T.C. Brome Construction Co., Inc.

National Labor Relations Board - Board Decisions

Jul 28, 2006

347 N.L.R.B. 656 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 63
656
T.C. Broome Construction Company, Inc. and Inter-
national Brotherhood of Electrical Workers,
Local Union No. 903, AFL–CIO. Cases 15–CA–
16185, 15–CA–16231, 15–CA–16232, 15–CA–
16247, and 15–CA–16299
July 31, 2006
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND KIRSANOW
On August 14, 2002, Administrative Law Judge Par-
gen Robertson issued the attached decision; on Septem-
ber 10, 2002, he issued an erratum. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified,2 and to adopt the recommended Order as
modified3 and set forth in full below.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
There are no exceptions to the judge’s finding that Project Manager
Tim Hamilton’s June 2001 interrogation of James Kidd Jr., did not
violate Sec. 8(a)(1), in view of Kidd’s open showing that he was asso-
ciated with the Union.
Because the Respondent repeatedly coercively interrogated employ-
ees in violation of Sec. 8(a)(1), we find it unnecessary to pass, as cumu-
lative, on the judge’s finding that Foreman Mark Cruff violated Sec.
8(a)(1) by questioning employee David Prichard regarding union em-
ployees’ use of tape recorders.
Finally, in discussing the Respondent’s failure to reinstate four em-
ployees, the judge referred to the date they made unconditional offers
to return to work as both August 20 and 24, 2001. The correct date, as
shown by the testimony and as alleged in the complaint, is August 20,
2001.
2 In affirming Conclusion of Law 4, as amended below, we note that,
although the complaint alleged both refusal-to-consider and refusal-to-
hire violations, the judge truncated the analysis, specifically finding
only the refusal-to-hire violations. However, because the broader re-
fusal-to-hire remedy subsumes the remedy for any refusal-to-consider
violation, the judge’s failure to make explicit findings regarding the
refusal-to-consider allegations does not materially affect the remedy.
Therefore, we need not reach this issue. See Jobsite Staffing, 340
NLRB 332, 333 (2003).
3 We have modified the judge’s recommended Order by (1) deleting
par. 1(a) (it appears that the judge inadvertently copied that language
from another order); (2) adding new pars. 1(a) through (o), ordering the
Respondent to cease and desist from the unfair labor practices found by
the judge; and (3) adding our standard electronic records, expungement,
and contingent notice-mailing language (see infra pars. 2(f), (e), and
We also amend Conclusions of Law 3 and 4 and the
remedy section of the judge’s decision as set forth in full
below.4
AMENDED CONCLUSIONS OF LAW
Substitute the following as new Conclusions of Law 3
and 4:5
“3. The Respondent, by coercively interrogating its
employees about the Union; by demanding that its em-
ployees promise not to talk about the Union or try to
organize its job; by telling its employees that other em-
ployees had been laid off because of their union activi-
ties; by telling its employee that it had phoned him in an
effort to mislead prounion employees into believing they
were not being laid off because of the Union; by telling
its employee he may be considered for promotion if he
promised not to engage in union organizing activity; by
telling its employees that it had to get rid of some em-
ployees because they were trying to organize the job; by
threatening to fire its employee if he talked about the
Union on the job; by creating the impression among its
employees that it was engaged in surveillance of the em-
ployees’ union activities; by stating in the presence of its
employee that it had just fired the employee who was
“the last Union man on the job”; and by telling employ-
ees that certain union employees were “blackballed” and
that the Respondent could not hire union employees,
engaged in conduct in violation of Section 8(a)(1) of the
Act.
“4. The Respondent, by laying off employees Joe Bre-
land, Scottie Ladner, Bill Ballard, Dale Weekly, Ralph
Morin, Sam Patterson, and Jesse Lewis on May 4, 2001,
and by failing and refusing to recall Joe Breland, Bill
Ballard, and Dale Weekly on May 7; by failing and re-
fusing to hire employees James Kidd Jr., Cliff Zylks,
Hewitt Barton, Gerald Lott, Clay Leon, Richard Berlier,
Chuck Dame, and Dwane Reeves on and after May 15
and employees Alvin Cuevas, Kerman Ladner, and Troy
Bordelon on and after July 6; by discharging employee

(h), respectively). We have substituted a new notice to conform to the
modified Order.
4 We have deleted fns. 21 and 22 from the remedy section of the
judge’s decision, as those footnotes appear to have been inadvertently
copied from another decision. We have also amended the remedy to
conform to the judge’s conclusions of law as amended herein.
5 We have amended Conclusion of Law 3, consistent with the
judge’s finding of an unfair labor practice (JD 13:1–5), to add that the
Respondent also violated Sec. 8(a)(1) by Hamilton’s and Cruff’s com-
ments that employees David and Scottie Ladner were “blackballed” and
that the Respondent could not hire union employees. The judge inad-
vertently omitted these findings from his conclusions of law. In addi-
tion, we have amended Conclusion of Law 4, consistent with the
judge’s corresponding finding (JD 7:27), to correctly reflect that Scottie
Ladner was terminated on May 21 (not May 15).
T. C. BROOME CONSTRUCTION CO. 657
Scottie Ladner on May 21; and by refusing to recall, on
and after August 20, employees David Prichard, David
Brown, Ernest Robertson, and Thomas Corbin following
their economic strike and unconditional offer to return to
work, has engaged in conduct in violation of Section
8(a)(1) and (3) of the Act.” 6
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent, having discriminatorily laid off em-
ployees Joe Breland, Scottie Ladner, Bill Ballard, Dale
Weekly, Ralph Morin, Sam Patterson, and Jesse Lewis
on May 4, 2001, and having failed to recall Breland, Bal-
lard, and Weekly on May 7, 2001, and having discrimi-
natorily discharged Scottie Ladner on May 21, 2001,7
must offer Breland, Ladner, Ballard, and Weekly full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, and
make Breland, Ladner, Ballard, Weekly, Morin, Patter-
son, and Lewis whole for any loss of earnings and other
benefits, computed on a quarterly basis from their dates
of discriminatory layoff or discharge to date of proper
offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
The Respondent, having discriminatorily refused to re-
instate former economic strikers Thomas Corbin, David
Brown, David Prichard, and Ernest Robertson following
their unconditional offer to return to work on August 20,
2001, to vacancies created by the departure of replace-
ments from the strikers’ former jobs or to vacancies in
substantially equivalent positions, must offer them full
reinstatement to their former jobs or to substantially
equivalent positions, and make them whole for any loss
of earnings and other benefits, computed on a quarterly
basis from the dates of the discriminatory refusals to
reinstate to date of proper offer of reinstatement, less any
net interim earnings, as prescribed in F. W. Woolworth
Co., above, plus interest as computed in New Horizons
for the Retarded, above.
The Respondent, having discriminatorily refused to
hire James Kidd Jr., Cliff Zylks, Hewitt Barton, Gerald
Lott, Clay Leon, Richard Berlier, Chuck Dame, Dwane

