Temp Masters, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 2005

344 N.L.R.B. 1188 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 142
1188
Temp Masters, Inc. and Sheet Metal Workers Inter-
national Association Local Union No. 24, AFL–
CIO. Case 9–CA–40822
July 29, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On November 19, 2004, Administrative Law Judge
Arthur J. Amchan issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions only to the extent consistent with
this Decision and Order and to adopt the recommended
order as modified.
The Respondent has excepted to the judge’s conclu-
sion that it violated Section 8(a)(1) of the Act by coer-
cively interrogating employee Matt Wandstrat when, in
late November or early December 2003, Manager Mark
Pack approached Wandstrat and asked him if a union
representative had visited the Respondent’s workplace.
We reverse the judge’s decision in this one respect.2
The Respondent is a refrigeration and heating, ventila-
tion, and air-conditioning (HVAC) contractor that oper-
ates in several Midwestern States. At the time of the
events in this case, the Respondent was engaged in the
installation of HVAC systems at two locations in Brown
County, Ohio—the Brown County Engineering Office
and the Ohio Highway Patrol Post. Seven of the Re-
spondent’s employees were working at the Brown
County Engineering Office, and two of the Respondent’s
employees were working at the Ohio Highway Patrol
Post.
In late November or early December 2003, one of the
employees working at the Ohio Highway Patrol Post
contacted Troy Wagner, a union business representative,
about obtaining union representation for the employees
at the Respondent’s Brown County projects. Wagner

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.
2 For the reasons stated by the judge, we find that the Respondent
violated Sec. 8(a)(3) when it discriminatorily transferred employees
Joseph Stapleton, Paul DeVaux, Samuel Lunsford, and Matthew Wand-
strat, and when it discharged Stapleton, DeVaux, and Wandstrat for
refusing those transfers.
visited both Brown County worksites to deliver union
authorization cards to employees.
Later that day, Mark Pack, the Respondent’s project
manager for both Brown County projects, visited the
Ohio Highway Patrol Post. Pack asked Wandstrat, one
of the two employees of the Respondent working there,
whether a union representative had come to the jobsite.
When Wandstrat replied that he did not know, Pack
shook his head and left the area.
An employer violates Section 8(a)(1) of the Act by in-
terrogating an employee only if the interrogation rea-
sonably tends to restrain, coerce, or interfere with rights
guaranteed by the Act. Rossmore House, 269 NLRB
1176, 1177 (1984), affd. sub nom. Hotel & Restaurant
Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir.
1985). Relevant factors include the background of the
relationship, the nature of the information sought, the
identity of the questioner, and the place and method of
interrogation. Id.
Pack’s single question did not “appear[ ] to be seeking
information upon which to take action against individual
employees.” John W. Hancock, Jr., Inc., 337 NLRB
1223, 1224 (2002), enfd. 73 Fed.Appx. 617 (4th Cir.
2003). Pack did not attempt to determine the views of
any individual employees, including Wandstrat. Al-
though Pack shook his head in reaction to Wandstrat’s
(“do not know”) response, we find that Wandstrat could
not reasonably have interpreted that gesture, unaccompa-
nied by any remarks, as a threat of retaliation sufficient
to convert Pack’s isolated inquiry into a coercive interro-
gation.
Further, Pack did not question Wandstrat in a context
contaminated by other unfair labor practices. Conced-
edly, there were other unfair labor practices here, all oc-
curring after the interrogation. In John W. Hancock, Jr.,
Inc., supra, the Board found that an interrogation was not
coercive even though there were subsequent unfair labor
practices in the case. Rather than holding that subse-
quent unfair labor practices are never relevant to the is-
sue of coerciveness of a preceding interrogation, how-
ever, the Board focused on the relationship between the
two events. 337 NLRB at 1225 fn. 5. Here, as in John
W. Hancock, the Respondent’s subsequent unfair labor
practices bore little, if any, relationship to the preceding
“interrogation.” Wandstrat’s answer (that he “did not
know”) obviously did not form the basis for the Respon-
dent’s awareness of Wandstrat’s union activity. Nor is
there any nexus to the other unlawful conduct. There-
fore, although we have adopted the judge’s findings that
the Respondent subsequently violated Section 8(a)(3) by,
inter alia, discriminatorily transferring Wandstrat and
firing him for refusing to accept that unlawful transfer,
TEMP MASTERS, INC. 1189
those independent unfair labor practices do not establish
that Pack’s one question was coercive.
In sum, the circumstances surrounding Pack’s question
do not support a finding that it was coercive, and we
dismiss the allegation that it violated Section 8(a)(1).3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Temp
Masters, Inc., Uniondale, Indiana, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Delete paragraph 1(a) and reletter the subsequent
paragraphs.
2. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated 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 discharge, transfer, or otherwise dis-
criminate against any of you for supporting Sheet Metal
Workers International Association, Local Union No. 24,
AFL–CIO, or any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order,
offer Paul DeVaux, Joseph Stapleton, and Matthew

