Terracon, Inc.

National Labor Relations Board - Board Decisions

Jun 6, 2003

339 N.L.R.B. 221 (N.L.R.B. 2003)

TERRACON, INC. 221
Terracon, Inc. and International Union of Operating
Engineers, Local 150, AFL–CIO. Cases 13–CA–
39181, 13–CA–39271, and 13–CA–39279
June 6, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND ACOSTA
On May 21, 2002, Administrative Law Judge David L.
Evans issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed a brief in opposition to the Respondent’s
exceptions, and the Respondent thereafter filed an an-
swering brief. The Charging Party filed a cross-
exception and a brief in opposition to the Respondent’s
exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2

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 No exceptions were filed to the judge’s conclusions that the Re-
spondent violated Sec. 8(a)(1) through the following conduct: interro-
gating its employees about their activities on behalf of the Union; warn-
ing the employees that their activities on behalf of the Union would be
futile; and threatening the employees that it would close the Naperville
facility—and contract out the work performed there—because the
employees engaged in activities on behalf of the Union.
We additionally affirm the judge’s dismissal of that portion of the
complaint alleging that the Respondent violated Sec. 8(a)(1) by denying
employee Eliezer Rodriguez’ request for the presence of another em-
ployee, Hector Caballero, at an interview that, according to the General
Counsel, had the potential to result in discipline. The judge dismissed
this allegation based on the Respondent’s witness’ credited testimony
that Rodriguez in fact had not requested the presence of Caballero at
the interview. As we find no basis here for reversing the judge’s find-
ing, we affirm that finding and, consequently, we affirm the judge’s
dismissal of the 8(a)(1) allegation. Accordingly, we find it unnecessary
to pass on the Respondent’s claim that the judge erred in failing to
dismiss the allegation on the additional grounds that (1) at the time of
Rodriguez’ alleged request for the presence of Caballero, Caballero was
not an “employee” of the Respondent, and (2) that the rights afforded
by NLRB v. J. Weingarten, 420 U.S. 251 (1975), and Epilepsy Founda-
tion of Northeast Ohio, 331 NLRB 676 (2000), enfd. in relevant part
268 F.3d 1095 (D.C. Cir. 2001), cert. denied 536 U.S. 904 (2002), do
not extend to the situation in which the employee representative re-
quested is an alleged coconspirator of the individual who is the subject
of the interview/investigation.
Nevertheless, we disavow reliance on the judge’s statement that “the
Board conceded in the enforcement proceedings of Epilepsy Founda-
tion that Weingarten theories do not apply to coconspirators.”
only to the extent consistent with this Decision and Or-
der.
The principal issue in this case is whether the Respon-
dent—through the words and conduct of two alleged
supervisors—voluntarily recognized the Union as the
bargaining representative of its drillers and helpers, such
that its subsequent refusal to recognize and bargain with
the Union constituted a violation of Section 8(a)(5). For
the reasons that follow, we find, contrary to the judge,
that the Respondent did not voluntarily recognize the
Union and, accordingly, did not violate Section 8(a)(5) as
a result of its subsequent refusal to recognize and bargain
with the Union.3
I. FACTS
The Respondent is engaged in the business of conduct-
ing soil tests for commercial enterprises. At its Naper-
ville, Illinois facility the Respondent employs, inter alia,
nine drillers and driller helpers (helpers), who work in
two-person crews to collect the soil samples used for
testing. On February 19, 2001,4 a scheduled workday,
the Naperville drillers and helpers, each of whom wore a
baseball hat emblazoned with the Union’s logo, arrived
at the Respondent’s Naperville facility, accompanied by
Union Organizer Stan Simrayh and Union Attor-
ney/Organizer Ken Edwards. Simrayh and Edwards,
having previously obtained authorization cards from each
of the drillers and helpers, approached Maroun Mousal-
lem, the Respondent’s Naperville office manager,5 and
explained that the purpose of their visit was to request
that the Respondent voluntarily recognize the Union.
Mousallem and the union representatives thereafter pro-
ceeded to Mousallem’s office, at which time Simrayh
handed to Mousallem photocopies of the authorization
cards signed by the nine employees,6 a letter requesting

Chairman Battista and Member Acosta note further that, given the
posture of this case, they find it unnecessary to pass on the merits of
Epilepsy Foundation.
3 Consequently, we reverse the judge’s conclusion that the Respon-
dent further violated Sec. 8(a)(5) by altering the time at which the em-
ployees were required to begin working each day, without first provid-
ing notice to, or bargaining with, the Union. As a result, we find it
unnecessary to pass on the Respondent’s exception alleging that the
judge improperly prohibited the Respondent from introducing evidence
that would demonstrate that the change in employee start times did not
actually result in a loss of work hours or, consequently, a loss in pay.
4 All dates referenced herein are in 2001 unless otherwise indicated.
5 As office manager of the Naperville facility, Mousallem is respon-
sible for the day-to-day operations of the Naperville facility.
6 The union representatives presented nine authorization cards, one
signed by each of the nine drillers and helpers who reported to work on
February 19. In response to a contention of the Respondent, however,
the judge determined that the card signed by employee Ryan Carpenter
should not be considered in any determination of the Union’s majority
status, as Carpenter did not perform any work for the Respondent dur-
ing 2001. No party has excepted to that finding.
339 NLRB No. 35
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 222
recognition, and a blank “voluntary recognition agree-
ment.” Mousallem examined the authorization cards and
other documents and conceded that each of the Respon-
dent’s drillers and helpers had signed an authorization
card. Mousallem thereafter engaged in a discussion with
Simrayh and Edwards regarding the employees’ concerns
and their reasons for enlisting the assistance of the Un-
ion. In brief, the union representatives described various
items of concern or interest to the employees, after which
Mousallem responded that he didn’t think that those
items “would be a problem.”7 In response to Simrayh’s
subsequent inquiry as to whether the Respondent would
meet again with the Union to discuss such matters,
Mousallem told Simrayh and Edwards that they should
return later that morning, when the Respondent’s Illinois
regional manager, Kevin Jefferis,8 would be available.
When Jefferis arrived at the facility, Mousallem in-
formed him of the Union’s earlier visit and the events
that had transpired. Subsequently, Simrayh and Edwards
returned to the facility, at which time they presented to
Jefferis the authorization cards, the letter demanding rec-
ognition, and the “voluntary recognition agreement.”9
Similarly to Mousallem, Jefferis examined the authoriza-
tion cards and other documents and conceded that each
of the Respondent’s drillers and helpers had signed an
authorization card. Simrayh thereafter relayed to Jefferis
the concerns and requests of the employees—including
such items as better winter coveralls, an increased boot
allowance, and HAZMAT training—to which Jefferis
responded that most of those issues were “peanuts.” Jef-
feris thereafter asked Simrayh and Edwards what the
Union “could do for” the Respondent, including what the
Union could do with respect to the employees’ atten-
dance and punctuality problems. Additionally, the judge
found that Jefferis inquired as to the wage-rate changes
sought by the Union,10 as well as whether the Union
could refer qualified employees. At the conclusion of the

7 Specifically, Mousallem indicated that the employees’ requests for
better winter coveralls and an increased boot allowance likely “would
not be a problem.” Additionally, in response to Simrayh’s statement
that the employees would like additional time to inspect and perform
maintenance on equipment to enhance safety, Mousallem indicated that
it would be “a good idea”; similarly, Mousallem remarked that the
provision of HAZMAT training to all employees appeared to be “a
good way to go.”
8 As Illinois regional manager, Jefferis was responsible for the over-
sight—in terms of administration, marketing, and profit—of all of the
Respondent’s Illinois offices.
9 Also present during the meeting with the union representatives, at
Jefferis’ request, were Mousallem and Stephen Bucher, manager of
Respondent’s geo-technical engineering group.
10 With respect to the issue of wages, Simrayh testified that Jefferis
stated that “if he had to pay Union wages . . . it wouldn’t be fruitful for
the company to stay in drilling and they would have to terminate the
Drilling Division.” Tr. 86–87.
meeting, and in response to Simrayh’s inquiry as to
whether the parties could meet again, Jefferis told the
union representatives that he would “be in touch.”11
Immediately following the meeting, Jefferis called the
Respondent’s CEO to inform him about the Union’s
visit, whereupon the CEO advised Jefferis to hire a labor
attorney. Two days later, Jefferis sent Simrayh a letter
that stated, in pertinent part, that the Respondent was
“not familiar with the unionizing process,” and that it
understood that—by its conduct in conversing with the
Union on February 19—it did not recognize the Union or
begin negotiations or bargaining.
II. THE JUDGE’S DECISION
The judge concluded that the Respondent, through the
conduct of employees Jefferis and Mousallem, voluntar-
ily recognized the Union as the bargaining representative
of its drillers and helpers and, accordingly, that the Re-
spondent violated Section 8(a)(5) by thereafter withdraw-
ing recognition.12 Specifically, relying primarily on
Richmond Toyota, 287 NLRB 130 (1987), the judge
found that Mousallem—by his actions in reviewing the
materials proffered by the Union and his remarks to the
union representatives that Jefferis would meet with
them—demonstrated a “commitment to bargain” with the
Union which, in turn, constituted an implicit recognition
of the Union. The judge further found that Jefferis’ sub-
sequent discussions with the Union not only reaffirmed
the Respondent’s commitment to bargain, but also con-
stituted actual bargaining with the Union. On the basis
of that finding, the judge analogized the facts of this case
to those in Lyon & Ryan Ford, 246 NLRB 1 (1979),
enfd. 647 F.2d 745 (7th Cir. 1981), cert. denied 454 U.S.
894 (1981), in which the Board concluded that the em-
ployer recognized the union through its actions in re-
viewing the employees’ authorization and application-
for-membership cards, accepting and examining a pro-
posed contract, and meeting with the union representa-
tives on several occasions to discuss and negotiate the
terms of the proposed contract.
11 Although the Respondent contends that Jefferis told the Union at
the conclusion of the meeting that “Corporate” would be in touch with
them, the judge credited the testimony of Simrayh and Edwards that
Jefferis stated that he would be in touch.
12 As part of that determination, the judge concluded that, as of Feb-
ruary 19, the Union enjoyed majority status among an appropriate unit
of employees, consisting of the Naperville drillers and helpers, and that
both Jefferis and Mousallem possessed actual and apparent authority to
recognize the Union as the bargaining representative of those employ-
ees. The Respondent has excepted to these findings. Based on our
conclusion that the Respondent did not voluntarily recognize the Union,
discussed below, we find it unnecessary to address the Respondent’s
exceptions.

TERRACON, INC. 223
III. THE PARTIES’ CONTENTIONS
The Respondent, asserting that it did not voluntarily
recognize the Union, contends that the judge utilized the
incorrect legal standard in analyzing the facts of this
case. Specifically, the Respondent avers that, contrary to
the judge, an employer’s “commitment to bargain” on
some demonstrable showing of majority status no longer
suffices to establish a grant of voluntary recognition.
Rather, the Respondent contends, the Board in Jefferson
Smurfit Corp., 331 NLRB 809 (2000), held that a finding
of voluntary recognition requires evidence that an em-
ployer expressly consented to a determination of a un-
ion’s majority status by means other than a Board elec-
tion and, accordingly, implicitly overruled precedent to
the contrary (including the decisions on which the judge
relied). Further, the Respondent claims that the judge
improperly discounted factually similar Board deci-
sions—including Nantucket Fish Co., 309 NLRB 794
(1992), and Ednor Home Care, 276 NLRB 392 (1985)—
and instead relied on decisions that are distinguishable
from the instant case.
Conversely, the General Counsel and the Charging
Party assert that the judge properly applied extant Board
precedent in determining that the conduct of Mousallem
and Jefferis demonstrated the Respondent’s voluntary
recognition of the Union.
IV. ANALYSIS
The Board will find that an employer has voluntarily
recognized a union when there is a clear and unequivocal
agreement by the employer to recognize the union on
proof of majority status, and the union’s majority status
has been demonstrated. See Nantucket Fish Co., supra.
While the requisite clear and unequivocal agreement to
recognize the union may be demonstrated by an em-
ployer’s express statements granting recognition, the
Board additionally has held that an employer’s state-
ments or conduct evidencing a “commitment to enter into
negotiations with the union [may constitute] an implicit
recognition of the union.” Id. at 795 (emphasis added);
see Jerr-Dan Corp., 237 NLRB 302, 303 (1978), enfd.
601 F.2d 575 (3d Cir. 1979).
Contrary to the Respondent’s contention, the Board
did not repudiate or retreat from the concept of implicit
recognition in Jefferson Smurfit, supra. Indeed, the
Board majority in Jefferson Smurfit cited and relied on
the Board’s prior decision in Nantucket Fish, in which,
as noted above, the Board reiterated that a commitment
to enter into negotiations with the union is an implicit
recognition of the union.13 Thus, the Board in no way

13 Additionally, we note that there was no contention in Jefferson
Smurfit that the employer had made a commitment to enter into nego-
suggested that a finding of voluntary recognition requires
evidence that the employer at issue expressly consented
to a determination of a union’s majority status by means
other than a Board election.14 Rather, the Board simply
reaffirmed the established principle that—regardless of
the explicit or implicit means through which an employer
is alleged to have recognized the union—the relevant
statements and conduct of the employer must clearly and
unequivocally demonstrate an agreement to recognize the
union.
Turning to the application of established precedent to
the facts of this case, we conclude, contrary to the judge,
that the facts here do not establish either an explicit or
implicit clear and unequivocal agreement by the Respon-
dent to recognize the Union. Specifically, we reject the
judge’s findings that certain statements and conduct of
employees Mousallem and Jefferis demonstrated a com-
mitment to enter into negotiations with the Union, and
that Mousallem’s and Jefferis’ discussions with the union
representatives constituted actual “bargaining.”
In rejecting the judge’s finding that the Respondent’s
conduct and statements demonstrated a commitment to
bargain with the Union, we rely on the analogous deci-
sion of the Board in Nantucket Fish, supra. In that case,
the employer’s representative and its attorney met with
the union representative and several employees at the
conclusion of a hearing, prior to which the union repre-
sentative had approached the employer’s representative
to inform her that the union represented a majority of the
employer’s employees, and to present to her a copy of an
employee petition and union letter demanding recogni-
tion. In response to the union’s statement that it repre-
sented a majority of the employees and that it wanted to
discuss dates on which the parties could “bargain and
discuss the issues,” the employer’s representative replied,
“fine, we’ll meet with you, but we’ve got a lot of things
going on today and we’ll call you later this afternoon.”
Nantucket Fish, 309 NLRB at 794.
On these facts, the judge in Nantucket Fish concluded
that the employer representative, by her statement to the
union, had committed herself to meeting with the union
for bargaining and, consequently, had implicitly recog-
nized the union. The Board, however, found that the
employer’s response was subject to more than one inter-

tiations with the union. In fact, the employer’s manager, after review-
ing and copying the union’s authorization cards, told the union that the
employer needed to consult with counsel.
14 Rather, the Board simply made a factual finding that, in that par-
ticular case, the respondent had not expressly consented to such a de-
termination. Subsequently, the Board went on to consider the General
Counsel’s argument that the respondent’s recognition of the union
could be inferred from a manager’s conduct in reviewing and copying
authorization cards proffered by the union.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 224
pretation and, further, that the ambiguity could not be
resolved definitively through the consideration of other
evidence. Accordingly, the Board concluded that the
statement did not constitute a clear and unequivocal
agreement to recognize the union, and that the employer
did not violate Section 8(a)(5) by subsequently refusing
to recognize and bargain with the union.
Similarly here, Mousallem’s statement to Simrayh and
Edwards that they should return later in the morning
when Jefferis would be available to talk to them is sub-
ject to more than one interpretation. Although it is pos-
sible that Mousallem’s statement could convey the im-
pression that Mousallem had agreed to recognize the
Union and that bargaining would proceed through Jef-
feris,15 it is equally possible, if not more probable, that
Mousallem’s statement was a disavowal of authority to
make a decision as to whether the Respondent would
recognize and bargain with the Union (such that the un-
ion representatives would need to return to speak to the
actual decision maker). Similarly, Jefferis’ statement at
the conclusion of the meeting that he “would be in
touch” with the Union, in response to the Union’s inquiry
regarding whether the parties could meet again for dis-
cussions, is at best ambiguous. Although Jefferis’ state-
ment could imply that the Respondent was willing to
meet for negotiations with the Union, an equally logical
interpretation is that the Respondent would consider the
Union’s request and later respond to it. See id. at 795.
Accordingly, as in Nantucket Fish, supra, the Respon-
dent’s statements are ambiguous, and the consideration
of surrounding circumstances—for example, the Re-
spondent’s failure to complete or sign the blank “volun-
tary recognition agreement” proffered by the union rep-
resentatives, and the absence of any statements of agree-
ment to recognize the Union—does not resolve the am-
biguity in such a way as to support a conclusion that the
Respondent clearly and unequivocally agreed to recog-
nize the Union. See Ednor Home Care, 276 NLRB 392,
395 (1985).
As noted above, the judge—relying on the Board’s de-
cision in Richmond Toyota—characterized Mousallem’s
remarks described above as an affirmative assurance that
the Respondent (through Jefferis) would meet with the
Union to begin negotiations. We find Richmond Toyota
distinguishable from the instant case. In that case, the
respondent’s vice president/general manager—in re-
sponse to a union’s request for recognition, and follow-

