Systems West LLC

National Labor Relations Board - Board Decisions

Aug 25, 2004

342 N.L.R.B. 851 (N.L.R.B. 2004)

SYSTEMS WEST LLC
342 NLRB No. 82
851
Systems West LLC and Pacific Northwest Regional
Council of Carpenters, Local 770. Cases 19–CA–
27902, 19–CA–27953, and 19–RC–14200
August 25, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND MEISBURG
On April 25, 2003, Administrative Law Judge Burton
Litvack issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the Charging
Party filed exceptions. The General Counsel filed an an-
swering brief to the Respondent’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings,1 and conclusions as modified
and to adopt the recommended Order as modified.
I. THREAT OF JOB LOSS
We affirm the judge’s finding that the Respondent’s
Supervisor James Ravine violated Section 8(a)(1) of the
Act when he told employees that they would not be able
to work outside the Yakima area and that most of them
would be replaced if the company were unionized. Ra-
vine’s statements were not predictions based on objective
fact, indicating his belief as to consequences beyond the
Respondent’s control. Instead, they were threats that the
Respondent would retaliate against the employees if they
chose union representation. NLRB v. Gissel Packing Co.,
395 U.S. 575 (1969).
A. Facts
The Respondent constructs buildings for agricultural
businesses in eastern Washington and Oregon. Yakima,
Washington is where the company is headquartered and
the home of most of its employees. When employees
work outside the Yakima area, the Respondent pays for
their rooms and gives them a stipend for travel and per
diem.
In January 2002, in the context of a union-organizing
effort, Ravine spoke to six employees at the Ione, Ore-
gon jobsite. Ravine told them he had been a union mem-
ber, and that if the company was unionized they would
not be able to work jobs outside the Yakima area. As he
testified, “We had a discussion about them working basi-
cally in the Yakima area. Because like I was saying,

1 Because they would not affect the Order, we find it unnecessary to
pass on the judge’s findings that Jorge Ibarra and Leonel Rosales were
unlawfully interrogated and that Rosales was not a supervisor.
with the carpenter [hiring] halls closer and stuff, there
was no point in us paying them to travel down there.”
Ravine then asked the employees how they would be
hired out of the union hiring hall. According to him,
“nobody there had any idea.” He then stated that because
most of the Respondent’s employees lacked the experi-
ence of journeymen carpenters, they would have to get
quite of bit of training to go directly into a union as jour-
neymen carpenters. Ravine also said that “it would be
hard to justify paying these guys journeyman’s wages
when you can get journeymen that have the experience of
a journeyman carpenter, because . . . most of our em-
ployees when we hired them had very little, if any, con-
struction experience.”
B. Analysis
The Supreme Court, in Gissel Packing Co., supra., es-
tablished the framework for analyzing an employer’s
statements to employees concerning the effects that un-
ionization will have on its operations. Thus, an employer
is free to communicate his views about unionism in gen-
eral or a particular union, “so long as the communica-
tions do not contain a ‘threat of reprisal or force or prom-
ise of benefit.’” 395 U.S. at 618, citing Section 8(c) of
the Act. Predictions concerning the precise effects of
unionization, however, “must be carefully phrased on the
basis of objective fact to convey an employer’s belief as
to demonstrably probable consequences beyond his con-
trol.” Id. The Court cautioned that

If there is any implication that an employer may or may
not take action solely on his own initiative for reasons
unrelated to economic necessities and known only to
him, the statement is no longer a reasonable prediction
based on available facts but a threat of retaliation based
on misrepresentation and coercion, and as such without
the protection of the First Amendment.

Id.
Applying these principles, we affirm the judge’s finding
that Ravine’s statements to the employees at Ione were
unlawful threats of retaliation rather than lawful predic-
tions based on objective fact. Ravine’s statements fail to
meet both elements of a lawful prediction of the adverse
consequences of unionization. That is, his statements were
neither based on objective fact nor did they address conse-
quences beyond the Respondent’s control.
As the judge found, Ravine’s prediction that the Re-
spondent’s current workers could not work outside the
Yakima area if the company was unionized was simply
incorrect. Ravine admitted that this statement was based
on his assumption that local unions in other areas would
want their own members working on local projects. He
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 852
further admitted that a union official later told him that
the Union had “total portability,” allowing employers
who are signatory to the Union’s master agreement to
take their employees to any jobsite covered by the master
agreement.
The judge found “no record evidence that Ravine pre-
sented any evidence to the listening employees, justify-
ing his contention that they would not qualify as jour-
neymen carpenters, nor did Respondent present any evi-
dence at the trial establishing that its employees were
unqualified or inexperienced workers and not worth pay-
ing the journeyman’s wage rate.” Accordingly, we agree
with the judge that the statement was not based on objec-
tive fact.
We also agree with the judge that the adverse conse-
quences that Ravine predicted involved choices over
which the Respondent would have either complete or
partial control. Thus, as unionization would be no im-
pediment to the employees’ working outside Yakima,
any decision to use employees from local hiring halls
instead of its current employees would be the Respon-
dent’s alone. And, as the judge found, “the choice of
paying its employees at a journeyman’s wage rate or
replacing them with workers, whom it requested from a
Union hiring hall would be a decision solely within the
control of Respondent.” Ravine’s statement that “I
couldn’t foresee paying the extra cost to take them to a
jobsite out of the area when I could hire people locally
and not have to pay the extra cost” indicates on its face
that the Respondent would, of its own volition, inflict
adverse consequences on its employees if they chose
union representation.2 See NLRB v. Lenkurt Electric Co.,
438 F.2d 1102, 1106 (9th Cir. 1971).
Like the judge, we also reject the Respondent’s argu-
ment that Ravine’s statements were supported by a mas-
ter labor agreement introduced into evidence at the hear-
ing, which obliges the signatory employer to first employ
individuals dispatched from union hiring halls. The
Master Agreement does not establish the objective fac-
tual basis of Ravine’s statement; nor do its term render
the matters Ravine address beyond the Respondent’s
control.
First, Ravine neither informed his listeners nor testi-
fied at the hearing that his statements were based on any

2 Before the Union appeared on the scene, the Respondent was ap-
parently willing to incur the costs of employing Yakima-based employ-
ees in other localities rather than hire locally through want ads, tempo-
rary agencies, or other sources. Ravine did not explain why the Re-
spondent would suddenly seek to avoid those costs if the employees
voted for union representation. His failure to do so is further evidence
that his statements amounted to threats to retaliate against the employ-
ees rather than a prediction of the unavoidable consequences of unioni-
zation.
such agreement. The agreement cited by the Respondent
was introduced only later, at the hearing, as a post hoc
justification for Ravine’s earlier statements.
Second, there is no evidence that the Respondent and
the Union would be bound by this or any similar agree-
ment. The contract does not apply to the area in which
the Respondent operates; it is an expired agreement from
an adjacent territory. Even if such a master agreement
covered the Respondent’s area of operations, the Re-
spondent was not required to be a signatory to it.3 Thus,
any suggestion by Ravine that the Respondent would be
contractually bound to hire first from union hiring halls,
or to pay its employees at rates exceeding their produc-
tivity, ignored the reality that such provisions are neither
inevitable nor immutable, but are merely terms that may
result from collective bargaining, and thus are at least
partly within the Respondent’s control. See Schaumburg
Hyundai, Inc., 318 NLRB 449, 450 (1995) (even if un-
ion’s standard contract provided for wages and working
conditions predicted by employer, bargaining unit em-
ployees would not automatically be covered by such an
agreement following negotiations).
Finally, the Respondent argues, inter alia, that NLRB v.
Lenkurt Electric Co., 438 F.2d 1102 (9th Cir. 1971), com-
pels a finding that Ravine’s statements were lawful. We
disagree. In Lenkurt, employees approached the em-
ployer’s printing department manager, Linka, and asked
him for his views on unionization. Based on his experi-
ence under the employer’s existing contracts with the peti-
tioning union and other unions, Linka outlined a series of
specific adverse changes that he thought would result.
Linka’s views were solicited by employees, made in an
environment free of antiunion animus and unfair labor
practices, and objectively based (primarily on his personal
experience with the same employer). Id. at 1107.
In contrast, Ravine’s comments were unsolicited and
were made in a context of numerous unfair labor prac-
tices. Indeed, in the very same conversation, Ravine
unlawfully threatened employees that the Respondent
would “close the doors” in the event of unionization.
Moreover, Ravine did not objectively describe the ob-
served consequences of unionization of his employer.
Instead, he engaged in speculation based on assumptions
about the way carpenters local unions would operate and
on his experiences with different unions and different
employers, some 16 years before the events in this case.4

3 Wayne Thueringer, an organizer with the Carpenters Union, testi-
fied without contradiction that “an employer does not have to become
signatory contractors [sic] in order to have a contract with the Union. It
can have a separate contract.”
4 Before working for the Respondent, Ravine was a member of the
Laborers Union, the Teamsters Union at Del Monte, and another union
while working at U & I Sugar.
SYSTEMS WEST LLC 853
Finally, as found above, Ravine predicted as inevitable
consequences that were either entirely under the Respon-
dent’s control or merely possible outcomes of collective
bargaining.
In sum, Ravine’s statements were not objectively
based predictions of either the demonstrably probable
consequences of unionization, but instead constituted
exactly the kinds of threats of retaliation that Gissel pro-
scribes. We therefore affirm the judge’s findings that
Ravine’s statements violated Section 8(a)(1).
II. NOTICE POSTING AND MAILING
In the remedy section of his decision, the judge stated
that he would order the Respondent to post the remedial
notice on the wall of its office facility in Yakima and at
its jobsites, and also to mail the notice to its former em-
ployees. However, the judge’s recommended Order does
not provide for mailing of the remedial notice to former
employees. We shall modify the Order to correct this
inadvertent omission. However, we reject the Charging
Party’s contention that the notice should also be mailed
to current employees. We agree with the judge that such
mailing is unnecessary.5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below, and orders that the Respondent, Systems
West LLC, Yakima, Washington, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
Substitute the following for paragraph 2(a).
“(a) Within 14 days after service by the Region, post at
its office facility in Yakima, Washington and at each of
its current jobsites in the States of Washington and Ore-
gon, copies of the attached notice (in English and in
Spanish) marked “Appendix.”47 Copies of the notice, on
forms provided by the Regional Director for Region 19,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. The Respondent shall mail copies of the notice
to all former, but not current, employees employed by
the Respondent at any time since January 9, 2002, at
their last known addresses. In the event that, during the

5 In approving the judge’s recommended remedy, we note the ab-
sence of a central bulletin board for the Respondent’s operations and
the absence of evidence that current employees were also employed at
the time of the unfair labor practices found here.
pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respon-
dent at any time since January 9, 2002.”

