Tim Foley Plumbing Service

National Labor Relations Board - Board Decisions

Dec 15, 2000

332 N.L.R.B. 1432 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1432
Tim Foley Plumbing Service, Inc. and Indiana State
Pipe Trades Association and U.A. Local 661,
AFL–CIO. Cases 25–CA–25652, 25–CA–25730,
and 25–RC–9699
December 15, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On August 3, 1998, Administrative Law Judge Arthur
J. Amchan issued the attached decision. The Respondent
and the General Counsel each filed exceptions, a sup-
porting brief, and an answering brief to the other party’s
exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified.2
1. The judge found that the Respondent, a plumbing
services company, violated Section 8(a)(3) and (1) of the
Act when it refused to consider and hire six applicants
who filled out applications en masse at the Respondent’s
offices on August 22, 1997, and changed its hiring poli-
cies and practices for the purpose of excluding union
applicants. The judge ordered the Respondent to consider
the applicants and hire and provide backpay to those it
would have hired, leaving the latter issue to compliance.
In its exceptions, the Respondent contends that it had a
legitimate business reason for using temporary workers
to fill its job requirements following the “salting” attempt
and that the applicants were not sincere in wanting to
work for the Respondent. The General Counsel excepts
to the judge’s failure to rule on the complaint’s failure-
to-hire allegations, which the judge deferred to compli-
ance proceedings.

1 The parties have excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative
law judge’s credibility resolutions unless the clear preponderance 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.
We agree with the judge that the Respondent’s agent, Stephen
LePage, did not threaten employees with loss of benefits by telling
employees that if the Union won the election he would caution the
Respondent not to give loans to employees without bargaining with the
Union. There is no evidence that the Respondent’s loan program was
anything but discretionary. It is well settled that in the absence of a past
practice, an employer is obligated to bargain with the union over terms
and conditions of employment. See Garrett Flexible Products, 276
NLRB 704, 706 fn. 4 (1985). In light of the Respondent’s substantial
discretion as to when and whether to make loans to its employees,
LePage’s statement to employees at the meeting was an accurate state-
ment of its bargaining obligations if the Union won the election, and,
accordingly, did not violate Sec. 8(a)(1).
2 In view of the fact that we are remanding portions of this case to
the judge for further consideration, we will not issue a final Order at
this time pending the judge’s supplemental decision.
We agree with the judge’s findings that the Respon-
dent refused to consider the six applicants based on the
applicants’ union affiliation.3 The judge’s analysis of the
refusal-to-hire allegation, however, does not comply with
the framework recently set forth in FES, 331 NLRB No.
20 (2000), for analysis of refusal-to-hire violations. Thus,
we will remand this aspect of the case to the judge for
further consideration of the refusal-to-hire allegation in
light of FES, including, if necessary, reopening the re-
cord to obtain evidence required to decide the case under
the FES framework.4
2. The Respondent excepts to the judge’s finding that
Kenneth (Richey) Harper is a supervisor under Section
2(11) of the Act and that his actions during the course of
the campaign can be imputed to the Respondent.5 Con-
trary to the judge, the Respondent contends that all deci-
sions, no matter how routine, were made directly by
Foley and merely communicated by his “extensions” on
the jobsites and that Harper thus never exercised inde-
pendent judgment in directing the work of employees.
We need not pass on the supervisory status of Harper.
Rather, we find that Harper’s actions during the cam-
paign can be imputed to the Respondent on the ground
that Harper, as an admitted “extension of Foley,” was an
agent of the Respondent.
The Board applies common law principles of agency
when examining whether an employee is an agent of the
employer in the course of making a particular statement
or taking a particular action. Under those principles, the
Board may find agency based on either actual or apparent
authority to act for the employer. “Apparent authority
results from a manifestation by the principal to a third
party that creates a reasonable basis for the latter to be-
3 It is evident that the Respondent was aware of the applicants’ union
activities. Each applicant wrote “voluntary union organizer” on the top
of his application and many wore union T-shirts, jackets, and other
paraphernalia. In addition, the Union’s business agent accompanied the
applicants to the Respondent’s offices.
4 The judge’s finding that Fortwengler, Slentz, Small, Smith, Stock-
ton, and Salmon were unlawfully denied consideration comports with
the standard set forth in FES. Remand of his refusal-to-consider find-
ings is therefore unnecessary.
5 The judge found that Harper interrogated employees as to their un-
ion sympathies, promised unspecified benefits, threatened employees
with the closing of the business or other unspecified reprisals if they
selected union representation, and informed employees that it would be
futile to select the Union as their bargaining representative and that the
Respondent would never sign a contract with the Union. The Respon-
dent does not except to the facts as found by the judge; the Respondent
excepts only to the finding that Harper’s actions can be imputed to the
Respondent on the ground that Harper is a supervisor.
332 NLRB No. 158
TIM FOLEY PLUMBING SERVICE 1433
lieve that the principal has authorized the alleged agent to
perform the acts in question.” Southern Bag Corp., 315
NLRB 725 (1994), and cases there cited. See also Alli-
ance Rubber Co., 286 NLRB 645, 646 (1987). Under
Board precedent, an employer may have an employee’s
statements attributed to it if the employee is “held out as
a conduit for transmitting information [from manage-
ment] to the other employees.” Debber Electric, 313
NLRB 1094, 1095 fn. 6 (1994).
Here, as noted above, Foley described Harper as an
“extension of [him] at the job site.” Moreover, many
employees testified, without contradiction, that they were
told by Foley to report to Harper at a particular jobsite
and direct all questions and problems to him. The em-
ployees could reasonably believe, therefore, that when
Harper made statements concerning actions that the Re-
spondent was likely to take if a union were brought in, he
was transmitting management’s views and that Harper
was just an additional spokesmen for management’s
view of the organizing campaign. Under all these cir-
cumstances, we find that Harper’s statements, on the
basis of which the judge found violations of Section
8(a)(1), are properly attributable to the Respondent. See
Poly-American, Inc., 328 NLRB 667 (1999) (agency
status of leadmen and junior foreman); Great American
Products, 312 NLRB 962, 962–963 (1993) (agency
status of employee Frias).6
3. The General Counsel excepts to the judge’s dis-
missal of an allegation that Jeffrey Payne, an electrical
contractor and friend of Foley, impliedly threatened un-
specified reprisals against employees because they wore
union T-shirts. Foley invited Payne to speak to employ-
ees at a captive audience meeting during the campaign.
During the meeting, Payne pointed to two employees
who he recalled had worn union T-shirts to an earlier
representation hearing and said they were silly for letting
the Union dress them up and that they looked like tar-

