Stevens Construction

National Labor Relations Board - Administrative Judge Opinions

Apr 7, 2003

30-CA-015489 (N.L.R.B. Apr. 7, 2003)

JD– 41–03
Madison, WI

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

STEVENS CONSTRUCTION CORP.

and Cases 30-CA-15489

MILWAUKEE AND SOUTHERN WISCONSIN
REGIONAL COUNCIL OF CARPENTERS

and 30-CA-15883
30-CA-16108
30-CA-16109

NORTHERN WISCONSIN REGIONAL COUNCIL OF
CARPENTERS, UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA

and 30-CA-16196

LABORERS’ INTERNATIONAL UNION OF
NORTH AMERICA, LOCAL 464, AFL-CIO

Paul A. Bosanac, Esq., of Milwaukee, WI,
for the General Counsel.
Michael T. Kelley, Director of Organizing,
of Kaukauna, WI, for the Charging Party.
Douglas E. Witte, Esq., of Madison, WI,
for the Respondent-Employer.

DECISION

Statement of the Case

Bruce D. Rosenstein, Administrative Law Judge. This case was tried before me on
January 7, 8, and 9, 2003, in Madison, Wisconsin, pursuant to Consolidated Complaints and
Notice of Hearing (the complaint) issued by the Regional Director for Region 30 of the National
Labor Relations Board (the Board) on November 26, 2002.1 The complaint, based upon original
and amended charges in the above noted cases was filed by Milwaukee and Southern
Wisconsin Regional Council of Carpenters (the Charging Party or Union), Northern Wisconsin
Regional Council of Carpenters, United Brotherhood of Carpenters and Joiners of America (the
Charging Party or Union), and Laborers’ International Union of North America, Local 464, AFL-
CIO, (Local 464 or Union), alleges that Stevens Construction Corp. (the Respondent or
Employer), has engaged in certain violations of Section 8(a)(1) and (3) of the National Labor
1 All dates are in 2002 unless otherwise indicated.

JD–41–03

5

10

15

20

25

30

35

40

45

50
2
Relations Act (the Act). The Respondent filed a timely answer to the complaint denying that it
had committed any violations of the Act.

Issues

The complaint alleges that Respondent engaged in a number of independent violations
of Section 8(a)(1) of the Act including threats to employees because of their union activities and
maintenance in its handbook of overly broad solicitation and distribution rules. Additionally, the
complaint alleges that the Respondent disciplined and took punitive actions against an
employee, and has failed and refused to consider for employment and /or hire fourteen
applicants because of their membership in and activities in support of the Union, in violation of
Section 8(a)(1) and (3) of the Act.

On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following

Findings of Fact

I. Jurisdiction

The Respondent is a corporation engaged as a contractor in the building and
construction industry in Madison, Wisconsin, where it annually purchased and received at its
facilities and/or jobsites in Wisconsin, products, goods, and materials valued in excess of
$50,000 directly from employers outside the State of Wisconsin. The Respondent admits and I
find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7)
of the Act and that the Unions are labor organizations within the meaning of Section 2(5) of the
Act.

II. Alleged Unfair Labor Practices

A. Background

During the relevant time period herein, the Respondent employed approximately 120-
130 employees that engaged in constructing residential, commercial, industrial, and/or office
facilities in Madison, Wisconsin and throughout the State of Wisconsin. Prior to April 1, Jim
Ladika held the position of Production Manager/Manager of Field Personnel and was responsible
for hiring and establishing salary rates for employees. After April 1, Vice President of Operations
Geoffrey Vine assumed these responsibilities. Dan Kast, David Mosel, Scott Shanks, and Carl
Nelson serve in the capacity of Superintendents for Respondent, and are responsible for the
day-to-day operations on a specific job site. Jamie Endrizzi is Respondent’s Safety Director and
oversees all areas of safety throughout the Employer’s operation. Lastly, Dena Pavlick serves
as the Human Resources Manager handling employment applications and conducting employee
interviews on Respondent’s behalf.

B. Complaint 30-CA-15489 and 15883

1. The Facts

On or about April 13, 2001, Respondent was in the process of constructing a multi-story
apartment building in Madison, Wisconsin. Respondent contracted with Statz & Harrop, Inc. to
complete the steel stud framing on the building. Statz & Harrop, Inc. and Respondent

JD–41–03

5

10

15

20

25

30

35

40

45

50
3

separately employ its own employees and supervisors on the apartment building construction
project.

Shortly before the above date, Respondent’s employee Ted Roessler complained to
Superintendent Kast that an employee of Statz & Harrop, Inc. was interfering with his job
responsibilities by constantly talking to him during working hours about organizing a union at
Respondent and the benefits of such representation. Kast had also been informed by a number
of other Respondent employees that they had experienced the same problems with this
employee. Respondent inquired and then learned that the name of the Statz & Harrop, Inc.
employee that was talking about the Union with Respondent’s employees during work time was
Robert Hyatt. Accordingly, during the afternoon of April 13, 2001, at the worksite, Kast and
Manager of Field Personnel Ladika approached Hyatt and informed him that they heard he had
been talking union to Respondent’s employees. Both Kast and Ladika informed Hyatt that they
did not want him talking about the Union with Respondent’s employees during work time. Hyatt
responded that it was a free country and he would talk to whomever he pleased about the Union
or anything else whenever he felt like it. Both Kast and Ladika reaffirmed to Hyatt that he
should refrain from talking about the Union with Respondent’s employees during work time.
The conversation ended with Ladika stating, “You don’t seem to understand what I’m saying, so
maybe later this afternoon you’ll understand.” Upon returning to work the following Monday,
April 16, 2001, Hyatt was laid off from his position with Statz & Harrop, Inc.2

In early January 2002, Ladika hired former employee James Muir as a construction
Carpenter III at a salary of $18.50 per hour. Muir was assigned to the Wilderness Resort
expansion project in Wisconsin Dells, Wisconsin under the supervision of Superintendent
Shanks. At the time of his hire, Muir was employed by the Union as an organizer but did not
inform the Respondent about his status. Muir continued to work on the Wilderness project
throughout January 2002, without discussing the Union with Respondent’s employees. On
January 26, he dislocated his shoulder while working at home over the weekend. Muir notified
Shanks and Human Resources Manager Pavlick that he would not be reporting to work on
Monday and that he would be under a doctors care for at least the next week and unable to
return to work. Muir informed Shanks that he hoped to be back to work full-time on February
15. During the course of their telephone conversation, Pavlick offered Muir the opportunity to
come back to work on the Wilderness project as a Safety Monitor, a light duty position, at the
reduced wage of $11.00 per hour. Although Muir was disappointed with the wage reduction,
after reflecting on the offer overnight, he decided to accept and reported to the jobsite on
February 11. Muir observed on his first day back to work that a number of the men were
working on roofs without harnesses or tie-offs, which is a violation of Occupational Safety and
Health (OSHA) regulations. He mentioned this to Superintendent Mosel on February 11, but
nothing was done. Muir arrived at work on February 12, and observed that no ropes or fall
protection gear was erected to protect the men who were still working on the roof. He
mentioned this flagrant safety violation to Shanks who replied that the men should know better.
Safety Director Endrizzi was on the jobsite that morning and Muir talked to him about the unsafe
roof practices specifically that the men were working without harnesses or tie-offs. That
afternoon, Endrizzi called a special meeting for all employees on the jobsite including Muir and
2 The General Counsel and the Respondent entered into a settlement agreement on
February 8, resolving the layoff of Hyatt as alleged in Case 30-CA-15489 (GC Exh. 3). Thus,
that portion of the complaint will not be addressed in this decision. Rather, the discussion that
occurred between Hyatt, Kast and Ladika on April 13, 2001, will be addressed subsequently in
the decision when considering whether the statements violated Section 8(a)(1) of the Act as
alleged by the General Counsel.

JD–41–03

5

10

15

20

25

30

35

40

45

50
4

discussed issues regarding fall protection while working on the jobsite (R Exh. 3). Muir also
mentioned his concerns about fall protection to Ladika while he was making one of his routine
visits to the jobsite. Muir, without informing anyone in authority at Respondent, telephoned
OSHA prior to the special meeting to report unsafe working conditions on the jobsite when men
were working without proper fall protection. Muir made the call because he did not believe that
the Respondent was conforming to safety or OSHA regulations due to its failure of not requiring
the men to wear harnesses when working on roofs or implementing other fall protection
guidelines. The OSHA investigator did not immediately respond to Muir’s initial telephone call
so he placed a second call to OSHA during the morning of February 14. Later that morning the
OSHA inspector arrived at the jobsite and talked with Muir and Endrizzi. After inspecting the
jobsite, the investigator cited the Respondent for not providing a safe work environment when
men were working on roofs or other locations where they could fall due to unsafe fall protection
measures. After the departure of the OSHA investigator, Muir informed Endrizzi and Mosel that
he was the individual who called and reported the safety violations to OSHA. Muir also
informed both individuals that he was a union organizer and would be talking to Respondent
employees about joining the Union. Endrizzi immediately telephoned Ladika and informed him
that Muir was the individual who reported the safety violations to OSHA and that he just
announced that he was a union organizer. Ladika acknowledged that Endrizzi informed him
about these matters. Ladika immediately telephoned the jobsite looking for Muir but was
informed by Shanks that he had left for the day.3 Ladika contacted Pavlick who provided Muir’s
cell phone number. Ladika placed a telephone call to Muir who received it while he was still in
his car driving home. Ladika informed Muir that he was no longer needed at the Wisconsin
Dells jobsite and that he would not be able to return to work until he provided a doctor’s release.
Muir informed Ladika that he would bring the doctor’s note to the jobsite and give it to Shanks
so it could be faxed to Ladika’s attention. Ladika told Muir that he should not show up for work
at the jobsite and if he did, he would be arrested for trespassing and fired. Ladika instructed
Muir to go directly to the office on February 15 with the doctor’s release and not show up at the
jobsite. Upon arriving home, Muir telephoned Ladika to further discuss the matter. Ladika told
Muir that he did not want to discuss the matter further and he should contact Pavlick if he had
any further questions.