Dianne Todd, Esq. and Irene Hartzell-Botero, Esq., for the
General Counsel.
Gary Lofland, Esq. (Lofland & Associates), of Yakima, Wash-
ington, for the Respondent.
Rocky Marshall, Organizer, of Yakima, Washington, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. The original
and amended unfair labor practice charges in Case 19–CA–
27902 were filed by Pacific Northwest Regional Council of
Carpenters, Local 770 (the Union), on January 25 and February
13, 2002, respectively,1 and the unfair labor practice charge in
Case 19–CA–27953 was filed by the Union on February 4,
2002. After investigations of each of the above unfair labor
practice charges, on June 28, 2002, the Regional Director for
Region 19 of the National Labor Relations Board (the Board),
issued a consolidated complaint, alleging that Systems West
LLC (the Respondent), had engaged in, and continues to en-
gage in, unfair labor practices within the meaning of Section
8(a)(1) of the National Labor Relations Act (the Act).2 Re-
spondent timely filed an answer, denying the commission of the
alleged unfair labor practices. Thereafter, on November 5,
2002, the Acting Regional Director of Region 19 issued a re-
port on challenges and objections in Case 19–RC–14200, and,
on the same date, as several of the Union’s objections were
identical to the consolidated complaint allegations, issued an
order consolidating the hearing on the challenges and objec-
tions with the trial on the merits of the unfair labor practice
allegations.3 As scheduled, the merits of the consolidated com-
plaint allegations, the parties’ objections, and the challenged
ballots came to trial before the above-named administrative law
judge in Yakima, Washington, on November 19, 20, and 21,

1 Unless otherwise specified, all events occurred during calendar
year 2002.
2 During the trial of the consolidated complaint allegations, counsel
for the General Counsel sought permission to amend the complaint by
adding three additional allegations of violations of Sec. 8(a)(1) of the
Act and withdrawing several other allegations. I granted counsel’s
motions to amend the consolidated complaint in the above regards, and
counsel for Respondent denied the amendments to the consolidated
complaint.
3 Besides the Union’s objections which were identical to the con-
solidated complaint allegations, set for hearing were the Union’s five
challenged ballots, which were determinative to the results of the elec-
tion, and two objections, which did not correspond to consolidated
complaint allegations and Respondent’s objections to the conduct of the
election.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 854
2002. At the said trial,4 all parties were afforded the opportu-
nity to examine and to cross-examine all witnesses, to offer into
the record all relevant documentary evidence, to argue their
respective legal positions orally, and to file posthearing briefs.
Counsel for the General Counsel and counsel for Respondent
filed posthearing briefs, and these have been carefully consid-
ered.5 Accordingly, based on the entire record, including my
resolution of the credibility of the several witnesses and the
posthearing briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a State of Washington corporation, with an of-
fice and place of business located in Yakima, Washington,
where it is engaged in the business of constructing buildings.
During the 12-month period which immediately preceded the
issuing of the consolidated complaint, in the normal course and
conduct of its above-described business operations, Respondent
had gross revenues in excess of $500,000 and purchased and
received goods and materials, valued in excess of $50,000,
directly from suppliers located outside the State of Washington.
Respondent admits that, at all times material, it has been an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that, at all times material, the Union has
been a labor organization within the meaning of Section 2(5) of
the Act.
III. ISSUES
The consolidated complaint alleges, and the General Counsel
argues, that Respondent engaged in numerous acts and conduct,
violative of Section 8(a)(1) of the Act. These include interro-
gating employees about their own union sympathies and activi-
ties and the union sympathies of their fellow employees and
about their involvement in the filing of unfair labor practice
charges; informing employees that they were not permitted to
have union stickers or other items, indicating support for the
Union, on their hardhats, clothing, or vehicles and warning
employees that, if they did so, they would be terminated;
threatening employees with termination by telling them that, if
they chose the Union as their bargaining representative, they
would only be able to work in the Yakima area, that many of
them would not be qualified to work for Respondent on its
jobsites, and that Respondent would hire new workers from the
Union’s hiring hall, thereby displacing them; threatening em-
ployees that, if they selected the Union as their bargaining rep-
resentative, Respondent would close its doors and they would
have to seek work elsewhere; demanding that employees re-
move union paraphernalia from their bodies and vehicles or

4 During the trial, the Union’s representative withdrew the Union’s
challenges to the ballots of four voters and conceded the outcome of the
election, rendering consideration of Respondent’s objections nugatory.
Further, the Union only presented evidence as to one of its objections,
which did not conform to the allegations of the consolidated complaint.
5 The representative of the Union chose not to file a posthearing
brief due to “budget constraints” and other reasons.
leave their jobsite; threatening employees with termination by
telling them that, if they desired to work for a union company,
they should go work for one; warning employees that they
could not engage in union activities on their jobsite; warning
employees that, if they selected the Union as their bargaining
representative, employees would only work a few months each
year and Respondent would not have enough work to keep
going; informing employees that selecting the Union would
make Respondent less competitive and would force it to shut its
doors; informing an employee that it had a good idea which
employees were attending union meetings, and threatening
employees with the futility of supporting the Union by stating it
would never bargain with the Union, Respondent denied com-
mission of any of the aforementioned alleged violations of Sec-
tion 8(a)(1) of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent, a State of Washington corporation, is engaged
in the business of constructing “Butler Buildings,”6 primarily
for employers engaged in various types of agricultural busi-
nesses in eastern Washington and Oregon. In this regard, Re-
spondent “typically” performs all of the above-ground con-
struction work, including erecting the buildings, with its em-
ployees performing all construction craftwork except concrete
and electrical work, which is subcontracted. The record estab-
lishes that Respondent’s office is located in Yakima, Washing-
ton, that it normally has three or four construction projects in
various phases of work; that its president is David Green and its
treasurer is Tex Fredrickson; that it employs five project super-
intendent/supervisors (David Randall, James Ravine, Jose
Betancourt, Ray Betancourt, and Neil Monoian),7 who oversee
its on-going projects and report directly to him; and that, de-
pending on the season and the amount of work, it employs an
employee complement of between 20 and 60 workers, most of
whom have been employed in excess of a year. The record
establishes that the Union filed a representation petition and an
amended petition with the Board in Case 19–RC–14200 on
January 8 and 14, 2000, respectively, seeking to represent Re-
spondent’s full-time and regular part-time construction em-
ployees; that the parties entered into a stipulated election
agreement, which was approved by the Regional Director for
Region 19 on January 22;8 that the representation election was
conducted by the Board on February 15; and that the tally of
ballots showed that 11 votes were cast in favor of representa-
tion by the Union, 15 were cast against representation, and five
votes were challenged. The record further establishes that,

6 These types of structures are steel buildings, which are constructed
from prefabricated parts, engineered to the specifications of the pur-
chaser, and bolted together by Respondent, mainly used in the commer-
cial building industry.
7 Respondent admitted that Ravine, Randall, Jose Betancourt, and
Monoian are supervisors within the meaning of Sec. 2(11) of the Act.
8 With regard to the election notices, the stipulated agreement sets
forth the following standard language—: “Copies of the Notices of
Election shall be posted by the Employer in conspicuous places and
usual posting places easily accessible to the voters at least three (3)
days prior to . . . the day of the election. . . .”
SYSTEMS WEST LLC 855
during the critical period between the filing of the election peti-
tion and the day of the election, Respondent had employees
working on jobsites in Ione, Oregon, and in Othello, Riverside,
and Union Gap, Washington,9 and that alleged violations of
Section 8(a)(1) of the Act occurred at each of these locations as
well as at Respondent’s office facility in Yakima.
B. Statements made at Respondent’s Magic Metals Jobsite in
Union Gap, Washington
At all times material, in Union Gap, Washington, Respon-
dent was engaged in the construction of an “extension” to the
back building of the facility owned by Magic Metals, a preci-
sion sheet metal company. Henry Les Sutton, who worked as a
laborer for Respondent from 1997 until February 2002, testified
that, one day in the second week of January, he arrived for
work at approximately 7:45 a.m. and discovered that Superin-
tendent Dave Randall was already holding a meeting with the
other members of his work crew.10 “I walked up and . . . Ran-
dall said this is how Dave Green feels about the matter. If you
have union stickers on your vehicles, you need to either peel
them off or park . . . off the premises. If you have union stick-
ers on your hard hat, you need to either remove them or go
home.”11 Louis Gelderman, a welder for Respondent from
early December 2001 until late January 2002,12 testified that at
7 a.m. in the morning on January 23, Randall held a meeting
with the employees at Respondent’s jobsite at the Magic
Metal’s facility. According to Gelderman, immediately after
speaking to David Green by telephone, Randall “called us all
into a group” and told us we had to take off our stickers or we
would be sent home. . . . Also, he told one of the guys that had
a sticker on his car that he had to remove his off the premises”
and “that we weren’t allowed to wear the stickers or do any
Union activity.”13 Also, Superintendent Neil Monoian, who
served as concrete foreman on the Magic Metals project, admit-
ted that, on January 23, he had lunch with Respondent’s con-
struction crew there and, in the midst of eating,14 told them
“that if they wanted to go work for the Union, they should go
get a Union job.” During cross-examination, Monoian admit-
ted uttering the above comment in response to an employee
question regarding what he thought about the Union and re-
sponding that he did not “really care for the Union . . . .”
Respondent admitted that it placed a restriction, regarding
the display of union stickers or like paraphernalia, at its Magic
Metals jobsite but asserted such was “at the insistence of the
customer.” In this regard, Randall testified that, in January, he
had a conversation with Dave Green regarding union materials

