Sunland Construction Co.

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 685 (N.L.R.B. 1993)

685
311 NLRB No. 69
SUNLAND CONSTRUCTION CO.
1 On March 18, 1992, the Board heard oral argument in this case
along with Sunland Construction Co., 309 NLRB 1224 (1992), and
Town & Country Electric, 309 NLRB 1250 (1992).
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility findings unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing the findings.
The judge incorrectly states in sec. II,D,2,(a), par. 2, of his deci-
sion that it was the ‘‘Respondent’s’’ rather than the ‘‘Union’s’’ New
Orleans Local 37 that was in trusteeship. In sec. IV,A,1, par. 6, the
judge states that ‘‘[o]n the following day, October 20, Elrod and
three prior applicants—Charles Malcolm, Bobby Woodall, and
Danny Parker—went to the jobsite.’’ Elrod and the three others actu-
ally visited the jobsite on November 20. The G.C. Exhs. listed in
fn. 81 of the judge’s decision should read ‘‘63, 64, 66’’ rather than
‘‘53, 64, 66.’’ Finally, in sec. IV,B,2,(b), par. 4 of the corrected de-
cision, the judge incorrectly states that Elrod rather than Charlton
‘‘informed him as to what was happening and requested advice.’’
We correct these errors and note that they do not affect the outcome
of this case.
3 The Respondent excepts to the judge’s finding that applications
from union members to work on the Bogalusa, Columbus, and
Ashdown projects were properly authenticated. We adopt the judge’s
finding.
4 In finding that the Respondent unlawfully refused to hire union
applicants at the Ashdown jobsite, Member Devaney would not rely
on International Union Representative Elrod’s testimony about con-
versations with Charlton, the Ashdown project superintendent.
5 At all times relevant to this proceeding, Simoneaux was business
manager and secretary-treasurer of Local 582, Bueche and Elrod
were organizers for the International Union, Kelly was Local 582’s
assistant business manager, and Tucker was Local 69’s business
manager. All of these officers and organizers were full-time paid
union employees when they applied with the Respondent.
The judge also named Thomas Lindsey and Barry Edwards as paid
organizers whom the Respondent unlawfully refused to employ. Al-
though the Respondent did hire Lindsey and Edwards, we agree with
the judge that the Respondent discriminatorily discharged them in
violation of Sec. 8(a)(3) and (1). Further, we note that unlike Ed-
wards and the other paid organizers or officers, Lindsey’s position
as Local 582 vice president was unpaid, although the Union did pay
his membership dues.
6 309 NLRB 1224.
7 309 NLRB 1250.
8 See, e.g., Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941);
Chemical Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157,
166–168 (1971). See generally Nationwide Insurance Co. v. Darden,
112 S.Ct. 1344, 1349 (1992).
9 See, e.g., Oak Apparel, 218 NLRB 701 (1975); Willmar Electric
Service, 303 NLRB 245 (1991), enfd. 986 F.2d 1327 (D.C. Cir.
1992).
10 Because, as discussed below, we agree with the judge that the
Respondent violated Sec. 8(a)(3) and (4) by unlawfully refusing to
hire St. Francisville applicants, we find that St. Francisville paid
union organizer-applicants William Creeden and Anthony
Yakomowicz were also unlawfully refused employment in this case.
Sunland Construction Co., Inc. and International
Brotherhood of Boilermakers, Iron Ship Build-
ers, Blacksmiths, Forgers & Helpers, AFL–
CIO. Cases 15–CA–10927–2, 15–CA–11124 (for-
merly 26–CA–13617), 15–CA–11155–1, 15–CA–
11155–2, 15–CA–11182, and 15–CA–11226 (for-
merly 26–CA–13805)
May 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY, OVIATT, AND RAUDABAUGH
On June 24, 1991, Administrative Law Judge How-
ard I. Grossman issued the attached decision. On July
15, 1991, the judge issued corrections to that decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel and Charging Party
Union each filed a response to the Respondent’s ex-
ceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions,
briefs, and oral argument,1 and has decided to affirm
the judge’s rulings, findings,2 and conclusions3 and to
adopt the recommended Order.
1. The judge found, and we agree, that the Respond-
ent violated Section 8(a)(3) and (1) of the Act by re-
fusing to hire union members who applied for work at
its Bogalusa, Louisiana, Columbus, Mississippi, and
Ashdown, Arkansas jobsites, because of their union
support and activities.4 The judge additionally found
that the Respondent unlawfully refused to hire full-
time paid union organizers or officers John Simoneaux,
James Bueche, John Kelly, William Elrod, and Arvil
Tucker.5 H. B. Zachry Co., 289 NLRB 838, 839
(1988); Willmar Electric Service, 303 NLRB 245
(1991). The Respondent excepts, arguing, that under
H. B. Zachry Co., 886 F.2d 70 (4th Cir. 1989), deny-
ing enf. 289 NLRB 838, that these organizers and offi-
cers are not bona fide applicants because of their paid
union status. We disagree.
In Sunland Construction Co.,6 and Town & Country
Electric7 we reaffirmed that paid union organizers are
Section 2(3) ‘‘employees,’’ entitled to the Act’s pro-
tections. In reaching this conclusion, we relied on the
language of Section 2(3) and its legislative history, Su-
preme Court precedent interpreting this provision,8 and
our own precedent.9 Further, we found no policy rea-
sons requiring the exclusion of paid union organizers
from the Act’s protections. Applying the same analysis
here, we similarly conclude that the Union’s paid
organizer- and officer-applicants are statutory employ-
ees who, as found by the judge, were unlawfully de-
nied employment by the Respondent.10
2. The judge additionally found that the Respondent
violated Section 8(a)(3) and (4) by refusing to hire, at
its Bogalusa jobsite, union members who previously
applied at its St. Francisville, Louisiana project. The
Respondent excepts, contending that the St.
Francisville applicants cannot be considered
discriminatees because there is no evidence that they:
applied at Bogalusa; knew that the Bogalusa, Colum-
686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bus, or Ashdown jobs existed; or were aware that ap-
plying would have been futile. For the following rea-
sons, as well as those stated by the judge, we reject
these arguments and find that the Respondent violated
Section 8(a)(3) and (4) by refusing to hire the St.
Francisville applicants.
Initially, we note that a customary prerequisite to an
unlawful refusal-to-hire allegation is evidence that the
alleged discriminatee has sought work with the re-
spondent. Actual application is not required, however,
where applying would be futile. In the circumstances
of this case, we agree with the judge that it would
have been futile for St. Francisville applicants to re-
apply at the Respondent’s Bogalusa, Columbus, or
Ashdown jobsites. Thus, apart from refusing to employ
any of the Union’s batched applicants at St.
Francisville, the Respondent displayed considerable
antiunion animus to employees it hired on that project.
For example, the Respondent interrogated St.
Francisville employees about the Union, threatened
employees, unlawfully discharged two workers, and re-
fused to rehire unfair labor practice strikers. Sunland
Construction, supra. Additionally, the Respondent in-
formed its St. Francisville employees that: union orga-
nizers would not be rehired; applications would not be
used in hiring because they were a union organizing
tool; and vacancies would be filled exclusively by non-
union applicants. Id.
During the unfair labor practice hearing in Sunland
Construction, the Respondent reinforced the futility of
St. Francisville applicants reapplying when its project
superintendent told supervisors that the Respondent
would do whatever necessary to keep known union or-
ganizers (i.e., the St. Francisville applicants) off the
Bogalusa job. Similarly, on the Bogalusa project, state-
ments like that of the Respondent’s supervisor, Smith,
that he would not hire any union applicants because he
did not want them to start a union or cause trouble, ir-
refutably indicated the futility of St. Francisville appli-
cants reapplying.
Second, contrary to the Respondent’s arguments, we
agree with the judge that St. Francisville applicants
knew of the Bogalusa job. Union witnesses testified
without contradiction that unemployment was high
among Local 582 members during the Bogalusa
project. Because of this unemployment, and apparently
to foster the Union’s organizational goals, Local 582
officers informed their members of the Bogalusa job,
transported a busload of member applicants on the 70-
mile trip to Bogalusa, and permitted members to make
numerous long-distance telephone calls to Bogalusa
from the Union’s Baton Rouge office. In these cir-
cumstances, and particularly since many of the same
union officers and organizers who encouraged union
members to apply at St. Francisville repeated these ef-
forts at Bogalusa, we agree with the judge that the Bo-
galusa job generally was known to the St. Francisville
applicants.
In the circumstances of this case, we additionally
find sufficient evidence that the St. Francisville union
applicants knew it would be futile to reapply at Boga-
lusa. Thus, no batched union applicant was hired at St.
Francisville, and those who reapplied at Bogalusa simi-
larly were denied employment. And, at the time the
Bogalusa job commenced, unfair labor practice charges
were being litigated against the Respondent in Sunland
Construction, accusing the Respondent of widespread
antiunion activities. Further, when union representa-
tives (and applicants) Simoneaux, Creeden, and
Bueche sought employment at Bogalusa in April 1989,
Supervisor Molton informed them that no individuals
listed on the St. Francisville complaint would be hired.
Finally, even if some St. Francisville union appli-
cants did not know of the Bogalusa job, or that re-
applying would be futile, we nonetheless find that they
would be Section 8(a)(3) and (4) discriminatees be-
cause of the Respondent’s written policy of perma-
nently retaining applications for consideration on fu-
ture jobs. In these circumstances, we agree with the
judge that it would have been unnecessary as well as
futile for the St. Francisville union applicants to re-
apply at Bogalusa.
Accordingly, under all of these facts, as well as
those relied on by the judge, we find that the Respond-
ent violated Section 8(a)(3) and (4) by refusing to hire
the St. Francisville union applicants.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Sunland Construction Co.,
Inc., Bogalusa, Louisiana, Columbus, Mississippi, and
Ashdown, Arkansas, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Max Hochanadel, Esq., for the General Counsel.
Frederic Gover, Esq. (Canterbury, Stuber, Elder & Gooch),
of Dallas, Texas, for the Respondent.
Michael T. Manley, Esq. (Blake & Uhlig), of Kansas City,
Kansas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. This
proceeding pertains to alleged unfair labor practices at three
different jobsites at different times. It follows a former pro-
ceeding concerning events at another jobsite, as to which an
administrative law judge has issued a decision finding that
the Respondent herein committed unfair labor practices.
The charge in Case 15–CA–10927–2 was filed on July 12,
1989, by International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers & Helpers, AFL–CIO
(the Union), with two amended charges thereafter. Complaint
687SUNLAND CONSTRUCTION CO.
1 App. A.
2 App. B.
3 App. B.
4 Cases 15–CA–10618–1, 15–CA–10618–2, and 15–CA–10618–3.
Administrative Law Judge Joel A. Harmatz’ decision on these
charges, finding that Respondent committed certain unfair labor
practices, issued on September 5, 1989, and is currently on appeal
before the Board. Sunland Construction Co. The consolidated com-
plaint in that case, which issued on August 31, 1988, names as al-
leged discriminatees all the individuals listed on Appendix B, herein.
This case pertained to events at a jobsite at St. Francisville, Lou-
isiana.
5 App. C.
6 App. D.
7 The May 13 hearing was conducted on the telephone in order to
save time and expense.
8 Respondent objected to reopening the record on the ground that
the omitted exhibits were not newly discovered or previously un-
available evidence, citing Polis Wallcovering Co., 262 NLRB 1336
(1982). I rejected this argument on the ground that the rule cited in
Polis is Sec. 102.48 of the Board’s Rules, which pertains to various
procedures ‘‘after the Board decision or order.’’ However, where
there has been no Board, or, for that matter, administrative law
judge, decision, the matter is covered by Sec. 102.35 of the Board’s
Rules, which gives an administrative law judge authority to reopen
hearings. Relying on a case involving similar circumstances, where
the Board with judicial approval confirmed the reopening of a record
and a supplemental hearing, I granted the joint motion. Electrical
Workers IBEW Local 648 (Foothill Electrical Corp.), 182 NLRB 66
(1970), enfd. 440 F.2d 1184 (6th Cir. 1971). The court quoted the
trial examiner’s rationale for the reopening. At the reopened hearing
herein, Respondent’s counsel stated that the matter had been ‘‘rec-
tified’’ by the opportunity to cross-examine the union witness au-
thenticating the documents.
issued on August 24, 1989, and an amended complaint on
February 26, 1990. As further amended at the hearing, it al-
leges that Sunland Construction Co., Inc. (Respondent,
Sunland, or the Company), discriminatorily refused to hire or
consider for hiring approximately 56 applicants for employ-
ment on January 25, 1989,1 and approximately 130 on Janu-
ary 30, 1989,2 because, with respect to the latter group of
employees,3 they were listed in a consolidated complaint in
other cases,4 and, with respect to both groups of employees,
because they assisted the Union and engaged in other con-
certed, protected activity. The complaint alleges that such
conduct violated Section 8(a)(1), (3), and (4) of the National
Labor Relations Act (the Act). Although the complaint does
not specify the location of the alleged discrimination, the evi-
dence adduced at the hearing pertains to activity at the Gay-
lord Container jobsite at Bogalusa, Louisiana (Bogalusa job-
site).
The Union filed the charge in Case 15–CA–11124 (for-
merly Case 26–CA–13617) on January 2, 1990, and com-
plaint issued on February 28, 1990. As amended at the hear-
ing, it alleges that Respondent, on about August 31, 1989,
at a jobsite located at Columbus, Mississippi, shown by the
evidence to involve the Weyerhauser Company (Columbus
jobsite), unlawfully told employees that it would not hire em-
ployees who were members of or organizers for the Union,
threatened employees with discharge because they were en-
gaging in union activities, promulgated and enforced a rule
prohibiting the wearing of badges other than company em-
ployee badges, and discriminatorily discharged and thereafter
refused to employ employees Thomas Lindsey and Barry Ed-
wards because of their union activities.
The Union filed additional charges pertaining to the Co-
lumbus jobsite in Case 15–CA–11155, 1–2 on February 23,
1990, and in Case 15–CA–11182 on March 26, 1990. A con-
solidated complaint issued April 4, 1990, and, as amended at
the bearing, alleges that Respondent discriminatorily refused
to hire or to consider hiring approximately 19 applicants for
employment on various dates in August and September
1989,5 thus violating Section 8(a)(1) and (3) of the Act.
The Union filed the charge in Case 15–CA–11226 (for-
merly Case 26–CA–13805) on April 6, 1990, and complaint
issued on May 7, 1990. As amended at the hearing, it alleges
that Respondent, on various dates in October and November
1989, discriminatorily refused to hire or consider hiring ap-
proximately 59 applicants for employment,6 because of their
activity on behalf of the Union and other concerted, pro-
tected activity. This conduct is alleged to be violative of Sec-
tion 8(a)(1) and (3) of the Act. The evidence adduced at the
hearing pertains to events at the Nakoosa Edward Paper Co.
jobsite at Ashdown, Arkansas, where Respondent was per-
forming work (Ashdown jobsite).
These cases were consolidated for hearing and were heard
before me on July 9 through July 11, 1990, in Baton Rouge,
Louisiana, on October 15 through 17, 1990, in New Orleans,
Louisiana, on December 10 through 12, 1990, in Baton
Rouge, Louisiana, and again at the last location on January
14 through 16, 1991. The record was closed at the January
16, 1991 hearing.
On May 13, 1991, I reopened the record pursuant to a
joint motion filed by the General Counsel and the Charging
Party, conducted additional hearing,7 and received evidence
concerning exhibits which, according to the General Counsel
and the Charging Party, had been inadvertently omitted from
exhibits previously introduced into evidence.8
The parties submitted briefs after the initial close of the
hearing, and again on the issues presented by the reopened
hearing. In addition, I granted Respondent’s motion to file a
supplemental brief arguing against the Charging Party’s re-
quest for extraordinary relief set forth in its initial brief, with
a provision for response thereafter from the other parties. Re-
spondent and the Charging Party submitted such supple-
mental briefs, while the General Counsel filed a request to
take notice.
On the entire record, including consideration of all the
briefs and my observation of the demeanor of the witnesses,
I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation with offices and
places of business in Houston, Texas; St. Francisville, Lou-
isiana; Bogalusa, Louisiana; Columbus, Mississippi; and
Ashdown, Arkansas, at which it has been engaged as a me-
chanical contractor in the repair of industrial boilers. During
the 12-month period ending July 31, 1989, Respondent per-
formed services valued at in excess of $50,000 for customers
located in States other than the State of Delaware. During the
same period of time, Respondent purchased and received at
its Louisiana jobsites goods and materials valued at in excess
of $50,000 directly from points outside the State of Louisi-
688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 One of the four organizers was Thomas Lindsey, an alleged
discriminatee herein. 10 R. Br. pp. 28–29.
ana. During the 12-month period ending March 31, 1990,
Respondent purchased and received at its Columbus, Mis-
sissippi jobsite goods and materials valued at in excess of
$50,000 directly from points outside the State of Mississippi.