6 We note that certain employees’ names were spelled differently in
the complaint and/or exhibits. To avoid confusion, we have referred to
employees and spelled their names as the judge did in his decision.
7 The remedy for Scottie Ladner should reflect that he was laid off
on May 4, recalled on May 7, and then discharged on May 21.
Reeves, Alvin Cuevas, Kerman Ladner, and Troy Bor-
delon, must offer them instatement and make them whole
for any loss of earnings and other benefits, computed on
a quarterly basis from the date they would have been
hired, less any net interim earnings, as prescribed in F.
W. Woolworth Co., above, plus interest as computed in
New Horizons for the Retarded, above.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, T.C. Broome Construction Company, Inc.,
Pascagoula, Mississippi, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Informing employees that they and/or other em-
ployees had been laid off because of their union activities
or the union activities of others.
(b) Telling employees that they would be considered
for promotion if they promised not to engage in union
activity.
(c) Coercively interrogating employees about union
support or union activities.
(d) Creating an impression among its employees that
their union activities were under surveillance by the Re-
spondent.
(e) Conditioning employees’ employment on their as-
surances that they would not engage in union activity.
(f) Telling employees that they had been contacted for
the purpose of misleading other employees into believing
they were not being laid off because of their union activi-
ties.
(g) Threatening employees with termination if they
talked about the Union.
(h) Informing employees that other employees had
been terminated because of their union activities.
(i) Informing employees that it would not hire union
electricians.
(j) Informing employees that it was blackballing for-
mer employees because of their union activities.
(k) Promulgating and maintaining an overly broad no-
solicitation rule.
(l) Laying off employees, and refusing to recall them,
because they joined or assisted the Union and engaged in
concerted activities.
(m) Discharging or otherwise discriminating against
any employee for supporting the International Brother-
hood of Electrical Workers or any other labor organiza-
tion.
(n) Refusing to hire job applicants because of their un-
ion membership or sympathies.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD658
(o) Refusing to offer, without justification, its former
striking employees, who made unconditional offers to
return to work, reinstatement to their prestrike positions
when those positions become available.
(p) In any like or related manner interfering with, re-
straining, or coercing employees or applicants for em-
ployment in the exercise of rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Joe Breland, Scottie Ladner, William Ballard, and Dale
Weekly full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(b) Within 14 days from the date of this Order, offer
David Brown, Thomas Corbin, David Prichard, and
Ernest Robertson full reinstatement to their former jobs,
discharging, if necessary, any employees hired to fill
those positions after the strikers’ August 20, 2001 offer
to return to work, or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
(c) Within 14 days from the date of this Order, offer
James Kidd Jr., Cliff Zylks, Hewitt Barton, Gerald Lott,
Clay Leon, Richard Berlier, Charles Dame, Dwane
Reeves, Alvin Cuevas, Kerman Ladner, and Troy Bor-
delon instatement to the positions for which they applied
or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges to which they would
have been entitled absent the discrimination.
(d) Make Joe Breland, Scottie Ladner, William Bal-
lard, Dale Weekly, Sam Patterson, Ralph Morin, Jesse
Lewis, David Brown, Thomas Corbin, David Prichard,
Ernest Robertson, James Kidd Jr., Cliff Zylks, Hewitt
Barton, Gerald Lott, Clay Leon, Richard Berlier, Charles
Dame, Dwane Reeves, Alvin Cuevas, Kerman Ladner,
and Troy Bordelon whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them, in the manner set forth in the amended
remedy, above.
(e) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful layoffs/ dis-
charges of Joe Breland, Scottie Ladner, William Ballard,
Dale Weekly, Ralph Morin, Sam Patterson, and Jesse
Lewis, the unlawful refusals to reinstate David Brown,
Thomas Corbin, David Prichard, and Ernest Robertson,
and the unlawful refusals to hire James Kidd Jr., Cliff
Zylks, Hewitt Barton, Gerald Lott, Clay Leon, Richard
Berlier, Charles Dame, Dwane Reeves, Alvin Cuevas,
Kerman Ladner, and Troy Bordelon and, within 3 days
thereafter, notify them in writing that this has been done
and that the unlawful actions against them will not be
used against them in any way.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(g) Rescind its unlawful no-solicitation rule prohibit-
ing employees from talking about the union to anyone,
and rescind and expunge any warnings or other disci-
pline imposed for violation of this rule.
(h) Within 14 days after service by the Region, post at
its facilities in Long Beach and Pascagoula, Mississippi,
copies of the attached notice marked “Appendix.”8 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 15, after being signed by the Respon-
dent’s authorized representative, shall be posted by the
Respondent 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. 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 May 4, 2001.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

8 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.”
T. C. BROOME CONSTRUCTION CO. 659
The National Labor Relations Board has found that we vio-
lated 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 behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT inform employees that they and/or other
employees had been laid off because of their union ac-
tivities or the union activities of others.
WE WILL NOT tell employees that they will be consid-
ered for promotion if they promise not to engage in un-
ion activity.
WE WILL NOT coercively interrogate any employee
about union support or union activities.
WE WILL NOT create an impression among our employ-
ees that their union activities are under surveillance.
WE WILL NOT condition employees’ employment on
their assurances that they will not engage in union activ-
ity.
WE WILL NOT tell employees that they were contacted
for the purpose of misleading other employees into be-
lieving they were not being laid off because of their un-
ion activities.
WE WILL NOT threaten employees with termination if
they talk about the Union.
WE WILL NOT inform employees that other employees
had been terminated because of their union activities.
WE WILL NOT inform employees that we will not hire
union electricians.
WE WILL NOT inform employees that we have black-
balled former employees because of their union activi-
ties.
WE WILL NOT promulgate and maintain an overly broad
no-solicitation rule.
WE WILL NOT lay off employees, and refuse to recall
them, because they joined or assisted the Union and en-
gaged in concerted activities.
WE WILL NOT discharge or otherwise discriminate
against any employee for supporting the International
Brotherhood of Electrical Workers or any other labor
organization.
WE WILL NOT refuse to hire job applicants because of
their union membership or sympathies.
WE WILL NOT refuse to offer, without justification, our
former striking employees, who made unconditional of-
fers to return to work, reinstatement to their prestrike
positions when those positions become available.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights set forth above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Joe Breland, Scottie Ladner, William Bal-
lard, and Dale Weekly, full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
WE WILL, within 14 days from the date of the Board’s
Order, offer David Brown, Thomas Corbin, David Prich-
ard, and Ernest Robertson full reinstatement to their for-
mer jobs, discharging, if necessary, any employees hired
to fill those positions after the strikers’ August 20, 2001,
offer to return to work, or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed.
WE WILL, within 14 days from the date of the Board’s
Order, offer James Kidd Jr., Cliff Zylks, Hewitt Barton,
Gerald Lott, Clay Leon, Richard Berlier, Charles Dame,
Dwane Reeves, Alvin Cuevas, Kerman Ladner, and Troy
Bordelon instatement to the positions for which they
applied or, if those positions no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges to which they
would have been entitled absent our discrimination
against them.
WE WILL make Joe Breland, Scottie Ladner, William
Ballard, Dale Weekly, Sam Patterson, Ralph Morin,
Jesse Lewis, David Brown, Thomas Corbin, David
Prichard, Ernest Robertson, James Kidd Jr., Cliff Zylks,
Hewitt P. Barton Sr., Gerald Lott, Clay Leon, Richard
Berlier, Charles Dame, Dwane Reeves, Alvin Cuevas,
Kerman Ladner, and Troy Bordelon whole for any loss
of earnings and other benefits suffered as a result of the
discrimination against them, less any net interim earn-
ings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful layoffs/discharges of Joe Breland, Scottie Ladner,
William Ballard, Dale Weekly, Ralph Morin, Sam Pat-
terson, and Jesse Lewis, the unlawful refusals to reinstate
David Brown, Thomas Corbin, David Prichard, and
Ernest Robertson, and the unlawful refusals to hire James
Kidd Jr., Cliff Zylks, Hewitt Barton, Gerald Lott, Clay
Leon, Richard Berlier, Charles Dame, Dwane Reeves,
Alvin Cuevas, Kerman Ladner, and Troy Bordelon, and
WE WILL, within 3 days thereafter, notify them in writing
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD660
that this has been done and that the unlawful actions
against them will not be used against them in any way.
WE WILL rescind our unlawful no-solicitation rule pro-
hibiting employees from talking about the union to any-
one, and rescind and expunge any warnings or other dis-
cipline imposed for violation of this rule.
T.C. BROOME CONSTRUCTION COMPANY, INC.
Chris J. Doyle, Esq. and Kevin McClue, Esq., for the General
Counsel.
Benjamin H. Banta, Esq. and William E. Hester, Esq., of
New Orleans, Louisiana, for the Respondent.
Roger K. Doolittle, Esq., of Jackson, Mississippi, for the
Charging Party.
DECISION
STATEMENT OF CASES
PARGEN ROBERTSON, Administrative Law Judge. This case
was heard in Pascagoula, Mississippi, on January 8 and 9,
2002. On the entire record,1 including my observation of the
demeanor of the witnesses, and after considering the briefs
filed by Respondent and the General Counsel, I make the fol-
lowing
FINDINGS
I. JURISDICTION
T.C. Broome Construction Company, Inc. is a corporation,
with its principal office and place of business in Pascagoula,
Mississippi, with a jobsite at Long Beach, Mississippi, where it
is engaged in business as a general contractor in the construc-
tion industry doing marine, commercial, and industrial con-
struction. Respondent admitted that during the 12-month period
ending September 30, 2001, in conducting its business opera-
tions, it performed services valued in excess of $50,000 in
States other than Mississippi and during that same 12-month
period it purchased and received at its Pascagoula and Long
Beach, Mississippi sites goods valued in excess of $50,000
directly from points outside Mississippi; and it has been at all
material times, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admitted that the Charging Party (the Union) has
been a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The 8(a)(1) Allegations
1. Tim Hamilton
The record shows that Respondent’s project manager, Tim
Hamilton, on its University of Southern Mississippi job at Long
Beach, Mississippi, had several conversations with employees