9 Apparently, Union Gap is located next to Yakima, Washington.
10 These employees included Louis Gelderman.
11 At the time, Sutton’s hardhat, which was given to him by Respon-
dent, was covered by all types of stickers, including some supporting
the Union and others bearing logos of suppliers and equipment manu-
facturers. These stickers varied in size from “an inch to five inches.”
12 He was laid off.
13 Like Sutton, Gelderman had covered his hardhat with logo stick-
ers, including some supporting the Union and one bearing the call
letters of a radio station.
14 While stating that he normally ate lunch with the construction
crew employees, asked if he maintained his supervisory formality while
eating lunch with his crew, Monoian replied, “Pretty much.”
on its jobsites. “The work site in question was Magic Metals,
and, at the time, the owner of that company had just been
through his union dealings, and it was at his request that
[Green] did not allow any Union paraphernalia on the job.”
However, Randall was impeached on this point by his pretrial
affidavit wherein he stated, “At some point, I had a conversa-
tion with Dave Green.15 He told me not to allow any Union
stickers on hardhats or vehicles on our work sites.” With re-
gard to this subject, while denying he prohibited the affixing of
union stickers to company hardhats on any of Respondent’s
jobsites, David Green testified, “What I said was the Union was
not allowed to come on a work site on private property and
organize. We had a specific request from Magic Metals be-
cause of prior activity that they did not allow any union organi-
zation or propaganda on their site. So I restricted that on that
site.”16 However, as was Randall, Respondent’s president was
impeached by his pretrial affidavit wherein he stated that, after
Randall telephoned him about union activity on the Magic
Metal jobsite, he told Randall employees could neither wear
hats, stickers, or buttons, for or against the Union, on the Magic
Metals jobsite nor have such stickers on their cars on the jobsite
and that he and Tex Fredrickson “then talked to the other super-
intendents and told them that no one could wear any stickers,
hats, et cetera, either pro or con, about the Union on any work
site.”17
Louis Gelderman testified that the day after Randall ex-
plained Respondent’s restriction on union stickers, January 24,
David Green came to the Magic Metals jobsite and met with
Respondent’s construction crew “in the middle of the pad” at
approximately 2:30 in the afternoon. Green “waved” all the
employees to come to where he was standing, and “he asked us
why do you want to go Union.”18 Green “told us that the Union

15 When, as herein, pretrial affidavits of witnesses were utilized for
impeachment purposes, what is stated in the affidavit is not evidence
unless the portion has been adopted by the witness at the hearing as
truthful testimony.
16 David Green failed to testify as to a specific request from a Magic
Metals principal. In this regard, I note that, in his pretrial affidavit,
which is not evidence in this proceeding, Green mentioned a telephone
conversation with a “Gary” Griggs 2 years before the events at issue.
17 According to Kevin Griggs, the owner of Magic Metals, on one
occasion, while attempting to organize Respondent’s employees, Union
“instigators” were “actually standing inside the parking lot of the Magic
Metals facility”; “the problem was that they in far enough on the park-
ing lot that they were around . . . . our own employees’ cars” and “we
had cigarette butts all over the parking lot . . . .” Upset at what oc-
curred, Griggs telephoned David Green and “I basically told Dave that
we were tired of it, and . . . . I explained to Dave either somehow we
found out a way to get those people off of there or I was going to bring
somebody else in to do the job” and “that we needed to figure out how
the Union was not going to be on our property.” Apparently, although
not entirely clear from Griggs’ rather confusing testimony, the latter
had a second conversation with Green during which he told Green “. . .
if there is any sign of the Union out here in any way, that he was going
to be set off the job.” Griggs added that his concern was the “people
organizing, signs anything. . . . we wanted nothing there that had any-
thing to do with the Union” and that his “whole issue” was liability
caused by the union organizers presence on his property.
18 Testimony regarding this question was received as past recollec-
tion recorded.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 856
was a bunch of shit, and they were filling our heads with a
bunch of lies. . . . He told us that, if the Union activity kept up,
Magic Metals would forfeit their contract and that would force
[him] to shut his doors.” “Guys spoke up, saying they wanted
better lives for their families and kids. [Henry Sutton] said he
wanted better benefits and pay. Green responded that he pro-
vided benefits for his employees.”19 Superintendent Dave Ran-
dall admitted being present for this meeting, and further admit-
ted that Green “asked the employees why are you doing this
with the Union” and told them if they wanted to work for a
union company, “why don’t you go work for one” and “the
doors are open, We’re not holding anyone hostage.” David
Green admitted meeting with Respondent’s employees at the
Magic Metals jobsite on January 24. During direct examination
by counsel for the General Counsel, he recalled telling the em-
ployees that, if he had to raise costs to meet union costs, Re-
spondent would “have less clients to work for” and that “the
company could not go Union and be competitive.” Green also
admitted saying to the employees that, “if they wanted [a] Un-
ion and they wanted quick results . . . we didn’t take captives. .
. . They were free to do whatever they wanted to do. They
could go to a Union job if they wanted to.”20
Employees Sutton and Gelderman were uncontroverted that
Superintendent David Randall threatened Respondent’s em-
ployees with termination if they displayed union stickers on
their hardhats and vehicles at its jobsite at the Magic Metals
plant, Respondent admitted that it prohibited its employees
from displaying union stickers on their hardhats and on their
vehicles at that jobsite. Relying upon two recent decisions of
the Board which found the prohibiting of union stickers on
hardhats unlawful,21 the General Counsel contends that Re-
spondent engaged in conduct, violative of Section 8(a)(1) of the
Act, when Superintendent Randall threatened employees in the
above manner. In this regard, it is well settled that, in the ab-
sence of special circumstances, an employee’s wearing of union

19 While Gelderman recalled Sutton being present and responding to
Green’s question, Sutton offered no testimony regarding this meeting.
20 During cross-examination by Respondent’s counsel, asked about
the entire conversation with Respondent’s employees, Green stated that
he held the meeting because of the union organizing and that he told the
employees “that because we worked in agriculture . . . we would not be
able to pay the wages that the Union had presented to them.” He testi-
fied that he based his statement on R. Exh. 1, a document which deline-
ates the Union’s contract wage rates for the central Washington area in
all job classifications in January 2002 and that he told the employees
that, given the Union’s published wage rates, which, at the hearing, he
asserted were $25 or $30 an hour, “we would not be able to be competi-
tive” in the agriculture market and that “.if we had to pay these wages
we would probably lose at least half of the jobs . . . we were working
on . . . .”
With regard to whether Respondent would have been bound to ac-
cept the published wage rates in any collective-bargaining agreement,
which was negotiated between itself and the Union, Wayne Thueringer,
an organizer for the Union denied that all signatory contractors pay the
published wage rates, which are those contained in its master labor
agreement, and testified that, while the Union would initially seek the
published rates, it has “hundreds” of agreements with contractors, who
have negotiated different wage scales.
21 Hansen Aggregates Central, Inc., 337 NLRB 870 (2002); Mingo
Logan Coal Co., 336 NLRB 97 (2001).
buttons or stickers while at work is protected activity under
Section 7 of the Act. Republic Aviation Corp. v. NLRB, 324
U.S. 793 (1945); Burger King Corp., 265 NLRB 1507, 1507
(1982). Examples of special circumstances include mainte-
nance of production and discipline, safety, preventing discord
and violence between competing groups of employees, and
preventing alienation of customers. Eckert Fire Protection,
332 NLRB 202 (2000). In the latter circumstance, mere contact
with customers may not serve as a basis for barring the wearing
of union buttons or stickers, and, absent substantial evidence
that a prounion sticker or button affected a respondent’s busi-
ness, requiring the removal of such “small, nonproactive” items
is unlawful. Burger King Corp., supra. While Respondent
asserts that, by prohibiting the display of union stickers by its
employees on Magic Metals’ property, it was merely respond-
ing to Kevin Griggs’ demands and appeasing a customer, who
was threatening to abrogate a contract, I find Respondent’s
defense not to be credible. Thus, David Green failed to cor-
roborate Griggs as to any specific conversations, regarding
union activity on the Magic Metals property in January, and, if
Griggs is to be believed, his discontent appears to have been
directed toward the presence of union “agitators” on his prop-
erty and any attendant liability and not toward inconspicuous
union buttons or stickers worn by Respondent’s employees.
Thus, I think Respondent’s reaction, prohibiting its employees’
display of “small, non-proactive” union stickers on their hard-
hats and personal vehicles, was excessive when balanced
against the Section 7 rights of its employees. Moreover, both
David Randall and David Green, each of whom testified that
Respondent’s prohibition was site specific to Magic Metals,
were impeached by their respective pretrial affidavits wherein
each stated that Respondent’s prohibition extended to all of its
on-going projects and was not site specific. In these circum-
stances, given that the Board has recently found almost identi-
cal employer conduct unlawful, I find that Respondent’s prohi-
bition, and threat of discharge, directed to its employees’ dis-
play of union stickers on their hardhats and vehicles at the
Magic Metals project to have been volatile of Section 8(a)(1) of
the Act. Hansen Aggregates Central, Inc., supra; Mingo Logan
Coal, supra. Likewise, Randall failed to controvert employee
Gelderman’s testimony that, besides the display of union stick-
ers, he (Randall) extended Respondent’s prohibition to “any
Union activity” on the Magic Metals property. Clearly, said
prohibition was not limited to Respondent’s employees’ work-
ing time but, rather, extended to its employees’ breaktimes and
lunch periods and was, therefore overly broad. In the absence
of a legitimate business reason for such an absolute prohibition,
Randall’s prohibition was violative of Section 8(a)(1) of the
Act. Golub Corp., 338 NLRB 515 (2002).
Next, with regard to superintendent Neil Monoian’s admitted
comment to the construction crew employees at Respondent’s
Magic Metals jobsite, “that if they wanted to go work for the
Union, they should go get a Union job,” the General Counsel
alleges that Respondent thereby violated Section 8(a)(1) of the
Act, and I agree. In my view, such a comment is an oblique
threat of discharge, and the Board has consistently held that an
employer’s suggestion to its employees that union supporters,
who are dissatisfied with their terms and conditions of em-
SYSTEMS WEST LLC 857
ployment, should seek work elsewhere is coercive and violative
of the Act. Hansen Aggregates Central, Inc., supra at 873;
General Fabrications Corp., 328 NLRB 1114, 1120 (1999);
Tualatin Electric, 312 NLRB 129, 134 (1993). Of course,
Monoian exacerbated the coercive effect of his remark by ex-
pressing his own negative thoughts about the Union prior to
making his comment.. In these circumstances, I conclude that
his suggestion to the employees on his construction crew was,
in effect, an unlawful threat of discharge and that Respondent,
thereby, engaged in conduct, violative of Section 8(a)(1) of the
Act.
Turning to the meeting held by David Green with Respon-
dent’s Magic Metals construction crew on January 24, Dave
Randall admitted that Green commenced the meeting, asking
the employees “why are you doing this with the Union,” which
corroborated the testimony, received as past recollection re-
corded, of Louis Gelderman that Green began with the ques-
tion, “why do you want to go Union?” Also, I find that Green
failed to deny Gelderman’s testimony, which I credit, that,
during his speech, he warned the employees “if the Union ac-
tivity kept up, Magic Metals would forfeit their contract and
that would force [him] to shut his doors.” Further, Randall
admitted Green told the employees that, if they wanted to work
for a union company, “why don’t you go work for one” and
“the doors are open. We’re not holding anyone hostage.”
Green admitted making a similar statement during his speech,
testifying he said to the employees that, if they wanted [a] Un-
ion and they wanted quick results . . . we don’t take captives. . .
. They were free to do whatever they wanted to do. They could
go to a Union job if they wanted to.” Finally, Green admitted
telling employees that, based on the Union’s published master
labor agreement wage rates, if he had to raise costs to meet
union costs, Respondent would “have less clients to work for”
and that “the company could not go Union and be competitive”
in the agriculture market.
The General Counsel alleges that Green’s questioning of the
employees at the outset of his speech constituted interrogation,
violative of Section 8(a)(1) of the Act. In this regard, In Ross-
more House, 269 NLRB 1176, 1177 (1984), the Board an-
nounced a test for determining whether an interrogation was
violative of Section 8(a)(1) of the Act—“whether under all the
circumstances the interrogation reasonably tends to restrain,
coerce, or interfere rights guaranteed by the Act.” In Sunnyvale
Medical Clinic, 277 NLRB 1217, 1219 (1985), the Board de-
lineated some of the circumstances to be considered—whether
the employee was an open and active supporter of the union,
the background, the nature of the information sought, the iden-
tity of the questioner, and the place and method of interroga-
tion. Herein, the interrogation, by Respondent’s president oc-
curred against a background of unfair labor practices, including
prohibiting them from engaging in union activities and suggest-
ing that union supporters work elsewhere; there is no evidence
of a legitimate purpose to Green’s question; and his question
was directed to employees, about whom there is no evidence
that any were open and avowed supporters of the Union. In the
foregoing circumstances, considering all the surrounding cir-
cumstances, including the remainder of Green’s speech, which
I shall discuss below, I do not believe that Green’s question
was the sort of casual question, reflecting the realities of the
workplace, which the Board condoned in Rossmore House,
supra. Rather, it was coercive and violative of Section 8(a)(1)
of the Act. Jefferson Smurfit Corp., 325 NLRB 280, 285
(1998). Next, regarding Green’s threat that, if the employees
continued their union activities, Magic Metals would forfeit
their contract, which would force Respondent to shut its doors,
I have previously concluded that what the owner of Magic
Metals was concerned about was outside union supporters en-
tering his property and not the union activities of Respondent’s
employees themselves. Thus, I believe that Green’s statement,
regarding Magic Metals, was disingenuous and that his com-
ment to Respondent’s employees was a blatant threat of busi-
ness closure intended to coerce them to cease any support for
the Union. In this regard, the Board has long held that threats
of business closure are coercive and violative of Section 8(a)(1)
of the Act. Hanson Aggregates Central, Inc., supra at 882;
Feldkamp Enterprises, 323 NLRB 1193, 1200 (1997); Frances
House, Inc., 322 NLRB 516, 523 (1996).
Next, both Randall and Green admitted the latter informed
Respondent’s construction crew employees at Magic Metals
that, in Randall’s words,22 if they wanted to work for a union
company, “why don’t you go work for one” and “the doors are
open. We’re not holding anyone hostage.” As stated above,
contrary to Respondent’s counsel, any suggestion by an em-
ployer to its employees that union supporters, who express
dissatisfaction with their terms and conditions of employment,
should, or are free to, seek employment elsewhere imparts a
clear connotation of coercion, which the Board finds unlawful.
General Fabrications Corp., supra; Tualatin Electric, supra.
Further, Green’s comment mirrored that of Monoian the day
before and reinforced the unmistakable message that Respon-
dent did not want union supporters as employees and that any
such individuals should leave. Green’s comment clearly was
coercive and violative of Section 8(a)(1) of the Act. Finally, as
to Green’s statement that, based upon the Union’s published
wage scale, if Respondent was forced to raise its costs to meet
the costs, under a union contract, it would have fewer custom-
ers and would not be competitive in the agricultural construc-
tion market, the General Counsel alleges that this statement
constitutes a threat of job loss in violation of Section 8(a)(1) of
the Act. Contrary to the General Counsel, Respondent argues
that Green’s statement was a prediction “based upon objective
fact,” the Union’s published wage scale, and Green’s knowl-
edge of the agricultural market. In its seminal NLRB v. Gissel
Packing Co., Inc., 395 U.S. 575 (1969) decision, the Supreme
Court held:

[A]n employer is free to communicate to his employees any
of his general views about unionism or any of his specific
views about a particular union , so long as the communica-
tions do not contain a ‘threat of reprisal or force or a promise
of benefit.’ He may even make a prediction as to the precise
effect he believes unionization will have on his company. In
such a case, however, the prediction must be carefully
phrased on the basis of objective fact to convey an employer’s

22 Green’s admitted comments are virtually identical to Randall’s
admission and, I believe, the clear meaning of both is the same.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 858
belief as to demonstrably probable consequences beyond his
control or to convey a management decision already arrived at
to close the plant in case of unionization.

The Board has held that the burden of proof is upon the em-
ployer to demonstrate that its predictions are based on objective
fact. Schaumburg Hyundai, Inc., 318 NLRB 449, 450 (1995).
While Green referred to the published wage scale while speak-
ing to Respondent’s assembled employees and the wage scale is
in the record, the Board has also held that the above-quoted
Gissel Packing Co. language should not be read as permitting
an employer to leap from the unproven premise that a union’s
wage scale is fixed and immutable to the conclusion that the
company would be noncompetitive and would lose business.
Debber Electric, 313 NLRB 1094, 1097 (1994). Likewise, in
Schaumburg Hyundai, supra, the Board noted that, even assum-
ing a union’s standard agreement contains the provisions,
which the employer predicts, it does not follow that a collec-
tive-bargaining agreement, between the employer and the un-
ion, will “automatically” contain the same provisions. In this
regard, union organizer Thueringer’s testimony was uncontro-
verted that “hundreds” of contractors have negotiated collec-
tive-bargaining agreements, which contain different wage rates
than those set forth in the Union’s master labor agreement.
Therefore, it is apparent that Green prefaced his prediction with
just such an unproven premise (Respondent would be required
to pay its employees at the published wage rates), and, in such
circumstances, conveyed an unspoken, but clear, threat to Re-
spondent’s employees that voting in favor of the Union would
lead to the loss of jobs. Such a threat is patently violative of
Section 8(a)(1) of the Act. Grand Central Partnership, 327
NLRB 966, 970–971 (1999).
C. Statements made to Employees at Respondent’s Ione,
Oregon Jobsite
Respondent has been engaged in the construction of a dairy
building in Ione, Oregon, with James Ravine acting as the pro-
ject superintendent and Jose Betancourt acting as the foreman
over Respondent’s construction crew there, since the fall of
2001. While its employees are working on this project, Re-
spondent pays travel pay between Yakima and Ione and pays
for their housing at the latter location. Ravine testified that one
of Respondent’s employees on the Ione jobsite was Jorge
Ibarra, and Ravine admitted, on one occasion,23 “asking him
what is going on with the Union?” There is no record evidence
of the circumstances surrounding the interrogation, and Re-
spondent failed to offer evidence that Ibarra was an avowed
supporter of the Union or that Ravine suspected Ibarra of such
sympathies. Also, there is no record evidence that Ravine and
Ibarra had ever previously discussed the Union, no evidence of
any social relationship between Respondent’s superintendent
and Ibarra, and no evidence that Ravine assured Ibarra there
would be no reprisals whatever his response. Jose Betancourt
admitted that, in January, Ravine instructed him to tell the
workers on his crew that, if they had union stickers on their

23 Although the consolidated complaint alleges this incident occurred
on January 14, the record evidence vaguely places the conversation
“around January.”
vehicles, to no longer park them on the customer’s property and
that they could no longer wear any union material on the job-
site. Thereafter, according to Betancourt, he relayed Ravine’s
instructions to the employees and added “that, if they didn’t
remove their Union material . . . the company would consider
them to have quit their employment with [Respondent].”24
Betancourt further admitted that, a couple of weeks prior to the
day of the election, he told the employees on his crew “that the
company would have to shut its doors if the Union came into
the company . . . .”25
James Ravine testified that, in January, he visited the jobsite
and walked into the job shack where Respondent’s six con-
struction employees were having lunch. Ravine “asked them
what the Union was offering them,” regarding “anything,” and,
during the ensuing conversation, he told the employees that, if
they chose the Union, they would only be working Yakima jobs
because they would be working out of the Union’s hiring hall in
that city. He added that for jobs out of the Yakima area, such
as Ione, “there is a local hall there. [Respondent] would expect
to use the employees out of the local hall.”26 Also, Ravine told
the construction crew employees “it would be hard to justify
paying these guys journeyman’s wages when you can get jour-
neymen that have the experience of a journeyman carpenter
because most of our employees don’t.” He continued, saying
Respondent really only employed “a couple of people,” who
had journeyman experience. Finally, during the conversation,
Ravine mentioned that Dave Green and Tex Fredrickson did
not like the Union and that, if Respondent did go Union, the
Company would have to close the doors because it couldn’t
afford to do so, having to “bid with Union scale and with Union
benefits . . . .” At that point, he asked the employees if anyone
had questions, and, while he could not recall particular ques-
tions, he did recall answering a question regarding work stop-
pages—“I think I told them that the Union would enter into a
work stoppage . . . .” During cross-examination, Ravine said,
“I was just asked them what the Union was offering. I wanted
them to let me know. I just told them that the Union is going to
take and paint . . . a rosy picture of how things are going to be.”
He also asked the employees about what questions they had
posed to union officials and what the union agents had said in
response. Further, Ravine asserted he made points that most of
the employees did not have enough experience to be hired from