During the 12-month period preceding the issuance of the
complaint in Case 15–CA–11226, Respondent purchased and
received at its Ashdown, Arkansas facility goods and mate-
rials valued at in excess of $50,000 directly from points lo-
cated outside the State of Arkansas. Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
AT BOGALUSA
A. The St. Francisville Decision
Judge Harmatz concluded that Respondent had violated
Section 8(a)(1) at the St. Francisville jobsite in early 1988
by (1) threatening to discharge employees because they en-
gaged in union activity or expressed an intent to wear union
insignia, by instructing them not to engage in union activi-
ties, and by coercively interrogating them concerning such
activities (attributed to Night-Shift Superintendent Joe
Molton); (2) by statements that Project Superintendent A. B.
(Bucky) Williford had said that four union organizers9 would
not be hired on future jobs, and that the Company would not
hire from employment applications submitted that day be-
cause they were in furtherance of union organization (attrib-
uted to Quality Control Inspector Tommy Smith); (3) by a
threat of discharge if an employee put on a union button, and
a statement that the Company would never be union (attrib-
uted to Rigging Supervisor David Williford); and by Super-
visors Ron Jordan and William Bayless telling employees
that vacancies would be filled solely by nonunion employees.
The decision further concludes that Respondent violated
Section 8(a)(3) of the Act by discharging two employees be-
cause of their union activity, by issuing a reprimand to an
employee because of such activity, by refusing to reinstate
unfair labor practice strikers upon their unconditional offer to
return to work; and by refusing to hire applicants for em-
ployment on the basis of applications submitted by the Union
in March and April 1988.
B. Alleged Statements by Albert B. (Bucky) Williford
Outside the Hearing Room at St. Francisville
1. Summary of the evidence
Albert B. (Bucky) Williford was Respondent’s manager of
construction operations. At the Bogalusa jobsite, he ap-
pointed ‘‘upper supervision’’—Aubrey Ward (project man-
ager) and Tommy A. Smith (quality control inspector)—and
gave them general hiring instructions. Respondent admitted
at the hearing that he was a supervisor within the meaning
of the Act.
One of Respondent’s witnesses at the St. Francisville hear-
ing was Night-Shift Superintendent Joe Molton. He had been
employed by Respondent at various times over a 3-year pe-
riod, usually in managerial positions such as project super-
intendent. He later declined an offer to serve in a similar ca-
pacity at another project, and accepted other employment.
Molton was also a member of a Boilermakers local in
Denver. The local filed charges against Molton in February
1989 for working for a nonunion contractor, showing non-
union employees expertise of the boilermaker trade, and
working in a jurisdiction without the business manager’s per-
mission. After a ‘‘trial,’’ Molton was assessed a fine. How-
ever, the charges were dropped upon Molton’s agreement to
cooperate with the Union in the current proceeding. There-
after, Molton submitted an affidavit to the Board, and testi-
fied for the General Counsel in the instant case on October
15, 1990. He agreed that his willingness to testify was occa-
sioned by the dropping of the charges against him, but as-
serted that this did not affect the truthfulness of his testi-
mony.
The St. Francisville hearing was conducted on January 30
and 31 and February 1 and 2, 1989. Molton described a con-
versation which took place in Williford’s motel room one
evening after the day’s testimony. Present in the room were
Supervisors David Williford and Tommy Smith and Office
Manager Scott Stokes, in addition to Albert Williford and
Molton. According to Molton, Albert Williford had a ‘‘list
of the people who had complaints against Sunland.’’ The
witness was shown one of the complaints in the current pro-
ceeding, and stated that the list held by Williford was ‘‘very
similar’’ to the exhibit which Molton was shown. The list
contained names of individuals, and every one in Williford’s
motel room had a copy. Molton characterized this as a ‘‘shit
list.’’ According to Molton, Williford said, ‘‘We need to do
whatever it takes to keep these known organizers off the Bo-
galusa job.’’
Williford testified about this matter subsequent to
Molton’s testimony. Prior to doing so, Respondent’s counsel
showed him a copy of the transcript pertaining to Molton’s
prior testimony. At the outset of the hearing, Respondent had
requested and had been granted sequestration of witnesses.
Williford denied possession of a list of people that were
not to be hired at the Bogalusa jobsite. However, he stated
that he and his other managers had copies of the St.
Francisville complaint. Williford also denied the statement
attributed to him by Molton in the motel room. However, he
agreed that he had a meeting of ‘‘faithful’’ supervisors in his
room while the hearing was taking place, and that they
talked about the trial and about ‘‘hiring.’’
Quality Control Inspector Tommy Smith testified at the St.
Francisville hearing. He also testified about the issues raised
by Molton’s testimony in the current proceeding. Smith de-
nied that he saw a copy of the St. Francisville complaint or
a list of employees involved in that proceeding. He first de-
nied hearing the term ‘‘shit list,’’ but then agreed that he had
heard it, but not from Williford.
2. Factual analysis
Respondent argues that Molton should not be credited be-
cause his testimony was given in return for the Union’s drop-
ping its charges against him.10 The Charging Party and the
General Counsel moved to strike portions of the testimonies
of Williford and Smith, on the ground that Respondent had
689SUNLAND CONSTRUCTION CO.
11 The Charging Party repeated this argument in its brief, as to
Williford’s reading Molton’s testimony. C.P. Br. pp. 88–95.
12 See Seattle Seahawks, 292 NLRB 899 (1989), and authorities
cited therein.
13 Testimony of Human Resources Manager Ronald W. Colley;
G.C. Exhs. 5–7.
14 Although Ward stated at one point that the date was January
1988, I conclude that this was an inadvertent error.
15 Applications of Lawrence F. Chapoton (G.C. Exh. 74); George
W. Berthaut (G.C. Exh. 75); and Charles R. Morgan (G.C. Exh. 76).
shown them copies of the transcript pertaining to the testi-
monies of prior witnesses.11
Molton’s testimony was partially corroborated by
Williford’s acknowledgment that he and his managers had
copies of the St. Francisville complaint, and that he met with
them in his motel room and and discussed ‘‘hiring.’’ Smith’s
denial that he had a copy of the complaint is inconsistent
with Williford’s admission that his managers did have cop-
ies, and Smith’s admission that he had heard the term ‘‘shit
list’’ tends to corroborate Molton.
Although Molton agreed that he would not have testified
absent the Union’s dropping the charges against him, his de-
meanor was that of a truthful witness. Although he was a
former employee at the time of his testimony, Respondent
still had ‘‘potential influence’’ over his future employment
by means of references. Airport Distributors, 280 NLRB
1144, 1147 (1986). Accordingly, Molton’s testimony against
Respondent was against his own self-interest.
Whether counsel’s showing copies of prior testimony to
his witnesses constitutes a violation of the sequestration rule
has occasioned considerable discussion.12 The statement at-
tributed to Williford is not alleged in the complaint as an
independent unfair labor practice. The General Counsel relies
on it as evidence of union animus.
Since the Board’s procedure does not require the pleading
of evidence, it may be argued that Respondent had no oppor-
tunity to prepare a defense against this evidence. On the
other hand, the sequestration rule was invoked at Respond-
ent’s request. The Board has stated that ‘‘[t]he less a witness
hears of another’s testimony, the more likely he is to declare
his own unbiased knowledge, even though the witnesses have
talked among themselves before the hearing and have dis-
cussed their testimony with counsel.’’ Unga Painting Corp.,
237 NLRB 1306 (1978). If a later witness is given the writ-
ten testimony of a prior witness, the danger that his testi-
mony on the same subject will be influenced by such reading
is at least as great as it would be upon hearing the prior testi-
mony. If this practice is permitted as a matter of course, the
sequestration rule would in effect be eviscerated. For this
reason I consider the showing of testimony as herein to be
a violation of the rule.
As indicated, the General Counsel and the Charging Party
moved that Williford’s testimony in response to Molton’s be
stricken. I am unaware of any Board authority in support of
such action. The preferred course, it would seem, is to con-
sider the violation of the rule as reducing the probative
weight of later testimony possibly influenced by the rule’s
violation. Accordingly, I shall follow this principle in assess-
ing Williford’s testimony, and deny the motion to strike.
Based on Williford’s partial corroboration of Molton, the
inconsistency between Smith’s testimony and that of both
Williford and Molton with regard to possession by managers
of lists of employees, the fact that Williford read Molton’s
testimony before testifying himself, and the fact that Molton
appeared to be a more credible witness, I find that, during
the St. Francisville hearing, a meeting was held in
Williford’s motel room. Several managers had copies of the
complaint with respect to that proceeding, which contained
names of numerous discriminatees. Williford told the man-
agers that Respondent had to do ‘‘whatever it takes to keep
these known organizers off the Bogalusa job.’’
C. Respondent’s Training Seminar in January 1989
Respondent held an office management training seminar in
Houston, Texas, in late January 1989. One of the subjects
discussed was the qualifications of and procedure for hiring
new employees.13 Joe Molton attended the seminar. He testi-
fied that Ronald W. Colley, then personnel manager, told
persons in attendance at the seminar that the managers had
to be ‘‘very selective’’ in the hiring of employees at ‘‘tar-
geted projects.’’ Molton’s testimony is uncontradicted and is
credited.
D. The Applications at the Bogalusa Jobsite
1. Background
John M. Simoneaux, business manager of the Union’s
Local 582, in Baton Rouge, Louisiana, testified that he be-
came aware in late 1988 that the Company had won the job
at the Bogalusa jobsite. Respondent appointed Aubrey Ward
as project manager, and he moved to Bogalusa in January
1989.14 Shortly before that time, according to Ward,
Williford informed him that Boilermakers who had applied
for employment at the St. Francisville jobsite would attempt
to file applications at Bogalusa. Accordingly, Ward affirmed,
he was ‘‘alert to the possibility.’’
As indicated, the complaint alleges numerous applications
at the Bogalusa jobsite. Respondent admits the authenticity
of some of these, but disputes others.
2. The applications mailed by Union Organizer Bueche
on January 23, 1989
a. Summary of the evidence
Union Organizer James K. Bueche testified twice in this
proceeding, the first time on July 9, 1990, and again on May
23, 1991, at the reopened hearing. During his original testi-
mony, Bueche testified concerning certain employment appli-
cations which he mailed to Respondent’s Houston head-
quarters. Respondent objected that these were not adequately
authenticated. At the reopened hearing, Bueche testified
about copies of three applications which had he failed to in-
clude in one of the General Counsel’s exhibits.15 Respondent
agreed that these applications had been signed by the pur-
ported applicants, but argued that the evidence was insuffi-
cient to establish that they had been mailed to Respondent
and, accordingly, that the three individuals who signed the
applications were not in fact applicants.
Bueche testified that Respondent’s New Orleans Local 37
was under trusteeship at time of the relevant events herein,
and that a special meeting of the members was called for
January 21, 1989. Bueche was an assistant trustee. He identi-
690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 G.C. Exh. 80. Respondent objects to receipt of G.C. Exh. 80 on
the ground that it contains the signatures of other asserted applicants,
which evidence the General Counsel should have adduced at the
original hearing. The Company argues that it has conceded the au-
thenticity of Chapoton’s, Berthaut’s, and Morgan’s signatures, and
contests only the asserted mailing of the applications. Accordingly,
receipt of the roster would go beyond the limits of the reopened
hearing, Respondent argues.
Bueche testified that he talked to Berthaut at the January 21 meet-
ing. G.C. Exh. 80 constitutes documentary evidence in support of
Bueche’s testimony as to the meeting at which he distributed appli-
cation blanks, and is related to his mailing of the applications, in-
cluding the three disputed herein, to Houston. In addition, it con-
stitutes evidence that the three alleged discriminatees were present
at the meeting. Accordingly, I overrule Respondent’s objection and
receive G.C. Exh. 80, but will consider it only as it relates to the
disputed issue of the mailing of the three applications.
17 G.C. Exh. 4.
18 G.C. Exh. 4.
19 Michael Jones (G.C. Exh. 4); Sebrin Strother (G.C. Exh. 4);
Junior Taylor (G.C. Exh. 4(b)); Gene Lazaro (G.C. Exh. 4(c)); Frank
Gilbert (G.C. Exh. 4(d)); Frederick Pohlman (G.C. Exh. 4(e)); Stan-
ley Dupuy (G.C. Exh. 4(f)); John Kennair (G.C. Exh. 4(g)); Rodney
Martin (G.C. Exh. 4(h)); Albert Theilman (G.C. Exh. 4(i)); Raymond
Bahan (G.C. Exh. 4(j)); William Bradley (G.C. Exh. 4(k)); Edmond
Albares (G.C. Exh. 4(a)); Darrell Leo (G.C. Exh. 4(m)); Leander
Humphrey (G.C. Exh. 4(n)); Larry Jones (G.C. Exh. 4(o)); Carrol
Meredith (G.C. Exh. 4(p)); and James K. Bueche (G.C. Exh. 4(q)).
20 Applications of Lawrence F. Chapoton (G.C. Exh. 74) and
George W. Berthaut (G.C. Exh. 76).
21 Application of Charles R. Morgan (G.C. Exh. 75).
22 Supra, fn. 19.
23 William Harrell (G.C. Exh. 16); John Overton (G.C. Exh. 17);
Francis Bozeman (G.C. Exh. 18); Greg Oden (G.C. Exh. 19); Frank
Lea (G.C. Exh. 20); Charles Clardy (G.C. Exh. 21); William
Lafeaux (G.C. Exh. 22); Jerry Himel (G.C. Exh. 23); and J. C. Berry
(G.C. Exh. 24). Respondent does not dispute the authenticity of
these applications. R. Br. p. 3.
24 Pumphrey was not employed by Respondent at the time of his
testimony.
25 G.C. Exh. 25.
fied a roster signed by members who attended this meeting,
which contains the signatures of the three individuals whose
applications had been omitted from the General Counsel’s
exhibit.16
Bueche affirmed that, at this meeting, he gave Sunland
employment applications to members looking for work. He
testified that he knew the members personally, and saw most
of them fill out the applications, although some took them
home and later returned a completed application to Bueche.
Bueche testified that he made copies of the applications
and mailed the originals to company headquarters in Hous-
ton. He kept the copies in a manila envelope. During his
original testimony, Bueche identified one of the General
Counsel’s exhibits as copies of the applications which he
mailed.17 In his affidavit accompanying the joint motion to
reopen the record, Bueche averred that he ‘‘assembled’’ the
exhibit. At the reopened hearing, he stated that he put to-
gether the group of exhibits and transmitted them to Union
Agent William Creeden, who in turn transmitted them to the
Board.
After the close of the hearing, Bueche was informed by
counsel for the General Counsel that three applications were
missing. He thereupon searched the Sunland manila envelope
and discovered copies of the three missing applications. At
the reopened hearing, Bueche testified that he had previously
mailed the originals of these applications together with the
other applications. A return receipt card indicates Respond-
ent’s receipt of this mailing on January 25.18 Copies of 18
applications were received in evidence at the initial hearing.
They are dated January 21 and 23 or are undated. All indi-
cate referral by the Union.19
At the May 13, 1991 reopened hearing, the General Coun-
sel produced copies of the three omitted applications. Two
of the allegedly omitted applications are dated January 2120
and one is dated January 23.21 All three contain the state-
ment that the applicant was referred by the Union.
b. Factual analysis
On the basis of the return receipt card and Bueche’s testi-
mony, I conclude that he did mail the originals of various
employment applications to Respondent’s Houston head-
quarters on about January 23, 1989. The significant issue is
whether this group included the original applications of
Chapoton, Berthaut, and Morgan. It is obvious that these in-
dividuals did submit applications to Bueche, since otherwise
there would have been no source for the copies which the
General Counsel has produced. The similar dating and state-
ments of union affiliation link the three disputed applications
with the others. Bueche’s testimony that he found copies, not
originals, in the manila envelope, is undisputed. The where-
abouts of the three original applications is unexplained—un-
less they were in fact included in the envelope mailed to
Houston. I find that Bueche did include them, and I receive
General Counsel’s Exhibits 74, 75, and 76. I also conclude
that Respondent received these together with the other appli-
cations.22
3. The personally authenticated applications
On January 25, 1989, Union Representatives Simoneaux,
Bueche, and John Kelly took a busload of 30–35 union
members to the Bogalusa jobsite and obtained application
forms. They went to the union hall, filled out the forms, and
returned to the jobsite to submit them.
Nine witnesses identified applications that they submitted
at the Bogalusa jobsite on January 25.23
4. Evidence of other individual applications and
additional mailing to Houston
Raymond G. Pumphrey, then Respondent’s timekeeper
trainee at the Bogalusa jobsite,24 testified that a busload of
applicants showed up on the morning of January 25 and
asked to submit applications. Pumphrey gave them the forms,
and later received the completed applications. He put them
in a ‘‘stack.’’ As indicated, nine of the applicants personally
authenticated their applications.
Union Representative Simoneaux testified that some of
these individuals submitted applications at the jobsite on Jan-
uary 25, and that others did so at different times. Charles E.
Greaud testified that he gave his application to Simoneaux
for transmittal to Respondent, while Danny Blackwell af-
firmed that he gave his application to Assistant Business
Manager John Kelly for the same purpose. Greaud identified
a copy of his application.25
691SUNLAND CONSTRUCTION CO.
26 Jerry Moore, James K. Bueche, Bob Redden, Albert Grey, Mike
Guitreau, and John Kelly. After first stating his belief that
Simoneaux rode on the bus, Oden corrected this to affirm that
Simoneaux met the riders at the jobsite. Simoneaux testified that
Bueche was not on the bus, but rode with Simoneaux in a pickup
truck.