3 Member Liebman would not dismiss this allegation. Rather she
would find that Project Manager Pack’s questioning of Wandstrat vio-
lates Sec. 8(a)(1). In addition to the factors cited by the judge, Pack’s
position of authority, his arrival on the jobsite on the heels of the Un-
ion’s visit (suggestive of surveillance), his direct question to an em-
ployee who had taken care not to reveal his union activities, and Wand-
strat’s untruthful denial that the union representative had been there
together show that this was no mere “isolated inquiry” but rather an
unlawful, coercive interrogation.
Wandstrat 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 make Paul DeVaux, Joseph Stapleton, and
Matthew Wandstrat whole for any loss of earnings and
other benefits resulting from their discharge, less any net
interim earnings, plus interest.
WE WILL make Samuel David Lunsford whole for any
loss of earnings and other benefits resulting from his
transfer to Danville, Illinois, less any net interim earn-
ings, plus interest.
WE WILL remove from our files any reference to the
unlawful discharges of Paul DeVaux, Joseph Stapleton,
and Matthew Wandstrat, and WE WILL, within 3 days
thereafter, notify each of them in writing that this has
been done and that the discharges will not be used
against them in any way.
TEMP MASTERS, INC.
Patricia Rossner Fry, Esq., for the General Counsel.
David W. Miller and Thomas R. Biehl Jr., Esqs. (Baker &
Daniels), for the Respondent.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Cincinnati, Ohio, on September 16 and 17, 2004.
The charge was filed January 22, 2004, and the complaint was
issued on April 30, 2004.
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(3) and (1) by transferring employees Joseph Stapleton,
Paul DeVaux, and Samuel David (Dave) Lunsford from con-
struction projects in the vicinity of Georgetown, Ohio, just east
of Cincinnati, to a worksite in Danville, Illinois, 254 miles
away. These transfers occurred on December 12, 2003, a few
days after Respondent became aware that the Union had filed a
petition with the NLRB to represent employees at the George-
town jobsites. The General Counsel also alleges that Temp
Masters violated the Act by similarly transferring Matthew
Wandstrat from Georgetown to Danville a week later. Further,
the General Counsel alleges that Respondent violated the Act
by terminating three of the four employees; Stapleton, DeVaux,
and Wandstrat, because they were unwilling or unable to trans-
fer to the Danville project.
In addition to the alleged 8(a)(3) violations, the General
Counsel alleges that Respondent, by Project Manager Mark
Pack, violated Section 8(a)(1) in interrogating Matt Wandstrat,
on or about December 2, 2003, as to whether a union represen-
tative had met with employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1190
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, Temp Masters, Inc., a corporation, installs and
services commercial refrigeration systems and heating, air-
conditioning and ventilation (HVAC) systems. Temp Masters
has its headquarters in Uniondale, Indiana. It annually per-
forms services valued in excess of $50,000 in States other than
Indiana. Temp Masters admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union, Sheet Metal Workers
International Association, Local Union 24, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
During 2002–2004, Respondent worked on as many 30 pro-
jects at a time installing commercial refrigeration equipment
and HVAC systems. These projects were located in six States:
Indiana, Ohio, Michigan, Kentucky, Illinois, and Iowa. They
ranged in duration from 3–12 months. Respondent employs
about 35 workers in its installation department, some of whom
regularly move back and forth between projects. Respondent
also has approximately 25 service technicians, who regularly
work on existing refrigeration and HVAC systems. In addition
to its headquarters office in Uniondale, Indiana, Respondent
maintains branch offices in Cincinnati and Indianapolis.
In June 2002, Respondent signed a contract to install the
HVAC systems at an office building and two garages (one for
vehicle storage; the other for vehicle maintenance) which were
being constructed for the Brown County, Ohio Engineering
Office near Georgetown, Ohio (Brown County). Work was
scheduled to begin in August 2002 and was scheduled to be
completed in October 2003. Completion of this project was
delayed for a variety of reasons. Respondent did not substan-
tially complete its work at the Brown County site until ap-
proximately May 1, 2004.
Temp Masters also contracted to install the HVAC system at
an Ohio Highway Patrol Post, no more than 2 miles away from
the Engineering Office. This project ran from September 2003
to March 2004. Both projects were “prevailing wage” projects
on which employees were paid $34.67 per hour.2 Respondent
was required to maintain a certified payroll for the Georgetown
projects listing all employees who performed work on these
sites (E.g., GC Exhs. 4 and 5).
Initially, Gil Bardige, Respondent’s then director of Ohio
operations, was in charge of the Brown County Engineering
Office project. At some point prior to December 1, 2003, Pro-

1 Tr. 159, L. 24, should indicate a resumption of recross-examination
by Respondent’s counsel rather than a continuation of an inquiry by
this judge.
2 Respondent did not initially pay its employees the prevailing rate,
but, in September 2003 made catch up payments to rectify this omis-
sion—at least with regard to those employees who worked at the
Georgetown projects continuously.
ject Manager Mark Pack assumed responsibility for both the
Brown County and Ohio Highway Patrol Projects. Respondent
hired new employees, who lived in the vicinity of Georgetown,
to staff these two projects. One of these, Stephen Mitchell,
who was hired on March 31, 2003, acted as the day-day fore-
man at Brown County. Michael Fahy, who was hired in August
2003, became the day-day foreman at the Highway Patrol site.
Sometime prior to December 1, 2003, Mitchell and Fahy traded
places. On occasion, Respondent also brought Temp Masters
employees from other worksites to work on the Brown County
project for a day or several days (Tr. 64, 221).3
The alleged discriminatees, Dave Lunsford, Joseph Staple-
ton, Paul DeVaux, and Matthew Wandstrat, were among the
new employees hired. Wandstrat was hired in April 2003. He
had no prior construction or HVAC installation experience.
Stapleton, a member of the Carpenter’s union, was hired in
July; Lunsford was hired in August, and DeVaux in September.
All four were hired as unskilled laborers. However, Stapleton’s
employment application indicated that he had 25 years of car-
pentry experience and some welding skills. He was hired ini-
tially at $13 per hour, while the other three were hired at $11
per hour. DeVaux’s application reflected some HVAC installa-
tion experience and Lunsford’s showed some pipefitting and
general construction experience.
Another employee, Curtis Trueax, who had prior HVAC in-
stallation experience, was hired in September. Michael Powell,
the son of Temp Masters President Kenneth Powell, was hired
in November 2003 to work on the Georgetown projects. Until
December 12, 2004, these Georgetown employees worked ex-
clusively in southern Ohio. In addition to working at the two