15 This is apparently the construction accorded Mousallem’s state-
ment by the judge. Indeed, such a characterization led the judge to
compare Mousallem to the employer representative in Richmond Toy-
ota, supra. For the reasons set forth below, we find that the facts of that
case are distinguishable from those present here.
ing its proffer of authorization cards—told the union that
she was unavailable on the specific date suggested by the
union for the purpose of meeting to negotiate a contract,
but that her husband (the respondent’s president and sole
owner) would handle the negotiations and would contact
the union. Richmond Toyota, 287 NLRB at 130. After
the requested meeting date passed, the union called the
respondent’s vice president, complaining that the re-
spondent had not yet contacted the union regarding nego-
tiations; the respondent’s vice president responded that
she had told the union that she was unavailable on the
requested date, and that her husband “[was] going to talk
to [them].” Id. at 131. During that conversation, she
additionally provided the union with her husband’s tele-
phone number.
Here, in contrast to the employer representative in
Richmond Toyota, Mousallem did not expressly tell the
Union that another agent of the Respondent (i.e., Jefferis)
would engage in negotiations with the Union; perhaps
more significantly, Mousallem did not reaffirm such a
commitment on a subsequent occasion. Moreover, the
additional circumstantial evidence that contributed to the
Board’s finding of voluntary recognition in Richmond
Toyota—for example, behavior by the union representa-
tives that was consistent with recognition and otherwise
inconsistent with the union’s interest—is lacking in this
case.16
Just as we reject the judge’s determination that Mous-
allem’s suggestion to Simrayh and Edwards that they
return later to speak to Jefferis constituted an initial
commitment by the Respondent to bargain with the Un-
ion, we also disavow the finding that Jefferis’ subsequent
discussion with Simrayh and Edwards both reaffirmed
that earlier commitment and demonstrated a renewed
commitment to bargain. As found above, the mere fact
that Jefferis engaged in a conversation with the Union
did not obligate the Respondent to recognize the Union.
Similarly, in our view, Jefferis’ dialogue with the Union
16 In Richmond Toyota, the union—subsequent to its receipt of, and
its reliance on, assurances from the employer vice president that her
husband would contact the union to begin negotiations—withdrew the
representation petition that it previously had filed with the Board.
In the instant case, there is no comparable evidence that serves to
elucidate the parties’ state of mind following their February 19 meet-
ing. The Union (via Simrayh) did send to Jefferis a letter stating, inter
alia, that the Union “[was] glad to begin bargaining” with the Respon-
dent regarding the terms and conditions of employment of the unit
employees, and that the Union was available on certain enumerated
dates to meet for the continuance of negotiations. Given its carefully
chosen language, however, that letter (as well as Jefferis’ subsequent
letter in response), appears intended simply to summarize the events of
the meeting in the light most favorable to the Union’s (or Respon-
dent’s) respective position, and to preserve that characterization in
anticipation of any potential future dispute.

TERRACON, INC. 225
(as well as Mousallem’s earlier discussion with the Un-
ion) cannot be equated with the give-and-take character-
istic of negotiations.
Ednor Home Care, supra, is instructive on this point.
In that case, the Board adopted the administrative law
judge’s finding that the respondent did not voluntarily
recognize the union when one of the respondent’s part-
ners met with the union representative for approximately
45 minutes, during which time he reviewed the union’s
proffered authorization cards, asked a “number of ques-
tions regarding the probable nature and extent of the un-
ion demands, and requested that [the union representa-
tive] furnish a blank form of the union contract.” Ednor
Home Care, 276 NLRB at 393.17 Specifically, the judge
found, inter alia, that the respondent had not engaged in
negotiations with the union. Rather, the judge character-
ized the respondent representative’s discussions with the
union representative as merely an effort to gather infor-
mation regarding the employees’ purported desires and
their motives for seeking union representation. See id. at
393–394.18
Similarly here, Mousallem and, later, Jefferis, met with
the union representatives for a brief period of time,19
during which they responded to the Union’s recitation of
employee “demands” with comments to the effect that
such items were unlikely “to be a problem.” As it is un-
disputed that neither Mousallem nor Jefferis conceded
the Union’s majority status or made any express remarks
connoting an intent to recognize the Union, we find that
the actions of the Respondent here, like those of the re-
spondent in Ednor Home Care, simply represented the
Respondent’s efforts to educate itself about the Union’s
purported purpose and to assess whether or not it should

17 The judge provided the following example of an exchange be-
tween the employer and union representatives regarding the employees’
requests: The union representative “mentioned the number of paid
holidays that would be demanded and [the employer] asked if the Un-
ion would accept a lesser number, to which [the union representative]
responded that that was a subject that could be negotiated.” Id. at 393.
18 The facts in Ednor Home Care stand in stark contrast to those in
Lyon & Ryan Ford, supra, on which the judge here relied in finding that
the Respondent’s discussions constituted negotiations. In Lyon & Ryan
Ford, the employer engaged in detailed, substantive discussions with
the union representatives on two separate occasions. Specifically, the
judge in that case found, inter alia, that the parties reviewed, and the
employer asked substantive questions regarding, the specific provisions
of the union’s master contract, and the parties discussed the “job classi-
fications of specific employees on an employee by employee basis.”
Id. at 3. Moreover, the employer had agreed to meet with the union on
a third occasion. Accordingly, we find that Lyon & Ryan Ford is inap-
posite to this case.
19 Jefferis testified that the meeting in which he participated with the
union representatives lasted approximately 30 minutes; in contrast,
Simrayh testified that the meeting lasted for approximately 1 hour. In
either case, we note that the meeting between the parties was rather
brief.
grant recognition to the Union.20 In our view, the charac-
terization of the parties’ meetings as akin to an informa-
tional, rather than bargaining, session is consistent with
the Board’s established objective of promoting voluntary
recognition,21 and, consequently, it effectuates the Act’s
purpose of promoting collective bargaining. Were we to
find that any employer that merely extends the courtesy
of permitting a union to enter its premises and state its
purpose thereby obligates itself to enter into a bargaining
relationship with the union, employers might be com-
pelled to simply deny the union the opportunity to ex-
press its objectives or, further still, to avoid altogether
any contact with the union.
For all the foregoing reasons, we conclude that the Re-
spondent here did not voluntarily recognize the Union as
the bargaining representative of its employees. Accord-
ingly, we reverse the judge’s conclusion that the Re-
spondent violated Section 8(a)(5) by withdrawing recog-
nition from the Union, and we dismiss that allegation of
the complaint. Consequently, as noted supra at fn. 3, we
additionally reverse the judge’s related conclusion that
the Respondent violated Section 8(a)(5) by unilaterally
changing the work hours of the employees without bar-
gaining with the Union, and we dismiss that allegation of
the complaint.
ORDER
The National Labor Relations Board orders that the
Respondent, Terracon, Inc., Naperville, Illinois, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees about their membership
in, or activities on behalf of, the Union.
(b) Warning its employees that their activities on be-
half of the Union would be futile.
(c) Threatening its employees that the Respondent
would close its Naperville, Illinois facility or threatening
20 The judge here distinguished Ednor Home Care from the instant
case based on the fact that the respondent representative in Ednor
Home Care specifically testified that he merely spoke with the union
representative to obtain as much information as possible. We note
initially that the judge in Ednor Home Care, in specifically rejecting the
General Counsel’s contention that the respondent representative should
have articulated that motive by stating his intent to consult with his
partners before making a decision whether to recognize the union,
stated that such a requirement would improperly place “the burden on
[the respondent] to overtly negate recognition in a conference such as
the one he had with [the union representative].” Id. at 395. We agree
that the party alleged to have recognized a union should not bear the
burden to affirmatively negate recognition; similarly, the outcome of a
particular case should not turn on the quality of a witness’ posthoc
justification for his actions. Accordingly, we accord no weight to the
absence of testimony from Mousallem or Jefferis regarding their sub-
jective intentions in conversing with the union representatives.
21 See MGM Grand Hotel, 329 NLRB 464, 466 (1999).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 226
employees that it would contract out the work of that
facility, because its employees have engaged in activities
on behalf of the Union.
(d) In any like or related manner interfering with, re-
straining, 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
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facility in Naperville, Illinois, copies of the attached
notice marked Appendix.22 Copies of the notice, on
forms provided by the Regional Director for Region 13,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent immediately
on receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. 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 Re-
spondent 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 February 15, 2001.
(b) 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 com-
ply.

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
violated Federal labor law and has ordered us to post and
obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection

22 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.”
Choose not to engage in any of these protected
activities.

WE WILL NOT interrogate you about your membership
in, or activities on behalf of, the International Union of
Operating Engineers, Local 150, AFL–CIO.
WE WILL NOT warn you that your activities on behalf
of the Union will be futile.
WE WILL NOT threaten that we will close our Naper-
ville, Illinois facility, or threaten that we will contract out
the work of that facility, because you have engaged in
activities on behalf of the 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.
TERRACON, INC.

Vivian Perez Robles, Esq., for the General Counsel.
Douglas A. Darch and Alysa M. Barancik, Esqs., of Chicago,
Illinois, for the Respondent.
Pasquale A. Fioretto and Charles R. Kiser, Esqs., of Chicago,
Illinois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This case un-
der the National Labor Relations Act (the Act) was tried before
me in Chicago, Illinois, on January 28–February 1, 2002. On
February 26 and April 5 and 9, 2001,1 International Union of
Operating Engineers, Local 150, AFL–CIO (the Union), filed
the charges in Cases 13–CA–39181, 13–CA–39271, and 13–
CA–39279, respectively, under Section 10(b) of the Act alleg-
ing that Terracon, Inc. (the Respondent) has engaged in unfair
labor practices as set forth in the Act. On an investigation of
those charges, the General Counsel issued a complaint alleging
that the Respondent had violated Section 8(a)(1) of the Act by
interrogating employees and threatening employees with loss of
employment because they had engaged in activities on behalf of
the Union and by denying an employee assistance by another
employee during a disciplinary interview. The complaint fur-
ther alleges that the Respondent violated Section 8(a)(5) of the
Act by withdrawing recognition that it had previously granted
to the Union as the collective-bargaining representative of cer-
tain of its employees and by unilaterally changing certain work-
ing conditions of those employees. The Respondent duly filed
an answer admitting that this matter is properly before the Na-
tional Labor Relations Board (the Board) but denying the com-
mission of any unfair labor practices.
1 Unless otherwise indicated, all dates mentioned are from May 2000
through April 2001.

TERRACON, INC. 227
On the testimony and exhibits entered at trial,2 and after con-
sideration of the briefs that have been filed,3 I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
As it admits, at all material times the Respondent, an Iowa
corporation, with an office and place of business in Naperville,
Illinois, called Respondent’s Naperville facility, has been en-
gaged in the business of providing professional engineering,
testing, and environmental services. In conducting the business
operations during the year preceding the issuance of the com-
plaint, the Respondent purchased and received goods and ser-
vices valued in excess of $50,000 directly from suppliers lo-
cated at points outside Illinois. Therefore, at all material times
Respondent has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. As the
Respondent further admits, the Union is a labor organization
within Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Complaint Allegations
The Respondent is engaged in the business of soil testing for
commercial enterprises. (The tests are conducted to determine
load-bearing capacities for building sites and to determine the
presence of foreign elements that may affect the environment.)
To collect the soil samples, the Respondent employees’ crews
composed of a driller and a drilling helper.
The Respondent is a nationwide concern that has about 1300
supervisors and employees.4 Operationally, the Respondent
divides the country into area divisions (Midwest, Southwest,
etc.); the divisions are subdivided into State regions. The Re-
spondent’s Northeast division includes its Illinois region which
is headquartered at the Naperville facility. As well as a com-
plete facility in Naperville, the Respondent’s Illinois region has
complete facilities in Bloomington, Mokena, Rockford, and
Lake Zurich. Each of the five Illinois facilities has an office
manager who reports to the Respondent’s Illinois regional
manager who, at the time of the events in question, was Kevin
Jefferis. As Illinois regional manager, Jefferis reported directly
to Dennis Whited who was then the Respondent’s Northeast
division manager. Also, for the 5 or 6 years preceding time of
trial, Jefferis was a member of the Respondent’s board of direc-
tors.