24 Ravine admitted telling Betancourt “to tell his employees that
there couldn’t be any Union paraphernalia on the jobsite and that cars
with Union stickers needed to be moved off the jobsite. During cross-
examination, Betancourt testified that Ravine explained that “the
farmer from the dairy that we were building over there, he didn’t want
Union people there on the site on his place.” Ravine failed to corrobo-
rate Betancourt’s testimony in this regard.
25 During cross-examination, Betancourt testified that he uttered this
warning to the employees, on his crew, during lunch one day and that
what he said was that, “if the Union came in . . . the Company couldn’t
afford a union, it could be shut down, and everybody is going to go
look for work, even me. . . . I told them I really want to go with the
Union with you guys, too. If you guys want a union, I can go, too.”
26 According to Ravine, “I assume the local halls would want their
people working locally.”
SYSTEMS WEST LLC 859
the Union’s hiring hall as journeymen;27 that they would proba-
bly not work on jobs outside the Yakima area “because there
are other locals and we would call people out of those locals
instead of having people travel with us and pay them travel
pay;”28 and that, as most of Respondent’s jobs were prevailing
wage jobs based on ironworkers’ prevailing wages and benefits,
“we would probably . . . use ironworkers instead of carpenters
because I don’t think they could cross the scale that way.”29
Also, Ravine mentioned he did not believe Respondent would
be competitive bidding against nonunion companies because
using union wages and benefits would make it “prohibitive” to
bid the agricultural work, for which Respondent bids.
The consolidated complaint alleges that James Ravine’s ad-
mitted interrogation of employee Ibarra (“what is going on with
the Union?”) was in violation of Section 8(a)(1) of the Act. As
stated above, the test for whether an interrogation violates the
Act is “whether under all the circumstances the interrogation
reasonably tends to restrain, coerce, or interfere with rights
guaranteed by the Act.” Rossmore House, supra. While I note
that there is no record evidence regarding the circumstances
surrounding the alleged unlawful interrogation and perhaps
Ravine’s questioning of Ibarra was casual in nature, utilizing
the above analytical framework, I am convinced that Ravine’s
act was coercive in nature. Thus, Respondent offered no evi-
dence that Ibarra was a known supporter of the Union or that
Ravine suspected him of harboring union sympathies. Further,
the instant interrogation was accomplished by a high-ranking
management official, and, given that Respondent offered no
evidence that the two individuals were social friends, it appears
that there was nothing more between them than a supervisor-

27 Later, Ravine testified that he told the employees they would be
called to jobs off of a “list” and that they would be classified as jour-
neymen or apprentices.
28 Asked how many jobs in Yakima Respondent had at the time,
Ravine answered, “I’m not sure if we had any.” While conceding he
did not base what he said to the employees on anything he read, Ravine
based his comment on his experience with the “Tri Cities” Laborers
local union, whose members would be called for jobs in the Tri Cities
and would not take jobs in the Yakima area. Further, Ravine said he
did speak to Rocky Marshall, the Union’s representative at the trial and
an organizer for the Union, who told him that employees were permit-
ted to travel with the company but that “we have to pay the costs of
them going out to the other areas . . . .” On this point, Ravine stated
that “it would cost us extra, and why would we incur the extra expense
when you should be able to get people of the same caliber from the
same local or from a local close by.”
With regard to using a company’s own personnel to work in geo-
graphical areas outside the geographical area of the Carpenters local
union to which they belong, art. 5, sec. of the Carpenters master labor
agreement states, “Whenever the employer requires carpenters covered
by the agreement on any job, the employer shall request referral of such
carpenters from the local union having jurisdiction.” Nevertheless,
Wayne Thueringer testified that, pursuant to the master labor agree-
ment, employees of signatory contractors have “total portability,”
which enables signatory contractors to take their employees to any
jobsite within the territorial jurisdiction of the master labor agreement.
29 After I pointed out to Ravine that prevailing wage jobs were nor-
mally public sector construction projects and asked what that had to do
with Respondent, which normally did agricultural work, Ravine said
“we didn’t do just dairy work.”
employee relationship. Finally, as has been previously found
and shall be discussed infra, Ravine’s interrogation of Ibarra
occurred in the midst of other unlawful acts and conduct com-
mitted by supervisors of Respondent, including conduct attrib-
uted to Ravine, and the latter gave Ibarra no assurances against
reprisals. In these circumstances, Ravine’s seemingly innocu-
ous but astucious interrogation interfered with Ibarra’s right to
support a labor organization in violation of Section 8(a)(1) of
the Act. Grouse Mountain Lodge, 333 NLRB 1322 (2001);
Advance Waste Systems, 306 NLRB 1029 (1992).
Next, the General Counsel contends that Foreman Betan-
court engaged in two violations of the Act. First, the consoli-
dated complaint alleges that Betancourt’s act, informing Re-
spondent’s construction crew in Ione that personal vehicles,
upon which union stickers had been placed, could no longer be
parked at Respondent’s jobsite and they could no longer wear
union material on their clothing and that, if employees did not
remove such union-related material, Respondent would con-
sider them to have quit their employment with Respondent, was
violative of Section 8(a)(1) of the Act. I find merit in this alle-
gation. As stated above, the Board has recently found almost
identical employer conduct unlawful in Hansen Aggregates
Central, Inc., supra, and in Mingo Logan Coal, supra. Further,
any contention that Respondent’s supervisors were responding
to a contractor request is not credible. Thus, I note that, while
James Ravine confirmed telling Betancourt to prohibit Respon-
dent’s employees at the Ione dairy project from wearing union
stickers on the jobsite or placing such paraphernalia on their
vehicles, he failed to corroborate Betancourt’s assertion that the
former told him the owner of the dairy, at which Respondent
was working, had requested the above prohibition, and there is
no direct evidence of such a request by the owner of the Ione
dairy. Moreover, David Green asserted that Respondent’s ban
on wearing and displaying union stickers was site specific to
the Magic Metals project and never mentioned a request for
such from the owner of the dairy in Ione. In these circum-
stances,30 I believe that Betancourt’s threat of discharge to Re-
spondent’s employees for displaying union paraphernalia on the
jobsite in Ione was violative of Section 8(a)(1) of the Act.
Hansen Aggregates Central, Inc., supra; Mingo Logan Coal,
supra. The consolidated complaint also alleges Betancourt’s
admission, that, a couple of weeks prior to the election, he told
employees on Respondent’s construction crew in Ione “the
company would have to shut its doors if the Union came into
the company,” was likewise violative of Section 8(a)(1) of the
Act. There can be no question, no matter how he phrased his
words and no matter his relationship with his crew, that Betan-
court’s comment constituted a blatant threat of business closure
intended to coerce Respondent’s employees from continuing
their support for the Union, and, as stated above, the Board has
long held such threats to be violative of the Act. I have con-
cluded that an almost identical threat, uttered by David Green
to Respondent’s employees at its Magic Metals jobsite, was

30 I agree with counsel for the General Counsel that, even if the
owner of the dairy in Ione had made a request, Betancourt’s threat
would have been unlawful. Island Creek Coal Co., 279 NLRB 858 at
fn. 2 (1986).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 860
unlawful, and, likewise, I conclude that Betancourt’s admitted
warning was violative of Section 8(a)(1) of the Act. Hansen
Aggregates Central, Inc., supra at 882; Feldkamp Enterprises,
supra; Frances House, Inc., supra.
Turning to James Ravine’s lunchtime meeting with Respon-
dent’s construction crew at the dairy project in Ione, the con-
solidated complaint alleges that, on said occasion, Ravine
unlawfully interrogated the employees and unlawfully threat-
ened them with job loss and closure of the business. With re-
gard to the former, Ravine admitted prefacing his comments by
asking the assembled employees what the Union was offering
them, regarding “anything,” what questions they had asked of
union officials, and what the union agents had told them in
response. As set forth above, pursuant to Rossmore House,
supra, whether interrogation of employees is unlawful depends
upon the circumstances surrounding the questioning. While
counsel for Respondent asserts that Ravine’s questions were
merely “asked in an effort to encourage questioning and discus-
sion,” I note that Ravine’s questions were posed against a
background of blatantly coercive acts and conduct by Respon-
dent’s highest level management officials and supervisors at
other jobsites and at the Ione dairy project and, as will be dis-
cussed, were accompanied by blatantly coercive comments by
him. Further, contrary to counsel, the types of questions, asked
by Ravine, a superintendent, may well have revealed the union
sympathies of those who responded. In short, I believe that, in
the context of Respondent’s concurrent unlawful acts and con-
duct during the preelection period, Ravine’s questions were
coercive and violative of Section 8(a)(1) of the Act.
As to the alleged unlawful threats of job loss, counsel for the
General Counsel specifies Ravine’s admitted comments that, if
the employees selected the Union as their bargaining represen-
tative, they would be limited to working in the Yakima area
and, for jobs outside of the Yakima area, Respondent would
utilize workers dispatched from the out-of-town union locals
and, as it employed only a “couple” of employees with jour-
neyman’s experience, Respondent would not be able to justify
paying its current workers at the journeyman’s wage rate when
it could replace them with more experienced journeymen car-
penters from the Union’s hiring hall. Regarding Ravine’s ini-
tial comment, which counsel for the General Counsel contends
is coercive and threatening but which counsel for Respondent
characterizes as a prediction based upon his prior experience
and the language of the Carpenters master labor agreement, the
coercive effect of his statement seems palpable inasmuch as, at
the time, Respondent had no on-going jobs in Yakima. Further,
at one point, Ravine conceded that the basis for his statement
was merely his assumption “that the local halls would want
their people working locally.” Finally, while Ravine was un-
controverted that he actually told Respondent’s listening em-
ployees they would be limited to working in the Yakima area
“because there are other locals and we would call people out of
those locals instead of having people travel with us and pay
them travel pay,” and while he later learned the Carpenters
would permit Respondent’s workers to have “total portability,”
I do not believe his statement may be characterized as a lawful
prediction, for, as set forth in Gissel Packing, supra, in order to
qualify as such, it must be established that the asserted “predic-
tion” was based upon objective facts as to probable conse-
quences beyond Respondent’s control. A future decision, re-
garding whether to utilize its own employees on out-of-town
jobs and pay travel costs or to use employees, referred from the
Carpenters local union, which has territorial jurisdiction, and
not pay travel costs, clearly would be a choice over which Re-
spondent, rather than a third party, would have absolute domin-
ion. Therefore, in all the above circumstances, Ravine’s state-
ment was tantamount to a threat of job loss and was precisely
the type of statement, prohibited by Gissel. Accordingly, Ra-
vine’s threat was violative of Section 8(a)(1) of the Act. Grand
Central Partnership, supra. Concerning Ravine’s admitted
comment, denigrating the skill level of most of Respondent’s
current work force and suggesting, if the employees selected
the Union as their bargaining representative, that paying them
journeyman’s wage rates could not be justified and that they
could be replaced by more experienced journeymen from the
Carpenters hiring hall, counsel for the General Counsel argues
that, rather than being a prediction, said comment was a threat
as it was not based upon any objective facts. Counsel for Re-
spondent asserts that the General Counsel’s contention is wrong
as it is based upon “superficial analysis.” However, there is no
record evidence that Ravine presented any evidence to the lis-
tening employees, justifying his contention that they would not
qualify as journeymen carpenters, nor did Respondent present
any evidence at the trial establishing that its employees were
unqualified or inexperienced workers and not worth paying the
journeyman’s wage rate. Further, it appears that the choice of
paying its employees at a journeyman’s wage rate or replacing
them with workers, whom it requested from a union hiring hall
would be a decision solely within the control of Respondent. In
these circumstances, as the fate awaiting its employees was
Respondent’s to determine, the plain implication of Ravine’s
statement was that the employees, working at Respondent’s
Ione jobsite would lose their jobs if they selected the Union as
their bargaining representative. Accordingly, I find this state-
ment, by Ravine, likewise to have been a blatant threat of job
loss, violative of Section 8(a)(1) of the Act. D. J. Electrical
Engineering, 303 NLRB 820, 823–824 (1991); Meehan Truck
Sales, Inc., 201 NLRB 780, 784 (1973).
With regard to Ravine’s alleged threat of business closure,
counsel for the General Counsel points to Respondent’s super-
intendent’s admission that he told the Ione employees that, if
they did select the Union as their bargaining representative, the
Company would have to close its doors because it could not
afford to bid jobs, being tied to the Union’s pay scale and other
benefits, and argues that said statement was a threat of business
closure in violation of Section 8(a)(1) of the Act. Noting that,
during cross-examination, Ravine stated that he told the listen-
ing employees that Respondent would not be competitive if
having to bid union wages and benefits, counsel for Respondent
argues that Ravine was merely making a prediction based upon
an objective fact. Contrary to counsel for Respondent, I have
previously discussed the Board’s holding in Debber Electric,
supra, wherein the Board stated that an employer may not jump
from the unproven premise that a union’s pay scale is fixed and
immutable to a conclusion that it may have to shut down the
business and convey this to its employees. Moreover, even
SYSTEMS WEST LLC 861
assuming the Union’s master labor agreement specified certain
wages and benefits, Ravine’s statement to Respondent’s em-
ployees failed to take the collective-bargaining process into
account; it does follow that a collective-bargaining agreement,
between Respondent and the Union, would contain the same
provisions. Schaumburg Hyundai, Inc., supra. Accordingly, as
Ravine’s admitted comment ignored the reality and effects of
collective bargaining, his statement constituted a blatant threat
of business closure if employees selected the Union as their
bargaining representative in violation of Section 8(a)(1) of the
Act.. Id; Famet, Inc., 202 NLRB 409, 419 (1973).
D. Statements Made to Employees at Respondent’s Othello,
Washington Jobsite
In January, Respondent was engaged in the construction of a
small building at the Johnson’s Fertilizer plant in Othello,
Washington. Employee Henry Sutton testified that, one day in
the first week of the month, he overheard a conversation be-
tween Superintendent David Randall and the “senior person”
on the job, Leonel Rosales.31 As Sutton approached Randall,
the latter was speaking to Rosales, who was working above
Randall on a “scissor lift.” Sutton stopped 5 feet from Randall,
who glanced over to Sutton and continued his conversation.
“He was telling Leonel about the Union guy coming to the
office. He was saying that [Respondent] would probably have
to close their doors if we went union, and he didn’t want to
work union, and, if he had a union job . . . he would have went
out and found [one]. He said . . . that ‘it might be all right for
you guys, but it wouldn’t work out for the Mexicans. Then, he
also said that he had a good idea who was attending the Union
meetings and that their initials were ROB and then he glanced
at me and said, Les.” At this point, Sutton walked away while
Randall continued talking.32 While denying he said the Com-
pany would close its doors if the Company went union or had
any idea or suspected specific employees as being union sup-
porters, Randall did recall a conversation with Rosales on the
Johnson’s project during a portion of which Sutton was present.
Randall admitted beginning his conversation with Rosales by
asking the latter “what he knew about the Union,”33 and, after
Rosales denied knowing anything, “what I said was that by