Prior to proceeding to the office on February 15, Muir stopped at his doctor’s office and
obtained a clean copy of the return to duty release form as the prior one had become illegible (R
Exh. 4). Before Muir arrived at the office, Respondent’s President, Endrizzi, Ladika and Pavlick
met to discuss the issue of Muir being responsible for initiating the OSHA investigation and
announcing that he was a union organizer with the intent of recruiting Respondent’s employees
to join the Union. While the participants in this meeting decided they could not treat Muir any
differently then any other employee, it was agreed that after receipt of the doctor’s release form,
Muir would be transferred to another jobsite where no further commotion from yesterday’s
OSHA visit could arise (R Exh. 54). Pavlick was instructed to contact Muir and ask him if he
had the doctor’s release form. She then telephoned Muir who inquired whether he still had a job
or if he was fired. Pavlick apprised him that he did indeed still have his job and upon receipt of
the doctor’s release form she would start the process to get him back to work. Muir informed
Pavlick that if he observed any further safety violations he would call OSHA and that when he
did return to work he would be bringing union literature and would be talking to other employees
to convince them to join the Union. The conversation ended and Muir agreed to be in the office
within the hour with the doctor’s release form.
3 Shanks previously agreed that Muir’s working hours would be 7 a.m to 3:30 p.m. due to
child-care responsibilities. Apparently Shanks had not informed Ladika or Pavlick of this
arrangement when Ladika attempted to reach Muir around 3:30 p.m. on February 14.

JD–41–03

5

10

15

20

25

30

35

40

45

50
5

Upon arriving at the office, Muir attended a meeting with Ladika, CFO Mark Rudnicki and
Pavlick. Muir provided the doctor’s release form to Pavlick who noted it was dated February 15.
Muir apprised Pavlick that he went back to the doctor that morning to get a new form because
the other one was hard to read. During the course of the meeting, Pavlick discussed the issue
surrounding Muir leaving the jobsite at 3:30 p.m. on February 14, and after addressing Muir’s
intention to advocate for the Union, she obtained his agreement to distribute union literature and
speak to Respondent’s employees about the Union before and after work, during lunch or after
work but not during work time. The meeting ended with Respondent stating that due to the
situation with OSHA yesterday, they did not feel comfortable placing Muir back at the
Wilderness jobsite and therefore, he was being reassigned to the First National Bank of
Stoughton job starting next Monday, February 18. Muir responded that he would have no
problem working at the Wilderness jobsite again. Respondent stated that it did not feel
comfortable putting him back because an uncomfortable workplace environment would be
created after yesterday and they did not want anyone to feel uncomfortable. Muir was
instructed to report to the First National Bank jobsite on Monday (R Exh. 54).

2. The 8(a)(1) Allegations

The General Counsel alleges in paragraph 5 of the complaint that on or about April 13,
2001, at a multi-story apartment building, Ladika and Kast directed that an employee refrain
from discussing union with Respondent’s employees working at that jobsite and threatened the
employee with discharge if he failed to stop such activities.

The Board has held that interrogation is not a per se violation of Section 8(a)(1) of the
Act. Rossmore House, 269 NLRB 1176, (1984), affd. sub nom. Hotel Employees Union Local
11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In determining whether an interrogation is unlawful,
the Board examines whether, under all the circumstances the questioning reasonably tends to
interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. Rossmore
House, 269 NLRB at 1177-1178. Emery Worldwide, 309 NLRB 185, 186 (1992). Under the
totality of circumstances approach, the Board examines factors such as whether the
interrogated employee is an open and active union supporter, the background of the
interrogation, the nature of the information sought, the identity of the questioner, and the place
and method of interrogation. Rossmore House, 269 NLRB at 1178 fn. 20; Bourne v. NLRB, 332
F.2d 47, 48 (2d Cir. 1964); Sunnyvale Medical Clinic, 277 NLRB 1217, 1218 (1985).

Shortly before the above date, Respondent’s employee Ted Roessler complained to
Kast that an employee of Statz & Harrop, Inc. was interfering with his job responsibilities by
constantly talking to him during working hours about organizing a union at Respondent and the
benefits of such representation. Kast had also been informed by a number of other Respondent
employees that they had experienced the same problems with this employee. Respondent
inquired and learned that the name of the Statz & Harrop, Inc. employee that was talking about
the Union with Respondent’s employees during work time was Hyatt. Accordingly, during the
afternoon of April 13, 2001, at the worksite, Kast and Ladika approached Hyatt and informed
him that they heard he had been talking union to Respondent’s employees. Both Kast and
Ladika informed Hyatt that they did not want him talking about the Union with Respondent’s
employees during work time. Hyatt responded that it was a free country and he would talk to
whomever he pleased about the Union or anything else whenever he felt like it. Both Kast and
Ladika reaffirmed to Hyatt that he should refrain from talking about the Union with Respondent’s
employees during work time. The conversation ended with Ladika stating, “You don’t seem to
understand what I’m saying, so maybe you’ll understand later this afternoon.”

JD–41–03

5

10

15

20

25

30

35

40

45

50
6
Hyatt previously gave a sworn affidavit to the Board four days after the events in
question on April 16, 2001. The affidavit confirms that Kast and Ladika instructed Hyatt not to
talk about the Union with Respondent’s employees during work time and does not mention that
either Kast or Ladika threatened him with discharge if he failed to stop such activities. Likewise,
in his testimony in the subject case, Hyatt did not assert that either Kast or Ladika threatened
him with discharge if he failed to stop such activities.

The Board has consistently maintained the position that oral solicitations may be
prohibited only during working time. Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).
Accordingly, I find that when Respondent representatives instructed Hyatt not to talk to
Respondent’s employees during working time about the Union it was privileged to do so.
Moreover, I find that based on Hyatt’s testimony, Respondent’s representatives did not threaten
him with discharge if he failed to stop talking to Respondent’s employees about the Union
during working time.

Based on the forgoing, I do not find that the General Counsel sustained the allegations
in paragraph 5 of the complaint and recommend that they be dismissed.

The General Counsel alleges in paragraph 6 of the complaint that on or about February
14, at the Wilderness Resort project, Mosel advised an employee that it would be futile to
support a union and threatened the termination of all employees if the employees ever
unionized.

Muir testified that just before lunch he and Mosel were talking about the OSHA
investigation. During that discussion, Muir told Mosel that he was a member of the Union and
intended to organize Respondent’s employees. Mosel, told Muir that “in no way would Stevens
go Union, and if the Union bothered them again they would fire all their employees and sub out
their work just like they do in California.” Mosel ended the conversation by informing Muir that
he did not believe in unions.

According to Mosel, he testified that he was a union member in the late 1970’s and early
1980’s but was not in favor of unions in general. He admitted that he told Muir, “that if he was
Stevens, he would not bother with the Union and would sub everything out.” Mosel denied the
comments attributed to him by Muir that if the Union bothered them again they would fire all
their employees and sub out their work just like they do in California.

While Mosel denied portions of the conversation, he admitted that a conversation did
occur in which the Union was discussed. I am inclined to credit Muir’s version of the
conversation for the following reasons. First, Muir’s testimony is fully consistent with his affidavit
given to the Board approximately one month after the conversation took place. Second, Mosel
admitted that he does not believe in unions and that “if he was Stevens, he would not bother
with the Union and sub everything out.” Third, Mosel denied that he was present on February
14 when Muir announced that he was a union organizer and was the individual that called
OSHA. Endrizzi contradicted Mosel and testified that he was present when Muir announced he
was a union organizer and was the individual that called OSHA. Fourth, Muir’s testimony had a
ring of truth to it and occurred just after he informed Mosel that he was a member of the Union
and intended to organize Respondent’s employees.

Based on the forgoing, I find that Mosel threatened an employee that advocating on
behalf of the Union would cause the termination of all employees. Such statements tend to
undermine Section 7 rights and are violative of Section 8(a)(1) of the Act.

JD–41–03

5

10

15

20

25

30

35

40

45

50
7
The General Counsel alleges in paragraph 7 of the complaint that on or about February
14, by telephone, Ladika threatened an employee with arrest and discharge and implied union
activity constituted disloyalty.

Ladika placed a telephone call to Muir who received it while he was still in his car driving
home from work on February 14. Ladika informed Muir that he was no longer needed at the
Wisconsin Dells jobsite and that he would not be able to return to work until he provided a
doctor’s release. Muir informed Ladika that he would bring the doctor’s note to the jobsite and
give it to Shanks so it could be faxed to Ladika’s attention. Ladika told Muir that he should not
show up for work at the jobsite and if he did, he would be arrested for trespassing and fired.
Muir asked Ladika why he was responding in this matter, and Ladika said, “He had given me a
job and I had stabbed him in the back.”

The context of this conversation closely followed the time when Endrizzi informed Ladika
that Muir called the OSHA investigator and that Muir had announced that he was a union
organizer. Moreover, Ladika admitted in his testimony that he told Muir he was upset that he
had telephoned the OSHA investigator and that if he showed up on the Wilderness jobsite he
would have him arrested for trespassing and fired. Accordingly, I find that Ladika made the
remarks alleged by the General Counsel in paragraph 7 of the complaint.

Based on the forgoing, I find that Ladika’s statements violate Section 8(a)(1) of the Act.

3. The 8(a)(1) and (3) Allegations

The General Counsel alleges in paragraph 8(a), (b), and (c) of the complaint that Ladika
barred Muir from returning to the Wisconsin Dells jobsite, prevented him from being paid on
February 15, and transferred Muir from Wisconsin Dells to the First National Bank project in
Stoughton, Wisconsin.

The protected nature of Muir’s and other employee’s efforts to protest Respondent’s
actions concerning safety violations has long been recognized by the Board who has held that
similar conduct comes within the guarantees of Section 7 of the Act. See Joseph DeRairo,
DMD, P.A. 283 NLRB 592 (1987). The Board has also held in Mike Yurosek & Sons, Inc., 306
NLRB 1037, 1038 (1992), that “individual action is concerted where the evidence supports a
finding that the concerns expressed by the individual are [sic] logical outgrowth of the concerns
expressed by the group.” In this case, I find that Muir’s complaints, on his own and the
employees’ behalf about safety concerns on the jobsite fall within the ambit of protected
concerted activity. However, it must be determined whether Muir was barred from returning to
work, denied wages on February 15, and transferred to the First National Bank project based on
such activity.