3 Paul DeVaux testified that towards the end of his employment, by
which I infer he means in December 2003, two Temp Masters refrigera-
tion employees would come to either the Brown County or Highway
Patrol Post for a day or several days “to set units” and then leave (Tr.
221). Dallas Mosher is the only person fitting this description whose
name appears on the certified payrolls for December.
In addition, James Smith, a skilled refrigeration pipefitter, worked
23 hours at the Brown County project during the payroll week ending
December 14, 2003, and 40 hours the week ending December 21, 2003
(Exh. R-7). Despite this fact, Smith’s name does not appear on Re-
spondent’s certified payroll for either week (Exh. GC-4; Tr. 284),
Smith also worked on the Brown County project on August 1, Septem-
ber 5, and October 13, 2003, and as discussed later, in January and
February 2004.
Jeff Griffin, described by Kenneth Powell as a skilled refrigeration
supervisor (Tr. 280), worked at Brown County on August 1 and 8 and
September 5. Brian Ramseyer, an unskilled employee, worked at
Brown County on September 5 and October 3, 2003 (Tr. 282). Griffin
and Ramseyer also worked at Brown County in January 2004.
Exh. R-7 indicates Respondent charged substantial amounts of
Kedric Joe Carnes’ time to the Brown County site for the weeks ending
December 7 and 14, 2003 [33 hours and 25 hours respectively], as well
as the week ending January 18, 2004 [14 hours]. Kenneth Powell testi-
fied that although Carnes’ time was charged to the Brown County pro-
ject, he may have merely delivered equipment to the site as opposed to
performing HVAC installation work (Tr. 292, 293). This, according to
Powell, may be the reason that Carnes does not appear on the certified
payroll (Tr. 295–296, 441–448). However, Powell conceded that,
although he doesn’t recall doing so, he may have had Carnes perform
on-site work at Georgetown for a couple of days (Tr. 296).
TEMP MASTERS, INC. 1191
projects near Georgetown, DeVaux, Wandstrat, and Lunsford
occasionally worked at another prevailing wage job at Cowan
Lake State Park, 30–40 miles north of Georgetown.4 Lunsford
also worked at a Bigg’s grocery store on the eastern side of the
Cincinnati metropolitan area on three or four evenings, after
having worked a full day on one of the Georgetown construc-
tion sites.
As of December 1, 2003, the employees working regularly at
the Brown County site were Fahy, Curtis Trueax, an experi-
enced sheet metal worker, Michael Powell, a son of Respon-
dent’s owner, Kenneth Powell; and Stapleton, DeVaux, and
Lunsford. Matt Wandstrat was assigned to the Ohio Highway
Patrol project, under the supervision of Stephen Mitchell, who
is his uncle.
Sometime in 2002, Troy Wagner, a business representative
of the Union, contacted all the bidders on the Brown County
job to inform them that it was a prevailing wage project and
that he would be monitoring the successful bidder to insure that
it was paying the prevailing wage. In the summer of 2003,
Respondent’s director of operations, Gil Bardige, called Wag-
ner to inquire about the possibility of employing some of the
Union’s journeymen. Wagner told Bardige that Respondent
would have to sign a collective-bargaining agreement with the
Union and that all its employees on site would have to join.
Wagner later had a similar conversation with Respondent’s
president, Kenneth Powell. Respondent did not pursue the
matter further.
Wagner also contacted employees on the two Brown County
sites about signing union authorization cards. In late November
or early December 2003, Steve Mitchell, the jobsite foreman at
the Highway Patrol post, contacted Wagner about obtaining
authorization cards. Wagner gave some cards to Mitchell and
Matt Wandstrat, who distributed them to Mike Fahy, DeVaux,
and Lunsford. They did not give one to Stapleton, because of
their perception that he was a friend of Project Manager Pack.
Curtis Trueax expressed opposition to the Union.
In regards to the 8(a)(1) allegation, Matthew Wandstrat testi-
fied that after Wagner came to the Highway Patrol jobsite to
give the authorization cards to himself and Mitchell, Mark Pack
came to the jobsite and asked him if somebody from the Union
had come to the site to meet with him and other employees that
day. Pack also testified that he asked Wandstrat if a union or-
ganizer was on the site. It is not clear how Pack would have
known or suspected that an organizer visited either project, but
I infer that Pack was told by either Michael Powell, the owner’s
son, or Curtis Trueax, an employee opposed to the Union, both
of whom were working at Brown County when Mitchell dis-
tributed authorization cards to employees at that site.
Fahy, Mitchell, Wandstrat, DeVaux, and Lunsford signed
union authorization cards on December 2 or 3, 2003. The Un-
ion then filed a petition with the NLRB seeking to represent a
unit of seven sheet metal installation and fabrication workers