27 Darrell Castleberry, Brian Champagne, Russell Decou, Charles
Deville, David Ellis, Jack Garza, John Kelly, John J. Leveron, Jerry
Moore, Arthur Richardson, and Donald Sutton. Simoneaux testified
that ‘‘David Schoolmaker [phonetic]’’ was on the bus. I correct the
name ‘‘Schoolmaker’’ to ‘‘Schoonmaker,’’ at Tr. 383, L. 4, and con-
clude that Simoneaux was referring to Eddie Schoonmaker.
28 Joseph C. Berry, Danny K. Blackwell, Mark D. Castleberry,
Charles O. Clardy, David A. Ellis, Phillip I. Garner, Jr., Charles I.
Gods, Charles E. Greaud, Steve L. Grey, William D. Hammons, III,
David E. Ivy, Frank G. Lea, Joel P. Moak, John B. Overton, Dono-
van M. Sutton, Jr., Herman Trahan, and Billy W. Walley. G.C. Exh.
2.
29 G.C. Exh. 26.
30 C.P. Exh. 3.
31 J. K. Bueche (G.C. Exh. 31–325 and G.C. Exh. 4Q); Brian
Champagne (G.C. Exh. 31–331); David Ellis (G.C. Exh. 331); David
Ivy (G.C. Exh. 31–338); John Kelly (G.C. Exh. 31–340); Earl Moak
(G.C. Exh. 31–323; Mark Castleberry (G.C. Exh. 31–330); Eddie
Schoonmaker (G.C. Exh. 31–333); T. W. Eastwood (G.C. Exh. 31–
324); Jack Garza (G.C. Exh. 31–336A); Walter Jones (G.C. Exh.
31–340); Johnny J. Leveron (G.C. Exh. 31–341); Joel Moak (G.C.
Exh. 31–320); A. R. Richardson (G.C. Exh. 31–343), Gary Stokes
(G.C. Exh. 31–335A); William Walley (G.C. Exh. 31–344); Charles
D. Deville (G.C. Exh. 31–336); William D. Hammons, (G.C. Exh.
31–321); Don Sutton (G.C. Exh. 31–334); Robert W. Travis (G.C.
Exh. 31–322); Leroy White (G.C. Exh. 31–345); Darryl Castleberry
(G.C. Exh. 31–328, 329); Russell J. Decou (G.E. Exh. 31–332, 335;
and Jerry Moore, G.C. Exh. 31–342.
32 G.C. Exh. 4. As indicated C.P. Exh. 3 manifests receipt by
Sunland of Simoneaux’s mailing of applications to Houston. The re-
verse side of this card is not visible in the exhibit file.
33 App. A.
34 App. B.
35 App. B. James K. Bueche, Charles O. Clardy, L. J. (Jack)
Garza, Darryl Castleberry, Joel R. Moak, Eddie H. Schoonmaker,
Robert W. Travis, John B. Overton, Steve Grey, Arthur R. Richard-
son, Mark D. Castleberry, Johnny J. Leveron, Russell J. Decou,
David A. Ellis, and Tommy Eastwood. In addition, the St.
Francisville complaint lists a ‘‘Charles I. Godson,’’ whereas the G.C.
Exh. 2 herein lists a ‘‘Charles I. Godso’’ as the applicant on an ap-
Continued
Greg Oden was one of the riders on the bus and, as indi-
cated, personally authenticated his application at the hearing.
On cross-examination, Oden also testified that various indi-
viduals whose names appear in the complaint were riders on
the bus.26 Union Representative Simoneaux recalled several
of the union members on the bus.27
Union Representative Simoneaux attempted to hand
Sunland Superintendent Tommy Smith copies of the New
Orleans applications previously mailed to the Company’s
Houston headquarters, and other applications received from
applicants who could not make the trip to the Bogalusa job-
site. Smith refused to accept these applications, and told
Simoneaux to mail them to Houston. Simoneaux testified that
he received a group of applications and mailed them to
Houston on about January 27. He identified a list of 17
names as the applicants on this list.28 One of the names is
that of Steve L. Grey. During the course of this proceeding,
the General Counsel caused a subpoena to be served on Re-
spondent requiring the production of certain documents. One
of the documents received pursuant to the subpoena was an
employment application from Steve L. Grey. It is dated Janu-
ary 24, 1989, and is similar in appearance to the other em-
ployment applications in this proceeding.29 Simoneaux iden-
tified this application as one of the applications he mailed to
the Company on about January 27. A return receipt card evi-
dences Respondent’s receipt of this mailing.30
Simoneaux testified that other individuals submitted appli-
cations at Bogalusa. Pursuant to the subpoena described
above, Respondent produced other employment applications
from its files. Personnel Manager Colley testified that they
were part of the ‘‘job files’’ and that he had no reason to
believe that they were other than what they seemed to be.
These documents purport to be employment applications
dated January 25, 1989, or shortly prior thereto.31
5. Indicia of union affiliation
Most of the applications submitted personally indicate
membership in one of the Union’s locals, or state that the ap-
plicant was a volunteer union organizer. Several of the appli-
cations list Simoneaux or Bueche as references. The latter
identified themselves at the Bogalusa jobsite as union rep-
resentatives and brought many applicants with them.
Some of the applications listed prior work experience with
companies employing union employees. Although this was
not stated on the applications, Sunland Manager of Human
Relations Colley testified that an individual experienced in
the construction industry would know which companies were
union, and would be able to make an inference as to union
affiliation on the basis of a work record with such compa-
nies. This was corroborated by Sunland Superintendent
Tommy Smith.
The return receipt card for union representative Bueche’s
mailing of applications to Houston, signed by a Sunland rep-
resentative, shows on the reverse side that it was mailed by
‘‘J. K. Bueche.’’32
6. Summary, legal analysis, and conclusions
As indicated, the evidence of the submission of the appli-
cations consists of personal authentication by the applicants;
documentary evidence of a mailing of applications to Re-
spondent’s Houston headquarters just before the January 25
visit to the jobsite, with a return receipt card; testimonies
about applications submitted at the jobsite; testimony that ap-
plications from listed individuals were mailed on January 27,
corroborated by a return receipt card and the application of
one of the listed individuals recovered from Respondent’s
files; and copies of other applications from those files pur-
porting to be employment applications at about the same
time as the visit to the Bogalusa jobsite. There is evidence
of union affiliation by the applicants.
The amended complaint in Case 15–CA–10927–2 names
the alleged discriminatees in two groups—those allegedly
discriminated against because of their union activities,33 and
those subjected to the same action because they were listed
in the St. Francisville complaint.34 All the alleged
discriminatees in the former group are included in the lists
of individuals named above. In addition, 16 alleged
discriminatees in the St. Francisville complaint appear in the
lists of applications given above.35
692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
plication mailed to Houston. I conclude that they are the same per-
son, and that the correct last name is ‘‘Godson.’’
36 R. Br. p. 4.
37 Ibid.
38 G.C. Exh. 2.
39 Id., at p. 5.
40 Ibid.
41 Id., at 9.
42 Id at 7.
43 The General Counsel and the Charging Party move to strike
Smith’s testimony because of his prior reading of the transcript per-
Respondent objected to receipt of the applications, except
those which were personally authenticated at the hearing by
the applicant. With respect to Bueche’s mailing on January
23, Respondent argues that he ‘‘did not observe everyone ei-
ther filling out or signing the documents.’’36 As I have con-
cluded, Chapoton’s, Berthaut’s, and Morgan’s applications
were included in this mailing. However, at the reopened
hearing, contrary to its position during the initial hearing,
Respondent did not question that the three applicants had in
fact signed the applications, but, rather, denied that they had
been mailed to Houston. The Company’s argument that
Bueche did not personally see ‘‘everyone’’ signing the docu-
ments is irrelevant. He testified that he knew the applicants
personally, and that they either signed applications at the
union hall or completed them at home and returned them to
Bueche. This is sufficient authentication that it was the indi-
cated applicant who in fact signed the document. As shown,
a return receipt card manifests Respondent’s receipt of this
mailing.
With respect to the applications mailed to Houston by
Simoneaux on January 27, the Company argues that he ‘‘did
not testify as to how he came to acquire these applications,
from whom, or when.’’37 On the contrary, Simoneaux testi-
fied that he mailed the applications on about January 27, and
the identities of the applicants are shown by the list he pre-
pared.38 Its accuracy is indicated by the fact that one of the
applications on the list, that of Steve L. Grey, was actually
obtained from Respondent’s records.
The evidence also shows that Simoneaux was active in the
submission of employment applications by union members to
Sunland at this time, and Charles E. Greaud testified that he
gave his application to Simoneaux for transmission to Re-
spondent. I conclude from Simoneaux’s testimony that he
‘‘received’’ various applications that he meant they were ob-
tained from the union members who applied at Bogalusa.
Respondent objects to receipt of the applications which the
General Counsel obtained by subpoena from Respondent on
the ground that they were received ‘‘through’’ the testimony
of Respondent’s Human Resources Manager Colley.39 As
noted, Simoneaux testified that other individuals filed appli-
cations at Bogalusa, and Colley admitted that the applications
came from the Company’s job files and were what they pur-
ported to be. They purport to be job applications, and I con-
clude that they are.
The Company argues that Simoneaux and Oden were not
entirely consistent in their recollections of the individuals
who were on the bus to Bogalusa on January 25.40 This ar-
gument has no merit. The Company also contends that some
of the applicants testified that they submitted applications in
person, whereas Simoneaux stated that he mailed their appli-
cations to Houston.41 This argument is also without merit,
since more than one application may have been filed, or the
recall of one of the witnesses may have been faulty.
Respondent cites various cases in support of its argument,
including Stop N’ Go, Inc.,42 279 NLRB 344 (1986), and
Maximum Precision Metal Products, 236 NLRB 1417
(1978). These cases have nothing to do with employment ap-
plications. Instead, they concern union authorization cards
submitted in connection with an alleged 8(a)(5) violation. In
both cases the evidence in support of the cards was inad-
equate.
The issue before me under Rule 901(a) of the Federal
Rules of Evidence is whether there is prima facie evidence,
circumstantial or direct, that the documents are what they
purport to be. Alexander Dawson, Inc. v. NLRB, 586 F.2d
1300, 1302 (9th Cir. 1978), enfg. 228 NLRB 165 (1978). As
in the case at bar, Alexander Dawson involved in part the
authenticity of applications by applicants who themselves did
not testify. The Court of Appeals for the Ninth Circuit noted:
The ALJ’s finding was based on the similarity of the
challenged applications to those filed by applicants who
testified and authenticated their own applications. He
also noted that the company did not present any evi-
dence to contradict this prima facie evidence of authen-
ticity and did not attempt to prove the applications were
fraudently prepared. [at 1302.]
The same factors are present in this case. The contested
applications are similar to those which were personally au-
thenticated, there is direct and persuasive circumstantial evi-
dence, and the Company’s arguments against their authen-
ticity are invalid for the reasons given above. I reaffirm my
prior ruling receiving all these applications.
D. Statements Attributed to Tommy Smith at the
Bogalusa jobsite
Raymond Pumphrey, the Company’s timekeeper trainee at
the Bogalusa jobsite, described Tommy Smith as the super-
intendent of the job. Respondent admitted at the hearing that
Smith was a supervisor within the meaning of the Act, and
I so find.
Union Organizer Simoneaux testified without contradiction
that, after the applicants had submitted their applications,
Smith stepped onto a porch and told them that he did not
need any employees at that time, but that he would get back
with them in about 30 days.
Pumphrey testified that he had a conversation with Smith
later on the same day that the union applicants submitted
their applications. He asked Smith whether the Company was
going to hire any of the applicants. Pumphrey first affirmed
that Smith answered ‘‘No,’’ saying that he didn’t want ‘‘any
trouble.’’ Later, after reviewing his pretrial affidavit,
Pumphrey testified that Smith said he would not hire any of
the applicants because he did not want them starting a union
or causing any trouble.
Smith testified he had a conversation with Pumphrey about
the applicants, but did not remember the statements attributed
to him by Pumphrey. Smith also admitted reading the tran-
script pertaining to Pumphrey’s testimony before testifying
himself.43
693SUNLAND CONSTRUCTION CO.
taining to Pumphrey’s testimony. I deny the motion. See discussion
in sec. B(2), supra.
44 The General Counsel and the Charging Party move to strike
Ward’s testimony because of his reading of prior testimony of other
witnesses. I deny the motion for the reasons given above, sec. B(2).
45 G.C. Exhs. 36, 37, 38.
46 Respondent does not dispute the authenticity of the applications
of Lindsey, Redman, or Covington. R. Br. p. 3.
47 G.C. Exhs. 34, 35.
I credit Pumphrey’s testimony that Superintendent Smith
told him on the afternoon of January 25 that Respondent
would not hire any of the applicants because Smith did not
want them to come in and start a union or cause trouble. I
also credit Simoneaux’s account of Smith’s speech to the ap-
plicants.
E. Statements Attributed to Aubrey Ward and
Joe Molton
1. Aubrey Ward
As indicated, Aubrey Ward was the project manager at the
Bogalusa jobsite. He was the highest company official at that
job. Respondent admitted at the hearing that he was a super-
visor within the meaning of the Act, and I so find.
Ward hired Scott Jones at Bogalusa in February 1989.
Jones was not a member of the Union at the time. He left
the job several months later. In mid-March, according to
Jones, Ward asked him whether he knew any heliarc welders,
and Jones replied that he did not. Jones had a chance meet-
ing a few days later with Adrian Phillips, a friend, who intro-
duced him to Union Official James K. Bueche. Jones later
approached Project Manager Ward and told him of the avail-
ability of Bueche and Phillips as welders. According to
Jones, Ward rejected the offer, saying that the two were
union representatives.
Ward testified that, prior to his appearance as a witness,
he read the transcript of the testimony of a witness he as-
sumed was Scott Jones. Nonetheless, he contended that he
did not know ‘‘the name Scott Jones.’’ Ward also agreed that
he read the prior testimony of Raymond Pumphrey.
Ward denied that he ever asked Jones for the names of po-
tential employees, or that he refused to accept some that
Jones had suggested. He contended that he did not ask for
referrals from other employees.
Jones was the more believable witness, and I credit his
testimony.44
2. Joe Molton
Molton was Sunland’s superintendent for a new project at
St. Francisville, and Respondent admitted at the hearing that
he was a supervisor.
Molton had a conversation with Union Representatives
Simoneaux and Bueche in Baton Rouge on April 21, 1989.
The testimonies of all three are consistent and establish that
Bueche asked Molton for a job at the new St. Francisville
project. Molton replied that Bucky (Williford) would fire
Molton if he hired Bueche. He added that any of the individ-
uals who had filed charges in connection with the prior St.
Francisville job were on a ‘‘shit list.’’ Molton did agree to
hire Bueche’s son at the second St. Francisville project on
receipt of assurances from Bueche that his son did not have
a union book.
Molton had a second conversation with Simoneaux and
Bueche about a week later at the same place, and their testi-
monies are again consistent. International Representative
William Creeden and Management Representative William
Tidwell were also present. Simoneaux and Bueche asked
Molton whether he could get them hired at Bogalusa.
Creeden added a list of persons he would like to have hired
at the jobsite, and talked with Molton about the ‘‘complaint
list,’’ as Molton characterized it. Molton answered that
Creeden knew as well as Molton that the Company was not
going ‘‘to hire any of those people on that shit list.’’ The
Bogalusa job, and another one at Columbus, Arkansas, were
‘‘targeted jobs.’’ Molton stated to the Union representatives:
‘‘There is no way in hell that I can get you all hired in down
there. You all were on that previous charge.’’ Molton spe-
cifically mentioned four union organizers at the first St.
Francisville job—Kenneth Davis, Thomas Lindsey, Willie
Covington, and David Felter.
III. THE ALLEGED UNFAIR LABOR PRACTICES
AT COLUMBUS
A. The Employment Applications
1. The applications of Lindsey, Covington, Redmond,
Durning, and Hammons
As at Bogalusa, Respondent admits the authenticity of
some applications and denies others.
Union Organizer Thomas Lindsey testified that he called
the Columbus jobsite on June 30, 1989. A lady replied,
‘‘Sunland, Charlie speaking.’’ Lindsey asked this individual,
later identified as Charlie Zent, whether the Company was
hiring boilermakers or welders. She replied affirmatively, and
told Lindsey to come to the jobsite and file an application
on July 5.
Lindsey went there on that date, together with Willie Cov-
ington and David Redmond. They walked in together, and
Charlie Zent informed him that the Company was hiring. She
gave them employment application forms, which they filled
out together, Lindsey assisting Redmond with his application.
All three applications showed the union affiliation of the ap-
plicant.45 After making copies, the applicants returned the
applications to Zent. She looked at them, and then said that
the Company was not hiring at the moment. There were
about 15 other applicants in the trailer, and one of them in-
formed Lindsey that he had been hired. After leaving the
trailer, the applicants had a conversation with Ricky Hanna,
who was identified by Lindsey as a pipefitter foreman at the
Columbus jobsite. Hanna asked whether they wanted to
work, and said that the Company was hiring welders and fit-
ters. On receiving an expression of interest from the three
applicants, Hanna said that he would go into the trailer to
get his supervisor’s permission to hire them. He returned
about 15 minutes later and said that the Company was not
hiring anybody that day. Lindsey’s testimony is
uncontradicted and is credited.46
Jerome Durning and his foster-brother, William D.