In Wright Line, 251 NLRB 1083 (1980), enfd, 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), the Board announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1) turning on employer motivation.
First, the General Counsel must make a prima facie showing sufficient to support the inference
that protected conduct was a “motivating factor” in the employer decision. On such a showing,
the burden shifts to the employer to demonstrate that the same action would have taken place
even in the absence of the protected conduct. The United States Supreme Court approved and
adopted the Board’s Wright Line test in NLRB v. Transportation Management Corp., 462 U.S.
393, 399-403 (1993). In Manno Electric, 321 NLRB 278 fn. 12 (1996), the Board restated the
test as follows. The General Counsel has the burden to persuade that antiunion sentiment was
a substantial or motivating factor in the challenged employer decision. The burden of

JD–41–03

5

10

15

20

25

30

35

40

45

50
8

persuasion then shifts to the employer to prove its affirmative defense that it would have taken
the same action even if the employee had not engaged in protected activity.

The evidence conclusively establishes that Muir initiated the OSHA investigation and
openly announced that he was a union member and intended to organize the Respondent’s
employees. Indeed, Ladika acknowledged these facts before Respondent took the actions
alleged in paragraph 8(a), (b), and (c) of the complaint. Moreover, I find that Ladika threatened
Muir with arrest and discharge if he returned to the Wisconsin Dells jobsite because he was
upset that Muir had contacted OSHA and announced that he was a union organizer. Thus, I
find that antiunion sentiment was a substantial or motivating factor in the Employer’s decisions
alleged in the complaint.

Ladika admitted in his testimony that he stated on February 14 that he no longer wanted
Muir on the Wisconsin Dells jobsite despite Shanks testimony that he never made a request to
Ladika that he did not want Muir to return to the jobsite. Effective February 15, Muir was
cleared by his doctor to return to full-time duty without restrictions and could have resumed his
carpentry duties at Wisconsin Dells. I find the true reason that Muir was not returned to the
Wisconsin Dells jobsite was because Ladika was upset that Muir had contacted OSHA, and that
after Ladika went out on a limb to rehire Muir in January 20024, he felt that Muir had stabbed
him in the back by joining the Union and announcing that he intended to organize Respondent’s
employees.

Additionally, the evidence shows that Muir was directed to come to the office on
February 15 with his doctor’s release rather then reporting to the jobsite. Since the Respondent
precluded Muir from reporting to work at the jobsite, he should have been paid his regular salary
of $18.50 per hour for the entire day. Lastly, I find that Muir was transferred to the First National
Bank of Stoughton jobsite because he initiated the OSHA investigation that resulted in a citation
and openly announced that he was a union organizer. . Respondent by testimony (Ladika) and
written memorandum to the file admitted this fact (R. Exh. 54).

Based on the forgoing, I find that the Respondent has not established that the same
action would have been taken even in the absence of Muir’s protected concerted and union
activities. Therefore, I conclude that Respondent violated Section 8(a)(1) and (3) of the Act and
sustain the General Counsel’s allegations alleged in paragraph 8(a), (b), and (c) of the
complaint.

The General Counsel alleges in paragraph 8(d) of the complaint that on or about
February 22, Endrizzi disciplined Muir.

According to Muir, Endrizzi was at the Stoughton Bank project on February 22, and was
watching him work. Muir testified that he was on an open ladder hanging an interior soffit.
While in the process of completing the task, a board leaning against the wall started to fall. Muir
attempted to catch the board turning his body around to a point where he was not facing the
open ladder. At that moment, Endrizzi observed Muir and issued him a written warning for not
facing the ladder (GC Exh. 4). Muir refused to sign the warning.

The General Counsel argues that Endrizzi issued the warning based on the fact that
Muir had previously called the OSHA inspector approximately ten days earlier and apprised
4 Shanks testified that Muir had just been released from jail prior to being hired in early
January 2002.

JD–41–03

5

10

15

20

25

30

35

40

45

50
9
Endrizzi that he was a union organizer. Indeed, Muir testified that on February 14, the day he
informed Endrizzi that he called the OSHA inspector Endrizzi removed his glasses and stated to
Muir that he only removes his glasses when he is upset. Additionally, after Muir apprised
Endrizzi that he was a union organizer, Endrizzi said this is bullshit and threw his hard hat down
and walked away. Endrizzi admitted that Muir informed him that he initiated the OSHA
investigation and announced that he was a union organizer but both Endrizzi and Mosel denied
that Endrizzi removed his glasses and threw his hardhat on the ground.

I am not persuaded that Endrizzi issued the safety warning to Muir based on his
protected concerted or union activities for the following reasons. First, I am suspect of Muir’s
testimony concerning the actions of Endrizzi on February 14. In this regard, Muir gave a sworn
affidavit to the Board on March 18, approximately one month after the incident on February 14,
yet he made no mention of Endrizz’s conduct of removing his glasses and throwing his hardhat
on the ground. Actions by Endrizzi, such as alleged by Muir, are highly significant and if they
occurred would have been fresh in Muir’s memory and should have been included in his sworn
statement. Second, Endrizzi impressed me as a serious individual when dealing with safety
issues on the jobsite. Indeed, one week before he gave Muir the safety warning, he had written
a letter to one of the subcontractors on the Wisconsin Dells project citing them for two OSHA
violations one of which involved facing a ladder, the same violation that Muir received (R Exh.
46). I note that this violation occurred in advance of the time that Muir announced to Endrizzi
that he had initiated the OSHA investigation and was a union organizer.

Based on the forgoing, I am not persuaded that anti-union animus contributed to the
issuance of the safety warning. If others disagree, I would find that Endrizzi would have issued
the safety warning to Muir even in the absence of his protected concerted or union activities.
Therefore, I find that the Respondent did not violate Section 8(a)(1) and (3) of the Act when
Endrizzi issued the safety warning alleged in paragraph 8(d) of the complaint.

The Genera Counsel alleges in paragraph 8(e) of the complaint that on February 25,
Ladika disciplined Muir.

Muir testified that on February 25, he was summoned to the trailer to meet with Ladika
and Pavlick. Ladika gave him a second written warning for spreading “false information”. In this
regard, Ladika asserted that Muir had stated to Endrizzi that he talked to Ladika about concerns
he had on fall protection at the Wisconsin Dells jobsite. Ladika contended that this never
happened. Ladika also charged Muir because he had stated to two different employees that he
was hired as a Foreman when he was actually hired as a Carpenter III. Ladika ended the
conversation by informing Muir that this was his second warning and if he received an additional
warning he would be terminated.

I am of the opinion that the issuance of this written warning was pretextual for the
following reasons. First, there is no question that Ladika was aware that Muir had previously
initiated the OSHA investigation and announced that he was a union organizer. Indeed,
Endrizzi testified that he informed Ladika of these events and Ladika admitted them. Second, I
previously found that Ladika informed Muir that he was upset with him because he initiated the
OSHA investigation and that Muir was transferred to the Stoughton Bank project because of the
OSHA investigation. Thus, there is an abundance of evidence of anti-union animus.

Concerning the first aspect of the written warning, Muir credibly testified that he apprised
Endrizzi and Shanks about his concerns with fall protection on the Wisconsin Dells jobsite. He
also testified and his sworn affidavit to the Board confirms that he mentioned the same concerns
to Ladika while he visited the jobsite on or about February 12 or 13. Thus, I am of the opinion

JD–41–03

5

10

15

20

25

30

35

40

45

50
10
that Ladika was fully aware of Muir’s concerns about the lack of fall protection provided for the
men at the Wisconsin Dells jobsite. Moreover, Endrizzi testified and Ladika admitted that
Endrizzi apprised him on February 12 about the fall protection issues expressed by Muir, and
the Respondent called a special meeting on that date to address those concerns with the men.
With regard to the second portion of the written warning, Shanks testified that he had a
conversation in early January 2002 with Ladika because Muir had informed him that he was
hired as a Foreman. Ladika informed Shanks that Muir was hired as a Carpenter III and not as
a Foreman. According to Shanks, the matter never came up again and was resolved in early
January 2002. Shanks also acknowledged that no employee ever complained directly to him
that Muir claimed to be hired as a Foreman. While Ladika testified that a second employee
complained about this issue, he was very vague and unable to pinpoint when it occurred.
Indeed, the Respondent did not call the employee to testify. Accordingly, I conclude that the
issue of Muir asserting that he was hired as a Foreman occurred in early January 2002 and was
put to rest at that time. Indeed, no oral or written warnings were issued to Muir in January 2002
for spreading “false information”.

Based on the forgoing, I conclude that Ladika gave the second warning to Muir due to
his hostility that Muir had announced approximately two weeks earlier that he was the individual
that initiated the OSHA investigation and revealed that he was a union organizer. Additionally, I
note that Ladika never previously gave a written warning to any employee for spreading “false
information”. Finally, I find that the underlying reasons for the written warnings were either false
or occurred weeks before the issuance of the warning and therefore, were solely manufactured
to punish Muir for engaging in protected concerted and union activities. Therefore, I find that
the Respondent violated Section 8(a)(1) and (3) of the Act when it disciplined Muir on February
25, as alleged in paragraph 8(e) of the complaint.

The General Counsel alleges in paragraph 8(f) of the complaint that Superintendent Carl
Nelson disciplined Muir on March 7 (GC Exh. 4).

Muir testified that he received his third written warning on March 7 because he retained
a cell phone on his person while he was working on the jobsite. Ladika and Pavlick came to the
jobsite and informed Muir that this was his third written warning. Although Ladika had
previously told Muir that he would be terminated if he received a third violation, he was not
terminated but was informed if he did not immediately remove the cell phone he would definitely
be terminated. Muir asked to see a copy of any written policy concerning cell phone usage but
Pavlick said they did not have to show him proof of the policy.