4 Several witnesses testified that Cowan Lake is east of Georgetown.
The Rand McNally Atlas shows it to be to the north, near Wilmington,
Ohio.
(GC Exh. 6). A management labor consultant informed Ken-
neth Powell that the petition had been filed on December 8.5
Four days later, on the afternoon of Friday, December 12,
Kenneth Powell called Mark Pack and instructed him to tell
Stapleton, DeVaux, and Lunsford to report to a Shop Rite gro-
cery store in Danville, Illinois on Monday morning December
15.6 The Danville Shop Rite was not a prevailing wage pro-
ject. Lunsford and DeVaux would have been paid $11 per hour
and Stapleton $13 per hour, compared with the $34.67 per hour
they were receiving on the Ohio construction projects. Re-
spondent had been installing the coolers and other refrigeration
equipment in this store, which had yet to open for business,
since August 2003. Pack informed the three employees of their
new assignment, 254 miles from Georgetown, at about 3:30
p.m. The same day, Respondent’s operations manager, Dallas
Mosher, formally assigned a skilled refrigeration pipefitter,
James Smith, to the Brown County project for the following
week (GC Exh. 7, p. 3). Smith, who had worked 23 hours at
Brown County the week of December 8–12, worked 48 hours
there the week of December 15–19 (R. Exh. 7).7
A. DeVaux and Stapleton
In a face-to-face conversation with Mark Pack on the after-
noon of December 12, and in a voice mail message he left for
Kenneth Powell on December 14, 2003, DeVaux informed
Respondent that he could not go to Illinois because he was a
single father and had nobody to take care of his son. Devaux
said he did not want to lose his job and would still be interested
in work closer to his home (Tr. 214–216). DeVaux had no
further contact with Respondent.
Stapleton informed Powell that he had to go to Ashland,
Kentucky, from December 15–17, in order to take care of his
father’s estate. Powell told Stapleton to call him when he re-
turned from Ashland and that he needed him to work in Dan-

5 The Regional Director conducted a representation election on
January 5, 2004. One employee voted against representation; Respon-
dent challenged the 5 other ballots. The Board held that the election
was tainted by the organizational activities of Stephen Mitchell, who, it
concluded, was a statutory supervisor. The Union then withdrew its
petition.
6 Pack also testified, after a little prompting by the General Counsel,
that Powell said something like, “we’ll show them!” Pack testified that
he understood this to indicate that the transfer was being implemented
in retaliation for employee support for the Union. I decline to credit
Pack’s testimony in this regard. Kenneth Powell fired Pack in March
2004, after Pack had worked for Respondent for approximately 5
years. Pack conceded that he is rather bitter over his discharge. Given
this fact, the fact that Pack needed the prompt and the fact that Powell
denies saying any such thing leads me to consider Pack’s testimony on
this point with sufficient skepticism that I am unable to find it credible.
On the other hand, it is significant that Kenneth Powell personally
called Mark Pack to direct Pack to transfer the three employees to
Danville. Powell did not personally call any other supervisors at other
jobsites to direct them to send employees to Danville (Tr. 448). As
discussed later, Powell’s unusual personal involvement in the transfers,
the timing of the transfers in relation to Powell’s awareness of the
representation petition and the suddenness of the transfers are factors in
my determination that they were discriminatorily motivated.
7 Exh. R-7 indicates that Smith was paid about $17 per hour, rather
than the prevailing rate.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1192
ville and had no more work for Stapleton in Georgetown. Sta-
pleton then told Powell that may not be able to travel to Dan-
ville at all. Powell responded by telling Stapleton that if he
didn’t go to Danville, he would have no more work in Brown
County.
Powell deemed DeVaux and Stapleton to have terminated
their employment with Respondent by refusing to accept their
assignment to Danville.
B. Lunsford
Sometime between December 12 and 14, Lunsford called
Kenneth Powell. He told Powell he could not be in Danville on
Monday morning due to the fact that he was driving a rental
vehicle and would have to obtain a different vehicle to drive to
Danville. Powell told him that was acceptable, but that
Lunsford should get to Danville as soon as he could. Lunsford
reported to the Danville Shop Rite on Wednesday morning,
December 17, 2004. The only one who appears to have worked
at that site the entire week is a skilled startup refrigeration tech-
nician, David Lewis, who had been working continuously at the
site since mid-October.
Justin Hughes and laborers Scott Hall, Ross Perry, and Rod
Green were transferred from a Wal-Mart store in Pekin, Illinois,
to the Danville Shop Rite on Wednesday, December 17.8
Hughes supervised Lunsford during his 3 days at this project.
Hughes, Hall, and Perry had all worked at the Danville site
during the previous week, prior to working at the Pekin Wal-
Mart, which is 126 miles from Danville. David Powell, de-
scribed by Kenneth Powell as a skilled pipefitter, and laborer
Joe Hinton also worked at Danville that week, apparently on
Monday, December 15 and Tuesday, December 16. They were
then transferred to a job at the Cincinnati airport, where they
both had security clearances.
C. Matt Wandstrat
On Thursday, December 18 or Friday, December 19, Mark
Pack informed Lunsford that he was to report to Ohio Highway
Patrol site on Monday morning, December 22. Matt Wandstrat
worked at the Highway Patrol on Monday and Tuesday, De-
cember 15 and 16. He was off of work sick Wednesday
through Friday. He testified that his uncle, Foreman Steve
Mitchell, called him and suggested he work Saturday because
Respondent was trying to transfer him to Danville, Illinois.
Wandstrat and Curtis Trueax worked 8 hours at the Highway
Patrol site on Saturday, December 20.
Wandstrat testified that he called Pack on Sunday, December
21 and told him that he couldn’t get to Danville unless Respon-
dent advanced him money for gasoline. According to Wand-
strat, Pack told him that this was against company policy.
Wandstrat called Respondent’s emergency answering service
on December 21 in the late afternoon. He left a message to the
effect that he had talked to Mark Pack and could not make it to

