Titus Electric

National Labor Relations Board - Board Decisions

Sep 30, 2010

355 N.L.R.B. 1357 (N.L.R.B. 2010)

TITUS ELECTRIC CONTRACTING, INC.
355 NLRB No. 222
1357
Titus Electric Contracting, Inc. and International
Brotherhood of Electrical Workers Local 520.
Cases 16–CA–21010–2, 16–CA–21598, 16–CA–
21598–2, 16–CA–21613, 16–CA–21694, 16–CA–
21701, 16–CA–21732, 16–CA–21819, 16–CA–
21840, 16–CA–21852, 16–CA–21951, 16–CA–
21951–2, 16–CA–21973, 16–CA–21978, 16–CA–
21978–2, 16–CA–21978–3, and 16–CA–22035
September 30, 2010
DECISION AND ORDER AND ORDER
REMANDING
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
On January 17, 2003, Administrative Law Judge Par-
gen Robertson issued the attached decision. The Re-
spondent, the General Counsel, and the Charging Party
filed exceptions and supporting briefs. The Respondent
filed an answering brief to the General Counsel’s excep-
tions and the Charging Party’s exceptions, and the
Charging Party filed an answering brief to the Respon-
dent’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 below, and to adopt the recommended Order as
modified and set forth in full below.2 In order to expe-
dite the issuance of this decision, we have decided to
sever the allegation pertaining to the Respondent’s dis-
charge of employees Phillip Lawhon and John Blair and
to reserve that issue for separate resolution.

1 The parties have excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard 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.
No exceptions were filed to the judge’s findings that the Respondent
did not violate Sec. 8(a)(3) and (1) of the Act by refusing to hire union
applicants Jack Wayne King and Keith Richards. We therefore adopt
those findings.
We have amended the caption to reflect the correct name of the Un-
ion.
Having adopted the judge’s finding that the Respondent violated
Sec. 8(a)(1) by interrogating employees about their union sympathies
and activities, we find it unnecessary to pass on the General Counsel’s
exceptions regarding alleged additional incidents of unlawful interroga-
tions not found by the judge. Such violations would be cumulative and
would not materially affect the remedy or Order.
2 We have modified the judge’s recommended Order and notice to
employees to more closely conform to the violations found and to the
Board’s standard remedial language.
A. The Respondent’s Enforcement of Its
Appearance Policy
For the reasons set forth by the judge, we adopt the
judge’s finding that the Respondent violated Section
8(a)(1) by promulgating, and on several occasions en-
forcing, an appearance policy that essentially prohibited
employees from displaying or wearing any clothing that
contained logos, writing, or advertising, other than a Ti-
tus logo.
We also find that the Respondent violated Section
8(a)(1) by directing employee Michael Nolan to go home
to change out of a union shirt that he had worn to work.
The judge credited Nolan’s testimony that he had ob-
served other employees wearing shirts displaying non-
Titus logos and advertisements and that the Respondent
did not send those employees home to change their
shirts. Despite finding that the Respondent had sent
Nolan home to remove his union shirt, the judge failed to
make a specific finding whether this conduct violated the
Act. It is well established that, absent special circum-
stances, it is unlawful for employers to prohibit employ-
ees from wearing union insignia. See Republic Aviation
Corp., 324 U.S. 793, 801–803 (1945). Because no spe-
cial circumstances have been established here, we find
that the Respondent’s conduct violated Section 8(a)(1).3
Finally, and contrary to the judge, we find that the Re-
spondent constructively discharged employee Eddie Ed-
wards by informing him that he could not work unless he
removed his union shirt.
On April 19, 2002, Superintendent Kip Powell told
Edwards, who was wearing a union shirt, that he could
not wear the shirt at work and directed Edwards to go
home to change. Edwards responded that, because he
was not allowed to wear the union shirt, he quit.
In finding that the Respondent did not constructively
discharge Edwards, the judge found that Edwards was
not presented with a “Hobson’s Choice” of either aban-
doning his Section 7 rights or quitting his job. The
judge’s analysis centered on his view that “Edwards was
never threatened with discharge.”
Under the Hobson’s Choice theory of constructive dis-
charge, “an employee’s voluntary quit will be considered
a constructive discharge when an employer conditions an
employee’s continued employment on the employee’s
abandonment of his or her Section 7 rights and the em-
ployee quits rather than comply with the condition.”
Intercon I (Zercom), 333 NLRB 223, 223 fn. 4 (2001)

3 We shall provide a make-whole remedy for Nolan and leave to the
compliance stage the determination of whether he suffered any loss of
earnings or other benefits as a result of this violation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1358
(citing Hoerner Waldorf Corp., 227 NLRB 612, 613
(1976)).
Applying those principles, we find that, by telling Ed-
wards that he was not allowed to work until he went
home to change his shirt, the Respondent conditioned
Edwards’s employment on his abandonment of his Sec-
tion 7 right to wear clothing bearing union insignia in the
workplace. Although, as the judge found, the Respon-
dent did not explicitly threaten Edwards with discharge if
he continued to wear the union shirt, the Respondent’s
message was clear: Edwards would not be allowed to
work if he was wearing a union shirt. See Mayrath Co.,
132 NLRB 1628, 1630 (1961), enfd. in pertinent part 319
F.2d 424 (7th Cir. 1963) (finding that, when an employer
instructed employees to take off their union buttons or
“leave,” it “conveyed to the employees the idea that they
had no right to wear the buttons at work and gave them a
Hobson’s Choice of either foregoing the protected right
or being discharged” (footnote omitted)); see also Inter-
con I, supra; Hoerner Waldorf, supra.
Accordingly, we find that the Respondent construc-
tively discharged Edwards in violation of Section 8(a)(3)
and (1) of the Act.
B. The Refusal to Hire Allegations
Relying on the framework set forth in FES, 331 NLRB
9 (2000), supplemented 333 NLRB 66 (2001), enfd. 301
F.3d 83 (3d Cir. 2002),4 the judge found that the Respon-
dent violated Section 8(a)(3) and (1) of the Act by refus-
ing to hire Assistant Union Business Agent Rick Zerr.5

4 Under FES, supra at 12, in order to meet his initial burden, the
General Counsel must show:
(1) that the respondent was hiring, or had concrete plans to hire, at the
time of the alleged unlawful conduct; (2) that the applicants had ex-
perience or training relevant to the announced or generally known re-
quirements of the positions for hire, or in the alternative, that the em-
ployer has not adhered uniformly to such requirements, or that the re-
quirements were themselves pretextual or were applied as a pretext for
discrimination; and (3) that antiunion animus contributed to the deci-
sion not to hire the applicants. Once this is established, the burden
will shift to the respondent to show that it would not have hired the
applicants even in the absence of their union activity or affiliation.
[Internal footnotes omitted.]
5 In its exceptions, the Respondent contends that the General Coun-
sel did not properly plead refusal-to-hire and refusal-to-consider allega-
tions as to Zerr or, for that matter, any of the alleged discriminatees.
The Respondent points out that par. 16 of the eighth consolidated com-
plaint states that Zerr and other union applicants applied for work with
the Respondent; par. 17, however, which alleges that the Respondent
refused to hire and consider union applicants, refers to par. 15, which
concerns a different allegation. The General Counsel did not later
amend that complaint. In response to the Respondent’s Motion to
Strike the Briefs of the General Counsel and Charging Party, however,
the General Counsel submitted a reply brief to the judge explaining that
the reference to par. 15 instead of 16 was an inadvertent error.
It seems sufficiently clear, in these circumstances, that the General
Counsel intended to plead refusal-to-hire and refusal-to-consider alle-
The judge found that the Respondent decided not to
hire Zerr based on his union activities at a prior job,
which the judge found came to the Respondent’s atten-
tion through a report that Zerr had used his cell phone
while working on that job to conduct union business.
Specifically, the judge explained that he was “not per-
suaded that an employer may legally refuse to hire any-
one associated with a union on showing that it did so
because he was permitted to engage in union steward
business while working for a prior employer.”
Thus, the judge’s decision that the Respondent unlaw-
fully refused to hire Zerr implicitly centered on his find-
ing that the Respondent knew that Zerr had been using
his cell phone to conduct union business at his prior job.
The judge, however, did not discredit, or even mention,
record evidence weighing against that finding.
Specifically, Respondent Part-Owner Ty Runyan’s tes-
timony indicates that Supervisor Carl Jackson, who had
worked with Zerr at his prior job at Guy’s Electric, did
not tell Runyan that Zerr had used his cell phone to con-
duct union business on the job. According to Runyan,
Jackson told him that Zerr was “worthless” and that he
spent too much time talking on his cell phone while on
the job. Also, Jackson denied that he told Runyan that
Zerr had conducted union business on his cell phone.
This evidence, if credited, would support the Respon-
dent’s assertion that its decision not to hire Zerr was
based, not on his protected activity, but rather on reports
that Zerr had engaged in excessive cell phone usage at
his prior place of employment.
The record also contains evidence supporting the
judge’s finding of a violation, however. For example,
Eileen Fournier, who was a part-owner of Guy’s Electric,
testified that Runyan had asked her about Zerr and
whether he was a union steward, and she told him that he
was. She also told Runyan that Zerr “was performing
two jobs at once there, but he handled them quite effi-
ciently.” This evidence, if credited, would show that the
Respondent actually was aware of Zerr’s union activities
at Guy’s Electric.
Because the record contains contradictory evidence
that was not addressed or reconciled in the judge’s deci-
sion, we are severing and remanding to an administrative
law judge the issue of whether the Respondent violated
the Act by refusing to hire Zerr. On remand, the judge

gations as to Zerr and the other alleged discriminatees. The General
Counsel presented evidence at the hearing concerning those allegations,
and the Respondent presented rebuttal evidence. In short, we agree
with the judge that the issues were fully and fairly litigated. See fn. 33
of the judge’s decision. Accordingly, we reject the Respondent’s ar-
gument that the General Counsel’s inadvertent pleading error deprived
it of due process.
TITUS ELECTRIC CONTRACTING 1359
should make reasoned credibility resolutions to deter-
mine whether the Respondent, in deciding not to hire
Zerr, was aware that Zerr had served as a union steward
and/or that he had used his cell phone to conduct union
business during his previous employment. Such resolu-
tions are necessary to assess whether Judge Robertson
properly found that the Respondent, pursuant to its FES
rebuttal burden, failed to show that it would not have
hired Zerr even in the absence of his union activities or
affiliation.6
We also direct an administrative law judge, on remand,
to consider whether the Respondent violated Section
8(a)(3) and (1) by refusing to consider for hire and refus-
ing to hire applicant John Voight. Although Judge
Robertson made findings of fact regarding Voight’s ap-
plication for employment, he did not state any conclu-
sions with respect to the refusal-to-consider and refusal-
to-hire allegations. Therefore, we shall sever and remand
those allegations to an administrative law judge for fur-
ther consideration.
AMENDED REMEDY
The Respondent shall pay backpay to discriminatees
Eddie Edwards and Tommy Means in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).

6 The Respondent has also excepted to the fact that the judge’s
analysis of its failure to hire Zerr does not include an analysis of
whether Zerr was a bona fide applicant, as required by the Board’s
decision in Toering Electric Co., 351 NLRB 225 (2007). Although
Toering issued after the judge’s decision issued, the rules set forth in
Toering apply to all cases that were pending at the time of its issuance.
See id. at 234 fn. 56. Accordingly, we direct an administrative law
judge, on remand, to determine whether Zerr was a bona fide applicant
under Toering. Because this issue was not previously presented to the
judge, the parties shall have the opportunity to file briefs on the issue
and to request that the record be reopened for the purpose of presenting
evidence relevant to the Toering analysis.
We similarly remand to an administrative law judge the allegation
that the Respondent violated Sec. 8(a)(1) by photographing union pick-
eting on March 22, 2002. The Respondent contends that this allegation
must be dismissed because there is no evidence that any picketers were
employees under the Act, or that the photographing was observed by
any employees. In response, the Charging Party asserts that at least one
individual on the picket line, Zerr, was an “employee” (because he had
applied for work with the Respondent), and that he observed the photo-
graphing. However, the Board is remanding to an administrative law
judge the issue of whether union organizer Zerr was a bona fide appli-
cant under Toering, supra, a determination arguably relevant to, if not
necessarily dispositive of, the photographing allegation. Further, there
is apparently no record evidence indicating who else was on the March
22 picket line or who observed the photographing. In these circum-
stances, we remand this 8(a)(1) allegation to an administrative law
judge for further analysis once Zerr’s status as an applicant has been
resolved.
ORDER
The National Labor Relations Board orders that the
Respondent, Titus Electric Contracting, Inc., Austin,
Texas, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promulgating and enforcing an overly broad ap-
pearance policy prohibiting employees from displaying
or wearing any logos, writing, or advertising other than
“Titus shirts” or other articles issued and/or authorized
by the Respondent.
(b) Discriminatorily enforcing the overly broad ap-
pearance policy against employees displaying or wearing
insignia of the International Brotherhood of Electrical
Workers Local 520 (the Union), or any other labor or-
ganization.
(c) Sending employees home for wearing union insig-
nia.
(d) Constructively discharging employees by prohibit-
ing them from working unless they remove union insig-
nia.
(e) Threatening to telephone and/or telephoning the
police because of union picketing in a public area where
the Respondent does not have a property interest.
(f) Creating the impression that employees’ union ac-
tivities are under surveillance.
(g) Coercively interrogating employees about the Un-
ion or union activities.
(h) Unlawfully promulgating an overly broad oral no-
solicitation policy prohibiting employees from soliciting
while “on the job.”
(i) Discharging or disciplining employees because of
their union activities.
(j) Threatening employees with layoffs if the Union
continues to file unfair labor practice charges against the
Respondent.
(k) In any like or related manner interfering with, re-
straining, or coercing its 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) Rescind the unlawful appearance policy prohibiting
employees from displaying or wearing any logos, writ-
ing, or advertising other than “Titus shirts” or other arti-
cles issued and/or authorized by the Respondent.
(b) Rescind the unlawful oral no-solicitation policy
prohibiting employees from soliciting while “on the job.”
(c) Make Michael Nolan whole for any loss of earn-
ings and other benefits he may have suffered as a result
of the Respondent’s unlawful act of sending him home
for wearing union insignia on or about April 2, 2001,
with interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1360
(d) Within 14 days from the date of this Order, remove
from its files any reference to the Respondent’s unlawful
act of sending Nolan home for wearing union insignia
and, within 3 days thereafter notify Nolan in writing that
this has been done and that this act will not be used
against him in any way.
(e) Within 14 days from the date of this Order, offer
Eddie Edwards and Tommy Means full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
(f) Make Eddie Edwards and Tommy Means whole for
any loss of earnings and other benefits they have suffered
as a result of the discrimination against them, in the
manner set forth in the amended remedy section of this
decision.
(g) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges of
Edwards and Means, and within 3 days thereafter notify
Edwards and Means in writing that this has been done
and that the discharges will not be used against them in
any way.
(h) Preserve, and within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(i) Within 14 days after service by the Region, post at
it facility in Austin, Texas, copies of the attached notice
marked “Appendix.”7 Copies of the notice, on forms
provided by the Regional Director for Region 16, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-

7 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.”
rent employees and former employees employed by the
Respondent at any time since March 23, 2001.
(j) 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 the Respondent has taken to comply.
IT IS FURTHER ORDERED that the allegation that the Re-
spondent unlawfully discharged employees Lawhon and
Blair is severed from this case and reserved for separate
resolution.
IT IS FURTHER ORDERED that the allegations that the
Respondent unlawfully refused to hire Rick Zerr and that
the Respondent unlawfully refused to consider and hire
John Voight are severed from this case and remanded to
an administrative law judge for appropriate action as
described above.
IT IS FURTHER ORDERED that the allegation that the Re-
spondent unlawfully photographed union picketing is
remanded to an administrative law judge for appropriate
action as described above.
IT IS FURTHER ORDERED, because the Board has been
advised that Judge Pargen Robertson is retired, the issue
is remanded to Chief Administrative Law Judge Robert
A. Giannasi, who may designate another administrative
law judge in accordance with Section 102.36 of the
Board’s Rules and Regulations.
IT IS FURTHER ORDERED that the judge shall prepare
and serve on the parties a supplemental decision contain-
ing credibility resolutions, findings of fact, conclusions
of law, and a recommended Order concerning the sev-
ered allegations pertaining to employees Zerr and
Voight, and to the photographing of union picketing, as
appropriate on remand. Following service of the sup-
plemental decision on the parties, the provisions of Sec-
tion 102.46 of the Board’s Rules and Regulations shall
be applicable.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found or severed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

TITUS ELECTRIC CONTRACTING 1361
FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT unlawfully promulgate and enforce an
overly broad appearance policy prohibiting employees
from displaying or wearing any logos, writing, or adver-
tising other than “Titus shirts” or other articles issued
and/or authorized by the Respondent.
WE WILL NOT discriminatorily enforce the overly broad
appearance policy against employees displaying or wear-
ing insignia of the International Brotherhood of Electri-
cal Workers Local 520 (the Union), or any other labor
organization.
WE WILL NOT send employees home for wearing union
insignia.
WE WILL NOT constructively discharge employees by
prohibiting them from working unless they remove union
insignia.
WE WILL NOT threaten to telephone and actually tele-
phone the police because of union picketing in a public
area where we do not have a property interest.
WE WILL NOT create the impression that our employ-
ees’ union activities are under surveillance.
WE WILL NOT coercively interrogate employees about
the Union or union activities.
WE WILL NOT unlawfully promulgate an overly broad
oral no-solicitation policy prohibiting employees from
soliciting while “on the job.”
WE WILL NOT discharge or discipline employees be-
cause of their union activities.
WE WILL NOT threaten employees with layoffs if the
Union continues to file unfair labor practice charges
against us.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL rescind our unlawful appearance policy pro-
hibiting employees from displaying or wearing any lo-
gos, writing, or advertising other than “Titus shirts” or
other articles issued and/or authorized by the Respon-
dent.
WE WILL rescind our unlawful oral no-solicitation pol-
icy prohibiting employees from soliciting while “on the
job.”
WE WILL make Michael Nolan whole for any loss of
earnings and other benefits he may have suffered as a
result of our unlawful act of sending him home for wear-
ing union insignia.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to our unlaw-
ful act of sending Nolan home for wearing union insig-
nia, and WE WILL, within 3 days thereafter, notify Nolan
in writing that this has been done and that this act will
not be used against him in any way.
WE WILL, within 14 days from the date of the Board’s
Order, offer Eddie Edwards and Tommy Means full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make Eddie Edwards and Tommy Means
whole for any loss of earnings and other benefits they
have suffered as a result of the discrimination against
them.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Edwards and Means, and WE WILL,
within 3 days thereafter, notify Edwards and Means in
writing that this has been done and that the discharges
will not be used against them in any way.