Contrary to the General Counsel, I am not convinced that the discipline visited on Muir
for use of his cell phone was violative of the Act. In this regard, although a new written policy on
cell phone usage was not distributed to employees until April 2002, Respondent held a meeting
with all Superintendents on February 22, and instructed them to announce to all employees the
new cell phone policy. Although Muir denied in his testimony that no one at Respondent
previously informed him about the new cell phone policy, he stated in his sworn affidavit given to
the Board that Nelson informed him on February 25, that he was not to wear his cell phone on
the jobsite and that this was a new company policy. I also note that Pavlick credibly testified
that Assistant Superintendent Ric Bass complained to her on February 21, that Muir was on his
cell phone constantly all morning long. Therefore, when Muir continued to carry his cell phone
on his person and it rang during the day on March 7, Respondent was privileged to issue him a
warning having previously informed all employees including Muir on February 25, that cell
phones could not be used while working on the jobsite. Rather, employees were told that they
could leave their cell phones in their cars or lunch boxes and could use them on break, at lunch
or before or after work hours.

JD–41–03

5

10

15

20

25

30

35

40

45

50
11

Based on the forgoing, and particularly noting that Muir admitted that he was informed
on February 25 that he could not retain his cell phone on his person while working, I find that the
written warning was a legitimate method of discipline unrelated to Muir’s protected concerted or
union activities. I further note, that Nelson signed the written warning and he had no
involvement in the OSHA investigation or was present at the Wisconsin Dells jobsite when Muir
announced that he was a union organizer. While Ladika and Pavlick came to the jobsite and
discussed the cell phone warning with Muir, it was Nelson who issued the warning when Muir
initially refused to remove the cell phone from the jobsite and informed Nelson that he would
remove the phone only if he saw something in writing.

Accordingly, I find that anti-union animus did not enter into the Respondent’s reasons for
issuing the written warning to Muir. Therefore, I conclude that Respondent did not violate
Section 8(a)(1) and (3) of the Act when it disciplined Muir as alleged in paragraph 8(f) of the
complaint. If others disagree, I would find that Respondent would have issued the discipline to
Muir even in the absence of his protected concerted or union activities.

In light of my findings above regarding paragraph 6 and 7 of the complaint, I find that the
General Counsel was privileged in revoking one provision of the settlement agreement in Case
30-CA-15489 and including paragraph 5 in the subject complaint (GC Exh. 3). I note however,
after hearing the testimony surrounding the allegations alleged in paragraph 5 of the complaint, I
did not find that Respondent violated the Act as alleged and recommended dismissal of that
allegation.

C. Complaint 30-CA-16108 and 30-CA-16109

1. The 8(a)(1) Allegations

The General Counsel alleges in paragraph 5 of the complaint that Respondent has
maintained certain rules in its revised Employee Handbook that impermissibly restrict employee
activity protected by the Act.5
Continued
5 The Handbook Rules provide:
Restrict Conflicting Outside Activities
In limiting employees’ involvement in certain outside activities, we are not attempting to
interfere in your personal life, but rather to protect the best interests of Stevens
Construction Corp. and all its personnel. We cannot permit employees to pursue
activities which, in the judgment of the Company, may be in conflict with the general
welfare of the Company or have the appearance of impropriety, or which might
otherwise damage our reputation or interfere with our business or the proper
performance of your duties.

Certain activities which obviously are not proper for employees include but are not
limited to employment with a competitor, use of the Company’s time, facilities or
equipment to engage in another business or occupation, and any outside activity which
results in your losing time from work, being distracted from work, or otherwise
performing unsatisfactorily, or which could result in an appearance of conflict. You
should consult with our President before engaging in any activity which might b covered
by this policy.
Obey Our Solicitation and Distribution Rules
No employees may solicit another employee for any purpose while either employee is on

JD–41–03

5

10

15

20

25

30

35

40

45

50
12
_________________________

The Board’s standard for analyzing workplace rules like these is set out in Lafayette
Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999), as follows:

In determining whether the mere maintenance of rules such as those at issue
here violates Section 8(a)(1), the appropriate inquiry is whether the rules would
reasonably tend to chill employees in the exercise of their Section 7 rights.
Where the rules are likely to have a chilling effect on Section 7 rights, the Board
may conclude that their maintenance is an unfair labor practice, even absent
evidence of enforcement.

With respect to the outside activities rule, the language contained in its first section is
exceptionally broad and leaves to the total discretion of the Respondent what type of activities
may be in conflict with the general welfare of the Company, have the appearance of impropriety,
or might otherwise damage the Company’s reputation, business, and performance of employee
duties. However, the second portion of the rule that provides examples to incumbent
employees sets the tone of what is expected by Respondent and provides a common sense
understanding of the type of outside activities that would infringe on the rule. These guidelines,
in my opinion, would clarify to a reasonable employee that Section 7 activity is not the type of
conduct proscribed by the rule. Reading this language in context, employees would recognize
that, it was intended to reach conduct similar to the examples given in the rule, not conduct
protected by the Act. See Tradesman International, 338 NLRB No. 49 (2002).

Under those circumstances, I am of the opinion that the outside activities rules which
have not been enforced do not have a chilling effect on Section 7 rights and their maintenance
in the Employee Handbook is not violative of Section 8(a)(1) of the Act.

In regard to the portion of the Handbook that deals with employee solicitation and
distribution of literature during working time and in working areas, the Board has addressed
these issues on numerous occasions. In Our Way, 268 NLRB 394 (1983), the Board reaffirmed
the view that rules prohibiting solicitation during working time are lawful. Similarly, the Board in
Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962), held that distribution may lawfully be restricted
both on work time and in work areas.

Under these circumstances, I do not find that those portions of the Handbook chill
employee Section 7 rights and recommend that those provisions not be found to violate Section
8(a)(1) of the Act.

With respect to the Handbook rule that deals with persons not employed by the
Respondent, the Supreme Court held in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), that the
employer’s exclusion of nonemployee union organizers from the parking lot of its retail store,
pursuant to its uniformly enforced rule against all solicitation and distribution on those premises
was a legitimate action in accordance with the employer’s property right. This holding is
grounded on the proposition that the retail store was private property and the nonemployee
union organizers in that case had no protected right of access to the respondent’s private
working time. The distribution of handbills or other literature during working time or in
working areas is forbidden.

Persons who are not employed by us are prohibited from soliciting any employee or
distributing literature on jobsites, premises or at employee work locations at any time.

JD–41–03

5

10

15

20

25

30

35

40

45

50
13

property. In the subject case, the majority of Respondent’s construction activity is not
undertaken on its own property but rather at construction sites owned by others. The
Respondent is solely retained to engage in construction activities. The Respondent has
submitted no evidence to establish that the construction sites where they perform work are
owned by them or are considered to be private property. Likewise, there is no evidence in the
record of the nature of the relationship among the property owner, the general contractor, and
the Respondent. Indeed, I note that the Respondent did not prohibit the Union from engaging in
picketing on March 12, at the Stoughton Bank project. Under these circumstances, I find that
the Respondent has not met the threshold burden of establishing that it had a property interest
in the construction site that would entitle it to exclude individuals from the property. See R & R
Plaster & Drywall Co., Inc., 330 NLRB 87 (1999).

Therefore, the maintenance of the no solicitation and distribution rules to persons not
employed by Respondent is overly broad and violates the Act. Moreover, since the words
premises and work locations are not defined, the rule could reasonably be interpreted to
preclude solicitation or distribution of literature in the areas that employees’ park their cars, take
their lunch and breaks or before and after work. Accordingly, I find the Respondent’s
maintenance of this Handbook rule to be overly broad and violative of Section 8(a)(1) of the Act.

2. The 8(a)(1) and (3) Violations

The General Counsel alleges in paragraph 6(b) of the complaint that around mid-
February 2002, eleven individuals filed employment applications for carpenter positions
pursuant to ads placed by Respondent in various publications seeking carpenters. All of these
applicants wore some type of Union insignia such as jackets or hats identifying themselves as
union members and indicated on their applications that they had worked for union employers.

The General Counsel further alleges that Respondent has failed and refused to consider
for employment and/or hired any of the eleven applicants because of their membership in and
activities in support of the Union.

The Board in FES (A Division of Thermo Power), 331 NLRB 9 (2000) determined that
the General Counsel must show in a discriminatory refusal to-hire violation the following at the
hearing on the merits. First, that the respondent was hiring, or had concrete plans to hire.
Second, that the applicants had experience or training relevant to the announced or generally
known requirements of the positions for hire, or in the alternative, that the employer has not
adhered uniformly to such requirements, or that the requirements were themselves pretextual or
were applied as a pretext for discrimination. Third, that antiunion animus contributed to the
decision not to hire the applicants. If the respondent asserts that the applicants were not
qualified for the positions it was filling, it is the respondent’s burden to show, at the hearing on
the merits, that they did not possess the specific qualifications the position required or that
others (who were hired) had superior qualifications, and that it would not have hired them for
that reason even in the absence of their union support or activity. To establish a discriminatory
refusal-to-consider violation, pursuant to FES, supra, the General Counsel bears the burden of
showing the following at the hearing on the merits: (1) that the respondent excluded applicants
from a hiring process; and (2) that antiunion animus contributed to the decision not to consider
the applicants for employment. Once this is established, the burden will shift to the respondent
to show that it would not have considered the applicants even in the absence of their union
activity or affiliation.6
Continued
6 To establish a discriminatory refusal to consider and hire case, the General Counsel is

JD–41–03

5

10

15

20

25

30

35

40

45

50
14
_________________________

There is no dispute that the Respondent hired a number of carpenters after the union
applicants filed their job applications. In regard to carpenter positions that were filled by
Respondent, three skill levels of carpenter proficiency were sought and a labor classification
check list was attached to each application. All applicants were requested to check which level
they thought their individual skill level fit. For example, carpenter positions at Respondent were
separated into Carpenter I, II, and III levels, with Carpenter III possessing the highest skills and
warranting the highest hourly pay rate.