2 Certain passages of the transcript have been electronically repro-
duced; some corrections to punctuation have been entered. Where I
quote a witness who restarts an answer, and that restarting is meaning-
less, I sometimes eliminate words that have become extraneous; e.g.,
“Doe said, I mean, he asked . . . ” becomes “Doe asked . . . .” Some
extraneous usages of “you know” are omitted from the quotations of
transcript. When quoting exhibits, I have not corrected capitalizations,
but I have corrected certain meaningless grammatical errors rather than
use “(sic).” All entries in brackets have been made by me.
3 The General Counsel’s unopposed motion to correct the record is
granted.
4 The Respondent’s stationery lists 21 States in which it operates.
Jefferis worked almost entirely out of the Naperville facility
which has about 45 supervisors and employees. Maroun Mous-
sallem was the Respondent’s office manager at Naperville;
Steve Bucher was the manager of the Naperville office’s geo-
technical engineering group; and Osvaldo (Oz) Marquez was
classified as the Respondent’s drilling coordinator. The com-
plaint alleges, and the Respondent admits, that Jefferis and
Moussallem were supervisors and (at least for some purposes)
agents within Section 2(11) and Section 2(13) of the Act. The
Respondent denies that Marquez was a supervisor or an agent.
The complaint does not allege that Bucher was a supervisor or
agent; however, Jefferis testified that Bucher hired engineers
for the Respondent, and the Respondent, on brief, concedes that
Bucher is a supervisor. The Respondent further admits that
Erick Kunz was the office manager of the Respondent’s Rock-
ford facility and that Kunz is its supervisor and agent.
The complaint alleges that, in violation of Section 8(a)(1),
between January 1 and February 23, Marquez, Kunz, and Jef-
feris threatened employees with loss of work if they selected
the Union as their collective-bargaining representative and that
Jefferis also interrogated employees. The complaint further
alleges that the Respondent’s Naperville drillers and drilling
helpers (helpers) constitute a unit appropriate for bargaining
within Section 9(b) of the Act, that by February 17 all of the
Respondent’s drillers and helpers had designated the Union as
their collective-bargaining representative by signing union
authorization cards, and that on February 19 Moussallem and
Jefferis (a) examined the cards, (b) orally granted recognition to
the Union as the collective-bargaining representative of the unit
employees, and (c) engaged in bargaining with representatives
of the Union. The complaint further alleges that, in violation of
Section 8(a)(5), on February 21, by letter of that date, the Re-
spondent withdrew recognition from the Union and that the
Respondent has thereafter refused to recognize the Union as the
collective-bargaining representative of the unit employees. The
complaint further alleges that, in further violation of Section
8(a)(5), on or about March 14, the Respondent, without prior
notice to or bargaining with the Union, changed the work hours
of the unit employees. The complaint further alleges that, in
further violation of Section 8(a)(1), on or about April 6, the
Respondent conducted a disciplinary interview of employee
Eliezer Rodriguez after refusing Rodriguez’ request to have
present at the interview “another employee,”5 Hector Caballero.
The Respondent denies responsibility for any threat that dis-
puted Supervisor Marquez may have made, and it denies that
any of the alleged threats or the interrogation occurred. The
Respondent admits that Jefferis and Moussallem met with rep-
resentatives of the Union on February 19, and it admits that
Jefferis and Moussallem then examined union authorization
cards that had been signed by all of its drillers and helpers who
then worked out of the Naperville facility. The Respondent,
however, denies that its drillers and helpers constitute a unit
appropriate for bargaining, it denies that Jefferis or Moussallem
had actual or apparent authority to grant recognition to the Un-
ion, and it denies that Jefferis and Moussallem agreed to recog-
nize the Union or that they engaged in any bargaining with
5 Complaint par. VI(d).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 228
agents of the Union. The Respondent admits its unilateral
changing of the work hours of its drillers and helpers, but it
denies that it had any duty to bargain with the Union over the
changes. The Respondent further denies that Rodriguez re-
quested the presence of Caballero at the April 6 disciplinary
interview, and the Respondent further contends that, even if
Marquez did request Caballero’s presence: (1) in a nonunion-
ized operation, employees do not have a right to have such a
request honored by their employer; (2) Caballero was a cocon-
spirator in the suspected misconduct of Rodriguez and, there-
fore, the Respondent had no duty to honor any alleged request
by Rodriguez for Caballero’s presence at the interview; and (3)
Caballero was not “another employee” whose presence Rodri-
guez could have effectively requested because Caballero had
been discharged by the time that Rodriguez’ interview began.
B. The 8(a)(5) Allegations
1. The alleged grant and withdrawal of recognition
The case law on which the parties base their respective con-
tentions will be detailed infra; it suffices at this point, however,
to note that Section 8(a)(5) requires an employer, on request, to
bargain with a labor organization only if that labor organization
represents a majority of the employer’s employees in a unit that
is appropriate for bargaining under Section 9(b). A union may
achieve majority status through an election that is conducted by
the Board under Section 9(c) of the Act, and, if it does so, the
employer is lawfully bound to recognize and bargain with it
(again, and hereafter, assuming a request to bargain). A Board
election, however, is not the only way that a union may estab-
lish majority status; a union may also establish majority status
by securing from a majority of a unit’s employees authorization
cards that designate it as their collective-bargaining representa-
tive. NLRB v. Gissell Packing Co., 395 U.S. 575 (1969).
However, if a union establishes its majority status by authoriza-
tion cards (or by other means short of a Board election, such as
a recognitional strike that has majority employee support), the
employer is not required, by the fact of the majority establish-
ment alone, to recognize and bargain with that union. Linden
Lumber Division, Sumner & Co. v. NLRB, 419 U.S. 301 (1974).
That is, even if an employer has received evidence of a union’s
majority status (by lawful means such as an authorization card
check or by counting his employees on a recognitional picket
line), he does not violate Section 8(a)(5) if he does no more
than refuse a request to bargain. But if the employer does
commit to bargain on a union’s demonstration of majority
status, and if that demonstration is made, the employer may not
thereafter repudiate its commitment and refuse to bargain with
the union without violating Section 8(a)(5). Snow & Sons, 134
NLRB 709 (1961), enfd. 308 F.2d 687 (9th Cir. 1962), and
other cases cited below.
In this case, the General Counsel contends that on February
19, 2001: (1) the Respondent’s Naperville facility employed
nine drillers and helpers who constituted a unit of employees
appropriate for bargaining; (2) the Union demonstrated its ma-
jority status in that unit by Simrayh’s and Edwards’ (a) bring-
ing nine drillers and helpers with them to demand recognition
and (b) presenting Jefferis and Moussallem with authorization
cards signed by all nine of those employees, which cards desig-
nated the Union as their collective-bargaining representative;
and (3) after the Union had demonstrated its majority status, the
Respondent, by Jefferis and Moussallem, committed to bargain
with the Union, and did bargain with the Union. As a result,
the General Counsel contends, the Respondent violated Section
8(a)(5) when, by its letter of February 21 (quoted in full below),
it withdrew recognition from the Union.
The Respondent answers that: (1) the Naperville drillers and
helpers do not constitute a unit appropriate for bargaining; (2)
even if drillers and helpers constitute an appropriate unit, the
size of the unit was not established at trial, and, therefore, even
if all nine of the union authorization cards that the Union pre-
sented to Jefferis and Moussallem are counted, they cannot be
said to represent a numerical majority; (3) Carpenter was not
employed by the Respondent during 2001, and his union au-
thorization card should not be included in any analysis; (4)
neither Jefferis nor Moussallem had the authority to grant rec-
ognition to the Union; and (5) even if Jefferis and Moussallem
did have such authority (a) they did not expressly agree to rec-
ognize the Union on February 19, and (b) they did not bargain
with the Union on that date. The Respondent therefore argues
that its February 21 letter cannot be characterized as a with-
drawal of recognition; the Respondent, instead, argues that its
February 21 letter can be accurately characterized only as a
rejection of a February 20 claim by the Union, by letter of that
date, that the Respondent had granted recognition to the Union
and bargained with it on February 19.
a. Evidence presented by the General Counsel
Stan Simrayh is an organizer for the Union. Simrayh testi-
fied that on February 10 he met with five of the Respondent’s
drillers and helpers: John Howard, Rob Renner, Hector Cabal-
lero, Eliezer (Elliot) Rodriguez, and Juan Reyes. At that meet-
ing, those five employees signed cards authorizing the Union to
be their collective-bargaining representative in dealings with
the Respondent. Simrayh further testified that he gave some
blank union authorization cards to Renner at the February 10
meeting and that, by February 13, Renner had returned cards to
him that had been signed by drillers and helpers Jeff Medina,
Rolando Salazar, Ricardo Barreto, and Ryan Carpenter. Copies
of all of these nine union authorization cards were ultimately
authenticated and received into evidence. The Respondent
contests the validity of Carpenter’s card on the ground that
Carpenter was not employed by the Respondent during 2001,
but it does not contest the validity of the other eight cards as
employee designations of the Union as their collective-
bargaining representative. (Carpenter did not testify.)
On Monday, February 19, the drillers and helpers6 were
scheduled to begin work at 6 a.m. by attending a training ses-
sion that was then scheduled in a conference room at the Na-
perville facility. About 5:30 a.m. on February 19, Simrayh and
union attorney (and organizer), Ken Edwards, met with seven

6 Unless otherwise indicated, subsequent references to the Respon-
dent’s drillers and helpers are references to the Respondent’s Naper-
ville drillers and helpers.

TERRACON, INC. 229
of the above-named nine employees7 in a parking lot near the
Naperville facility. (Salazar and Medina were not there.) Sim-
rayh and Edwards passed out baseball-type caps, with promi-
nent union logos on the crowns, to the seven employees. The
union representatives and the seven employees then drove to
the Respondent’s parking lot. Salazar and Medina joined the
group at that point, and Simrayh gave them union caps also.
Simrayh and Edwards, accompanied by all nine employees,
who were then wearing the union caps, approached Moussallem
in the Respondent’s lobby. According to Simrayh’s undenied
testimony, Simrayh and Edwards introduced themselves to
Moussallem, and Simrayh stated that the group was there
“seeking voluntary recognition on behalf of the Union.” Mous-
sallem asked Simrayh and Edwards to come into his office (and
the employees went into the conference room for the training
session). Simrayh and Edwards asked for the discussion to take
place in the presence of the employees, but Moussallem in-
sisted that the three of them go into his office and allow the
employees to go to the previously scheduled training session.
In the office, further according to Simrayh:
I requested voluntary recognition. . . . I told him that we
[were] there on behalf of Local 150, that we represented a ma-
jority, if not all, of his driller and helper employees, and that
we were there demanding recognition as the bargaining unit
representative of their employees. . . . [A]t the same time I
offered him a copy of the authorization cards.
What Simrayh actually offered to Moussallem was three sheets
of paper, each of which contained copies of three of the union
authorization cards that the nine employees had signed. Addi-
tionally, Simrayh handed to Moussallem a letter that requested
recognition of the Union as the collective-bargaining represen-
tative of the Respondent’s “operating engineer craft unit”; the
letter closed by stating: “We demand your immediate re-
sponse.” Simrayh also gave Moussallem a blank form entitled
“Voluntary Recognition Agreement.” The voluntary recogni-
tion agreement form, if signed by an authorized agent of the
Respondent, would have granted recognition to the Union “as
the sole and exclusive bargaining agent of all full and part time
employees in the bargaining unit of:” Then followed a space
for entry of a description of a bargaining unit; nothing, how-
ever, had been written in that space. Simrayh testified that
Moussallem “very carefully reviewed” the union authorization
cards. As Moussallem did so, Simrayh asked him if he realized
that the cards were signed by all of the Respondent’s drillers
and helpers; Moussallem replied that he did. Simrayh further
testified that Moussallem, at the same time, also reviewed the
demand letter and the voluntary recognition agreement form.
Further according to Simrayh:

I asked him if he would consider speaking to us about
the employees’ wages and working conditions. . . .
Mr. Moussallem responded by stating that if we were
even looking for five cents more an hour that the Com-

7 For purposes of brevity, I count Carpenter as an “employee” of the
Respondent even though I ultimately agree with the Respondent that
Carpenter was not employed by it during 2001.
pany could not afford it and they would be forced to take
very drastic action. . . .
Ken Edwards asked what he meant by “very drastic ac-
tion.” . . .
Moussallem stated that the Company would be forced
to subcontract out the drilling work and terminate the drill-
ing division of the Company. . . .
Ken Edwards asked how he knew that he could not af-
ford the Union’s proposal when he hadn’t seen it. . . .
Mr. Moussallem again stated that if we were looking
for even five cents more an hour the Company couldn’t af-
ford it and said that they were going to have to subcontract
out the work and terminate the drilling. . . .
He [Moussallem] asked me what the employees were
looking for. . . .
I told him that they wanted better winter coveralls, that
their coveralls were very thin because they were working
outside in the winter in adverse conditions all the time. . . .
He said that he didn’t think that that would be a prob-
lem. . . .
I brought up the employee’s boot allowance. At the
time it was 50 percent. I asked him if he would consider
increasing the employee boot allowance because, again,
they were always working in wet, adverse conditions, and
they were going through a lot of boots. . . .
He said it would be something they would have to look
at but he didn’t think it would be a problem either. . . .
I told him that the employees had raised issues on the
safety and the condition of the equipment. . . .
Mr. Moussallem said that the Company spent a lot of
money on mechanics to maintain and repair the equip-
ment. . . .
I asked him if he would consider giving the employees
a little bit more time to inspect and do preventive mainte-
nance on the equipment because safety was a concern for
the employees. . . .
Mr. Moussallem said that that would be a good idea
because the Employer was very concerned about safety
too. . . .
I brought up the issue of HAZMAT,8 that the employ-
ees all wanted HAZMAT training . . . along with an an-
nual 8-hour refresher because, at the time only the em-
ployees that were working on environmental sites were
HAZMAT trained. The other employees who were doing
geo-technical work did not have HAZMAT training even
though they were coming in contact with sub-
stances . . . that they had absolutely no idea what they
were. . . .
Mr. Moussallem said that that would probably be a
good way to go. . . .
Mr. Moussallem asked who we were seeking to repre-
sent. . . .
I told him that we were interested in representing the
drillers and helpers, [of ] which there were nine. I referred
him to the copy of authorization cards that I handed him.
8 “HAZMAT,” an acronym for “hazardous materials” is spelled vari-
ous ways in the transcript; I adopt this one.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 230
He agreed that there was nine [card copies]. I told him
that we were not interested in field technicians, secretaries,
supervisors or managers as defined by the Act. . . .
We asked Mr. Moussallem if we would have the op-
portunity to further negotiate and discuss these issues. . . .
[H]e told us that we should come back around 7:30
when Kevin Jefferis would be available, that he would be
the man we’d have to talk to because he was the principle
regional manager. . . .

Moussallem returned to Simrayh the documents that Simrayh
had given to him. Simrayh and Edwards then left. Simrayh
testified that the meeting with Moussallem lasted “[a]bout 45
minutes.”
Simrayh further testified that, about 7:30 a.m., he and Ed-
wards returned to the Respondent’s Naperville facility where
they met Jefferis. Jefferis asked Simrayh and Edwards into his
office. Edwards, instead, went into a restroom. When Simrayh
got to Jefferis’ office, Bucher was also present. According to
Simrayh, he gave Jefferis the copies of the union authorization
cards, the demand letter, and the voluntary recognition agree-
ment form that he had previously given Moussallem. As Jef-
feris completed examining the union authorization cards, Ed-
wards entered the office. Further according to Simrayh:

I explained to [Jefferis] that we had already met with
Mr. Moussallem and we had discussed some of the em-
ployees’ concerns, which were: they wanted better winter
coveralls, they’d like to increase their boot allowance,
which was only 50 percent at the time. That they would
like to have a little bit more time to maintain the equip-
ment, and that they all would like to have HAZMAT train-
ing. . . .
Mr. Jefferis said these were “no big deal” [and that]
this was “peanuts.” . . .
I asked him, “Would you want to put your employees
through the HAZMAT program?” . . .
He said, no problem. It’s done. . . .
Mr. Edwards asked, “So, you are going to put all the
employees through the HAZMAT program?” . . .
He said he would. . . .
He asked what we could do about training . . . .
I told him that the Union had an apprenticeship and
skill-improvement program located in Plainfield and that
we had [training] drill rigs there. We had qualified in-
structors there. And that we would strive to give the em-
ployees the best training possible to make it productive for
the Company. . . .
He asked if we had a PE, or a professional engineer, on
staff at the training site. . . .
I told [Jefferis] that we really didn’t have one on staff,
but we would absolutely look into it to assist in the train-
ing if it would be helpful to the Company. . . .
Jefferis asked what kind of money we were looking
for. . . .
I told him we would be more than happy to negotiate a
fair wage for his employees, that would be fair to the em-
ployees and to the Company. . . .
Mr. Jefferis indicated that not all his drillers were
journeymen, that some of them would be more considered
as apprentices. . . .
I told [Jefferis] that I agreed. That just about all of our
contracts have apprenticeship programs. There’s a gradu-
ated apprentice scale and that we would be more than
happy to discuss who would be an apprentice and who
would be a journeymen and that, yes, some of the employ-
ees would probably fall under the apprentice category. . . .
[Jefferis] asked me if we could provide qualified em-
ployees. . . .
I told him, “Absolutely.” [And I told Jefferis that] he
would have access to the Union’s referral list and that he
would have access to the journeymen driller operators. . . .
Mr. Jefferis commented on the punctuality of the em-
ployees. . . . He said that the guys had a problem getting to
work on time. . . .
I told him that [in] just about all of our contracts we
have progressive steps of discipline [that are] laid out in
black and white and that the employer has to adhere to
them just as well as the employee does. . . .
[Jefferis again asked] how would we address punctual-
ity. . . .
I told him that in most of our agreements we have
what’s called a 40-hour guarantee in which an employee is
guaranteed 40 hours pay for the week once he starts on
Monday morning. If the employee is late or is tardy one
of those days, he forfeits that 40-hour guarantee and that
will give incentive to the employees to be on time. . . .
Jefferis said that if he had to pay Union wages it
wouldn’t be fruitful for the Company to stay in drilling
and they would have to terminate the drilling division. . . .
[Edwards] said that we took that as a direct threat due
to Union organizing. . . .
[Jefferis] said that was not a threat, that was a prom-
ise. . . .
Mr. Jefferis then made the comment that if he had to
go Union, the whole country had to go Union. . . .
I told him that we were not interested in the other
shops. That we were only interested in the Naperville fa-
cility which falls within Local 150’s jurisdiction. . . .
[Jefferis] inquired about our insurance program. He
said that the current program he had was costing him
about $3.55 an hour per employee. . . .
I told him that the insurance provided by the Union
was probably right around there and that having the Union
providing the insurance would take the administrative
headaches away from the Company, that the Union would
take care of all the red tape.
Mr. Jefferis then requested a copy of our [health and
welfare] benefit plan, which I told him I would send him
something in the mail. . . .
He addressed the issue of the poor attitude of the em-
ployees, that they didn’t have a very good work ethic and
a very good work attitude. . . .
I told him that just by doing the Union [recognition?]
that I would think the employees’ attitude[s] would im-
prove and that Local 150, as an organization, always

TERRACON, INC. 231
stressed eight hours’ work for eight hours’ paid. And that
we would try to enforce that with the employees. And let
them know that without the contract[or] we don’t have a
job, and we have to do a good job to keep them going. . . .
Mr. Jefferis said he would be in touch. I asked him if
we could meet and negotiate or continue to negotiate or
discussing these issues, these and others, and he [again]
said that he would be in touch.

Simrayh testified that this meeting lasted “about an hour.”
Simrayh further identified a copy of a letter that he sent to
Jefferis the next day, February 20, by facsimile transmission
(fax). In the letter, Simrayh essentially recites his version of
what had happened on February 19, including: (1) Jefferis had
met with Simrayh and Edwards “regarding the bargaining unit
employees’ terms and conditions of employment”; (2) Jefferis
had examined the union authorization cards and had seen that
the Union “unanimously” represents the bargaining unit em-
ployees; (3) “we were glad to begin bargaining”; (4) Jefferis
had agreed to “provide better winter overalls, increase the boot
allowance, and provide HAZMAT training to all9 employees”;
(5) Simrayh and Edwards had agreed that bargaining unit em-
ployees “would be able to receive training at our apprentice and
skill improvement site”; and (6) the Union “would look into
getting a professional engineer to provide additional training.”
The letter then states that, “[a]s per your request, we will be
providing you with copies of our health and welfare program.”
Simrayh’s letter closes by stating that the Union was “available
to continue with our negotiations on March 7th, 9th, and/or the
14th” and by asking Jefferis to contact Simrayh “so that we
may set up a time and place to meet.” Although the text of
Simrayh’s February 20 letter to Jefferis states that he would
later be furnishing a copy of the Union’s health and welfare
plan, Simrayh testified (without contradiction) that he faxed a
copy of the plan along with the letter.
Simrayh further identified a letter from Jefferis dated Febru-
ary 21 which Simrayh received on that date (by fax). Cap-
tioned “Re: Courtesy Call,” the full text of Jefferis’ letter is:

I would like to thank you for what you termed a “cour-
tesy call” on the morning of Monday, February 19, 2001.
Present in the room from Terracon were Mr. Stephen
Bucher, Mr. Maroun Moussallem and myself. Present
from the International Union of Operating Engineers Local
No. 150 were Mr. Kenneth Edwards and you.
During the meeting we discussed several issues that
you brought up regarding winter coveralls, boot allowance
and HAZMAT training. As we indicated to you those
seemed to be very minor issues. Because Terracon is a
corporation neither Mr. Bucher, Mr. Moussallem or my-
self can change company policy without board approval.
After your courtesy call, I did contract upper management
to discuss the above issues, as well as the unionizing of
our drilling department.
As you are aware, we (Terracon) [are?]is not familiar
with the unionizing process, but again we understand that
yesterday’s visit by you was only a “courtesy call” and we

9 Emphasis in original.
did not recognize your union and that no negotiations or
bargaining has begun between Terracon and the Local
150. I also told you neither my staff nor I have power to
recognize Local 150 or to bargain or negotiate for Terra-
con.
As stated above, I did contact upper management and
they have indicated to me that they would contact you next
week to discuss the above matters.
We appreciate the time you spent with us in your cour-
tesy call of Monday, February 19, 2001.