6 We also find that the Respondent violated Sec. 8(a)(1) when, in
conversations on two separate occasions, Harper (1) told employees on
August 18, 1997, that they would have to supply their own tools and
drive to work in their own trucks if the Union won the election, and (2)
told an employee on September 15, 1997, that he would only work 6
months out of the year when the evidence shows that the Respondent’s
practice was to keep employees year-round. The judge credited the
employees’ versions as to these conversations. We agree with the Gen-
eral Counsel that the judge’s failure to discuss these additional viola-
tions was inadvertent and we shall correct the findings. We need not,
however, supply an additional remedy for the August 18 threats as they
are encompassed in the threat to reduce wages and other benefits al-
ready remedied.
We need not pass on the supervisory status of John Adams in view
of the fact that no allegations of unfair labor practices or objectionable
conduct pertain to him and because the parties have agreed not to open
and count his or Harper’s challenged ballots.
gets. The judge found that Payne was an agent of the
Respondent but that the remark was ambiguous and did
not imply a threat of retaliation. We find, contrary to the
judge, that the threat by Payne constitutes a warning to
the employees that they will be “target[ed]” by the Re-
spondent because of their support for the Union.
The judge credited the testimony of employee Baker
concerning this incident and it is that testimony on which
we base our finding. Under direct examination, Baker
testified that:
[Payne] pointed Rich Howard and myself out, that the
union made us go down there and he made comments
of, again, I don’t know word for word what he said, but
we were kind of silly for letting the union push us
around and dressing us up in those shirts and making
targets out of us, really.
The record shows that Payne accompanied Foley to the
representation hearing in August 1997, and spoke at the
September captive audience meeting at Foley’s request.
Payne’s remark was made to a room full of employees,
in Foley’s presence, and directed at two employees who
had attended the hearing in support of the Union. Those
employees were singled out for derision for no reason
other than that they openly supported the Union. The
message to everyone at the meeting was clear––if you
show support for the Union, you will become a target for
reprisal––and we find that the remark violated Section
8(a)(1). See, e.g., Stein Seal Co., 237 NLRB 996, 996
(1978), enfd. in pertinent part 605 F.2d 703, 705–706 (3d
Cir. 1979) (Board reversed judge and found that em-
ployer’s remarks to a leading union supporter during a
captive audience meeting that one does not give more
food to an “ungrateful dog” after being bitten once, left
the impression with the audience that union supporter
was ungrateful and that this union supporter and other
employees who supported the union would be treated
differently).
4. We agree with the judge that the violations commit-
ted by the Respondent and its agents during the course of
the campaign warrant setting aside the election. In view
of the fact that we are remanding the case to the judge for
consideration of the refusal-to-hire allegation under the
FES framework, we shall not order a second election at
this time. Rather, we shall also direct the judge to recon-
sider the propriety of a Gissel7 bargaining order in light
of our decision here and his findings on remand regard-
ing the refusal-to-hire allegations. Indeed, the judge’s
supplemental findings could impact the complement of
employees eligible to vote in a second election or bear on
7 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1434
the Respondent’s continuing propensity to violate the
Act.8
ORDER
It is ordered that this case is remanded to Administra-
tive Law Judge Arthur J. Amchan for further considera-
tion, consistent with the above decision.

Joanne C. Mages, Esq., for the General Counsel.
Ray Blankenship, David Crittenden and Steven LePage (R. T.
Blankenship & Associates), of Greenwood, Indiana, for
the Respondent.
William R. Groth, Esq. (Fillenwarth, Dennerline, Groth &
Towne), of Indianapolis, Indiana, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. These
cases were tried in Muncie, Indiana, from May 18–21 and from
June 1–3, 1998. They arise from unfair labor practice charges
and objections to an election that was conducted on September
18, 1997, to determine whether Respondent’s plumbing em-
ployees wished to be represented by Local 661 of the United
Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry. The Union filed objections to the
election on September 18. The unfair labor practice charges
were filed by the Union on September 25 and November 7,
1997,1 and the complaint was issued April 24, 1998. On May
8, 1998, the objections to the election were consolidated for
hearing with the unfair labor practice charges.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Tim Foley Plumbing Service, Inc., a corporation, provides
plumbing services from its facility in Muncie, Indiana, where it
annually purchases and receives goods valued in excess of
$50,000 directly from points outside the State of Indiana. Re-
spondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Prelude to the Filing of a Representation Petition
The Union, Local 661 of the United Association of Jour-
neymen and Apprentices of the Plumbing and Pipefitting Indus-
try, commenced a campaign to organize Respondent’s plumb-
ing employees in January 1997. Over the next several months
it obtained authorization cards from a number of Respondent’s
plumbers.2 In June, Ken Lewis, the business manager of Local