TITUS ELECTRIC CONTRACTING, INC.

Edward B. Valverde, Esq. and Jamal Allen, Esq., for the Gen-
eral Counsel.
Brian Greig, Esq. and Tom Nesbitt, Esq., of Austin, Texas, and
Vincent T. Norwillo, Esq., of Solon, Ohio, for the Respondent.
David Van Os, Esq. and Matt Holder, Esq., of San Antonio,
Texas, for the Charging Party.
DECISION
PARGEN ROBERTSON, Administrative Law Judge. This matter
was heard in Austin, Texas, from September 23–27, 2002. On
the entire record, including my observation of the demeanor of
the witnesses, and after considering the briefs filed by Respon-
dent, the Charging Party, and the General Counsel, I make the
following findings
I. JURISDICTION
Respondent admitted that it is a Texas corporation, with an
office and place of business in Austin, Texas, where it is en-
gaged as an electrical contractor in the construction industry
performing commercial construction. Respondent admitted that
in the conduct of its business during the past 12 months it per-
formed services valued in excess of $50,000 for enterprises
such as the Omni Hotel and Hard Rock Café, located in Texas.
It did not admit that those enterprises are directly engaged in
interstate commerce. Respondent did admit that it has been an
employer at allmaterial times engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the National Labor
Relations Act (the Act).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1362
II. LABOR ORGANIZATION
Respondent stipulated that the charging party (the Union)
has been a labor organization within the meaning of Section
2(5) of the Act at material times.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Record Evidence
February 15, 2001
Michael Nolan sought employment with Respondent around
February 15 and he started work with Respondent on February
15.1 Greg Taylor gave Nolan a new employee orientation. Tay-
lor explained the no advertising provision of the dress code to
mean no alcohol, no tobacco, or no lewd or anything like that.
March 21
Michael Nolan filed internal union charges against another
Respondent employee on March 21. Nolan claimed that the
employee was an IBEW member working on a nonunion job.
Before driving away from work on March 21, Nolan told that
employee about filing the charge.
March 22
When Nolan arrived at work on March 22 Supervisor Joe
Lawrence told him to go to the shop. Lawrence said there had
been union business going on the job yesterday and it would
not happen on his job. At the shop, Ty Runyan2 then told Nolan
to go home for an hour so they could find another job for him.
Nolan went home and changed into an IBEW shirt. Nolan was
assigned to another job and the supervisor looked at his shirt
and asked if Ty had gone union.
March 23
When Nolan reported for work on March 23, his supervisor
told him that he could no longer wear his union shirt and that he
could wear a shirt advertising Titus or nothing. A notice (GC
Exh. 8) was attached to his paycheck on March 23.
Nolan’s supervisor held a meeting before work on March 23.
He told the employees they could no longer wear any adver-
tisement on any shirts whatsoever. It had to be a blank shirt or a
Titus shirt. When Nolan received his paycheck that day the
following memo was attached (GC Exh. 8):

To: All Titus Personnel

Message:

EFFECTIVE IMMEDIATELY, No advertising of ANY type
whatsoever is allowed by any Titus personnel on any of our
projects or company property or any company function. This
includes any type of clothing or other article with any type of
advertisement whatsoever, including logos, writing, or any
other form of advertising. The only exception to this is an un-
altered Titus shirt or other article issued and/or authorized by
the management of Titus Electric.

1 Respondent furnished Nolan with a copy of its general regulations
(GC Exh. 9). Included was a provision regarding advertising on cloth-
ing: “No lewd slogans nor advertising is allowed on any garments.
Plain T-shirts are acceptable.”
2 Respondent’s president and co-owner.
Other than Titus shirts, you may wear a blank shirt that meets
all other company requirements.
April 233
Michael Nolan noticed several employees wearing advertis-
ing shirts and he elected to wear his union shirt. Supervisor
Steve Borrego came to Nolan after lunch and told him to go
home and change his shirt.
November 15
Nolan Keith Richards has been a journeyman electrician for
over 20 years and a member of Local 520 for over 12 years. He
worked for Respondent’s predecessor employer, Guy’s Elec-
tric, on the Town Lake Community Event Center. His employ-
ment with Guy’s Electric ceased when Guy’s Electric went out
of business on November 8, 2001. Richards as well as John
Voight, Robert Biehle, Rick Zerr, Gordon Monk, and Lewis
Grimsley applied for work with Respondent on November 15.
All together there were 13 applicants that applied at the same
time with Richards. The majority of the 13 applicants wore
union T-shirts or other matter that identified them as being
affiliated with Local 520. Richards was wearing a black IBEW
shirt.
As the 13 approached Respondent’s office, Ty Runyan
stopped them and asked where they were going. Rick Zerr4 and
Robert Biehle told him everyone wanted to apply for work.
Runyan said they could not submit applications but they should
put their names on a list. Runyan limited the applicants in the
office at one time to groups of three. Richards was in the first
group of three, which also included Rick Zerr5 and Robert
Biehle. Richards gave Respondent his name and phone number
but he has never heard from Respondent.
John Voight testified that he is a journeyman electrician, li-
censed in Austin, Texas, for 3 years and he is a member of
Local 520. He applied for work with Respondent on several
occasions and the first of those occasions occurred on Novem-
ber 15, 2001. Approximately 12 others from the Union accom-
panied him including Robert Biehle.6 On each occasion that
Voight applied for work with Respondent, he wore a union
Local 520 T-shirt.
Gordon Monk recalled applying for work with Respondent
around the middle or end of November. Monk had been in the
Union since 1997 and was classified as JIW.7 He had an Austin
license. Monk went to Respondent’s office to get on its hiring

3 Nolan testified the date of this incident was April 23, 2001.
4 Ty Runyan testified that he elected not to offer a job to Rick Zerr
because he received a negative recommendation from Carl Jackson.
5 Carl Jackson testified that he recommended against hiring Rick
Zerr because Zerr was too slow and he talked too much on his cell
phone while operating machinery.
6 Ty Runyan testified there were two reasons why he never offered
work to Robert Biehle. He had worked with Biehle in the past and he
considered Biehle to be an arrogant individual that he did not like.
Secondly, he did ask Carl Jackson about Biehle’s work and Jackson
gave him a bad recommendation. Insufficient experience was noted as
to Biehle because Biehle did not have sufficient commercial experi-
ence.
7 Journeyman inside wireman.
TITUS ELECTRIC CONTRACTING 1363
list along with Mike Latterman, Nolan Keith Richards,8 Rick
Zerr, Robert Biehle, and a couple of others. Ty Runyan told
them to leave the office but after talking with Zerr, Runyan
permitted them to go inside, in groups of three. The hiring list
included each applicants name, experience, and phone number.
Rick Zerr is the union assistant business manager and organ-
izer. He is a journeyman electrician insider wireman (JIW). He
went to Respondent’s office to seek employment on November
15. Zerr was wearing an IBEW pencil clip. He recalled that
several others went with him including John Voight and Robert
Bowie. Zerr testified that he either wrote his name, address,
phone number, and years of experience on Respondent’s write-
in register or Respondent’s receptionist wrote it on the register.
He recalled that the group was allowed in the office three at a
time. Zerr also went to Respondent’s facility to apply for work
on later occasions.
Union organizer and business assistant, Robert Biehle,9 testi-
fied that he is a licensed master journeyman electrician. He first
sought employment with Respondent along with a group, on
November 15. Biehle was wearing a union cap on that occa-
sion.
November 29
John Voight along with a smaller group of people including
Robert Biehle applied with Respondent again on November 29,
2001. On both the occasions in November Voight and others
were permitted to write in the application register. The woman
that helped them in Respondent’s office said those write-ins
were good for 30 days. Voight10 and a couple more applicants
including Robert Biehle returned and applied again in mid-
December.
Around December 4
Jesse Gonzalez is a licensed journeyman electrician that first
applied for work with Respondent about 3 weeks before

8 Ty Runyan testified that he did not know Nolan Keith Richards but
he knew of him. Another applicant that was in the office when Richards
came in was Nick Lyons. When Runyan interviewed Lyons, Lyons told
him that Richards liked to fight. He said that Richards had gotten into it
with another employee on the Town Lake Event Center job. Runyan
checked with Carl Jackson and Jackson confirmed that Richards had
gotten into it with at least two employees.
9 Respondent supervisor, Carl Jackson, testified that he recom-
mended against hiring Biehle because Biehle had made a promise to
Guy’s Electric in order to persuade Guy’s to sign a union agreement.
Biehle and Mike Murphy promised the Union would send Guy’s all the
manpower it needed but the Union failed to follow through on that
promise. Instead, the Union was able to supply needed manpower only
occasionally. He never saw Biehle perform electrical services and was
unaware of Biehle’s ability as an electrician.
Mike Murphy testified that the Union never had an agreement with
Guy’s Electric to be the sole source of Guy’s electricians. Instead, that
contract called for the Union to be the first source of electricians know-
ing it would sometimes be necessary for Guy’s to go to other sources to
find a sufficient number of electricians. The Union never refused to
supply electricians to Guy’s to the extent it had electricians seeking
work.
10 Ty Runyan testified that Brian Kenke, who is the general manager
of Tradesmen’s office in Austin, told him that he shouldn’t hire John
Voight if he received Voight’s application because Voight was ex-
tremely unreliable.
Christmas 2001. Gonzalez has been a member of Local 520
since early October 2001. He accompanied his brother to Re-
spondent’s office to apply. Neither Gonzalez nor his brother
wore anything to identify themselves with the Union. He signed
his name, phone number, and listed his experience on Respon-
dent’s register. He returned to Respondent’s office to reapply
for work on several occasions. He never wore or did anything
to identify himself with the Union.
Greg Taylor phoned Jesse Gonzalez around December 21
and told Gonzalez to come in and fill out some paperwork.
Gonzalez was tested and interviewed by Greg Taylor and Ty
Runyan. The Union did not come up during those interviews
and Gonzalez did nothing to show that he was affiliated with
the Union. The previous employers that Gonzalez listed among
his experience for Respondent were not union employers.11
First Week in December
Around the first week of December, Alan Stockton applied
with Respondent. At that time, Stockton was not in the Union
and he did not identify himself as being with the Union. He
went to Respondent’s office along with several people from the
union hall. He was allowed in the office in a group of three and
left his name, address, and phone number. Ty Runyan then
phoned him and an interview was arranged for the following
day. Stockton wore an IBEW pencil clip to the interview. Noth-
ing was said about the Union during Stockton’s interview with
Runyan other than Runyan told him he would not be allowed to
wear anything to show his union affiliation and that he should
remove his IBEW pencil clip. Runyan told Stockton that Frank
Nerio12 and Carl Jackson had recommended him.13
Ty Runyan testified that he knew Stockton was a union
member when he hired him. He denied that he told Stockton he
would be sent to another Respondent job after Town Lake
Event Center job.
December 6
About 3 weeks after he was hired Gordon Monk wore an
IBEW shirt to work but the shirt was covered. During that day,
the IBEW logo became visible and Superintendent Kip Pow-
ell14 told Monk that he had to cover the logo.
Vice President Shelly Runyan testified about Respondent’s
policy regarding appearance. She said Respondent started out
with a no-tank tops rule. Then, because some guys wore rude
and vulgar T-shirts, the rule evolved into one prohibiting the
wearing of anything offensive to anybody. Then it evolved into
nothing offensive, no advertising, and finally Titus or blank

11 Former Foreman Frank Nerio testified that Jesse Gonzalez had
worked for Guy’s Electric but he did not know that Gonzalez was with
the Union.
12 Carl Jackson and Frank Nerio went to work for Respondent after
having worked for Guy’s Electric. Jackson and Nerio recommended
Stockton for work with Respondent. Jackson and Nerio testified to
knowing Stockton was a union member when he recommended to
Respondent.
13 Frank Nerio and Jackson were Stockton’s supervisors when he
worked for Guy’s Electric.
14 Ty Runyan testified that Kip Powell worked for him for a number
of years and he hired Powell knowing that Powell had a record of DWI
convictions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1364
shirt. She testified that the current policy of Titus or blank shirt
originated in the mid-1990s. That policy does permit manufac-
tures labels on clothing.
December 7
Ty Runyan phoned Kevin Gustin on December 7 and asked
if Gustin wanted to help him finish the Town Lake Event Cen-
ter job. Runyan said that he was taking over the job at Town
Lake Event Center and that Frank Nerio had recommended
Gustin.15 Runyan told Gustin that Frank Nerio and Carl Jackson
were working for him. He also testified that Frank Nerio had
told him Gustin was a union member. He asked Gustin to come
in the following Monday, December 10, and submit a job ap-
plication. Gustin has been a journeyman electrician since 1983.
He is a member of the IBEW and is licensed in Austin.
Ty Runyan testified that he hired Gustin on recommendation
from Jackson and Nerio. He testified that he knew Gustin was
Union before he hired him.
After completing his application on December 10, Gustin
was interviewed by Runyan. Gustin was offered work at $21.50
an hour. Gustin accepted the job and attended a safety lecture
by Greg Taylor. Taylor told him that he couldn’t wear union
stickers or anything on shirts, clothing, or hardhat except
maybe a safety sticker. Gustin started work on December 11.
December 12
Kevin Gustin’s foreman, Kip Powell, held a meeting among
his employees on December 12. Both Powell and Ty Runyan
were present and Runyan spoke16 to the employees. He said
that someone that worked for him came to him and complained
the Union had told him that if he did not fight Ty, the employee
could not stay there any longer. Runyan asked each of the em-
ployees if that employee was going to stick with him or if the
employee was going to do what the Union told him.
As mentioned above, Rick Zerr also went to Respondent’s
facilities to apply for work on occasion after November 15. One
such occasion was on December 12. Sherry Passmore, Raul
Garcia, and Alan Cantrell were with Zerr. Zerr walked in with
Passmore and pointed out that the receptionist would take
Passmore’s information. Greg Taylor told Zerr to get the hell
out of there; he had already done what he came to do. Zerr said
he wanted to wait while Sherry Passmore went through the
application process. Taylor said just get the hell out and get off
the property. Zerr waited out in the parking lot until Passmore
came out.

15 Supervisor Carl Jackson and former Foreman Frank Nerio admit-
ted that each of them recommended Gustin. Jackson and Nerio worked
for Guy’s Electric on the Town Lake Community Events Center job
before Guy’s went out of business. Both Jackson and Nerio testified
they knew that Gustin had picketed Guy’s Electric.
16 Ty Runyan testified that he spoke to employees about problems
Guy’s Electric had on the Town Lake Event Center job. He said that the
IBEW wanted to organize our Company (see R. Exh. 23) and he did not
want to encounter the type problem found at Guy’s. He spoke to em-
ployees at Town Lake Event Center job on another occasion because
employee Eric Mates said the IBEW had told him to sign on to salt the
Town Lake Event Center job or leave the job. Runyan denied that he
ever threatened to lay off people because of the Union.
Greg Taylor denied that he told Rick Zerr to get the hell out
of the office. He admitted questioning Zerr as to why he was in
Respondent’s office and that he asked Zerr to leave the office.
He and Zerr argued about Zerr leaving and Taylor opened the
door and asked Zerr to please leave. Zerr had already signed the
register.
Sherry Passmore is a journeyman electrician. Passmore ap-
plied for work with Respondent on December 12. She came to
Respondent along with a number of applicants from the Union
including Union Representative Rick Zerr and she wore things
to identify her as being with the Union. Passmore recalled she
may have had on a union shirt and she definitely wore a union
pencil clip sticking out of her pocket. She left her name with a
woman at Respondent’s office to be included in a log of appli-
cants for employment.17 While she was in the office, a man
came into the office from the back and told Rick Zerr to leave
the property. The man introduced himself as Greg Taylor. Pass-
more shook hands with Taylor and said that she just needed a
job. Taylor gave her his business card.
The day after December 12, Passmore phoned Respondent’s
office and left her phone number.
Early in Kevin Gustin’s employment with Respondent, Ty
Runyan asked him if he recommended Bobby LaSoya and
Sherry Passmore. Carl Jackson and Frank Nerio agreed that
Sherry Passmore was a good hand.
Both Carl Jackson and Frank Nerio testified they recom-
mended against hiring Sherry Passmore. Both Nerio and Jack-
son understood that Passmore had alcohol during lunch on one
occasion while working for Guy’s Electric.
Ty Runyan testified about Sherry Passmore. Respondent had
hired a number of former Guy’s Electric people that had
worked on the Town Lake Event Center job including Carl
Jackson and Frank Nerio. They considered Passmore because
she had submitted her name and told Respondent’s receptionist
that she worked for Guy’s on the Town Lake Event Center job.
Runyan phoned Carl Jackson. Jackson said that if Passmore had
submitted an application, Brad Doucette had probably submit-
ted an application as well and that we shouldn’t hire either one
of them. Jackson said that both Passmore and Doucette had
been drinking on the job during working hours. Runyan testi-
fied that he was unaware of Passmore being involved with the
Union.
Guy’s Electric president, Jean-Guy Fournier, testified that he
talked with Brad Doucette after the lunch incident between
Doucette and Sherry Passmore. The two arrived back late from
lunch and Doucette told Fournier that they decided they should
not go back on the job because they had a couple of beers too
many. They offered to return on Sunday if Fournier wanted or
on Monday. Fournier told them that was fine and they should
return on Monday. That conversation occurred outside Guy’s