31 According to James Ravine, the superintendent responsible for
the Johnson’s job, while acting as the senior person on jobs for Re-
spondent, Rosales possessed authority to hire employees without au-
thorization. Further, as a senior person, Rosales is authorized to permit
employees to leave work early and to send people home without check-
ing first with a superintendent when weather conditions made work
“counterproductive.” Also, according to Ravine, Rosales uses his
discretion in directing work and is authorized to discipline, without
seeking permission, for safety violations and for infractions, such as
drinking or fighting. David Randall testified that he only worked on
the Johnson’s project for a few days. As to when Rosales began to
exercise his supervisory authority, according to Randall, “it would
occur after I left because my authority would override his while I was
there.” Randall conceded his was the “ultimate authority,” with regard
to supervisory authority, while he worked on the project.
32 The last words, which Sutton heard Randall saying, were “that
they couldn’t compete at Union wages.”
33 There is no evidence that Rosales was an open and avowed union
supporter or that Randall suspected him of supporting the Union.
paying Union wages and the Union benefits . . . we had to raise
our margins by 25 percent. It would take us out of the current
agriculture market that we work in. Someone coming in from
out of town would eat our lunch for us.”
The consolidated complaint alleges that, at its Johnson’s Fer-
tilizer project, Randall, on behalf of Respondent, unlawfully
interrogated an employee regarding what he knew about the
Union, threatened employees that Respondent would have to
close its doors if they selected the Union as their bargaining
representative, and told employees he had a good idea who was
going to union meetings. Citing Long Beach Youth Home, 230
NLRB 648 (1977), counsel for Respondent argues that no vio-
lations of the Act occurred because, regardless of the content
and Sutton’s presence, the above-described conversation was
between two statutory supervisors.34 With regard to the alleged
unlawful interrogation, David Randall admitted questioning
Rosales as to what the latter knew about the Union. Despite
having amended the consolidated complaint during the trial to
allege Randall’s interrogation of Rosales as unlawful, counsel
for the General Counsel failed to include any argument in her
posthearing brief with regard to said conduct, which seems
strange given her refusal to take any position as to Rosales’
asserted status as being a statutory supervisor. In any event, I
am convinced that, while Rosales may have exercised several
of the 2(11) indicia of supervisory authority as the senior per-
son on the Johnson’s project, on other occasions, he was not
acting as a statutory supervisor at the time of Randall’s admit-
ted conversation with him. Thus, Randall admitted that, while
he worked at the Johnson’s project, he was the individual who
exercised final supervisory authority and that Rosales did not
exercise such authority until after he (Randall) left the job.
Moreover, at the time of the questioning, there is no evidence
that Rosales was a known or avowed union supporter, and Re-
spondent presented no evidence that Randall suspected him of
such sympathies. In all the above circumstances, I believe that
Randall’s interrogation of Rosales was coercive and, therefore,
in violation of Section 8(a)(1) of the Act. Grouse Mountain
Lodge, supra.
As to the remainder of the conversation, the portion over-
heard by employee Sutton, the latter impressed me as being a
more honest and forthright witness than Randall, and I shall
rely upon Sutton’s version of what Randall said. Accordingly,
I find that, while speaking to Rosales, Randall warned that
Respondent would probably have to close its doors if the em-
ployees selected the Union. Without doubt, Randall’s warning
was intended to coerce the listening employees to cease sup-
porting the Union, and, as previously stated, the Board consid-
ers such threats of business closure to interfere with and to
restrain employees in the exercise of their Section 7 rights in
violation of Section 8(a)(1) of the Act. Hansen Aggregates
Central, Inc., supra at 882; Feldkamp Enterprises, supra; Fran-
ces House, Inc., supra. I further find that, later, Randall an-
nounced that he had “a good idea” of which employees were
attending union meetings and, then, glanced at Sutton and said,
“Les.” Counsel for the General Counsel argues that Randall’s

34 In her posthearing brief, counsel for the General Counsel declined
to take a position as to the supervisory status of Rosales.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 862
comment and glance were meant to suggest to Sutton that Re-
spondent was closely watching his activities in support of the
Union and that Randall thereby unlawfully created the impres-
sion that Respondent was engaging in surveillance of Randall’s
protected activities. “The Board’s test for determining whether
an employer has created an impression of surveillance is
whether the employee would reasonably assume from the
statement in question the fact his union activities had been
placed under surveillance.” Grouse Mountain Lodge, supra at
1322; Tres Estrellas de Oro, 329 NLRB 50, 51 (1999); United
Charter Service, 306 NLRB 150 (1992). The rationale for
finding such conduct unlawful is that “employees should be
free to participate in union organizing campaigns without the
fear that management is peering over their shoulders, taking
note of which employees are participating and in what ways.”
Flexsteel Industries, 311 NLRB 257 at 257 (1993). In this
regard, the Board does not require that the words, used by the
employer, on their face reveal that the employer has acquired
its knowledge of the employee’s activities by unlawful means.
Tres Estrellas de Oro, supra. By his comment, that Respondent
had a “good idea” who was attending union meetings, Randall
clearly connoted that Respondent was monitoring its employ-
ees’ union activities, and his glance and mentioning of Sutton’s
name patently conveyed to Sutton that Respondent specifically
was aware of his activities in support of the Union. Accord-
ingly, Randall’s comment unlawfully created the impression
that Respondent was engaging in surveillance of Sutton’s union
activities in violation of Section 8(a)(1) of the Act. Tres Estrel-
las de Oro, supra. Finally, with regard to both of the above-
found unfair labor practices, assuming Rosales was acting as a
supervisor, within the meaning of the Act, at the time Sutton
overheard Randall speaking to him, I do not believe such would
insulate Respondent from its unlawful acts and conduct. Thus,
the Board has held that clearly unlawful statements, uttered
between supervisors or agents of an employer in the “presence
and hearing” of its employees, have the effect of coercing and
restraining employees in violation of Section 8(a)(1) of the Act.
GM Electrics, 323 NLRB 125, 126 (1997); Maywood, Inc., 251
NLRB 979, 981 (1980).
E. Statements Made to Employees at Respondent’s Riverside,
Washington Project
In early February, Respondent was engaged in the construction
of a Christian school building in Riverside, Washington. Johnny
McBee, who worked for Respondent from 1996 through July
2002, testified that, in February prior to the election, he and an-
other employee, Keith Hansen, were working at the school con-
struction project “cleaning up the jobsite.” According to McBee,
one day in the afternoon, the job superintendent, Dave Randall,
drove onto the jobsite in his pick-up truck, and “he called me and
Keith over to explain about some union activity that had bee
going on around Yakima at three different companies.” They
were speaking “in front of his truck,” and Randall mentioned one
company “that actually went union” and another at which em-
ployees “tried to vote the union out . . . .” At this point, accord-
ing to McBee, he (McBee) turned to Hansen and asked him to
show Randall some material, which had been given to employees
by union agents. Hansen walked away and returned with some
union literature. Randall refused to examine any of the proffered
documents, and, instead, “asked why we wanted the Union, and
I responded . . . I wanted the Union for benefits for my family
and a better wage. He then told me . . . that [Respondent] would
never bargain . . . .” Randall recalled an occasion at the River-
side, Washington school project when he spoke to McBee35 and
Hansen about the Union. According to Randall, he brought with
him “some paper work from the past cases with different compa-
nies about what happened . . . when the Union came in” and initi-
ated a conversation with McBee and Hansen. As to what was
said, Randall was able to recall nothing about the conversation
but specifically denied telling them that Respondent would never
bargain with the Union. While Dave Randall was not a particu-
larly impressive witness and had little recall of the above inci-
dent, he, nevertheless, impressed me as being a more candid
witness than McBee. The latter was a particularly disingenuous
witness, one whom I believe fabricated most, if not all, of his
testimony. In this regard, I note that not only did McBee fail to
mention any of his above testimony in his pretrial affidavit but
also he testified about other obviously unlawful statements made
by Randall. Yet, clearly indicating their lack of confidence in his
veritability, when offered the opportunity to move to amend the
consolidated complaint to allege these statements as unfair labor
practices, counsel for the General Counsel declined to do so. In
these circumstances, as I doubt the honesty of McBee, I shall
recommend the dismissal of paragraphs 8(d)(1) and (2) of the
consolidated complaint.
F. Questioning of an Employee at Respondent’s Office in
Yakima, Washington
Employee, Ervin Hansen, was laid off by Respondent on
January 25,36 and, on the same day, the Union filed its unfair
labor practice charge in Case 19–CA–27902, alleging in part
that Respondent laid off Hansen and others in order to coerce
its employees to vote against the Union and abandon their sup-
port for it. Respondent’s president, David Green, testified that,
approximately a week later, Hansen came to the Company’s
office in Yakima, seeking work. Under questioning by counsel
for the General Counsel, Green testified that he spoke to Han-
sen and conceded interrogating him about the unfair labor prac-
tice charge. In this regard, Green commenced their conversa-
tion, asking “how did [the Union] lead you into the charge?”
Then, Green showed Hansen a copy of the unfair labor practice
charge and asked him “what he thought of [it]?” According to
Green, who admitted having no knowledge as to whether Han-
sen had engaged in any activities in support of the Union, Han-
sen responded by apologizing for having his name included