In defending its decision to hire other individuals for the vacant carpenter positions,
Respondent argues that the individuals that they hired possessed superior qualifications when
compared to the union applicants. Additionally, the Respondent argues that a number of the
union applicants demanded salaries higher then normally paid, had poor references, or failed to
return telephone calls when they sought to inquire about questions with their applications or to
discuss salary demands.

In regard to whether union animus contributed to the decision not to consider or hire the
union applicants, I find that the General Counsel has established this element for the following
reasons.

First I note that Mosel and Ladika made threatening statements to employees based on
their protected concerted or union activities. Second, I find that Ladika visited discipline upon
Muir due to his protected concerted activities and announcement that he was a union organizer
on February 14, a period in time prior to the filing of the union applications on February 19 and
20. Third, I find that Ladika prevented Muir from returning to the Wisconsin Dells jobsite and
subsequently transferred him to the Stoughton Bank jobsite because of his protected concerted
activities and announcing that he was a union organizer.

In order to determine whether the individuals hired by Respondent had superior
qualifications to the union applicants, a comparison of their training and experience must be
undertaken.

a. The Union Applicants

Robert Hyatt (GC Exh. 6)

Hyatt filed an application for employment on February 21. At the time of his application
he was unemployed but he listed prior union employers for whom he had worked. Hyatt applied
for all three skilled level carpenter positions and indicated on his application that he had
previously performed within those classifications. Based on my review of his application, Hyatt
was eminently qualified to perform all functions of the Carpenter III position at Respondent. By
letter dated March 8, Pavlick apprised Hyatt that his desired wage rate of $25.00 per hour is
outside Respondent’s initial pay scale for a Carpenter and his application was rejected.

Joshua Kepler (GC Exh. 7)

Kepler filed an application for employment on February 19, and wore a carpenter hat
and shirt when applying in person at Respondent. His application shows that he had been a
required to prove the allocation of burdens set forth in Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).

JD–41–03

5

10

15

20

25

30

35

40

45

50
15
carpenter for about one year and he checked the Carpenter I skill level classification to indicate
his proficiency. Respondent did not hire Kepler because during the reference check portion of
the application process it was discerned that his prior employer intended to call him back to
work on or about March 13.

Based on the forgoing, I find that this was a legitimate reason for not hiring Kepler and
was totally unrelated to his union affiliation.

Darrelle LaBelle (GC Exh. 8)

LaBelle filed his application for employment on February 19, and wore a union hat when
he applied in person at Respondent. His application shows that he described himself as a union
organizer and indicated that he was qualified to perform Carpenter III skill level responsibilities.
His testimony indicated that he was a journeyman union carpenter and had been in the field for
26 years. Respondent sent a letter dated March 8, which La Belle did not receive based on an
incorrect street address that apprised him that the salary level of $22.66 per hour that he sought
was outside the initial pay scale for a Carpenter position. Accordingly, his application was
rejected.

Gary Miller (GC Exh. 10)

Miller filed his application for employment on February 19, and wore a union hat and
shirt when he applied in person at Respondent. He applied for a Carpenter I position having
been in the trade for approximately two years. His application shows two reference checks from
his prior employers. Comments such as “no common sense, a talker, not a worker, limited
knowledge and tried to work hard but didn’t know much” were contained thereon. The
application file checklist shows that Miller was not hired due to his poor references.

Based on the forgoing, I find that Miller was not hired because two prior employers gave
him unfavorable references, rather then his affiliation with the Union.

John McGwin (GC Exh. 9)

McGwin filed his application for employment on February 19, and wore a union hat, shirt
and jacket when he applied in person at Respondent. He applied for a Carpenter III position
having been in the trade for approximately nine years. By letter dated March 11, Pavlick
rejected his application primarily because the hourly wage he sought of $22.66 is outside the
Respondent’s initial pay scale for a Carpenter. My review of McGwin’s application establishes
that he was an experienced carpenter who had also held a Foreman position at a prior
employer.

David Parker (GC Exh. 11)

Parker filed his application for employment on February 19, and wore a union hat and
shirt when he applied in person at Respondent. He applied for a Carpenter III position having
been in the trade for approximately twelve years. By letter dated March 18, Pavlick rejected his
application based on an unsatisfactory reference check from his prior employer. In this regard,
Parker had been fired from his prior employer because of a drinking problem.

Cynthia Schaefer (GC Exh. 12)

Schaefer filed her application for employment on February 19, wore a union jacket when

JD–41–03

5

10

15

20

25

30

35

40

45

50
16
she applied in person at Respondent and listed former union employers on her application. She
had been in the trade for a number of years and was certified as a journeyman carpenter.
Accordingly, she applied for all available Carpenter positions at Respondent. Thus, I conclude
that Schaefer was eminently qualified for all advertised Carpenter positions at Respondent.
Both Ladika and Pavlick testified that the Respondent was making a special effort to hire
qualified women and minority carpenters as none were presently employed. Schaefer’s
application was rejected because Respondent left a message with her daughter on March 8 to
inquire about her desired hourly wage but no return call was ever received. Schaefer testified
that she never received a message from Respondent on March 8, and while she has two
daughters over 21, neither of them lived in her house on March 8. Indeed, one of her daughters
lives approximately 100 miles away from her residence (GC Exh. 74). I also note on Schaefer’s
application that she earned hourly wages of $22.66 at her prior union employer, a wage that is
outside Respondent’s initial pay scale for a Carpenter.

Edward Steeb (GC Exh. 13)

Steeb filed his employment application on February 19, and wore a union hat, shirt and
jacket when he applied in person at Respondent. His application shows excellent experience in
the trade and he checked that he was capable of performing all the duties of a Carpenter III on
Respondent’s labor classification form. By letter dated March 8, Pavlick rejected Steeb’s
application because he sought an hourly wage of $22.66, a wage rate outside Respondent’s
initial pay scale for a Carpenter.

Scott Watson (GC Exh. 14)

Watson filed his employment application on February 19, and wore a union hat, shirt and
jacket when he applied in person at Respondent. His application shows excellent qualifications
having achieved journeyman carpenter status and serving as a Foreman at his most recent
employer. By letter dated March 8, Pavlick rejected Watson’s application because he sought an
hourly wage of $22.66, a wage rate outside Respondent’s initial pay scale for a Carpenter.

Kurt Wise (GC Exh. 15)

Wise filed his employment application on February 20, and wore a union hat and shirt
when he applied in person at Respondent. His application shows excellent experience having
achieved journeyman carpenter status at his most recent employer with a wage history in
excess of $27.00 per hour. Respondent’s applicant file checklist shows that a telephone
message was left on March 8 for Wise to specify the hourly wage he was seeking. Wise
testified that he never received a telephone message from Respondent and therefore, could not
have returned the call. In any event, Wise was not hired as a Carpenter at Respondent.

Aaron Zimmerman (GC Exh. 16)

Zimmerman filed his employment application on February 19, and wore a union hat and
shirt when he applied in person at Respondent. His application shows that he possessed the
qualifications of a Carpenter I and had a solid employment history. Respondent did not hire
Zimmerman because he was called back to work at his former employer on March 11. Since
Zimmerman’s testimony confirmed this, and his return to work took place prior to the
Respondent completing its reference checks, I find that this was a legitimate reason for not
hiring Zimmerman. Thus, I conclude that Respondent’s reason for not hiring Zimmerman was
unrelated to his union affiliation.

JD–41–03

5

10

15

20

25

30

35

40

45

50
17
b. Carpenter’s hired by Respondent

Michael Farr (GC Exh. 19)

Farr filed his employment application on March 1, and indicated he was qualified to
perform the duties of a Carpenter Laborer, Concrete Laborer and a Carpenter I. He possessed
good references at his prior employer and was hired on April 5 as a Carpenter Laborer earning
$13.00 per hour despite not performing carpentry duties since June 2000. His most recent
employment experience was as a banquet cook.

Craig Vorwald (GC Exh. 20)

Vorwald filed his employment application on March 19, and indicated he was qualified to
perform the duties of a Carpenter II. He did not fully complete the employment application but
attached a resume that showed some experience as a carpenter, the most recent being in
January 2000. His prior employer was Dubuque Greyhound Park & Casino where he held a
security position until August 2001. Vorwald was hired on April 2, as a Carpenter II with a
starting salary of $15.00 per hour.

Kenneth Ruegsegger (GC Exh. 21)

Ruegsegger filed his employment application on March 27, and listed that he had
previously been employed with the Respondent in 1999 but was presently self-employed.
Respondent hired Ruegsegger as a Carpenter III on April 8, with a starting wage of $20.00 per
hour. At the time Ruegsegger left Respondent’s employ to start his own business, he was the
highest paid carpenter on its payroll.

Jason Genord (GC Exh. 22)

Genord filed his employment application on April 18, but did not check the positions he
thought he was qualified for on the labor classification form. Likewise, Genord did not complete
the employment experience portion of the employment application. Rather, he attached a
resume to the application that shows his prior experience as a farmer and a fabricator/welder,
handling equipment and custom fabrication of heat-treating furnaces. Respondent hired Genord
on May 16 as a Carpenter I with a salary of $13.00 per hour. I find that Genord’s experience
and background is not as substantial as the union applicants.

Matthew Wellenketter (GC Exh. 23)

Wellenketter filed his employment application on April 22, but did not check any of the
positions on the labor classification form that he qualified for. His application shows that he was
scheduled to graduate from the University of Wisconsin with a degree in Civil Engineering and
Construction Management. His resume indicates that his objective for employment includes a
construction or engineering firm, with interests in project management and structural design.
Wellenketter was hired on June 10, as a Carpenter I at an hourly wage of $17.00 per hour.

Based on the above, it does not appear that Wellenketter had extensive experience as a
carpenter in comparison to the union applicants. Additionally, as a college graduate, it is
unlikely that he would remain in a carpenter position for a lengthy period. Indeed, his interests
are primarily in project management and structural design.

JD–41–03

5

10

15

20

25

30

35

40

45

50
18
Clay Tyler (GC Exh. 24)

Tyler renewed his interest in being hired at Respondent on April 24, having previously
been rejected by Pavlick’s letter dated November 16, 2001 due to lack of construction
experience. In his initial application filed on November 15, 2001, he applied for a frame
carpenter position. Tyler was hired on May 16 as a Carpenter II, with a starting hourly wage of
$18.00.