(On cross-examination, Jefferis acknowledged that he had re-
ceived and read Simrayh’s February 20 fax before he sent this
letter.)
Counsel for the General Counsel asked Simrayh to admit or
deny the assertions in Jefferis’ letter. Simrayh denied that he
and Edwards were making a “courtesy call” when they went to
Jefferis’ office on February 19, and Simrayh flatly denied that
he or Edwards used the term “courtesy call” while they were at
the Respondent’s facility. Simrayh denied that, during the Feb-
ruary 19 meeting, Jefferis stated that neither he nor Moussallem
could change company policies without approval of the Re-
spondent’s board of directors, and Simrayh denied that Jefferis
stated at any time that neither he nor Moussallem had the
“power to recognize Local 150 or to bargain or negotiate for”
the Respondent. Simrayh further denied that, during the Febru-
ary 19 meeting, Jefferis stated that he would have to consult
with the Respondent’s board of directors before negotiating
with the Union. Simrayh further denied that anyone from the
Respondent’s management thereafter contacted him “to discuss
the above matters.” (This last denial is not disputed.)
On cross-examination, Simrayh agreed that, during the two
February 19 meetings, neither Jefferis or Moussallem expressly
stated that they granted recognition to the Union as the collec-
tive-bargaining representative of any of the Respondent’s em-
ployees. Simrayh further agreed that his pretrial affidavit
states: “I handed a blank copy of the voluntary recognition
agreement to Maroun Moussallem. He read it and said that he
couldn’t sign it right then.” Simrayh further acknowledged that
he never received from the Respondent any signed voluntary
recognition agreement.
Edwards testified essentially consistent with Simrayh about
the content of the meetings that he and Simrayh had with
Moussallem, Jefferis, and Bucher on February 19.
In reference to the General Counsel’s contentions that Jef-
feris and Moussallem had the authority to recognize or bargain
with the Union, the parties stipulated that:

In February 2001 contracts between Terracon and suppliers
necessary for the operation of the Naperville office (which
[were] not project-related) [were] signed by the office man-
ager Maroun Moussallem [for] up to $1,000. Contracts in ex-
cess of $1,000 but less than $10,000 [were] cosigned by the
office manager and the division manager. Contracts in excess
of $10,000 [were] signed in the corporate office. There have
been, from time to time, deviations from this policy.

The General Counsel also placed in evidence a copy of the
Respondent’s position description for regional managers such
as Jefferis; the position description first states: “Reports to:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 232
Operating Company President, Chief Operating Officer (COO)
or Division Manager.” Next is: “Position Supervises: Office
Managers, Technical Consultants and designated staff.” Under
“Essential Functions and Duties,” there is a lengthy list that
includes: “Provides technical expertise and back-up manage-
ment assistance to offices when requested or as needs develop.
. . . Assists the offices in the administration of annual compen-
sation, base salaries and bonuses, for their employee groups and
evaluates recommendations to the President for needed adjust-
ments. . . . Provides direction and decisions to Office Managers
and assists each in gaining support from corporate staff or other
operating units.”
The Respondent’s position description for office managers
such as Moussallem first states: “Reports to: [Regional] Man-
ager10 or another office manager.” Next is “Position Supervises:
Key Technical and Administrative Staff.” Then, under “Gen-
eral Responsibilities,” the position description states:

Under the general direction of the Division11 or [other?] Of-
fice Manager, plans, organizes, directs and coordinates all the
activities (administrative and technical) of a small to medium-
sized office. This includes general profit/loss management
practices, employee supervision, project management, client
relations[,] client development, and new business develop-
ment. Responsible for general leasehold improvement, pro-
ject and office equipment, and proper utilization of all person-
nel under his/her authority to ensure that Company mission is
accomplished to the full satisfaction of clients.

Listed under “Essential Functions and Duties” of the office
manager are 11 areas of management including “contract ad-
ministration, human resources management, regulatory compli-
ance, [and] health and safety practices.”
b. Evidence presented by the Respondent
On direct examination, Moussallem testified that, as office
manager:

My duties are to make sure I’m responsible for the profit
[and] loss of the office. To make sure the office operation
runs smoothly as far as hiring people to cover jobs. I’m re-
sponsible for marketing our services, client relations, proposal
preparation, typical office management.

Moussallem testified that he arrived at work at 6 a.m. on
February 19, and when he got to the lobby of the Naperville
facility:

I saw the drillers standing all together and there were
two gentlemen that I didn’t recognize standing with the
drillers.
So I approached them and I said, “What’s going on;
can I help you?” And the two gentlemen approached
me . . . and they said, “Your drillers have signed cards.”
And they showed me some copies of cards and they would

10 The document here states “Division Manager.” This is plainly an
error and, apparently, “regional manager” (such as Jefferis) was in-
tended, as indicated by the position description of a regional manager
quoted above and testimony at trial.
11 Id.
like the Local 150 Union to represent them and [asked,]
“Can we talk?” . . .

In his office, Simrayh stated that “the majority of your drillers
have signed union cards asking for representation,” and asked
Moussallem to sign the voluntary recognition agreement.
Moussallem testified, however, “But I didn’t say anything.”
Moussallem continued:

And then they were saying something about the people
had some gripes they wanted to discuss . . . specifically
about coveralls that the Company provided coveralls; they
did not think they were good. They were not winterized
coveralls. They didn’t have any insulation or lining.
[The union representatives then brought up the] issue
about the boot allowance that, you know, the Company
only pays 50 percent. And [they brought up] the issue
about HAZMAT training. I don’t think we went into
depth into that subject. . . .
[Simrayh then said] that people would like a complete
allowance on the boots, not just 50 percent company paid
allowance. And when he mentioned these I, I pretty much
said, “They don’t seem to be big deals. This is what the
Company handbook says.” I mean, that’s the allowance
that they had.
And then I recall saying that our competition in this
area [does] not have any union drillers, all of the engineer-
ing firms. And [I said,] “If we go union I think we’ll be
priced out of the market and they will be doing most of the
work.”

Moussallem testified that his conversation with Simrayh and
Edwards lasted, “20 to 30 minutes.” (Moussallem testified that
he did not notice Carpenter’s card among the copies that the
Union presented February 19, although he did admit that he
“flipped through the pages” that the Union had proffered.)
Moussallem further testified that he then telephoned Jefferis
who was on the way to work; he only told Jefferis that union
representatives had been there, and Jefferis only said, “Really?”
Moussallem acknowledged, however, that, after Simrayh and
Edwards left and before Jefferis arrived, Bucher asked him who
the visitors had been; and Moussallem admitted that he then
told Bucher that they were union representatives and that they
were seeking recognition of the drillers and helpers.
After Simrayh and Edwards came back to the facility and
went into Jefferis’ office, Moussallem went to join them. Ac-
cording to Moussallem:

I believe at that time it was Stan [Simrayh who] was present-
ing the, the copies of the cards to Mr. Jefferis. . . . He [Sim-
rayh] was saying they would like to represent our guys and
Terracon would recognize them. They have a few gripes that
they want to discuss with Mr. Jefferis. And they went into
the . . . [topics of] boots, the boot allowance, the coveralls
quality and the HAZMAT training.

The remainder of Moussallem’s testimony about the union
representatives’ meeting with Jefferis is essentially consistent
with Jefferis’ testimony, infra. Moussallem estimated the
length of that meeting at “about 30 to 40 minutes.”

TERRACON, INC. 233
Jefferis, when called by the Respondent, testified that drill-
ing crews consist of “[a] driller and a drill helper.” But then
Jefferis testified that, although there is a written “position de-
scription” for a driller, there is no such document for a drill
helper because “[t]he drill helper could be a driller, it could be a
technician, it could be a geologist, it could be an engineer, it
could be a professional engineer.”
Jefferis testified that members of the Respondent’s board of
directors, such as himself, “don’t deal with the operating poli-
cies; we deal with mostly corporate policies that are not opera-
tional.” The number of board members varies between 10 and
12; one board member gets one vote on matters that are taken
up by the board. Jefferis denied the ability, by himself, to bind
the board of directors to anything. As Illinois regional man-
ager, Jefferis could hire employees up to $45,000 annual salary
and authorize purchases up to $10,000. Hirings and transac-
tions greater than those limits went to the Respondent’s North-
east division manager, Whited. Jefferis could hire no employ-
ees in excess of the numbers set by Whited. Jefferis testified
that the Respondent recognizes no unions and that he had no
authority to recognize a union on his own.
Jefferis identified documentation that the Respondent’s boot
policy (50 percent, once per year, with exceptions as set by the
office manager) is set by a corporate policy manual. Jefferis
further testified that the Respondent establishes the allowance
for coveralls (two pairs, one for summer and one for winter).
Jefferis agreed that some, but not all, employees receive a 40-
hour HAZMAT training course; Jefferis did not testify that the
Respondent’s upper management determines who receives the
training (although, as will be seen, Jefferis did testify that he
told Simrayh and Edwards that “Corporate” determines who
receives the training as well as what the boot and coveralls
allowances are).
Jefferis testified that, when he was on the way to work on
February 19, Moussallem telephoned him “and said that the
Union had been there, and they were looking for me, and they
had papers.” Jefferis testified that when he arrived:

[Moussallem] said the documents that Stan had given
him were a letter to me, and then a copy of signature
cards, and then a voluntary request form.12 . . .
I asked him what they said in addition to that, he said
that they talked about boots, coveralls, and forty-hour
training. I kind of cut him short because I didn’t have a lot
of time. But, what I did tell him was, after he told me that
the Union was coming back, I said, I want you in the
meeting.

Jefferis testified that, when Simrayh and Edwards arrived,
Simrayh “said he was here as a courtesy call.” After Jefferis,
Moussallem, Bucher, Simrayh and Edwards had gathered in
Jefferis’ office, further according to Jefferis:

[Simrayh] gave me a letter addressed to me, from him,
He gave me copies of signature cards, and he gave me a
voluntary request form. . . . He said he had the majority of

12 Jefferis consistently referred to the form entitled “Voluntary Rec-
ognition Agreement” as a “voluntary request form.”
our drillers and helpers, and they would like . . . to repre-
sent them. . . .
I think he took them out of a manilla envelope and
handed them to me. . . . I didn’t say anything, I picked up
the documents and looked at them for ten or 15 sec-
onds. . . .
I think he may have said, “You can see it’s a majority
of your people.” . . .
I didn’t say anything. I did notice that Ryan Carpen-
ter’s signature was on there. . . . I didn’t say anything
about it. . . .
I think Stan went into, the guys had some grievances,
and started talking about the grievances. . . . I think first
we talked about coveralls. . . .
Stan said the guys said the coveralls were cotton and
they were very light, and also said that they would like
canvas type coveralls such as Carhart’s [brand]. . . .
I said it seemed minor. . . .
Next, he went into boots, and the guys, he said the
guys would like to have full reimbursement for boots.
And, again, I said that that was minor. . . .
And then Stan said that all the guys would like to have
HAZMAT training.
I told him that we do have HAZMAT training, but
only for part of our guys.
In the end, I said, “All these things seemed to be pea-
nuts, but they are corporate policies.” I don’t think Stan
said anything after I said that. . . .
Then we went into kind of a different mode, and I
asked him, “What can the Union do for us?”
And Stan said, “We have a training facility in Plain-
field, Illinois, where we train all of our people.”
I asked about drill rigs; he said that they had one or
two truck drill rigs. I asked about altering drill rigs; he
said they do not have altering drill rigs, but he could look
into it.
Stan offered that he had a client list that he could give
us. Some place in the conversation Stan said that the guys
would like to do more maintenance in the morning. I had
indicated to him that we had spent a lot of money on main-
tenance, both in-house and out-house. . . .
Steve Bucher did bring up the professional engi-
neer. . . . Stan did say that he would look into that. . . .
After that part of the conversation I told Stan that we
drilled in less than 50 percent of our offices, where we
didn’t drill we subcontracted. And then Ken said, “Is that
a threat?”
I said, “That’s a fact.” . . .
People got quiet and then it was almost the end of it.
And Stan said he would like to keep talking. And I said
that we’ll have Corporate get back to you; we don’t have
the authority to talk for Corporate. . . .
I think we shook hands, and then everybody left.

Jefferis testified that the meeting with Simrayh and Edwards
lasted “about 30 minutes.” Jefferis testified that “immediately”
after Simrayh and Edwards left his office, he contacted Larry
Davidson, the Respondent’s CEO, and: “I told him that the
Union had been here and they were seeking recognition.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 234
Davidson told Jefferis to hire a labor lawyer and, after checking
around, hired the counsel for the Respondent who appeared at
trial.
On cross-examination, Jefferis agreed that he had retained
the documents that Simrayh and Edwards had given him on
February 19.
Bucher, manager of the Respondent’s geotechnical engineer-
ing group, testified that on the morning of February 19, he ar-
rived at 6:05 a.m. He went to the conference room where a
training session had been scheduled to start at 6. Matt Catlin,
an environmental engineer, had already started the training
session, and the employees “were all wearing Local 150 hats.”
Bucher noticed that Moussallem was not present as he should
have been. Bucher went to Moussallem’s office and saw that
he was talking to Simrayh and Edwards (whose identities
Bucher learned later in the morning). Bucher went back to the
training session. About 7:50, Jefferis asked him to come to his
office with union representatives for a meeting that was to be-
gin at 8 a.m. Further according to Bucher, at that meeting:

Kevin said, you know, “What can we do for you?”
And the union reps said, “Well, we represent your
drillers and here’s the copies of their authorization cards.”
Kevin had it on his desk. I know I glanced at it from over
his shoulder. There was some discussion of grievances or
beefs, I guess that our employees had related to coveralls,
work boots. . . .

The remainder of Bucher’s testimony about the meeting was
essentially consistent with Jefferis’ testimony.
c. Resolutions
(1) The appropriate unit and its size; the Union’s
majority status
The Respondent states on brief:

On February 19, 2001, they [Simrayh and Edwards]
presented the Company with authorization cards signed by
nine alleged drillers and drill helpers. The Union did not
demonstrate majority status through these cards, however,
because the actual size of the bargaining unit greatly ex-
ceeded the nine individuals who signed the authorization
cards. Specifically, the Company typically assigns two
individuals to a drill group: a driller and drill helper.
However, the Company does not have a position descrip-
tion for “drill helper.” Rather, any number of positions can
serve as “drill helpers,” including another driller, a techni-
cian, a geologist, or a professional engineer.
At the hearing, Respondent was denied the opportunity
to produce evidence establishing the large number of indi-
viduals who had served as “drill helpers” on Naperville
drill rigs in 2000 and 2001. (Resp. Rej. Ex. 24.) Had Re-
spondent been afforded this opportunity, the Union’s fail-
ure to establish majority status would be clear. [Transcript
citations omitted.]

The Respondent’s contention that the Union did not demand
recognition in an appropriate unit because the Respondent has
no “position description” for a driller’s helper is, at best, spe-
cious. Of course, the Respondent’s library of position descrip-
tions is hardly controlling; an employer may have any number
of positions for which it has no written description. Moreover,
the Respondent’s witnesses did not challenge the testimonies of
Salazar, Reyez, and Rodriguez that they were, at least for a time,
classified as drillers’ helpers. Also, the supervisors freely used
the term “helper” themselves in testifying about specific indi-
viduals. And in evidence are various memoranda that Jefferis
and Moussallem that are addressed to “Drillers and Helpers,” or
“Drillers, Drill Helpers and Project Engineers” and such. Addi-
tionally, the fact that some other employees (engineers or others)
may sometimes help a driller13 does not make those employees
helpers; they are still engineers or otherwise. Finally, on brief
the Respondent repeatedly refers to certain employees as “drill
helpers” or “driller helpers,” including the topic line:
“TERRACON DID NOT VIOLATE SECTIONS 8(A)(1) AND 8(A)(5) WHEN
IT FIXED DRILLER AND DRILL HELPER START TIMES.” At another
point in its brief, the Respondent states:

Beginning in mid-January 2001, the drillers and drill helpers
from Terracon’s Naperville office began unionization efforts.
Various Naperville drillers and drill helpers met with Union
representatives at the Union hall on January 13, 2001 and
February 10 and 17, 2001, to sign authorization cards and de-
velop a plan for seeking voluntary recognition.