8 Although, Kenneth Powell described Ross Perry as a laborer, his
wage rate, $15.50 per hour, was the same as that of Hughes, who he
described as a skilled refrigeration supervisor. Hall and Green’s wage
rate were $10 per hour; Lunsford’s $11 per hour, and Dave Lewis’ $26
per hour.
Danville the next day, but could make it the next week after he
got a paycheck (R. Exh. 14).
During the 2-week period from December 22, 2003–January
2, 2004, only one Temp Masters employee, David Lewis,
worked at the Danville Shop Rite (R. Exh. 12).9 Lewis did not
work Thursday through Sunday, December 25–28 (Tr. 494–
500). I find that Respondent did not need Wandstrat’s services
in Danville for those 2 weeks.
For the pay period of Monday through Sunday, December
22–28, 2003, Dave Lunsford worked 38 hours at the Brown
County site, almost all of it alone (GC Exh. 4). Fahy, Trueax,
and Powell worked at the Highway Patrol site that week (GC
Exh. 5). Although, Respondent normally gives its employees a
paid holiday on December 26, when it falls on a Friday,
Lunsford worked 10 hours that day, as did Trueax and Fahy.
Respondent apparently had no employees at the Brown
County site during the pay period December 29–January 4,
2004. Indeed, in the 2-week period December 22–January 4,
2004, Lunsford was the only Temp Masters employee to work
at the engineering office (also see GC Exh. 15). Kenneth Pow-
ell testified at transcript 438–439 that he transferred Fahy and
Trueax to the Highway Patrol site during those 2 weeks due to
the absence of Wandstrat and Mitchell at the Highway Patrol
site. He stated that if he did not allocate labor to the Highway
Patrol site, Temp Masters would hold up the work of the dry-
wall trades (Tr. 438–439).
Moreover, Powell testified that he would not have trans-
ferred Fahy and Trueax if Mitchell and Wandstrat had been
available to work at the Patrol Post. In fact, Respondent not
only transferred Fahy and Trueax from Brown County to the
Highway Patrol Post during the last 2 weeks in December, but
it transferred Michael Powell as well (GC Exhs. 4 and 5). This
evidence, as well as the December 24, 2003 progress meeting
minutes and correspondence for the Highway Patrol site (GC
Exhs. 8–10, and 19), establishes that there was plenty of work
available for the alleged discriminatees at both Georgetown
jobsites in December 2003.
On Monday, morning, December 29, 2003, Matt Wandstrat
called Respondent’s answering service. He left a message stat-
ing that Respondent had shorted his check 2 hours and that he
did not have the funds to get to Illinois (GC Exh. 23).
For the pay period, Monday, December 29–Sunday, January
4, 2004, Lunsford and Trueax worked 61 hours at the Highway
Patrol site. Mike Powell was at the site for 24 hours and Steve
Mitchell for 14. Mike Fahy worked for 2 hours on December
29, but Kenneth Powell fired him that day for insubordination
(GC Exh. 5, Tr. 427).
On Tuesday, January 6, two newly-hired employees, Robert
Wear and Robert Bentley, worked at the Highway Patrol site.
Bentley stayed there the rest of the week. Wear worked at the
Brown County project Wednesday through Friday. For the pay
period January 12–18, Bentley worked 40 hours at Brown
County; Wear worked 18 hours at Brown County and 14 at the
Highway Patrol site. For the period January 19–25, Bentley

9 Christmas and New Year’s Day fell on Thursday of each of these
weeks. None of Respondent’s employees worked at the Georgetown or
Danville sites on either day.
TEMP MASTERS, INC. 1193
worked 40 hours at Brown County. Wear worked 24 hours at
Brown County and 16 at the Highway Patrol. For the period
January 26–February 1, Bentley worked 40 hours at Brown
County. Wear worked 28 hours at Brown County and 7 at the
Highway Patrol. Bentley and Wear continued to work a sub-
stantial number of hours at Brown County at least through Feb-
ruary 13 (GC Exhs. 16 and 17).
Bentley apparently had some experience in HVAC installa-
tion. However, Respondent has not established that Bentley
had any more experience relevant to the work at Georgetown
than Devaux and Stapleton, who had been performing HVAC
installation work for several months prior to their terminations
and also had some relevant experience prior to their employ-
ment by Respondent.
Wear had no relevant experience to the work he was hired to
perform in Georgetown. He was essentially an unskilled la-
borer with no more experience in HVAC installation than
Wandstrat. I do not credit Kenneth Powell’s testimony that, in
January 2004, he asked Mark Pack to hire two skilled sheet
metal workers. There is no reason for Pack to have disregarded
his instructions in hiring Wear.
I conclude that Respondent hired Bentley and Wear to re-
place some or all of the discriminatees. In addition, Respon-
dent continued to employ James Smith at the Brown County
Engineering Office, and possibly at the Highway Patrol Post as
well.10 Despite the fact that Smith’s name does not appear on
the certified payroll for Brown County, the following hours,
that Smith worked, were charged to the Brown County Engi-
neering site:
Payroll period11 ending December 21: 28 hours;
Payroll period ending December 28: 17 hours;
Payroll period ending January 11: 21 hours (Jeff Grif-
fin also worked 11 hours);
Payroll period ending January 18: 5 hours (14 hours of
Joe Carnes’ and 14 of Dallas Mosher’s time was also
charged to Brown County for that week);
Payroll period ending February 1, 2004: 35 hours (25
hours of Brian Ramseyer’s time was also charged to
Brown County for that week).
To reiterate, the hiring of Wear and Bentley, the overtime
worked by Lunsford and Trueax, the continued employment of
James Smith and others at the Brown County site, and the cor-
respondence and progress reports for the Highway Patrol Post
(GC Exhs. 8–10, 19), establish that there was no shortage of
work at the Georgetown projects that provides a nondiscrimina-
tory basis for the transfers of the discriminatees to Danville,
Illinois. I also rely on the lack of work at the Danville Shop
Rite from December 22, 2003–January 2, 2004 in reaching this
conclusion.