Hammons, filed applications on the same day, July 5,
1989.47 According to Durning, they drove to the jobsite in
a 1985 Ford Crown Victoria, with union stickers on the front
and back bumpers. After they filed and left the trailer, ac-
694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
48 G.C. Exh. 35.
49 Respondent does not challenge the authenticity of Hammons’ or
Durning’s applications. R. Br. p. 4.
50 Farrell Alford, Joseph Faulk, Robert Burns, Larry Castille, Jeff
McCrory, and John Kelly, G.C. Exhs. 45–50.
51 G.C. Exh. 44.
52 R. B. pp. 5–6.
53 G.C. Exh. 58.
54 Respondent’s manager of human resources, Ronald Colley, testi-
fied that Kuntz received applications, rejected those which he con-
sidered worthless, and took the remainder to the job superintendent
with a statement that they were good applicants. In many instances,
the superintendent acted on those recommendations. Colley agreed
that Kuntz effectively recommended hiring, and I conclude that he
was a supervisor within the meaning of the Act.
55 G.C. Exhs. 59–59/7: Roy H. Chaney, Clarence Moore, Marlin
Little, Jean Robertson, Robert B. Kelley, Jason Kobeck, Allen
Barnett, and Robert Moore.
56 R. Br., p. 6.
57 See sec. II,(D), supra.
58 The complaint in Cases 15–CA–11155–1, 15–CA–11155–2, and
15–CA–11182 does not list Lindsey as an employee who was
discriminatorily denied employment. G.C. Exh. 1(z). However, the
complaint in Case 15–CA–11124 alleges that Lindsey, together with
Edwards, was unlawfully discharged. G.C. Exh. 1(gg) suffix B.
59 Respondent considers it significant that Lindsey chose Edwards
rather than some other boilermaker residing closer to the jobsite, and
that Edwards flew to Birmingham and thereafter rented a car to get
to Columbus rather than using his own vehicle. R. Br. pp. 48–49.
Edwards testified that he had discretion on whether to use his own
car or rent a vehicle, and that he utilized either means on occasion.
cording to Durning, Hammons said that he wanted to return
to the trailer to ‘‘put union on the papers.’’ Hammon’s appli-
cation indicates union membership.48
Durning remained seated in the automobile. As he was
doing so, an individual whom Durning identified as the of-
fice manager—who had previously directed them into the
trailer—came out with other persons and looked at the car
in which Durning was sitting. I credit his uncontradicted tes-
timony.49
2. The applications mailed by Assistant Business
Manager John Kelly
Assistant Business Manager Kelly testified that he re-
ceived employment applications from five union members,
which indicate union affiliation, and mailed them to the Co-
lumbus jobsite together with his own application. All are
dated in early September, are similar in appearance to the
other applications, and state that the applicant was a union
organizer.50 The return receipt card shows the Union as the
sender, and Respondent’s receipt dated September 11,
1989.51
Respondent argues that Kelly’s testimony constitutes insuf-
ficient authentication of these applications.52 I reject this ar-
gument for the reasons explicated in section II(D), supra.
3. Applications submitted by International Organizer
William Elrod
International Organizer Elrod testified that he personally
applied for employment at Columbus on July 5, and sub-
mitted his application53 to Respondent’s jobsite personnel
manager, Don Kuntz.54 All the jobs which Elrod listed in his
employment history were union jobs. Kuntz commented fa-
vorably on Elrod’s work history, and said that he would put
the application on file and let Elrod know if the Company
needed anybody.
When Elrod left the trailer, he picked up several applica-
tion forms. A few days later, he addressed a union meeting,
distributed application forms, and suggested that members fill
them out. Eight of the members did so, and returned the
completed applications to Elrod.55 They are similar in ap-
pearance to the other applications and state that the applicant
was a volunteer union organzier. On September 12, Elrod re-
turned to the jobsite with Union Business Manager E. S.
Bridges. He obtained an interview with Kuntz, introduced
himself as a Boilermakers International representative and
Bridges as a business agent, and handed Kuntz the applica-
tions. After causing them to be stamped, Kuntz said that the
Company accepted all applications, and that he would file
them. Elrod offered to supply the Company with boiler-
makers and pipefitters, but Kuntz replied that the Company
was laying off employees.
Respondent argues that Elrod’s identification of these ap-
plications is inadequate because ‘‘there is no evidence that
he observed their execution or even knew these applicants at
all.’’56 On the contrary, Elrod’s testimony that he distributed
application blanks to individuals at a union meeting, and re-
ceived the completed forms back from such individuals con-
stitutes prima facie evidence of the validity of the applica-
tions. Respondent has not submitted any evidence to the con-
trary.57
4. Summary
It is undisputed that none of the foregoing applicants, ex-
cept Thomas Lindsey, was hired at the Columbus jobsite. As
indicated hereinafter, Lindsey late submitted a new applica-
tion, together with Barry Edwards, and was fired a few days
later.58
B. The Alleged 8(a)(3) and (1) Violations
1. The hiring of Lindsey and Edwards
As set forth above, the complaints pertaining to the Co-
lumbus jobsite as amended at the hearing allege that Re-
spondent discriminatorily refused to hire or consider hiring
the applicants listed above, unlawfully discharged Thomas
Lindsey and Barry Edwards, and thereafter refused to employ
them. The complaints also allege that the Company violated
Section 8(a)(1) of the Act by telling employees that it would
not hire employees who were members of or organizers for
the Union, by threatening employees with discharge because
they were engaging in union activities, and by promulgating
and enforcing a rule prohibiting the wearing of badges other
than company employee badges.
Lindsey received a call from Charlie Zent on the morning
of August 24, asking him whether he wanted to go to work
at the Columbus jobsite the following Monday as a welder
for Carl Aldridge. Lindsey replied affirmatively, and Zent
told him to bring a friend. Lindsey called Barry Edwards, a
Boilermakers International representative residing in North
Carolina, and the latter agreed to apply with Lindsey at Co-
lumbus.59 Edwards testified that he had previously submitted
695SUNLAND CONSTRUCTION CO.
60 G.C. Exhs. 39, 52.
61 The pleadings establish that Aldridge was a supervisor within
the meaning of the Act. G.C. Exhs. 1(p), 1(u).
62 The pleadings establish that Hollis was a supervisor within the
meaning of the Act. Ibid. G.C. Exhs. 1(p), 1(u).
63 G.C. Exh. 40. The rules also provide for discipline in the event
of violation. Lindsey and Edwards signed receipts for copies of the
rules.
64 The pleadings establish that Yokum was a supervisor within the
meaning of the Act. G.C. Exhs. 1(p), 1(u).
65 The line of demarcation between working and nonworking areas
was called a ‘‘time alley,’’ where the timeclock was located, or
Continued
an application for work at Columbus in mid-August, indi-
cating his union affiliation, but had not been hired.
Lindsey and Edwards arrived at the Columbus jobsite
early in the morning on August 28. They spoke with Charlie
Zent, who had a list with names on it including Lindsey’s.
Zent told Lindsey and Edwards that she could not find
Lindsey’s original application, and asked both of them to fill
out new applications. They did so, and indicated thereon
their union affiliation.60
Lindsey and Edwards returned the completed applications
to Zent, who escorted them into the office of Pipe Fitters Su-
perintendent Carl Aldridge.61 According to the consistent and
uncontradicted testimonies of Lindsey and Edwards, Aldridge
told them that he would like to hire them, but that they had
‘‘one big strike’’ against them—they were ‘‘union and union
organizers at that.’’ ‘‘You are not going to put a picket line
up against me?’’ Aldridge inquired. Edwards replied that he
would not give up that right. Aldridge took Lindsey and Ed-
wards to Personnel Manager Don Kuntz, who refused to ac-
cept the papers and told Aldridge to refer the matter to
Project Superintendent Charles Elkins. Lindsey and Edwards
were asked to stop outside the trailer. According to Edwards,
the windows were shut but the door was opened intermit-
tently. Edwards testified without contradiction that he over-
heard either Aldridge or Kuntz ‘‘raising the devil with Char-
lie [Zent].’’ Remarks overheard by Edwards were: ‘‘Who
called those guys anyway? We don’t want that kind of peo-
ple on the job.’’
After Lindsey and Edwards had waited for about 2 hours,
Charlie Zent came out and told them that they had to take
a drug screening test. They did so, and were told that they
had passed the test.
Lindsey testified that there were other job applicants who
underwent the drug test at the same time that he and Ed-
wards did so, and that some of these were working by the
end of the day. Edwards and Lindsey were told to report
back the next morning for a ‘‘tube [welding] test.’’
They arrived early the next morning and reported to the
welding technician, named ‘‘Larry.’’ He gave them ‘‘cou-
pons’’ for a ‘‘two-inch tube’’ test, and they started preparing
the equipment for testing. As they were doing this, Boiler-
makers Superintendent Raymond Hollis,62 Project Super-
intendent Charles Elkins, and another individual came up and
spoke to Larry for a few moments. Larry then came and told
the applicants that they had to take a ‘‘six-inch pipe’’ test
instead of a ‘‘tube test.’’ Larry said that they must be impor-
tant, because the managers were ‘‘upset,’’ and he had never
seen anybody come from ‘‘the front’’ before to check on
welders. Lindsey and Edwards finished the tests at about
noon. Larry said that the tests ‘‘went good.’’ Lindsey and
Edwards were told that the test would be X-rayed that
evening, and were instructed to report back the next morning.
The two were interviewed separately the following morn-
ing. Edwards went in first. Although he was uncertain wheth-
er he was interviewed by Aldridge or Kuntz, Lindsey’s testi-
mony establishes that it was Kuntz. The latter told Edwards
that there was a ‘‘discrepancy’’ on his test. Edwards replied
that Larry had said the tests were good, and asked to see the
‘‘coupons.’’ Kuntz said that it did not matter, and offered
him a job as a rigger or fitter. Edwards accepted.
Lindsey was then called in by Kuntz, told that he had
passed the 6-inch pipe test, and asked whether he wanted to
take a 2-inch tube test. Lindsey inquired whether he would
be paid for taking the test, and, on receiving a negative an-
swer, declined on the ground that he had already passed a
test.
2. The safety meeting
Charlie Zent gave Lindsey and Edwards company em-
ployee buttons, hardhats, and safety glasses. They attended
an indoctrination and safety meeting run by Safety Super-
visor Ron Moore and were given copies of the Company’s
safety rules, which contained the following provision:
45. Badges worn on employee person [sic], other than
company employee badge, are not allowed.63
Lindsey testified that he asked Moore whether the Com-
pany button which he was wearing was ‘‘unsafe.’’ According
to Lindsey, Moore replied, ‘‘No button you wear is unsafe.’’
Edwards corroborated Lindsey.
Moore testified and denied that any employee ever asked
him a question about the safety of buttons, although he ac-
knowledged that he might have given advice on where to
wear one. Asked on cross-examination why the wearing of
a company button was safe, while another was unsafe, Moore
replied: ‘‘I’m not going to attempt to explain it to you.’’ Re-
peated questions on this subject resulted in equivocal an-
swers, ending in the general position that Moore was not the
author of the Company’s rules. I credit Lindsey and Ed-
wards, who were more reliable witnesses.
Lindsey and Edwards worked the remainder of the day.
Edwards received praise from Rigger Foreman Fisher for
pointing out safety hazards.
3. Lindsey’s and Edwards’ union activities and
terminations
a. Summary of the evidence
Lindsey and Edwards returned to the jobsite the next
morning about half an hour before the beginning time of 6
a.m. On this occasion, they wore Boilermakers organizing
buttons in addition to their Sunland employee buttons, and
began passing out union literature in the parking lot to in-
coming employees, including Boilermakers General Foreman
Joe Yokum.64 The latter asked, ‘‘What kind of goddamned
garbage is this?’’ according to Edwards corroborated by
Lindsey. Edwards replied that it was a union organizing doc-
ument. Yokum responded: ‘‘You two son of a bitches are
fired if you all punch through that ‘‘time alley.’’65 Yokum
696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
‘‘brass alley,’’ referring to the practice of some contractors of giving
brass identification numbers to employees.
66 Hollis was a supervisor. Supra, fn. 62.
67 G.C. Exh. 41.
68 G.C. Exh. 53.
69 G.C. Exh. 40.
went through the ‘‘time alley.’’ According to Edwards, cor-
roborated by Lindsey, Yokum was ‘‘raising the devil with all
kinds of people that was coming in with papers [union lit-
erature].’’ He called them ‘‘stupid sons of a bitches,’’ and
said that they could be fired for that, that Lindsey and Ed-
wards were already fired, and that there could be a picket
line on the job in the morning. This lasted for about 10 min-
utes according to Edwards.
A few minutes before 6 a.m., Lindsey and Edwards re-
turned the undelivered union literature to their car, went
through the time alley, and punched the timeclock, still wear-
ing both the Sunland and Boilermakers badges. Yokum was
on the other side, and told them that they were fired and
were to go to the front office and pick up their money.
‘‘Who are you?’’ asked Edwards. ‘‘I am your goddamned
boss,’’ Yokum replied.
Yokum then took Lindsey and Edwards to the office of
Boilermakers Superintendent Raymond Hollis,66 left them on
the porch, went into the trailer, and emerged with Hollis and
another supervisor. According to Edwards, corroborated by
Lindsey, Hollis asked what it was all about, and Yokum told
him that the two were ‘‘being terminated at the clock alley.’’
Hollis pointed at Lindsey’s Boilermakers badge and said that
he had signed a paper to the effect that he could not wear
such a badge. When Lindsey and Edwards said that they did
not recall this, Hollis went into the office and returned with
a copy of the work rules signed by the employees. He asked
them to remove the Boilermakers badges. Edwards, with
Yokum standing beside him, replied that it would not do any
good to remove the badge since he had already been fired.
Lindsey also refused. Hollis told the two that they had been
terminated, and they were given termination notices.
Lindsey’s states that the reason was refusal to follow com-
pany policy and to remove an unauthorized badge,67 while
Edwards’ gives no reason.68 Edwards affirmed that he had
a conversation with Yokum when the two were being proc-
essed out, in which Yokum said that the rigger foreman had
stated that Edwards was a good worker.
Edwards testified that he saw other employees wearing
badges, stickers, decals, or other insignia on their persons,
with messages such as ‘‘Chiquita Bananas,’’ ‘‘Harley-David-
son,’’ ‘‘Let Those Who Ride Decide,’’ and others.
The Company’s safety rules require the wearing of hard-
hats and safety glasses ‘‘while on the construction site.’’69
Boilermakers Superintendent Hollis transported Lindsey and
Edwards to the toolroom during the processing. He was not
wearing a hardhat or safety glasses. Edwards brought this to
his attention, and Hollis replied that he was ‘‘in a truck.’’
However, according to Edwards, when they arrived at the
tool room, Hollis got out of the truck, still without a hard
hat or safety glasses.
Respondent presented three witnesses on these events.
Yokum testified that the Columbus job was his first with the
Company, and that he had ‘‘heard’’ about union organizers
causing trouble. Prior to the day of the terminations, Hollis
informed Yokum that Lindsey and Edwards were organizers,
and told him to ‘‘keep an eye’’ on them. Yokum agreed that
he saw Lindsey and Edwards distributing literature in the
parking lot. He contended that he merely told them that they
could not wear their Boilermakers badges when they came
through the time alley. Yokum claimed that he did not re-
member whether they attempted to hand him any literature,
but conceded that they might have done so. He could not re-
member whether he spoke to other employees who received
the literature. Yokum denied that he was irritated or raised
his voice. When Lindsey and Alley came through the time
alley still wearing their Boilermakers badges, Yokum merely
told them that they ‘‘could be’’ fired, and took them to Hol-
lis.
Yokum testified that the rule against badges other than
company badges ‘‘came out of corporate,’’ and that he was
sure that it was not concerned with safety. Employees do put
various stickers on their hardhats. Yokum, who was still em-
ployed by Respondent at the time of the hearing, stated that
he did not know of any other instance when an employee
was discharged for refusing to remove an unauthorized
badge.
Hollis testified that he knew Lindsey was a union orga-
nizer from the St. Francisville job, and that he, Hollis, had
informed Yokum before the terminations that both employees
were union organizers. He contended that he did not recall
telling Yokum to ‘‘keep and eye on them.’’ Hollis confirmed
the substance of Lindsey’s and Edwards’ account of the ter-
minations, except that it was another supervisor who dis-
charged Edwards.
Hollis testified on direct examination that no employee
had ever worn a badge other than a company badge and, ac-
cordingly, that none had ever been previously discharged for
this reason. On cross-examination, Hollis conceded that he
had been involved in the St. Francisville project, that he
knew that Lindsey, Willie Covington, Kenneth Davis, and
David Felter were union organizers on that job and that they
wore Boilermaker badges the whole time they worked there.
Accordingly, Hollis agreed, if there was any such rule at St.
Francisville, it was not enforced. As noted, Yokum testified
that the rule ‘‘came out of corporate.’’
Hollis further stated that a sticker over a hardhat involves
safety because it could cover defects in the hat. He agreed
that failure to wear a hardhat was more unsafe than the wear-
ing of a button. Hollis also conceded that one of the dis-
charged employees pointed out that he himself was not wear-
ing a hardhat, and stated that he received a ‘‘safety viola-
tion’’ notice because of this. According to Hollis, the safety
supervisor could have discharged him for this violation, but
did not do so. Hollis contended that an entire rigging crew
had quit over a T-shirt dispute and incorrect wearing of hard-
hats.