The Respondent assuredly did not wish to indicate that engi-
neers or others who sometimes helped drillers participated in
the organizational attempt. That is, there were clearly employ-
ees who were identified as helpers; they worked constantly with
drillers under the same immediate supervision; and they en-
joyed the same terms and conditions of employment as the
drillers. The helpers therefore exist as a classification and they
have a strong community of interest with the drillers. The drill-
ing helpers are accordingly to be included in the same bargain-
ing unit with the drillers under Section 9(b), and no other em-
ployees were shown to have a community of interest with the
drillers and helpers.14 I therefore find and conclude that the
Union’s requested bargaining unit of the Respondent’s Naper-
ville drillers and drilling helpers is a unit appropriate for bar-
gaining under the Act.
The Respondent’s argument that the size of the unit was not
established is equally unavailing. I rejected Respondent’s Ex-
hibit 24 on the grounds of relevance. The exhibit is entitled
“List of employees Who Worked on Naperville Rigs in 2000
and 2001.” The exhibit is a document that lists the names of 71
employees (including Carpenter) who worked on the rigs that
were usually garaged at Naperville during the (entire) years of
2000 and 2001. The list is divided into groups indicating where
the employees are usually assigned: Naperville (36 employees),
Rockford (9), Bloomington (9), Cedar Rapids, Iowa (3), Mo-
kena (7), and Lake Zurich (6). The document was not identi-
fied as a summary that is admissible under Federal Rules of
Evidence 1006 because it was offered only through Moussal-
lem who testified that, to compose it, he relied, in part, on oral

13 The Respondent makes no suggestion of how often this may oc-
cur.
14 There was no evidence of interchange between the Naperville
drillers and helpers and those of the four other Illinois facilities under
Jefferis’ ultimate supervision.

TERRACON, INC. 235
reports of Bucher and managers at other facilities of the Re-
spondent; Moussallem did not testify that he independently
reviewed all of the business records that underlay the summary,
and he therefore could not attest to its accuracy. Moreover,
assuming that the exhibit accurately reflected what its title indi-
cates, the fact that an employee who is regularly assigned to the
Respondent’s Rockford (or Bloomington, or Cedar Rapids, or
Mokena, or Lake Zurich) facility works at least once during a
2-year period on a rig that is usually garaged at Naperville does
not, of itself, create a community of interest between the Rock-
ford employee and the Naperville employees sufficient to re-
quire him to be included in the same unit with the Naperville
employees. Additionally, even as a record of who was em-
ployed at the Naperville facility at relevant times, the exhibit is
incompetent. No dates are indicated for the employment of the
36 indicated employees. For all the exhibit shows, those 36
employees (including the 9 from whom the Union secured au-
thorization cards) could have worked for only minimal periods
of time on the Naperville rigs during that 2-year period, or they
could have quit or been discharged before the Union’s demand
for recognition, or they may not have been hired until thereaf-
ter. Therefore, the exhibit was so vague as to be meaningless,
and it was properly rejected, as well, under Federal Rules of
Evidence 403.
I do, however, agree with the Respondent that Carpenter
should not be included in the unit. Carpenter worked for the
Respondent during 2000, but he was discharged when he lost
his driver’s license that year. Carpenter later applied to be
rehired, but Moussallem told him he would not be rehired until
he secured a valid commercial driver’s license. Carpenter
never presented such a license to Moussallem, and he was not
re-hired. The Union representatives (or some of the Respon-
dent’s employees who were employed in February 2001) ap-
parently asked Carpenter to come to the organizational meet-
ings where he signed a union authorization card, and Carpenter
also came with the group that Simrayh and Edwards brought
with them on February 19 to demand recognition. And Carpen-
ter even went into the training meeting that the Respondent had
scheduled for that date, and he was allowed to sit through that
meeting. Nevertheless, Carpenter was never put back on the
payroll, and he did not work for the Respondent during 2001.
Accordingly, Carpenter’s participation in the organizational
attempt, and his union authorization card, are not to be consid-
ered in determining the Union’s majority status.
The Respondent therefore employed eight drillers and help-
ers when the Union made its initial request to bargain on Feb-
ruary 19. By that date, all eight of those employees had signed
single-purpose union authorization cards designating the Union
as their collective-bargaining representative. Additionally,
when Simrayh and Edwards went to the Respondent’s facility
to demand recognition, all eight of these employees accompa-
nied them. And, in doing so, the employees wore union caps
with the Union’s logo prominently displayed on the crowns,
further demonstrating their support for the Union as their col-
lective-bargaining representative. I therefore find and conclude
that on February 19 the Union represented a majority of the
Respondent’s drillers and helpers in a unit that is appropriate
for bargaining under Section 9(b).15
(2) Agency of Jefferis and Moussallem
The General Counsel and the Charging Party contend that
Jefferis and Moussallem had both actual and apparent authori-
ties, as the Respondent’s agents, to bind it to a commitment of
recognition. The Respondent contends that actions such as a
grant of recognition must be authorized by its board of direc-
tors. The Respondent, however, cites no corporate document
limiting managers such as Jefferis or Moussallem from making
such commitments. Moreover, Section 2(13) of the Act pro-
vides that:

In determining whether any person is acting as an “agent” of
another person so as to make such other person responsible
for his acts, the question of whether the specific acts per-
formed were actually authorized or subsequently ratified shall
not be controlling.

In Richmond Toyota, 287 NLRB 130 (1987), the Board found
that Loretta Pao, the employer’s vice president and general
manager had “at the very least, apparent authority to recognize
the Union as the exclusive bargaining agent of the respondent’s
employees.” The Board entered this finding not on Pao’s titles
but on the fact that Pao was “in charge of the day-to-day opera-
tions and is the highest ranking official at its facility.” In Op-
portunity Homes, Inc., 315 NLRB 1210, 1217 (1994), enfd. 101
F.3d 1515 (6th Cir. 1996), the Board adopted the administrative
law judge’s citations of Richmond Toyota and Nemacolin
Country Club, 291 NLRB 456 (1988), to emphasize:

Otherwise, it is well established that an employer is bound by
the acts of those of its officials who are in charge of the day-
to-day operations at its facility and who possess actual author-
ity, or at the very least, apparent authority, with respect to la-
bor relations matters.

As the position description of the Respondent’s office manag-
ers states, Moussallem was in charge of the Respondent’s Na-
perville day-to-day operations, including “human resources
management, regulatory compliance, [and] health and safety
practices.” Jefferis was Moussallem’s supervisor and had at
least this much authority. Also, Jefferis had the additional re-
sponsibility of “evaluat[ing] recommendations to the President
for needed adjustments.” (Recommendations, of course, could
be the result of collective bargaining.) Jefferis worked almost
constantly at the Naperville facility, and he was necessarily as
much in charge of the workforce as Moussallem. Moreover,
Jefferis had the authority to hire employees at up to $45,000 per
year in salary and had the authority to commit the Respondent
to purchases as high as $10,000. Therefore, the clear language
of Richmond Toyota and Opportunity Homes requires the find-
ing that Jefferis and Moussallem held “at least” apparent au-

15 In his letter of February 20, Simrayh represented that Jefferis ex-
amined the union authorization cards and saw that the Union “unani-
mously” represented the bargaining unit employees; in Jefferis’ care-
fully drafted response of February 21, however, there is no denial that
the Union represented a majority of the bargaining unit employees,
“unanimously” or otherwise.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 236
thority to bind the Respondent. Additionally, it is to be noted
that the administrative law judge in Opportunity Homes re-
jected the employer’s contention that its board of directors must
expressly authorize actions such as a grant of recognition. In so
doing, the judge noted that the Respondent’s board of directors
had known of its alleged agent’s grant of recognition but had
done nothing to repudiate it. In this case Jefferis, himself, was
not only a member of the Respondent’s board of directors but
he promptly notified the Respondent’s CEO Davidson that the
Union was claiming that it represented a majority of the Re-
spondent’s Naperville employees and demanding recognition.
Nevertheless, through time of trial, neither Davidson nor any
other member of the Respondent’s board of directors, nor any-
one purporting acting on that board’s behalf, did the slightest
thing to disavow the actions that Jefferis (and Moussallem) had
taken in regard to the Union’s demand for recognition.16
I therefore find and conclude that Jefferis and Moussallem
possessed apparent and actual authorities to grant recognition to
the Union as the collective-bargaining representative of the
Respondent’s unit of Naperville drillers and helpers.17
(3) Whether recognition was granted
(a) Credibility resolutions
It is undisputed that on February 19: (1) Simrayh and Ed-
wards came to the Respondent’s facility with all of the unit
employees (who were wearing caps that bore prominent union
logos); (2) Simrayh and Edwards presented Jefferis and Mous-
sallem with a written demand for recognition; (3) Simrayh and
Edwards also told Jefferis and Moussallem that they were there
to request recognition (preferably in the written form of the
voluntary recognition agreement); (4) Simrayh and Edwards
presented union authorization cards that had been signed by all
of the unit employees; and (5) Jefferis and Moussallem exam-
ined each card; then (6) certain terms and conditions of em-
ployment of the unit employees were discussed among Simrayh
and Edwards and Jefferis, Moussallem, and Bucher. According
to Jefferis, after discussions of those topics, he told Simrayh
and Edwards that “[a]ll these things seemed to be peanuts, but
they are Corporate policies.” Jefferis further testified that he
ended his meeting with Simrayh and Edwards by stating:
“[W]e’ll have Corporate get back to you; we don’t have the
authority to talk for Corporate.” Simrayh and Edwards testified
that Jefferis did not refer to “Corporate policies” except in re-

16 The Respondent’s brief reflects a massive effort of research (even
to the extent of including citations of many unapproved administrative
law judges’ decisions). Nevertheless, in its argument on the agency
issue the Respondent acknowledges neither Richmond Toyota nor Op-
portunity Homes. In fact, the only Board case on point that the Re-
spondent does cite is Kidd Electric, 313 NLRB 1178 (1994), which
found the agency status to exist under similar circumstances.
17 A different result was reached in Wometco-Lathrop Co., 225
NLRB 686 (1976), where the day-to-day management was of a much
smaller group of employees. In that case, the manager who granted
recognition supervised only 18 employees. Similarly, in John Oster
Service Co., 173 NLRB 673 (1968), the individual who originally
granted recognition supervised only five employees. In this case, Jef-
feris and Moussallem supervised 43 employees at the Naperville facil-
ity (albeit only eight in the requested bargaining unit).
gard to the amount of the employees’ boot allowance and that
he ended the meeting by stating that he would get back to the
Union.
It was no less than five times in his letter of February 21 to
Simrayh that Jefferis referred to the February 19 visit by Sim-
rayh and Edwards as a “courtesy call.” Simrayh credibly denied
that he used the term “courtesy call” when he introduced him-
self to Jefferis, but even if Simrayh had used that term Jefferis
knew that the Union had not been to the Respondent’s Naper-
ville facility just to extend a courtesy to him or to the Respon-
dent (just as one knows that an unwelcome telephone solicitor
is not actually extending a courtesy to you even though he
opens his spiel by saying that he is calling as a “courtesy”).
According to the testimonies of both Jefferis and Moussallem,
Jefferis knew that Simrayh and Edwards had been there on
February 19, not as a courtesy but because they wanted some-
thing significant, recognition, and bargaining. That is, Jefferis
tailored his letter to belittle the significance of the February 19
visit, and I believe that Jefferis and Moussallem (and Bucher)
tailored their disputed testimonies with the same objective.
And, at every conflict, I credit Simrayh and Edwards over the
Respondent’s witnesses.
I do not believe that Jefferis ended the February 19 meeting
by saying: “We’ll have Corporate get back to you; we don’t
have the authority to talk for Corporate.” I believe that this
testimony, like much of Jefferis’ testimony, was only what he
(and Moussallem and Bucher, who supported their superior)
wished that he had said. Jefferis would not have gone into the
terms and conditions of employment of the unit employees as
far as he did, and he certainly would not have asked what the
Union could do “for us,” as he also did, if on February 19 he
had any thought of turning the issue of recognition over to
higher corporate authorities. I have no difficulty in finding
that, early on February 19, Moussallem told Jefferis (either by
telephone before Jefferis arrived at the facility or in person after
Jefferis arrived) that Simrayh and Edwards had been there with
eight union cap-wearing employees and Carpenter, that they
had demanded recognition and that they had displayed the un-
ion authorization cards to him. Jefferis, however, did not then
call Corporate and ask for advice on what to do. And Jefferis,
in fact, did bring Simrayh and Edwards into his office to dis-
cuss their mission. I therefore believe that Jefferis thought he
could, and would, handle the issue himself, and I believe that
he sought to do so. I therefore credit the testimonies of Sim-
rayh and Edwards that Jefferis used the term “Corporate” only
in reference to the boot-reimbursement policy and that Jefferis
closed the second February 19 meeting by saying that he (not
“Corporate”) would “be in touch.” I further credit the testimo-
nies of Simrayh and Edwards that Jefferis did not say anything
to the effect that he could not change policies that had thereto-
fore been set by “Corporate” without approval of the Respon-
dent’s board of directors.
In summary, I find that on February 19:
Simrayh and Edwards appeared at the Respondent’s Naper-
ville facility about 6 a.m. with nine individuals, eight of whom
were then employed by the Respondent (Carpenter being the
exception). Those eight employees were the Respondent’s
drillers and helpers, and they constituted all of the employees in

TERRACON, INC. 237
a unit that is appropriate for bargaining. Each of the drillers
and helpers was wearing a union logo cap that demonstrated
that he agreed with the express purpose of Simrayh and Ed-
wards in going to the Naperville facility, which was to secure
recognition as the collective-bargaining representative of the
drillers and helpers. Simrayh and Edwards first met with
Moussallem who, as well as seeing all unit employees wearing
the union caps, examined the union authorization cards signed
by all of the unit employees. Moussallem examined the volun-
tary recognition agreement form; the form did not specify the
unit being requested, but when Moussallem asked who the
Union was seeking to represent, Simrayh told him that it was a
unit of Naperville drillers and helpers. Moussallem conceded
that each of the Respondent’s drillers and helpers had signed a
union authorization card.18 Moussallem, however, did not ex-
pressly concede that, by the fact of the Union’s card majority
(or anything else), the Union had proved its majority status.
Moussallem further did not say that he would, or that he did,
recognize the Union, and he did not sign the voluntary recogni-
tion agreement form. Moussallem did, however, discuss certain
terms and conditions of employment of the employees with
Simrayh and Edwards. That discussion included: Moussallem
stated that the Respondent could not pay the employees even
five cents more per hour; Moussallem asked what the employ-
ees wanted that prompted them to seek union recognition; when
told that the employees wanted better winter coveralls, Mous-
sallem said that would not be a problem; when told that the
employees wanted a greater reimbursement for boots because
they were working in adverse conditions and were going
through several pairs a year, Moussallem said that the Respon-
dent would look at a better boot allowance, but he did not think
that would be a problem either; when asked if the Respondent
would give the employees more time for maintenance of the
equipment, Moussallem agreed that that would be a good idea
because the Respondent was concerned about safety too; when
asked if all employees could have HAZMAT training, Moussal-
lem replied that that would be a good way to go. The meeting
ended with Moussallem’s telling Simrayh and Edwards that
they should return later to talk to Jefferis later in the morning.
When Jefferis arrived at the Respondent’s Naperville facility
on February 19, Moussallem informed him of what had tran-
spired with the unit employees and Simrayh and Edwards.
When Simrayh and Edwards returned to the facility, Simrayh
did not say that he and Edwards were there as a “courtesy.”
Simrayh and Edwards presented Jefferis with the union au-
thorization cards, a letter demanding recognition and the volun-
tary recognition agreement form, all of which Jefferis exam-
ined. Jefferis conceded that each of the Respondent’s drillers
and helpers had signed a union authorization card. Jefferis,
however, did not expressly concede that, by the fact of the Un-
ion’s card majority (or anything else), the Union had proved its
majority status. Jefferis did not say that he would, or that he