10 The record does not contain a document similar to Exh. R-7 that
shows the number of hours for each employee that was charged to the
Highway Patrol Post.
11 Generally the posting date in R-7 is 5 days after the end of the
payroll period.
D. Analysis
In order to prove a violation of Section 8(a)(3) and (1), the
General Counsel must generally make an initial showing that
(1) the employee was engaged in protected activity; (2) the
employer was aware of the activity; and (3) that animus to-
wards the protected activity was a substantial or motivating
reason for the employer’s action. Once the General Counsel
makes this initial showing, the burden of persuasion shifts to
the Respondent to prove its affirmative defense that it would
have taken the same action even if the employee had not en-
gaged in protected activity, Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (lst Cir. 1981); La Gloria Oil & Gas
Co., 337 NLRB 1120 (2002).
The Board requires the General Counsel to make an initial
showing sufficient to support an inference that the alleged dis-
criminatee’s protected conduct was a ‘motivating factor’ in the
employer’s decision. Then the burden shifts to the employer to
demonstrate that the same action would have taken place even
in the absence of protected conduct, American Gardens Man-
agement Co., 338 NLRB 644 (2002). Unlawful motivation is
most often established by indirect or circumstantial evidence,
such as suspicious timing and pretextual or shifting reasons
given for the employer’s actions.
Discriminatory motivation may reasonably be inferred from a
variety of factors, such as the company’s expressed hostility
towards unionization combined with knowledge of the em-
ployees’ union activities; inconsistencies between the prof-
fered reason for discharge and other actions of the employer;
disparate treatment of certain employees with similar work
records or offenses; a company’s deviation from past prac-
tices in implementing the discharge; and proximity in time be-
tween the employees’ union activities and their discharge.
W. F. Bolin Co. v. NLRB, 70 F. 3d 863, 871 (6th Cir. 1995).
As noted by the Court of Appeals for the Ninth Circuit in
Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th
Cir. 1966):
Actual motive, a state of mind, being the question, it is seldom
that direct evidence will be available that is not also self-
serving. In such cases, the self-serving declaration is not
conclusive; the trier of fact may infer motive from the total
circumstances proved. Otherwise no person accused of
unlawful motive who took the stand and testified to lawful
motive could be brought to book. Nor is the trier of fact-here
a trial examiner-required to be any more naïf than is a judge.
If he finds that the stated motive for a discharge is false, he
certainly can infer that there is another motive. More than
that, he can infer that the motive is one that the employer de-
sires to conceal-an unlawful motive-at least where, as in this
case, the surrounding facts tend to reinforce that inference.
Accord, Fast Food Merchandisers, 291 NLRB 897, 898
(1988), Fluor Daniel, Inc., 304 NLRB 970, 971 (1991).
In the instant case, Respondent clearly knew that a number
of employees had indicated support for the Union when its
labor consultant notified Kenneth Powell of the filing of the
representation petition. The timing and very sudden transfer of
DeVaux, Stapleton, and Lunsford 4 days later, combined with
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1194
Respondent’s departure from its past practice with regard to
these employees, is sufficient to establish a prima facie case
that this transfer was motivated by Respondent’s animus to-
wards this union activity. While many of Respondent’s em-
ployees regularly moved from job to job, often great distances
apart,12 the Georgetown employees had been working near their
homes for months and were never transferred to projects out-
side of southern Ohio until Respondent became aware of the
representation petition.13
Moreover, Respondent’s insistence of transferring Wandstrat
to Danville for the week of December 22, is even stronger evi-
dence of antiunion animus and discriminatory motive. Respon-
dent has not made a credible nondiscriminatory explanation for
Wandstrat’s transfer. Indeed, its explanation, given the lack of
activity on the Danville worksite after December 17, is a pre-
text. Thus, this explanation is itself evidence of animus and
discriminatory motive. It is absolutely clear that Wandstrat’s
services were needed in Georgetown and were not needed in
Danville for the 2 weeks starting on December 22.
Given my conclusion that the General Counsel has estab-
lished a prima facie case of discrimination, the burden shifted
to Respondent to demonstrate that these transfers, and the re-
sulting terminations of DeVaux, Stapleton, and Wandstrat
would have occurred in the absence of union activity. It has not
done so.
Respondent obviously had a nondiscriminatory motive in
sending some of its employees to work at the Danville Shop
Rite during the weeks of December 15–19 and 22–26. It had a
number of employees working at that jobsite in almost every
week beginning with August 4, 2003. However, there is no
credible nondiscriminatory explanation for the sudden and un-
precedented transfer of employees from Georgetown, Ohio, to
work in Danville in mid-December.