17 Former Foreman Frank Nerio testified that he was asked about
Passmore and he rated her work as “average, pretty mediocre work.”
He said that she talked too much during work. Nerio also reported to
Respondent that Passmore was involved in an incident while working at
Guy’s Electric where she did not report back from lunch on time while
working on Saturday. One of the Guy’s Electric employees told Nerio
that he and Passmore had been drinking during lunch and were leaving
for the day.
TITUS ELECTRIC CONTRACTING 1365
Electric trailer. Frank Nerio was inside the trailer.18 According
to Jean-Guy Fournier, Nerio probably told Fournier that he
wanted to see Doucette and Passmore fired19 but Fournier re-
plied that he would take care of the matter. He denied saying
anything to Nerio to the effect that he was going to fire either
Doucette or Passmore. Fournier testified that he did not believe
that Carl Jackson was on the job on the day of the Doucette–
Passmore incident. He denied that he ever said anything to
Jackson to the effect that he had discharged Passmore. Guy’s
Electric never discharged Passmore.
Jean-Guy Fournier testified that his experience was that Carl
Jackson was very weak regarding truthfulness. Jackson was
Fournier’s project manager for 9 months.
Fournier testified that Rick Zerr worked for Guy’s Electric
and he found Zerr to be a valuable employee. He had no prob-
lems with Zerr’s performance. However, while Zerr worked for
Guy’s, Carl Jackson frequently complained about Zerr. Jackson
said things like Zerr was always on the phone; and Zerr didn’t
get his job done.
Jean-Guy Fournier testified that Nolan Keith Richards
played a big part in installing electrical gears on the second
floor of the Town Lake Event Center job and Richards was a
good employee.
December 20
John (Jack) Wayne King applied for work with Respondent
on December 20. King has been a Local 520 member as well as
a journeyman inside lineman, licensed in Austin, for 8 years.
John Kearn applied along with King. King did not recall wear-
ing any union paraphernalia when he applied for work. The
receptionist told King he needed to fill out a sign-in sheet.20 He
did that and handed the receptionist his resume21 (GC Exh. 14).
She went to the back, returned and told King that he could fill
out an application. He submitted the application, took a test and
left. Ty Runyan22 phoned King that same afternoon and asked
him to return for an interview. King told Runyan that he could
not come in that afternoon but that he would come in the fol-
lowing morning. He met with Runyan in the office the next
morning, talked and took another test. Runyan asked King if he
was ready to go to work. Runyan asked King how long he had
been on the books.23 King replied that he had been on the books

18 Eileen Fournier testified that Frank Nerio was in the trailer talking
with her while her husband, Jean-Guy Fournier, was outside dealing
with Doucette and Passmore.
19 However, Eileen Fournier testified that Frank Nerio did not say
that Passmore should be fired. When Jean-Guy Fournier came back into
the trailer, Nerio asked what was happening to Doucette and Passmore
and Jean-Guy said they were going home and that he had taken care of
the matter.
20 Ty Runyan testified that Respondent decided to use a sign-in sheet
in anticipation of a large number of applicants for the Town Center job.
The use of the sign-in sheet eliminated the need to have all applicants
complete a long application.
21 Some of the employers listed on the resume were union contac-
tors.
22 King was acquainted with Runyan. They had worked on a job to-
gether back in 1986.
23 King testified that Runyan was talking about the union sign-in
books.
for about 3 months. Runyan said that he would be contacting
King. However, King was never contacted.
Ty Runyan testified that he had worked with John Wayne
King some 18 years before. He saw King after King completed
his application and smelled alcohol on King’s breath. He de-
nied that King’s involvement with the Union played any part in
his decision against hiring him.
December 25
Jesse Gonzalez testified that he is a licensed journeyman
electrician that worked for Respondent from around Christmas
2001 until February 14, 2002. As shown above, he first applied
for work about 3 weeks before Christmas 2001.24 Gonzalez has
been a member of Local 520 since early October 2001. He was
hired as an unlicensed journeyman electrician. Gonzalez was
assigned to the Town Lake Event Center job under the supervi-
sion of Kip Powell.
December 27
About a month to a month and a half after Gordon Monk
first went in and included his name on the hire list, Ty Runyan
phoned Monk. Monk believed that it was December 27 when
Runyan called and told him to come in and fill out a job appli-
cation. Monk completed his application and left. Ty Runyan
phoned Monk again on January 2 and asked if he wanted a job.
Runyan and Monk arranged for Monk to come in the next day.
Early 2002
Sam Ramirez testified that he was a supervisor for Respon-
dent on its Austin Center job at the Omni Hotel. His crew at
one time included Phillip Lawhon and John Blair. Ramirez
testified that he enforced Respondent’s appearance and profes-
sionalism rule (GC Exh. 6) against a number of employees
including Sam Gresham, John Blair, and Phillip Lawhon. On
one occasion, Ramirez told Lawhon that he could not wear an
ESPN pullover and Lawhon asked if he could wear an IBEW
shirt the next day. Ramirez told him that he could not. On an-
other occasion, he told Lawhon that he could not have an
IBEW sticker on his tape measure. The sticker was similar to
the one identified as General Counsel’s Exhibit 7. Ramirez
recalled that Lawhon removed the sticker but he could not re-
call whether there was a brand under the sticker that identified
the product name.
January 3
Ty Runyan interviewed Gordon Monk on January 3. During
the interview Monk and Runyan discussed Monk losing his
home. Monk was assigned to the Town Lake Event Center job.
January 7
Rick Zerr testified that he picketed Respondent’s facility on
January 7. He carried signs stating unfair labor practice picket-

24 As shown above, Gonzalez is a licensed journeyman electrician
that first applied for work with Respondent about 3 weeks before
Christmas 2001. Gonzalez has been a member of Local 520 since early
October 2001. When he applied he accompanied his brother to Respon-
dent’s office. Neither Gonzalez nor his brother wore anything to iden-
tify themselves with the Union. He returned to Respondent’s office to
reapply for work on several occasions. Gonzalez never wore or did
anything to identify himself with the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1366
ing. A woman came out of Respondent’s office and told Zerr to
leave or she would call the police. The police arrived and after
talking with Zerr one officer went into the building. Then the
officer returned from the building with two other people and
the police met with Zerr and the people from Respondent’s
building. Then Greg Taylor came out and asked what it would
take to stop the picketing. Zerr replied that he would stop the
picketing if they would allow the people present to sign their
looking for work list. All agreed to that proposal. Zerr recalled
that he and Neil Johnson went in and signed Respondent’s job
register.
The police officers also told Zerr that Respondent claimed to
own the land up to 4 feet from the street and they felt it was
unsafe to picket that close to the street. Zerr testified the picket-
ing was moved to the north side of Yeager Lane and where
there was a big dirt area where the picketers parked. Zerr later
saw a plat showing a public use dedicated easement giving
sufficient room to picket on the same side of the street as Re-
spondent’s shop and the picketing resumed on that side of the
street.
John Voight’s first occasion to picket was January 7, 2002.
Voight recalled about a week later, while he was again picket-
ing Respondent’s facility, the police arrived. After looking at a
plat the police said the pickets had a right to picket.
John Blair who is an unlicensed journeymen electrician
started working for Respondent around January 7 or 8. He was
not a member of the Union. However, he signed a union au-
thorization card on January 16. After working at the Town Lake
Event Center job for about 3 weeks, he was transferred to Re-
spondent’s job at the Omni Hotel. Sam Ramirez was his super-
visor at the Omni.
Phillip Lawhon first applied for work with Respondent on
January 7. Lawhon had been a journeyman electrician for about
a year. Ty Runyan phoned Lawhon and left a message on
January 14. Lawhon went in and filled out his application on
January 15. He listed two union contractors—Guy’s Electric
and Hill Electric—on his application as previous employers.
Greg Taylor interviewed Lawhon that day. He asked Lawhon if
he had any plans of taking a call from the Union and if Lawhon
was going to stay with 520 or seek permanent employment with
Titus.
Greg Taylor testified that he did interview Lawhon. He was
questioned during the hearing as to whether he asked Lawhon if
he would take a call from the Union. He replied that would not
be out of the ordinary. “We are looking for long-term people,
so that does happen on occasion.”
Respondent’s project administrator, Delores Overstreet, went
out and told the picketers not to come on Respondent’s prop-
erty. Some of the men “charged across the street towards our
building . . . and I felt threatened, so I called the police.”
January 10
Sherry Passmore returned alone to Respondent’s office on
January 10, 2002, wearing the same union identification she
wore on December 12. She asked to be allowed to submit an
application for work. The woman in the office took Passmore’s
name, phone number, and years of experience.
Eddie Edwards applied for work with Respondent around the
second week of January. Edwards has been a union member for
about a year. He has held a license as journeyman electrician in
Austin for 2 or 3 years. When he applied, he told the reception-
ist that he formerly worked under Kip Powell. Powell had been
his supervisor on a job with Anchor Electric. Anchor Electric is
not a union shop. Greg Taylor interviewed Edwards. During
that interview, Taylor commented that the desired pay listed on
Edward’s application was $21.90 and that sounded like a
scale25 wage. Edwards replied that was a scale wage. Edwards
was hired and assigned to the Town Lake Event Center job.
January 15
Kevin Gustin wore a concealed tape recorder to work around
January 15. Ty Runyan spoke to the employees. Runyan said
soliciting for the Union on the job would not be tolerated. He
said the employees could discuss the Union off the job and at
home. Runyan also referred to Amway and Girl Scout cookies.
He said that he did not want any nasty messages on his answer-
ing machine from Mike Murphy of Local 520. After the meet-
ing, Runyan talked privately with Gustin. He asked Gustin to
talk to the guys about soliciting and he named Michael (Red)
Merker. Runyan said that Eric Mates told him that Gustin said
to Robert Biehle at the union hall that he was in the Union and
was going to stick with them. Gustin denied to Runyan that he
had said that to Biehle.
Tommy Means signed Respondent’s sign-in register seeking
employment on January 16. Greg Taylor phoned Means but
Means was unable to start the application process until January
22. He finished his application and test at Respondent’s office
and was introduced to Ty Runyan. One of the employers listed
on Means’s application was Guy’s Electric on its Randall’s
Store job. Runyan asked him if he had any dealings with the
organization that was going on at Guy’s. Means told Runyan
that he had not had any dealings with that organization. Runyan
looked over Means’s test results and said everything was alright
except the wiring of the three phase wide Delta. Means told
Runyan that he had no experience with motors and that his
entire experience had been with branch circuitry.
Runyan told Means the employees were required to wear ei-
ther Titus or plain apparel. Ty Runyan said that employees had
to work for 90 days before qualifying for fringe benefits and he
said that he would contact Means if they wanted him to come in
for the safety test.
January 17
Greg Taylor gave Phillip Lawhon his orientation on January
17. During that orientation Taylor discussed Respondent’s poli-
cies. Taylor said that employees were not allowed to wear any
type of advertisement. He said there would be no union shirts
and no Longhorn shirts. Ty Runyan called Lawhon aside and
talked with him in Runyan’s office. Runyan said that Lawhon’s
references came back from Guy’s Electric and Hill Electric. He
said that he been dealing with 520 for quite a while and that if
Lawhon wanted to be employed with them he would have to
just come to work and do his job. Lawhon went to work for

25 Greg Taylor testified that scale wage is a set dollar amount that is
set by the general contractor.
TITUS ELECTRIC CONTRACTING 1367
Respondent. He eventually worked on three jobsites. Those
were the Omni Hotel, Hard Rock Café, and Rollingwood.
As shown above, the police officers also told Rick Zerr ear-
lier in January that Respondent claimed to own the land up to 4
feet from the street and they felt it was unsafe to picket that
close to the street. Zerr later saw a plat showing a public use
dedicated easement giving sufficient room to picket on the
same side of the street as Respondent’s shop and the picketing
resumed on that side of the street. He showed that plat to the
police when they came out to the picketing site on January 17
and the police did not remove the pickets from Respondent’s
side of Yeager Lane.
Respondent’s project administrator, Delores Overstreet, was
asked about January 17. She testified that she did not recall the
specific date but she admitted that she called the police every
time she saw pickets. Overstreet testified it was not her intent to
have the pickets removed. Instead she intended to have the
picketing controlled.
Shelly Runyan is Respondent’s vice president. She handles
primarily PR, marketing, and administrative duties. She re-
called afternoon picketing on January 17. She went out and told
Rick Zerr that the picketers needed to stay off Respondent’s
property. Zerr replied that Ty Runyan had told them they could
be there. She then left to pick up her children at school.
January 20
Respondent’s project administrator, Delores Overstreet, was
asked about January 20. She did not recall the date but she did
recall there was a death threat made to Runyan. Overstreet de-
nied that anyone with Respondent ever told her to call the po-
lice to have the pickets removed from the property.
January 22
Greg Taylor phoned Tommy Means the evening of January
22 and they agreed that Means would return on Thursday. After
taking the safety test and urinalysis Means met with Greg Tay-
lor. Taylor went over some safety issues and Taylor mentioned
that Means must wear clothing marked with Titus or nothing.
Means asked about the “Oceans 11” shirt that he was wearing.
Taylor replied no that it would have to be “Titus or plain, be-
cause we’re having certain problems with the Union.” Means
was hired on Friday, January 25.
Greg Taylor denied telling Tommy Means he would have to
wear a Titus or plain shirt because we’re having problems with
the Union. He did admit discussing the appearance policy with
Means.
January 25
Ty Runyan talked with Tommy Means after he was hired on
January 25. Runyan said that he had done a background check
and found out through Sam Gresham26 that Means was union.
Ty Runyan said that his lawyer had told him to generate a com-
puter list and “I have all of you on this list by the highlighted
names that on the screen. And as you can see, your name is
right here.” Runyan mentioned other names including Gordon
Monk. Runyan said that “well, just like you, Trey Monk’s hav-