18 One of the presented cards was also signed by Carpenter who was
not then employed, but presence of the surplus card dilutes the signifi-
cance of neither Simrayh’s representation that all of the Respondent’s
drillers and helpers had signed union authorization cards nor Moussal-
lem’s acknowledgment of that fact.
did, recognize the Union, and he did not sign the voluntary
recognition agreement form. Jefferis did, however, discuss
certain terms and conditions of employment of the unit em-
ployees with Simrayh and Edwards. That discussion included:
Simrayh told Jefferis that the unit employees had “grievances”;
they wanted better winter coveralls, an increase in their boot
allowance, more maintenance time, and HAZMAT training for
all employees. Jefferis replied that these items were “peanuts,”
but, except for the boot allowance, he did not state that they
were controlled by previously issued corporate policies or that
he could not bargain about those issues. Jefferis agreed that all
employees would receive HAZMAT training, and he asked,
and was told, what the Union could do to train the employees.
Jefferis proposed that the Union hire a professional engineer to
assist in training, and the Union agreed to look into that possi-
bility. Jefferis asked what kind of wage-rate changes the Union
was seeking, but Simrayh did not give Jefferis a specific pro-
posal. Jefferis proposed that some of the employees would be
considered apprentices in any wage progression plan, and Sim-
rayh agreed. Jefferis asked if the Union could refer qualified
employees, and Simrayh assured him that it could. Jefferis
asked what the Union could do about employee punctuality and
morale, and Simrayh proposed a progressive disciplinary sys-
tem and attendance policy that awarded good attendance. Jef-
feris told Simrayh and Edwards what his employee insurance
costs were, and Simrayh stated that the Union’s proposal would
have about the same cost. Jefferis asked for, and ultimately
received, a copy of the Union’s health and welfare program.
Jefferis concluded the meeting by stating that he would be “in
touch” with Simrayh and Edwards. Jefferis did not stated that
“Corporate” would be in touch or that he had no authority to
engage in further discussions with the Union.
(b) Applicable law and conclusions
On August 4 and 7, 1978, the Board issued its decisions in
Brown & Connolly, Inc., 237 NLRB 271 (1978), and Jerr-Dan
Corp., 237 NLRB 302 (1978), respectively. In Brown & Con-
nolly, the Board found a violation of Section 8(a)(5) on the
factual findings that: (1) Brown, the employer’s president, re-
ceived a clear demonstration that a majority of the unit employ-
ees had designated the union as their collective-bargaining
representative when the employees accompanied two union
representatives as they presented Brown with a demand for
recognition, and the employees were wearing union buttons as
they did so; (2) Brown expressly acknowledged that the union
did represent a majority; (3) Brown stated that he did recognize
the union as the employees’ collective-bargaining representa-
tive; and (4) Brown further agreed to meet for negotiations
during the following week. Brown did meet with the union a
week later, but only to say that he refused to bargain with the
union then and thereafter. In finding a violation on these find-
ings, the Board adopted the statement of the law by Administra-
tive Law Judge David S. Davidson that:

Once voluntary recognition has been granted to a ma-
jority union, the Union becomes exclusive collective-
bargaining representative of the employees, and with-
drawal or reneging from the commitment to recognize be-
fore a reasonable time for bargaining has elapsed violates

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 238
the employer’s bargaining obligation.11 Evidence that an
employer has commenced bargaining or has taken other
affirmative action consistent with its recognition of the
Union aids in resolving the evidentiary question as to
whether recognition was granted. However, once the fact
of recognition is established, such additional evidence is
not required, for the bargaining obligation arises on volun-
tary recognition and continues until there has been a rea-
sonable opportunity for bargaining to succeed.12
11 Toltec Metals, Inc., 201 NLRB 952 (1973), enfd. 490 F.2d
1122 (C.A. 3, 1974); Moisi & Son Trucking, Inc., 197 NLRB 198
(1972); Broad Street Hospital and Medical Center, 182 NLRB
302 (1970), enfd. 452 F.2d 302 (C.A. 3, 1971); Universal Gear
Service Corporation, 157 NLRB 1169 (1966), enfd. 394 F.2d 396
(C.A. 6, 1968).
12 Gogin Trucking, 229 NLRB 529 (1977). See Keller Plastics
Eastern, Inc., 157 NLRB 583 (1966); Whitemarsh Nursing Cen-
ter, 209 NLRB 873 (1974); Wavecrest Home for Adults, 217
NLRB 227 (1975); Rockwell International Corporation, 220
NLRB 1262 (1975).

The Board therefore adopted Judge Davidson’s holding (237
NLRB at 275) that: “When Brown refused to bargain with the
Union on September 21, he withdrew the recognition he had
granted on September 14 and reneged on his commitment to
bargain. No time for bargaining had elapsed, and Respondent’s
refusal to bargain on and after September 21 therefore violated
Section 8(a)(5) and (1) of the Act.”
In the accompanying case of Jerr-Dan, the Board reversed
another administrative law judge’s reasoning that, although the
employer’s agent had expressly admitted that the union pos-
sessed a majority status by virtue of authorization cards that
had been presented to him and had agreed to recognize the
union and bargain with it, that employer did not violate Section
8(a)(5) when it thereafter withdrew recognition “be-
fore . . . substantial action was taken in confirmation of, or in
reliance on, the recognition . . . .” In disavowing the judge’s
reasoning, the Board stated:

The key is not, as the Administrative Law Judge would have
it, further evidence of recognition. Rather, the key is the
original commitment of the employer to bargain on some de-
monstrable showing of majority. That showing was made
here by the Union and that commitment was made by Re-
spondent when it agreed to begin bargaining. Once that
commitment was made, Respondent could not unilaterally
withdraw its recognition, and to do so was a violation of the
Act.

That is, the Board reaffirmed the conclusion of Brown & Con-
nolly that bargaining, if shown, fortifies a conclusion that the
employer has granted recognition, but it is not necessary to
prove a violation of Section 8(a)(5) if recognition is thereafter
withdrawn.
On brief, the Respondent argues that both Brown & Con-
nolly, supra, and Jerr-Dan, supra, have been implicitly over-
ruled and that the law now is that a commitment to bargain
means nothing unless the employer has, as well, expressly ac-
knowledged that a union represents a majority of the unit em-
ployees. Noting only Jerr-Dan, Brown & Connolly, and a few
unpublished administrative law judges’ decisions, the Respon-
dent states (p. 61):

In fact, to the extent the above-cited cases find union recogni-
tion if the employer makes a statement indicating a majority
of the employees have signed authorization cards and/or de-
sire a union, the cases pre-date recent Board law which holds
otherwise. Specifically, as the Board recently stated in Jeffer-
son Smurfit, [Corp.] an employer must “expressly consent to
permit determination of majority status by a means other than
a Board election.” 331 NLRB [809] (emphasis added [in the
Respondent’s brief]).

The relevant facts of Jefferson Smurfit Corp., 331 NLRB 809
(2000), will be discussed infra. It suffices to say at this point,
however, that the complete sentence from which the Respon-
dent extracted this alleged quote is no more than that:

Here, the Respondent did not expressly consent to permit de-
termination of majority status by a means other than a Board
election.

That is, in Jefferson Smurfit the Board only found that the em-
ployer that was then before it did not “expressly” waive its right
to a Board election. But the Board did not, as the Respondent’s
brief argues, rule that an express waiver “must” be found before
an employer can be held to violate Section 8(a)(5) by refusing
to recognize and bargain with a union that has demonstrated its
majority status. Of course, if the Respondent’s half-quote of
Jefferson Smurfit were the law, an employer who only refrains
from expressly acknowledging a union’s majority status could
avoid a bargaining order, no matter how strong its commitment
to meet and bargain and no matter how much bargaining it
actually engaged in, and Brown & Connolly and Jerr-Dan as-
suredly would be overruled. Presumably, however, if the
Board had meant to overrule such longstanding authorities it
would not have done so merely by implication.
As well as misquoting Jefferson Smurfit to argue that express
acknowledgment of majority status is required in circumstances
such as these,19 the Respondent ignores authority that is directly
to the contrary. In Richmond Toyota, 287 NLRB 130 (1987),
union representatives presented to one employer’s agent,
Loretta Pao, the union’s card majority. On the completion of
Pao’s examination of the authorization cards, the union’s repre-
sentatives asked for a meeting for the purposes of collective
bargaining. Pao answered that another agent of the employer,
Pao’s husband Gordon, would meet with the union at some
time during the following week. Gordon, however, refused to
meet with the union, and a Section 8(a)(5) complaint issued. In
reversing the administrative law judge who had dismissed the
complaint, the Board, at 287 NLRB at 131, found that Loretta
Pao’s conduct constituted a “commitment to negotiate,” and the
Board further observed:

19 In this case, when the Union made its demand for recognition, it
also made the required demonstration of majority status by having the
accompaniment of all of the unit employees, each of whom was wear-
ing prounion insignia, as well as by having its card majority examined
by both Jefferis and Moussallem, see Brown & Connolly, supra.

TERRACON, INC. 239
The judge interprets [Loretta] Pao’s statements, in part, by
noting that she never acknowledged the Union’s majority
status. As indicated above, however, Pao consented to future
negotiations with the Union after verifying the authenticity of
the Union’s authorization cards. Because Pao only ques-
tioned the Union’s majority status before examining and veri-
fying the authorization cards, and because she consented to
future negotiations after authenticating the cards, we find that
she acknowledged the Union’s majority status.

That is, under Richmond Toyota, it is more than clear that an
express acknowledgment of majority status is not required if an
employer agrees to meet for collective-bargaining purposes
after being shown evidence of that majority status.
Richmond Toyota further requires a finding here that the Re-
spondent, by Moussallem and Jefferis, made a “commitment to
negotiate” with the Union after examining the Union’s authori-
zation card majority. When the union representative in Rich-
mond Toyota asked for bargaining sessions, Loretta Pao did not
refuse; instead, she replied that the union representatives should
come back later and meet with another of the employer’s agents
(her husband, Gordon). In this case, Moussallem filled the role
of Loretta Pao, and Jefferis filled the role of Gordon Pao.
Moussallem, like Loretta, examined the Union’s card majority.
Moussallem, like Loretta, was thereafter asked by the union
representatives to meet for the purposes of collective bargain-
ing (or further collective bargaining, as the General Counsel
contends). Moussallem, like Loretta, did not refuse. Moussal-
lem, like Loretta, agreed that another agent of the Respondent
(herein Jefferis) would meet with the Union. On such evidence
in Richmond Toyota, the Board found a “commitment to nego-
tiate,” and the Board found a violation of Section 8(a)(5) in the
subsequent refusal of Gordon to meet with the union. I would
do the same here for Jefferis’ subsequent refusal to meet with
the Union in this case. Just as much as Loretta made a binding
commitment to bargain with the union in Richmond Toyota by
agreeing that another agent (Gordon) would meet later (about a
week later) for purposes of collective bargaining, Moussallem
made a binding commitment to bargain with the Union in this
case by agreeing that Jefferis would meet later (about an hour
later) with the Union. This case is actually stronger than Rich-
mond Toyota because Jefferis, unlike Gordon Pao in Richmond
Toyota, actually met with the Union, knowing all the while that
the Union was then seeking recognition and bargaining as the
agent of the unit employees. In so doing, Jefferis, as Moussal-
lem’s superior, reaffirmed Moussallem’s commitment to bar-
gain with the Union. Therefore, without more, I would find
and conclude that the Respondent violated Section 8(a)(5) by
refusing, on and after February 21, to meet and bargain with the
Union.20

20 The Respondent’s brief does not claim that Jefferson Smurfit over-
rules (implicitly or otherwise) Richmond Toyota. In fact, the Respon-
dent’s brief which, again, otherwise reflects extensive research does not
even mention Richmond Toyota, even though that case is squarely in
point on three major issues in this case; to wit: agency, the necessity of
an express acknowledgment of majority status and the commitment to
bargain. The omission is telling.
There is, however, more. Actual bargaining constitutes not
only an acknowledgment of majority status; it constitutes an
agreement to engage in further bargaining until either a collec-
tive-bargaining agreement is reached or a reasonable amount of
time has passed without an agreement being reached. For ex-
ample, in Vincent M. Ippolito, Inc., 313 NLRB 715 (1994),
enfd. 54 F.3d 769 (3d Cir. 1995), the Board found that bargain-
ing had occurred because, after interrogating the unit employ-
ees to find that the union did represent a majority: (1) one agent
of the employer met with the union and expressly acknowl-
edged that the union represented the employees (without exam-
ining union authorization cards that the employees had signed);
and (2) another agent met with the union and examined the
union’s contract proposals and asked various questions about
them and commented that the union’s wage proposals were
similar to what the employer was then paying. The Board
found a violation of Section 8(a)(5) in the employer’s subse-
quent refusal to bargain because the facts “establish that the
Respondent met, recognized, and thereafter bargained with the
Union and later withdrew recognition.”
Even more in point is Lyon & Ryan Ford, 246 NLRB 1
(1979), enfd. 647 F.2d 745 (7th Cir. 1981), cert. denied 454
U.S. 894 (1981). The employer in that case also did not ex-
pressly acknowledge the majority status of the union that
sought recognition. The employer did, however, meet with the
union on August 24, 1978, at which time: (1) the union de-
manded recognition and bargaining; (2) the union presented,
and the employer examined, authorization cards that had been
signed by a majority of the unit employees; (3) the union there-
on presented the employer with written contract proposals; (4)
the union’s representatives explained some of the proposals; (5)
the employer’s agent asked what the cost of the proposed
welfare and pension program was, the union gave the hourly
figure, and the employer “turned and punched out some num-
bers on his adding machine”; (6) the employer asked if an em-
ployee would be insured under the union’s proposals if injured
on a company picnic, and the union answered that, if the acci-
dent was not covered under workers’ compensation, then the
proposed insurance program would apply; (7) the parties then
discussed wages and agreed that they were “not far apart”; and
(8) the parties agreed to meet on August 28. The parties did
meet again on August 28; similar exchanges occurred, but, as
was the case on August 24, no agreements were reached, except
that the parties did agree to meet on September 1. As the meet-
ing closed, the union representatives asked for permission to go
into the employer’s shop and talk to some of the employees; the
employer agreed, and the representatives did so. Then, when
the parties did meet on September 1, the employer demanded a
Board election before talking more to the union. The Board
approved the finding of the administrative law judge that, under
those circumstances, the employer had recognized and bar-
gained with the union “from August 24 until September 1,
1978,” and that by refusing to bargain after September 1, the
employer violated Section 8(a)(5).
As was the case in Lyon & Ryan Ford, the union, possessing
the majority support of the unit employees, demanded recogni-
tion as the collective-bargaining representative of those em-
ployees. As did the employer in Lyon & Ryan Ford, the re-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 240
spondent met with the union twice after the union’s initial bar-
gaining request before withdrawing recognition; the first meet-
ing here was with Moussallem, and the second was with Jef-
feris (albeit both meetings were on a single date, February 19,
as opposed to the separate dates in Lyon & Ryan Ford). As
also was the case in Lyon & Ryan Ford, the Respondent did not
expressly acknowledge in either meeting that the Union repre-
sented a majority of the unit employees, but the Respondent did
bargain with the Union just as much as did the employer in
Lyon & Ryan Ford.
The parties in Lyon & Ryan Ford discussed wages, insur-
ance, welfare and pension; the parties here discussed HAZMAT
training, other training (at the Union’s Plainfield facility), boot
allowances, coveralls to be provided, maintenance time, com-
parative insurance costs, scope of the unit (national versus lo-
cal), employee morale, tardiness and attendance problems, an
attendance-award program, and a progressive disciplinary sys-
tem. No agreements were reached (except possibly on
HAZMAT training for all employees and that some of the Re-
spondent’s employees should be classified for wage purposes
as apprentices), but that was the case in Lyon & Ryan Ford
also. The Union did not present written contract proposals to
the Respondent on February 19, as did the union in Lyon &
Ryan Ford, but Jefferis did ask for a copy of the Union’s health
and welfare program which, of course, was a request for a pro-
posal. (And when the Union subsequently supplied the pro-
gram, the Respondent did not ask why the Union had sent it.)
Additionally, Jefferis asked what the Union could do for the
Respondent and sat and listened to Simrayh’s assurances that
the Union would give the Respondent access to its employee-
referral system and would provide employee training at the
Union’s facility. Jefferis (and Bucher) further asked the Union
to at least consider hiring a professional engineer for its staff,
and the Union agreed to do so. These exchanges can only be
described as collective bargaining. (Undoubtedly, lesser pro-
gress has been made during the initial bargaining sessions of
other relationships that have ultimately proved to be fruitful.)
Finally on this point, the Union did not ask for permission to
talk to the employees on the Respondent’s premises, as did the
Union in Lyon & Ryan Ford, but Jefferis did sit and listen while
Simrayh and Edwards told him what the employees’ “griev-
ances” were. (Jefferis may not have been familiar with the
word “grievance” as it is used in labor relations law, but cer-
tainly he knew that the word signified employee complaints
about their terms and conditions of employment.) After hearing
the first grievance, Jefferis did not tell Simrayh anything like:
“Stop; you don’t have any authority to present the employees’
grievances, and I don’t have to sit here and listen to them.”
Instead, Jefferis gave responses on each grievance (peanuts).
Uniformly in American labor relations, the only nonstaff to
which an employer will listen about its employees’ grievances
is the collective-bargaining agent that represents those employ-
ees. Moreover, Jefferis admitted that, just before he began the
discussion of the employees’ grievances, he had examined the
union authorization cards and Simrayh had said, “[T]hey [the
Union] would like to represent them.” Standing alone, Jefferis’
entertainment of the employees’ grievances, coming as it did
after the demand for recognition and the proof of majority
status, is compelling evidence that he was recognizing and
bargaining with the Union as the collective-bargaining repre-
sentative of the unit employees.
That is, if Moussallem did not make the commitment to bar-
gain with the Union by agreeing that Jefferis would meet for
that purpose, then Jefferis made the commitment by actually
bargaining with the Union. The Respondent is therefore bound
by the consequences of Jefferis’ actions and shall be required to
resume bargaining until a contract with the Union is reached or
until a reasonable amount of good-faith bargaining on its part
has failed to produce a contract.21
The cases that the Respondent cites on brief are easily dis-
tinguishable. In Trevose Family Shoe Store, 235 NLRB 1229,
1232 (1978), the employer examined the proffered card major-
ity, but he did nothing, such as enter discussions of the employ-
ees’ terms and conditions of employment, that would have
implied recognition. In Ednor Home Care, 276 NLRB 392
(1985), some terms and conditions of employment were
“touched on” after the card majority was examined, but the
administrative law judge credited the employer’s agent’s testi-
mony that he spoke to the union’s agent only “in order to obtain
as much information as possible.” (The Respondent offered no
such testimony in this case.) In Nantucket Fish Co., 309 NLRB
794, 795 (1992), the employer also did not engage in any dis-
cussions of the employees’ terms and conditions of employ-
ment; the employer did agree to meet with the union after it
examined a petition for recognition that was signed by a major-
ity of its employees, but the circumstances did not indicate that
the employer was then agreeing to meet for the purposes of
collective bargaining.22 Similarly, in Jefferson Smurfit, supra,
the employer examined the card majority, but its agent did not
expressly agree to recognize the demanding union as the collec-
tive-bargaining representative of its employees, and it did not
impliedly agree to do so by engaging in bargaining with that
union. In this case, the Respondent’s agreement to meet for
purposes of collective bargaining was not expressed, but it was
clearly implied by the conduct of Jefferis and Moussallem; to
wit: after receiving the evidence of the Union’s majority status
and after receiving the Union’s request for bargaining, Mous-
sallem agreed that Jefferis would meet with the Union; then
Jefferis actually did meet with the Union, also examined its
evidence of majority status, and bargained with it.
I feel constrained to further note that the testimony of Jef-
feris (as well as that of his supporting, but incredible, subordi-
nates) is significant for two things that it is not. First, Jefferis’
testimony is not testimony that he told Simrayh and Edwards
on February 19 that “neither my staff nor I have power to rec-
ognize Local 150 or to bargain or negotiate for Terracon.” In
his February 21 letter to Simrayh, Jefferis stated that he had
made that unequivocal statement on February 19. In court,
however, Jefferis did not testify that he told Simrayh and Ed-
wards that he did not have the authority to recognize or bargain