I note that Ladika testified that if an individual application was previously rejected, it was
highly unlikely that such a person would be considered for a future position. Additionally, I note
that approximately five months had elapsed from Tyler’s prior application and no new
application was filed when he renewed his interest in employment.

Samuel Adams (GC Exh. 25)

Adams filed his employment application on May 6, and sought a Carpenter I position.
His application shows that he had some experience as a carpenter but not extensive and his
most recent carpentry duties ended in May 2001 when working for his father’s company.
Respondent hired Adams on August 1, as a Carpenter Laborer with a starting salary of $13.00
per hour.

Patrick Kingsland (GC Exh. 26)

Kingsland filed his employment application on May 15, and sought a Carpenter II
position. He had previously worked as a carpenter for his most recent employer earning $17.00
per hour. Respondent hired Kingsland on June 3, as a Carpenter II earning $19.00 per hour, an
increase over his prior position. The General Counsel raised the issue of Kingsland being hired
at a time when a relative was employed by Respondent as contrary to a provision in the
Employer’s Handbook (GC Exh. 2, page 10, Employment of Relatives). Pavlick credibly
testified that even if close relatives are employed at Respondent, it is permissible as long as one
of the employees does not work under the direct or indirect supervision or the same Department
as the person with whom he or she has the relationship.

Based on the forgoing, I do not believe that a violation of the Employer’s Handbook has
been established. Rather, I note that the hiring of Kingsland is unique in that he was hired at a
higher hourly rate then he previously was making at his prior employer.

Robert Stewart (GC Exh. 27)

Stewart filed his employment application on May 21, seeking a carpenter position. He
was hired on June 14 in the classification of a Carpenter Laborer at the hourly rate of $12.00.
His most recent experience as a carpenter was in 1999 when he built houses for a low-income
family school program.

Glen Colver (GC Exh. 28)

Colver filed his employment application on June 11, seeking a Carpenter I position. He
had good experience as a junior carpenter having been paid $10.00 per hour while performing
carpentry work at his prior employer. Colver was hired on June 26 as a Carpenter Laborer at
the hourly rate of $13.00.

JD–41–03

5

10

15

20

25

30

35

40

45

50
19
Richard Schuch (GC Exh. 29)

Schuch sent an e-mail message to Respondent on June 19 with his resume attached.
He was seeking a project management or supervisory position paying $45,000 per year or
$21.63 per hour. On July 1, Schuch filed a formal application and indicated he was applying for
a Carpenter III or Assistant Foreman position and sought $52,000 per year or $25.00 per hour.
Respondent hired Schuch on July 18 as a Carpenter III at the hourly wage of $20.00.

Based on the forgoing, I question why Schuch’s resume and formal application that
requested a wage rate outside Respondent’s initial pay scale was not rejected similar to the
union applicants and consistent with Ladika’s testimony that such applications were
automatically rejected without an interview.

David Woodson (GC Exh. 30)

Woodson filed his employment application on June 21, seeking an apprentice carpenter
position. His application shows that he was in the formative stages of his career having been in
the trade for approximately two years. Respondent hired Woodson on July 17 as a Carpenter
Laborer at the hourly rate of $14.00.

Allen Chase (GC Exh. 31)

Chase filed his employment application on July 19 and applied for a carpentry position.
His application shows that he was self-employed form April 1999 to March 20, performing
carpentry work and earned $15.00 per hour. Respondent sent out two reference forms to the
two employers that Chase had listed on his application. One employer just confirmed his dates
of employment while the other employer reported that Chase was terminated for not showing up
for work. Despite learning of Chase’s termination from the former employer, Respondent sent
him a letter seeking additional information to complete his application and to schedule an
employment interview. The records establish that Chase was offered a position as a Cement
Finisher I at the hourly rate of $16.00 but did not commence employment as he was put in jail
before his scheduled start date (R Exh. 5)

Based on the above I note that Chase, despite having an incomplete application and a
poor reference check, was given an interview and offered a position at Respondent unlike the
union applicants.

Tommy Steig (GC Exh. 32)

Steig filed his employment application on July 22, and sought a Carpenter I position. He
was self-employed at the time of his application but asserted that the work was not steady
enough. His references were good and Respondent hired him on August 14 as a Carpenter I at
the hourly rate of $15.00.

German Julian (GC Exh. 33)

Julian filed his employment application on July 24, and applied for a carpenter position.
His application shows that his most recent employment was in the food service industry. Julian
also did some painting in the construction industry. He listed that he possessed special skills
with windows, doors and cabinets. Respondent hired Julian on August 5 as a Carpenter I at the
hourly rate of $13.00.

JD–41–03

5

10

15

20

25

30

35

40

45

50
20

Richard Pochopien (GC Exh. 34)

Pochopien filed his employment application on July 25, and applied for a Carpenter II
position. His application shows that in his most recent position effective June 2002, he was a
field Superintendent and was paid $22.00 per hour. While he had excellent references, unlike
the union applicants, his application was not rejected because he sought a desired wage rate
outside the initial pay scale for a Carpenter. Indeed, he was hired on August 9 at the hourly rate
of $18.00 with a provision that his salary would be reviewed after 30 days on the job. None of
the union applicants were given this opportunity and a number of those applicants possessed
qualifications at least equal to Pochopien.

Carl Smith (GC Exh. 35)

Smith filed his employment application on July 28, and applied for a Carpenter II
position. His application shows that in his most recent position effective July 24 he was a day
laborer performing laborer, carpenter, housekeeping and production work. The application also
notes that he has experienced sobriety issues in the past and was terminated from one of his
prior employers because of attendance problems. Despite having these matters noted on his
application, Respondent hired Smith on August 9 as a Carpenter II at the hourly rate of $16.00.
William Kennedy (GC Exh. 36)

Kennedy filed his employment application on July 30, and applied for a trim carpenter
position. His application shows that in his most recent self-employed position, he was
responsible for all types of small jobs including light electrical work, installation of floors and trim
carpentry work. Prior to that job, he was an assembly molder from 1996 to 2000. Respondent
hired Kennedy on August 14 as a Carpenter II at the hourly rate of $17.00.

c. Analysis

The General Counsel, in addition to alleging refusal to hire violations, has asserted that
the Respondent has refused to consider the union applicants for employment. Contrary to this
argument, I find that the Respondent did consider the union applicants and did not exclude them
from the hiring process. In this regard, each of the above union applications was reviewed,
processed and considered. In some instances telephone calls were placed to the union
applicants to verify desired salaries or to clear up matters listed on the application. Thus,
contrary to the General Counsel, I recommend that those complaint allegations be dismissed.

With respect to the refusal to hire allegations alleged in the complaint, I find that the
Respondent did not hire some of the union applicants because of their union affiliation and
therefore violated Section 8(a)(1) and (3) of the Act. The following represents my reasons for
this finding. First, I note that none of the union applicants were contacted by the Respondent to
see if they would consider taking a lower hourly wage or consider a carpenter laborer position
unlike the non-union applicants, some of who accepted reduced hourly wages from what they
previously earned. Second, union applicants were routinely rejected if they requested a salary
or their wage history showed a wage rate outside Respondent’s initial pay scale for a Carpenter.
Non-union applicants that were hired were not routinely rejected if they listed in their
applications a salary or wage history outside Respondent’s initial pay scale for a Carpenter.
Additionally, a number of the non-union applicants that were hired were given the opportunity to
interview with Respondent even if their applications showed a wage history that was outside
Respondent’s initial pay scale for a Carpenter. Union applicants were not afforded this same
accommodation and no union applicant listed in the complaint was offered an interview with

JD–41–03

5

10

15

20

25

30

35

40

45

50
21

Respondent. Third, union applicants were routinely rejected based on poor reference checks.
This was not the case for non-union applicants. For example, union applicants who either
acknowledged or their reference checks uncovered past alcohol problems were routinely
rejected (Parker), while non-union applicants were given an interview and hired (Smith).
Likewise, union applicants that received poor reference checks were routinely rejected while
non-union applicants that also received poor reference checks were hired (Chase was also
convicted of a felony involving child support and Smith). Fourth, despite Respondent’s policy
according to Ladika of not considering applications that were previously rejected, Respondent
hired non-union applicant Tyler. Fifth, in comparing the qualifications of the union applicants
with the non-union applicants, it is abundantly clear that the union applicants had substantially
more years in the trade and greater experience then the majority of the carpenters or carpenter
laborers hired by the Respondent. Lastly, both Ladika and Pavlick confirmed that one of the
primary goals of Respondent was to hire qualified minority and women carpenters as none were
employed during the critical period. In this regard, Schaefer was eminently qualified having
achieved journeyman carpenter status. While the Respondent asserts that it did not hire
Schaeffer because she did not return their one telephone call, I find this reason to be pretextual.
Indeed, as discussed above, the Respondent routinely sent out second letters to non-union
applicants or made second telephone calls to seek information. Since Respondent put a great
deal of emphasis on seeking out and hiring qualified women carpenters, their reasons for not
hiring Schaefer do not withstand scrutiny.

In summary, I find that the reasons advanced by Respondent for not hiring the union
carpenter applicants alleged in the complaint with the exception of Kepler, Miller, and
Zimmerman to be pretextual. I note that the Respondent did not hire even one of the union
applicants listed in the complaint. Indeed, I find the Respondent would have hired the eight
individuals (Hyatt, LaBelle, McGwin, Parker, Schaefer, Steeb, Watson, and Wise) but for their
union affiliation. Under Wright Line, I find that the Respondent did not meet its burden that it
would have taken the same action even if the employees had not engaged in protected activity.