26 Before working for Respondent, Sam Gresham was the project
manager for Guy’s Electric on the Randall’s Store job.
ing his problems. He’s losing his house, having problems with
his family, a do as well as him (phon.), they need a job, and at
least with me, you’re not sitting on the bench.”
Runyan confirmed that he had a computer screen out while
talking with Tommy Means. He had a list of employees that
were Union that he had pulled up at his lawyer’s request. It was
for the purpose of responding to an unfair labor practice charge.
January 26
Phillip Lawhon wore an ESPN shirt to work on January 26.
Supervisor Sam Ramirez told him he would have to remove the
shirt. It was cold outside and Lawhon asked to keep on the
shirt. Ramirez allowed Lawhon to keep on the shirt until the
crew went into the building.
Late January
About 3 weeks after he was hired, Gordon Monk wore an
IBEW shirt that was covered. During that day the IBEW logo
became visible and Superintendent Kip Powell told Monk that
he had to cover the logo.
Sherry Passmore picketed in front of Respondent’s office on
more than one occasion beginning in late January 2002. She
was one of several pickets. Passmore first carried a sign saying
something to the effect of “Titus Unfair.” On later occasions,
she carried a sign protesting sex discrimination. She recalled
police arriving while she was picketing in the first part of Feb-
ruary. Passmore overheard a police officer say that someone
had phoned and said there was fighting in front of the business.
She testified there had been no fighting.
Scott Smith was Tommy Means’s foreman. Smith testified
that he talked to Ty Runyan about Means’s job performance.
Two or 3 days into his employment Smith told Runyan that
Means wasn’t performing quite up to Smith’s standards. He
was not what Respondent expected for journeyman skill level.
Smith talked to Runyan on several subsequent occasions. He
continued to tell Runyan that Means was not performing really
well.
January or February
Kevin Gustin recalled that he and others wore union stickers
and union pencil clips. Kip Powell told them they would have
to remove the union material or leave the job. The employees
removed the union clips. Gordon Monk testified that he along
with Kevin Gustin and Allen Hughes wore union shirts and
union logos on their hardhats in February.
Alan Stockton testified about a meeting Ty Runyan had with
him and Kevin Gustin about 2 months after Stockton was hired.
Runyan told the two of them that he did not want any talk about
union or anything. Ty Runyan said that it doesn’t matter if
Gustin and Stockton are union or nonunion, or Black or His-
panic, or what that he believed in equality like that. Runyan
also said that he wished all his employees would produce like
Gustin and Stockton.
Stockton wore an IBEW sticker on his hardhat beginning
some time in February. Several other employees also wore
IBEW stickers. Foreman Kip Powell came to the employees
and asked them to remove the IBEW stickers or they would
have to leave the job. Stockton and others including Kevin
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1368
Gustin removed the IBEW stickers. Stockton also passed out
flyers regarding the prevailing wages in May 2002.
Ty Runyan testified that employee Mike McCord was dis-
charged in January or February. McCord was not discharged
for discussing the Union on the job. Instead, McCord was ter-
minated for talking and not working. Runyan actually saw
McCord talking to another employee that was working. Runyan
called to McCord and asked if he was enjoying himself. Run-
yan notified McCord’s supervisor of the incident and the super-
visor, Kip Powell, confirmed that was typical of McCord. Run-
yan talked with McCord the following week after receiving a
report that McCord was again talking on the job instead of
working. After Runyan told McCord to go into conference
room one, McCord said that no one was going to talk to him
like that and McCord walked out the door. Runyan admitted
that he then talked to his employees about McCord’s termina-
tion. He also admitted that he had listened to a tape recording of
that talk to employees.
Runyan recalled that supervisors reported that employees
were wearing union stickers on hardhats and tape measures.
February 7
In February, Gordon Monk along with Kevin Gustin and Al-
len Hughes wore union shirts and union logos on their hardhats.
It was a cold day and their shirts were covered. Kip Powell
asked Monk what was with all the union stickers. Monk replied
it was their right to wear them and Powell said that its company
policy to remove them. Monk removed his IBEW sticker.
Kevin Gustin and Alan Stockton also removed their union
stickers.
Tommy Means wore a union T-shirt and union insignia on
his hardhat at work on February 7. Even though Means arrived
at work on time Supervisor Scott Smith said that he was late.
Means replied that if Smith were going to go there, he would
have to start by saying that he was wearing his union shirt and
an insignia on his hardhat. Smith said that he was going to have
to send Means home. Means said that he was going to see Ty
Runyan.
Scott Smith testified that Means came in wearing a union
shirt and he asked Means to take the shirt off. Means replied
that it was his right to wear the shirt. Smith sent Means to the
office and he phoned Ty Runyan to tell him that Means was on
the way up to the office. A couple of hours later Runyan
phoned Smith and told him that Means was coming back to the
job wearing a Titus shirt. Smith told Runyan that he wasn’t
expecting that and he really did not want Means back. Smith
said that Means’s performance was pretty poor, he’s pretty
rude, and he’s made some comment about suing the Company.
Ty told Smith to call him on the phone line.
After stopping by the union hall, Means went to Respon-
dent’s office. Runyan talked with Means in his office. He asked
Means if he had recording devices. Means denied having a
recording device and Runyan asked if his cell phone was on.
Means replied that his cell phone was on. Runyan questioned
Means about why he wore that shirt and he said that he would
give Means one more chance by giving him a Titus shirt.
Means said that he would buy two Titus shirts. Means said that
he wore the union shirt because that was his right.
Means went out of Runyan’s office to purchase two Titus
shirts. Runyan called him back into the office and asked if he
had threatened to sue the Company. Means admitted that he
had. Means had been complaining to Smith about how the
Company was putting wear and tear on his knees because of the
nature of his work assignments. Tommy Means told Runyan
that it was just an in-passing conversation between he and Scott
Smith regarding damage to his knees.
Runyan testified that Scott Smith sent Means to the office
because of a dress code violation and that Means agreed to
purchase two Titus shirts. Runyan phoned Scott Smith that he
was sending Means back to the job and Smith said that he
really did not want Means back on the job. Smith said that
Means was slow, he didn’t have the skills of a journeyman
electrician, and he had a smart mouth. He said that Means had
commented in front of other employees that he ought to sue the
Company. During a subsequent speakerphone conversation
involving Means, Smith, and Runyan, Means explained why he
had threatened to sue the Company. Runyan told him that he
would get back to him later.
Smith testified to a slightly different version of the speaker-
phone conversation. After Runyan asked Means if he threat-
ened to sue the Company, Means admitted he had because
Smith left him on a roof without a means of egress. Smith ex-
plained that he had actually asked Means if he could take his
lift for a while and that Means could have phoned him on his
cell phone if he needed the lift at any time. Actually, something
else came up and Smith never actually borrowed Means’s lift.
While on the speakerphone, Runyan told Means to go home
and call in the following morning.
Runyan phoned Smith later that day and Smith explained
that he was unhappy with Means’s job performance. He pointed
out to Runyan a situation where he expected Means to complete
work on at least four units per day and Means had actually
completed only one unit each day. On another occasion, Means
was given a job on a scissor lift and he under performed that
work. Smith explained to Runyan that Means came back from
lunch just a little late each day even though everybody else
would be back on time. Means drug his feet and did not seem
motivated to perform plus he made comments as shown above,
about suing the Company.
Ty Runyan told Means that from that point on Means was no
longer authorized on any of Titus’s jobs and that Means was to
phone him the next morning regarding his status with the Com-
pany. The next morning Runyan told Means that Respondent
really did not need him and they were paying him too much. He
said that he was letting Means go.
February 13
Jesse Gonzalez received an evaluation on February 13. He
reported to Respondent’s office for the evaluation interview
before 2:30 p.m. Gonzalez noticed some 10 to 15 picketers in
front of Respondent’s office. He was not blocked at the en-
trance and drove into the parking area. Gonzalez observed the
picketing from inside the lobby while he was waiting for his
evaluation. He observed Ty Runyan moving from the lobby and
his office and he overheard Runyan say, “Call the police. Tell
them they’re—they’ve got guns. Tell them we’ve got threats to
TITUS ELECTRIC CONTRACTING 1369
our lives. Tell them, you know, they’re—they’ve got profanity
on their signs, and things of this nature.” Gonzalez testified that
he did not see any guns. He did not hear any threats and he did
not see any profanity on the picket signs. Gonzalez told Runyan
that he did not believe it was fair for him to be evaluated at that
time due to Runyan being distracted by the picketing. Runyan
told him he had not been there long enough, that the evaluation
was just a yearly thing and Gonzalez received an average
evaluation. Runyan did not say anything about Gonzalez’ work.
At the end of the evaluation, Gonzalez asked to be paid the
prevailing wage of $21.20. In explaining why he felt he de-
served a raise, Gonzalez showed Runyan a union ticket in
which he was classified as JIW27 (GC Exh. 5). Runyan threw
the ticket back and said it did not mean anything to him but that
he would check with Kip Powell and see if he could give Gon-
zalez another dollar. Runyan escorted Gonzalez out of the of-
fice and as they were in the lobby Runyan said, “You know,
those are your union brothers out there.”
Respondent’s general manager, Robin Escobedo, testified
that he never heard Ty Runyan walk through the building and
say call the police that the picketers have guns or anything to
that effect and he denied that he ever heard Ty Runyan say tell
the police that the picketers are threatening employees.
Ty Runyan denied that he ran up front and yelled about call-
ing the police about pickets out front. Runyan testified that he
did not make any statement regarding threats on our lives or to
tell that the pickets had guns and the police needed to be called.
He did not deny that he evaluated Gonzalez.
February 2002
Sherry Passmore returned to Respondent’s office and again
signed the sign-in roster. She then started picketing with others
from the Union at Respondent’s office. She also signed the
sign-in roster on March 8, 2002 (GC Exh. 2).
Robin Escobedo is Respondent’s general manager. Escobedo
testified that a person he later identified as Johnny Sanders was
picketing in front of Respondent’s office some time in February
with a picket sign that said “Sex” and some other things that
Escobedo could not read. Sanders was holding the sign in such
a manner as to make it clearly visible to Respondent’s office
workers including the receptionist, Giovanna Sedillo. Sanders
trusted his hips while he showed the sign to Respondent’s of-
fice personnel.
Shelly Runyan testified she was not present at the office
while Johnny Sanders was on the picket line. However, she was
called back to the office where an employee was upset. Conse-
quently, a meeting was called for February 13 with Austin Po-
lice Commander Williams. Commander Williams said to page
him whenever the pickets arrived and they would come out to
make sure everything was under control.
February 14
Jesse Gonzalez reported for work on the Town Lake Event
Center job. Around 8:30 a.m., Frank Nerio told him to gather
his tools and report to Kip Powell. Powell told Gonzalez that he
was asking for more money and he could not afford that. Pow-
ell told Gonzalez to go see Ty Runyan. Gonzalez drove to the

27 Journeyman inside wireman.
office and reported to Runyan. Runyan told him that he was
fired. Gonzalez asked why and Runyan said, “[T]his is an at-
will state, and I don’t have to give you a reason for firing you.”
That was the first indication Respondent had given Gonzalez
that it was not happy with his work. Runyan then said to Gon-
zalez, “Go out there and join your union brothers, so.”
Ty Runyan testified that Gonzalez asked for a raise during
his evaluation and Runyan promised to call Kip Powell. When
he phoned Powell said not only does the guy not deserve a raise
but also he should be fired. Powell told Runyan that Gonzalez
had failed to finish a job in a stairwell even though it was only
about 2 hours of work. Powell said that Gonzalez was unmoti-
vated, slow, and didn’t know enough about the electrical trade.
Runyan explained that the information he received from Powell
was not reflected on Gonzalez’ evaluation (R. Exh. 22), which
was completed before Runyan talked to Powell.
Runyan said that after he told Jesse Gonzalez he was fired,
Gonzalez said that his discharge was because he asked for a
raise. Then as he left Gonzalez yelled back that he was fired
because he was in the Union. He denied saying to Gonzalez
that he could go out and join his union brothers and Runyan
denied that he knew anything about Gonzalez’ union activities
before Gonzalez yelled that he was fired because he was in the
Union.
Frank Nerio testified that he did not know Gonzalez was dis-
charged but there was an incident where Gonzalez was slow in
performing work before a stairwell was covered in sheetrock.
Kip Powell asked him about that incident because the general
contractor complained to Powell that the job was not completed
before the sheetrock installers came in. Nerio told Powell that
Gonzalez should have finished the job in time. Frank Nerio had
to complete the job of installing conduits and boxes after the
sheetrock was installed.
February 15
Howard Williams, a commander with the Austin police de-
partment, testified that he held a meeting with Ty Runyan on
Saturday morning around the middle of February regarding
picketing activity. Williams told Runyan that he would like to
know whenever picketers showed up. He explained that he
wanted that information because there had been some com-
plaints about the way his officers were handling matters regard-
ing the picketing.
Ty Runyan testified that he contacted Commander Williams
because they had a death threat and Williams asked Runyan
about the boundary of his property. Using a plat of the property,
Williams and Runyan measured 15 feet from the center of the
street but Commander Williams said that would leave the pick-
ets too little room from the edge of the street. He suggested the
pickets should be able to use up to the middle of the ditch. Ini-
tially, when the line was 15 feet from the street center, Respon-
dent marked that line but that was before deciding to give the
pickets to the middle of the ditch. Runyan testified that he per-
mitted to the middle of the ditch from that time forward.
Howard Williams also discussed with Ty Runyan areas that
were off Runyan’s property and areas that were not available
for picketing. Williams testified that Runyan had a copy of a
plat but both he and Runyan had some difficulty determining
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1370
the location of the road easement. One interpretation appeared
to place the easement line too close to the road to permit safe
picketing. Williams felt it would be unsafe to require picketing
too close to the road and he and Runyan agreed that the police
would not arrest any of the pickets “unless they came farther,
really on to the property; but if they stayed out, say about half-
way between the road and where there’s a concrete wall, basi-
cally, separating the parking lot from a drainage ditch, if they
kind of stayed in that area, we were going to be okay with that,
but if they came up into the parking lot and things, then we
would make arrests for criminal trespassing.”
February 20
Rick Zerr was on the picket line around February 20. Orange
lines were painted about 4 feet off the road at the entrance to
the parking lot. Ty Runyan told Zerr to get on the other side of
those lines or he was going to call the police. Runyan pulled out
his cell phone and the police came but the picketing continued
without interruption.
March 8
Rick Zerr was on the picket line around March 8. Although
Zerr parked off the road a wrecker came and asked that the
picketers move their vehicles. There were no parking signs
posted for the first time all along the road. Zerr called 911 and
asked for a police officer. Several officers arrived and an offi-
cer told Zerr that the picketers’ cars would be towed if they did
not move them. The picketers got in their cars and left.
Shelly Runyan testified that she arranged to lease (CP Exh.
11) the property across from Respondent’s facility because
neighbors were showing agitation with the picketing, and Re-
spondent needed the lot for their annual party between May and
June and they occasionally needed the lot to keep 18 wheelers
from blocking the street. There was other parking available for
the people on the picket line including the triangle where the
city parks vehicles. That is right across the road (see R. Exh.
18). Runyan also arranged with About-Town Towing to set up
no parking signs and handle towing.
Runyan explained how Respondent was engaged in exten-
sive marketing practices including clothing for its employees
and using signs and displays on company vehicles.
March 22
Rick Zerr was on the picket line around March 22. He testi-
fied that Shelly Runyan was taking photographs of the picket-
ing. Robert Biehle testified that Zerr yelled to him that someone
was taking his picture and Biehle aimed a video camera at
Shelly Runyan who was standing in Respondent’s doorway.
Runyan appeared to be photographing the picketing.
Shelly Runyan testified that she took photographs of picket-
ing solely to support a defamation suit Respondent has regard-
ing a picket sign that showed “Titus sex bigot.” She denied that
she has ever taken pictures of a current Titus employee on the
picket line.
March 28
Union organizer and business assistant, Robert Biehle, testi-
fied that he went out to picket Respondent’s facility on March
28. He saw a no parking, tow away sign at the place where he
normally parked. After parking in his normal area a tow truck
pulled up and the driver told Biehle that his car would be towed
if he left it there.
April 4
Phillip Lawhon attended classes while working. On April 4,
Ty Runyan came in the class and said he need to speak to them
about what the Union did to its contractors. Runyan held up and
read a handbill he said had been found on the Town Lake Event
Center job. Ty Runyan asked the 28 employees in the class if
any of them were with the union stuff that’s going on there.
Runyan said that since the Union was tying them up with
charges and withdrawing charges, he was not going to be able
to go on bidding at as fast a pace as he had before the union
stuff and that he was going to have to start laying people off.
Ty Runyan said there were union people working at the Com-
pany and that he knew one that he had given a raise and pro-
moted that was going back and telling the Union what was
going on at the Company.
April 10
Gordon Monk asked Kip Powell about the NLRB thing that
the employees could wear union stuff on the job. Powell re-
plied that Monk could wear his union shirt anywhere he liked
but not on the job. Powell asked Monk what crawled up his ass
that morning.
April 19
Eddie Edwards testified that he wore a shirt with IBEW lo-
gos on the front and back. When he came to work Kip Powell
said to him, “[Y]ou know you can’t wear that shirt.” Edwards
replied that he believed it was against his rights, Powell telling
him he couldn’t wear that shirt. Powell told Edwards to go
home and change his shirt. Edwards replied the since he
couldn’t wear his shirt he quit.
The following Monday, Edwards phoned Greg Taylor. Ed-
wards asked Taylor if he knew what had happened Friday and
Taylor said no. Edwards told Taylor what happened regarding
his leaving the Company. Taylor replied it is nothing against
the Union, it is company policy.
May 28
Phillip Lawhon wore a union sticker on his tape measure to
work (GC Exh. 7). The sticker covered a Craftsman label.28
Sam Ramirez told him that he would need to take the sticker off
his tape measure. Lawhon pulled the union sticker off and Ra-
mirez told him not to be starting this shit on his job.
May 30
Kevin Gustin testified that Kip Powell called a meeting of
employees for after work. Powell gave papers to Gustin, Alan
Stockton, and Richard Rivera among others, and told them to
call the shop the next morning. Gustin phoned and talked with
Greg Taylor the next morning. Taylor told him Respondent had
no work for him. Gustin asked Taylor if he was laying them off
and Taylor said yes.
Alan Stockton and several other employees including Kevin
Gustin wore an IBEW sticker on hardhats beginning some time
in February. Foreman Kip Powell came to the employees and

28 The tape measure was a Craftsman product.
TITUS ELECTRIC CONTRACTING 1371
asked them to remove the IBEW stickers or they would have to
leave the job. Stockton and others including Kevin Gustin re-
moved the IBEW stickers. Stockton also passed out flyers re-
garding prevailing wages in May 2002. Near the end of the
month, Kip Powell told Stockton and others to sign out their
time because they would be sent elsewhere the following morn-
ing. Stockton, Kevin Gustin, Richard Rivera, and three or four
others were told to fill out their time on that day. Greg Taylor
told Stockton he was laid off when Stockton phoned in the
following morning.
June 4
Phillip Lawhon and John Blair were assigned to work at the
Omni Hotel job under Sam Ramirez. Lawhon testified that
Ramirez questioned him on June 4 as to whether John Blair had
joined the Union. Lawhon replied that he did not know and
Ramirez said that Chris Tanner had told him that Blair did join
the Union. Ramirez said that Lawhon would be the first to
know if Blair had joined the Union. Ramirez asked a number of
times if Blair had joined the Union and finally Lawhon replied
yes, he did. Ramirez asked if Lawhon had gotten Blair into the
Union and Lawhon replied that John Blair makes his own deci-
sions.
The next day, Ramirez asked Lawhon if he was serious, did
John really join the Union. Lawhon said that he did and Rami-
rez asked if Blair was a journeyman electrician. Lawhon said
that Blair was a journeyman electrician. Ramirez asked if Blair
had taken any kind of test and Lawhon replied that Blair had to
take a test or two to evaluate where he stood. Ramirez asked
how much money he was making and Lawhon replied $22.60
an hour. Sam Ramirez replied, “John’s not worth that much
money, and they shouldn’t be paying him that much.”
As mentioned above, John Blair who is an unlicensed jour-
neymen electrician started working for Respondent around
January 7 or 8. At that time he was not a member of the Union.
However, Blair signed a union authorization card on January
16. After working at the Town Lake Event Center job for about
3 weeks he was transferred to Respondent’s job at the Omni
Hotel. Sam Ramirez was his supervisor at the Omni. When
Blair came to work on June 4 Ramirez asked him if he was a
union member. Blair said that he was and when asked by Rami-
rez how long he had been a member he replied 2 weeks. Two
other employees, Philip Lawhon and Chris Tanner, witnessed
that conversation between Ramirez and Blair.
June 10
On the last day, Phillip Lawhon and John Blair worked on
the Austin Center job,29 Lawhon and Blair were handbilling
(GC Exh. 27) at the jobsite during their lunchbreak. The hand-
bill read:

The owners of this establishment are undermining Health
Care Standards in the community by employing an electrical
contractor, Titus Electrical Contracting, that does not pay for
full family health care coverage. There are many local electri-
cal contractors in Austin that do pay for full family health care

29 The Austin Center job is oftentimes referred to as the Omni Hotel
job.
coverage. Please tell the management of this establishment
that you support high community standards for health care
and wish that they would too. The employees of Titus Electri-
cal Contracting appreciate your support in this matter.

