T.E. Briggs Construction Co.

National Labor Relations Board - Administrative Judge Opinions

Sep 5, 2007

19-CA-030668 (N.L.R.B. Sep. 5, 2007)

JD(SF)–25–07
Seattle, Washington
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
T. E. BRIGGS CONSTRUCTION
COMPANY, INC.
and Case 19-CA-30668
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 302
Susannah C. Merritt, of Seattle, Washington,
for the General Counsel
Bryan P. O’Connor and Sarah Capelli, of
Seattle, Washington, for Respondent
Steve Scheffer, of Bothell, Washington, for
the Charging Party
DECISION
Mary Miller Cracraft, Administrative Law Judge. This case involves allegations that
Respondent T. E. Briggs Construction Company, Inc. interrogated employees on two occasions
and threatened employees on two occasions due to their activity on behalf of International
Union of Operating Engineers, Local 302 (the Union) in violation of Section 8(a)(1) of the
National Labor Relations Act.1
The case was tried on June 12, 2007, in Seattle, Washington. All parties were provided
full opportunity to appear, to introduce relevant evidence, to examine and cross examine
witnesses, and to argue the merits of their respective positions. On the entire record, including
my observation of the demeanor of the witnesses,2 and after considering the briefs filed by
counsel for the General Counsel and counsel for the Respondent, I make the following findings
of fact and conclusions of law.
Findings of Fact
Respondent is a non-union construction industry employer with offices in Edmond, Washington.
Respondent installs underground water and sewer pipes in residential subdivisions by
digging trenches, setting the line and grade of the pipes, installing the pipes, and securing them

1 29 U.S.C. §158(a)(1). The charge and amended charge were filed by the Union on
January 16 and February 15, 2007, respectively. Complaint was issued on April 26 and the
Answer was filed May 10, 2007.
2 Credibility resolutions have been made based upon a review of the entire record and all
exhibits in this proceeding. Witness demeanor and inherent probability of the testimony have
been utilized to assess credibility. Testimony contrary to my findings has been discredited on
some occasions because it was in conflict with credited testimony or documents or because it
was inherently incredible and unworthy of belief.
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in the ground. Respondent employs pipe layers, laborers, and equipment operators.
Respondent’s laborers are sometimes called “top men,” in that they stand at the top of a
manhole and hand any needed equipment and materials to the employee working in the hole.
Respondent’s operators dig main lines and backfill the lines after the pipe is laid and secured.
Tracy Briggs is the owner of Respondent. Ron Smith serves as the superintendent. One of
Respondent’s foremen was Bill Aven.
The Union targeted Respondent through its salting program in 2003 and 2006.
In 2003, Union organizer Steve Scheffer applied for work with Respondent in furtherance
of the Union’s salting program. Scheffer worked from April 1 to September 9, 2003, when he left
to join a picket line protesting alleged unfair labor practices committed by Respondent.
Eventually, the NLRB found that Respondent had twice unlawfully threatened Scheffer and also
unlawfully refused to reinstate him following his unconditional offer to return to work after going
on strike. T. E. Briggs Construction Co., 349 NLRB No. 61 (March 30, 2007).
In 2006, Jay Sullivan and Charles Sadler began working for Respondent pursuant to the
Union’s salting program. Both Sullivan and Sadler made application to Respondent without
divulging their Union affiliation. As of July 18, both Sullivan and Sadler were assigned to
foreman Bill Aven’s crew and were working at the Vintage job site in the Bothell, Washington
area.
During the week of July 17, 2006, foreman Bill Aven and employee Charles Sadler conversed
while Aven assisted Sadler in installing a flow restrictor. During this conversation, Aven did not
ask Sadler if Sadler was affiliated with the Union.
According to Sadler, on his first day of work, July 18, foreman Aven assisted him in
hanging a flow restrictor inside a type two catch basin (basically, a large manhole). Sadler was
down in the basin and Aven was handing him tools from above. Sadler testified that during the
course of their conversation Aven asked him about his background and his experience with pipe
laying and whether he was affiliated with the Union. Sadler responded that he had five years of
experience in pipe laying and was not affiliated with the Union.3
Aven recalled the same event and agreed that he asked Sadler if he had installed a
restrictor before and also gave him other directions and information about the specific job.
When asked whether he recalled asking Sadler whether he was a member of the Union, Aven
testified he did not. Aven explained it was not part of his duty and that employees did not
discuss the Union in front of him. Aven also made a blanket denial that he never questioned
Sadler about whether he was a member of the Union. Aven testified,
I was instructed by Tracy [Briggs] that we were not to be involved with the
coercing of union members. It wasn’t a problem and it wasn’t something I needed
to know and it wasn’t something I was worried about. I treated all my guys the
same. We were a non-union company and it wasn’t – it didn’t matter.
Generally, as will be seen below, I credit the testimony of Aven and Sage over the
testimony of Sadler and Sullivan. This credibility finding is based largely on the respective