Safety Supervisor Ron Moore testified that Hollis reported
to Moore that he had failed to wear a hardhat in a required
area, and that Moore issued a safety violation notice to Hol-
lis.
b. Factual analysis
Respondent argues that Lindsey and Edwards were ‘‘sea-
soned union organizers who obviously attempted to get hired
at the Columbus site merely to be fired almost immediately,
in order to file charges against Sunland. As a result, they are
apt to make any comment imaginable in order to bolster their
697SUNLAND CONSTRUCTION CO.
70 R. Br. p. 48. In support of this argument, Respondent cites M
& W Marine Ways, 165 NLRB 191 (1967). This citation does not
support the Company’s general attack on the credibility of union or-
ganizers. Although the Trial Examiner did not credit a union orga-
nizer, he spelled out various characteristics of the witness, not his
status as an organizer, which led to the Trial Examiner’s conclusion.
Id. at 193.
71 I deny the General Counsel’s and the Charging Party’s motion
to strike the testimonies of Yokum and Hollis because they read
transcripts of Lindsey’s and Edwards’ testimonies before giving their
own. Instead, I consider such reading as a factor diminishing their
credibility. See discussion, sec. II,(B),(2), supra.
72 G.C. Exhs. 54, 55–1 through 55–48. App. D, Rodney E. Allison
through Thomas D. Wooten.
73 The pleadings establish that Land was a supervisor within the
meaning of the Act. G.C. Exhs. 1(hh), 1(jj).
74 G.C. Exh. 56.
75 Rodney E. Allison, Donald Blackwell, Frank R. Brown, William
R. Cason, Danny L. Castro, Donald Ray Hensely, Donnie R. Jones,
Wayne E. Smith, Mark D. Tucker, and Thomas D. Wooten. G.C.
Exhs. 57/1–3, 5–6, 11–12, 12, 18–19. 76 App. D, Ronald R. Brown
through Arvil Tucker, inclusive. G.C. Exhs. 57/4, 7–10, 13, 15–17.
76 Two applications that did not contain this statement declared
that the applicant was a graduate of a union apprenticeship training
program (G.C. Exhs. 55/9, 55/13), while the third (G.C. Exh. 55/28)
was included in the group of union applications.
77 G.C. Exh. 61.
78 G.C. Exh. 61.
case.’’70 There is no evidence to support this speculation.
Lindsey testified without contradiction that he wanted to
work at the Columbus project until it was completed, while
Edwards affirmed that one of the ways to organize is to be-
come hired and attempt to gain union adherents while em-
ployed.
On the other hand, Yokum and Hollis admitted that they
read the transcripts of Lindsey’s and Edwards’ testimonies
before giving their own. Yokum did not deny that Lindsey
and Edwards attempted to give him union literature in the
parking lot. The latter were believable witnesses, despite the
Company’s attack on their credibility, and I accept their testi-
mony that they did give Yokum union literature and that he
asked: ‘‘What kind of goddamned garbage is this?’’ When
Edwards replied that it was union organizing material,
Yokum stated: ‘‘You two son of a bitches are fired if you
all punch through that time alley.’’
Yokum also failed to deny that he spoke to other employ-
ees who had received union literature from Lindsey and Ed-
wards. I credit the testimonies of the latter that Yokum did
so, called such employees ‘‘stupid son of a bitches,’’ and
said that they could be fired for reading the literature, that
Lindsey and Edwards were already fired, and that there could
be a picket line on the job.
I credit Lindsey’s and Edwards’ testimonies that, when
they walked through the time alley, Yokum said that he was
their ‘‘goddamned boss,’’ and that they were fired and were
to go to the front office to get their money. This is consistent
with Edwards’ later statement to Hollis, with Yokum stand-
ing beside him, that he had already been fired.
Based on Safety Supervisor Moore’s inability to explain
why a company badge was safe while others were unsafe,
and Yokum’s admission that the ‘‘corporate’’ policy against
badges other than company badges had nothing to do with
safety, I conclude that Lindsey’s and Edwards’ wearing of
Boilermakers badges had nothing to do with that subject. I
accept Hollis’ admission that failure to wear a hardhat was
more unsafe than the wearing of a badge.
I credit Edwards’ testimony that he saw employees at the
jobsite with various stickers on their hardhats, and Hollis’
admission that such practice involved a safety factor. I note
that union organizers wore Boilermakers badges at St.
Francisville, that the ‘‘corporate’’ policy against such prac-
tice was not enforced there, and that Respondent’s witnesses
were unable to cite any other instances of employee dis-
charge for wearing a noncompany badge. It is undisputed
that Hollis himself violated a safety rule by not wearing a
hardhat while driving Lindsey and Edwards to the toolroom
at the Columbus jobsite. His receipt of a ‘‘write-up’’ for this
offense was mere window dressing.71
IV. THE ALLEGED UNFAIR LABOR PRACTICES
AT ASHDOWN
A. The applications
1. Summary of the evidence
Arvil Tucker, the business manager for the Union’s Arkan-
sas local (Local 69), obtained Sunland application forms
from International Representative William Elrod. He testified
that 80 of his members were then unemployed and that he
gave application blanks to the members. Some filed them at
the union hall, while some completed them at home. Tucker
affirmed that he knew each member and his address, based
on social visits and the fact that he referred them to jobs. He
received back from these individuals 48 employment applica-
tions with Sunland and made a list.72 The list matches the
applications. Each application shows that the applicant was
a volunteer union organizer, and is similar to other applica-
tions in this case.
On October 13, Tucker went to the Ashdown jobsite and
spoke with Boilermakers Superintendent Jimmy P. Land.73
Tucker introduced himself as the Union’s business manager
for Arkansas, and handed the applications to Land. He said
that they were good boilermakers, that they had just finished
a job similar to the one Land was about to start, and that
he would appreciate Land’s hiring them. Land replied that he
normally brought his own crew, but that he would consider
each application. Some of these applications were later re-
turned to the applicant together with a letter stating that the
applicant must personally present himself for an interview
and possible testing.74
On November 15 1989, Business Manager Tucker, Inter-
national Representative Elrod, another International rep-
resentative, and 18 union members visited the jobsite. Tucker
and the union members submitted employment applications,
which Tucker identified. Tucker had previously submitted
applications for nine of these individuals on October 13,75
while the remaining applications were new.76 Each of these
applications contained indicia of union membership, usually
a statement that the applicant was a volunteer union orga-
nizer.77
Bobby Woodall missed the bus that took these applicants
on November 15, but went to the jobsite himself on that
date. He had prepared an application which stated that he
was a volunteer union organizer,78 and gave it to the woman
at the reception desk. Woodall then went to the reception
area, where he shook hands and engaged in conversation
698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
79 G.C. Exh. 62.
80 G.C. Exh. 60.
81 G.C. Exhs. 53, 64, 66.
82 G.C. Exh. 56.
83 Arvil Tucker, William Elrod, Bobby Woodall, Charles Malcom,
and Danny Parker. R. Br. p. 3.
84 Id. at 6.
85 The complaint in Case 26–CA–13805 (15–CA–11266), dated
May 5, 1990, alleges that Charlton and other alleged supervisors
‘‘are now and have been at all material times herein’’ supervisors
and agents of Respondent. The answer to the complaint admits the
truth of this averment. G.C. Exhs. 1(hh), 1(jj).
86 G.C. Exh. 56.
87 The General Counsel and the Charging Party were provided at
the hearing with copies of the Board’s decision in Patrick Cudahy,
and were provided an opportunity to argue that it was inapplicable
to the facts in this case. After my ruling sustaining Respondent’s ob-
jection, the parties were given time to request a special appeal to
the Board on the ruling. None was filed.
with an individual whom he identified as the ‘‘project man-
ager.’’ The woman who had taken his application showed it
to this individual. According to Woodall, his ‘‘attitude
changed.’’ The woman told Woodall that he had an incorrect
date on his application. He offered to correct it or prepare
a new application, but she went back to the office carrying
his application. About 2 weeks later, Woodall received a let-
ter from the Company referring to the application which had
been ‘‘left’’ at the jobsite. No applications were then being
taken, but Woodall was ‘‘encouraged’’ ‘‘to personally
make’’ an application.79
When Woodall left the trailer, a man was putting up a sign
to the effect that the Company was not receiving any more
applications.
Four days later, on October 19, Elrod submitted an appli-
cation.80 On the following day, October 20, Elrod and three
prior applicants—Charles Malcom, Bobby Woodall, and
Danny Parker—went to the jobsite. These three had new ap-
plications, which they attempted to submit. Each application
stated that the applicant was a volunteer union organizer.81
Malcom testified that he attempted to submit his application
at the personnel office, but that the woman who spoke to
him stated that the Company was not receiving applications.
Malcom told the woman that he had received a letter saying
that he had to apply in person. She denied that she had sent
any such letter, and Malcom then showed her the one he had
received saying that he had to apply at a Sunland jobsite.82
The woman showed it to two other individuals, and returned
with the statement that the Company was ‘‘still not hiring.’’
Malcom asked to sign a roster, and the woman replied that
they did not have a roster. Malcom was corroborated by
Woodall and Parker, who testified that there was a sign out-
side the trailer stating that the Company was not receiving
applications until further notice.
2. Respondent’s position on the applications
The Company does not dispute the authenticity of five ap-
plications.83 However, it challenges the remainder on the
ground that Tucker ‘‘never testified as to how he received
the applications, whether he observed them being filled out,
or whether he could recognize or authenticate the signatures
on them.’’ The Company also contends that its records show
that some of the applicants were then employed, and that
Tucker’s testimony that they were unemployed is inac-
curate.84 Neither argument has merit. Tucker’s testimony as
to the circumstances of his receipt of the applications is suf-
ficiently detailed to constitute prima facie evidence of their
authenticity. That he may have been mistaken as to the em-
ployment status of some of them at the time—in the con-
stantly changing job environment of the construction indus-
try—does not detract from his identification of the applica-
tions.
B. Respondent’s Reaction to the Ashdown Applications
1. Summary of the evidence
a. Testimony of Human Resources Manager Colley
Evidence of Respondent’s reaction to the Ashdown appli-
cations is found principally in the testimonies of Respond-
ent’s manager of human resources Ronald W. Colley, and
International Representative William Elrod. Respondent ob-
jected to receipt of portions of the testimonies of both wit-
nesses.
Colley testified that Respondent became aware that the
Union had ‘‘targeted’’ the Ashdown job, as well as those at
Bogalusa and Columbus. He further stated that Ashdown
Project Superintendent Wayne Charlton85 ‘‘advised him as to
what was happening’’ after the receipt of the applications
from union members, and requested advice.
As set forth above, Respondent sent letters to at least some
of the applicants advising them as to Respondent’s applica-
tion procedure. One of these letters, signed by Colley and
dated October 27, 1989, is in evidence. The address is Re-
spondent’s Houston headquarters, and the letter states that
the Company had ‘‘received’’ the applicant’s application, and
gave advice.86
Colley testified that he and company counsel went to the
Ashdown jobsite for the purpose of telling Charlton how the
Company expected him to react to ‘‘any type of mass appli-
cation procedures.’’ Respondent objected to further testimony
from Colley on this subject on the ground that it was barred
by the attorney-client privilege, which counsel asserted.
Colley was then asked the ‘‘subject’’ of the meeting, but was
directed to exclude from is answer anything said by him or
by counsel. He replied: ‘‘How Sunland expected Mr.
Charlton to react . . . to any type of union—or any type of
mass application procedures.’’ After further colloquy among
the parties and questioning of Colley, the General Counsel
inquired as to what it was that Colley had asked counsel.
Colley replied, ‘‘Essentially, how to proceed within the law
on this subject.’’ I then sustained Respondent’s objection on
the authority of Patrick Cudahy, 288 NLRB 968 (1988).87
b. Testimony of International Representative
William Elrod
Subsequent to Colley’s testimony, the General Counsel
elicited testimony from International Representative Elrod
with respect to conversations he had with Wayne Charlton.
Respondent objected on the ground that the testimony vio-
lated the attorney-client privilege, and that it was hearsay.
Elrod affirmed that he had two conversations with
Charlton, the first one on the telephone on November 30,
699SUNLAND CONSTRUCTION CO.
88 As indicated, the pleadings state that Charlton was the Ashdown
project superintendent and a supervisor at ‘‘all material times here-
in.’’ Supra, fn. 85.
89 Respondent argued that the testimony violated the attorney-cli-
ent privilege, and that Charlton was an ex-supervisor at the time of
his asserted statement. The General Counsel contended that Re-
spondent had waived the privilege by Charlton’s statement to Elrod,
and that the Company’s second argument was frivolous. There was
no motion to strike Elrod’s last answer.
90 Respondent was invited to request permission to file a special
appeal from my ruling. None was filed.
91 Respondent cites Commodity Future Trading Commission v.
Weintraub, 741 U.S. 343, 348–349 (1985), and Chronicle Publishing
Co. v. Hantzis, 732 F.Supp. 270 (D. Mass. 1990), appeal dismissed
902 F.2d 1028 (1st Cir. 1990). R. Br. p. 32.
92 C.P. Br. pp. 86–87.
1989, and the second in person on December 2, 1989. Elrod
testified that Charlton had been discharged by Respondent
prior to the first conversation.88
Elrod testified that during the first conversation, he intro-
duced himself as a union agent, and asked Charlton what Re-
spondent had done with the applications submitted at
Ashdown. Charlton replied that he spoke to Human Re-
sources Manager Colley, and that the latter told him to send
the applications to the central office in Houston.
The General Counsel asked, ‘‘What happened after that?’’
Elrod replied that Charlton said: ‘‘Shortly thereafter, Mr.
Colley and Mr. Gover [company counsel] came to Ashdown,
Arkansas, and went over how to get around hiring these ap-
plicants.’’
Company counsel objected at that point, and extensive ar-
gument took place at the hearing.89 I overruled the objection
and received the testimony conditionally, subject to persua-
sive argument to the contrary in the briefs.90
After this extended colloquy, the General Counsel’s ques-
tions and Elrod’s answers, as relevant, are as follows:
Q. So you had a phone conversation with Mr.
Charlton in which he was relating a meeting that was
attended by himself, Mr. Gover and Mr. Colley?
A. That’s correct.
Q. Now, did Mr. Charlton tell you whether or not
after that meeting, applications were handled in a dif-
ferent fashion than they had been prior to that meeting?
A. Yes, they were.
Q. What did he say?
A. He said the first thing they had to do was to start
filing every application, get a duplicate of it, an file it.
Not to accept any more back by mail. They had to gen-
erate a computer read-out and had to bring in all the
supervision off the job and have him write out beside
it their name out beside the people they knew person-
ally on the jobsite.
Q. After this phone conversation, did you in fact
journey to meet with Mr. Charlton face to face:
A. Yes, sir. On 12/2. It was a Sunday. . . .
Q. Tell the Judge what he said in this conversation.
A. He basically said that till the meeting between
Mr. Gover and Mr. Colley, that they had an open-door
policy concerning hiring. That he knew of no hiring
rules or regulations whatsoever. He had sent out appli-
cations . . . by mail and had them returned. He had
opened them up and put them in a file, and he knew
they accepted applications that away . . . .
He said prior to that it was an open-door policy and
that once they generated the computer list and each su-
pervisor went out and signed the ones they knew, from
then on he was restricted as to the applications that—
I don’t know really how to really phrase this. He felt
like he was . . . hamstrung on the way he could hire
people, from that point on.
Questioned by union counsel, Elrod testified:
Q. You used the term ‘‘hamstrung’’ and you talked
about an ‘‘open-door policy.’’ Did Mr. Charlton tell
you what the change in the hiring policy was?
A. Yes sir, he did.
Q. What was that?
A. First of all, they had to start keeping a copy of
every application. They had to have something about a
contact form. I don’t know what that is.
And they would have to monitor who was on the
jobsite and for them to only hire people that were
known to their supervision. I don’t know the definition
of ‘‘known to their supervision,’’ but they had to be
known to them on the jobsite.
Q. Was there any reference to hiring prior employ-
ees?
A. Yes. He said that part of their policy would be
to hire prior employees and ones known to supervision.
Q. Did Mr. Charlton say whether or not he ever got
that policy in writing?
A. He did not say it to me; no, sir.
2. Legal analysis
a. The asserted attorney-client privilege
(1) Positions of the parties
Respondent notes my ruling prohibiting questions to
Colley concerning advice from counsel on ‘‘how to proceed
in this matter,’’ on the ground that this was protected by the
privilege, and argues that Charlton, as a former employee,
could not waive the privilege.91
The Charging Party argues that the Board’s decision in
Patrick Cudahy, supra, is inapposite. Cudahy, it is contended,
involved the need for protection of privacy with respect to
the development of bargaining strategies. The Charging Party
argues that such concerns are not in issue in this proceeding.
‘‘What is at issue is advice from counsel as to how to avoid
hiring union applicants in order to frustrate a union orga-
nizing campaign . . . . This is not simply advice as to how
to take a ‘hard bargaining’ position at the table. This is
advicse as to how to accomplish what the Act forbids.