The Respondent argues that the hiring of union applicant Todd Bloyd (GC Exh. 38)
confirms that it did not possess union animus and it fully considered his employment application.
Bloyd filed his employment application on April 18, and applied for a concrete finisher position.
He listed in his application that he was a union organizer and intended to organize the
Respondent’s employees. On April 22, he amended his application to include leadman and
Foreman positions. By two separate letters dated April 30, Respondent rejected his application
stating that they were looking for applicants with more experience and no concrete laborer
positions were available. According to Pavlick, because Bloyd was persistent, he was granted
an interview with Pavlick and Vice President of Operations Hein on May 17. Bloyd tape-
recorded the interview and a transcript was made (GC Exh. 69). After the completion of the
interview, Bloyd whose primary experience was working with concrete was offered a position as
a carpenter. He commenced employment on June 3 but worked only two weeks as the Union
instructed him to leave the job.

Although the Respondent did hire Bloyd knowing that he was a union organizer, I do not
place significant emphasis on this hiring as it occurred at a time after Respondent had rejected
all of the earlier carpenter union applicants. Moreover, when the Respondent hired Bloyd they
knew he did not possess carpentry skills and had not Bloyd voluntarily left his job, it could have
provided the Respondent a legitimate reason to terminate him.7 In any event, the hiring of one
7 Ladika testified that during his tenure as Production Manager, the hiring policy did not
permit someone to apply as a laborer and be hired as a carpenter.

JD–41–03

5

10

15

20

25

30

35

40

45

50
22
union applicant after rejecting all other carpenter union applicants does not shelter the
Respondent’s prior illegal actions under the Act.

D. Complaint 30-CA-16196

1. The Union Applicants

The General Counsel alleges in paragraph 5 of the complaint that the Respondent since
February 2002 placed ads in various publications seeking concrete laborers and cement
finishers. On April 18, three union applicants applied for laborer positions but since April 25,
Respondent has failed and refused to consider these individuals for employment and/or hired
them. Rather, beginning May 7, Respondent hired at least 23 employees for positions for which
the union applicants were qualified. In order to compare the qualifications of the three union
applicants with a number of the individuals hired by Respondent, an analysis of their
backgrounds and experience will be undertaken.

a. Steve Cagle (GC Exh. 39)

Cagle filed his employment application with Respondent on April 19, and sought
employment working with concrete. He checked on the labor classification form that he was
proficient to work in the positions of carpenter, concrete, or general laborer. Cagle noted on his
application that he was a union organizer and possessed prior experience with union companies
as a Foreman and laborer working with concrete. Respondent telephoned Cagle and it is noted
on the application that he was willing to accept wages of $10.00 per hour despite being paid
$20.00 per hour in prior positions. By letter dated April 30, Respondent informed Cagle that
they did not have any concrete labor positions available at that time but would keep his
application on file, and if any positions became available that suited his skills, he would be
contacted.

b. John Matthews (GC Exh. 40)

Matthews filed his employment application with Respondent on April 18, and sought
employment as a laborer. His application notes that he has experience working with
underground utilities and a salary history in excess of $20.00 per hour. Respondent’s employee
checklist file notes that Matthews did not possess concrete or carpentry experience and was
seeking wages higher then their pay scale. By letter dated April 30, Respondent apprised
Matthews that they were looking for applicants with more experience but they would keep his
application on file, and if an opportunity became available that suited his skills he would be
contacted.

c. Karl Markgraf (GC Exh. 41)

Markgraf filed his employment application with Respondent on April 25, and sought work
as a laborer. His application shows that since 1993 he had excellent experience with a union
employer performing various types of laborer work at an hourly wage of $19.00 to $21.00.
Respondent’s employee checklist file notes that they were not hiring laborers at this time and
Markgraf’s salary demands were too high. By letter dated April 25, Respondent informed
Markgraf that they did not have any laborer positions available but his application would be kept
on file in the event that any positions became available that suited his skills.

JD–41–03

5

10

15

20

25

30

35

40

45

50
23

2. Employee’s Hired by Respondent

a. Anthony Butze (GC Exh. 43)

Butze filed his employment application on March 7, and sought work as a general
laborer. His application shows that his most recent employment since December 2000 to the
present was not in the construction industry but he did have some prior experience working with
concrete from 1995 to 1999. The application notes a number of laudatory references. He was
hired as a concrete laborer on May 15, at the hourly wage of 13.00.

b. Mathew Young (GC Exh. 44)

Young filed his employment application on May 17, and sought a concrete laborer
position. His most recent experience as a construction laborer took place between 1988 and
1994. By letter dated May 22, Respondent notified Young that it did not have any positions
available but it would keep his application on file, and notify him if an opportunity arose that
suited his skills. Respondent, on July 16, contacted Young to schedule an interview and
discuss desired wages as Young had previously indicated that he would discuss that issue on
his earlier filed application. Respondent, after the interview, hired Young as a Concrete Laborer
at the hourly wage of $14.00.

c. Alberto Vasquez (GC Exh. 46)

Vasquez filed his employment application on July 30, and sought work as a carpenter,
concrete or general laborer. His application shows that his most recent experience for the last
three years was not in the construction industry. Rather, Respondent’s interview sheet
indicates that while he lived and worked in Mexico prior to 1998, he had some experience as a
laborer working with concrete. Respondent hired Vasquez as a Concrete Laborer earning
$13.00 per hour.

d. Lori Brisbois (GC Exh. 47)

Brisbois filed her employment application on August 19, and sought work as a general
laborer. Brisbois’s application indicates that she had no experience in construction, the majority
of her work history having been in the restaurant and ground maintenance/landscape industries.
Indeed, by letter dated September 5, Respondent rejected her application indicating that it did
not have any positions available as a General Laborer. Thereafter, on September 11,
Respondent telephoned Brisbois and left a message for her to call to schedule an interview.
When Respondent did not immediately hear from Brisbois, they made a second attempt to
reach her on September 16, to schedule an interview. Brisbois was subsequently hired as a
General Laborer at the hourly wage of $12.00.8

e. Kerry Deal (GC Exh. 48)

Deal filed her employment application on August 26, and sought work as a carpenter or
laborer. Her application shows that she had prior experience as a laborer in her most recent
position and excellent references at that employer in addition to prior employers. Deal was
hired as a Carpenter Laborer at $14.00 per hour.
8 I note striking differences in the repeated attempts to reach Brisbois in comparison to
Schaefer.

JD–41–03

5

10

15

20

25

30

35

40

45

50
24

f. Martin Ringelstetter (GC Exh. 50)

Ringelstetter filed his employment application on September 9, and sought work as a
concrete laborer. His application shows that he had previous concrete experience and received
excellent references from his prior employers. While he earned in excess of $15.00 an hour at
his prior position, Respondent granted him an interview and offered him the position of Concrete
Laborer which he accepted at $13.00 per hour.

g. Gerald Doyle (GC Exh. 51)

Doyle filed his employment application on September 12, and sought either a concrete
laborer or carpenter laborer position. His application shows no experience in the construction
industry since September 2000, but prior to that time he did work with concrete while building
homes and garages in Puerto Rico. Doyle was granted an interview and was hired as a
Concrete Laborer at $12.00 per hour.

h. Adam Huff (GC Exh. 52)

Huff filed his employment application on September 13, and sought a position working
with concrete. His application shows that he had prior experience working with concrete and
favorable references from his prior employers. Huff was granted an interview and was hired on
October 7, as a Concrete Laborer at the hourly rate of $13.00 per hour.

i. Douglas Kennedy (GC Exh. 53)

Kennedy initially filed his employment application on May 24, and sought work as a
carpenter laborer. His application shows some experience in 2001 with framing buildings and
installing windows. The reference check produced good prior employer references. By letter
dated June 3, Respondent rejected his application stating that it was looking for candidates with
more experience for the projects that it presently had. The letter did not state that it was
keeping his application on file. Thereafter on September 20, Kennedy contacted the
Respondent and requested that he be reconsidered for any carpenter laborer positions that
might be available. An interview was scheduled for September 27, and Kennedy was offered a
Carpenter Laborer position at the hourly wage of $12.00.

j. Luis Medina (GC Exh. 54)

Medina filed his employment application September 30, and sought a general laborer
position. His application shows some experience in construction working with concrete. By
letter dated October 1, Respondent rejected his application, stating that they have filled their
needs for any available positions. Medina telephoned the Respondent on October 1, and asked
to be considered for a concrete position. By letter dated October 7, Respondent informed
Medina that it has filled all present needs for concrete laborers. By letter dated October 31,
Respondent notified Medina that its hiring needs changed and they were seeking several
Concrete Laborers. An interview was scheduled and Medina was hired as a Concrete Laborer
at the hourly wage of $12.00.

k. Russell LeFevre (GC Exh. 55)

Le Fevre filed his employment application on October 3, and sought a concrete laborer
position. His application shows prior experience working with concrete. While one of his prior

JD–41–03

5

10

15

20

25

30

35

40

45

50
25
references was favorable, the second reference indicated that he left the employer twice with no
warning. Respondent, nevertheless, scheduled an interview for October 22, and LeFevre was
hired on October 28, as a Concrete Laborer at the hourly wage of $16.00.

l. Steve Weber (GC Exh. 57)

Weber filed his employment application on April 15, and sought a concrete finisher
position. His application shows that he desired a wage rate in the range of $22.00 to $25.00 per
hour. Despite seeking a wage rate outside Respondent’s initial pay scale for a concrete
finisher, unlike the union applicants, Weber was granted an interview and hired as a Concrete
Finisher II at the hourly rate of $20.00.

m. Frederick Amacher (GC Exh. 59)

Amacher filed his employment application on July 22, and sought a concrete finisher
position. His application shows that he desired a wage rate of $22.00 per hour. Despite
seeking a wage rate outside Respondent’s initial pay scale for a concrete finisher, unlike the
union applicants, Amacher was hired as a Concrete Finisher II at the hourly rate of $18.00.

n. Martin Holtan (GC Exh. 61)

Holtan filed his employment application on August 17, and sought a Concrete Finisher I
position. His application shows a desired wage rate of $20.00 per hour and at his most recent
employer he earned $22.00 per hour. Despite seeking a wage rate outside Respondent’s initial
pay scale for a Concrete Finisher I, unlike the union applicants, Holtan was afforded an
interview on September 13, and hired as a Concrete Finisher I at the hourly rate of $17.00.

o. Michael Powers (GC Exh. 62)

Powers filed his employment application on August 21, and sought a concrete foreman
or finisher position. His application shows a desired wage rate of $23.50 per hour. Despite
seeking a wage rate outside Respondent’s initial pay scale for a Concrete Finisher II position,
unlike the union applicants, Powers was afforded an interview on August 26, and was hired as a
Concrete Finisher II at the hourly rate of $20.00.

p. Larry Blaisdell (GC Exh. 65)

Blaisdell filed his employment application on September 13, and sought a concrete
finisher position. He was offered an interview, unlike the union applicants, and the notes from
the interview indicate that he was not a highly experienced finisher. Despite this observation,
Blaisdell was hired as a Concrete Finisher I at the wage rate of $14.00 per hour.

q. Sean Blake (GC Exh. 66)

Blake filed his employment application on September 18, and sought a concrete finisher
position. His application shows a desired wage rate of $18.00 to $20.00 per hour. Despite
seeking a wage rate outside Respondent’s initial pay scale for a Concrete Finisher I position,
unlike the union applicants, Blake was given an interview on October 2, and was hired as a
Concrete Finisher at the hourly rate of $16.00. I also note that Blake’s application contained a
reference with the comment “Had a hard time getting him to work” and he left without giving the
former employer an explanation.