3 Sadler told both T. E. Briggs and foreman Aven that his experience was in Spokane,
Washington. Sadler explained that this was not true. He told them this to hide his experience
with the Union.
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plausibility of the testimony of the four witnesses. I can make few demeanor credibility findings
as between Sadler and Sullivan and Aven and Sage. Further, no presumptions of credibility are
apt. None of the four witnesses currently works for Respondent. Both Sadler and Sullivan left
Respondent’s employment to go on strike. Aven and Sage worked for other employers at the
time of this hearing. I note that neither Sadler nor Sullivan has continued to work in the Union’s
salting program. Aven, Sage, Sadler and Sullivan were the only witnesses presented regarding
the four allegations set forth above. According to all testimonial evidence, other employees were
present during the four conversations. However, none of them were presented as witnesses at
the hearing.
Generally, Sadler and Sullivan were articulate, thoughtful, and respectful witnesses.
Their testimony was thoroughly consistent on direct, cross-examination, and redirect. Although
neither gave the appearance of being over-rehearsed, I was nevertheless struck by their
seemingly flawless recall of the events. This implausible, flawless consistency leads me to
discredit their testimony generally.
On the other hand, Aven’s testimony evinced an honest attempt to recall facts which
were at the periphery of his memory. For instance, Aven remembered working with Sadler at the
manhole sometime during the first week of Sadler’s employment. He remembered asking Sadler
about his experience but he did not recall asking him about Union affiliation and, in fact, due to
the 2003 salting experience, Aven had been educated regarding the legality of such questioning
and, at least in the abstract, knew that coercive interrogation was illegal. Aven testified that he
knew better than to ask such questions. I note, moreover, that Sadler’s testimony regarding a
subsequent event somewhat corroborates Respondent’s claim that it educated its foremen.
Sadler testified that Aven told him that Respondent could not fire a suspected Union organizer
(Sullivan) because it was illegal. Sullivan testified that Aven stated that Respondent just had to
wait until Sullivan gave it grounds for discharge.
Based upon the relative plausibility of the testimony of Aven and Sadler, I find that Aven
did not ask Sadler whether he was a member of the Union while the two of them were working
at the manhole during Sadler’s first week of employment.
During the last week of July 2006, employee Randall Sage spoke with employees Charles
Sadler and Jay Sullivan. During this conversation, Sage did not ask Sadler and Sullivan if they
were from the same Union. Moreover, Sage did not attribute his actions to Aven’s inability to
act.
Around 5:30 pm on either July 254 or 31,5 Sadler, equipment operator Randall Sage,
foreman Bill Aven, and pipe layer Chris Stokes were standing around Sage’s truck drinking beer
after work on the Willows jobsite. Jay Sullivan joined them. Sadler and Sullivan were aware that
other employees and Aven suspected Sullivan was a member of the Union. Sullivan introduced
himself to Sadler because they wanted the appearance that they did not know each other and
were not affiliated.
According to Sadler and Sullivan, Sage asked if the two men were from the same union.
Sullivan said, “Hell, yes.” However, Sadler responded: “Randall, if you ask me that again, we’re
going to take it to the dirt.” Sadler testified that everyone was laughing and the comment was
an obvious joke because of his slight stature compared with Sage’s much larger size.

4 Sadler recalled the conversation on July 25.
5 Sullivan recalled that the conversation took place on July 31.
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According to Sadler, Sage responded, “Don’t say that, Little Buddy. You know we put guys like
you in the ground.” According to Sadler’s testimony, this was not the first time Sage had made
a comment in Sadler’s presence about burying Union guys.
After Sullivan left, Sadler testified he asked Aven, “So there’s no way to get rid of that
guy?” and Aven responded no, they just had to play the game. Sage then apologized for asking
Sadler about his membership in the Union with Sullivan. Sadler further testified that Sage then
said, referring to Aven, “Billy can’t ask those questions, him being a foreman and all.” Sadler
testified that Aven nodded his head yes, and then said yes.