Charging Party submits that, regardless of whether it is char-
acterized as a crime or fraud, the attorney-client privilege
was never intended to shield such unlawful conduct.’’92
(2) Legal analysis
It is well established that the attorney-client privilege pro-
tects disclosure of communications, not the facts underlying
those communications. The Supreme Court has stated:
700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
93 Accord: Wigmore, Evidence, § 2306 et seq. (McNaughton rev.,
1961).
94 Because of my conclusion, I consider it unnecessary to pass on
Respondent’s argument that Charlton could not waive the privilege,
or the Charging Party’s contention that Patrick Cudahy is inappli-
cable to the facts in this case.
95 R. Br. pp. 33–38.
96 Accord: Passaic Daily News v. NLRB, 736 F.2d 1543, 1554, fn.
15 (D.C. Cir. 1984), remanding on other grounds 266 NLRB 898
(1983). 97 G.C. Exh. 56.
[T]he protection of the privilege extends only to com-
munications and not to facts. A fact is one thing and
a communication concerning that fact is an entirely dif-
ferent thing. The client cannot be compelled to answer
the question, ‘‘What did you say or write to the attor-
ney?’’ but may not refuse to disclose any relevant fact
within his knowledge merely because he incorporated a
statement of such fact into his communication to his at-
torney. . . . [Upjohn Co. v. U.S., 449 U.S. 383, 396,
397 (1981).]93
The testimony elicited from Elrod after Respondent’s ob-
jection dealt with Charlton’s statements as to matters within
Charlton’s own knowledge, not advice that he or Colley re-
ceived from counsel. Even his first answer, in response to an
innocuous question from the General Counsel—that Colley
and company counsel ‘‘went over how to get around hiring
these applicants’’—does not specifically attribute that pur-
pose to counsel or to Respondent’s human resources man-
ager. Elrod’s testimony regarding Charlton’s statements is
thus significantly different from the testimony sought to be
elicited from Colley on the advice he asked from counsel on
how to proceed ‘‘within the law.’’
For this reason I conclude that Elrod’s testimony con-
cerning Charlton’s statements to him is not barred by the at-
torney-client privilege.94
b. The hearsay issue
Respondent further argues that Elrod’s testimony con-
cerning statements made to him by Charlton is inadmissible
hearsay under the Federal Rules of Evidence.95
The Act provides that a hearing for the purpose of taking
evidence upon a complaint shall, ‘‘so far as practicable,’’ be
conducted in accordance with the rules of evidence applica-
ble in the district courts of the United States.
The Board’s position on hearsay has been stated as fol-
lows:
Courts have long recognized that hearsay evidence is
admissible before administrative agencies, if rationally
probative in force and if corroborated by something
more than the slightest amount of other evidence. NLRB
v. Imparato Stevedoring Corporation, 250 F.2d 297
(3rd Cir. 1957). The Board jealously guards its discre-
tion to rely on hearsay testimony in the proper cir-
cumstance. Georgetown Holiday Inn, 235 NLRB 485,
fn. 1 (1978). See, generally, Alvin J. Bart and Co., Inc.,
236 NLRB 242 (1978). RJR Communications, Inc., 248
NLRB 920, 921 (1980).96
Elrod’s testimony that Charlton told him that Colley had
instructed Charlton to send the Ashdown applications to the
Company’s central office in Houston is corroborated by
Colley’s letter to Charles Malcom from that address stating
that the Company had ‘‘received’’ his application,97 and by
Colley’s testimony that Elrod informed him as to what was
happening and requested advice. Elrod’s averment that
Charlton told him Colley and company counsel came to
Ashdown is corroborated by Colley’s testimony. Elrod’s fur-
ther affirmation that Charlton told him that the purpose of
the meeting was ‘‘how to get around hiring these applicants’’
is corroborated by Colley’s testimony that the purpose was
to tell Charlton how ‘‘react to any type of union or mass ap-
plication procedures.’’
Elrod’s testimony attributing to Charlton a description of
more stringent hiring procedures after the visit of Colley and
company counsel is corroborated by two of Respondent’s
witnesses. Thus, Colley was asked whether Respondent’s
new hiring policies applied to the Ashdown jobsite. He re-
plied: ‘‘Possibly Ashdown would have had a portion that
would have been governed by both.’’ Randall Casey, the
Company’s boilermaker foreman at Ashdown, denied that
Charlton gave him any specific hiring instructions. Instead,
he was told to ‘‘man the job the best way he could.’’ This
tends to verify Charlton’s statements to Elrod indicating that
hiring policies were not stringent before the visit from Colley
and company counsel, but were tightened up thereafter.
For the reasons given above, I deny Respondent’s objec-
tions to receipt of Elrod’s testimony concerning statements
by Charlton.
c. Factual conclusions
I conclude that Respondent’s hiring procedures were rel-
atively lax at the beginning of the Ashdown job, without any
specific hiring procedures. The Company had knowledge that
the applications described above were from union members
or sympathizers. These applications were sent from Ashdown
to the Company’s headquarters in Houston, and a sign was
placed outside the Ashdown trailer stating that no applica-
tions were being received. The company manager of human
resources and company counsel went to Ashdown for the
purpose of instructing the project manager in ways to avoid
hiring the union applicants. After this visit, Respondent insti-
tuted more stringent hiring procedures at Ashdown. None of
the union applicants was hired.
V. RESPONDENT’S ADDITIONAL DEFENSES
A. The Issue of the Bona Fides of the Applications
1. Summary of the evidence
In addition to its challenge to the authenticity of some of
the applications, considered above, Respondent also contends
that the applicants did not really desire employment with the
Company, and that their applications constituted an attempt
to entrap Respondent into the commission of unfair labor
practices. Accordingly, Respondent argues, the applications
were not bona fide in nature.
There is testimony from 16 applicants who submitted ap-
plications at one of the jobsites that they were unemployed
at the time, of their applications and would have accepted
701SUNLAND CONSTRUCTION CO.
98 Harrell, Overton, Bozeman, Oden, Lea, Clardy, Lafeaux, Himel,
Berry, Greaud, Blackwell, Durning, Hammons, Case, Woodall, and
Parker.
99 Malcom.
100 Harrell, Overton, Oden, Clardy, Himel, Greaud, Blackwell,
Durning, Cason, Woodall, Malcom, and Parker.
101 Respondent argues that the testimony from some of the appli-
cants on this subject is ‘‘unbelievable.’’ The only specific reference
is to Lafeaux’s testimony. R. Br. p. 18.
102 R. Exhs. 4–7.
103 R. Br. p. 19. Respondent cites the cases of ‘‘Ashley, Barber,
Branscum, Burkhart, Burks, Byrd, Carter, Edwards, Gay, Gorman,
Green, Hamonds, Phillips, Tucker, Wiley, and Wooten.’’ As there
were some applicants with the same last name—including those list-
ed—the actual reference in some instances is unclear.
104 Ibid.
105 Ashley, Byrd, Burks, Phillips, and Wiley.
employment if it had been offered,98 while one testified that
he just finished a job.99 Twelve applicants testified that they
had either sought or obtained employment with a nonunion
contractor in the past.100 Union Representatives Simoneaux
and Tucker stated that there was widespread unemployment
among their memberships at the time of the applications.
There is evidence that a perceived duty to the Union
would motivate an individual to accept a job regardless of
his employment status at the time. Thus, Union Representa-
tive John Kelly testified that the Boilermakers constitution
requires every member to assist in organizing he unorga-
nized. Charles Greaud testified that, if the Union attempted
to organize, ‘‘I am a union man. I would have done my
part.’’
Many of the applications contained the legend, ‘‘Volunteer
[or voluntary] Union organizer.’’ Union Representative Elrod
testified that the purpose of the legend was to give the em-
ployer knowledge of the union status of the applicant, so
that, in the event of a discharge, the employer could not
claim lack of knowledge. In addition, Elrod affirmed, the
Union had ‘‘run into cases where they fired our people for
sneaking around, and we don’t sneak around.’’
On cross-examination, William Lafeaux was asked wheth-
er he put the legend on his application in order to make cer-
tain that Sunland did not hire him. Lafeaux denied this pur-
pose, and stated that this legend gave the Company an op-
portunity to check with other contractors about him. He
agreed that ‘‘some’’ contractors would not hire an applicant
with a similar legend, but denied knowledge at the time of
his application that Sunland would not do so. ‘‘I wanted to
go to work,’’ Lafeaux affirmed. ‘‘I needed a job.’’
Charles Greaud was also cross-examined about the same
subject. He gave as the reason the fact that the Company
would learn that he was a union organizer by checking his
listing of other companies where he had worked. Thus,
‘‘Harmony Construction’’ would say, ‘‘He is a good boiler-
maker, but he is also a union organizer.’’ Greaud added: ‘‘If
I wouldn’t have put that on . . . they would have come back
and said, ‘Well, you tried to organize Harmony. You give
them as a reference.’ It is already down there. They already
know. They didn’t have to ask. . . . It is best that they know
it in the front.’’
Many of the applicants testified that they put the legend
on their applications at the suggestion of their business agent,
but did not know the reason.101
Human Resources Manager Colley testified that he pre-
pared summaries of the employment histories of the
Ashdown applicants from records received from the Union
pursuant to subpoena.102 Respondent argues: ‘‘A review . . .
reveals that 17 of the 59 applicants [at Ashdown] were stead-
ily employed prior to, on the date of, and well after the date
of their applications.’’103 ‘‘A cursory review . . . proves that
employment at Sunland was simply not desired.’’104
A noncursory review indicates that most of the applicants
started steady work in the last week of September about the
same time that Tucker submitted their applications. A few
had fairly steady work prior to that time,105 but the remain-
der had either sporadic or no employment in the earlier part
of September. In sum, of the 59 Ashdown applicants, only
about 5 had worked with any regularity in the 3 weeks im-
mediately preceding their applications at Ashdown. There is
no evidence to show that any of the applicants who did work
in the last week had knowledge at the time they signed their
applications that they would be working elsewhere.
Only two union adherents, Lindsey and Edwards at the
Columbus jobsite, were offered employment by Respondent.
Both accepted.
2. Respondent’s position
Respondent argues that only ‘‘employees’’ are entitled to
the protection of the Act. Although an applicant for employ-
ment may be an ‘‘employee,’’ this is not the case when he
does not truly desire employment, but has some ‘‘ulterior
motive.’’ Thus, where an employee who merely seeks to en-
trap the employer into committing an unfair labor practice is
denied employment, no unfair labor practice has been com-
mitted. The individual is not a ‘‘bona fide’’ applicant. The
General Counsel has the burden of proving that the applicant
is in good faith.
‘‘It might be argued that a properly authenticated employ-
ment application carries with it a presumption of validity.’’
However, this cannot be the case with respect to the applica-
tions authenticated by somebody else, since the General
Counsel was offering the documents only to show that they
were signed by the purported signatory. Since the documents
were offered only to authenticate the signatures, there could
be no ‘‘presumption’’ based on them that the applicant ‘‘was
in fact seeking work.’’ The fact that many applications were
mailed is further evidence that such applicants did not want
a job.
Even if the Employer has the burden of showing that the
applicants were ‘‘not sincere,’’ it has met this burden be-
cause the evidence shows that the applications were ‘‘a
veiled attempt to trap Sunland into unfair labor practices.’’
This is established by the fact that five applicants who testi-
fied admitted that they had never worked or applied for work
on a nonunion project. Sunland was a ‘‘targeted’’ employer;
and ‘‘it is surely inconceivable that a person who has never
worked or even previously applied at a nonunion project was
truly interested in an employment opportunity at such a
project . . . .’’ The placement of the term ‘‘voluntary union
organizer’’ on the applications, and the fact that some were
702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
106 R. Br. pp. 13–22. The Company cites NLRB v. Burns, 207 F.2d
434 (8th Cir. 1953), denying enf. 101 NLRB 1181 (1952), and Iron
Workers Local 600, 134 NLRB 301 (1961).
107 101 NLRB 1181 (1952).
108 NLRB v. Burns, supra, fn. 107.
109 Burns & Gillespie, 113 NLRB 434, 435 (1955). Although this
decision was reversed on appeal, the ground was that, in the court’s
opinion, there had been an unwarranted substitution of trial exam-
iners. NLRB v. Burns, 238 F.2d 508 (8th Cir. 1956).
110 Fn. 106, supra.
111 134 NLRB at 307
112 Willmar Electric Service, 303 NLRB 245 fn. 36 (1991); Broad-
cast Employees NABET Local 16, 258 NLRB 504, 508 (1981).
113 During the proceeding, Respondent issued subpoenas duces
tecum to Mississippi and Arkansas unemployment security agencies
requiring the production of records of benefit payments and evidence
of searches for work for approximately 188 alleged discriminatees.
The state agencies filed motions to quash, based on the assertedly
burdensome nature of the subpoenas, the lack of any relationship to
the matter under a investigation, and state law enacted pursuant to
regulations of the Secretary of Labor making such records confiden-
tial. I granted the motions to quash on the ground that the evidence
sought—searches for work with other employers, and payment of
unemployment benefits—was not related to the issue of whether the
applicants’ applications to Respondent were bona fide.
already employed, further demonstrates that employment was
not really desired.106
3. Analysis and conclusions
Neither of the Company’s cited authories supports its posi-
tion. In the original Burns & Gillespie decision,107 the Board
held that the employer had engaged in certain unfair labor
practices. The court of appeals concluded that the trial exam-
iner had erroneously excluded evidence that the applicants
had been sent to the employer to ‘‘make out a . . . viola-
tion,’’ that this constituted competent and material evidence,
and remanded the case to the Board to reopen the pro-
ceedings and consider the evidence. The court did not decide
that such evidence, if received and credited, would be deter-
minative,108 yet it is this decision on which the Respondent
herein relies.
At the reopened hearing in Burns & Gillespie, the Board
concluded that the additional evidence did not refute the
claimants’ statements of their need for work. ‘‘At both the
original and reopened hearings, the Respondents failed to
elicit any evidence to prove that the applicants were aware
of or had knowingly participated in, any scheme to entrap
the Respondents into a violation of the Act, or that they
would not have accepted work if tendered to them.’’109 This
language suggests that it is the employer’s burden to prove
that an offer of employment would not have been accepted.
In Iron Workers Local 600,110 the Board reversed a trial
examiner’s finding that the alleged discriminatees had at-
tempted to entrap the employer. All testified that they were
either unemployed or working at a less desirable job, and
would have accepted jobs if offered. Even if they had known
or suspected that the employer had a discriminatory hiring
policy, ‘‘such knowledge would not render their request for
work mala fide where all evidence indicated that they would
have accepted work if it had been tendered.’’111
The Board has reached the same conclusion in subsequent
cases. Thus, in Lipsey, Inc., 172 NLRB 1535 (1968), the
Board reversed a trial examiner’s conclusion that a denial of
employment was not an unfair labor practice because the ap-
plicants sought to ‘‘entrap’’ the employer. The Board stated:
We do not agree. While it is true that prior to apply-
ing for work Reece had been informed by the Union’s
business agent that the Respondent’s project [at some
unspecified date] would be picketed, and was asked to
give them [the Union] ’some help down there’ there is
no evidence in the record to indicate Reece’s applica-
tion was not a legitimate request for employment and
that he would not have accepted employment had it
been tendered. The mere fact that an applicant would
have supported the Union by honoring its picket line
once one was established does not excuse Respondent’s
failure to consider his application in a nondiscrim-
inatory manner. The right to honor a picket line is pro-
tected by Section 7 of the Act, [citation] and an Em-
ployer may not lawfully discriminate against a prospec-
tive employee because it suspects the employee may in
the future engage in activities protected by the Act. [Id.
at 1535.]
The Board has reached similar conclusions in other cases.112
Respondent’s argument based on the ‘‘voluntary union or-
ganizer’’ legend on many applications has been considered
by Administrative Law Judge Arline Pacht in a similar fac-
tual situation:
It is true that many noted on their applications that they
were volunteer union organizers, but these comments
were no more revealing of their union affiliation than
many other indicia of union membership and support
which appeared on these forms. In all probability, the
union leaders suggested to the applicants that they add
this comment as a way to test the Respondent’s word
that it was willing to hire union members. In any event,
efforts to conceal the applicants’ union affiliations
would have been pointless and disingenuous. By frank-
ly announcing that they were volunteer union orga-
nizers, they avoided giving Respondent grounds to ac-
cuse them subsequently of being union plants or infil-
trators, rather than bona fide job applicants [citation].
[Fluor Daniel, Inc., JD–233–90, slip op. at 17 (1990).]
This reasoning mirrors that of the union witnesses in this
case who testified about the volunteer organizer legend.
Respondent’s arguments based on the employment status
of the applicant at the time of the applications have no merit.
There is evidence in this record of unemployment among the
applicants. Although there may have been exceptions, current
employment in a construction job does not evidence lack of
good faith if the employee applies for another job. Employ-
ment in the construction industry is volatile—construction
projects begin, wind down, and end. One job may be more
desirable than another. Respondent’s position that the fact an
individual is already employed constitutes evidence that his
application for another job lacks good faith is contrary to the
realities of employment in general and the construction in-
dustry in particular. The Company’s view, if implemented,
would tend to bind employees to particular jobs as in medie-
val times.113
703SUNLAND CONSTRUCTION CO.
