November 25, 1990, and January 24, 1991, about 14 had for-
merly worked for Respondent at Green Hills and about 16
had formerly worked for Respondent at the Bellevue Mall
project. However, after the Union filed its representation pe-
tition, which requested a unit including the Hickory Hollow
job, Foremen Taylor and Morgan told employees
McCutcheon and Beattie that their union activity would pre-
vent them from getting employment with Respondent on that
job. Moreover, about 10 days before the Green Hills job had
been substantially completed, Green Hills Superintendent
McBrayer told employee Burgess that his union activity
would ‘‘hurt’’ the ‘‘union sympathizers’’ employment with
Respondent.
The work of all eight of these employees had been satis-
factory or better at the Green Hills job. By the time of their
layoff from that job, Beattie, Burgess, Cason, Skipper, and
Stewart were all receiving $12.50 an hour, Respondent’s
highest rate on that job for nonsupervisory carpenters. More-
over, McCutcheon and Wood had received a wage increase
while on that job. There is no evidence or claim of any defi-
ciencies in any of these eight employees’ work at Green
Hills, or that their abilities as shown by their work there
were bettered or even equalled by those of the carpenters
who were in fact hired for the Hickory Hollow job. Indeed,
Respondent hired for that job two employees (Guinn and
Dickens) who had been included in an August 1990 layoff
list which had been drawn up by the Green Hills foremen
and which did not include Beattie or Davis; Guinn’s job ap-
plication had been turned in by Beattie on the same date
(November 28) as he turned in his own application. At the
time of their respective layoffs from the Green Hills job,
Dickens and Guinn were being paid $12 an hour, less than
Beattie, Burgess, Cason, Skipper, and Stewart had been re-
ceiving when they had been laid off at Green Hills. Further-
more, the only reason which Respondent has ever given for
failing or refusing to hire these eight employees—namely,
that Respondent did not need any more employees—is de-
monstrably false.
In view of the foregoing evidence and the evidence sum-
marized, supra, section II,G,2,a, I conclude that the General
Counsel has shown that Respondent’s failure and refusal to
hire these employees for the Hickory Hollow job was moti-
vated at least partly by their union activity. Contrary to Re-
spondent, I do not believe that the General Counsel’s case
is fatally flawed by the absence of direct evidence that
antiunion bias was entertained by Hickory Hill Superintend-
ent Traylor, who made the final hiring decisions on that job
and who unexplainedly failed to testify. As shown supra,
791OKLAHOMA INSTALLATION CO.
37 However, one of these employees, Bates, wore his union cloth-
ing for only 1 day.
38 See Southwestern Bell, supra at 1502; Today’s Man, 263 NLRB
332 (1982); Fed.R.Evid. 103(a)(1).
39 American Press v. NLRB, 833 F.2d 621, 627 (6th Cir. 1987),
enfg. 280 NLRB 937, 942 (1986); NLRB v. Valley Die Cast Corp.,
303 F.2d 64, 66 (6th Cir. 1962).
Company President Boler did not want Respondent’s em-
ployees to be union represented; he set Respondent’s labor
policy and related it to the superintendents (like Traylor and
McBrayer), who operated within the parameters set by Boler;
although McBrayer was a longtime union member, he be-
lieved that this antiunion policy extended to Traylor and
would be followed by him; and Boler was in the Hickory
Hill office when Traylor refused to hire Davis because of his
union activity. Because the antiunion Boler was the imme-
diate superior of the company representative (Superintendent
Traylor) who decided on whom to hire, Respondent’s case
is not significantly assisted by the cases cited in its brief,
which cases found irrelevant the evidence of bias by subordi-
nates of the deciding officer or by persons unrelated to the
decisionmaking. Nor is a contrary result suggested by Re-
spondent’s retention of five of the claimants (Beattie, Cason,
McCutcheon, Skipper, and Wood) until the November 21
semicompletion of the Green Hills job, which was under-
staffed following the discriminatory layoff on October 12 of
Burgess, Stewart, Davis, and Wooten; or by the fact that of
the approximately 14 nonsupervisory Green Hills employees
who were eventually hired for the Hickory Hollow job, about
3 had worn union T-shirts on the Green Hills job.37 See
NLRB v. Centra, Inc., 954 F.2d 366 (6th Cir. 1992); NLRB
v. Instrument Corp., 714 F.2d 324, 330 (4th Cir. 1983); Fre-
donia Valley Quarries, 272 NLRB 843, 847 fn. 23 (1984);
and Master Security Services, 270 NLRB 543, 552 (1984).
Because the record refutes Respondent’s contention that
the eight claimants were denied employment for the reason
that no employees were needed, Respondent has plainly
failed to sustain its burden of showing that they would not
have been hired even in the absence of their union activity.
Accordingly, I find at this point that Respondent violated
Section 8(a)(3) and (1) of the Act by failing and refusing to
hire Cason on and after November 26, 1990; Skipper on and
after November 27, 1990; Wood and Beattie on and after
November 28, 1990; and Burgess on and after January 14,
1991. Also, I find that Respondent violated Section 8(a)(3)
and (1) by failing and refusing to hire McCutcheon on and
after November 26, 1990, when he filed his first filled-out
application blank. Because when he filed his first application
Traylor untruthfully told him that Traylor did not need any
help, because after McCutcheon filed his second application
on December 3 Respondent continued to deny him employ-
ment on the demonstrably false ground that Respondent did
not need employees, and because the only evidence that his
first application had been lost is his testimony (although re-
ceived without objection or limitation) that he had been so
told by Respondent’s secretary, I conclude that this represen-
tation was as false as the previous and subsequent misrepre-
sentations which Respondent used to avoid hiring him.