1 The General Counsel submitted its GC Exhs. 85–111 by stipulation
with Respondent. Those exhibits are received in evidence. GC Exhs.
112–116 were also submitted but were not included in the stipulation.
and applicants regarding union organizing on the job. For ex-
ample, when William Ballard III applied for work with Re-
spondent at its University of Southern Mississippi site in Long
Beach in April 2001,2 Tim Hamilton asked Ballard if he was
organized or in the Union. Ballard told Hamilton that he had
nothing to do with the Union and did not want any part of it.
On May 4, David Ladner tape recorded a conversation with
Tim Hamilton as Ladner applied for work with Respondent at
its Long Beach job. Among other things, Hamilton asked Lad-
ner, “I am going to be to you, technically I am not suppose to
ask you this question, but how are you affiliated with 903? At
all! Are you in the Union?” David Ladner replied that he had
been a member of the Union for about 6 years. Hamilton said,
Y’all have got to promise me that y’all will not try to
bring the union up in here. That Joe Breland, him and Dale
Weekly. . . . Joe got him into the union. . . . Like two
weeks a go he swore into the union, I have two other guys
out here that did not want to join the union, Joe has been
bugging him everyday. You need to go down there, you
need to go down there, you need to go down there you
know, just staying on them.
. . . .
They did go down to the union hall just to hear them
out. The guy at the union hall started telling them that they
are going to try to get fifty-one percent of the people hired
in here that is union and they are going to try to over turn
this job and all that. And if they do I am out of here. I’ll
lose my job.
. . . .
OK, but I need you to talk to Scottie for me, tell him
not to be mad at me.
. . . .
He got caught up in that little ring down there with Joe
and Dale and they even got another guy I had just hired,
Bill Ballard. I don’t think you know him but I had just
hired him last Monday.
On May 7, 2001, Tim Hamilton asked Scottie Ladner3 to
come to the job. Hamilton and Ladner spoke in the job trailer.
Hamilton told Ladner that he owed him an apology; that he got
caught up in a situation where he had to get rid of certain peo-
ple; that he had to get rid of Joe Breland and Dale Weekly; and
that they were on his job trying to organize the job. Ladner told
Hamilton that he was not out there trying to organize. Hamilton
told Scottie Ladner not to be talking to anybody about union,
not to try to organize and to just do his job.
Before lunch Scottie Ladner noticed a meeting of a group of
employees. Hamilton came to him and said that he had held a
meeting and had told the employees that Ladner would not be

2 Respondent’s job relevant to these proceedings was a job at the
University of Southern Mississippi campus at Long Beach, Mississippi.
Occasionally that job is referred to as the University of Southern Mis-
sissippi job or the USM job or the Long Beach job.
3 Scottie Ladner is also referred to as Scot Ladner and as Ceville
Scott Ladner.
T. C. BROOME CONSTRUCTION CO. 661
talking any union shit. Hamilton told Ladner that he would
have to fire him again if he spoke any union shit to anyone.
Ladner assured Hamilton that he would not do that and that he
was just there to do his job.
2. Mark Cruff
On May 15, after David Prichard had started working, Gen-
eral Foreman Mark Cruff came to him and asked if he used to
be a member of the Union. Prichard said yes and that he was
still a member of the Union. On June 16, Prichard talked to
Tim Hamilton and Mark Cruff about needing more employees
on the job. Prichard said there were a lot of union employees
that could help but Hamilton and Cruff said they could not hire
union employees. They asked Prichard if he knew any nonun-
ion employees that could come on the job.
3. Either Tim Hamilton or Mark Cruff
David Prichard overheard either Mark Cruff or Tim Hamil-
ton say, “[T]hat’s the last union man on the job,” on May 21
after they had terminated Scottie Ladner.
B. The 8(a)(3) Allegations
1. Laid off seven employees on May 4, 2001
Respondent notified seven employees including Joe Breland,
Scottie Ladner, Bill Ballard, and Dale Weekly, they were laid
off on May 4, 2001. The General Counsel alleged that Breland,
Scottie Ladner, Bill Ballard, and Dale Weekly were laid off
because of their own union activity and the other three employ-
ees4 were laid off in an effort to disguise the fact that Breland,
Ladner, Ballard, and Weekly were laid off because of their
union activity.
Joe Breland testified that he applied for a job with Respon-
dent at its University of Southern Mississippi jobsite on April
19, 2001. He filled out an application and talked to Tim Hamil-
ton. Hamilton told Breland that he was hired and to report to
Respondent’s office in Pascagoula for orientation. After com-
pleting orientation, Breland worked at the Long Beach site as
an electrician. Breland was a member of the Union but he wore
nothing showing he was for the Union when he went to Re-
spondent and he did not talk to any employees about the Union
during work. He did talk with employees Dale Weekly and Bill
Ballard after work and with Ralph Morin and Joe somebody at
a tavern in Wiggins, Mississippi. All those conversations oc-
curred during April 2001. Dale Weekly and Bill Ballard joined
the Union. The only employee Scottie Ladner spoke to about
the Union was Bill Ballard.
Scottie Ladner also applied for work with Respondent at its
USM site in Long Beach in April. Ladner was wearing normal
clothing but he did have an IBEW pencil clip. Applicant Greg
Paine accompanied him. Ladner spoke with Tim Hamilton.
Hamilton spoke with someone on his radio and said that he
could hire only one of the two at that time. Scottie Ladner sug-
gested hiring Paine and Paine was hired for Respondent’s job

4 Respondent also laid off employees Ralph Morin, Sam Patterson,
and Jesse Lewis. There was no showing that Morin, Patterson, and
Lewis were affiliated with the Union or the organizing of Respondent’s
employees.
in Ocean Springs, Mississippi. Scottie Ladner was phoned by
Tim Hamilton and hired at a later date. After orientation at
Pascagoula Ladner reported to work for Respondent at the
Long Beach job on April 30, 2001. He was an electrician and a
member of the Union.
William Ballard III testified that he applied for work with
Respondent at its University of Southern Mississippi in Long
Beach in April 2001. He did not know Tim Hamilton or Mark
Cruff or Donald or James Taylor. Nor did he know any of Re-
spondent’s employees before he started work. Tim Hamilton
asked Ballard if he was organized or in the Union. Ballard told
Hamilton that he had nothing to do with the Union and did not
want any part of it. Ballard was hired around April 30.
Dale Weekly applied for work at Respondent’s Long Beach
job in April 2001. At that time he did not know any of Respon-
dent’s managers or supervisors. Weekly joined the Union on
April 27, 2001 (GC Exh. 54), after talking with Joe Breland in
the parking lot at the Long Beach jobsite. He was laid off on
May 4 and has not been recalled. Mark Cruff told Weekly that
the general contractor postponing the job on the library caused
the layoff. Weekly went over to see the superintendent from the
general contractor. The general contractor was Roy Anderson
and the superintendent was named Dave. Weekly asked Dave if
they had postponed any schedules on the library and Dave re-
plied no and asked who told that to Weekly. Weekly replied
Mark Cruff. Dave said that Cruff did not know what he was
talking about because “we haven’t postponed any schedule on
this library.”
David Ladner heard that his friend, Scottie Ladner, had been
laid off on May 4. He went to the union hall and Union Organ-
izer Chip Barnes suggested he try for a job with Respondent.
He phoned and Tim Hamilton told him to meet him at the job.
Ladner tape recorded5 his conversation with Hamilton (GC
Exh. 19). Hamilton said that he had to lay off some people
because Joe Breland had been talking union business on the job
and he got a couple of the other guys to go down to the union
hall. Hamilton asked if Ladner was in the Union and Ladner
told him that he was. Tim Hamilton said that he did not think
Scottie Ladner, David Prichard, or David Ladner would hurt
him by doing what Breland had done. Hamilton said that he
planned to bring Scottie Ladner and Prichard back.
On the day before the layoff—(May 3)—Scottie Ladner, Bill
Ballard, and other employees were released early and Scottie
Ladner drove Ballard to the union hall. Ballard joined the Un-
ion at the union hall that day after talking with coemployees
Scottie Ladner and Joe Breland (GC Exh. 53).
Tim Hamilton came to the employees on May 4 and said
there was going to be a layoff. Around 10:30 a.m. Mark Cruff
gave Joe Breland layoff slips for himself, Scottie Ladner, Bill