The lease site manager, Williams, phoned Sam Ramirez. She
complained that Blair and Lawhon were handing out leaflets in
the building. Ramirez was at lunch and he returned to the Omni
where he came upon Williams, Kim Thompson, and Gaylord
Pearson. Pearson was Respondent’s project manager. Subse-
quently, Williams told a police officer that she wanted Lawhon
and Blair ticketed for trespassing or something and Lawhon and
Blair were told to leave the jobsite. Lawhon and Blair left. The
two of them were not permitted on the job after that incident.
Supervisor Sam Ramirez testified that employee Chris Tan-
ner told Ramirez that John Blair was a union member. Ramirez
confronted Blair and Blair apologized for not telling Ramirez
that he was in the Union. Blair told Ramirez that he did not
want to have anything to do with handing out leaflets and that
he did not have anything against Ty and wanted to stay em-
ployed with Titus.
Blair30 testified that after he handbilled around 10 minutes
during his lunchbreak at the Austin Center jobsite, the Omni
Hotel manager and one other person came up to him and Phillip
Lawhon. The manager told Lawhon that he had to leave be-
cause there was soliciting going on with the handbills. Lawhon
replied that was his work area and he wasn’t trespassing or
soliciting. Nevertheless, he was again told to leave. Lawhon
phoned Sam Ramirez on his cell phone and he and Blair walked
out of the building. They met Ramirez in the parking garage
and Ramirez said that he was going in and straighten out the
matter. Ramirez told Blair and Lawhon to go to the gang box
and wait. Ramirez asked Blair if he had distributed any litera-
ture and Blair said that he had. Ramirez asked Blair if he had
been put up to it and Blair said no.
A policeman came to Blair and Lawhon at the gang box and
told them they had trespassed and were still trespassing. Sam
Ramirez and Gaylord Pierson31 showed up with management
from the Golden Crescent.32 The policeman took Lawhon and
Blair’s wallets and patted them down. He asked if he should
escort them form the building or were Blair and Lawhon going
to receive a trespass warning. Ramirez and Pierson told the
policeman that Blair and Lawhon were no longer allowed on
the property. Ramirez told Lawhon and Blair they would be
escorted to get their tools and they should go to the shop. Blair
went to the shop where Greg Taylor told him that he had no
other place to send him.
Phillip Lawhon identified General Counsel’s Exhibit 27 as
the leaflet he passed out on June 10 at the Omni Hotel. Levi

30 Supervisor Sam Ramirez testified that employee Chris Tanner told
Ramirez that John Blair was a union member. Ramirez confronted Blair
and Blair apologized for not telling Ramirez that he was in the Union.
Blair told Ramirez that he did not want to have anything to do with
handing out leaflets and that he did not have anything against Ty and
wanted to stay employed with Titus.
31 Pierson was Respondent’s project manager.
32 Blair testified the Golden Crescent was the ones in charge of the
Omni Hotel building.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1372
Lambert asked Lawhon to step over to the office side of the
building to pass out leaflets because his hotel guests were pay-
ing $200 a night and were not aware of what was going on.
Later, Levi Lambert and Gene McManaman approached Law-
hon. Lambert and McManaman told Lambert they worked for
Omni Hotel. McManaman told Lawhon that he was trespassing
and needed to leave the building. Lawhon told him that he
worked in the building and McManaman replied that he needed
to leave the building.
Lawhon phoned Sam Ramirez and told Ramirez that he was
outside the building; that he had been kicked out and told he
was trespassing. Ramirez asked and Lawhon told Ramirez he
had been passing out handbills. Sam Ramirez told Lawhon that
he knew better than that shit that he knew the consequences and
now he was going to have to deal with them.
Phillip Lawhon went to his work area in the Omni garage
and met Sam Ramirez. Ramirez told Lawhon that he needed to
quit these childish games and he was an idiot and needed to
grow up. Lawhon waited with John Blair for Ramirez to return.
Later, Ramirez and Gaylord Pierson returned and a police of-
fice, a security officer, and a property person came over. The
police officer told Lawhon that he was trespassing, that he had
been told to leave the building and he had not left. Lawhon
replied that he came back at the direction of his foreman. The
police office asked Lawhon and Blair for identification. He
searched Lawhon and Blair and asked Kim Williams of prop-
erty management, what he needed to do. Kim Williams asked
Gaylord Pierson what he wanted to do. Pierson replied that it
was her building and Williams told the police officer to go
ahead and file a complaint. Lawhon was escorted to get his
tools and Gaylord Pierson told him to go to the Titus office.
Gaylord Pierson testified. At the beginning of the Omni Ho-
tel project the owners told the employees to wear Titus shirts
for security reasons. Pierson testified about the lunchtime
handbilling incident. The Crescent managers came to Pierson
and said that some of his employees were handbilling in the
Omni lobby and the restaurant. Kim Williams asked him to
immediately get rid of the people. Pierson replied that he could
not do that because the employees were on their lunchbreak.
Williams then phoned the police. Pierson told Sam Ramirez
about what had occurred.
Greg Taylor is Respondent’s service coordinator. He over-
sees operation of the warehouse for tools and logistics and also
helps oversee personnel. Taylor denied that he ever called or
had someone else call the police to have picketers removed.
Taylor cooperated in the decision to discharge Lawhon and
Blair. He testified that Lawhon and Blair were not allowed back
on their job at the request of the customer and he had no other
place to send them. Although Respondent had ongoing jobs at
that time, there was no need for additional personnel on any of
their jobs. Since June 10, 2002, Titus has not employed any
tradesmen temporary workers on any jobsites in the Austin
area.
Conclusions
Counsel for the General Counsel alleged that Respondent
unlawfully contested its employees’ union activities from Janu-
ary 2001. Included in the complaint were allegations that Re-
spondent unlawfully prohibited employees from wearing
prounion clothing; it restrained, coerced, and interrogated em-
ployees; it interfered with union picketing; it discharged and
laid off employees because of the Union; it refused to hire sev-
eral job applicants because of the Union;33 and it threatened to
lay off employees because the Union was filing unfair labor
practice charges.
Section 8(a)(1)
Telling an employee to hide his union shirt; threatening to
send an employee to the office if he wore a union shirt; telling
an employee to remove union sticker and threatening to remove
employees from job; threatening to send employee home for
wearing a union shirt; by Ty Runyan telling an employee he
can wear only Titus or plain shirt; by telling employees it is
against company policy to wear union stickers; and by telling
an employee on the Omni Hotel job to remove a union sticker.
When Michael Nolan was hired on February 15, 2001, he
was given a copy of Respondent’s general regulations. Those
regulations included a prohibition against wearing clothing,
which contained lewd slogans or advertising. Greg Taylor ex-
plained to Nolan and other new employees that prohibition
meant “no alcohol, no tobacco, or no lewd or anything like
that.”
On March 21, Nolan filed internal union charges against an-
other employee. He waited in the parking area after work and
told that employee he had filed the union charges. The next
day, Nolan was transferred off the job and his foreman told him
there would be no union business on his job.
Nolan changed to a union shirt and wore the shirt to the next
job. The foreman on that job asked Nolan if Ty34 has gone un-
ion. On March 23, Nolan’s supervisor met with the employees
and explained the employees were no longer permitted to wear
advertisements on their clothing. That prohibition included any
logos, or any type of writing except Titus.35 When Nolan re-
ceived his check that day the following was attached:

33 The refusal-to-hire allegations are set forth in par. 16 of the com-
plaint. That paragraph was not included in the conclusionary allegations
in pars. 21 and 22. Nevertheless, that matter was fully litigated and I
have considered the matter as though par. 16 was included in the con-
clusionary allegations of the complaint.
34 As shown herein, Ty Runyan is one of Respondent’s owners.
35 Respondent contended that the allegations that it formulated and
implemented an appearance and professionalism policy in March 2001
and enforced that policy in April 2001 were included in a settlement
and should not be considered in this matter. It argued that it complied
with the terms of that settlement and the Regional Director has not set
aside that settlement. The General Counsel contended that settlement
was properly set aside because of Respondent’s action in following a
rule prohibiting union shirts during worktime. I find that matter should
be considered in light of the evidence herein and I reject Respondent’s
argument.
TITUS ELECTRIC CONTRACTING 1373
To: All Titus Personnel

Message:

EFFECTIVE IMMEDIATELY, No advertising of ANY type
whatsoever is allowed by any Titus personnel on any of our
projects or company property or any company function. This
includes any type of clothing or other article with any type of
advertisement whatsoever, including logos, writing, or any
other form of advertising. The only exception to this is an un-
altered Titus shirt or other article issued and/or authorized by
the management of Titus Electric.

Other than Titus shirts, you may wear a blank shirt that meets
all other company requirements.

Around December 2001, Gordon Monk wore an IBEW shirt
that was covered. When the IBEW logo became visible during
the day, Monk’s superintendent, Kip Powell, told him to cover
the logo. On December 11, Greg Taylor told Kevin Gustin that
he couldn’t wear union stickers or anything on shirts, clothing,
or hardhats.
Sam Ramirez told Phillip Lawhon that he could not wear an
ESPN pullover. Lawhon asked if he could wear an IBEW shirt
the next day and Ramirez told him he could not. On another
occasion, Ramirez told Lawhon to remove an IBEW sticker
from his tape measure. On January 17, during a new employee
orientation, Greg Taylor told Phillip Lawhon there would be no
union shirts and no Longhorn shirts.
Around January 22, 2002, Greg Taylor told Tommy Means
that he would have to wear a Titus shirt or a plain shirt, because
“we’re having problems with the Union.” Taylor denied that he
made that statement to Means.
On January 26, Sam Ramirez permitted Phillip Lawhon to
keep on an ESPN shirt until the crew went inside. Lawhon had
protested against having to remove the shirt because of the
cold.
In February, Gordon Monk along with Kevin Gustin and Al-
len Hughes wore union shirts and union logos on their hardhats.
It was a cold day and their shirts were covered. Kip Powell
asked Monk what was with all the union stickers. Monk replied
it was their right to wear them and Powell said that it is com-
pany policy to remove them. Monk, Kevin Gustin, and Alan
Stockton removed their union stickers.
As shown above, Tommy Means was sent to the office on
February 7, because he wore to work a union shirt as well as a
union logo on his hardhat. Means agreed to buy Titus shirts
after Ty Runyan told him he would give him one more chance.
While Means was out of Runyan’s office buying Titus shirts,
Runyan called him back in and asked him if he had threatened
to sue the Company. Runyan told him to go home and phone in
the next morning. When Means phoned Runyan said that he
was letting him go.
Credibility
In consideration of the full record and the demeanor of wit-
nesses, I make the following credibility findings. I credit the
testimony of Michael Nolan, Gordon Monk, Phillip Lawhon,
and Tommy Means. Their testimony and a substantial part of
the record dealing with this issue, shows that Respondent took
extraordinary steps to enforce its policy against union logos.
Findings
Absent a showing by the employer of special circumstances,
employees have the right to wear union insignia (Republic
Aviation, 324 U.S. 793, 801–803 (1945)). It is the employer’s
burden to prove special circumstances (Meijer, Inc., 318 NLRB
50 (1995); Flamingo Hilton-Laughlin, 330 NLRB 287 (1999);
Raleys, Inc., 311 NLRB 1244 (1993). Here, Respondent failed
to show special circumstances, which justified its rule against
wearing union logos. Moreover, as shown above, the evidence
established that Respondent discriminatorily imposed its rule
immediately after Michael Nolan wore a union shirt on the job
on March 22, 2001.
Respondent argued that it has uniformly enforced its appear-
ance and professionalism policy and that the record supports
that argument. It pointed to its branding campaign as an effort
to promote business through a Titus image which is projected
through such things as uniquely painted trucks, logos on em-
ployees’ clothing, newsletters, and “Titus Bucks.” In that re-
gard, it pointed to cases showing that even though employees
sometimes have a right to wear union logos on their clothing,
that right must be balanced against an employer’s right to oper-
ate its business by among other things, limiting or even prohib-
iting the wearing of union clothing if special circumstances
exist. A special circumstances exists here it argued, because the
display of union insignia may “unreasonably interfere with a
public image which the employer has established as part of its
business plan (Produce Warehouse of Coram, Inc., 329 NLRB
915 (1999); Meijer, Inc., 318 NLRB 50 (1995), enfd. 130 F.3d
1209 (6th Cir. 1997); Burger King Corp. v. NLRB, 725 F.2d
1053 (6th Cir. 1984)).
However, there are several factors worth considering in re-
gard to Respondent’s argument.
It is apparent that Respondent changed its policy as a direct
result of union activity. Respondent had a broad policy against
wearing any lewd slogans or advertising when Michael Nolan
was hired on February 15, 2001. On February 21, after work in
Respondent’s parking area Nolan advised another employee
that he had filed internal union charges against that employee.
The following morning Nolan’s supervisor told him there
would be no union business on his job and Nolan was trans-
ferred to another of Respondent’s jobs. Nolan wore a union
shirt to that next job, on February 22. Two days after Nolan
was first involved in a union affair in Respondent’s parking
area after work, and 1 day after he wore a union shirt, Respon-
dent’s appearance and professional policy was changed to one
that prohibited all union slogans or advertising as well anything
other than a Titus slogan or advertisement.
Moreover, despite Respondent’s policy of “branding” its
logo, it never required its employees to wear uniforms or any
type of standard clothing. Employees were free to wear plain
clothing including shirts. Respondent did not create a public
image of its employees by dressing them in some distinctive
attire. Therefore, the instant situation must be distinguished
from those cases cited by Respondent including (United Parcel
Service v. NLRB, 41 F.3d 1068 (6th Cir. 1994)). Respondent
failed to prove how the wearing of a union logo may “unrea-
sonably interfere with a public image which the employer has
established as part of its business plan, through appearance
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1374
rules for its employees” (Produce Warehouse of Coram, Inc.,
supra). Additionally, unlike the situation in Burger King Corp.
v. NLRB, supra, Respondent’s policy was created in response to
union activities and in consideration of its action before Febru-
ary 22, 2001, its policy was enforced in a discriminatory man-
ner.
I find that Respondent coerced and threatened its employees
to refrain from wearing union logos, in violation of Section
8(a)(1) of the Act.
By threatening to tow vehicles; by Shelly Runyan engaging
in surveillance; by Anne Overstreet threatening to call and
twice calling police, because of union picketing; by Ty Runyan
threatening employees and union picketers with arrest; and by
calling police to stop union activities.
The Union picketed Respondent’s facility from January
2002. Rick Zerr testified about picketing Respondent’s Yeager
Lane facility on January 7 protesting unfair labor practices. A
woman36 came out of Respondent’s office and told Zerr to
leave or she would call the police. The police then came out.
Greg Taylor came out and asked the union people what it
would take to stop the picketing. Zerr replied Respondent
would have to permit all the people on the picket line to sign
the work register. That was agreed to and Zerr and Neil John-
son signed the work register and the picketing was stopped.
John Voight picketed on January 7 and also about a week
later. On that second occasion police came out and, after look-
ing at a plat, said the people had a right to picket. Rick Zerr
testified that police told him Respondent claimed to own the
land up to 4 feet from the street and it was unsafe to picket that
close to the street. When the police came out again on January
17, Zerr showed them a plat showing an easement giving suffi-
cient room to picket on the same side of the street as Respon-
dent’s property. The police did not remove the picketers on
January 17.
Respondent’s project administrator, Delores Overstreet, was
asked about calling the police. She admitted that she called the
police every time she saw pickets. Overstreet testified it was
not her intent to have the pickets removed. Instead, she in-
tended to have the picketing controlled. Ty Runyan denied that
he phoned the police to have pickets removed from areas where
they could legally picket. However, in other areas Runyan ad-
mitted that he did phone the police about the pickets. Respon-
dent argued that Overstreet was never shown to be a supervisor.
However, it is apparent that Delores Overstreet demonstrated
apparent authority in regard to the picketing. She admittedly
told the pickets they were free to picket but that they could not
come on Respondent’s property. As to whether the General
Counsel proved that Overstreet called the police on January 7
and 17, she was asked and replied that she did not recall the
dates but that she called the police every time she saw picket-
ing.
Rick Zerr was on the picket line around March 8. Although
Zerr parked off the road a wrecker came and asked that the