Respondent also issued subpoenas to two union trust funds requir-
ing the production of employment records of over 200 individuals
for a 16-month period. The trust funds filed a motion to revoke, al-
leging that the requested work was ‘‘astronomical,’’ and would ne-
cessitate the hiring of additional personnel. I granted the motion to
revoke on the ground that a record of an applicant’s work and wages
with other employers did not relate to the issue of whether his appli-
cation to Respondent was bona fide.
Respondent now argues that it was denied due process because of
my rulings. R. Br. 20, fn. 15. This argument has no merit for the
reasons stated above and in my rulings.
114 R. Br. p. 11.
115 The applicant was Barry Edwards, herein alleged to have been
discriminatorily discharged after having been hired by Sunland.
116 R. Br. p. 40.
117 Furnco Construction Corp., 174 NLRB 93 (1969); General
Cable Corp., 130 NLRB 301 (1961); and Shawnee Industries, 140
NLRB 1451 (1963), enfd. as modified 333 F.2d 221 (10th Cir.
1964). The Board decision in Shawnee does not support Respond-
ent’s position.
118 R. Br. p. 42.
There is a fundamental contradiction in Respondent’s as-
sertions that the applicants had an ulterior purpose and that
they would not have accepted employment. If the ulterior
purpose was to organize the employees, then this purpose
could best have been accomplished by the applicants’ them-
selves becoming employees.
If the ulterior purpose was based on a belief that the Re-
spondent would discriminatorily deny the applications, then
the Company by its actions confirmed this belief. Respond-
ent’s position amounts to an argument that an employee’s
suspicion that an employer is unlawfully motivated con-
stitutes a defense to an unfair labor practice charge. This has
no support in Board law.
Nor does any such suspicion establish that the employees
would have rejected offers if their suspicions had proved to
be unfounded. The two who were offered jobs (Lindsey and
Edwards) accepted them.
For these reasons, I reject Respondent’s contention that the
applications were not bona fide in nature.
B. The Applications of the Union Organizers
Respondent argues that Union Organizers Simoneaux,
Bueche, Kelly, Elrod, and Tucker were not bona fide appli-
cants because of their paid union status.114 Respondent relies
on H. B. Zachry Co. v. NLRB, 886 F.2d 70 (4th Cir. 1989),
denying enf. 289 NLRB 117 (1988). In that case, the court
held that a paid union organizer was not a bona fide appli-
cant for employment.115 The court emphasized stipulated evi-
dence that Edwards, the same discriminatee as one of those
herein, planned to remain concurrently employed and super-
vised by the union during his hours of work for Zachry and
would have been performing services for that employer only
because directed to do so by the union. Further, the union
would have paid Edwards for the difference between his sal-
ary and his full union salary, for his health, life insurance,
and pension benefits, and for daily transportation expenses
and living expenses related to the Zachry job.
All the record herein shows is that Edwards was employed
by the International at the time of his application with
Sunland. None of the further aspects of his employment, or
dual employment, described by the court in Zachry are
present in this record. Nor are they present with respect to
the other union organizers.
As the Board’s underlying decision in Zachry shows, pro-
tection of the Act has been ‘‘specifically applied to full-time
paid union organizers who, although their ulterior purpose
may be to organize the unorganized, are merely applying for
a job, just like any other employees, and are forbidden by
the Act to be judged on their union sympathies [authorities
cited].’’ H. B. Zachry Co., 289 NLRB 838, 839 (1988).
The Board has recently reaffirmed its position in Zachry,
with an articulation of the reasons why the Fourth Circuit’s
decision in that case did not apply to the facts then being
considered, because they were factually distinguishable from
those of the organizer under consideration in that case.
Willmar Electric Service, supra, fn. 112. The same distinc-
tion applies to Bueche, Simoneaux, Kelly, Elrod, Tucker, and
Lindsey. Although Edwards was the organizer in the Zachry
case and one of the organizers in this case, the same distinc-
tions can also be made on the basis of the differences in the
record evidence of Edwards’ employment in Zachry and in
this case. Of great significance is the fact that in this case
the complaint alleges that Edwards was discriminatorily dis-
charged after having been employed, whereas in Zachry he
was alleged to have been unlawfully denied employment. By
employing Edwards (and Lindsey) Respondent thereby
waived any objection to their asserted ‘‘dual employment.’’
For these reasons, I reject Respondent’s defense based on
the fact that Lindsey and Edwards were union organizers.
C. Respondent’s Defense Based on its Hiring Practices
The Company argues that its hiring policy was on a ‘‘de-
scending order’’ of preferences: ‘‘(1) current or former
Sunland employees with good records; (2) persons who have
worked with Sunland supervision previously with good
records; and (3) all other applicants.’’116 Citing various au-
thorities,117 the Company argues that there is nothing inher-
ently discriminatory in such a practice. ‘‘The only concern
can be whether the hiring system, as written or as applied,
uses union activity as a motivating basis for the employment
hiring decision, and if there is no or insufficient evidence of
this fact, no violation of the Act can be found.’’118
There is ample evidence in the record that the refusals to
hire the applicants were based on their union activities—the
statements of Supervisors Albert B. (Bucky) Williford,
Tommy Smith, Aubrey Ward, Joe Molton, Don Kuntz, or
Carl Aldridge (inside the Columbus trailer), Carl Aldridge in
an interview with Lindsey and Edwards, and Joe Yokum. As
I conclude hereinafter, Aldridge’s statement that he could not
hire union organizers, and Yokum’s threat that employees
reading union literature could be discharged, constituted vio-
lations of the Act. I additionally conclude that Respondent
violated the Act by unlawfully enforcing a rule barring the
wearing of union insignia. Further, as I also find hereinafter,
the Company discriminatorily discharged Lindsey and Ed-
wards. Finally, Respondent’s unfair labor practices estab-
lished by the St. Francisville decision, constitute evidence of
continuing antiunion animus under established Board law.
Accordingly, the basic premise of Respondent’s argument—
that there is insufficient evidence of discriminatory motiva-
tion—is not supported by the record.
704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
119 Bogalusa employees after January 25, 1989 (C.P. Exh. 6); Co-
lumbus employees after August 28, 1989 (C.P. Exh. 7); and
Ashdown employees after October 13, 1989 (C.P. Exh. 8).
120 C.P. Exhs. 11A, 11B.
121 C.P. Exhs. 10A, 10B. Supervisor Gene Gold testified that he
did not use applications at Bogalusa, and hired 12 to 16 employees.
Supervisor Randall Casey stated that the Ashdown job was ‘‘well
manned’’ when he arrived, and that there was a high turnover. This
evidence applies to only a small percentage of the total employee
complement at the three jobsites in light of the statistical evidence
shown above.
122 R. Br. p. 53.
123 G.C. Exhs. 68, 69.
124 C.P. Exh. 21. Colley noted the urgency of the request in one
of the letters, stating to the supervisor that Sunland was ‘‘involved
in charges concerning our hiring practices’’ (letter to Kenneth R.
Weaver, April 10, 1990).
125 Asociacion Hospital Del Maestro v. NLRB, 842 F.2d 575 (1st
Cir. 1988), enfg. 283 NLRB 419 (1987).
126 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989, approved in NLRB v. Trans-
portation Management Corp., 464 U.S. 393 (1983).
127 R. Br. p. 50.
Company Representative Colley testified that the new pol-
icy became effective on December 1, 1988. This was subse-
quent to the issuance of the complaint in the St. Francisville
proceeding, and a few months before the hearing in that case.
Despite the asserted effective date, Colley admitted that the
new policy was applicable to only portions of the Columbus
and Ashdown jobs. As I have found, it was subsequent to
the filing of the Ashdown applications that Colley and com-
pany counsel went to Ashdown for the purpose of telling the
project manager how to avoid hiring union applicants, and
thereafter instituted more stringent hiring policies.
Respondent’s records show that, despite its first hiring
standard—prior Sunland employment—the great majority of
employees at the three jobsites were not prior Sunland em-
ployees. Thus, Company Representative Colley identified
employee lists for the three jobsites.119 Union Representative
William Creeden testified that, prior to his working for the
Union, he had been a computer programer for 10 years, and
had developed software in that field. Creeden testified that
he prepared graphs based on Respondent’s records. These
graphs indicate that, at Ashdown, there were about 60 former
employees in an employee complement of about 220; at Co-
lumbus, about 10 or 11 former employees in an employee
complement of more than 85; and, at Bogalusa, less than 10
former employees in an employee complement of more than
105.120 Creeden also developed graphs from the Company’s
records showing there were applications on file for more than
half the employees at Ashdown and Bogalusa, and slightly
less than half at Columbus.121
Respondent does not disagree with this analysis. In fact,
it asserts that its employees ‘‘have no reasonable expectation
of working on subsequent Sunland projects.’’122 Respondent
apparently is looking ahead to backpay proceedings. In so
doing, of course, it has abandoned the first preference in its
hiring policy defense.
With respect to Respondent’s asserted second preference
level—knowledge of the applicant by a supervisor—the
record shows that Respondent distributed ‘‘method of con-
tact’’ forms allegedly showing that the applicant was known
by a supervisor or another employee.123 When asked whether
Sunland’s reviewing authority checked to determine the ac-
curacy of an employee’s claim that he had been contacted by
a supervisor, Colley gave contradictory answers. He agreed
that requests to supervisors to verify this information went
unanswered in several instances.124
The evidence shows that the Company advertised for em-
ployees, and received resumes. Colley contended that this
was merely a ‘‘labor survey,’’ and that the responses were
intended to provide a pool for its asserted third category of
preference. The evidence shown above casts doubt on this
explanation.
I conclude from the evidence of union animus, the timing
of the institution of the hiring policy, and its content and
contradictions noted above, that it was intended to provide
a defense to unfair labor practice charges.
VI. LEGAL CONCLUSIONS
A. The Alleged Violations of Section 8(a)(1)
Supervisor Aldridge’s statement to Lindsey and Edwards
that he could not hire them because they were union orga-
nizers was obviously coercive and violative of Section
8(a)(1). The same is true of Supervisor Yokum’s telling em-
ployees that they could be discharged for reading the union
literature distributed by to them Lindsey and Edwards.
With respect to the rule concerning the wearing of insig-
nia, the record shows that, although the Company’s rule
banned the wearing of badges other than company insignia,
in practice the rule was overlooked. When Lindsey and Ed-
wards put on their union badges, the rule was disparately en-
forced. It is well established that a blanket prohibition
against the wearing of union insignia is violative of Section
8(a)(1).125
B. The Alleged Violations of Section 8(a)(3)
1. The discharges of Lindsey and Edwards
The General Counsel has the burden of establishing a
prima facie case that is sufficient to support an inference that
protected conduct was a motivating factor in Respondent’s
decision to discipline an employee. Once this is established,
the burden shifts to Respondent to demonstrate that the dis-
cipline would have been administered even in the absence of
the protected conduct.126
In this proceeding, the General Counsel’s prima facie case
is very strong. Respondent argues that Lindsey and Edwards
were discharged for ‘‘blatant insubordination’’ in refusing to
remove their union insignia.127 As indicated, the employees
were within their lawful rights in wearing the insignia, and
the Company’s rule was disparately enforced in that other
noncompany badges and decals were allowed. I conclude that
the reason given was a mere pretext, and that Lindsey and
Edwards were discharged in violation of Section 8(a)(3) and
(1) of the Act. Malta Construction Co., 276 NLRB 1494
(1985).
2. The failure to hire the applicants
The Board has approved of the following statement of a
prima facie case establishing a discriminatory failure to hire:
705SUNLAND CONSTRUCTION CO.
128 App. B.
129 G.C. Br. p. 16.
130 R. Br. p. 45.
131 G.C. Exhs. 5, 7. Respondent argues that this practice was not
carried out, because Colley testified that ‘‘there was no master list
of applications in Houston.’’ R. Br. pp. 44–45. Colley’s actual testi-
mony was that no copies of applications were sent to Houston, but
that original applications were kept in the field. As indicated, the
Ashdown applications were sent to Houston.
132 G.C. Exh. 8.
133 G.C. Exh. 9.
134 Pipeline Local 38 (Hancock-Northwest), 247 NLRB 1250, 1251
(1980); Mason City Dressed Beef, 231 NLRB 735, 747–748 and fn.
3 (1977); Alexander Dawson, Inc., supra, 228 NLRB at 179 (1977);
and Macomb Block & Supply, 223 NLRB 1285, 1286 (1976).
Essentially, the elements of a discriminatory refusal-to-
hire case are the employment application by each al-
leged discriminatee, the refusal to hire each, a showing
that each was or might be expected to be a union sup-
porter or sympathizer, and further showings that the
employer knew or suspected such sympathy or support,
maintained an animus against it, and refused to hire the
applicant because of such animus. [Big E’s Foodland,
Inc., 242 NLRB 963, 968 (1979).]
All of these elements are present in this case, and Re-
spondent has not presented a credible defense. Accordingly,
I find that each applicant was denied employment because of
his union sympathies and activities, in violation of Section
8(a)(3) and (1).
The General Counsel argues those individuals listed in the
St. Francisville complaint128 who failed to file applications
at Bogalusa were also discriminatorily denied employment at
the latter jobsite because filing would have been futile.129
Simoneaux and Bueche took a busload of applicants to the
Bogalusa jobsite. In addition, Simoneaux testified, he re-
ceived and answered inquiries from members about whether
the Company was hiring at Bogalusa. He made his telephone
available for members to call long distance from his Baton
Rouge office to the Bogalusa jobsite, about 70 miles away,
and testified in detail about numerous calls to the jobsite
from this phone during the first half of 1989. As indicated,
Bueche spoke to members at the New Orleans local about
the job, and caused them to sign applications. I conclude that
there was general knowledge among the union members that
Respondent had a job at Bogalusa.
As set forth above, Judge Harmatz found in the St.
Francisville decision that Respondent violated the Act inter
alia by telling employees that union organizers would not be
hired on future jobs, that the Company would not hire from
employment applications because they were in furtherance of
union organization, and that vacancies would be filled solely
by nonunion employees. Respondent argues that there is no
evidence that employees had knowledge of these state-
ments.130 This argument is without merit.
During a recess in the St. Francisville hearing, Respond-
ent’s Manager of Construction Operations Williford told su-
pervisors that the company had to do ‘‘whatever it takes to
keep these known union organizers off the Bogalusa job.’’
At the Bogalusa jobsite, Company Supervisor Tommy Smith
refused to accept job applications handed to him by union
representative Simoneaux, and said that they had to be
mailed to Houston. Smith told timekeeper trainee Pumphrey
at Bogalusa that he was not going to hire any union appli-
cants because he did not want them to cause trouble or start
a union. Supervisor Ward told an employee that he would
not hire two individuals because they were union representa-
tives. Supervisor Joe Molton told union representative
Creeden, in response to a request for employment of certain
individuals, that the Company was not going ‘‘to hire any of
those people on that shit list,’’ referring to the St.
Francisville complaint.
Respondent’s written policy provided that an application,
once filed, would be kept in the Houston office permanently.
‘‘Once an application is on file for an individual, he/she will
not be required to complete the form again.’’131 The Com-
pany also required supervisors to conduct an ‘‘orientation’’
on ‘‘general work rules,’’132 and to make certain that em-
ployees ‘‘understand Company policies and work rules.’’133
Colley testified that these and other policy statements were
incorporated into a ‘‘field office procedure manual.’’ Under
Respondent’s policy, therefore, it would have been both fu-
tile and unnecessary for the other individuals listed in the St.
Francisville complaint to have filed new applications. Ac-
cordingly, I shall consider them to have been bona fide ap-
plicants who were discriminatorily denied employment.134
C. The Alleged Violations of Section 8(a)(4)
The charge in the St. Francisville case was filed by the
Union, and there is no evidence that all of the alleged
discriminatees testified in that proceeding. However, the
Board has held with judicial approval that an 8(a)(4) viola-
tion is established where it was the Union which filed the
charge and the employer, because of this fact, discriminated
against employees. Vulcan-Hart Corp., 248 NLRB 1197
(1980), enfd. as modified 642 F.2d 255 (8th Cir. 1981).
The General Counsel has established a prima facie case in
this proceeding that Respondent’s refusal to employ the St.
Francisville discriminatees was because of their participation
in that proceeding. Respondent has not rebutted the prima
facie case. Accordingly, I conclude, it violated Section
8(a)(4) and well as Section 8(a)(3) by refusing to employ
those discriminatees.
In accordance with my findings above, I make the fol-
lowing:
CONCLUSIONS OF LAW
1. Sunland Construction Co., Inc. is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers & Helpers, AFL–CIO is a
labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent violated Section 8(a)(1) of the Act at its
Columbus, Mississippi jobsite by telling employees that it
could not hire them because they were union organizers, by
telling employees that they could be discharged for reading
union literature, and by promulgating and enforcing a rule
prohibiting the wearing of badges other than company em-
ployee badges.
4. By discharging employees Thomas Lindsey and Barry
Edwards on August 31, 1989, at its Columbus, Mississippi
jobsite, because of their assistance to the foregoing labor or-
706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
135 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendments to 26 U.S.C. § 6621. Interest accrued before January
1, 1987 (the effective date of the amendment) shall be computed as
in Florida Steel Corp., 231 NLRB 651 (1977).