5 Wallace ‘Chip’ Barnes was employed by the Union as an organizer
for Local 903 when several men came on May 4, 2001, and complained
Respondent had laid them off. David Ladner was present and said that
he knew the man that was running the job for Respondent. Barnes gave
Ladner a tape recorder and asked him to apply for work with Respon-
dent. Ladner brought the tape back to Barnes that same day. Barnes
kept the original tape in his office until he turned the tape over to an
NLRB agent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD662
Ballard, and Dale Weekly. Respondent has not recalled Bre-
land, Ballard, or Weekly. After he and Ballard were given lay-
off slips, Scottie Ladner found Tim Hamilton and asked about
the layoff. Hamilton said they had to reduce the work force and
that he would let Ladner know if they started hiring. Later that
day Hamilton phoned Scottie Ladner. Hamilton said that he
wanted to call Ladner, that he owed Ladner an apology, that he
got caught up in a certain situation, and that he would let Lad-
ner know later. Hamilton asked Ladner to call him over the
weekend. Ladner tried but was not successful in reaching Ham-
ilton that weekend.
On May 7, Hamilton asked Scottie Ladner to come to the
job. Hamilton told Ladner that he owed him an apology; that he
got caught up in a situation where he had to get rid of certain
people; that he had to get rid of Joe Breland and Dale Weekly;
and that they were on his job trying to organize the job. Scottie
Ladner told Hamilton that he was not out there trying to organ-
ize. Hamilton told him not to be talking to anybody about un-
ion, not to try to organize and to just do his job.
Hamilton also talked to David Ladner. He told David Ladner
that he was not going to be able to bring him in till the follow-
ing Wednesday because that’s when they had the orientation in
Pascagoula. However, as Hamilton and Ladner were walking
out of the office trailer they met King, the project manager.
Hamilton told Ladner to go ahead and report the following
Monday (May 7). Ladner reported as directed and underwent
orientation in Pascagoula on May 7.
David Prichard applied for work with Respondent at the
Long Beach jobsite around May 1, 2001. He knew Tim Hamil-
ton before he applied. While he was completing his application
Hamilton came in and told him to report to Pascagoula the
following Monday for orientation. Afterward, Mark Cruff
phoned Prichard. Cruff told him the orientation was off because
they were laying off people and did not need anyone. Later that
afternoon Hamilton phoned Prichard. Hamilton said that he had
Cruff phone Prichard that morning because Joe Breland and a
few other union members were in the office being laid off and
he wanted them to hear the conversation between Prichard and
Cruff so they would not think Respondent was hiring anyone
but that Prichard should go ahead and report for orientation the
next Monday. Hamilton said that he wanted Breland and the
other union members off the job because Breland had already
taken a few employees to the union hall and they were organiz-
ing his job. Tim Hamilton told Prichard that he had been
chewed out and told he would have to take care of the situation
and he had to do this in order to keep his job.
Electrical and Instrumentation Manager Donald Chip Taylor
testified that the May 4 layoff resulted from the general con-
tractor advising first Tim Hamilton than Taylor, that work
would be delayed. Taylor phoned Hamilton that he would send
a memo to Hamilton authorizing a reduction in force. Subse-
quently, that afternoon, the general contractor told Taylor that
the work would not be delayed. Taylor testified both he and
Hamilton attempted to contact some of the laid off employees
to have them return to work.6

6 Taylor testified that he phoned Breland and the phone had been
disconnected; he phoned Weekly but there was no answer; Taylor
Dale Weekly testified that following receipt of his layoff slip
on May 4 Cruff told him that the job on the library had been
postponed. Weekly then went to the general contractor’s super-
intendent who told him that the job schedule had not been post-
poned.
The full record shows that Tim Hamilton initially hired un-
ion employees. However, when confronted with evidence that
some of those employees were engaged in organizing activity
on his job, Hamilton reacted unlawfully. As shown above, he
made numerous comments to employees in violation of Section
8(a)(1) and, after laying off several employees on May 4, he
commented to employees that he had laid off those employees
because some of them were involved in union organizing activ-
ity. That evidence shows that Respondent harbored animus
against union organizing activity on its Long Beach job.
2. May 15 and afterward
On May 15, after Prichard had started working, Mark Cruff
came to him and asked if he used to be a member of the Union.
Prichard said yes and that he was still a member of the Union.
On June 16, Prichard talked to Tim Hamilton and Mark Cruff
about needing more employees on the job. Prichard said there
were a lot of union employees that could help but Hamilton and
Cruff said they could not hire union employees. They asked
Prichard if he knew any nonunion employees that could come
on the job.
On June 19, Cruff and Hamilton asked David Prichard about
bringing people on the job. Prichard said that David and Scottie
Ladner were not working. Hamilton and Cruff said they basi-
cally were blackballed and they could not hire them back and
they could not hire union employees anyway.
On June 25, Mark Cruff asked Prichard if he had taped any
conversation with him or Tim Hamilton and Prichard replied
no.7 Cruff asked if all union employees had tape recorders.
Prichard said that some do and some don’t.
3. Failed to consider eight employees for hire
on May 15, 2001
James Kidd Jr. went to Respondent’s Long Beach job on
May 15 with seven other job applicants. All eight wore white
IBEW Local 903 T-shirts, ball caps, and organizing committee
badges. Kidd asked Tim Hamilton for applications. All eight
individuals filled out applications and left those applications
and resumes with Respondent. Hamilton said he would be hir-
ing helpers within the next week. The same eight applicants
also went into Respondent’s Pascagoula office and were told
their application at Long Beach were good.
Kidd returned to the Long Beach site on June 6 and tape re-
corded his conversation with Tim Hamilton (GC Exh. 25). On

contacted Ralph Morin and Sam Patterson and Hamilton contacted
Jesse Lewis. There was no testimony that anyone tried to contact Bal-
lard. Don Taylor eventually stopped trying to contact anymore laid-off
employees. He had two new hires scheduled to begin work the week of
May 7. However, Breland testified that neither of his phones was dis-
connected in May 2001 and Weekly testified that he had caller ID and
voice mail on his phone and did not receive any phone calls from Re-
spondent after he was laid off on May 4.
7 Prichard testified that he did maintain a daily record.
T. C. BROOME CONSTRUCTION CO. 663
July 5 or 6 Kidd returned to the job and spoke with Hamilton.
Respondent has not offered employment to any of those appli-
cants.
Charles Dame Jr. testified in corroboration with James Kidd,
about applying for work on Respondent’s Long Beach job on
May 15 (see GC Exh. 56). Tim Hamilton told Dame that his
application with Respondent would be good for 6 months.
Dame phoned Chip Taylor at Respondent’s Pascagoula office
on May 30, August 7, and on one or two other occasions, and
identified himself as a union organizer that had filled out an
application with Respondent. Taylor told him that he had
enough electricians, that it changes every week and basically
that he did not have a job for Dame.
From May 15 until November 15, 2001, Respondent hired
31 journeymen electricians and 27 electrical helpers (GC Exh.
48).
Donald Taylor testified that he was responsible for Respon-
dent’s hiring and that he used a three-tiered hiring system. He
first considered applicants he knew. Secondly he considered
applicants recommended by managers and employees. Thirdly,
he considered all other applications. He testified that he did not
hire anyone under the third tier in 2001. Taylor also testified
that he has never hired a journeyman electrician to work at less
than the journeyman rate of pay and that he did not hire jour-
neymen electricians for helper positions.
James Kidd tape recorded a June 6 conversation with Tim
Hamilton as to why Respondent had not hired union applicants
(GC Exh. 25). Among other things, Hamilton said that Kidd
wanted on the job to organize it and that the Union came first to
Kidd. From June 6 until November 15, Respondent hired 30
journeymen electricians and 27 helpers (GC Exh. 49). None of
the eight that applied on May 15 were offered employment.
4. Terminated Scottie Ladner on May 21, 2001
Scot Ladner was fired for the second time on May 21. Mark
Cruff told him he was being fired for nonproduction. Prior to
that Ladner had received only one disciplinary action and that
occurred on May 14 when he received a verbal warning for
being late for work. During the hearing, Ladner was shown
another warning dated May 10 (GC Exh. 4). He denied that he
received a warning on May 10 and he denied that he had ever
seen the warning slip identified as General Counsel’s Exhibit 4.
As indicated above, from the time he first started working for
Respondent, Ladner wore an IBEW pencil clip and carried a
tool pouch on which he had written “Local Union 903.” He
also had IBEW stickers on his truck. Ladner testified on cross-
examination that his foreman, Mark Cruff, knew he was in the
Union when he first started working for Respondent.
On May 4, Tim Hamilton told both David Ladner and David
Prichard, and on May 7 Hamilton told Scottie Ladner, that
employees8 had been laid off on May 4 because of a situation
where Respondent had to terminated Joe Breland and Dale
Weekly because they were trying to organize the job. After
Hamilton told Scottie Ladner that he could not talk union on
the job, Ladner told Hamilton that he was not there to organize.