21 Lyon & Ryan Ford and Vincent M. Ippolito, Inc., supra (which are
also not mentioned in the Respondent’s brief).
22 The Board held that the agreement to meet was ambiguous be-
cause the employer could have been agreeing to meet only to discuss
whether the petition constituted evidence of majority status. Compare,
Richmond Toyota, supra.

TERRACON, INC. 241
with the Union. (Also, neither Moussallem or Bucher testified
that Jefferis made such an unequivocal denial of authority to
negotiate with a union.) Second, Jefferis’ testimony that he told
the Union that some of the terms and conditions of employment
that they had discussed “seemed to be peanuts, but they are
corporate policies” was not testimony that he told the Union
that he had no chance of getting any changes in policies that
had theretofore been established by “Corporate.” Of course, if
Jefferis had followed through on his commitment to bargain
with the Union, he might well have been successful in convinc-
ing “Corporate” to grant at least some of the concessions that
the Union might have demanded in further bargaining. If Jef-
feris did fail in such efforts, the Union might still have accepted
a collective-bargaining agreement that contained only existing
terms and conditions of employment (just to get a “foothold,” if
nothing else). And if the Union had not been willing to accept
existing terms and conditions of employment and the parties
had gone to impasse, the Respondent would nevertheless have
fulfilled the bargaining obligation that Jefferis and Moussallem
undertook on February 19.
In summary, I find that, on February 19: (1) the Union de-
manded (orally and in writing) recognition as the collective-
bargaining representative of the Respondent’s drillers and help-
ers, a unit that is appropriate for collective bargaining; (2) the
Union demonstrated its majority status to the Respondent at the
same time; and (3) the Respondent, by its agents Jefferis and
Moussallem, made “the original commitment of the employer
to bargain on [that] demonstrable showing of majority”23 by
agreeing to bargain, and by actually bargaining, with the Union
as the collective-bargaining representative of the unit employ-
ees. I therefore conclude that the Respondent violated Section
8(a)(5) by withdrawing recognition from the Union on Febru-
ary 21 because a reasonable amount of time for bargaining had
not, by that date, elapsed.24
It is undisputed that before February 19 the Respondent’s
drillers and helpers reported for work at various times between
5 and 6:30 a.m. (and usually at 6 a.m.). However, at some
point later in February, as is further undisputed, the Respondent
changed the earlier starting times for drillers and helpers to a
rigid starting time of 7:30 a.m.25 It is further undisputed that
the Respondent did not notify the Union of this change before
putting it into effect.
The General Counsel asked Renner: “So, the change in start
time affected your pay?” The General Counsel asked Rodri-
guez, “So, this change to the start time affected your pay?” The
General Counsel asked Caballero, “So, the change in the start
time reduced your pay?” All three witnesses dutifully answered
“Yes” to these blatantly leading questions. On brief, the Re-
spondent contends that the answers to these leading questions

23 Jerr-Dan, 237 NLRB 302, 303 (1978).
24 Brown & Connolly, 237 NLRB 271, 275 (1978).
25 On March 14, by memorandum of that date to the Respondent’s
“Drillers, Drill Helpers and Project Engineers,” Jefferis and Moussal-
lem stated that “[a]s you may already know, we have recently changed
the start time for drillers and helpers to 7:30 a.m.” The memorandum
then gave the reason for the change that had (already) taken place; so
that drillers could meet with project engineers before starting each
day’s work.
are inadequate to prove that any of the employees’ wages were
reduced by the change in starting time. If there had been any
kind of effective denial, I would tend to agree with the Respon-
dent. Jefferis, however, was asked, and he testified:

Q. All right, do you know whether or not the memo
that was sent out in March of 2001, setting a starting time
of 7:30, had any effect on the hours worked by drillers?
A. I think for total hours, they didn’t change them a
whole lot.

Jefferis’ testimony that total work hours did not change “a
whole lot,” of course, is hardly testimony that there was no
change at all. Jefferis’ testimony is therefore not sufficient,
alone, to discredit the testimonies of the employees (even
though their testimonies were in response to leading questions).
The only documentary evidence that the Respondent offered in
support of its contention that there was no change in the total
hours that the drillers and helpers worked after the February
change in starting time consisted of a summary and some busi-
ness records. The summary was inadmissible under Federal
Rules of Evidence 1006 because there was no sworn testimony
that it was the product of a review of underlying records. The
business records were about an inch thick, and the Respondent
offered no explanation of how they proved its point. I therefore
rejected the records, as well.
I credit the employees’ testimonies on the point and find that
there was at least some negative effect on the employees’ earn-
ings that was caused by the Respondent’s unilateral change.
But even without the employees’ testimonies I would find that
the change in the daily starting time necessarily had a signifi-
cant adverse impact on the Respondent’s drillers and helpers.
Being required to start at a later time in the day meant that em-
ployees were going to earn fewer wages on any given day, or
they were going to have to work later in the day to earn the
same amount. In either event, the impact on the unit employees
would be significant. Therefore, implementation of any change
in starting time should have come only after notification to, and
bargaining with, the Union which, as I have found infra, had
been the collective-bargaining representative of the unit em-
ployees since February 19. I therefore find and conclude that
the Respondent, in violation of Section 8(a)(5), changed the
work hours of the unit employees without prior notice to or
bargaining with the Union. The precise monetary effect of the
Respondent’s unlawful unilateral action on individual employ-
ees will be determined at the compliance stage of this matter.26
26 I find to be without substance the Respondent’s position on brief
that FES, 331 NLRB 9 (2000), a refusal-to-hire case, requires that all
issues that can be decided in an underlying unfair labor practice pro-
ceeding are to be decided in that proceeding and not left for the compli-
ance stage. The change that FES represents applies only to that of a
narrow issue (availability of job openings) in a narrow field of cases. If
the Board had intended a broader effect, it assuredly would have so
indicated (and it certainly did not do so).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 242
C. The 8(a)(1) Allegations
1. Interrogations and threats
a. Threat by Marquez
John Howard was employed by the Respondent until late
February. Howard testified that in mid-January, when he and
Drill Coordinator Osvaldo (Oz) Marquez were alone at the
Respondent’s facility, there occurred the following conversa-
tion:

He asked me what was going on about Saturdays, and I
said, “I don’t know what you’re talking about.”
And, he goes, “Well, what about these union cards?”
I said, “Well, I don’t know what you’re talking about.”
And, he was like, “Well, Kevin [Jefferis] said he
would pull all the rigs out and shut the office down.”
And I said, “He can’t do that.” I said, “You know, I’ve
already talked to my brother who belongs to 150, and he
even agreed with me.”

(Howard was not asked what it was that his brother had agreed
with him about.) The complaint alleges that this comment by
Marquez was a threat of “loss of work or subcontracting” be-
cause of the employees’ union activities in violation of Section
8(a)(1). Marquez, who was not employed by the Respondent at
time of trial, was not called to testify, and Howard’s testimony
is not factually disputed. The Respondent contends that, never-
theless, no violation can be found on the allegation because the
General Counsel has failed to show that Marquez was a super-
visor within Section 2(11) of the Act.
Juan Reyez was employed as a driller and helper by the Re-
spondent until mid-February 2001. Reyez testified that he ap-
plied for employment in October 2000 by submitting an appli-
cation to a secretary at the Respondent’s Naperville facility.
The secretary told him that someone would call him. A few
days later, Marquez called Reyez at home and told him to come
to Marquez’ home for an interview. After Marquez conducted
the home interview, Marquez sent Reyez for a drug test. A few
days later, Marquez called Reyez to tell him that he had passed
the drug test. Marquez then also told Reyez that he was hired
as an employee of the Respondent and that he should give no-
tice to his then-employer (which Reyez did). Marquez also told
Reyez that he should report to work on November 1. Reyez did
report on that date and began working for the Respondent as a
helper without interviewing with anyone else. Reyez also testi-
fied that Marquez gave him all instructions for his job and
granted him time off when Reyez asked. (Reyez further testi-
fied that it was Marquez who told him that he needed to call in
at least 1 hour before being absent.) Reyez further identified a
January 10 memorandum from Marquez to all “Drillers and
Helpers.” The topic is stated as: “Terracon Driller and Helper
Rules.” The memorandum lists nine numbered rules for drillers
and helpers including “(1) You must be out of the shop 15 min-
utes after your arrival and 15 minutes after your return at the
end of the day. You will not be paid for any more time unless
it is approved. (2) All maintenance must be approved by Oz
prior to being done. Also, proper forms must be completed on
completion of work. See me for the forms. . . . (9) All days will
begin at 6:00 a.m. unless you are told otherwise by Oz or Ma-
roun.” The notice concludes: “Any employee who does not
follow any of these rules will receive a written warning for the
first offense. On your second offense you will be given two
days off with no pay or PTO [apparently, “personal time off,”
as paid leave] time. ON YOUR THIRD OFFENSE YOU WILL BE
DISMISSED FROM YOUR JOB AT TERRACON. In order for all of us
to work as a team we need the cooperation of everyone. So that
things may run smoothly and efficiently. Thank you.” Also in
evidence is a January 8 memorandum from Moussallem to all
“Drillers and Helpers.” The topic line is “The Golden Rules.”
The memorandum is quite lengthy in its description of how the
drillers and helpers should be performing their jobs; it makes
numerous references to Marquez and the necessity for his ap-
proval before employees do certain things. The “Golden
Rules” memorandum concludes: “Oz or I are available to dis-
cuss any questions or issues you might have.”
Section 2(11) of the Act defines a supervisor as “any indi-
vidual having authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to direct
them, or to adjust their grievances, or effectively to recommend
such action, if in connection with the foregoing the exercise of
such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment.” It is well estab-
lished that, because the statutory indicia of supervisory status
are written in the disjunctive, the possession of only one of the
indicia is sufficient to confer supervisory status on an individ-
ual. Opelika Foundry, 281 NLRB 897, 899 (1986); Allen Ser-
vices Co., 314 NLRB 1060, 1061 (1994).
In this case it is clear that Marquez hired Reyez on or about
November 1 without the input from any admitted supervisor
(such as Jefferis or Moussallem). From that point, at least,
Marquez was a supervisor within Section 2(11).27 Even if
Marquez was not a supervisor, he was clearly a conduit for
management communications to employees as demonstrated by
the above memoranda. Marquez was therefore an agent of the
Respondent’s within Section 2(13). Hausner Hard-Chrome of
KY, Inc., 326 NLRB 426 (1998). In either case, the Respondent
is bound by any threats that Marquez made to employees if
such threats were based on the employees’ union activities.
Marquez asked Howard for information about the employ-
ees’ attending Saturday union meetings and signing union au-
thorization cards. When Howard professed ignorance, Marquez
did not buy it. He went ahead and told Howard that, “Well,
Kevin Jefferis said he would pull all the rigs out and shut the
office down.” This was plainly a threat by a supervisor (or
agent) that was based on the employees’ suspected union activi-
ties, and it accordingly violated Section 8(a)(1), as I find and
conclude.

27 On brief, the Respondent points to much evidence that was intro-
duced by the General Counsel that did not effectively indicate that
Marquez was a supervisor. The Respondent, however, does not men-
tion Marquez’ hiring of Reyez.

TERRACON, INC. 243
b. Threat by Kunz
Caballero, who was employed by the Respondent from early
1998 until his termination on April 6.28 When he was termi-
nated, Caballero was a driller. Caballero testified that, during
the morning of February 19, after Simrayh and Edwards had
left the Naperville office, he was assigned to go to the Respon-
dent’s Rockford facility on a job. When he got there, he was
wearing his union logo cap. According to Caballero, he went to
the office of the Respondent’s Rockford office manager, Kunz,
and:

I seen him glance up at my Union hat, and I had asked
him if he had heard anything from Naperville. And, he
told me no. And, I told him that we presented Maroun
with authorization cards and that we all wanted to become
a union shop.
And, he told me that before we would go union that
Kevin [Jefferis] would send the rigs out of state and that
he’d subcontract all the work before we’d ever go union.

The complaint alleges that, by Kunz’ remark to Caballero, the
Respondent, in violation of Section 8(a)(1), threatened employ-
ees that their collective bargaining efforts would be futile and
threatened to subcontract work because of the employees’ un-
ion activities.
Kunz testified that on the morning of February 19, Caballero
and Medina were sent from the Naperville operation to the
Rockford facility to serve on a job as driller and helper, respec-
tively. According to Kunz, at a point when he and Caballero
were alone in his Rockville office:

I began going through the drill instructions with Hec-
tor, reviewing the project as we normally do. Once we
were done with our review of the job, Hector asked me if I
heard about the excitement that happened in Naperville
that morning. And I told him at that time no.
At that point Hector had told me that the union rep had
come into Naperville and had told Kevin that the drillers
were going to be unionizing. . . .
At that point I was surprised, and I asked Hector how
he thought it went. Hector said he thought it went well.
Then I made a statement to Hector that I’d be surprised if
the Company would go for it, but I’d been wrong in the
past. So that ended up being our conversation

To the extent that this testimony by Kunz was intended to be
a denial of Cabellero’s specific testimony that “he told me that
before we would go union that Kevin Jefferis would send the
rigs out of state and that he’d subcontract all the work before
we’d ever go union,” I discredit it. Caballero appeared com-
pletely credible in giving his testimony, and I do credit it. I
therefore find and conclude that Kunz threatened Caballero as
alleged in the complaint.

28 Cabellero’s termination is discussed infra in connection with the
allegation that the Respondent denied another employee’s request for
Cabellero’s presence during an investigatory interview.
c. Interrogation and threat by Jefferis
Rolando Salazar was employed by the Respondent until July
2001 as a driller. Salazar described a February 23 conversation
that he had with Jefferis in Jefferis’ office (with Marquez also
present). According to Salazar:

Jefferis had asked me if I was totally involved
in . . . the Union. . . . I told him exactly how I felt about it.
I really didn’t have nothing to do with this, I didn’t want
nothing to do with this because I didn’t have no problems
with the Company. . . .
He asked me basically: “What’s going on? We’re all
supposed to be a family here. How did we get involved in
this?” . . .
My response was, “Well, I didn’t want to get into this.’
I had just started; I didn’t want any part of it.
And, then he does, “Well, it looks like you got a good
head on your shoulders; you know what you’re going to
do. . . . We’re supposed to be family-oriented here; we’re
all supposed to get along, get the job done, do whatever it
takes.” Then he also went [on] to say [that] if he wanted to
he could just shut the drilling operation down here, and
send all the equipment elsewhere. . . .
[B]asically that was the end of the conversation.