36 Delores Overstreet testified that she called the police after some of
the men on the picket line charged across the street toward Respon-
dent’s building. Overstreet also testified that she phoned the police
every time she saw pickets.
picketers move their vehicles. There were no parking signs
posted for the first time all along the road. Zerr called 911 and
asked for a police officer. Several officers arrived and an offi-
cer told Zerr that the picketers’ cars would be towed if they did
not move them. The picketers got in their cars and left.
Shelly Runyan testified that she arranged to lease (CP Exh.
11) the property across from Respondent’s facility because
neighbors were showing agitation with the picketing, and Re-
spondent needed the lot for their annual party between May and
June and they occasionally needed the lot to keep 18 wheelers
from blocking the street. There was other parking available for
the people on the picket line including the triangle where the
city parks vehicles. That is right across the road (see R. Exh.
18). Runyan also arranged with About-Town Towing setting up
no parking signs and towing. Runyan explained how Respon-
dent was engaged in extensive marketing practices including
clothing for its employees and using signs and displays on
company vehicles.
Union organizer and business assistant, Robert Biehle, testi-
fied that he went out to picket Respondent’s facility on March
28. He saw a no parking, tow away sign at the place where he
normally parked. After parking in his normal area a tow truck
pulled up and the driver told Biehle that his car would be towed
if he left it there.
Rick Zerr was on the picket line around March 22. He testi-
fied that Shelly Runyan was taking photographs of the picket-
ing. Robert Biehle testified that Zerr yelled to him that someone
was taking his picture and Biehle aimed a video camera at
Shelly Runyan who was standing in Respondent’s doorway.
Runyan appeared to be photographing the picketing.
Shelly Runyan testified that she took photographs of picket-
ing solely to support a defamation suit Respondent has regard-
ing a picket sign that showed “Titus sex bigot.” She denied that
she has ever taken pictures of a current Titus employee on the
picket line.
Credibility
Most of the evidence here is not in dispute. To the extent
there may be conflicts I have considered the full record and the
demeanor of witnesses. I credit John Voight, Rick Zerr, and
Delores Overstreet’s testimony that the Union engaged in pick-
eting Respondent’s facility from January 7, 2002, and some of
the picketing protesting Respondent’s alleged unfair labor prac-
tices. I credit testimony that a woman came out and threatened
to phone the police and that Greg Taylor asked what it would
take for the Union to stop picketing. I credit Overstreet’s testi-
mony that she phoned the police every time she saw the pick-
ets. I credit testimony showing that Ty Runyan also called the
police.
I credit the testimony of Shelly Runyan to the extent it shows
that she arranged for Respondent to lease the property across
the street where picketers frequently parked their cars. I credit
the testimony of Rick Zerr, Robert Biehle regarding the tow
trucks and what was said about towing the picketers’ cars and
the no parking signs.
I credit the testimony of Rick Zerr and Shelly Runyan re-
garding her taking photos of the pickets around March 22.
TITUS ELECTRIC CONTRACTING 1375
Findings
A union may picket an employer with whom it has a labor
dispute (Golden Stevedoring Co., 335 NLRB 410 (2001)), and
if the employer claims a property interest in the picketing site,
it is the employer’s burden to prove that property right (Wild
Oats Markets, Inc., 336 NLRB 179 (2001); Gary E. Caulkins,
323 NLRB 1138 (1997), enfd. 187 F.3d 1080 (9th Cir. 1999),
cert. denied 529 U.S. 1098 (2000); Bristol Farms, Inc., 311
NLRB 437, 438–439 (1993)). That burden on the employer
includes a requirement that it show the union activity is on its
property and outside a public easement (Snyder’s of Hanover
Inc., 334 NLRB 437 (2001)).
Counsel for the General Counsel argued that the picketing
occurred in a bar ditch in front of Respondent’s property and
both the city of Austin legal department and a 1996 survey
conducted by Respondent, show that Respondent did not have a
property interest unencumbered by a public easement, over the
location of the picketing. In that regard see Charging Party’s
Exhibit 23. Therefore, counsel argued that Respondent’s threats
to call and actual calls to the police constitute violations of
Section 8(a)(1) (Great Scot, Inc., 309 NLRB 548 (1992); In re
Glendale Associates, 335 NLRB 548 (2001); Valeo Sylvania,
L.L.C., 334 NLRB 133 (2001)).
In view of the full record, I agree with the General Counsel
and find that Respondent’s actions in threatening to call and
actually calling the police because of employees’ picketing
violates Section 8(a)(1).
As to the threats to tow vehicles from the other side of the
street after Respondent leased the vacant lot, Respondent ar-
gued that to be a simple case of property right. In that regard, it
appears the inconvenience to the picketers was limited to park-
ing. After Respondent leased that lot the picketers could no
longer part there or along the street adjoining the leased lot.
Shelly Runyan testified that she arranged to lease the lot be-
cause of concern that the picketing was having on some
neighbors, that Titus occasionally needed the property for over-
flow and she wanted to insure that Titus had the lot available
for its annual picnic. Although the picketers were prevented
from parking in the leased lot, there was ample room for them
to park in another lot across the street from the lot leased by
Titus.
I find in agreement with Respondent as to the no parking and
threats to tow vehicles from the leased lot. Despite that being
the area where picketers had normally parked there was no
showing that the Union was precluded from access to the Titus
employees, after Titus leased the lot.
As to the allegations regarding Shelly Runyan photographing
picketing, Respondent contended that she was taking pictures
of the Union’s videotaping of its customers and activities at its
facility. However, the record does not support a finding that the
Union was engaged in unlawful activity. There was no showing
that the Union was trespassing on Respondent’s property on
that occasion. Therefore, I find in agreement with the Charging
Party and the General Counsel, that Respondent violated Sec-
tion 8(a)(1) when Shelly Runyan openly photographed the
picketing (cf. Spencer Industries, 279 NLRB 565 (1986)).
Threatening discharge for solicitation; threatening to disci-
pline employees for union activity; by creating an impression of
surveillance of employees’ union activities; By Ty Runyan
created the impressions of surveillance by telling an employee
he knows where this union matter is coming from and that he
knew who one union member was.
As shown above, on January 25, Ty Runyan told Tommy
Means that he had learned that Means was a union member and
he showed Means a list of names on his computer screen. Run-
yan told Means that his lawyer had told him to keep a record of
all those who were union. On April 4, Runyan told a class of
his employees that he knew one employee was giving informa-
tion regarding the Company to the Union.
Credibility
In view of the full record and his demeanor, I credit the
above testimony of Tommy Means. I also credit the evidence
that Ty Runyan told one of Respondent’s classes that he knew
one of his employees was giving information to the Union.
Findings
An employer unlawfully creates the impression of surveil-
lance of employees’ union activities by telling an employee that
his or her union activities are under surveillance (Fred’k Wal-
lace & Son, 331 NLRB 914 (2000); Tres Estrellas de Oro, 329
NLRB 50 (1999)). The Board has found such comments consti-
tute impressions of surveillance in violation of Section 8(a)(1)
(Ichikoh Mfg., 312 NLRB 1022, 1023 (1993); Peter Vitale Co.,
310 NLRB 865, 874 (1993)).
Respondent argued that the above evidence does not consti-
tute an impression of surveillance. However, Runyan told
Means in effect, that he had discovered Means was union be-
cause he had checked up on him and that he was keeping up
with employees that were union and listing them on his com-
puter. It is somewhat difficult to imagine how an employer
could do more to impress on an employee that he is watching
over the employees’ union activities. I find that Respondent
engaged in unlawful conduct in violation of Section 8(a)(1) by
creating an impression of surveillance.
By interrogating employees about union activities.
Kevin Gustin’s supervisor, Kip Powell, held a meeting
among his employees on December 12. Both Powell and Ty
Runyan were present and Runyan spoke37 to the employees. He
said that someone that worked for him came to him and com-
plained the Union had told him that if he did not stay there and
fight Ty, the employee would have to leave the job. Runyan
asked each employee if the employee was going to stick with
him or if the employee was going to do what the Union told
him. Ty Runyan admitted that he questioned the Town Lake
Event Center job employees about whether they would remain
with Respondent.
Ty Runyan told Gustin that he had heard Gustin would stick
with the Union. Runyan said that Eric Mates told him that

37 Ty Runyan testified that he spoke to employees about problems
Guy’s Electric had on the Town Lake Event Center job. He said that the
IBEW wanted to organize our Company (see R. Exh. 23) and he did not
want to encounter the type problem found at Guy’s. He spoke to em-
ployees at Town Lake Event Center job on another occasion because
employee Eric Mates said the IBEW had told him to sign on to salt the
Town Lake Event Center job or leave the job. Runyan denied that he
ever threatened to lay off people because of the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1376
Gustin said to Robert Biehle at the union hall that he was in the
Union and was going to stick with them. Gustin denied to Run-
yan that he had said that to Biehle.
Phillip Lawhon testified that when he was interviewed for
work with Respondent on January 7, 2002, Greg Taylor asked
him if he had any plans of taking a call from the Union and if
Lawhon was going to stay with 52038 or seek permanent em-
ployment with Titus. Taylor did not deny that he made that
comment to Lawhon. Instead, Taylor testified that such a ques-
tion would not be out of the ordinary.
Lawhon attended classes while working. On April 4, Ty
Runyan came in the class and said he need to speak to those
employees about what the Union did to its contractors. Runyan
held up and read from a sheet he said was found on the Town
Lake Event Center job. Ty Runyan asked the 28 employees in
the class if any of them were with the union stuff that’s going
on there.
Credibility
In view of the full record and the demeanor of the witnesses,
I credit the testimony of Kevin Gustin and Phillip Lawhon as
shown above. Respondent argued that Lawhon was not a credi-
ble witness and pointed to his destruction of notes he prepared
immediately after Ty Runyan spoke to employees on April 4.
However, the record shows that while Lawhon still had those
notes he gave an affidavit to the General Counsel and that affi-
davit was available to Respondent. I am not convinced that
information should cause me to discredit Lawhon.
Findings
The test frequently applied in allegations of illegal interroga-
tion is the one that was applied in Bourne v. NLRB, 332 F.2d 47
(2d Cir. 1964) (see Dorn’s Transportation Co., 168 NLRB 457
(1967)). The criteria applied there included (1) the background;
(2) the nature of the information sought; (3) the identity of the
questioner; (4) the place and method of interrogation; and (5)
the truthfulness of the reply. Here, the person that frequently
interrogated employees was Respondent’s highest ranking su-
pervisor. Ty Runyan is Respondent’s co-owner. Greg Taylor,
while not as high ranking as Ty Runyan, was also a high-
ranking official. Respondent sought information as to whether
the employees would support Respondent instead of the Union
including questioning whether the employees would leave his
job if the Union asked. The questioning occurred both in the
office and on Respondent’s job. There was no showing of Re-
spondent’s background beyond what was alleged in the instant
matter. However, that shows that Respondent engaged in unfair
labor practices from as early as March 2001, which continued
until the summer of 2002.
The Board has determined that an examination of the above
criteria need not involve a strict evaluation of each factor. In-
stead, the “flexibility and deliberately broad focus of this test
make clear that the Bourne criteria are not prerequisites to a
finding of coercive questioning, but rather useful indicia that
serve as a starting point for assessing the ‘totality of the cir-
cumstances.’” Westwood Health Care Center, 330 NLRB 935

38 As shown above, 520 is oftentimes used to refer to Local Union
520.
(2000), citing Perdue Farms, Inc. v. NLRB, 144 F.3d 830 (D.C.
Cir. 1998); Timsco, Inc. v. NLRB, 819 F.2d 1173 (D.C. Cir.
1987).
Respondent argued that Runyan was simply trying to deter-
mine whether he was going to have a manning problem. How-
ever, the test of an unfair labor practice allegation under Sec-
tion 8(a)(1) rest of a query as to the reasonable impact the
statement(s) may have on the employees rather than on what
good it will do the employer. Here, the employees were given
no assurances and a logical conclusion to draw from Runyan’s
questions could be “I want people that will chose Titus over the
Union and if you favor the Union, I want to know about it.”
Therefore, I find Runyan’s comments were coercisive when
considered against the Bourne criteria. I find that Respondent
engaged in conduct in violation of Section 8(a)(1) by interro-
gating its employees about the Union.
By promulgating a no-solicitation policy.
Kevin Gustin wore a concealed tape recorder to work around
January 15. Ty Runyan spoke to the employees. Runyan said
soliciting for the Union on the job would not be tolerated. He
said the employees could discuss the Union off the job and at
home. Runyan also referred to Amway and Girl Scout cookies.
He said that he did not want any nasty messages on his answer-
ing machine from Mike Murphy of Local 520. After the meet-
ing Runyan talked privately with Gustin. He asked Gustin to
talk to the guys about soliciting and he named Michael (Red)
Merker.
Alan Stockton testified about a meeting Ty Runyan had with
him and Kevin Gustin about 2 months after Stockton was hired.
Runyan told the two of them that he did not want any talk about
union or anything. Ty Runyan said that it doesn’t matter if
Gustin and Stockton are union or nonunion, or Black or His-
panic, or what that he believed in equality like that. Runyan
also said that he wished all his employees would produce like
Gustin and Stockton.
Credibility
As shown above, I credit the testimony of Kevin Gustin.
Findings
An employer may not lawfully prohibit talking about or so-
liciting for, a union during working hours because that term
connotes periods of time, such as breaks and lunch, which are
employees’ own time (Our Way, Inc., 268 NLRB 394, 395
(1983); Teksid Aluminum Foundry, 311 NLRB 711, 714
(1993); ACME Tile, 318 NLRB 425, 428 fn. 8 (1995)). More-
over, an employer may not lawfully prohibit employees from
discussing a union during working time when other subjects of
discussion are not prohibited (Sea Ray Boats, Inc., 336 NLRB
779 (2001); Grosvenor Resort, 336 NLRB 613 (2001)).
Respondent argued that Runyan’s comments constitute noth-
ing more than a misstatement of its no-solicitation rule and that
he later clarified his comments to show that its valid no-
solicitation rule39 remained in effect. Respondent pointed out
that Ty Runyan clarified the policy when he told employees
that everybody “signed that agreement when they signed on.” It

39 Cited as R. Exh.4, p. 12.
TITUS ELECTRIC CONTRACTING 1377
also pointed out that Runyan told Kevin Gustin to “tell the
guys, if you want to solicit, just—just do it after we hit the lot.”
However, even if I should agree that Runyan’s subsequent
clarification was effective, I disagree with Respondent’s argu-
ment. If anything, Runyan’s comment to tell the guys to do it
after we hit the lot strengthens General Counsel’s argument that
Runyan conveyed to the employees that they could not talk
about the Union while at work and instead they should wait
until they reached the parking lot before engaging in any union
solicitation.
Moreover, the record shows this was not the first occasion
for Respondent to prohibit union activity while employees were
on its premises but off work and out of working areas. As
shown above, Michael Nolan was told there would be no union
business on the job and transferred to another job on March 22,
2001, because he told another employee about his filing inter-
nal union charges. That conversation occurred after work in the
parking area.
I find that Respondent implemented an unlawful no-
solicitation policy in violation of Section 8(a)(1).
By maintaining a website and blocking comment by the Un-
ion.
Shelly Runyan testified that Respondent maintains a website
solely as a marketing tool. On one occasion there was a glitch
and the overrides that prevent other people from contributing
into the website were down. As soon as that problem was noted
it was corrected.
Credibility
I credit the above testimony of Shelly Runyan.
Findings
Counsel for the General Counsel argued that the Union’s
March 20 attempt to include a message on Respondent’s web-
page was protected activity and that Respondent violated Sec-
tion 8(a)(1) by blocking the showing of that message (Emarco,
Inc., 284 NLRB 832, 833 (1987)). Respondent argued that its
website was not used to communicate with employees and there
is no reason in law to require it to provide the Union access to
the website. I agree with Respondent. There was no evidence
that Respondent treated the website like a bulletin board and
there was no evidence that Respondent ever permitted the Un-
ion to use its website or bulletin boards.
By prohibiting logos; by enforcing its logo prohibition pol-
icy; and by discriminatorily enforcing a policy against union
logos.
As shown above, Respondent formerly published a rule re-
garding what employees could wear at work. Employees were
prohibited from wearing anything advertising alcohol, tobacco,
or lewd material. That was the rule when Michael Nolan was
hired on February 15, 2001.
Michael Nolan filed internal union charges against another
respondent employee on March 21. Nolan claimed that the
employee was an IBEW member working on a nonunion job.
He told the employee about filing the charge, after work on
March 21. On March 22, Nolan’s foreman said he would not
have union business going on his job. Nolan was sent to the
shop where Ty Runyan told him to go home for an hour and he
would be assigned another job. While he was at home, Nolan
changed to a union shirt, which he wore to his next job with
Respondent. When Nolan arrived on the job, the supervisor
looked at his shirt and asked if “Ty had went union.”
When Nolan reported on March 23, his supervisor told him
that he could no longer wear his union shirt. Respondent pub-
lished a new rule on March 23. It wrote its employees that its
rules had been changed to prohibit advertising of any type with
the exception that employees could wear Titus shirts (GC Exh.
8).
On January 22, 2002, Greg Taylor told Tommy Means that
he would have to wear a Titus or plain shirt to work “because
we’re having certain problems with the Union.” Taylor admit-
ted that he discussed Respondent’s appearance policy with
Means but he denied that he told Means he would have to wear
a plain or a Titus shirt because we’re having problems with the
Union. On April 10, 2002, Gordon Monk asked Kip Powell
about the NLRB thing that the employees could wear union
stuff on the job. Powell replied that Monk could wear his union
shirt anywhere he liked but not on the job. Powell asked Monk
what crawled up his ass that morning.
Credibility
I credit the testimony of Michael Nolan and Tommy Means.
Nolan’s testimony is supported by Respondent records regard-
ing its appearance policy.
Findings
As shown above, absent a showing by the employer of spe-
cial circumstances, employees have the right to wear union
insignia (Republic Aviation, 324 U.S. 793, 801–803 (1945)). It
is the employer’s burden to prove special circumstances (Mei-
jer, Inc., 318 NLRB 50 (1995); Flamingo Hilton-Laughlin, 330
NLRB 287 (1999); Raleys, Inc., 311 NLRB 1244 (1993)).
Here, Respondent failed to show special circumstances, which
justified its rule against wearing union logos. Moreover, as
shown above, the evidence established that Respondent dis-
criminatorily imposed its rule to union logos, immediately after
Michael Nolan wore a union shirt on the job on March 22,
2001.
Section 8(a)(3)
Discharging Tommy Means, Jesse Gonzalez, Phillip Law-
hon, and John Blair; constructively discharging Eddie Edwards;
and laying off Kevin Gustin and Alan Stockton.
It is well established that the General Counsel has the burden
of proving that Respondent was motivated to discharge alleged
discriminatees because of union animus. If the General Counsel
meets that burden, Respondent may defend by showing it
would have discharged the alleged discriminatees in the ab-
sence of union activity (Manno Electric, 321 NLRB 1 fn. 12
(1996); Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983)).
In consideration of the above decisions, Respondent argued
that it was without union animus. It argued, among other things,
that it hired several applicants knowing those people were af-
filiated with the Union. In support of that argument it cited the
hiring of Gordon (Trey) Monk, Kevin Gustin, Alan Stockton,
Eddie Edwards, and Phillip Lawhon.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1378
Gordon Monk applied for work with Respondent in a group
of 13 that appeared at Respondent’s office on November 15,
2001. That group included union employees Robert Biehle and
Rick Zerr and most of the 13 wore union shirts or other matter
that identified them with Local 520. Ty Runyan stopped the
group and talked with Biehle and Zerr before permitting the 13
to enter the office area in groups of three. Monk was interview
by Ty Runyan on January 3. About 3 weeks after he was hired
Monk wore an IBEW shirt, which was covered. When the shirt
became visible during the day, Superintendent Powell told
Monk that he had to cover the logo.
Ty Runyan phoned Kevin Gustin on December 7 and asked
Gustin to come to work for him at the Town Lake Event Cen-
ter. Runyan testified that Frank Nerio had recommended Gustin
and that Carl Jackson and Nerio had told him that Gustin was a
union member.
Alan Stockton applied around the first week of December
2001 but did nothing to identify himself with the Union. He
was called for an interview and wore an IBEW pencil clip. Ty
Runyan talked to him during the interview and told Stockton
that he could not wear anything to work that showed union
affiliation and that he would have to remove his pencil clip. Ty
Runyan testified that he knew Stockton was a union member
when he hired him.
Eddie Edwards applied for work with Respondent around the
second week of January. Edwards has been a union member for
about a year. When he applied he told the receptionist that he
formerly worked under Kip Powell. Powell had been his super-
visor on a job with Anchor Electric. Anchor Electric is not a
union shop. Greg Taylor interviewed Edwards. During that
interview, Taylor commented that the desired pay listed on
Edward’s application was $21.90 and that sounded like a
scale40 wage. Edwards replied that was a scale wage. Edwards
was hired and assigned to the Town Lake Event Center job.
Edwards wore an IBEW shirt to work on April 19. That was the
last day he worked for Respondent.
Phillip Lawhon first applied for work with Respondent on
January 7 and completed an application on January 15. He
listed two union contractors—(Guy’s Electric and Hill Elec-
tric)—on his application as previous employers.41 Greg Taylor
interviewed Lawhon that day. He asked Lawhon if he had any
plans of taking a call from the Union and if Lawhon was going
to stay with 520 or seek permanent employment with Titus.
Greg Taylor testified that he did interview Lawhon. He was
questioned during the hearing as to whether he asked Lawhon if
he would take a call from the Union. He replied that would not
be out of the ordinary. “We are looking for long-term people,
so that does happen on occasion.”
The above evidence does support Respondent’s argument
especially that it knew of their union preferences before it hired
Monk, Gustin, Stockton, and Lawhon. Eddie Edwards only
commented that he had requested scale wage for the Town
Lake Event Center job. None of those five, with the possible