8 As shown herein, those employees that were laid off on May 4 in-
cluded Scottie Ladner.
On May 21, David Prichard overheard either Mark Cruff or
Tim Hamilton say, “[T]hat’s the last union man on the job,”
when Scottie Ladner was terminated.
5. Failed to consider three employees for
hire on July 6, 2001
Alvin Cuevas and Farran Hoda applied for work with Re-
spondent at Long Beach. Cuevas completed a written applica-
tion for work and left the application with Respondent. He
listed Joe Breland as a personal reference. Cuevas filled out a
log at the union hall showing the date of his application with
Respondent as May 2, 2001. While applying Cuevas wore a
union belt buckle and he spoke with Tim Hamilton. Respon-
dent has never contacted Cuevas or offered him employment.
Cuevas applied with Respondent again on July 6. At that
time he was with Kerman Ladner and Troy Bordelon. All three
were wearing union caps and shirts. Cuevas asked Tim Hamil-
ton if his application was still good and Hamilton replied that it
was. Cuevas did not complete another application. Both Ladner
and Bordelon completed applications and left the applications
with Respondent.
Kerman Ladner Jr. testified about his application for work
with Respondent at Long Beach on July 7, 2001.9 He was with
Troy Bordelon and Cuevas. He was wearing a union hat and
shirt. He spoke with someone that identified himself as the
electrical foreman, who gave Ladner an application form. Lad-
ner as well as Troy Bordelon completed an application and left
it with Respondent.
Respondent has never contacted Cuevas, Kerman Ladner, or
Troy Bordelon, or offered any of them employment. From July
6 until January 6, 2002, Respondent hired 32 journeymen elec-
tricians.
David Brown applied at the Long Beach job on July 9 and
was hired as a journeyman electrician by Tim Hamilton. Brown
asked Hamilton is he need more help and Hamilton said that he
did. Brown returned with Ernie Robertson10 and Hamilton hired
Robertson. Neither Brown nor Robertson wore any union para-
phernalia.
6. Refused to reinstate four employees11 from
August 20, 2001
On August 7, David Prichard asked Tim Hamilton about a
raise he had been promised. Hamilton said he would get it the
next week. Prichard replied it had been 4 or 5 weeks now that
he had been promised the raise. He said that Hamilton had
promised him and others pay raises. Prichard told Hamilton
that he was just going out on an economic strike. Three other
employees, David Brown, Ernie Robertson, and Thomas Cor-
bin, stood up and said they were also going out on an economic
strike. On that same day, James Kidd Jr. wrote Respondent and

9 The parties stipulated that if called Troy Bordelon would testify in
corroboration of Herman Ladner Jr.
10 Also identified as Earnest Robertson.
11 The General Counsel alleged that employees engaged in a strike
from August 6 to 20, 2001, and that employees David Brown, Thomas
Corbin, David Prichard, and Ernest Robinson made unconditional
offers to return to work on August 20 but that Respondent has refused
to reinstate those four employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD664
identified Thomas Corbin, Ernest Robertson, David Prichard,
and David Brown as volunteer union organizers and that the
four were on economic strike (GC Exhs. 24A–D). On that same
day, James Kidd wrote Respondent and identified Thomas
Corbin, Ernest Robertson, David Prichard, and David Brown as
volunteer union organizers and that the four were on economic
strike.
On August 24, Prichard, David Brown, Ernie Robertson,12
and Thomas Corbin13 went to the worksite. Mark Cruff told
them that Tim Hamilton had been fired. The four told Cruff
they were willing to come back to work on unconditional
terms. Cruff said that he couldn’t just let them come back with-
out talking to the office and that he would get back with them.
Later that day, David Brown phoned Respondent from the un-
ion hall and spoke with James Taylor. Brown told Taylor that
he was calling on behalf of Corbin, Robertson, Prichard, and
himself and that they were making unconditional offers to re-
turn to work. James Taylor replied that their positions had been
filled. Respondent has not reinstated Brown, Prichard, Robert-
son, or Corbin. From August 24, Respondent hired 24 jour-
neymen electricians (GC Exh. 48).
7. September
David Simmons applied for work at the Long Beach site in
August 2001. He spoke with Sid Bowers. Bowers said Respon-
dent was not hiring and he took Simmons’s address and phone
number. In September after being phoned by Bowers and told
to report to Pascagoula, Simmons went to Respondent’s Pasca-
goula office and spoke with Chip Taylor. Simmons submitted
an application for work at that time and was hired. At none of
the times before his hiring did Simmons wear anything to show
that he favored the Union. Two other people were also in the
Pascagoula office and were seen by Simmons working on the
Long Beach job. Simmons worked only 1 day before joining an
economic strike.
Findings
Credibility
I base my credibility findings on the full record including
demeanor of the witnesses and other evidence including espe-
cially whether the testimony was rebutted or supported by other
testimony. Some of the evidence was supported by tape re-
cordings. In those instances the tape recorded conversations are
fully credited over the recollections of witnesses. I credit the
testimony of William Ballard, David Ladner, Scottie Ladner,
David Prichard, Joe Breland, Wallace Barnes, Alvin Cuevas,
James Kidd Jr., David Simmons, Dale Weekly, Kerman Ladner
Jr., David Brown, and Charles Dame Jr. None of their testi-
mony was rebutted by Tim Hamilton. Hamilton did not testify.
Additionally, testimony of incidents involving Mark Cruff were
not rebutted even though Cruff did testify.
I was not impressed with the demeanor of Donald Chip Tay-
lor or Mark Cruff. Moreover, the record shows their testimony
was clearly untrue in several instances. For example, Taylor