When asked whether he recalled any conversations on the Willows job site between
Sage and Sadler in which Sadler made a comment about taking it to the dirt or putting union
guys in a ditch or hole, Aven said he did not. Aven testified he had never heard Sage make any
similar comments. When asked whether he recalled Sage ever saying in his presence that he
was asking about Union membership because Aven could not, Aven responded, “Not in front of
me, no. I don’t recall that.”
Sage testified that he could not remember a direct conversation with Sadler at the
Willows site about the Union, but that if anyone came on site looking for work then it was natural
to want to learn a little about them. He denied making a statement about asking questions
about Unions because Aven could not. He did not remember Sadler making a comment about
taking it to the dirt, and he said he believed it would be unlikely anyone would say that to him.
Sage testified he did not make a statement in Sadler’s presence about putting Union guys in a
ditch. Sage also testified that that type of comment was not one he has made to anyone.
When asked if he recalled asking Sadler and Sullivan whether they belonged to the
same Union, Sage responded, “I can’t remember that instance, no.” Sage testified that he
suspected that Sadler was a Union member after working with him for a short period of time.
Sage formed this suspicion based on the way Sadler handled his tools and set up for jobs. Sage
had worked with Union pipe fitters in other jobs and felt that, “they kind of have their own little
cadence. And from where the tape is in the pocket, the pencils, and rulers and little things that
they use, these things denote that he’s very professional.” Sage also agreed that he asked
Sadler if he was a member of the Union. Sage said they played a little game where he would
ask, “Chuck, are you?” Sadler would respond that he was not and Sage would say okay.
Sage’s testimony was forthright, candid, and spontaneous. Although he did not recall the
specific conversations that Sullivan and Sadler did, Sage thoughtfully considered the statements
attributed to him by Sullivan and Sadler. Hence, when asked if Sadler threatened to take him to
the dirt, Sage responded, “You know, I don’t remember him saying that. I don’t think somebody
would want to take it to the dirt with me.” Sage admitted that he questioned fellow employee
Sadler in their one-on-one conversations about his Union support and affiliation and admitted
that he thought Sadler was a Union employee based on the way Sadler performed his work. I
find Sage’s and Aven’s testimony regarding the alleged interrogation to be an honest account of
the events and more plausible than that of Sadler and Sullivan.
In September or October, the Union made house calls on Respondent’s employees. Randall
Sage did not threaten that an accidental cave-in might occur during a conversation referencing
Union organizer Jay Sullivan’s house call to foreman Bill Aven.
On or about September 17 or 18 at the Summit job site, Sadler, Aven, Sage, Stokes,
and Anders had a conversation about recent house calls by Union organizers. Aven recounted
such a visit from former employee Jay Sullivan and Union organizer Brett Holley. According to
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Sadler, Aven said he had not paid attention to what the organizers said because he was too
busy staring a hole through Sullivan’s skull. After Aven finished his story, Sadler testified Sage
reacted by saying, “Yeah, isn’t that some crazy shit? Who’s to say a guy is not down in a ditch
and an accidental cave-in happened and nobody knew a thing. Would that be some crazy
shit?” Sadler testified that the crew, including Aven, reacted by laughing.
Aven testified he did not at any time on the Summit job site discuss Union officials
coming to his house. He agreed that Union organizers had visited his house. Aven recalled the
visit was in October because he remembered there were pumpkins on the front porch. When
asked if he made a comment in front of employees on the Summit job site that he was staring a
hole through Sullivan’s skull, Aven testified he never made a comment to anybody because that
was something he needed to talk to Briggs about first. He denied speaking with anyone about
the incident after talking with Briggs. I find this explanation quite plausible and credit it for that
reason.
In response to questioning about whether he recalled making a joke about a cave-in and
putting Union people in a ditch, Sage responded, “Not hardly.” He testified that no one in the
industry jokes about that kind of thing. Aven agreed. He testified that he did not recall Sage ever
making a statement about a cave in and specifically did not recall Sage joking about trapping
Union sympathizers in that manner. Sage denied ever discussing a cave in or someone getting
buried in a trench. In general, Sage testified that such a subject was not discussed among men
who worked in trenches. I find this explanation plausible and, accordingly, credit Sage that he
did not make such a statement.
In September or October 2006, soon after making a house call on foreman Bill Aven, Union
organizer Jay Sullivan visited the jobsite. Aven left the jobsite as Sullivan arrived. Prior to
leaving the site, foreman Aven did not state that Union organizer Jay Sullivan needs his ass
kicked.
On the following day, Sadler, Aven, Sage, Stokes, and laborer Anders Svendsen were
standing around Sage’s truck drinking beer. According to Sadler, Aven received a call on his
phone or walkie talkie. Sadler testified that Mark, the parts runner, told Aven over the walkie
talkie that Sullivan was headed toward them and that Aven just looked at the other guys and
said, “I’ve got to go.” Sadler testified that as Aven walked away toward his truck, he yelled back
to Sage, “You talk to him.” Sage replied, “Well, what do you want me to say?” and Aven
responded, “Draw the line.”
Sadler testified that Sullivan drove by and waved on his way down the hill. There was a
cul-de-sac at the bottom of the hill and Sadler thought Sullivan was going to drive down there
and turn around. After Sullivan waved, Aven yelled down, “If he’s going to act like that, he
needs his ass kicked.” Sadler testified that Sullivan had done nothing to warrant that reaction
besides wave and smile. Sadler testified Sullivan did turn around and came over to talk to him
and Sage. Sullivan recalled the same event and testified that he asked Sage to join the Union.
Sage responded that he was not interested.