40 Greg Taylor testified that scale wage is a set dollar amount that is
set by the general contractor.
41 Ty Runyan admitted that Guy’s Electric was a union contractor.
exception of Gordon Monk, did anything before being hired to
show interest in organizing Respondent.
The alleged refusal to hire applicants included two paid un-
ion organizers and two others, like Gordon Monk, that appeared
at Respondent’s facility seeking work in a group of 13 that
included the two paid union organizers and a majority of the 13
wearing union clothing. Those two others were Keith Richards
and John Voight. All those applicants except possibly Sherry
Passmore and Wayne King were more involved in union orga-
nizing that Gordon Monk or any other known union affiliated
employees. Animus may be shown by evidence that an em-
ployer refuses to hire employees that it feels may engage in
union organizing activity even though it is willing to hire union
members that show no tendency to organize. Therefore, I am
not convinced on the basis of the full record that Respondent
failed to demonstrate union animus. In view of the full record
including my findings herein of unfair labor practices and other
evidence showing Respondent’s hostility to union organization,
I am convinced that the opposite is true.
I shall consider each of the alleged discriminatees beginning
with the alleged unlawful terminations:
Means
Tommy Means had a number of incidents regarding his union
activity. Ty Runyan told Tommy Means that he had learned
that Means was union and Runyan showed him a computer
screen and said that his lawyer had told him to make that list of
employees that were union. On February 7, Means wore a un-
ion shirt to work and his foreman, Scott Smith, sent him to the
office.
After agreeing with Ty Runyan to buy Titus shirts, Runyan
sent Means home when his foreman said that he did not want
Means back on the job and, among other things that Means had
threatened to sue the Company. As to how Respondent took
Means’s alleged threat to sue, Ty Runyan was asked during the
hearing:

Q. So did you think that was a joke? You said it was a
lot of nonsense.
A. Not necessarily a joke, it was just a statement that
was made that, you know, I wasn’t scared that he was go-
ing to sue me, no. [Tr. 795.]

Nevertheless, Runyan told him to go home and phone in the
next morning. When Means phoned Runyan said that he was
letting him go.
Credibility
I credit the testimony of Tommy Means. Other evidence cor-
roborated a great deal of his testimony.
Findings
That chain of events shows that Respondent was motivated
to discipline Means because he violated Respondent’s unlawful
rule prohibiting the wearing of union logos. The initial disci-
plinary action included sending Means to talk to Ty Runyan
about Means wearing a union shirt. In view of my finding
above that Respondent’s rule against wearing any including
union logos, constituted an unfair labor practice, I must con-
clude that Respondent initiated disciplinary action against
TITUS ELECTRIC CONTRACTING 1379
Means in violation of Section 8(a)(1) and (3). That also shows
that Respondent was motivated to discipline Means because of
its union animus. However, I shall consider whether Respon-
dent, by showing that he was sent home because of his com-
ment that he may sue the Company and discharged the next day
because of additional problems on the job, proved it would
have discharged Means in the absence of his union activities.
Respondent argued that Means was not discharged because
he wore union logos. Instead, he was discharged after his fore-
man, Scott Smith, complained that he had threatened to sue the
Company.42 However, as shown above, Ty Runyan admitted at
the hearing that he did not believe Means actually planned to
sue the Company.
Instead, the facts show that after their confrontation over
Means wearing union insignia, Scott Smith sent Means to the
office and subsequently told Ty Runyan that he did not want
Means back on the job. Nothing occurred after Smith sent
Means to the office that constituted an alleged basis for Means
discharge. Instead, Respondent claimed that Means’ threat to
sue, which had occurred some time before February 7, was a
reason it discharged Means. However, I am convinced that was
a mere pretext. If, as Respondent now contends, it fired Means
because of the threat to sue, why was he not disciplined at the
time he made the threat. Instead Respondent did nothing be-
cause of that event.
It is true that the record supports Respondent’s argument that
Ty Runyan planned to send Means back to the job after Means
agreed to buy and wear Titus shirts. However, the same super-
visor that sent Means to the office because of his union insignia
told Runyan that he didn’t want Means back on the job. Scott
Smith with the full knowledge of Ty Runyan then used an ac-
tion by Means before any consideration was given to discipli-
nary action, to justify keeping Means off the job. Runyan then
adopted that reasoning as justification to discharge Means.43 I
find the contention that it discharged Means because he threat-
ened to sue was a pretext and Means was actually discharged
because he confronted Foreman Scott Smith wearing union
insignia. I also find that Respondent failed to prove it would
have discharged Means in the absence of his union activity.
Gonzalez
Jesse Gonzalez testified that he showed Ty Runyan his union
classification on February 13. Gonzales was being evaluated
and had requested a pay raise. He showed the union classifica-

42 Smith and Runyan testified that Scott Smith told Runyan over the
speaker phone with Means listening that Means had threatened to sue
because Smith had allegedly taken his scissor lift away while Means
was on the roof. Means testified that he threatened to sue because of
pain to his knees caused by working condition. I find it unnecessary to
determine which version is credible in view of my determination that
Runyan did not believe Means was seriously threatening to sue the
Company.
43 Runyan testified that he investigated Smith’s allegations about
Means after their three-way phone conversation. Scott Smith allegedly
told him that Means’ work performance was not good and he was given
examples of how Means had failed to perform adequately. However,
there was no showing that anything discovered by Runyan that after-
noon, would have resulted in Means being discharged in the absence of
his wearing union insignia to work.
tion to support his request for higher wages. That document
was received in evidence as General Counsel’s Exhibit 5 and
shows a heading of “INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS OFFICIAL RECEIPT.” The
document shows that Jesse Gonzalez has a trade classification
of “JIW.”
Runyan had marked Gonzalez’ evaluation before being
shown the union classification. Gonzalez received seven 3s and
two 4s on his evaluation (R. Exh. 3).44 At the conclusion of the
evaluation according to Gonzalez, Runyan remarked to Gon-
zalez that “those are your Union brothers out . . .” (there on the
picket line).
Ty Runyan denied that he saw Gonzalez’ union classification
and he denied knowing that Gonzalez was affiliated with the
Union until after Gonzalez was discharged.
The next day after his evaluation Gonzalez’ foreman sent
him to Kip Powell and Powell told him that he was asking for
more money and Powell could not afford that. Powell sent Gon-
zalez to Runyan where he was told he was fired. Gonzalez
asked why he was fired and Runyan said this is an at-will state
and I don’t have to give you’re a reason. Runyan then referred
to the picket line a second time and told Gonzalez that he could
now go out and join his union brothers.
Credibility
There was a conflict in the testimony of Jesse Gonzalez and
Ty Runyan. Among other things Gonzalez testified that he
showed Runyan his union classification during a February 13
evaluation in order to support his request for a wage increase.
Ty Runyan denied that he saw Gonzalez’ union classification
and he denied knowing that Gonzalez was affiliated with the
Union until after Gonzalez was discharged.
Runyan disputed Gonzalez testimony that while Gonzalez
was waiting in the office for his evaluation, he saw Runyan
moving from the lobby and his office and he overheard Runyan
say, “Call the police. Tell them they’re—they’ve got guns. Tell
them we’ve got threats to our lives. Tell them, you know,
they’re—they’ve got profanity on their signs, and things of this
nature.” In addition to Runyan, Robin Escobedo disputed Gon-
zalez’s testimony in that regard. Moreover, there was no evi-
dence that anyone with Respondent phoned the police that day
and complained about guns, threats to lives or profanity of the
picket signs. I am convinced that Gonzalez exaggerated his
testimony as to Runyan’s action while Gonzalez was waiting
for his evaluation.
However, I also have some problems with Ty Runyan’s tes-
timony regarding Jesse Gonzalez. I am especially concerned
about Runyan rating Gonzalez average to above average on his
evaluation and then discharging Gonzalez the following day.
According to Runyan he phoned Gonzalez’ supervisor, Kip
Powell, because Gonzalez asked for a raise at the conclusion of
his evaluation. Powell replied to the effect that not only would
he not recommend a raise but also he would recommend Gon-
zalez’ discharge. However, despite that unlikely coincidence of
Gonzalez being discharged on the day after an average to

44 The grade of three indicates average on an evaluation and four in-
dicates above average.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1380
above-average evaluation, the evidence does show that Gon-
zalez was assigned the job of running conduit in a stairwell and
was told the sheetrock installers wanted the job done quickly
because the stairwell was in line for sheet rocking. Gonzalez
did not complete the job before the stairwell was sheetrocked
and the general contractor criticized Respondent’s people.
Findings
That evidence illustrates that Gonzalez’ discharge was mys-
terious. However, in the absence of knowledge, I cannot find
that Gonzalez’ union affiliation played a part in his discharge.
Therefore, I find that Respondent was not shown to have dis-
charged Gonzalez out of union animus and I find that Respon-
dent did not engage in unfair labor practices in the discharge of
Jesse Gonzalez.
Gustin and Stockton
Kevin Gustin and Alan Stockton were laid off on May 30.
Respondent knew of Gustin’s union affiliation when he was
hired.45 Although Stockton was not a union member, he wore
an IBEW pencil clip to his job interview and Ty Runyan told
him that he would have to remove his IBEW pencil clip. Run-
yan testified that he knew that both Gustin and Stockton were
union members when he hired them.
Gustin testified that he was one of several employees that
were told by Kip Powell in January or February 2002 to remove
union logos or leave the job. In addition to logos on their hard-
hats, Gustin and Allen Hughes wore union shirts. Stockton
testified that Ty Runyan talked to him and Gustin about 2
months after he was hired. Runyan told them that he didn’t
want any union talk on the job. Stockton testified that Kip
Powell told him and other employees in February, they would
have to remove IBEW stickers or they would have to leave the
job.
Kevin Gustin and Alan Stockton testified they passed out a
flyer at work.46 Gustin recalled passing out the flyer during the
week before he was let go on May 31. Stockton testified that he
passed out the flyer during the last month he worked with Re-
spondent. That flyer (CP Exh. 6) was entitled “Team Titus
Organizer” and it stated in the second sentence that certain
Titus and/or tradesmen employees may be entitled to backpay
awards. The third sentence states that “IBEW” is prepared to
help. Among other things, the leaflet states that union members
filed a complaint with the city; that employees have an absolute
right to discuss their wages; and don’t “let Ty or Kip fool you
into thinking that you have to keep it a secret from your co-
workers.”
Credibility
As shown above, I credit the testimony of Kevin Gustin. I
also credit Alan Stockton. However, there was no testimony or
other evidence that Respondent was aware of Gustin and Stock-
ton passing out flyers.

45 As shown above, Gustin testified that Ty Runyan told him before
he was hired on December 10, that Frank Nerio had recommended him
and that Nerio had said that Gustin was a union member.
46 Stockton testified they usually passed out the flyers between the
parking lot and the jobsite.
Findings
Counsel for the General Counsel argued that Respondent
was either directly aware of Gustin and Stockton’s handbilling
or could reasonably infer that activity because the two were the
last union employees left on the Town Lake Event Center job at
the time of the handbilling.47 Moreover, the evidence shows
that Respondent valued the work of Gustin and Stockton and
Ty Runyan openly praised their work.48 Early in May Kip Pow-
ell told Gustin that he intended to keep Gustin and Stockton
until the end of the project and he would lay off less productive
workers.
Ty Runyan talked to Kevin Gustin. He said that Eric Mates
told him that Gustin said to Robert Biehle at the union hall that
he was in the Union and was going to stick with them. Gustin
denied to Runyan that he had said that to Biehle.
I found that Respondent engaged in an 8(a)(1) violation
when Ty Runyan’s said to Stockton and Gustin in January or
February that he did not want any union talk on the job. The
evidence regarding events proximate to their layoffs shows that
Gustin and Stockton did engage in handbilling the week before
the layoff. However, Respondent pointed out that no evidence
supported a finding that it knew of that handbilling activity.
In that regard, I must first consider whether the record sup-
ported a finding that Respondent knew of that activity at the
time of their layoff. Counsel for the General Counsel agreed
there is no direct evidence that Respondent knew of Gustin and
Stockton’s handbilling. However, The General Counsel argued
that direct evidence of knowledge is not needed citing E. Mis-
han & Sons, Inc., 242 NLRB 1344 (1979); Hospital San Pablo,
Inc., 327 NLRB 300 (1998).
The Board in E. Mishan & Sons, Inc., supra, overruled the
administrative law judge in finding an unlawful discharge in the
case of Jose Vasquez even though there was no evidence of
actual knowledge of Vasquez’ union sentiments. However, in
that case, the employer’s president approached Vasquez and
employee Willie Vega immediately after he had refused the
union’s demand for recognition. A union representative had
made the demand for recognition in person. The president
asked Vega if he had joined the union. Up until that moment
Vega had told the president when asked, that he knew nothing
about the union. However on that occasion Vega responded that
he had joined the union. The employer’s president called Vega
a liar and turned to Vasquez and told him to “get out of here.”
The Board noted that Vasquez’ discharge immediately fol-
lowed the union’s demand and accompanied respondent’s
unlawful interrogation of Willie Vega. Moreover, the Board
found the reason given by the employer for Vasquez’ discharge
lacked substance.
In San Pablo, Inc., supra, the Board found that the alleged
discriminatee engaged in extensive and prolonged union activi-

47 Before Gustin and Stockton passed out leaflets within a week of
their termination, Respondent had terminated three of the five union
employees that Gustin recalled worked that job. Those three termina-
tions included Jesse Gonzales on February 14, Gordon Monk on April
10, and Eddie Edwards on April 22, 2002.
48 Both Gustin and Stockton received high evaluations (GC Exh. 10–
11).
TITUS ELECTRIC CONTRACTING 1381
ties, that the employer knew the employees were engaged in
union activities, the employer knew those activities had origi-
nated in the alleged discriminatee’s department, the employer
kept a list of employees involved in the organizing effort and
the employer treated the alleged discriminatee in a disparate
manner. As to the disparate treatment the employer discharged
the alleged discriminatee for leaving work early while it failed
to even discipline another employee that also left work early.
Here, unlike E. Mishan & Sons, Inc., supra, there were no
contemporaneous unlawful acts at the time of Gustin and
Stockton’s layoffs and there was no showing of proximate ac-
tion such as rejection by the employer of the union’s demand
for recognition. Moreover, there was evidence that supported
Respondent’s basis for the layoffs.
Unlike the situation in San Pablo, Inc., there was no showing
that Gustin and Stockton were treated in a disparate manner. In
fact other employees not affiliated with the Union were also
laid off at the time of Gustin and Stockton’s layoffs.
In view of the above, I cannot infer knowledge of Gustin and
Stockton’s handbilling. The record does show that Respondent
knew of Gustin and Stockton’s union activities for a number of
months before they were laid off. In fact, the record shows that
Respondent knew of Gustin’s union membership before he was
hired. Despite that knowledge Respondent sought out Gustin
and asked him to go to work on its Town Lake Events Center
job.
Nevertheless, I shall consider whether Respondent would
have terminated Stockton and Gustin in the absence of union
activities. Respondent argued that Respondent terminated eight
employees49 during the week of May 30, 2002 (R. Exh. 25),
including Gustin and Stockton and there was no evidence that
any of those other than Gustin and Stockton were union mem-
bers. Respondent has not hired another electrician50 and has not
had any tradesmen or other temporary employee assigned to
any job in the Austin area, since Gustin was laid off. It also
pointed to the testimony of Alan Stockton that the employees
were anticipating layoffs at the time of his layoff because the
project was near completion.
I find that the General Counsel failed to prove that Respon-
dent laid off Gustin and Stockton because of its union animus
and I find that Respondent proved that Gustin and Stockton
would have been laid off in the absence of union activity.
Lawhon and Blair
On June 10 Respondent terminated Phillip Lawhon and John
Blair after Lawhon and Blair passed out handbills critical of
Respondent’s failure to provide its employees with health care
insurance. Lawhon applied for work on January 7. He listed
two union contractors on his application. During his job inter-
view, Greg Taylor asked Lawhon if he intended to take a call
from the Union or if he was going to seek permanent employ-