8 In view of the remand, we shall hold this case and issue a final Or-
der only after receipt of the judge’s supplemental decision.
1 All dates are in 1997 unless otherwise indicated.
2 Foley also employs carpenters, warehouse employees, and office
clericals.
661, met with Respondent’s owner, Tim Foley, on two occa-
sions to encourage Foley to enter into a collective-bargaining
relationship with the Union. Foley declined the offers. By
early August, Foley was aware of the Union’s organizing cam-
paign. On August 12, the Union filed a petition with the
NLRB, which it also presented to the Respondent, asking for
recognition as the exclusive bargaining agent of Foley’s plumb-
ing employees.
The Salting Attempt by the Union
On August 22, six Local 661 members, each of whom was a
licensed journeyman plumber (as well as pipefitter), accompa-
nied Business Agent Jack Neal Jr. and organizer Tony Bane to
Respondent’s offices about midday.3 Neal and the six plumb-
ers, all of whom wore union T-shirts and some who wore union
hats, entered the office, which became crowded with them in-
side. They asked Respondent’s receptionist, Samantha
Stauffer, for employment applications. Stauffer, who was very
new on her job, couldn’t find them. She went upstairs to con-
sult with Michelle Miller, Respondent’s office manager. Miller
came downstairs and passed out applications to all the union
members except Neal. Neal did not request an application.
Some of the applicants did not have a pen or pencil. Stauffer
and/or Miller loaned one or more applicants a writing utensil.
Other applicants went to their trucks to obtain one. Neal and/or
one or more of the applicants asked questions of Miller and
Stauffer, including what parts of the applications had to be
completed, how long the applications were good for, who re-
viewed them, when they would be notified if they were going
to be offered jobs, the amount of business Respondent had on-
going and where the Company’s licenses were displayed. As
advised by either Neal or Bane, each of the six plumbers wrote
“voluntary union organizer” on the top of their employment
application. Each asked for and received a copy of their appli-
cation, also in accordance with directions given by Neal or
Bane. After about 15 minutes at Respondent’s office, the ap-
plicants and Neal left.
Four of the union applicants were unemployed on August 22;
the two others, Gregg Slentz and Daniel (Steve) Small, were
employed and filed applications during their lunchbreak. Stacy
Stockton, who received his Indiana journeyman plumber’s
license in April 1997, had applied for employment at Respon-
dent’s office in May 1997, apparently without any encourage-
ment to do so from the Union. He had been off of work for
about 6 months in August. During this time period he had ap-
plied for employment, on his own, with two other nonunion
plumbing contractors as well as with several nonplumbing em-
ployers.
Denny Smith, a journeyman plumber and pipefitter, had also
been unemployed for a while when he went to Respondent’s
office on August 22. Since joining the Union, Smith has
worked for one nonunion contractor for a period of about 2
months. He did so with the Union’s permission. Within the
year of his application to Foley, Smith also applied for a nonun-
ion pipefitter’s job at Delco Corporation.
3 Each of these applicants had experience in plumbing installation
during the construction process. Some, but not all, had experience in
residential or service plumbing work.
TIM FOLEY PLUMBING SERVICE 1435
James Salmon had been laid off by a union contractor some-
time before August 22. While on layoff he applied for work
with a number of employers other than Respondent. At the
time of the hearing in this matter, Salmon was employed in a
nonunion plumbing job at Ball State University, earning $17
per hour, below union scale.
William Fortwengler had been unemployed since July. Dur-
ing a period of layoff between July and October, Fortwengler
applied for work with several employers.
During the time the union applicants were at Foley’s office,
Miller and Stauffer were the only company employees present.
The rest of Respondent’s office staff were at lunch. Respon-
dent’s telephone rang during this period with calls from cus-
tomers and employees. These calls were answered primarily by
Stauffer, while Miller took care of the applicants. Respondent
contends that the applicants were rude and disruptive. I con-
clude that this has not been established. The primary motive of
Bane and Neal, and possibly some of the applicants was to
organize Respondent. This was made patently clear to Miller
and Stauffer by the wearing of union paraphernalia and writing
“voluntary union organizer” at the top of each application.
Bane was also concerned that Tim Foley would hire antiunion
employees, who might tip the balance against the Union in the
upcoming representation election.
Miller was aware that a representation petition was filed and
that her employer had retained R. T. Blankenship & Associates,
labor consultants, to advise and assist him in his campaign
against the Union. She was preconditioned to perceive the
union applicants as rude and disruptive. Indeed, she concluded
that they had “an ulterior motive” from the fact that the appli-
cants showed up at the same time wearing union T-shirts.
Stauffer was apparently nervous during this period because she
couldn’t find the employment applications and because “big
burley guys always seem to intimidate me.”
When Tim Foley returned from lunch, Miller gave him the
six union applications. He told her to contact Stephen LePage,
an employee of Blankenship. After consultation with LePage,
Respondent, on August 23, posted a notice on its door stating
that it would no longer accept employment applications at its
office. Applicants were directed to apply through the Muncie
office of Indiana Workforce Development, a state agency
which administers Indiana’s unemployment insurance system
and provides a labor exchange for employers and prospective
employees. Respondent concedes that the notice was posted in
reaction to the visit by the union applicants and was put up to
prevent a recurrence of such a visit.
Job applicants may apply to a prospective employer through
Indiana Workforce Development only if the employer places a
job order with the agency. Respondent did not place such a job
order in August. It did not do so until November 17.4 Until
that time there was no way a job applicant could apply for a job
with Tim Foley Plumbing through Indiana Workforce Devel-
opment.

4 I credit the testimony of Indiana Workforce Development Supervi-
sor Randall Ziegler over that of Respondent’s office manager Michelle
Miller.
Respondent never contacted any of the union applicants.
Tim Foley received the applications and gave no consideration
to any of them. During the late summer and early fall of 1997
Respondent was unusually busy. It had 10–12 new projects in
progress at the same time. These included installation of the
plumbing at several motels, several assisted living projects, and
apartment complexes, which were under construction. On Au-
gust 11, Foley hired Larry Swallow, a tenant and handyman at a
property owned by him. On August 14, Foley hired John
Hobson. Both new employees were hired to do plumbing work
and are members of the bargaining unit.
After hiring Hobson, Respondent did not directly hire any
plumbing employees again until November 24. Instead, Foley
fulfilled his labor needs entirely through temporary labor agen-
cies and the use of subcontractors. Tim Foley considers em-
ployment applications to be active for a period of 30 days. In
the 30 days following receipt of the union applications Respon-
dent utilized the services of the following journeymen plumbers
through Tradesman, a temporary labor agency:

Lee Hiles: from August 25 to February 12, 1998
Bill Conn: from August 29 to September 18, 1997
Richard Hilligoss: from September 10 to March 20, 1998