12 For example, Exh. R-6 shows that Jeff Griffin, James Smith and
Brian Ramseyer were constantly moving from job to job, often great
distances apart. Smith traveled 254 miles from Cincinnati to Danville,
IL, on November 11; 188 miles from Ft. Wayne to Cincinnati on De-
cember 2; 175 miles from West Chester, Ohio, to Fort Wayne on De-
cember 5; 173 miles from West Chester to Ft. Wayne on December 9;
225 miles from Ft. Wayne to Brown County on December 11; 225
miles from the Ohio Highway Patrol Post to Ft. Wayne on January 2,
2004; from the Ohio Patrol Post to Brown County on January 6 and 14,
2004 [although he appears on neither certified payroll]; from Brown
County to the Ohio Highway Patrol on January 26, 2004 and back.
Respondent’s Exh. 19 shows that James Smith moved back and forth
between projects such as a Marsh store in Ft. Wayne, Indiana, a Wal-
Mart in Louisville, a Marsh store in Indianapolis, a Wal-Mart in Tell
City (located on the Ohio River across from Kentucky) and a Wolf-
gang-Puck at the Cincinnati Airport.
Similarly, the exhibit shows that Brian Ramseyer, an unskilled em-
ployee, moved back and forth between such projects as the Marsh store
in Ft. Wayne, the Wal-Mart in Louisville, the Wal-Mart in Pekin, Illi-
nois, the Wal-Mart in Tell City, and a Sam’s Club in Normal, IL.
13 Respondent’s accommodation of Lunsford, i.e., allowing him to
report to Danville on Wednesday, December 17, appears to weigh
against discriminatory motive in the transfer. However, most of the
employees transferred to the Shop Rite store did not arrive until De-
cember 17, an indication that it was not essential that Lunsford report
on December 15.
Kenneth Powell testified that he received an irate call from
the Shop Rite owner, Al Abbed, on or about December 12,
asking him how many employees would be at the Shop Rite on
December 15 (Tr. 349–350). Abbed, however, did not testify
about calling Powell on or about December 12. Instead, he
testified that he started calling Powell almost every day in mid-
November (Tr. 401).
Respondent’s payroll transaction journal for the Danville
Shop Rite (R. Exh. 12), is consistent with frantic calls from
Abbed to Powell in early November, and possibly in early De-
cember, but not on December 12. This journal is also consis-
tent with an unusual demand for labor at the Danville site for
the payroll period ending November 9, 2003, and possibly the
one ending December 14 (which was the week before
Lunsford, DeVaux, and Stapleton were ordered to report to
Danville). It is not consistent with a sudden need for the
Georgetown employees the weeks of December 15–19 and 22–
26. This journal shows that the following number of Temp
Masters’ employees worked the following number of hours at
the Danville Shop Rite from early August 2003 until early
April 2004. The journal indicates a payroll posting date, which
is about 5 days after the close of the pay period. Thus, the fig-
ures for August 15, 2003, reflect the payroll period of approxi-
mately Sunday to Sunday, August 3–10, 2003.
Payroll Period
Posted
Employees Total Hours Worked
8/15/03 7 233
8/22 5 221
8/29 6 185
9/12 3 93
9/19 5 187
9/24 4 165
10/3 4 132
10/10 5 196
10/17 5 214
10/24 7 219
10/31 ZERO ZERO
11/7 8 246
11/14 10 602
11/21 4 177
11/28 3 118
12/5 1 29
12/12 2 117
12/19 7 330
12/26 8* 263 [work week 12/15–19]
1/2/04 1** 30 [work week 12/22–26]
1/9 1 31
1/16 4 92
1/23 3 134
1/30 5 99
2/6 2 70
2/13 1 53
2/20 1 27
2/27 1 41
3/5 3 40
3/12 1 ZERO
TEMP MASTERS, INC. 1195
3/19 1 8
3/26 3 16
4/2 1 1
4/9 ZERO ZERO
4/16 1 7
*Week in which Lunsford, DeVaux, and Stapleton were as-
signed to Danville.
**Week in which Wandstrat was assigned to Danville.
Thus, I find that Respondent has not established that a sud-
den demand for labor from Abbed necessitated the transfer of
the Georgetown employees. Finally, Kenneth Powell testified
that he sent employees to the Danville Shop Rite to assist the
owner in opening his store before the Christmas holiday. How-
ever, after working there 3 days, Respondent’s employees re-
turned to other projects and the store was not ready to open
until February 2004.
Respondent simply made no credible attempt to demonstrate
the reason it suddenly decided to rely on Georgetown employ-
ees to staff the Danville job immediately after learning of the
representation petition, when it had never moved these employ-
ees out-of-state previously. Moreover, the hours, including
overtime, worked by Temp Masters’ employees at Brown
County and the Ohio Patrol Post after December 15, fails to
establish that their services were no longer needed in George-
town. If anything, the amount of work remaining on these pro-
jects establishes the opposite.
While there were delays and sometimes a hiatus in the flow
of work at Georgetown, the record indicates that this was a
recurring phenomenon. When Respondent shifted employees
between distant jobsites prior to December 12, it had never
included the Georgetown employees in these shifts. Moreover,
after insisting that Wandstrat transfer to Danville, there is no
evidence that Respondent ever transferred Georgetown em-
ployees to jobsites outside of southern Ohio. I conclude that, in
the absence of a convincing nondiscriminatory explanation as
to why Respondent suddenly relied upon Georgetown employ-
ees to staff the Danville job, that this was done in retaliation for
their union activity.14 Therefore, I find that the transfers of the
four employees violated Section 8(a)(3) and (1). Since I find
that the transfers were illegal, I find that Respondent also vio-
lated Section 8(a)(3) and (1) in terminating DeVaux, Stapleton,
and Wandstrat for refusing the illegal transfers, Nissen Foods,
272 NLRB 371, 402 (1984), enfd. 780 F.2d. 1016 (3d Cir.
1985); Monroe Auto Equipment Co., 169 NLRB 142 (1968),
enfd. 420 F.2d. 861 (5th Cir. 1969).15