12 The parties stipulated as to what Robertson would testify if called
(Tr. 230 and 233).
13 The parties stipulated as to what Corbin would testify if called (Tr.
232).
testified that the May 4 layoff was caused by an indefinite
slowdown by the general contractor. However, evidence in-
cluding Taylor’s testimony illustrates there was no justification
for a layoff. Taylor testified that he was advised by Project
Manager Hamilton and corroborated by the general contractor
that there would be some areas that were going to be delayed
for an unknown amount of time. According to Taylor’s testi-
mony he did not inquire, nor did he learn, that any delay action
would impact on Respondent’s work. Nevertheless, according
to Taylor, he told Hamilton to layoff 20 percent of Respon-
dent’s work force. Other evidence showed that some of the
laid-off employees including the three that were not known to
be affiliated with the Union, were recalled immediately, two
new employees were hired on May 4 and Tim Hamilton told
several employees that the layoff was caused by employees Joe
Breland and Dale Weekly trying to organize the job. Moreover,
the general contractor’s site superintendent told Dale Weekly
that there was no delay on the job. Additionally, as shown
herein, Taylor testified about the method Respondent employed
in hiring applicants. That method involved a three–tier system
and all the alleged discriminatees were in the third tier of that
system. Coincidentally, Respondent did not hire anyone from
the third tier in 2001. However, Respondent’s records showed
that Respondent did not follow the system described by Taylor.
Contrary to his testimony that he was responsible for all hiring,
the record illustrated that the project manager frequently hired
applicants on the spot without checking with Taylor. Taylor
testified that he never hired a journeyman in a helper position
or a helper in a journeyman position, but Respondent’s records
showed that he hired class A helper Ralph Howze on Septem-
ber 10 after Howze applied on September 5 (GC Exh. 111).
Additionally, credited testimony showed that several of Gen-
eral Counsel’s witnesses were hired even though they did not
qualify under either of the first two tiers of the alleged hiring
system.
Taylor also testified that he never hired applicants that ap-
plied in groups and Respondent did not hire any journeyman
electrician who indicated he had other electricians they could
bring in. However, Respondent hired Scottie Ladner and Greg
Payne, as well as David Brown and Ernest Robertson. Ladner
and Payne applied together and after applying Brown asked if
Respondent needed more help and he left and brought Robert-
son back. Respondent hired all four of those applicants—(i.e.,
Scottie Ladner, Greg Payne, David Brown, and Ernest Robert-
son).
Mark Cruff testified that he issued warnings to two or three
other employees in addition to Scottie Ladner, because they
were all standing around talking together. However, Respon-
dent was unable to produce any of those alleged warnings other
than the one issued to Scottie Ladner. Moreover, despite
Cruff’s testimony that Scottie Ladner consistently and regularly
violated Respondent’s policies, he failed to issue disciplinary
action to Ladner except, according to his testimony, on two
occasions.
T. C. BROOME CONSTRUCTION CO. 665
Conclusions
1. The 8(a)(1) allegations
The General Counsel alleged that Respondent, through Tim
Hamilton, told employees that employees had been laid off
because of their union activities; promised employees consid-
eration for promotion if they did not engage in union activities;
interrogated employees about their union feelings; created an
impression of surveillance of employees’ union activities; con-
ditioned employees employment on their not engaging in union
activity; told employee they had been laid off because of their
union activities; threatened employees with termination if they
talked about the union; and told employees that other employ-
ees had been terminated because of their union activities.
The evidence was unrebutted that Tim Hamilton14 had sev-
eral conversations with employees regarding union activities.
As shown above, the General Counsel alleged that Hamilton
and Cruff interrogated employees about the Union and organiz-
ing activity. The applicable test for determining whether the
questioning of an employee constitutes an unlawful interroga-
tion is the totality–of–the–circumstances test adopted by the
Board in Rossmore House, 269 NLRB 1176 (1984), affd. sub
nom. Hotel Employees Local 11 v. NLRB, 760 F.2d 1006 (9th
Cir. 1985), and it is appropriate to consider what has come to
be known as “the Bourne factors:”15 Those factors include (1)
the background; (2) the nature of the information sought; (3)
the identity of the questioner; (4) the place and method of inter-
rogation; and (5) the truthfulness of the reply.
As to background, the Respondent demonstrated hostility
against organizing on the job as shown herein. Regarding the
nature of the information sought, Respondent showed through
several actions shown above, the it was interested in ferreting
out union organizing activity on its job and that it was willing
to engage in unfair labor practices to stop that activity. The
questioner was Respondent’s highest official on the Long
Beach job. The interrogations occurred on the job. As to the
truthfulness of the reply, the record shows that some of the
questioned employees replied truthfully and some did not. In
consideration of the Bourne standard, I find that Hamilton in-
terrogated employees in violation of Section 8(a)(1) of the Act.
The specific allegations involved the following incidents:
In April, Hamilton questioned William Ballard if Ballard
was organized or in the Union. On May 4 Hamilton asked
David Ladner if was affiliated with Union Local 903. When
Ladner admitted he was affiliated with Local 903, Hamilton
told him that he had to promise he would not try to bring the
Union up on the job. Hamilton told David Ladner that Joe Bre-
land had got Dale Weekly to join the Union and that Ballard
had bugged two other guys that they needed to join the Union
and that Hamilton would lose his job if the Union signed up 51
percent of the employees. Hamilton told David Ladner that
Scottie Ladner and Bill Ballard had got caught up with Breland
and Weekly. Also on May 416 Hamilton told David Prichard on