Foley paid Tradesman between $20.52 and $27.33 per hour
for these plumbers. Respondent also employed Robert Rich-
ards from National On-Site Personnel on September 11 for
$22.87 per hour. In addition, Respondent used the services of a
number of apprentices and helpers during this period through
the Labor Ready employment agency. Respondent had used
temporary labor services previously. However, prior to August
25, 1997, it had not done so since 1995, with one exception.5
Moreover, Respondent’s use of temporary employees in the fall
of 1997 appears to be unprecedented, even in comparison with
1994 and 1995.
After November 24, Foley resumed its direct hiring of
plumbers, including five journeymen in late 1997 and early
1998.6 The three journeymen hired in 1998 were employed
through Workforce Development.
The Election Campaign
On August 28, Respondent and representatives of the Union
met at the NLRB offices in Indianapolis to participate in a rep-
resentation hearing. Two bargaining unit members who at-
tended, Bob Baker and Richard Howard, wore union T-shirts.
On August 29, the parties entered into a stipulated election
agreement. Among the stipulations were that the election
would be held on September 18, and that employees on the
payroll as of Sunday, August 24, would be eligible to vote. The
appropriate collective-bargaining unit was described as:
5 Foley was in contact with at least two of these agencies on August
21 and early on August 22, prior to the arrival of the “salts” at his of-
fices.
6 Four of Respondent’s employees, who were union supporters, went
on strike on October 3. Richey Harper resigned his employment in
October. However, Respondent does not claim that its direct hiring
after November 24 was undertaken to replace the strikers or Harper.
Indeed, Foley did not seek plumbers through Workforce Development
until November 17, at least 6 weeks after the strike began.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1436
All plumbers, apprentice plumbers, and plumber helpers,
BUT EXCLUDING all carpenters, carpenter helpers, office
clerical employees, and all guards and supervisors as defined
in the Act.
The parties named 21 of Respondent’s employees in the
stipulation and provided that:
The above listed employees of the Employer are agreed to be
the only employees eligible to vote . . . in the election . . . and
with the exception of John Adams and Richey Harper, Jr., the
parties agree that by signing this list they are making disposi-
tion of all questions of eligibility and this resolution is final
and binding on them.
Alleged Unfair Labor Practice by Tim Foley
Paragraph 5(e) of the complaint alleges that on or about the
week of September 15, Tim Foley threatened employees with
unspecified reprisals because they formed, joined, and assisted
the Union. Union supporter Richard Howard alleges that just
before the election, Owner Foley confronted him with his time-
card. Foley and Howard argued as to whether Howard could be
paid for the time spent driving a company vehicle to a project
in Frankfort, Indiana. Howard alleges that Foley said he would
have to pay Howard for his driving time until the election but
that afterwards there would be repercussions. Foley denies this
and contends that he told Howard that in a union setting em-
ployees would drive their own vehicles to work and the issue of
being paid for travel time would not arise. I credit Foley’s
testimony in this regard.7 However, as discussed below, I agree
with the General Counsel that Foley’s remarks violated Section
8(a)(1).
Alleged Unfair Practices in the Period Between the Filing of
the Petition and the Election by Richey Harper
During the first few weeks following the filing of the Un-
ion’s petition, Richey Harper, who was in charge of several of
Respondent’s jobsites, discussed the Union with apprentices
Chris Brown, Scott Mitchell, and journeyman Richard Howard.
Harper told Brown and Mitchell that if Respondent was union-
ized, apprentices would be paid about $7.50 per hour. At the
time Brown was making $12.50 per hour and Mitchell $9.
Harper also inquired how they would vote and tried to elicit
information from Brown and Mitchell as to how others would
vote.8 Harper told all three employees that Tim Foley would
never sign a collective-bargaining agreement with the Union.
He also told them that Foley might sell the company tools and
trucks, or shut down completely in order to avoid unionization.
Howard and Mitchell discussed their conversations with Harper
with other bargaining unit employees.

7 However, I credit Howard’s testimony that he discussed this con-
versation with employees Baker, Brown, and Mitchell, all of whom
were union supporters.
8 These allegations are unrebutted. Harper quit in October 1997,
possibly on less than amicable terms with Tim Foley. I therefore draw
no inference from Respondent’s failure to call him as a witness.
Brown, Mitchell, and Howard are union members on strike from Re-
spondent and are, therefore, not impartial witnesses. Nevertheless, I
find their allegations regarding Harper credible.
Finally, Harper told Mitchell that Tim Foley would “be look-
ing out for” those employees who voted against the Union.
Harper also visited Chris Brown at his home just prior to the
election. He again asked Brown how he would vote and sought
information as to how other employees would vote. The parties
disagree as to whether Harper was a supervisor or an agent of
Tim Foley Plumbing, and thus disagree whether his conduct is
imputable to Respondent. This issue is addressed later in this
decision.
The Company’s Campaign Meetings
Respondent held three meetings for employees just prior to
the election in an effort to convince them to vote against the
Union. Stephen LePage, an employee of R. T. Blankenship &
Associates, conducted the first two meetings. At the first meet-
ing LePage emphasized to employees that they did not have to
vote for the Union if they signed an authorization card. At the
second meeting, he primarily focused on the Union’s constitu-
tion. At one of the meetings LePage discussed Tim Foley’s
practice of loaning money to his employees. LePage said:

[I]f Tim called me and said Employee A wanted a loan, that I
would probably advise him not to give it to them and we
would need to talk with the union about it.