Further, I find that Respondent was answerable for the
false representation to employee Stewart, when he telephoned
Respondent’s Hickory Hollow office during the first week in
December 1990 and asked whether job applications were
then being accepted, that Respondent was not accepting such
applications;38 that this misrepresentation caused Stewart to
fail to file a written application that day; and that, therefore,
Respondent unlawfully failed and refused to hire Stewart on
and after December 7, 1990.39 For similar reasons, I find that
Respondent violated Section 8(a)(3) and (1) by failing and
refusing to hire Davis on and after January 4, 1991, the day
when he went to the Hickory Hollow jobsite and asked Su-
perintendent Traylor for a job; I so find because Davis’ fail-
ure to file a written application blank on that day was due
to Traylor’s false representation that he already had a full
crew (see supra fn. 39). However, I do not accept the Gen-
eral Counsel’s contention that an earlier date should be found
as to the discrimination against Davis. Although I credit his
testimony that he did not request a job at an earlier date be-
cause friends had told him Respondent was not hiring union
activists for that job, and although Respondent did in fact
follow a discriminatory hiring policy on that job on and after
November 26, 1990, the record fails to show either when
Davis received this report, or when he would likely have ap-
plied if he had not received it.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act in
the following respects:
(a) By telling employee Burgess, through Superintendent
McBrayer, that Burgess’ distribution of union T-shirts and
union hats would hurt the employment of union sympathizers
with Respondent; and that Burgess’ union activities had hurt
McBrayer’s feelings.
(b) By telling employee Stewart, through Superintendent
McBrayer, that McBrayer was disappointed in Stewart and
Burgess for their union activities.
(c) Through Superintendent McBrayer, by distributing T-
shirts and caps, bearing Respondent’s logo, immediately after
distributing letters from Respondent urging a ‘‘no’’ vote, and
to employees who had not requested such garments.
(d) By telling employee Davis, through Foreman Taylor,
that Respondent was discriminating against union members
in hiring.
(e) Through Foreman Taylor, by telling employee Stewart,
when he was passing out union T-shirts on the job before the
start of the workday, not to pass out T-shirts and hats on
‘‘company time’’ and without expressing any limitations as
to location.
4. Respondent has violated Section 8(a)(3) and (1) of the
Act in the following respects:
(a) Laying off employees Burgess and Smith on October
10, 1990.
(b) Laying off employees Burgess, Stewart, Davis, and
Wooten on October 12, 1990.
(c) Failing and refusing to hire (1) employees Cason and
McCutcheon on and after November 26, 1990; (2) employee
792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Skipper on and after November 27, 1990; (3) employees
Wood and Beattie on and after November 28, 1990; (4) em-
ployee Stewart on and after December 7, 1990; (5) employee
Davis on and after January 4, 1991; and (6) employee Bur-
gess on and after January 14, 1991.
5. The unfair labor practices set forth in Conclusions of
Law 3 and 4 affect commerce within the meaning of Section
2(6) and (7) of the Act.
6. Respondent has not violated Section 8(a)(1) of the Act
through Foreman Johnny Morgan, or by any threats by Fore-
man Taylor to employee McCutcheon.
THE REMEDY
Having found that Respondent has violated the Act in cer-
tain respects, I shall recommend that Respondent be ordered
to cease and desist therefrom, and from like or related con-
duct. Also, in the event that the Hickory Hollow job is still
in progress, Respondent will be required to offer employment
on that job to the eight employees whom Respondent unlaw-
fully failed and refused to hire for that job. In addition, Re-
spondent will be required to make Wooten’s estate (see supra
fn. 6), and the other discriminatees, whole for any loss of
pay they may have suffered by reason of the discrimination
against them, in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
The unfair labor practices herein found occurred at two
projects in Davidson County, Tennessee—namely, the Green
Hills job and the Hickory Hollow job. Because the Green
Hills job was completed before the hearing and the Hickory
Hollow job has probably been completed by this time, and
because Respondent’s main office is in Oklahoma, Respond-
ent likely has no place of business where the posting of no-
tices would effectively apprise of their statutory rights the
employees who worked for Respondent during the commis-
sion of these unfair labor practices. Further, the Board has
held that a unit of Respondent’s carpenters, apprentice car-
penters, and carpenter’s helpers in Davidson County would
be appropriate for collective-bargaining purposes. Accord-
ingly, Respondent will be required to mail a copy of the at-
tached notice to each of the employees who worked for it
at the Green Hills job on or after July 9, 1990, the approxi-
mate date when Respondent began unfair labor practices di-
rected at its Green Hills employees; to each of the employees
who worked for it on the Hickory Hollow job (all of them
having been hired after July 9, 1990), unless that job is still
in progress when notices are first posted on that job; and to
each of the carpenters, apprentice carpenters, and carpenter’s
helpers who worked for Respondent in Davidson County,
Tennessee, on or after July 9, 1990, on jobs which are no
longer in progress. Also, Respondent will be required to post
notices at all of its Davidson County jobs which are still in
progress.
[Recommended Order omitted from publication.]