Aven testified that he remembered seeing Sullivan on this date driving up in a truck while
Aven and the others were down in the cul-de-sac. Aven said he did not receive a call over his
walkie talkie indicating Sullivan was coming, but that he recognized the truck from its color when
it drove up and immediately walked away, got in his truck, and left for the day. Aven testified
that he did not make any comments to anyone as he walked away. Additionally, he testified that
Sage did not make any comments to him as he had already walked away before Sullivan drove
back around the cul-de-sac to the jobsite.
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Sage testified that on this date he was parked at the bottom of the hill and Anders was
nearby cleaning or digging. He thought Stokes was with Anders. He said Aven was between
the tank they had built and the road, between the truck and the edge of the job. Sage testified
that Sullivan drove down the hill and turned around. He said as Sullivan got to the bottom of the
hill, Aven was at his own truck and said, “I’ve got to go” to Sage because, as Sage described,
“we knew who it was.” Sage testified that Aven did not say anything besides “I’ve got to go.”
I find it more plausible that Aven would leave the area without comment when he saw
Sullivan drive to the jobsite. The workday was concluded and by that time Sullivan was on strike
against Respondent. Both Sage and Aven agreed that Aven only said that he had to leave: “I’ve
got to go.” This makes sense. Aven, as foreman, knew that Sullivan was working for the Union.
The workday was over and there was no reason for him to stay and overhear conversations
about the Union, if that was Sullivan’s intent on visiting the job.
Conclusions of Law
The NLRB has jurisdiction of this matter because the employer is engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
Respondent is a State of Washington corporation with an office and place of business in
Edmonds, Washington, where it is engaged in the construction industry. In the course and
conduct of its business operations, Respondent purchased and caused to be transferred to its
facilities in the State of Washington, goods and materials valued in excess of $50,000 directly
from sources outside the State of Washington, or from suppliers within the State of Washington,
which in turn obtained such goods and materials from sources outside the State of Washington.
Respondent admits and I find that it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
International Union of Operating Engineers, Local 302, is a labor organization within the
meaning of Section 2(5) of the Act.
Respondent admits and I find that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
The Respondent did not violate the Act as alleged in the complaint.
Based upon the credibility findings above, I conclude that employee Sadler was not
interrogated by foreman Aven during Sadler’s first week of employment. I find that it is
unnecessary to determine whether equipment operator Sage is an apparent agent of
Respondent because I credit Sage’s denial that he questioned employees Sadler and Sullivan
about whether they were from the same Union and I credit his denial that he referenced an
accidental cave-in when speaking of former employee, Union organizer Jay Sullivan. I further
conclude that Aven did not state, in reference to Sullivan, that he needed his ass kicked.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended6

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
Continued
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ORDER
The complaint is dismissed.
Dated, Washington, D.C. September 5, 2007
____________________
Mary Miller Cracraft
Administrative Law Judge
_________________________
waived for all purposes.