Tr. 1062.9
At the last of the company campaign meetings, Tim Foley
invited Jeffrey Payne, a friend and electrical contractor, to talk
to Respondent’s employees. Payne, who also accompanied
Foley to the representation hearing in August, discussed his
experiences many years ago in trying to organize his employer
and recent efforts by the IBEW to organize his company, Elec-
trical Specialties, Inc. (ESI). During his talk Payne recalled
seeing two Foley employees wearing union T-shirts at the
NLRB representation hearing. Payne said they were silly for
letting the Union dress them up and that they looked like tar-
gets.10
The Election
The representation election was conducted at Respondent’s
warehouse on September 18. Prior to that date the Union had
obtained authorization cards from 12 of the 19 employees that
both parties agree were in the bargaining unit. The last of the
cards was signed on September 2. They read, in pertinent part,
as follows:
9 Some witnesses testified that LePage said simply that if the Union
won he would advise Foley not to give employees loans. However, I
credit LePage’s testimony that he also said that Respondent would have
to talk to the Union about giving such loans. In this regard I note that
Scott Mitchell, a union supporter, testified that LePage “said that he
[Foley] wouldn’t be able to do favors like that anymore because he
would have to go through the union before he could do anything like
that” (Tr. 540).
10 Payne concedes that he commented disparagingly about seeing
Foley employees wearing blue T-shirts which had the union symbol or
logo on the front and back. The design on the back of the shirt appar-
ently contains a check mark. The parties dispute what he said and
when he said it. Payne says that during a break at the representation
hearing he told two employees that he couldn’t believe they were let-
ting the Union dress them up like clowns.
TIM FOLEY PLUMBING SERVICE 1437
The signing of the attached card will permit the United Asso-
ciation or one of its locals to seek to bring you the benefits of
our union in a collective bargaining agreement.
Authorization for Representation Under the National Labor
Relations Act
I, the undersigned employee of the (company name) em-
ployed as (occupation or job description) at (city, State, loca-
tion or project), hereby authorize Local Union No. __ of the
United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and
Canada, affiliated with the AFL–CIO, or its agent, or repre-
sentatives, to represent me in collective bargaining negotia-
tions on all matters pertaining to rate of pay, hours or any
other condition of employment.
There is no credible evidence that anything was said to any
of the card signers which was calculated to direct the signer to
disregard and forget the language above his signature.11 Ten
employees voted against the Union and nine voted for it. The
Union challenged the ballots of John Adams and Richey Harper
on the grounds that they were supervisors. They did not vote.
Analysis
Respondent Violated Section 8(a)(1) and (3) in Refusing to
Hire and to Consider for Hire Six Union Members who filed
Employment Applications with it on August 22, 1997
Discrimination in refusing to consider applications for hire
on the basis of union membership or activity is discrimination
in regard to hire within the meaning of Section 8(a)(3). Such
discrimination is proved by showing that (1) the employer is
covered by the Act; (2) that the employer at the time of alleg-
edly illegal conduct was hiring or had concrete plans to hire; (3)
that antiunion animus contributed to the decision not to con-
sider, interview or hire an applicant; and (4) that the applicant
was a bona fide applicant, NLRB v. Ultrasystems Western Con-
tractors, 18 F.3d 251, 256 (4th Cir. 1994), enf. in part denying
enf. in part and remanding Ultrasystems Western Contractors
[I], 310 NLRB 545 (1993), quoted in Ultrasystems Western
Contractors [II], 316 NLRB 1243 (1993). Pursuant to Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (lst Cir.
1981), the General Counsel must show that antiunion sentiment
was a substantial factor in the employer’s decision. If he does
so, the employer must prove its affirmative defense that it
would have taken the same action even if the employees had
not engaged in protected activity.
In the instant matter, Respondent does not dispute that it was
covered by the Act. The record shows that it hired a number of
employees soon after the union members applied for employ-
ment, albeit through temporary labor agencies. The General
Counsel has also established that the six union members were

11 Two card signers, Mike Licht and Scott Chambers, who still work
at Tim Foley Plumbing, testified for Respondent. Even if I found their
testimony regarding the circumstances under which they signed their
cards completely credible, I would find that the union representatives
did not mislead them as to the purposes of the card. Moreover, I find
that their recollection of the card signing was selective in a manner
calculated to mollify Tim Foley.
bona fide applicants. All were experienced licensed plumbers
as well as pipefitters.12
Inferences of animus and discriminatory motivation may be
warranted under all the circumstances of a case, even without
direct evidence, 3E Co., 322 NLRB 1058, 1062 (1997). I infer
animus and discriminatory motivation in the instant case. It is
undisputed that Tim Foley knew the applicants were union
members who intended to assist the organizing drive then under
way in his company. The Union made sure he knew that by
having the applicants dress in union T-shirts and writing “vol-
untary union organizer” on the top of their applications.
Foley’s decision to stop accepting employment applications at
its office was made to prevent a repetition of the August 22
incident and is direct evidence of antiunion animus.
I infer animus and discriminatory motivation from Respon-
dent’s sudden, temporary, and exclusive reliance on temporary
labor agencies and subcontractors for all its manpower needs.
Although Foley had used such agencies in the past, it has not
done so, with one exception, for over a year and half prior to
the arrival of the salts. After a few months of relying exclu-
sively on temporary agencies and subcontractors, Foley Plumb-
ing went back to the direct hire of experienced plumbers. I
conclude that its decision not to directly hire any employees
between August 22, and late November was made so it could
avoid hiring any union supporters and to provide a defense to
the unfair labor practice charges it expected to be filed.13
Therefore, I find that the General Counsel has met its burden of
establishing the violation of Section 8(a)(1) and (3) alleged in
paragraph 6 of the complaint.
Respondent has not proffered an affirmative defense other
than that it could spare itself significant administrative costs by
using temporary labor agencies and that it wanted to avoid lay-
offs in the future. However, Foley has offered an insufficient
explanation as to why these advantages became determinative
for all its hiring decisions between August 22 and November
24, when they were outweighed by other considerations both
before and after this period. I therefore reject as pretextual
Respondent’s assertion that the alleged discriminatees were not
hired or considered for hire because Foley was utilizing only
employees of temporary labor agencies, without any discrimi-
natory motive. Although Respondent was in contact with some
of these agencies on the day before the union applicants came
to its office, it was already aware of the organizing campaign
and may well have anticipated a “salting” attempt.
Respondent Violated Section 8(a)(1) in Changing its Hiring
Policies by Requiring Applicants to Apply Through Indiana
12 Respondent contends the six were not protected by Sec. 7 because
they were “salts,” a notion rejected by the Supreme Court in NLRB v.
Town & Country Electric, 116 S.Ct. 450 (1995). Respondent’s conten-
tion that these applicants merely wished to trap Respondent into com-
mitting unfair labor practices is completely unsupported in this record.
Moreover, assuming that this was part of their motivation in applying
for work at Foley, they were still protected by the Act, M. J. Mechani-
cal Services, 324 NLRB 130 (1997).
13 Foley needed additional labor within the 30 days following the
applications of the union salts. If he ignored the “salts” and hired
plumbing employees directly, the General Counsel would have a more
obvious prima facie case of discrimination.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1438
Work-force Development after the Visit by the “Salts”
on August 22
Respondent changed its hiring policy in response to the visit
from the union applicants and to deter future salting efforts. It
ceased accepting employment applications at its office and
required applicants to go through Indiana Workforce Develop-
ment. When an employer implements such a policy with the
purpose of restricting or preventing employees from engaging
in protected activity, Section 8(a)(1) has been violated, Tulatin
Electric, 319 NLRB 1237 (1995).
The Indiana Workforce Development office in Muncie is
sufficiently close to Respondent’s office that the policy does
not, at first blush, appear to impose any hardship on applicants.
However, for almost 2 months after Respondent implemented
this policy, it would have been impossible for an employee to
apply for a job through Indiana Workforce Development be-
cause Respondent had not placed a job order with that agency.
Moreover, the change was not an isolated violation of the Act,
it was part of Respondent’s effort to discredit the Union prior to
the election. This effort included the refusal to consider union
members for hire and the concerted effort to weaken the Union
undertaken by Richey Harper, Xidex Corp. v. NLRB, 924 F.2d
245, 253 (D.C. Cir. 1991).
Tim Foley Violated Section 8(a)(1) by Telling Richard Howard
that after the Election, Employees would be Driving their Own
Vehicles to Jobsites, Rather than Company Vehicles as they
had on Some Occasions in the Past
I conclude that Tim Foley’s preelection conversation with
Richard Howard regarding whether employees should be com-
pensated for driving to jobsites in company vehicles violated
Section 8(a)(1). The import of the remark was that if the Union
won, Respondent would no longer allow employees to drive
company vehicles to work, as they had at least in some in-
stances. The use of these vehicles was a significant benefit to
employees and Foley’s remark constitutes a threat to withhold
this benefit if employees selected the Union. Foley’s remark to
Howard is also consistent with threats made by Richey Harper
to a number of employees.
Respondent did not Violate Section 8(a)(1) in September 1997
Through the Remarks of Jeffrey Payne
I have found that Jeffrey Payne, a fellow contractor, invited
by Tim Foley to address Respondent’s employees, and dispar-
aged the Union and its supporters by saying that certain indi-
viduals were silly to let the Union dress them up and make
them look like targets. I find that Payne was an agent of Re-
spondent. However, his remark is somewhat ambiguous and
does not imply a threat of retaliation by Respondent. I there-
fore dismiss the allegation of an 8(a)(1) violation by Payne.
Respondent by Kenneth R. (Richey) Harper Jr. violated Section
8(a)(1) as Alleged in Paragraph 5 of the Complaint
As alleged in paragraph 5, I have concluded that Kenneth R.
(Richey) Harper Jr. threatened employees that their wages
would be decreased if they selected the Union, interrogated
employees about their union sympathies and the union sympa-
thies of others, and told employees that Respondent would shut
down or sell its equipment if they selected the Union and that
employees who did not support the Union would be “looked
out for,” i.e., granted unspecified benefits. Harper also in-
formed employees that selecting the Union would be futile
because Respondent would never sign a collective-bargaining
agreement.
Harper’s statements are violations of Section 8(a)(1) only if
they are imputable to Respondent. The General Counsel con-
tends they are imputable because Harper was a supervisor; I
agree. I also conclude that John Adams, whose eligibility to
vote in the representation election was challenged by the Un-
ion, is a supervisor.
The Alleged Supervisory Status of Richey Harper and
John Adams
Respondent concedes that its employees were told by Tim
Foley to do what Richey Harper and John Adams told them to
do and to direct any questions to Harper or Adams. However,
it denies that Harper or Adams was a supervisor or an agent of
Tim Foley Plumbing. Foley contends Harper was merely a
journeyman and that Adams was merely an apprentice with an
unusually wide range of skills. Tim Foley was on his com-
pany’s jobs very rarely when his employees were performing
plumbing work.14 Respondent submits that Harper and Adams
were merely two of several employees who were sometimes
Tim Foley’s “extension on the jobsite” when Foley was not
present. However, Harper and John Adams differed from other
Foley employees in a number of respects. Jobs that had pro-
gressed to the point where plumbing work was being done were
usually supervised by either Harper or Adams. They both car-
ried business cards identifying them as project managers of Tim
Foley Plumbing. Owner Foley was aware they carried such
cards.15
Although both Adams and Harper worked with plumbers’
tools at times (estimated from 5 to 50 percent of the time by
various employees with respect to different jobsites), their pri-
mary responsibility was insuring that the Company’s work was
done on time and properly. They spent most of their time
watching other employees work, dealing with other contractors,
and doing other nonmanual tasks. Adams, who was not a li-