35 As with Leonel Rosales, Respondent asserts that, while he
worked for Respondent, McBee exercised the authority of a supervisor,
within the meaning of Sec. 2(11) of the Act. Thus, according to Ran-
dall, McBee could effectively recommend the firing of employees and
was authorized to discipline employees by sending them home. Fur-
ther, he had authority to send employees home in bad weather condi-
tions and was authorized to grant overtime to employees without first
seeking permission from Randall.
36 Of course, if Green is correct as to the date of Hansen’s layoff, the al-
leged conversation between Randall, McBee and Hansen at Respondent’s
jobsite in Riverside, Washington could not have occurred in February.
SYSTEMS WEST LLC 863
among the alleged discriminates and said that he knew he had
not been laid off due to any union organizing activities and that
he had requested the Union to remove his name from the unfair
labor practice charge. Counsel for the General Counsel alleges
that, “under the totality of the circumstances,” Green’s admitted
interrogation of Hansen was violative of Section 8(a)(1) of the
Act. I agree. Thus, Respondent does not contend that Hansen
was an open and avowed supporter of the Union. Respondent’s
interrogation of its former employee was conducted by its high-
est management official, David Green, in his office and against
a background of serious unfair labor practices, several of which
were committed by Green. Other than Green satisfying his ego
or personal interest, there does not appear to have been any
legitimate purpose to the questioning of Hansen, and Green
gave him no assurances that his answers would not adversely
affect his chances of being recalled to work by Respondent. In
these circumstances, I agree with counsel for the General
Counsel that Green’s interrogation of Hansen was violative of
Section 8(a)(1) of the Act.
G. The Representation Election
The Union’s Objections
The Union’s second objection37 to conduct, by Respondent,
which allegedly affected the results of the February 15 repre-
sentation election, is that “the notices of election were not
posted in places reasonably accessible to the voters. The No-
tices were not posted on the jobsites.” In this regard, Section
103.20 of the Board’s Rules and Regulations provides that
“Employers shall post copies of the Board’s official Notice of
Election in conspicuous places at least 3 full working days prior
to 12:01 a.m. of the day of the election.” Clearly, the Union
was aware that Respondent’s employees work on jobsites away
from the Yakima, Washington area; nevertheless, the stipulated
election agreement, which was executed by the parties and
approved by the Regional Director for Region 19 on January
22, is silent as to the locations where the election notices were
to be posted, stating only that the notices of election shall be
posted “in conspicuous places. Respondent conceded,38 and the
record establishes, that none of the notices of election were
posted at its jobsites in Washington or Oregon, and several
witnesses testified that no election notices were posted at Re-
spondent’s Magic Metals jobsite or at its jobsite in Ione, Ore-
gon.39 With regard to where the election notices were posted,
Catherine Paterson-Lee, Respondent’s bookkeeper, testified
that these were posted at Respondent’s office on the doors of a
cabinet behind her desk and on a bulletin board in the kitchen
of Respondent’s office for the 3 days prior to the day of the
election. However, there is no record evidence that, during the

37 As the Union presented no evidence as to its other objection, I
shall recommend that it be dismissed.
38 I fail to understand why the Acting Regional Director set this ob-
jection for hearing. The Board has held that a hearing on objections is
held only where there are substantial material issues of fact. Speakman
Electric, 307 NLRB 1441 (1992).
39 While there is record evidence that “hardhats required” notices
are posted at jobsites, apparently, there are no bulletin boards on job-
sites on which employee notices are posted.
3-day period prior to the election on February 15, any voting
unit employees ever saw the election notices. In this regard, the
record establishes that employees, who are working on jobsites
outside of Yakima, normally have no occasion to visit Respon-
dent’s office40 and that paychecks are usually distributed to
employees on their jobsites by Respondent’s foremen or super-
intendents. Peterson-Lee testified, without contradiction, that,
in the absence of employees actually visiting the office in order
to view the official notices of election and to ensure that its
voting unit employees were aware of the time and date of the
representation election, in the week before the election, Re-
spondent placed typewritten notices, which set forth informa-
tion regarding the election, in its voting unit employees’ pay-
check envelopes, and attempted to telephone each of said em-
ployees, listed on the election eligibility list. Regarding the
telephone calls, she conceded that some employees’ telephones
had been disconnected and others did not answer.
The Union argues that the term “conspicuous places,” as
used in Section 103.20, should be interpreted as requiring the
posted notices be “reasonably accessible” to the voting unit
employees and that such an interpretation would have required
Respondent to have posted copies of the election notices on
each of its jobsites.41 I agree. Initially, I note that, in 1987,
when it adopted Section 103.20, codifying that the official elec-
tion notices must be posted, by employers, in “conspicuous
places,” the Board rejected a suggestion that it define the word
“conspicuous,” stating that it “saw no need to describe the term
or limit the number of places that could be called “conspicu-
ous.” Further, prior to the adoption of Section 102.30, while it
does not appear that the Board ever established rules specifying
exact locations in particular industries where election notices
must be posted, it did sustain objections to elections based upon
a failure to post in conspicuous places. Thus, in Kilgore Corp.,
203 NLRB 118, 118–119 (1973), enf. denied 510 F.2d 1165
(6th Cir. 1975), the Board sustained an objection to the conduct
of a representation election, holding that the employer did not
give employees “sufficient advance notice of the election,” in
part, because, notwithstanding the instruction to post notices in
conspicuous locations, none of the election notices were posted
in the areas, which housed employees’ workstations and one
was posted in the personnel office, a location “not routinely
visited by employees . . . .” Likewise, in Thermalloy Corp.,
233 NLRB 428 (1977), in which the employer’s facility con-
sisted of two buildings “not within walking distance of each
other,” the Board upheld an objection to the conduct of an elec-
tion inasmuch as, despite the admonition to post election no-

40 While counsel for the General Counsel points out that the Magic
Metals jobsite was in Union Gap and Union Gap is located only 3 miles
from Yakima, there is no evidence that any of Respondent’s employees,
who worked at the Magic Metal’s jobsite, had any reason to visit Re-
spondent’s office prior to the election. Put another way, no matter the
distance from Respondent’s jobsites to its office, the issue is whether
any employee had reason to be at the office in order to have access to
the election notices.
41 In asserting this legal position at the hearing, the Union’s represen-
tative said that he had case support for it and would provide such to me in
his posthearing brief. Unfortunately, the Union failed to file a brief.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 864
tices in conspicuous places, the employer posted none of the
election notices in one of its buildings.
I am convinced that the real issue is not the locations of the
posted election notices but, rather, whether Respondent’s em-
ployees were afforded access to them. In this regard, notwith-
standing that its employees worked on jobsites and had no oc-
casion to visit its office, Respondent only posted the official
notices of election at its office. In this manner, Respondent
virtually ensured that none of its voting unit employees would
have access to an official notice of election during the man-
dated 72- hour posting period. Respondent’s counsel is correct
that the Board has recently overruled objections to elections
based upon assertions that the notices of election were not ac-
cessible to employees during the entire 3-day notice posting
period. In Penske Dedicated Logistics, 320 NLRB 373 (1995),
the Board concluded that the employer had complied with the
posting requirements of Section 103.20 notwithstanding that,
while the election notices were posted for 3 full working days,
which encompassed a weekend, 36 percent of the voting unit
were regular part-time employees, who, while they worked on
the weekends, were denied access to the room in which the
notices were posted on the Sunday prior to the election. Also,
in Cleveland Indians Baseball Co., 333 NLRB 242 at 579–580
(2001), in which, for an election to be conducted on August 18,
the employer posted the notices of election on August 8 and the
voting unit employees worked on that day and on August 9 but
did not work on August 10 through 17 because the baseball
team was on a road trip, the petitioner argued that the employ-
ees were denied access to the election notices. The Board re-
jected the petitioner’s objection, based upon lack of access,
noting that the employer’s conduct had conformed to the lan-
guage of Section 103.20. However, contrary to counsel, both
of these decisions are clearly distinguishable; for, in contrast to
the instant circumstances, the voting unit employees in Penske
and in Cleveland Indians enjoyed some, although limited, ac-
cess to the election notices. Of course, given their work cir-
cumstances, none of Respondent’s voting unit employees had
any access to the Board’s election notices.42 As the Board
noted in Kilgore Corp., supra, affording employees access to
view the official notices of election is of crucial import to the
election process, for, besides containing crucial information
regarding the election, the official notices contain clear state-
ments of the rights of employees under the Act. Finally, while
counsel for Respondent points to the stipulated election agree-
ment, into which the parties entered on or about January 22,
and notes that the Union raised no objection to posting based
upon the employees location of work, the agreement does re-
quire posting in “conspicuous places and usual posting places
easily accessible to the voters,” and the burden was upon Re-
spondent to ensure such was done. It would be placing form
over substance to hold that notices, posted at Respondent’s
office in Yakima, were “easily accessible” to its employees,