14 It was unnecessary for the General Counsel to prove that Respon-
dent knew which employees supported the Union in view of the fact
that the transfers were effectuated to inhibit and discourage union activ-
ity at the Georgetown worksites. Likewise, in this situation it is irrele-
vant that Stapleton did not engage in union or other protected activity to
establish that his transfer and subsequent termination violated Sec.
8(a)(3) and (1), Big Three Industrial Gas & Equipment Co., 230 NLRB
392, 404 (1977), enfd. 579 F. 2d. 304 (5th Cir. 1978).
15 Respondent’s brief analyzes this case in terms of the doctrine of
constructive discharge. This is not a constructive discharge case. Re-
spondent essentially fired DeVaux, Stapleton and Wandstrat for refus-
ing to accept a discriminatory transfer.
E. Alleged 8(a)(1) Violation
Whether interrogation by a supervisor violates Section
8(a)(1) depends upon whether under the circumstances, it rea-
sonably tends to restrain, coerce or interfere with rights guaran-
teed by the Act, Rossmore House, 269 NLRB 1176 (1984). As
Matt Wandstrat had not openly demonstrated support for the
Union when Pack asked him about the presence of organizers
on the jobsite, I find Pack’s inquiry to be coercive. Moreover,
since Wandstrat and Mitchell were the only two employees on
the Highway Patrol jobsite, Wandstrat would reasonably have
concluded that Pack was seeking to determine whether he had
demonstrated an interest in the Union. I therefore find that
Respondent, by Pack, violated Section 8(a)(1) as alleged in
complaint paragraph 5.
SUMMARY OF CONCLUSIONS OF LAW
1. Respondent, by Mark Pack, violated Section 8(a)(1) in in-
terrogating employee Matt Wandstrat regarding the presence of
union organizers at the Ohio Highway Patrol jobsite on or
about December 2, 2003.
2. Respondent violated Section 8(a)(3) and (1) in transferring
Paul DeVaux, Joseph Stapleton, and Samuel David Lunsford
from the Brown County, Ohio projects to the Danville, Illinois
Shop Rite on December 12, 2003.
3. Respondent violated Section 8(a)(3) and (1) in transferring
Mat Wandstrat from the Ohio Highway Patrol project to the
Danville, Illinois Shop Rite project on or about December 21,
2003.
4. Respondent violated Section 8(a)(3) and (1) in terminating
the employment of Paul DeVaux, Joseph Stapleton, and Matt
Wandstrat for refusing to accept the illegal transfers to the
Danville, Illinois Shop Rite project.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged employ-
ees, it must offer them reinstatement16 and make them whole
for any loss of earnings and other benefits, computed on a quar-
terly basis from date of 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).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended17

16 Respondent offered Dave Lunsford and Curtis Trueax positions at
other jobsites when work at the Brown County project was substantially
completed in April or May 2004. Both declined this offer. But for the
discrimination against them, I find that the same offer would have been
made to DeVaux, Stapleton, and Wandstrat. Thus, I conclude that as a
remedy, Respondent must offer these three employees employment that
is substantially equivalent to their positions at the Brown County pro-
jects, wherever such positions exist.
17 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1196
ORDER
The Respondent, Temp Masters, Inc., Uniondale, Indiana, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating any employee about union sup-
port or union activities.
(b) Discharging or otherwise discriminating against any em-
ployee for supporting Sheet Metal Workers International Asso-
ciation, Local 24, AFL–CIO, or any other union.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Paul DeVaux, Joseph Stapleton, and Matthew Wandstrat 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 en-
joyed.
(b) Make Paul DeVaux, Joseph Stapleton, Matthew Wand-
strat, and Samuel David Lunsford whole for any loss of earn-
ings and other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy section of
the decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges,
and within 3 days thereafter notify each of the employees in
writing that this has been done and that the discharges will not
be used against each of them in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other

mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its
Uniondale, Indiana office copies of the attached notice marked
“Appendix.”18 Copies of the notice, on forms provided by the
Regional Director for Region 9, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. Respondent shall also dupli-
cate and mail, at its own expense, a copy of the notice to all
current employees and former employees who were employed
by the Respondent at the Brown County, Ohio Engineering
Office and Ohio Highway Patrol Post at any time since Decem-
ber 2, 2003.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C., November 19, 2004.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharges of Paul
DeVaux, Joseph Stapleton, and Matthew Wandstrat, and WE
WILL, within 3 days thereafter, notify each of them in writing
that this has been done and that the discharges will not be used
against them in any way.
TEMP MASTERS, INC.

18 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.”