14 Tim Hamilton did not testify.
15 Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964).
16 Tim Hamilton talked with David Prichard on May 24. Again, he
told Prichard that he had gotten rid of Breland because Breland was
trying to organize the job.
the phone that he had Mark Cruff phone Prichard because Joe
Breland and a few other union employees were in the office
being laid off and he did not want them to think he was hiring
Prichard. Hamilton told Prichard that he wanted Breland off the
job because Breland had taken some employees to the union
hall and was trying to organize the job. Tim Hamilton told
Prichard that he was being considered for promotion but had to
promise not to engage in union organizing. On May 7, Hamil-
ton told Scottie Ladner that he had to get rid of certain people
including Joe Breland and Dale Weekly because they were
trying to organize the job and that Scottie should not be talking
to anybody about the Union or try to organize the job. Later
Hamilton told Scottie Ladner that he would fire him again if he
spoke any union shit to anyone.
As shown above, Hamilton questioned several employees
about the Union and organizing activity. There was no showing
that Respondent was aware that any of those employees were
open union supporters at the time of the interrogation and the
full record shows that their interrogation was not justified for
any purpose other than to avoid union organization. On May 4,
Hamilton told David Prichard that he was aware of the union
activities of Joe Breland, Dale Weekly, and two other employ-
ees and thereby created the impression that he was engaged in
surveillance of employees’ union activities. Tim Hamilton told
David Ladner that he had to promise not to try to bring in the
union. By those comments Hamilton implied that Ladner’s job
was conditioned on his promise to not bring in the Union.
Additionally, as shown above, the General Counsel alleged
that Mark Cruff interrogated employee David Prichard. Prich-
ard was not shown to be an open union advocate. On May 15,
Mark Cruff came to David Prichard on the job and asked if he
used to be a member of the Union. Prichard said yes and that he
was still a member of the Union. On June 16, Prichard talked to
Tim Hamilton and Mark Cruff about needing more employees
on the job. Prichard said there were a lot of union employees
that could help but Hamilton and Cruff said they could not hire
union employees. They asked Prichard if he knew any nonun-
ion employees that could come on the job. Cruff did not dispute
the above testimony. On June 25, Mark Cruff asked Prichard if
he had taped any conversations with Cruff or Hamilton. Cruff
then asked Prichard if all union employees had tape recorders.
As shown above, I found that Tim Hamilton had threatened
David Prichard on May 4 that he had laid off Joe Breland and
other employees because of Breland was trying to organize the
job. I find that the comments by Hamilton and Cruff, that Re-
spondent could not hire union employees constitutes a threat to
refuse to hire because of union association in violation of Sec-
tion 8(a)(1) of the Act.
In June 2001, James Kidd Jr. applied for work and Tim
Hamilton questioned him about his desire to organize the job.
Hamilton told Kidd that Joe Breland was trying to organize and
that Breland was putting that ahead of his work. Counsel for
the General Counsel admitted in his brief that Kidd was known
to be affiliated with the Union but he argued that Hamilton’s
interrogation constituted a violation in view of the other unlaw-
ful conduct. In view of Kidd’s open showing that he was asso-
ciated with the Union, I find that the June interrogation does
not constitute an unfair labor practice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD666
On May 21, after Scottie Ladner was discharged for the sec-
ond time, David Prichard overheard either Tim Hamilton or
Mark Cruff, say that’s the last union man on the job. Cruff
testified and denied that he made that comment. In view of the
full record, I find that Tim Hamilton made that comment. That
comment constitutes a threat in the presence of one or more
employees that Scottie Ladner had been fired because he was a
union man and constitutes a violation of Section 8(a)(1).
David Prichard testified that Mark Cruff came to him on
May 15 and asked if he used to be a member of the local union.
On June 25, Cruff asked Prichard if he had tape-recorded any
conversations with Hamilton or Cruff. Cruff asked Prichard if
all union employees had tape recorders. Cruff did not deny
making those comments to Prichard. Prichard was not shown to
be a known union supporter on May 15. In view of the full
record showing several instances of violations of Section
8(a)(1) and (3) before May 15 and June 25, I find those interro-
gations constituted violations of Section 8(a)(1).
On June 19, David Prichard talked with Tim Hamilton and
Mark Cruff about hiring additional employees. Prichard sug-
gested hiring union employees. Hamilton and Cruff replied that
David and Scottie Ladner were blackballed from the Company
and they could not hire any more union employees. Those
comments constitute additional violations of Section 8(a)(1) as
threats to refuse to hire employees because of their union ac-
tivities.
The General Counsel alleged that Respondent imposed an
unlawfully broad no-solicitation rule by telling David Ladner
on May 4 that he had to promise not to bring the union into the
job and telling Scottie Ladner on May 7, that he would be fired
if he spoke union shit to anyone. I agree that Respondent im-
posed an unlawful no-solicitation rule by telling Scottie Ladner
that he could not talk about the Union to anyone.
2. The 8(a)(3) allegations
a. Terminations
(1) May 4
It is well established that the General Counsel has the burden
of proving that Respondent was motivated to discharge alleged
discriminatees because of union animus. Manno Electric, 321
NLRB 1 fn. 12 (1996); Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899(1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983).
As to the layoffs of Joe Breland, Scottie Ladner, William
Ballard, and Dale Weekly, the evidence is overwhelming. Be-
fore May 4 Respondent had shown its animus against the Un-
ion by, among other things, engaging in the 8(a)(1) violations
shown above. On and after May 4, Respondent, through com-
ments by Job Project Manager Tim Hamilton, held out that it
had laid off Breland, Ladner, Ballard, and Weekly on May 4
because of union organizing activity. For example, Hamilton
told David Ladner on May 4 that he had to lay off some people
because Joe Breland had been talking union business on the job
and had a couple of guys go down to the union hall. On May 4,
Hamilton phoned David Prichard and told him he had Mark
Cruff phone and tell Prichard that his upcoming orientation was
off because he had to lay off some people and that Joe Breland
had been organizing on the job and had already taken a few
employees to the union hall. Tim Hamilton told Scottie Ladner
on May 7 that Ladner got caught up in a situation where Hamil-
ton had to get rid of certain people including Joe Breland and
Dale Weekly that were trying to organize the job. I find that
Respondent laid off the seven employees on May 4 because of
its animus against union organizing. As shown above, I dis-
credited the testimony which would tend to show Respondent
would have laid off the seven employees on May 4 in the ab-
sence of organizing activities. I find that Respondent engaged
in unfair labor practices by laying off the seven employees.
(2) May 21
The General Counsel must prove that Respondent discharged
Scottie Ladner on May 21 because of its animus against the
Union. In that regard, the most telling evidence was Tim Ham-
ilton’s May 21 comment in the presence of David Prichard
after having fired Scottie Ladner, “that’s the last union man on
the job.”
The record includes more evidence supporting the allegation
regarding Scottie Ladner’s second discharge. It is important to
recall that Scottie Ladner was one of the employees that were
illegally laid off on May 4. At that time, as shown above, Tim
Hamilton openly commented to employees that he had laid off
those employees because of union organizing activity. Scottie
Ladner was called back to work on May 7 but Tim Hamilton
told him he could not talk about the Union.
In view of the above and the full record, I find that Respon-
dent was motivated by its union animus to discharge Scottie
Ladner on May 21. Respondent alleged that Scottie Ladner was
discharged for poor work performance. However, I discredited
the testimony of Mark Cruff that he issued a disciplinary warn-
ing to Scottie Ladner on May 10. I credit Ladner’s testimony
that he was never shown the warning or informed that he was
being disciplined. Mark Cruff testified to the effect that Scottie
Ladner was a continuously problem employee. However, as
shown herein, the credited testimony proved that Respondent
did not discipline Ladner on those regular occasions of alleged
misconduct. That showing as well as my determination that
Mark Cruff was not a credible witness and my crediting the
testimony of Scottie Ladner illustrates that Scottie Ladner
would not have been discharged on May 21 in the absence of
his union activities.
b. Refusal to hire
In alleged refusal to hire cases the General Counsel must
show:
(1) That the respondent was hiring, or had concrete plans to
hire, at the time of the alleged unlawful conduct; (2) that the
applicants had experience or training relevant to the an-
nounced or generally known requirements of the positions for
hire, or in the alternative, that the employer has not adhered
uniformly to such requirements, or that the requirements were
themselves pretextual or were applied as a pretext for dis-
crimination; and (3) that antiunion animus contributed to the
decision not to hire the applicants.
FES, 331 NLRB 9, 12 (2000). See also Americlean Restoration
& Maintenance Corp., 335 NLRB 1052 (2001).
T. C. BROOME CONSTRUCTION CO. 667
(1) Failure to consider for hire on May 15
James Kidd Jr., Cliff Zylks, Hewitt Barton, Gerald Lott, Clay
Leon, Richard Berlier, Chuck Dame, and Dwane Reeves all
applied for work at Long Beach on May 15 while wearing
shirts, caps, and badges that identified each of them as a union
advocate. Hamilton and Kidd had an oftentimes rambling con-
versation about the job and union organizing on June 6. Kidd
tape recorded that conversation. Among other things, Hamilton
said that if hired, Kidd would not place his work ahead of union
organizing. After Kidd stated that he would do the work even
though he wanted to talk to the employees about the Union,
Hamilton refused to hire any of Kidd’s people at rates of pay
below that normally paid journeymen electricians. When Kidd
stated that he wanted to perform the required work, Hamilton
continued to state that Kidd actually wanted on the job to or-
ganize for the Union. Hamilton told Kidd that he would talk to
his bosses about hiring the men brought in by Kidd as helpers.
None of the men that applied with Kidd were ever offered em-
ployment by Respondent.
Kidd’s resume submitted to Respondent with his application
showed that he worked for IBEW Local 903 from 1982 to
1986, that he was a member of that Local from 1983 until the
present, that he served the Local as recording secretary, treas-
urer, and NJATC apprenticeship instructor, that he was in-
volved in “salting,” and was a union organizer from 2000 to
present. Kidd’s application and resume illustrated that he was a
qualified electrician. Clay Leon’s application and resume sub-
mitted to Respondent showed that he was an organizer for the
Union and was a journeyman electrician. Richard Berlier’s
application and resume submitted to Respondent showed that
he was an organizer for the Union and had experience as a
journeyman electrician. Clifford Zylks’ application and resume
submitted to Respondent showed that he was an organizer for
the Union and was a journeyman electrician. Charles Dame Jr.
submitted an application and resume to Respondent that
showed he was an organizer for the Union and was a journey-
man electrician. Dwane Reeves’ application submitted to Re-
spondent showed that he had completed the IBEW/NECA ap-
plication program. Gerald Lott’s application submitted to Re-
spondent showed that he had completed an IBEW apprentice-
ship. Hewitt Barton’s application submitted to Respondent
showed that he had completed an IBEW apprenticeship school.
During the 6 months17 following May 15, Respondent hired
31 journeymen electricians and 28 electrical helpers (GC Exh.
48).
(2) Failure to consider for hire on July 6
Alvin Cuevas, Kerman Ladner and Troy Bordelon came to
Respondent’s Long Beach job on July 6 and asked for work.
All three were wearing union caps and shirts. Cuevas, who had
previously submitted an application on May 2, asked Tim
Hamilton if his application was still good. Hamilton replied
that the application was still good. Cuevas had listed Joe Bre-
land as a personal reference on that May 2 application. He wore
a union belt buckle when applying on May 2. Ladner and Bor-

17 As shown herein, Tim Hamilton said that applications were valid
for 6 months after submission.
delon completed applications on July 6 and left those applica-
tions with Respondent. Cuevas, Ladner, and Bordelon have not
been contacted or otherwise offered employment by Respon-
dent.
David Brown and Earnest Robertson were hired on July 9,
after applying at Respondent’s Long Beach job wearing noth-
ing to show that either favored the Union.
Respondent hired 32 journeymen electricians between July
6, 2001, and January 6, 2002 (GC Exh. 48).
Respondent’s refusal to hire Kidd, Zylks, Barton, Lott, Leon,
Berlier, Dame, Reeves, Cuevas, Kerman Ladner, and Bordelon:
The record shows and I find that all the above-mentioned
applicants submitted job applications to Respondent on either
May 15, July 6, or earlier. Respondent was aware of those ap-
plications and Respondent had reason to know that all those
applicants were interested in union organizing. Respondent also
knew through the applications and through conversations in-
volving both James Kidd and Alvin Cuevas, with Tim Hamil-
ton that the applicants were all qualified electricians. I find that
evidence proved that the applicants had “experience or training
relevant to the announced or generally known requirements of
the positions for hire,”18 and “antiunion animus contributed to
the decision not to hire the applicants.” FES, 331 NLRB 9
(2000).
Respondent did not dispute but that Tim Hamilton expresses
concern to James Kidd that Kidd wanted to organize the job.
However, Respondent argued that it is not evidence of im-
proper motivation for an employer to express concern that ap-
plicants are concerned with union organizing and not with
working. Here, however, there was no showing that any of the
alleged discriminatees did anything to cause Hamilton to be-
lieve they would place anything ahead of their work while on
the job. As shown in the recorded conversations between Ham-
ilton and Kidd, Hamilton expressed concern because the appli-
cants identified themselves as union organizers. None of the
applicants showed intent to do anything less than perform their
work if hired. Only Hamilton expressed a belief that affiliation
with union organization illustrated some lack of attention to
work. In fact, James Kidd assured Hamilton that the contrary
was true. Kidd told Hamilton that he and the other applicants
fully intended to perform their work. I am convinced that Ham-
ilton did illustrate that Respondent was motivated by antiunion
animus in refusing to hire any of the alleged discriminatees.
Moreover, the record shows that Respondent was hiring
journeymen and helper electricians at the times of and after the
applicants applied for work. The record shows that Respondent
hired 31 journeymen electricians and 27 helper electricians
between May 15 and November 15, 2001. I credit the testi-
mony that Tim Hamilton told employees that applications were
good for 6 months. That testimony was never disputed. There-
fore, the applications remained valid until November 15 in the
cases of Kidd, Zylks, Barton, Lott, Leon, Berlier, Dame, and
Reeves, and beyond November 15 in the case of Cuevas, Ker-
man Ladner, and Bordelon.