42 Respondent obviously recognized the deficiency inherent in post-
ing the election notices only at its office when it went through the effort
of placing letters, informing employees of the time and date of the
election, in the employees’ pay envelopes and of telephoning employ-
ees in said regard.
who were working on its jobsites and had no need to travel to
Respondent’s office. In the foregoing circumstances, I find
merit to the Union’s second objection.43
The various provisions of the Union’s fifth objection to the
conduct of the secret ballot election are basically identical to the
various allegations of the consolidated complaint. However,
while I have found merit to all but one of the allegations of the
consolidated complaint, I cannot find, with certainty, that all of
said acts and conduct occurred during the critical period—
January 8 through February 15. Thus, while I have found that, at
Respondent’s Johnson’s Fertilizer jobsite, David Randall interro-
gated Leonel Rosales regarding his knowledge about the Union,
threatened employees with closure of the business if they selected
the Union as their bargaining representative, and created the im-
pression in the minds of employees that Respondent has been
engaged in surveillance of their activities in support of the Union
and concluded that said acts and conduct were violative of Sec-
tion 8(a)(1) of the Act, Henry Sutton only was able to place Ran-
dall’s conduct as occurring in the first week of January. This is
not sufficient to establish that the acts occurred on or subsequent
to January 8, the day on which the Union filed its representation
petition in Case 19–RC–14200. Likewise, James Ravine admit-
ted interrogating employee, Jorge Ibarra, on Respondent’s dairy
project in Ione, Oregon, and I concluded that this act violated
Section 8(a)(1) of the Act.. However, as the record only estab-
lishes this as occurring in “around January,” such is insufficient
to warrant the conclusion that Ravine’s act occurred on or subse-
quent to January 8. Accordingly, I conclude that the portions of
the Union’s fifth objection, which allege these acts and conduct,
are without merit.44 Other than as noted above, as they track
allegations of the consolidated complaint, which I have found to
constitute serious unfair labor practices, I find the remaining
portions of the Union’s fifth objection and the Union’s second
objection to be meritorious. In these circumstances, I further find
that Respondent’s acts and conduct were sufficiently serious to
have destroyed the laboratory conditions, which are required for
the unfettered selection of a bargaining representative, and to
warrant setting aside the election. Accordingly, I remand Case
19–RC–14200 to the Regional Director for Region 19 for the
purpose of conducting a new election at such time as he deems
circumstances permit the free choice of a bargaining representa-
tive.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.

43 While there may have been no “usual posting places” at any of
Respondent’s jobsites, it is inconceivable that no posting areas existed
at any of said jobsites. In this regard, I note that there is record evi-
dence of the posting of signs, requiring the use of hardhats, at the job-
sites.
44 I found that several of Superintendent Ravine’s comments to Re-
spondent’s employees during his lunchtime meeting with them at the
Ione jobsite were violative of Sec. 8(a)(1) of the Act. While these are
dated as occurring “in January,” the content of the meeting convinces
me that Ravine uttered his remarks during the critical period in an effort
to coerce the listening employees to vote against the Union in the repre-
sentation election. Therefore, I find merit to the portions of the Union’s
fifth objection in these regards.
SYSTEMS WEST LLC 865
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By, at its Magic Metals jobsite in Union Gap, Washing-
ton, through David Randall, prohibiting its employees from
displaying union stickers on their hardhats or personal vehicles
and by threatening them with termination if they engaged in
such activities, Respondent engaged in acts and conduct viola-
tive of Section 8(a)(1) of the Act.
4. By, at its Magic Metals jobsite in Union Gap, Washington,
through David Randall, prohibiting its employees from engaging
in any activities in support of the Union, Respondent engaged in
acts and conduct violative of Section 8(a)(1) of the Act.
5. By, at its Magic Metals jobsite in Union Gap, Washing-
ton, through Neil Monoian, suggesting its employees that, if
they wanted to go work for the Union, they should go get a
union job, Respondent coerced its employees and, in effect,
threatened its employees with termination, thereby engaging
acts and conduct violative of Section 8(a)(1) of the Act.
6. By, at its Magic Metals jobsite in Union Gap, Washing-
ton, through David Green, interrogating its employees as to
why they wanted the Union, threatening its employees with
business closure if they continued their support for the Union,
suggesting to its employees that, if they wanted to work for a
union company, they should seek work elsewhere and, in ef-
fect, threatening them with termination, and, by making unsup-
ported predictions of an inability to compete, threatening its
employees with loss of their jobs because or their support for
the Union, Respondent engaged in acts and conduct violative of
Section 8(a)(1) of the Act.
7. By, at its Ione, Oregon jobsite, through Jose Betancourt,
prohibiting its employees from displaying union stickers on
their clothing while working or on their vehicles, parked on the
jobsite, and threatening them with discharge if they engaged in
such activities and threatening its employees with business
closure if they selected the Union as their bargaining represen-
tative, Respondent engaged in acts and conduct violative of
Section 8(a)(1) of the Act.
8. By, at its Ione, Oregon jobsite, through James Ravine, in-
terrogating employees regarding their union activities and what
the Union was offering to the employees, making an unsup-
ported prediction about future work opportunities over which
Respondent would have absolute control and, thereby, threaten-
ing employees with job loss because of their support for the
Union, denigrating the skill level of most of Respondent’s cur-
rent work force and suggesting that, if they selected the Union
as their bargaining representative, it could not justify paying
them at the journeyman wage rate and would replace them with
more experienced journeymen from the hiring hall and,
thereby, threatening its employees with job loss based upon a
decision solely within its control, and threatening its employees
with business closure, Respondent engaged in acts and conduct
violative of Section 8(a)(1) of the Act.
9. By, at its Othello, Washington jobsite, through David
Randall, interrogating its employees regarding their knowledge
about the Union, threatening its employees with business clo-
sure if the employees selected the Union as their bargaining
representative, and creating in the minds of its employees the
impression it was engaging in surveillance of their union activi-
ties, Respondent engaged in acts and conduct violative of Sec-
tion 8(a)(1) of the Act.
10. By, at its office in Yakima, Washington, through David
Green, interrogating a former employee regarding the inclusion
of his name, as an alleged discriminatee, in an unfair labor
practice charge, filed by the Union, Respondent engaged in acts
and conduct violative of Section 8(a)(1) of the Act..
11. The above unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
12. Respondent has not otherwise violated the Act as alleged
in the consolidated complaint.
THE REMEDY
I have found that Respondent engaged in serious unfair labor
practices violative of Section 8(a)(1) of the Act. Therefore, I
shall recommend that Respondent be ordered to cease and de-
sist therefrom and to take certain affirmative actions designed
to effectuate the purposes and policies of the Act, including the
posting of a notice, delineating for its employees its acts of
misconduct, and mailing said notice to each of its employees.45
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended46
ORDER
The Respondent, Systems West LLC, Yakima, Washington,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees at various jobsites as to their
union activities, their knowledge about the Union, why they
want the Union, and what the Union was offering to them.
(b) Interrogating former employees regarding their inclusion
as alleged discriminates in unfair labor practice charges filed by
the Union.
(c) Prohibiting its employees from displaying union stickers
on their hardhats or clothing on its jobsites and from displaying
union stickers on their vehicles parked on its jobsites;
(d) Prohibiting its employees from engaging in activities in
support of the Union on its jobsites.
(e) Threatening its employees with termination if they dis-
play union stickers on their hardhats or vehicles on its various
jobsites.
(f) Suggesting to its employees, and, in effect, threatening
them with discharge, that, if they want to work for a union
company, they should seek employment elsewhere.
(g) Threatening its employees with closure of the business if
they continued to support the Union or selected the Union as
their bargaining representative.

45 In agreement with counsel for the General Counsel, I shall require
that copies of the notice to employees be in both English and Spanish.
In addition, I shall require that Respondent post copies of the notice at
its office and at each of its current jobsites. Given my posting require-
ment, I do not believe it necessary that Respondent also mail copies of
the notice to each of its current employees.
46 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 866
(h) Threatening its employees with loss of jobs by making
unsubstantiated predictions of inability to compete, future work
opportunities, or occurrences within its control if they contin-
ued to support the Union or selected the Union as their bargain-
ing representative.
(i) Creating, in the minds of its employees, the impression
that it has been engaging in surveillance of their activities in
support of the Union.
(j) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaran-
teed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its of-
fice facility in Yakima, Washington and at each of its current
jobsites in the States of Washington and Oregon, copies of the
attached notice (in English and in Spanish) marked “Appen-
dix.”47 Copies of the notice, on forms provided by the Regional
Director for Region 19, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since January 9, 2002.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the election held on February 15,
2002, be set aside and the case be remanded to the Regional
Director of Region 19 to conduct a new election when he
deems the circumstances permit the free choice of a bargaining
representative.
APPENDIX

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD

47 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties

WE WILL NOT interrogate our employees at our jobsites as
their activities in support of Pacific Northwest Regional Coun-
cil of Carpenters, Local 770 (the Union), their knowledge about
the Union, why they want representation by the Union, and
what offered to them.
WE WILL NOT interrogate our former employees regarding
their inclusion as alleged discriminates in unfair labor practice
charges, filed by the Union.
WE WILL NOT prohibit our employees from displaying union
stickers on their hardhats or clothing on our jobsites or from
displaying union stickers on their vehicles, which are parked at
our jobsites.
WE WILL NOT prohibit our employees from engaging in ac-
tivities in support of the Union on our jobsites.
WE WILL NOT threaten our employees with discharge if they dis-
play union stickers on their hardhats or vehicles at our jobsites.
WE WILL NOT suggest to our employees and, in effect,
threaten them with discharge, that, if they want to work for a
union company, they should seek employment elsewhere.
WE WILL NOT threaten our employees with closure of the
business if they continue to support the Union or select the
Union as their bargaining representative.
WE WILL NOT threaten our employees with loss of their jobs
by making unsubstantiated predictions of inability to compete,
lack of future job opportunities, or occurrences within its con-
trol if they continue their support for the Union or select the
Union as their bargaining representative.
WE WILL NOT create in the minds of our employees the im-
pression that we are engaging in surveillance of their activities
in support of the Union.
WE WILL NOT, in any manner, interfere with, coerce, or re-
strain our employees in the exercise of the rights guaranteed to
them by Section 7 of the Act.

SYSTEMS WEST LLC