14 In July or August, Tim Foley began doing manual production
work after some period of time in which he did not work with plumbing
tools.
15 In an employment verification form, Foley described Adams as “a
plumbing supervisor over approximately 10 service plumbers.” When
another contractor in a letter of complaint about Adams described him
as Foley’s “field superintendent,” Foley did not inform the contractor
that its characterization was incorrect.
While Foley employees were working on a 6-month long project at
the Autumn Ridge apartment complex in Anderson, Indiana, Adams
conducted weekly tailgate meetings. Although Adams was not a li-
censed journeyman plumber, he checked the work of Respondent’s
journeymen and gave them work assignments.
Foley informed Scott Mitchell and Richard Howard that Harper was
their supervisor. During Respondent’s work at the Super 8 motel in
Frankfort, Indiana, Harper, after talking to a motel representative, in-
structed an apprentice to move several bath tubs that the apprentice had
already installed. Adams stopped by the Frankfort Super 8 one day and
ordered two apprentices to come with him. He took the two to another
job where he directed their work.
TIM FOLEY PLUMBING SERVICE 1439
censed journeyman plumber, was Respondent’s highest-paid
plumbing employee, making $19.75 per hour in August. Ad-
ams had expertise in many different aspects of construction,
which distinguished him from Foley’s other plumbers. Harper
was the second highest-paid plumbing employee at $18.50 per
hour.
Bob Baker, a journeyman, was paid $17 hour. Several other
journeymen plumbers were paid $15 per hour. Baker, other
journeyman, and some apprentices were at times in charge of
the projects on which they were working, but only if Harper or
Adams were not present.16 Moreover, there is no evidence that
any employees other than Harper and Adams were in charge of
more than one job at a time, or that any other employee exer-
cised supervisory duties on a regular and substantial basis.
Section 2(2) and (3) of the Act defines “employee” broadly,
with certain exclusions, one of which is “supervisors.” Any
party contending that a worker falls within the statutory exclu-
sion of supervisors carries the burden of proof on that issue,
Adco Electric, 307 NLRB 1113, 1120 (1992).
Pursuant to Section 2(11) of the Act, a supervisor is one who
has authority to hire, transfer, suspend, lay off, recall, promote,
assign, reward, discipline, or discharge other employees, or
responsibly to direct them, or to adjust their grievances, or ef-
fectively to recommend such action, if the exercise of such
authority is not merely routine or clerical, but requires the use
of independent judgment. Providence Hospital, 320 NLRB
717, 731–733 (1996), enfd. Providence Alaska Medical Center
v. NLRB, 121 F.3d 548 (9th Cir. 1997); Washington Nursing
Home, 321 NLRB 366 (1996).
Possession of one or more of these powers establishes super-
visory status, if the exercise of this authority requires the use of
independent judgment. In determining whether a worker is a
“supervisor,” however, one must keep in mind that there are
highly skilled employees whose primary function is physical
participation in the production or operating processes of their
employer’s business and who incidentally direct the movements
and operations of less skilled subordinate employees. These
artisans have a close community of interest with their less ex-
perienced coworkers and the Board has consistently declined to
deem them supervisors rather than employees, Southern
Bleachery & Prints Works, Inc., 115 NLRB 787, 791 (1956),
enfd. 257 F.2d 235, 239 (4th Cir. 1958). Moreover, an em-
ployee who possesses supervisory authority during a sporadic
and insignificant portion of his working time does not fall
within the statutory definition of “supervisor,” Gaines Electric
Co., 309 NLRB 1077, 1078 (1992).
I conclude that the General Counsel has established that
Harper was a supervisor of Tim Foley Plumbing. Harper regu-
larly and during a substantial portion of his working time at
Foley exercised independent judgment in directing the work of
other employees. He also exercised independent judgment in
recommending the discipline of Respondent’s employees.