18 The full record showed that Respondent consistently hired appli-
cants after considering only their applications to determine experience.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD668
I find that Respondent was hiring at material times on and
after the above-mentioned applicants applied for work; that
each applicant showed on his application or attached resume
that he qualified for the positions that Respondent filled during
relevant periods; and that antiunion animus contributed to Re-
spondent’s refusal to hire any of the alleged discriminatees.
Respondent failed to prove it would have refused to hire any of
the alleged discriminatees in the absence of their union affilia-
tion.
(3) Economic strike and refusal to reinstate
As shown above, on August 7 David Prichard, David Brown,
Ernest Robertson, and Thomas Corbin told Tim Hamilton they
were going out on an economic strike. Those actions followed
immediately after Prichard told Hamilton that he and others had
been promised pay raises for 4 or 5 weeks and again, it was
promised next week. James Kidd Jr. wrote four letters to Re-
spondent on that same day stating that Thomas Corbin, David
Brown, David Prichard, and Ernest Robertson were on eco-
nomic strike until further notice. Corbin, Brown, Prichard, and
Robertson returned to the job on August 24, and told Mark
Cruff they would return to work without condition. Later that
day, David Brown phoned Respondent and spoke with James
Taylor. Brown told Taylor that he was speaking for Corbin,
Robertson, Prichard, and himself and that they were making
unconditional offers to return to work. Taylor replied their
positions had been filled. Respondent has never offered to rein-
state Brown, Prichard, Robertson, or Corbin.
Respondent has a legal obligation to reinstate economic
strikers to jobs created by loss of replacement employees fol-
lowing an unconditional offer to return to work. Rose Printing
Co., 304 NLRB 1076 (1991). Respondent pointed to Laidlaw
Corp., 171 NLRB 1366 (1968), and argued that the General
Counsel must prove (1) that each alleged striker was an em-
ployee at the time of the strike; (2) each employee made a
proper offer to return to work; and (3) the same or substantially
equivalent job formerly occupied by the striker was available or
became available after the offer to return.
Here the evidence showed that Respondent employed all
four economic strikers as electricians19 and Respondent em-
ployed each at the time of the August 7 strike. I find that each
of the alleged striking employees did make unconditional offers
to return to work. All four appeared on the job and told either
Mark Cruff or Sid Bowers, they were offering to return to work
without condition and subsequently, David Brown phoned
Respondent and made an unconditional offer to return on be-
half of all four alleged strikers to Project Manager James Tay-
lor.
Although the record does not show with any precision that
each of the alleged strikers were replaced before their uncondi-
tional offer, the record shows that Respondent hired four jour-
neymen electricians between on August 7 and 20. James Bar-

19 Respondent argued that the General Counsel failed to prove that
the alleged strikers occupied particular jobs on August 7. However, that
is incorrect. Respondent’s records included “separation notice” for
David Prichard, David Brown, Ernest Robertson, and Thomas Corbin
showing each was a journeyman electrician in the “E & I” department,
and was discharged on August 6 because of an economic strike.
rett, William Gray, and Thomas Mitchell were hired on August
7 and Leon Quigley was hired on August 20.
After the alleged strikers made unconditional offers to return
to work on August 20, 2001, Respondent hired journeymen
electricians Allen Andrews on September 4, Charles Brown Jr.
on October 24, Joe Cook on October 25, Kenneth Flott on Sep-
tember 7, Aundraye Howze and Ralph Howze20 on September
10, Jeremy Johnson on October 10, Johnathan Jones on No-
vember 13, Keith Lambert on August 27, Daniel Lawson on
October 24, Brian McNease on October 10, William Moser on
August 29, Jon Nobles on October 22, James Rawls on Sep-
tember 20, David Simmons on September 20, Mark Stinson on
November 15, Robert Tucker on October 25, and Robert Ward
on September 17.
I find that Respondent unlawfully failed and refused to rein-
state Prichard, Brown, Robertson, and Corbin after their August
24 unconditional offer to return to work in violation of Section
8(a)(1) and (3).
CONCLUSIONS OF LAW
1. T.C. Broome Construction Company, Inc. is an employer
engaged in commerce as defined in the Act.
2. International Brotherhood of Electrical Workers, Local
Union No. 903, AFL–CIO is a labor organization as defined in
the Act.
3. By coercively interrogating its employees about the Un-
ion; by demanding that its employees promise not to talk about
the Union or try to organize its job; by telling its employees
that other employees had been laid off because of their union
activities; by telling its employee that it had phoned him in an
effort to mislead prounion employees into believing they were
not being laid off because of the Union; by telling its employee
he may be considered for promotion if he promised not to en-
gage in union organizing activity; by telling its employees that
it had to get rid of some employees because they were trying to
organize the job; by threatening to fire its employee if he talked
about the Union on the job; by creating the impression among
its employees that it was engaged in surveillance of the em-
ployees’ union activities; and by stating in the presence of its
employee that it had just fired the employee that was the last
union man on the job, Respondent engaged in conduct in viola-
tions of Section 8(a)(1) of the Act.
4. Respondent, by laying off its employees Joe Breland,
Scottie Ladner, Bill Ballard, Dale Weekly, Ralph Morin, Sam
Patterson, and Jesse Lewis on May 4, 2001, and by failing and
refusing to recall Joe Breland, Bill Ballard, and Dale Weekly
on May 7; by failing and refusing to hire employees James
Kidd Jr., Cliff Zylks, Hewitt Barton, Gerald Lott, Clay Leon,
Richard Berlier, Chuck Dame, and Dwane Reeves on and after
May 15 and employees Alvin Cuevas, Kerman Ladner, and
Troy Bordelon on and after July 6; by discharging its employee
Scottie Ladner on May 15 and by refusing to recall its employ-
ees David Prichard, David Brown, Ernest Robertson, and Tho-
mas Corbin following their economic strike and unconditional

20 Ralph Howze had not worked as a journeyman electrician before
September 10.
T. C. BROOME CONSTRUCTION CO. 669
offer to return to work, on and after August 20; has engaged in
conduct in violation of Section 8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
The Respondent, having discriminatorily laid off employees
Joe Breland, Scottie Ladner, Bill Ballard, Dale Weekly, Ralph
Morin, Sam Patterson, and Jesse Lewis and discriminatorily
discharging employee Scottie Ladner, must offer them rein-
statement and make them whole for any loss of earnings and
other benefits, computed on a quarterly basis from date of dis-
charge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987). Respondent having
discriminatorily refused to hire James Kidd Jr., Cliff Zylks,
Hewitt Barton, Gerald Lott, Clay Leon, Richard Berlier, Chuck
Dame, Dwane Reeves, Alvin Cuevas, Kerman Ladner, and
Troy Bordelon and discriminatorily refusing to reinstate Tho-
mas Corbin, David Brown, David Prichard, and Ernest Robert-
son following their economic strike and unconditional offer to
return to work, it must offer each of them immediate employ-
ment and make each whole for all loss of earnings and other
benefits, computed on a quarterly basis from date of discharge
to date of proper offer of reinstatement, less any net interim
earnings, as prescribed in F. W. Woolworth Co., supra, plus
interest as computed in New Horizons for the Retarded, supra.
[Recommended Order omitted from publication.]