Based on this testimony by Salazar, the complaint (as amended
at trial) alleges that the Respondent, by Jefferis, interrogated
Salazar and threatened him that the Respondent would subcon-
tract the drilling work because of the employees’ union activi-
ties.
On cross-examination, Salazar added that, when Jefferis
questioned him about the Union, Jefferis asked who “the ring-
leader” was. Also, Salazar added that Jefferis had told him that
he would contract out the drilling work: “Because of what was
going on with the Union.” Salazar acknowledged that in the
pretrial affidavit that he signed in March 2001, or just after the
alleged conversation, he did not state that Jefferis told him that
the Respondent might subcontract “Because of what was going
on with the union.”
Jefferis testified that he could not recall meeting with Sala-
zar, but that he would not have told Salazar that the Respondent
would contract out its drilling business because he had received
his lawyer’s instructions not to make threats to employees
about their union activities, “and I didn’t want to get in trou-
ble.”
Salazar’s additions on cross-examination do give me pause;
nevertheless, his testimony on direct examination was not de-
nied by Jefferis. Jefferis testified that he would not have
threatened or interrogated employees because his lawyer had
told him not to. Such testimony would tend to support a denial
of testimony such as Salazar’s, but it falls far short of a denial
itself. That is, by claiming only that he could not recall meet-
ing with Salazar Jefferis did not deny Salazar’s specific testi-
mony. Salazar otherwise appeared to be a credible witness, and
I do credit his testimony. I therefore find and conclude that the
Respondent, by Jefferis, interrogated employees about their
union activities or sympathies, or about the union activities or
sympathies of other employees, and Jefferis threatened em-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 244
ployees with loss of employment because of their union activi-
ties, both in violation of Section 8(a)(1).
2. Denial of a fellow employee’s assistance at a
disciplinary interview
a. Evidence presented by the General Counsel
As previously noted, Hector Caballero was employed by the
Respondent as a driller until April 6. Eliezer (Elliot) Rodriguez
was employed by the Respondent as a helper from March 2000
also until April 6. Rodriguez testified that his duties as a helper
were: “To assist drillers in the field, helping the with supplies,
taking samples, bagging them, labeling them.” In late February,
the Respondent’s Cedar Rapids, Iowa operation was quite busy,
and it needed more personnel for a contract to sample and test
some soil at an Iowa highway construction project. To fill that
need, Thomas Salm, manager of the Cedar Rapids operation,
asked to borrow a crew from the Naperville operation. Jefferis
sent Caballero as the driller and Rodriguez as the helper. The
assignment lasted 3 weeks (with Caballero and Rodriguez
spending the nights in Iowa motels).
On the morning of April 6, Rodriguez was originally sched-
uled to work as a helper for another driller, but Marquez told
Rodriguez that that assignment had been canceled and that he
should stay and work at the Naperville facility. About noon,
Jefferis told Rodriguez to follow him to the conference room.
When Jefferis and Rodriguez got there, according to Rodriguez,
waiting were Moussallem, Salm, and project engineer Matt
Riberti (or “Ribordy” as the name is sometimes spelled in the
transcript). According to Rodriguez:

Well, Tom Salm, the Cedar Rapids manager, he
popped out a blue print map from the road job that me and
Hector did in Iowa. And, he said that he had a few ques-
tions and concerns about the job we did in Iowa [and] that
he wasn’t understanding something.
And, well, I told him, that if this had to do with the job
in Iowa, that I would like Hector Caballero present, since I
was his drill helper [and] he was there with me. . . .
[Jefferis] said that Hector wasn’t going to make it in
because they attempted to get ahold of him, but he wasn’t
answering his phone. . . .
I still told them that if it had anything to do with Iowa,
I wanted Hector present since he was there with me. And,
again, they said no, he wasn’t going to make it.

The meeting proceeded with Salm stating to Rodriguez that
officials from Iowa were complaining that work for which Iowa
had paid the Respondent had not been performed, that it ap-
peared that Caballero and Rodriguez had inflated the hours that
they had claimed for working in Iowa during the period in
question, and that several spurious charges had been made on
two credit cards that had been assigned to him and Caballero
(one gas credit card and one general purpose, Visa, credit card).
Rodriguez protested that their hours were accurate, that the
worksheets were turned in accurately as far as he knew, that
only Caballero had the credit cards, and that he knew of no
spurious charges. Jefferis then stated that Rodriguez was fac-
ing discharge for stealing time and facing criminal charges and
jail time for stealing by misuse of the credit cards. Jefferis and
Moussallem told Rodriguez that no charges would be brought
against him, and that he would not have to pay back “the
money” (what time Rodriguez had stolen, what the Respondent
was going to have to remit to Iowa and what had been wrong-
fully charged on the credit cards), if he would create and sign a
statement that he was resigning his employment. Rodriguez
further testified that he refused to sign any statement. Jefferis,
Riberti, and Salm left the room. Moussallem stayed in the
room with Rodriguez. Rodriguez testified that Moussallem
said nothing else, but he felt that Moussallem was staying in an
attempt to get him to create and sign a statement of resignation.
Rodriguez, knowing that he was discharged, left the facility.
During examination by the Charging Party, Rodriguez testified
that Simrayh had told the unit employees, before February 19,
of various rights that they had under the law; one of those rights
was that they could have another employee present with them
when called to meetings with supervisors.
As will be seen, the Respondent contends that Rodriguez
signed a resignation during the April 6 interview, and Moussal-
lem identified such a document during the Respondent’s case.
On cross-examination, before Moussallem testified, Rodriguez
was shown the document, but he denied that he signed it and he
denied that he had seen it before the regional office investiga-
tion of the charges.
b. Evidence presented by the Respondent
Salm described the circumstances that led him to believe that
Caballero and Rodriguez had, together, overcharged on the
hours of work that they reported and had engaged in unauthor-
ized usages of the Respondent’s Visa card while on the Iowa
assignment. On review of the complaint from Iowa’s depart-
ment of transportation, Salm found that he had no reports or
samples for some of the work that Caballero and Rodriguez
should have done; nor did the Respondent have some fuel re-
cords for the rig; and charges that could not have been related
to the work showed up on the Visa card that was assigned to
Caballero.
Salm testified that he, Jefferis, and Moussallem investigated
the discrepancies by interviewing both Caballero and Rodri-
guez. Because the account with Iowa was the responsibility of
Salm, he conducted the interviews, although Jefferis, Moussal-
lem and Riberti were present for parts of each of them. Cabal-
lero was interviewed first on April 6. Salm testified that, when
Caballero was confronted with the discrepancies:

there was a pause again, and he [Caballero] pulled a credit
card out of his pocket, laid it on the desk, laid his keys on the
desk and started talking about the Wal-Mart purchase. He
said that he had purchased clothing because he didn’t have
any clean clothes. And he seemed to be [in] remorse.

At that point, Salm left the meeting; Jefferis, Moussallem, and
Riberti stayed with Caballero in the conference room.
Salm testified that when the supervisors next interviewed
Rodriguez, Rodriguez had few answers for the discrepancies,
but he admitted that Caballero had bought some clothes for
himself and some for him (Rodriguez) at a Wal-Mart with the
Visa card. When Rodriguez admitted that Caballero had
bought him some clothes with the Visa card, Jefferis asked

TERRACON, INC. 245
Rodriguez what he would do with an employee who charged
personal items on a company credit card; Rodriguez replied, “I
would fire him.” Salm testified that he then left the conference
room, leaving Rodriguez with Riberti, Jefferis, and Moussal-
lem. Salm testified that he, not Jefferis or Moussallem, did the
questioning during Rodriguez’ interview. Salm denied that, at
any time during his presence at the interview, Rodriguez asked
that Caballero be present.
Jefferis testified that after Salm’s April 6 interview with Ca-
ballero, he thought Rodriguez “was involved.” Jefferis further
testified that he did “sit through” Salm’s interview of Rodri-
guez and that the first thing that he remembered of that inter-
view was Salm’s laying out drawings on which he questioned
Rodriguez. The Respondent did not ask Jefferis if, when the
interview started, Rodriguez asked for the presence of Cabal-
lero. According to Jefferis, Rodriguez could explain what he
and Caballero had done the first week, but not thereafter. After
long, silent pauses,

[T]hen Maroun said to him, “What do you think? If
you were in our shoes, what do you think we should
do?” . . .
First he [Rodriguez] responded that he would, if it was
him personally, he would fire the person, something to that
effect.
And then I asked him, “What do you want to do?”
And there was a big pause, and then he said, “I guess
I’ll resign. And then I . . . walked out of the room.”

Moussallem also testified that during the April 6 meeting
with Caballero (which, again, preceded the interview with Rod-
riguez), Caballero acknowledged that he had bought personal
clothing for Rodriguez with the Visa card. After that, Cabal-
lero agreed to resign. Riberti, Salm, and Jefferis then left the
conference room. Moussallem stayed behind with Caballero
and witnessed a resignation that Caballero wrote out and
signed.
Moussallem testified that Rodriguez’ interview by Salm had
already started when he entered the conference room. Moussal-
lem testified:

When I entered the room, Mr. Salm was going over the plans
with Mr. Rodriguez and pretty much asking Mr. Rodriguez
what happened, similar to what he asked Mr. Caballero. And
Mr. Rodriguez . . . said he [did] not remember.

Moussallem testified consistently with Salm about the content
of the interview with Rodriguez. Moussallem described the
end as:

At that point when all of these situations were pre-
sented by Mr. Salm, I asked Mr. Rodriguez, “Elliot if, if
you were in our shoes what would you do?”
And Mr. Rodriguez said, “I would not put up with it.”
At that point I think Mr. Jefferis asked him, “Do you
want to resign or do you want us to continue the investiga-
tion?
And there was a long pause and then Mr. Rodriguez
said, “I’ll resign.” . . .
Mr. Jefferis asked him . . . to put it in writing, and he
was given a notepad and at that time everyone left the li-
brary [and conference room] except for myself and Mr.
Rodriguez.
He started writing down his resignation, and I noticed
that at the end he wrote down “ER.” These are his initials.
And I told him, “You need to write your name because
we don’t know who ‘ER’ is. And that’s when he wrote his
full name after that.

The document that Moussallem identified as Rodriguez’ resig-
nation states, in handprint:

On this day—4–6–01—2:55 p.m. I resine from Terracon
Consultance. E.R. Elie Rodriguez.

(Spellings and underlining are in original.) The word “Consul-
tance” was apparently intended to be “Consultants.” (The Re-
spondent’s business, again, is that of an engineering consult-
ant.) In the space for “Employer” on the union authorization
card that Rodriguez identified as his, and which the General
Counsel placed in evidence, Rodriguez wrote “Terracon Con-
sultance.” On the eight other union authorization cards that the
General Counsel introduced, not one employee (or Carpenter)
used the term “consultance” (or consultants.)
c. Conclusions
Under NLRB v. J. Weingarten, 420 U.S. 251 (1975), an em-
ployee has the right to have a union representative present at an
investigatory interview which the employee reasonably be-
lieves might result in disciplinary action. In Epilepsy Founda-
tion of Northeast Ohio, 331 NLRB 676 (2000), enfd. 258 F.3d
1095 (2001), the Board extended Weingarten rights to employ-
ees of nonunionized employers so that they now have the right
to have a requested coworker representative present at an inves-
tigatory interview which the employee reasonably believes
might result in disciplinary action. The General Counsel con-
tends that Rodriguez made such a request for Caballero on
April 6 and that under either Weingarten (because the Respon-
dent should have been recognizing the Union as the collective-
bargaining representative of the unit employees at the time) or
under Epilepsy Foundation (because the Respondent actually
was not recognizing the Union at the time) Rodriguez was enti-
tled to the presence and assistance of “fellow employee” Cabal-
lero.
Caballero was not a “fellow employee” when Rodriguez’
April 6 interview began. Caballero was the General Counsel’s
witness for other purposes, but he was not called in rebuttal to
deny that he resigned during his April 6 interview, and the Re-
spondent’s testimony that Caballero was interviewed before
Rodriguez was credible. It is further true, as the Respondent
observes, that Caballero and Rodriguez were apparent “co-
conspirators” in the thefts involved. The first thing that an
interviewer wants to do in the case of coconspirators is to sepa-
rate them. (Even the Board conceded in the enforcement pro-
ceedings of Epilepsy Foundation that Weingarten theories do
not apply to coconspirators.) I reach the conclusion on the
instant allegation, however, on neither the theory that Caballero
was not a fellow employee nor the theory that neither Weingar-
ten nor Epilepsy Foundation applies because Caballero and
Rodriguez were coconspirators.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 246
It is my strongest belief that Rodriguez lied when he testified
that he did not compose, and sign, the resignation that Moussal-
lem identified. Although I have discredited certain of the Re-
spondent’s testimony above, I do not believe that the Respon-
dent fabricated the document that it introduced as Rodriguez’
resignation. Moreover, the writing on the resignation and on
Rodriguez’ union authorization card appear to be the product of
the same hand. Finally, the infusion of the nonword “Consul-
tance” in both the union authorization card and the resignation
is too much to attribute to coincidence. Rodriguez’ apparent lie
about the resignation causes me to find that he was, at least, an
untrustworthy witness, and I shall not base any finding or order
on his testimony. For this reason, and because Salm had a
credible demeanor, and because there was no reason (other than
Rodriguez’ testimony) to discredit Salm, I credit Salm’s denial
that Rodriguez requested the presence of Caballero during Rod-
riguez’ April 6 interview. I shall therefore recommend dis-
missal of the allegation that the Respondent unlawfully denied
to Rodriguez the presence of a fellow employee at the discipli-
nary interview of April 6.
(The General Counsel argues that I cannot credit Salm be-
cause the Respondent led Salm to his denial, because the Re-
spondent did not ask Jefferis or Moussallem for denials, and
because it did not call Riberti to testify. The General Counsel
did not allege or prove that Riberti was a member of manage-
ment, and an adverse inference is not to be drawn from the
Respondent’s failure to call him as a witness. International
Automated Machines, 285 NLRB 1122 (1987). Moreover, the
Respondent properly led Salm to a specific denial only after a
thorough examination on what was, in fact, said during Rodri-
guez’ interview. I further credit Moussallem’s testimony that
the interview of Rodriguez had begun before he entered the
conference room, and it is therefore problematical that he
would have heard any request by Rodriguez for the presence of
Caballero. It is true that Jefferis was present for the beginning
of Rodriguez’ interview, and it is also true the Respondent
failed to ask Jefferis to deny that he had heard such a request.
That lawyer’s failure, however, does nothing to enhance the
credibility of Rodriguez. That is, the General Counsel failed to
carry her burden of proof that Rodriguez made a request for
Cabellero’s presence at the April 6 interview.)
CONCLUSIONS OF LAW
1. The Respondent is, and has been at all times material, an
employer within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is, and has been at all times material, a labor
organization within the meaning of Section 2(5) of the Act.
3. A unit that is appropriate for bargaining under Section
9(b) of the Act is:

All drillers and drilling helpers employed by the Respondent
at its Naperville, Illinois, facility, excluding all office clerical
employees and guards, and excluding all professional em-
ployees and supervisors as defined by the Act.

4. Since February 19, 2001, the Union has been, and is, the
exclusive collective-bargaining representative of employees
employed by the Respondent in the unit described above for
purposes of collective bargaining with respect to wages, hours,
and other conditions of employment.
5. By interrogating its employees about their membership in,
or activities on behalf of the Union, the Respondent has vio-
lated Section 8(a)(1) of the Act.
6. By warning its employees that their activities on behalf of
the Union would be futile, the Respondent has violated Section
8(a)(1) of the Act.
7. By threatening its employees that the Respondent would
close its Naperville, Illinois facility, and that it would contract
out the work of that facility, because its employees have en-
gaged in activities on behalf of the Union, the Respondent has
violated Section 8(a)(1) of the Act.
8. By withdrawing recognition from the Union as the collec-
tive-bargaining representative of the employees in the unit de-
scribed above, the Respondent has violated Section 8(a)(5) of
the Act.
9. By unilaterally changing the work hours of the unit em-
ployees, the Respondent has violated Section 8(a)(5) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative actions
to effectuate the policies of the Act.
The Respondent shall be required to bargain with the Union in
good faith as the exclusive representative of the unit of employ-
ees described above concerning their terms and conditions of
employment and, if an agreement is reached, to embody such
understanding in a signed agreement. As remedy for the unilat-
eral changes in work hours of the unit employees that I have
found that the Respondent implemented, the Respondent shall be
ordered to rescind them, on request by the Union, and to make
any employee who was adversely affected by those changes
whole for any loss of earnings or other benefits, as prescribed in
Ogle Protective Service, 183 NLRB 682 (1970), enfd. 444 F.2d
502 (6th Cir. 1971), plus interest as computed in accordance with
New Horizons for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]