136 NLRB v. Quality C.A.T.V., 824 F.2d 542 (7th Cir. 1987), de-
nied enf. of 278 NLRB 1282 (1986); Rogers Cleaning Contractors,
277 NLRB 482 (1985); Sunbeam Plastics Corp., 144 NLRB 1010,
1011 fn. 1 (1963); Koons Ford of Annapolis, 282 NLRB 506 (1986).
137 C.P. supplemental Br. p. 9.
138 Sunland Construction Co., 309 NLRB 1224 (1992).
ganization and other acts of mutual aid and protection, Re-
spondent thereby violated Section 8(a)(3) and (1) of the Act.
5. By refusing to employ the applicants listed on the at-
tached Appendices A, B, C, and D at various times and
jobsites, because of their assistance to the foregoing labor or-
ganization and other acts of mutual aid and protection, Re-
spondent thereby violated Section 8(a)(3) and (1) of the Act.
6. By refusing to employ the applicants listed on the at-
tached Appendix B because of their participation in an unfair
labor practice charge and proceeding against Respondent, the
latter thereby violated Section 8(a)(4) and (1) of the Act.
7. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in cer-
tain unfair labor practices it is recommended that it be or-
dered to cease and desist therefrom and take certain affirma-
tive action designed to effectuate the purposes of the Act.
It having been found that Respondent unlawfully dis-
charged employees Thomas Lindsey and Barry Edwards, it
is recommended that Respondent be ordered to offer each of
them reinstatement to his former position, without prejudice
to his seniority or other rights and privileges previously en-
joyed. It is further recommended that each of them be made
whole for any loss of earnings and other benefits he may
have suffered from the date of his discharge to the date of
Respondent’s offer of reinstatement, in the manner prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).135
I shall further recommend that issues concerning the dura-
tion of the remedy, including whether Lindsey or Edwards
would have been transferred to other jobsites, be left to the
compliance stage of the proceeding, pursuant to Dean Gen-
eral Contractors, 285 NLRB 573 (1988), and Elion Con-
crete, 299 NLRB 1 (1990).
I shall also recommend an expunction order concerning
Respondent’s records of its unlawful discharges of Lindsey
and Edwards. Further, I shall recommend that Respondent be
required to rescind its unlawful rule prohibiting the wearing
of insignia other than company insignia.
It having been found that Respondent unlawfully refused
to employ the individuals listed on attached Appendices A,
B, C, and D, it is recommended that Respondent be ordered
to offer them employment and make them whole for any
losses of earnings they may have suffered as determined by
the same procedures discussed above.
In its initial brief, the Charging Party requested extraor-
dinary relief. Respondent challenges the Charging Party’s
standing to request such relief. However, the cases cited in
Respondent’s supplemental brief136 deal in part with a charg-
ing party’s attempt to change the complaint, or with dif-
ferences in the theory of the case, or are simply inapposite.
They do not concern a party’s attempt to request a particular
remedy for an unfair labor practice. In this case, the Charg-
ing Party does not propose an amendment to the complaint
or a theory of the case different from that of the General
Counsel. Instead, the Union advocates a particular remedy.
Although the General Counsel has not supported this view,
neither has he opposed it. In Gourmet Foods, 270 NLRB 578
(1984), the General Counsel proposed a bargaining order
based on his view that the Union had a majority status. Al-
though the Board disagreed, it nonetheless considered the
Charging Party’s request for bargaining order without major-
ity status. I conclude that the Union herein has standing to
propose a particular remedy.
The first extraordinary remedy sought by the Charging
Party is payment of organizational expenses. The parties
have engaged in extended debate in their supplemental briefs
on whether the appropriate standard for extraordinary relief
is the test announced in Heck’s Inc., 215 NLRB 765 (1974),
or in J. P. Stevens & Co., 244 NLRB 407 (1979), enfd. 668
F.2d 767 (4th Cir. 1982). In Heck’s, the Board stated its in-
tention ‘‘to refrain from assessing litigation expenses against
a respondent, notwithstanding that the respondent may be
found to have engaged in ‘clearly aggravated and pervasive
misconduct’ or in the ‘flagrant repetition of conduct pre-
viously found unlawful,’ where the defenses raised by the re-
spondent are ‘debatable’ rather than ‘frivolous’’’ (215 NLRB
at 767).
In J. P. Stevens, Judge Harmatz’ rationale for the recovery
of organizational costs, approved by the Board and the re-
viewing court, stated:
[O]ne cannot lose sight of the fact that those [em-
ployee] rights have been threatened over the years by
the efforts of J. P. Stevens to destroy the Union through
persistent violations of the law, Board orders, court de-
crees, and contempt citations. No end appears to this
unrelenting effort to exhaust the resources of this Union
. . . . [Id. at 458.]
I consider it unnecessary to resolve the dispute of the par-
ties as to the applicable standard, since I find that neither
justifies the payment of organizational expenses in this case.
The Charging Party argues that Respondent’s defense based
on the alleged lack of good faith in the filing of the applica-
tions was frivolous.137 This argument was encompassed
within Respondent’s overall ‘‘entrapment’’ defense. Although
the defense is erroneous for the reasons given above, it
would be inappropriate to characterize it as ‘‘frivolous.’’ See,
e.g., Judge Harmatz’ discussion of this issue.138
Nor can it be validly argued that Respondent’s record ap-
proximates in gravity that of J. P. Stevens. There has been
only one decision against Respondent, and that is currently
on appeal before the Board. Accordingly, I deny the Charg-
ing Party’s application for organizational costs.
With respect to the Charging Party’s request for a bar-
gaining order, the complaint does not contain an allegation
of violation of Section 8(a)(5), and there is no evidence of
majority support for the Union. In Gourmet Foods, supra, the
Board reviewed prior authority and reached the conclusion
707SUNLAND CONSTRUCTION CO.
139 C.P. supplemental brief.
140 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
141 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
that nonmajority bargaining orders are not within its remedial
discretion. 270 NLRB at 585. The Charging Party disagrees
with this decision.139 I am bound by Board law, and there-
fore deny the Charging Party’s request for a bargaining
order.
However, I do conclude that Respondent, by its conduct
in this and the prior proceeding, ‘‘has engaged in such egre-
gious or widespread misconduct as to demonstrate a general
disregard for employees’ statutory rights.’’ Hickmott Foods,
242 NLRB 1357 (1979). Accordingly, I shall recommend a
broad order.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended140
ORDER
The Respondent, Sunland Construction Co., Inc., Houston,
Texas, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling employees that it will not hire them if they are
union organizers, or that they can be discharged for reading
union literature.
(b) Promulgating or enforcing a rule prohibiting the wear-
ing of badges or insignia other than company employee
badges.
(c) Discouraging membership in the International Brother-
hood of Boilermakers, Iron Ship Builders, Blacksmiths, Forg-
er & Helpers, AFL–CIO, or any other labor organization by
discharging employees or refusing to employ applicants for
employment, because of their union or other protected con-
certed activities, or by discriminating against them in any
other manner with respect to their hire, tenure of employ-
ment, or terms and conditions of employment.
(d) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of their rights under Section
7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Thomas Lindsey and Barry Edwards full rein-
statement to their former positions, without prejudice to the
seniority or rights and privileges of either of them, and make
them whole for any loss of earnings either has suffered, in
the manner described in the remedy section of this decision.
(b) Expunge from its books and records all record of its
unlawful discharges of Thomas Lindsey and Barry Edwards,
and inform each of them in writing that this has been done,
and that evidence of such action will not be used as a basis
for future personnel action against him.
(c) Offer employment to the discriminatees listed on Ap-
pendices A, B, C, and D hereof, and make them whole for
any loss of earnings they may have suffered because of Re-
spondent’s unlawful refusal to employ them, in the manner
described in the remedy section of this decision.
(d) Rescind its rule prohibiting the wearing of badges or
insignia other than company badges or insignia.
(e) Preserve and, on request, make available to the Board
or its agents for copying, all payroll records, social security
payment records, timecards, records of transfers of employ-
ees, project beginnings and closings, records of employee
complements and dates of hiring, and all other records nec-
essary to analyze the remedial action necessary under the
terms of this Order and any further proceeding.
(f) Post at its Houston, Texas facility, and at each of its
jobsites in the States of Louisiana, Mississippi, and Arkansas,
copies of the attached notice marked ‘‘Appendix E.’’141 Cop-
ies of said notice, on forms provided by the Regional Direc-
tor for Region 15, after being signed by Respondent’s au-
thorized representive, shall be posted immediately on receipt
and maintained for 60 consecutive days including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to ensure that said
notices are not altered, defaced, or covered by any other ma-
terial.
(g) Notify the Regional Director in writing within 20 days
of the date of this Order what steps Respondent has taken
to comply.
APPENDIX A
Bogalusa Applicants
J. K. Bueche J. C. Berry
F. E. Bozeman Mark Castleberry
Bryan Champagne T. W. Eastwood
Dave Ellis Jack Garza
Brad Harrell Jerry Himmel
David Ivy Walter Jones
John Kelley Frank Lee
William Lefeaux J. J. Leveron
Earl Moak Joel Moak
Jerry Moore Greg Oden
Eddie Schoonmaker Don Sutton
Gary Stokes Robert W. Travis
William Walley Leroy White
Charles D. Deville Daryl T. Castleberry
Charles O. Clardy Russell J. Decou
William D. Hammonds
At the hearing, the complaint was amended to add the fol-
lowing alleged discriminatees:
708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Danny Blackwell Albert Thielman
Charles Greaud Raymond Bahan
W. D. Hammons, III William R. Bradley
Herman Trahan Edmond J. Albares
Michael Jones Darrell Leo
Sebrin Stortler Leander J. Humphrey
Junior Taylor Larry W. Jones
Gene A. Lazaro Carroll M. Meredith
Frank Gilbert James K. Bueche*
Fred W. Pohlmann, III Charles Morgan
Stan Dupuy Lawrence F. Chapoton
John Kennair George W. Berthaud
Rodney Martin
* Apparently a duplicate of a name appearing in the
amended complaint.
APPENDIX B
Bogalusa Applicants Named in St. Francisville
Complaint
James K. Bueche Arthur R. Richardson
Farrell O. Alford Mark D. Castleberry
Charles O. Clardy Leonard W. Efferson
Phillip I. Garner, Jr. Willie Covington
L. J. Garza Robert H. Hoch
Brian B. LeJeune Johnny J. Leveron
Gayden M. Smith Alfred E. Bacot
Gary W. Bond Richard H. Buckley
Danny R. Bueche Larry W. Castille
Darryl T. Castleberry Russell J. Decou
Audry J. Duhon, Jr. David A. Ellis
Dawson C. Fontenot Lawrence A. Gonzales
Brent M. Matt Elton Marcotte
Joseph D. Meyers Van M. Mercier
Joel R. Moak John A. Murphy
Chad W. Roddy Terry P. Saltzman
Eddie H. Schoonmaker Jayson L. Smith
Damon P. Thomas Mitchell L. Wallace
W. H. Blades W. D. Covington
Larry M. Cox Tommy Eastwood
Sam Hodges E. R. Hughes
J. L. McCrory A. E. Ross
Robert W. Travis Ivy Williams
Jerry C. Aguillard William C. Brady
Voladia W. Brown Robert L. Burns
Thomas L. Coon Jerry W. Gautreaux
Kenneth P. Granier James E. Guidry
Jerome C. Johnson Jerry L. Johnson, Jr.
Lawrence W. Johnson Paul D. Johnson
Joey P. Letulle Percy K. Lott
Van N. Mercier Roy T. Navarre
John B. Overton Terry D. Smith
Raybon C. Steele Curlin J. Terrio
Harold L. Whiddon Bobby Hayden
Jules A. Castille, Jr. Charles I. Godson
Norman L. Guitreau Herman L. Hanna
James D. Major Albert Meche, III
James J. Melancon Alvin C. Street, Jr.
Rudolph J. Landry Aljire J. Joseph
Glenn D. Burns Larry M. Coy
William T. Creeden Owen J. DeLaune
Linus J. Devillier Jesse L. Edwards
James R. Guice Marvin L. Guitreau
Laron Herrington Norris A. Medlen
Horace E. Nowell Adrian L. Phillips
Julius A. Prokop William T. Robichaux
Bobby G. Temple Hiram C. Temple
Leslie P. Westbrook John A. Williams
Robert M. Whiddon Anthony J. Yakemowicz
Kenny R. Davis David A. Felter
Thomas E. Lindsey Scott E. Gibson
Charles R. Bowman, Jr. Ricky Allen
Ben O’Quinn Brooks Warren
George R. Stalsby James Mahaney
Michael Hill Michael Larimore
J. J. Galltier Eddie Van Osdell
Charles Reed Terry Johnson
James D. Strange, Jr. Wayne Ellis
Greg Outlaw Elmer Keatts
Steve Grey Andrew J. Bennett
J. L. Munn, Jr. Donald Medlin, Jr.
Rickie D. Beavers Andrew J. Burnett
Michael W. Golmon Ted Vidrine
Eddie Guillory Keith Wilson
APPENDIX C
Columbus Applicants
William D. Hammons August 28, 1989
Jerome A. Durning August 28, 1989
Willie Covington August 28, 1989
David Redmond August 28, 1989
Joseph Faulk September 1, 1989
Alford Farrell September 1, 1989
John Kelly September 1, 1989
Jeff McCrory September 5, 1989
Larry Castille September 5, 1989
Roberts L. Burns September 5, 1989
Roy H. Chaney September 12, 1989
Clarence Moore September 12, 1989
Marlin Little September 12, 1989
Jean Robertson September 12, 1989
Robert B. Kelley September 12, 1989
Jason Kobeck September 12, 1989
Allen Barnett September 12, 1989
Robert Moore September 12, 1989
William Elrod September 26, 1989
APPENDIX D
Ashdown Applicants
Rodney E. Allison October 13, 1989
Willie C. Ashby October 13, 1989
Donald Blackwell October 13, 1989
Thomas S. Bates October 13, 1989
Terry L. Brady October 13, 1989
Jerry Burks October 13, 1989
Tommy Bussell October 13, 1989
Dale Branscum October 13, 1989
Thomas Bonzek October 13, 1989
Frank R. Brown October 13, 1989
Russell Byrd October 13, 1989
James R. Burkhart October 13, 1989
Delbert W. Barber October 13, 1989
709SUNLAND CONSTRUCTION CO.
Mike Byrd October 13, 1989
William R. Cason October 13, 1989
Norman L. Carter October 13, 1989
Danny L. Casto October 13, 1989
Monte E. Crider October 13, 1989
Darrell R. Durham October 13, 1989
Curtis L. Edwards October 13, 1989
Charles A. Gorman October 13, 1989
Roger Dale Gorman October 13, 1989
Laymond G. Green October 13, 1989
Harold D. Gay October 13, 1989
Michael D. Gay October 13, 1989
Edward A. Hamonds October 13, 1989
Donald Ray Hensley October 13, 1989
Edgar S. Hensley October 13, 1989
Bobbie J. Hay October 13, 1989
Donnie R. Jones October 13, 1989
Jerry L. Luker October 13, 1989
Charles Malcom October 13, 1989
Jerrell Mann, Jr. October 13, 1989
Steve M. Phillips October 13, 1989
Danny L. Parker October 13, 1989
Wayne E. Smith October 13, 1989
T. J. Vernon Stubs October 13, 1989
Garry R. Thomas October 13, 1989
Mark D. Tucker October 13, 1989
Wayne D. Vance October 13, 1989
Jeff Wooten October 13, 1989
William T. Windsol October 13, 1989
John Odis White October 13, 1989
Thomas W. Whittaker October 13, 1989
Nickie Whittaker October 13, 1989
Danny R. Wiley October 13, 1989
James R. Wooten October 13, 1989
Thomas D. Wooten October 13, 1989
William R. Elrod October 19, 1989
Ronald R. Brown November 15, 1989
Charles R. Echols November 15, 1989
Carl E. Edds November 15, 1989
Martin V. Felkins November 15, 1989
Thomas W. Hamilton November 15, 1989
Tommy W. Self November 15, 1989
Derrick W. Stevens November 15, 1989
Eugene Thomas November 15, 1989
Arvil Tucker November 15, 1989
Bobby L. Woodall November 20, 1989
APPENDIX E
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT tell employees that we will not hire them
because they are union organizers, or that they will be dis-
charged for reading union literature.
WE WILL NOT promulgate or enforce a rule prohibiting the
wearing of insignia or badges other than company badges.
WE WILL NOT discourage membership in the International
Brotherhood of Boilermakers, Iron Ship Builders, Black-
smiths, Forgers & Helpers, AFL–CIO, or any other labor or-
ganization, by discharging or refusing to employ employees
because of their union sympathies and activities.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of their rights guar-
anteed under Section 7 of the Act.
WE WILL offer reinstatement to Thomas Lindsey and Barry
Edwards with their full rights and privileges, and make them
whole for any loss of earnings, with interest, that they may
have suffered because of our unlawful discharges of them.
WE WILL expunge from our records all references to our
discharges of Lindsey and Edwards, and inform them in writ-
ing that this has been done and that evidence of such action
will not be used as a basis for future personnel action against
them.
WE WILL offer employment to applicants whom we unlaw-
fully refused to employ and make them whole for any loss
of earnings which they may have suffered, with interest.
WE WILL rescind our rule prohibiting the wearing of
badges or insignia other than company badges.
SUNLAND CONSTRUCTION CO., INC.