JD–41–03

5

10

15

20

25

30

35

40

45

50
26
r. Alan Chase (GC Exh. 67)

Chase filed his employment application on October 28, and sought a position working
with concrete. While his application shows that he had worked in the construction industry for
20 years and had an excellent background working with concrete, there are no reference
checks included in the packet. Indeed, Chase was self-employed in his most recent position
and the Respondent consciously made it a practice of obtaining references from clients that a
self-employed person had worked for. Contrary to past practice, and while routinely checking
references for similarly situated union applicants, Respondent hired Chase as a Concrete
Finisher I at the wage rate of $16.00 per hour.

3. Analysis

Applying the FES guidelines, discussed above, I find that Cagle, Mathews and Markgraf
were eminently qualified to perform the duties and responsibilities of the carpenter, concrete or
general laborer positions for which they applied.

In comparing the treatment given to the union applicants with those concrete laborer and
concrete finishers hired by the Respondent, I note glaring differences. For example, unlike the
union applicants that listed desired wages outside the Respondent’s pay scale, non-union
applicants who did the same were granted interviews and in most instances hired (Ringelstetter,
Weber, Amacher, Powers, Blake, and Holtan). Additionally, unlike union applicants who were
informed that their applications would be retained on file if positions became available that
suited their skills and never contacted, non-union applicants who were told the same thing were
routinely contacted, granted interviews and hired (Young, Brisbois, Kennedy and Medina).
Likewise, non-union applicants were contacted if they did not initially respond to Respondent
inquiries, while union applicants were never given this opportunity (Young, Brisbois, Kennedy,
and Medina). Lastly, at least two of the non-union applicants that were hired (LeFevre and
Blake) had questionable references yet they were still given interviews and hired by the
Respondent.

Based on the forgoing, and noting above that the Respondent exhibited union animus, I
find that the three union applicants were not hired solely because of their affiliation with the
Union. In this regard, I find that each of the three union applicants were eminently qualified for
the positions that they applied for and possessed superior qualifications to at least more then
three individuals hired by Respondent. Applying the Wright Line guidelines, Respondent has
not demonstrated that it would have taken the same action even in the absence of the
applicant’s union activities. Thus, I find that the Respondent violated Section 8(a)(1) and (3) of
the Act when it refused to hire the three union applicants alleged in paragraph 5 of the
complaint. Contrary to the General Counsel, I do not find that the Respondent refused to
consider for hire the three applicants or excluded them from the hiring process. In this regard,
although the Respondent did not hire the three individuals, they received and logged in their
applications along with other employee applicants, reviewed them, and contacted one of the
union applicants to discuss salary demands. Under these circumstances, I recommend that the
refusal to consider violations alleged by the General Counsel be dismissed.

E. Affirmative Defenses

The Respondent has proffered a number of job applications (R Exh. 11 through 37) to
establish that it treated non-union applicants that were not hired identically to the union
applicants that were not hired. In this regard, Respondent argues that both before and after the
times that it did not hire the union carpenter applicants or the laborer applicants, it applied the

JD–41–03

5

10

15

20

25

30

35

40

45

50
27

same hiring criteria consistently. For example, non-union applicants were rejected when hiring
needs did not warrant additional employees, their applications showed a lack of experience for
the positions applied for, applicants desired a wage rate outside Respondent’s initial pay scale,
employee’s did not respond to e-mail requests for additional information and reference checks
revealed undesirable traits or skills. While I agree that the above noted applications stand for
the propositions represented, I am not convinced that it should be determinable in the subject
case. Rather, I find that the Respondent did not follow its hiring guidelines when comparing the
union applicants that were rejected with the non-union applicants that were hired. As noted
above, I find that the consideration received in evaluating both sets of applications was strikingly
different for those applicants hired in comparison to the union applicants that were rejected.

For all of the above reasons, I find that the Respondent did not hire the union applicants
alleged in the complaint because of their union affiliation.9

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 Unions are labor organizations within the meaning of Section 2(5) of the Act.

3. Respondent violated Section 8(a)(1) of the Act when Production Manager James
Ladika and Superintendent David Mosel threatened employees because of their union affiliation.

4. Respondent violated Section 8(a)(1) and (3) of the Act when it barred employee
James Muir from returning to work, denied him the opportunity to earn wages for the day,
transferred him to another jobsite and disciplined him because of his union activities.
Respondent further violated Section 8(a)(1) and (3) of the Act when it refused to hire Robert
Hyatt, Darrell LaBelle, John McGwin, David Parker, Cynthia Schaefer, Edward Steeb, Scott
Watson, Kurt Wise, Steve Cagle, John Mathews and Karl Markgraf because of their union
affiliation.

Remedy

Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
9 During the course of the hearing and after it had rested its case, the General Counsel
moved to amend the complaint to add the names of union applicants Shawn Dressler and Dan
Larson who filed applications on February 20 as additional individuals that the Respondent
refused to consider or hire because of their union affiliation. This request to amend the
complaint was made after their applications were introduced by Respondent and revealed they
were union organizers in the special skills and qualifications section (R Exh. 13 and 14). I
rejected the amendment since it occurred during the course of the hearing and due process
warranted that the Respondent have more time to prepare for the amendment. Since at least
one of the complaints in this matter has been outstanding since 2001, and several
postponements of the litigation were granted, it was incumbent on the General Counsel to have
included those individuals in the complaint in a timely manner. Under these circumstances, I
renew my ruling and find that it was not appropriate for the General Counsel to amend the
complaint during the course of the hearing and at a time after it had rested its case in chief.

JD–41–03

5

10

15

20

25

30

35

40

45

50
28

effectuate the policies of the Act.

I recommend that the Board issue a remedy requiring the instatement of the eleven
above named employees together with backpay and interest. Likewise, James Muir should be
reimbursed for the wages he lost on February 15, 2002. I further recommend that the Board
order Respondent to offer the eleven employees instatement to those or substantially equivalent
jobs without prejudice to their seniority or any other rights or privileges. It should also order
Respondent to make them whole for lost earnings, if any, together with interest. Backpay
should be computed from the date they would have been hired less any net interim earnings, as
prescribed in F.W. Woolsworth Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended10

ORDER

The Respondent, Stevens Construction Corp. Madison Wisconsin, its officers, agents,
successors, and assigns, shall

1. Cease and desist from

(a) Threatening not to hire employees because of their affiliation with a union.
(b) Threatening employees because of their union affiliation.
(c) Threatening to arrest or discharge employees for their affiliation with a union
or engaging in protected concerted activities.
(d) Maintaining a work rule that states “persons who are not employed by us are
prohibited from soliciting any employee or distributing literature on jobsites,
premises or at employee work locations at any time”.
(e) Barring an employee from returning to work, denying him the opportunity to
earn wages for the day and transferring the employee from one project to
another because of his union affiliation or protected concerted activities.
(f) Disciplining an employee because of his union affiliation or protected
concerted activities.
(g) Refusing to hire applicants because of their affiliation with a union.
(h) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7
of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Within 14 days from the date of this Order, offer Robert Hyatt, Darrell
LaBelle, John McGwin, David Parker, Cynthia Schaefer, Edward Steeb,
Scott Watson, Kurt Wise, Steve Cagle, John Mathews and Karl Markgraf
instatement to a job for which they applied or a substantially equivalent
position, without prejudice to their seniority or any other rights or privileges.
10 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.

JD–41–03

5

10

15

20

25

30

35

40

45

50
29

(b) Make Robert Hyatt, Darrell LaBelle, John McGwin, David Parker, Cynthia
Schaefer, Edward Steeb, Scott Watson, Kurt Wise, Steve Cagle, John
Mathews Karl Markgraf and James Muir whole for any loss of earnings and
other benefits suffered as a result of the discrimination against them, in the
manner set forth in the decision.
(c) Rescind the Work Rule quoted above and advise the employees in writing
that the rule is no longer being maintained.

(d) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable
place designated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records and reports, and all
other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay due under the
terms of this Order.

(e) Within 14 days from the date of this Order, remove from its files any
reference to the unlawful refusals to hire the above named individuals,
any reference to the discipline of James Muir and within 3 days thereafter
notify the applicants and James Muir in writing that this has been done and
that the unlawful refusals to hire and the discipline will not be used against
them in any way.

(f) Within 14 days after service by the Region, post at its facility in Madison,
Wisconsin, copies of the attached notice marked “Appendix.”11 Copies of the
notice, on forms provided by the Regional Director for Region 30, after being
signed by the Respondent's authorized representative, shall be posted bythe
Respondent immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense,
a copy of the notice to all current employees and former employees
employed by the Respondent at any time since February 14, 2002.
(g) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.

11 If this Order is enforced by a Judgment of the 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.”

JD–41–03

5

10

15

20

25

30

35

40

45

50
30

IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.

Dated, Washington, D.C. April 7, 2003

_____________________
Bruce D. Rosenstein
Administrative Law Judge