16 For example, Mike Licht, who still works for Foley, testified that
if he were in charge of a jobsite, he would communicate directly with
Tim Foley. If, however, Adams were on the jobsite, Licht would com-
municate with Foley through Adams. Licht also testified that Adams
did not perform manual labor.
Therefore, statements made to employees by Harper that vio-
lated Section 8(a)(1) are imputable to Respondent.17
John Adams is also a Supervisor of Respondent
The General Counsel does not allege any statutory violations
by John Adams. Adams’ status is an issue as a result of the
Union’s challenge to his right to vote in the representation elec-
tion. As with Harper, the General Counsel has established that
Adams regularly and during a substantial portion of his work-
ing time at Foley exercised independent judgment in directing
the work of other employees. The record also shows that Ad-
ams exercised independent judgment in transferring employees
from one jobsite to another, or that he could effectively recom-
mend such transfers to Tim Foley. He also could effectively
recommend the disciplining of other employees.
Respondent did not violate Section 8(a)(1) by Stephen
LePage’s remark that Foley would not make loans to employ-
ees without consulting the Union, if employees selected the
Union as their bargaining representative.
I conclude that Respondent did not violate the Act through
LePage’s statement that if employees selected the Union, he
would advise Tim Foley not to loan money to employees with-
out consulting the Union. LePage’s statement explained a po-
tential change in the relationship between Foley and his em-
ployees, that does not constitute a threat of reprisal, Tri-Cast,
Inc., 274 NLRB 377 (1985); Ben Venue Laboratories, 317
NLRB 900, 901 (1995). Indeed, it might be inadvisable for
Foley to continue to give loans unilaterally if his employees are
represented by the Charging Party. Unilaterally giving loans to
some employees and not others, for example, might expose
Respondent to the potential allegations of discriminatory con-
duct.
Respondent’s unfair labor practices between the filing of the
representation petition and the election warrant setting aside the
election.
The Board’s policy is to set aside an election whenever an
unfair labor practice occurs during the critical period between
the filing of the representation petition and the election. There
is a limited exception to this policy, however, in situations
where the misconduct is de minimis with respect to affecting
the results of an election, Video Tape Co., 288 NLRB 646 fn. 2,
665 (1989). In the instant case Respondent committed several
unfair labor practices during this critical period, some of which
occurred just prior to the election. Several employees were
aware of these violations and as the Union lost the election by
only one vote, the violations cannot be deemed not de minimis;
therefore I conclude that the Union’s objections have sufficient
merit to set aside the election of September 18.18
An order requiring Respondent to bargain with the Union is
not warranted.
17 The fact that Tim Foley allowed Harper to carry a business card
calling himself a “project manager,” or that Foley sometimes referred
to Harper as a supervisor is not dispositive of his status. The same is
true with respect to Adams.
18 Respondent’s discriminatory refusal to consider the union salts for
hire may also have influenced the outcome of the election. If two had
been hired, they may have been eligible to vote and tipped the outcome
of the election in the Union’s favor.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1440
The General Counsel seeks a bargaining order to remedy Re-
spondent’s statutory violations during the period between the
filing of the representation petition and the election. Pursuant
to NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), there are
two categories of cases in which the Board may issue such an
order. “Category I” cases are those marked by outrageous and
pervasive unfair labor practices. “Category II” cases are less
extraordinary cases marked by less pervasive practices which
still have the tendency to undermine majority strength and im-
pede the election process.
I Conclude that the Instant Case satisfies neither the “Category
I” nor “Category II” Criteria
To warrant the issuance of a bargaining order in “Category
II” cases, (1) the union must have had majority support within
the bargaining unit at some time; (2) the employer’s unfair
labor practices must have had the tendency to undermine
majority strength and impede the election process; and (3) the
possibility of erasing the effects of past unfair labor practices
and ensuring a fair rerun election by use of traditional remedies
is slight, and the once-expressed sentiment in favor of the union
would be better protected by a bargaining order, CWI of Mary-
land, Inc., 321 NLRB 698, 709–710 (1996), enfd. 127 F.3d
319, 333–334 (4th Cir. 1997).
The Union had the Support of a Majority of Employees in the
Bargaining Unit as of August 18
By August 18, when Scott Chambers signed an authorization
card, the Union had the support of 10 of the 19 members of the
bargaining unit. By September 2, it obtained authorization
from two more employees to represent them.
Respondent’s Unfair Labor Practices had the Tendency to Un-
dermine the Union’s Majority Strength and Impede the
Election process
Respondent’s unfair labor practices, particularly the remarks
made to employees by Richey Harper, had the tendency to in-
timidate employees, particularly the apprentice plumbers to
whom they were directed. Moreover, they were disseminated
to an extent throughout the small bargaining unit. These re-
marks thus had a tendency to undermine the Union’s support.
Tim Foley’s refusal to consider union applicants for hire may
have directly affected the outcome of the election process. If
two union applicants had been hired they may have provided
the margin of victory for the Union in the September 18 elec-
tion.
It has not been Established that the Possibility of Erasing the
Effects of Past Unfair Labor Practices and Ensuring a Fair
Rerun Election by use of Traditional Remedies is Slight
The fact that Richey Harper, who committed many of the
violations herein, no longer works for Respondent, weighs
heavily in my conclusion that the effects of past unfair labor
practices may be erased by traditional remedies. While Owner
Tim Foley committed unfair labor practices by discriminating
against the union “salts,” by changing his employment applica-
tion policy and threatening Richard Howard with loss of the use
of company vehicles, these violations can be cured by remedies
such as backpay, offering employment to “salts” who would
have become Foley employees but for the discrimination, a
return to the status quo ante with regard to employment appli-
cations and the posting of a notice.
Unlike many cases in which a bargaining order is issued,
Foley did not discharge any union advocates either before or
after the election. Although the refusal to hire union job appli-
cants is a serious violation of employees’ Section 7 rights, it is
not clear that in this case it had a similar intimidating effect as a
discriminatory discharge. Foley employees may not have ap-
preciated the fact that the appearance of new temporary agency
employees, and only temporary agency employees, on their
jobsites from late August to late November, was motivated by a
desire to avoid hiring union applicants.
CONCLUSIONS OF LAW
1. By threatening employees with the loss of wages and other
benefits, Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.
2. By coercively interrogating employees about the union
membership, activities, and sympathies of themselves and oth-
ers Respondent violated Section 8(a)(1).
3. By threatening employees with closing the business if they
selected the Union as their collective-bargaining representative,
Respondent violated Section 8(a)(1).
4. By indicating that employees who opposed the Union
would be “looked out for,” Respondent violated Section
8(a)(1).
5. By indicating that it would never sign a collective-
bargaining agreement with the Union, Respondent violated
Section 8(a)(1).
6. By refusing to consider for hire applicants William Fort-
wengler, Gregg Slentz, Daniel S. (Steve) Small, Denny R.
Smith, Stacy L. Stockton, and James M. Salmon, since August
22, Respondent violated Section 8(a)(1) and (3).
7. By changing its hiring policies on August 22, by requiring
employees to apply through Indiana Workforce Development,
Inc., rather than at its offices, Respondent violated Section
8(a)(1).
8. Richey Harper Jr. and John Adams were, at all material
times, supervisors within the meaning of Section 2(11) of the
Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that the Respondent violated Section 8(a)(1)
and (3) of the Act by refusing to consider six applicants for
employment, I shall order Respondent to consider them for hire
and to provide backpay to those whom it would have hired but
for its unlawful conduct. In addition, if at the compliance stage
of this proceeding it is determined that the Respondent would
have hired any of the six employee applicants, the inquiry as to
the amount of backpay due these individuals will include any
amounts they would have received on other jobs to which the
Respondent would later have assigned them. Finally, if at the
compliance stage it is established that the Respondent would
have assigned any of these discriminatees to current jobs, Re-
TIM FOLEY PLUMBING SERVICE 1441
spondent shall hire those individuals and place them in posi-
tions substantially equivalent to those which they would have
been hired for initially.
I further recommend that the election held September 18,
1997, be set aside and that Case 25–RC–9699 be remanded to
the Regional Director for Region 25 for purposes of conducting
a new election at such time as he deems that circumstances
permit a free choice of bargaining representatives.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended19
ORDER
The Respondent, Tim Foley Plumbing, Inc., Muncie, Indi-
ana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to consider for hire applicants on the
basis of their union affiliation or based on Respondent’s belief
or suspicion that they may engage in organizing activity once
they are hired.
(b) Refusing to accept employment applications at its Mun-
cie, Indiana office.
(c) Threatening employees with the loss of wages and other
benefits if they select the Union as their collective-bargaining
representative.
(d) Interrogating employees about their union membership,
activities, and sympathies of themselves and others.
(e) Promising employees unspecified benefits if they did not
support the Union.
(f) Threatening employees with the closing of the business or
other reprisals if they select the Union as their collective-
bargaining representative.
(g) Informing employees that it would be futile to select the
Union as their collective-bargaining representative because
Respondent would never sign a contract with the Union.
(h) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make whole any of the following job applicants for any
losses they may have suffered by reason of Respondent’s dis-
criminatory refusal to consider them for hire as determined in
the compliance stage of this proceeding. Offer those appli-
cants, who would currently be employed but for Respondent’s
unlawful refusal to consider them for hire, employment in posi-
tions for which they applied. If those positions no longer exist,
Respondent must offer these applicants substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges to which they would have been entitled if they had
not been discriminated against by Respondent:

William Fortwengler, Gregg Slentz, Daniel S. (Steve) Small,
Denny R. Smith, Stacy L. Stockton, and James M. Salmon

19 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.

(b) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records social security payment records, timecards, person-
nel records and reports, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this Order.
(c) Within 14 days after service by the Region, post at its
Muncie, Indiana facility, copies of the attached notice marked
“Appendix.”20 Copies of the notice, on forms provided by the
Regional Director for Region 25, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since August 18, 1997.21
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint is
dismissed insofar as it alleges violations of the Act not specifi-
cally found.

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 the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT fail or refuse to consider for hire applicants
on the basis of their union affiliation or based on our belief or
20 If this Order is enforced by a judgment of the United States Court
of Appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
21 The first unfair labor practices committed by Richey Harper oc-
curred about August 18.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1442
suspicion that they may engage in organizing activity once they
are hired.
WE WILL NOT refuse to distribute or accept employment
applications at our Muncie, Indiana office.
WE WILL NOT threaten employees with the loss of wages
or other benefits or other reprisals if they support the Union.
WE WILL NOT interrogate employees about the union
membership, activities and sympathies of themselves or others.
WE WILL NOT promise employees benefits if they reject
the Union.
WE WILL NOT inform employees that it would be futile for
them to select the Union by indicating that we would never sign
a contract with the Union.
WE WILL NOT in any other manner interfere with, restrain,
or coerce you in the exercise of the rights guaranteed you by
Section 7 of the Act.
WE WILL make whole, with interest, those of the applicants
named below who, as determined in an NLRB compliance
proceeding, are found to have suffered economic loss as a result
of our failure and refusal to consider them for hire:
William Fortwengler, Gregg Slentz, Daniel S. (Steve) Small,
Denny R. Smith, Stacy L. Stockton, and James Salmon.
WE WILL offer those applicants listed above who would be
currently employed by us, but for our unlawful refusal to con-
sider them for employment, employment in positions for which
they applied. If those positions no longer exist, we will offer
them employment in substantially equivalent positions, without
prejudice to seniority or any other rights or privileges to which
they would have been entitled if we had not discriminated
against them.
WE WILL notify in writing all applicants listed above that
any future job application will be considered in a nondiscrimi-
natory manner.
TIM FOLEY PLUMBING SERVICE, INC.