49 R. Exh. 25 shows that Randolph Buffington was terminated on
May 28, 2002; Dixie R. Ploughman was terminated on May 29, 2002;
Randall Brown, Kevin Gustin, Richard Rivera, Alan Stockton, and
William Westerman were terminated on May 30, 2002; and Steve
Glenn was terminated on June 3, 2002.
50 Ty Runyan testified that he has not hired an electrician since the
end of May 2002.
ment with Respondent.51 Ty Runyan told Lawhon that he had
been dealing with the Union for quite a while and if Lawhon
wanted to work for Respondent he would have to just come in
and do his job. On May 28, Lawhon was working with a union
sticker on his tape measure. Sam Ramirez told him to remove
the union sticker.
John Blair who is an unlicensed journeymen electrician
started working for Respondent around January 7 or 8. He was
not a member of the Union. However, he signed a union au-
thorization card on January 16. After working at the Town Lake
Event Center job for about 3 weeks he was transferred to Re-
spondent’s job at the Omni Hotel. Sam Ramirez was his super-
visor at the Omni. In June, Ramirez asked Blair if he was a
union member. Blair said that he was and when asked by Rami-
rez how long he had been a member he replied 2 weeks.
On June 4, Sam Ramirez asked Lawhon whether John Blair
had joined the Union. Lawhon eventually admitted that Blair
had joined the Union. Ramirez asked if Lawhon had gotten
Blair in the Union and Lawhon replied that Blair made his own
decisions. The next day Ramirez asked Lawhon if he was seri-
ous, did John Blair really join the Union. Lawhon said that
Blair had joined the Union. Ramirez questioned Lawhon re-
garding Blair’s classification, his tests and his pay rate.
Ramirez then asked Blair if he was in the Union and when,
Blair said he was, Ramirez asked him how long he had been in
the Union.
The evidence showed that Blair and Lawhon were taken off
the Austin Center job at the Omni Hotel because they each
passed out leaflets52 during their lunchbreak around June 10.
Subsequently, Greg Taylor told them that Respondent had no
other work. Blair and Lawhon were laid off. Taylor testified at
the hearing that he made the decision in cooperation with a
customer.
On the last day, Phillip Lawhon and John Blair worked on
the Austin Center job Lawhon and Blair were handbilling (GC
Exh. 27)53 at the jobsite during their lunchbreak. The jobsite
was Austin Center, which includes the Omni Hotel on one side
and offices on the other.
Blair testified that he passed out handbills at the jobsite. Af-
ter about 10 minutes of passing out handbills, the hotel manager

51 Greg Taylor admitted it would not have been out of the ordinary
for him to question Lawhon about his long-term employment plans.
52 The owners of this establishment are undermining Health Care
Standards in the community by employing an electrical contractor,
Titus Electrical Contracting, that does not pay for full family health
care coverage. There are many local electrical contractors in Austin
that do pay for full family health care coverage. Please tell the man-
agement of this establishment that you support high community stan-
dards for health care and wish that they would too. The employees of
Titus Electrical Contracting appreciate your support in this matter.
53 The handbill read: “The owners of this establishment are under-
mining Health Care standards in this community by employing an
electrical subcontractor, Titus Electrical Contracting, that does not pay
for full family health care coverage. There are many local electrical
contractors in Austin that do pay for full family health care coverage.
Please tell the management of this establishment that you support high
community standards for health care and wish that they would too. The
employees of Titus Electrical Contracting appreciate your support in
this matter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1382
and one other person came up to him and Phillip Lawhon. The
manager told Lawhon that he had to leave because there was
soliciting going on with the handbills. Lawhon replied that was
his work area and he wasn’t trespassing or soliciting. Lawhon
phoned Sam Ramirez on his cell phone and he and Blair walked
out of the building. They met Ramirez in the parking garage
and Ramirez said that he was going in and straighten out the
matter. Ramirez told Blair and Lawhon to go to the gang box
and wait. Ramirez asked Blair if he had distributed any litera-
ture and Blair said that he had. Ramirez asked Blair if he had
been put up to it and Blair said no.
A policeman came to Blair and Lawhon at the gang box and
told them they had trespassed and were still trespassing. Then
Sam Ramirez and Gaylord Pierson showed up with manage-
ment from the Golden Crescent. Ramirez and Pierson told the
policeman that Blair and Lawhon were no longer allowed on
the property. Ramirez told Lawhon and Blair they would be
escorted to get their tools and they should go to the shop. Greg
Taylor told Lawhon and Blair that Respondent had no other
place to send them.
Credibility
I credit the testimony Phillip Lawhon and John Blair. The re-
cord included testimony by several witnesses to the events at
the Austin Center. There is no dispute but that Lawhon and
Blair were handbilling on the Austin Center premises during
their lunchbreak. I especially credit their testimony regarding
conversations with supervisors including those on June 10. I
also credit Gaylord Pierson to the extent his testimony agrees
with the memorandum he wrote Ty Runyan on June 10 (GC
Exh. 24).
Findings
The Charging Party cited Gayfer’s Department Store, 324
NLRB 1246, 1249 (1997); NLRB v. PNEU Electric, Inc., 309
F.3d 843 (5th Cir. 2002), in support of its argument that Re-
spondent illegally discharged Blair and Lawhon. Respondent
argued that Lawhon and Blair were terminated because the
owner of the jobsite would not allow them back on the premises
and Titus had no other work.
In consideration of Respondent’s argument I note that Phillip
Lawhon testified that he told Sam Ramirez over the phone that
he had been kicked out of the building and told he was trespass-
ing. Ramirez asked if he had been handbilling and Lawhon said
that he had. Ramirez then told Lawhon that he knew better than
that shit that he knew the consequences and now he was going
to have to deal with them. Then, when they met, Ramirez told
Lawhon he needed to quit these childish games and he was an
idiot and needed to grow up. Gaylord Pierson told Lawhon to
go to the Titus office.
Blair testified that Ramirez and Pierson told the policeman
present that Blair and Lawhon were no longer allowed on the
Austin Center property. Ramirez told Blair and Lawhon they
would be escorted to get their tools and they should then go to
Respondent’s shop.
Gaylord Pierson testified in some accord with Blair and
Lawhon. Pierson also prepared a contemporaneous memo to Ty
Runyan concerning the June 10 incident (GC Exh. 24). In that
memo Pierson stated that he told Kim Williams, the manager of
Crescent Realty, that he could not stop Blair and Lawhon from
handbilling since they were on their lunch hour but that she
should call the police. Crescent told Pierson they wanted Blair
and Lawhon terminated on the spot and Pierson replied that he
“needed more reason than the handing out the fliers.” Pierson
wrote in the June 10 memo that the police came and asked Kim
Williams if “she wanted to go ahead with the Trespassing
Warning; she turned to me and asked if she did, and I told her if
she did not want them back here again she should say yes.”
Blair and Lawhon went to Respondent’s office as directed
where Greg Taylor told them that he had no other place to send
them.
In the case cited by the Charging Party (PNEU Electric, Inc.,
supra), the court considered whether both the direct employer
and the contracting party engaged in unfair labor practices by
discharge due to union activity. Here, there is no contention
that the contracting party engaged in unfair labor practices.
Instead, the only issue is did Respondent engage in unfair labor
practices by terminating Blair and Lawhon.
While Respondent argued to the effect that it was the con-
tracting party, Crescent Realty, that took action, which resulted
in the layoff of Blair and Lawhon, the record shows that Re-
spondent was very involved in having Blair and Lawhon re-
moved from the Austin Center job.
When Lawhon phoned Sam Ramirez and told him that he
had been kicked out of the building and he had been handbill-
ing, Ramirez replied that Lawhon “knew better than that shit
and he knew the consequences and now he was going to have
to deal with them.” As shown above, Gaylord Pierson took and
active role in suggesting to Crescent Realty that it call the po-
lice and that Crescent press trespassing charges against Blair
and Lawhon if it wanted them off the Austin Center job.
Employees of a subcontractor who regularly and exclusively
work on someone else’s property, are rightfully on that prop-
erty pursuant to the employment relationship, and those em-
ployees have a right to engage in Section 7 activity during
nonworking time in nonwork areas (Gayfers Department Store,
324 NLRB at 1249–1250; Dunes Hotel, 284 NLRB 871, 876–
878 (1987)). The Board has held in situations similar to those
here where the hand billing occurred in hotel and offices lob-
bies and common areas,54 that such activity is protected (New
York Hotel & Casino, 334 NLRB 772 (2001)).
I find that Blair and Lawhon’s handbilling activity was pro-
tected and that Respondent took action to terminate their em-
ployment. I find that Respondent failed to prove that Blair or
Lawhon would have been terminated in the absence of their
protected activity and I find that Respondent terminated the
employment of Lawhon and Blair in violation of Section
8(a)(1) and (3).
Edwards
Eddie Edwards had previously worked under Kip Powell
when he applied for work with Respondent in January 2002. On
April 19, Edwards wore an IBEW shirt to work and his super-
visor, Kip Powell, told him that he couldn’t wear that shirt.

54 See CP Exh.13.
TITUS ELECTRIC CONTRACTING 1383
Powell told Edwards to go home and change his shirt. Edwards
replied that since he couldn’t wear his shirt he quit.
Credibility
I credit the testimony of Eddie Edwards. There was little dis-
pute as to the events leading to his quitting.
Findings
The Board has found that employees are protected from re-
taliation by refusing to obey a rule promulgated and enforced in
violation of the Act’s prohibitions against unfair labor practices
(Earthgrains Co., Inc., 334 NLRB 1131 (2001); Intercom I
(Zercom), 333 NLRB 223 (2001); Control Services, 303 NLRB
481, 485 (1991); Mayrath Co., 132 NLRB 1628 (1961)).
Counsel for the General Counsel and the Charging Party ar-
gued that by telling Edwards that he could not wear an IBEW
shirt at work, Respondent was giving Edwards a Hobson’s
Choice of obeying an unlawful rule or quitting.
Edwards was told he had to remove his IBEW shirt. Edwards
had several choices as to how he treated Powell’s directive. He
could have simply obeyed Respondent’s unlawful rule; or he
could have protested the rule by simply refusing to remove the
shirt; or he could have quit. By electing the third option Ed-
wards joined the issue and raised the question of whether an
employee is protected under the Act if he or she quits work
rather than obey an unlawful rule. As shown above, I have
found herein that Respondent engaged in conduct in violation
of Section 8(a)(1) by promulgating and enforcing its rule
against wearing advertising including union logos, to work.55
Respondent argued that Eddie Edwards was never threatened
with discharge and, in accord with Board law, that is a neces-
sary element to proving a “Hobson’s Choice” allegation (Inter-
con I (Zercom), supra; Masdon Industries, 212 NLRB 505
(1974)).
The Board found in Intercon I (Zercom), supra, that where
an employee was told in effect, if she did not improve her atti-
tude regarding the union within 4 days, the next action would
be termination. The administrative law judge’s finding of no
violation because the employer’s words did not expressly con-
vey that the employee would be discharged if she did not aban-
don the union, was overturned. The Board found instead that
the employer told the employee that she had 4 days to abandon
the union if she wanted her job. Therefore, the employee was
faced with a Hobson’s Choice of relinquishing her statutory
rights or facing termination. The Board found the employer’s
threat referred to the employee’s “negative attitude” and even
though the employee was given 4 days to change her attitude,
the threat was imminent and constituted a violation.
Here, Edwards was never threatened with discharge. Instead,
Kip Powell told him he couldn’t wear the shirt with the IBEW
logo and to go home and change his shirt. Edwards replied that
since he couldn’t wear the shirt he quit.
I agree with Respondent. The General Counsel failed to
prove that Eddie Edwards was threatened with discharge. For
that reason, I find that Respondent did not engage in unfair

55 Obviously, there would be no violation in the case of Edward’s al-
leged “constructive discharge” if my determination is overturned and
the rule is found to be a legal rule.
labor practices through a constructive discharge of Eddie Ed-
wards.
Refusing to hire John King after an interview56; and refusing
to hire Rick Zerr, Robert Biehle, Keith Richards, John Voight,
and Sherry Passmore after they applied for work.
As shown above, approximately 13 people went to Respon-
dent’s office on November 15 seeking electrical work. Many of
the 13 were wearing logos that identified them with the IBEW.
Those 13 included John Voight, Robert Biehle, Keith Richards,
Rick Zerr, Gordon Monk, Lewis Grimsley, and Mike Latter-
man. Several of those people returned to Respondent’s office
and applied on one or more occasions after November 15.
Sherry Passmore came in on December 12 along with a
number of other people. Several of those identified themselves
with the Union. Rick Zerr was also in that group.
Jack Wayne King applied for work on December 20. Unlike
the other alleged refusal-to-hire discriminatees, King pro-
gressed through the application stage and was granted an inter-
view. King showed his past experience included union contrac-
tors. During his job interview, Ty Runyan asked King how long
he had been on the books. King said that he had been on the
books about 3 months.
Although Respondent did hire some of those that identified
themselves as being with the Union, the General Counsel al-
leged that it unlawfully refused to hire Zerr, Biehle, Richards,
Voight, and Passmore after they tried to apply for work; and
Respondent unlawfully refused to hire King after his union
affiliation was revealed in his job interview with Respondent.
King, Zerr, Biehle, Richards, Voight, and Passmore all in-
formed Respondent of their experience as journeymen electri-
cians.57 Three of those, Zerr, Richards, and Passmore, had pre-
viously worked on the same job Respondent was seeking to
man at the time of their applications. That was the Town Lake
Event Center job, which had been manned by Guy’s Electric
until November 8, 2001. The president of Guy’s Electric, Jean–
Guy Fournier, testified that all three of those applicants were
good employees when they worked for him on the Town Lake
Event Center job.
Zerr, Biehle, Richards, Voight, and Passmore supplied Re-
spondent with the information it requested on its register. Al-
though none of those five gave detailed information regarding
their experience each of them supplied the information Re-
spondent permitted on its register. King, who submitted an
application, supplied a more detailed list of his work experi-
ence, which included the listing of some prior employers that
were union contractors.
As to whether the applicants had the required experience,
Respondent knew from its register that three of the applicants
had over 20 years’ experience. Those were Zerr, Biehle, and
Richards. Sherry Passmore had been a journeyman for 10
years; Jack Wayne King had been a journeyman electrician for
8 years; and John Voight had been a journeyman electrician for
4 years.

56 The complaint alleged that Respondent also refused to hire Tho-
mas M. Smith following an interview. However, there is no evidence
supporting that allegation.
57 Robert Biehle is a licensed master journeyman electrician.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1384
The landmark case in refusal to hire or consider for hire is
FES, 331 NLRB 9 (2000). As to the requirements set out in
FES which are material to the instant allegations, I must inquire
(1) whether Respondent was hiring at material times; (2)
whether the applicants had the required experience or, alterna-
tively, that the employer had not adhered uniformly to the re-
quirements, or the requirements were pretextual or were applied
as a pretext for discrimination; and (3) the employer was moti-
vated not to hire the applicants by union animus.
The record evidence did show (1) that Respondent was hir-
ing during material times on showing that it hired 51 electri-
cians from November 13 to March 18, 2002 (CP Exh. 8); (2)
Respondent was aware all the alleged discriminatees had the
relevant experience because each one listed his or her experi-
ence to Respondent; and (3) Respondent through the unfair
labor practices found herein as well as other evidence shown
herein demonstrating hostility toward the union organizing
efforts, illustrated its union animus. In view of that evidence
and the testimony at the hearing, I find that all of the alleged
failure to hire discriminatees possessed the experience required
for the jobs filled by Respondent during relevant times.
Moreover, several of the alleged failure to hire discrimina-
tees engaged in picketing at Respondent’s facility from January
2002. Rick Zerr and John Voight testified without dispute they
picketed at Respondent’s facility from January 7, 2002. Sherry
Passmore testified that she picketed on more than one occasion
beginning in late January. There is evidence showing that
Robert Biehle engaged in picketing and was on the picket line
on March 22 as well as on other occasions. I find that the Gen-
eral Counsel has satisfied its burden under FES.
Nevertheless, Respondent contended that it did not hire the
alleged discriminatees for reasons other than their union activ-
ity or affiliation and that it would have refused to hire them in
the absence of union activity and affiliation.
In its brief, Respondent argued that the General Counsel
failed to prove the elements necessary to a finding of refusal to
hire. In regard to Richards, Voight, and Passmore, it argued
there was no evidence of its knowledge of any union activities
or affiliation of the part of any of those three. It argued that
even though Richards testified that he was wearing an IBEW
shirt when he signed the Titus call-in log, there was no evi-
dence that Ty Runyan knew Richards name at that time and that
Richards’s name became just another name on the computer
screen to Runyan. I reject that argument. During a union cam-
paign as heated as this campaign it would be naïve to think an
employer failed to note an applicant wearing a union shirt.
Moreover, as shown above, Ty Runyan maintained a computer
list of all union people on his job. Obviously, he had to take
steps to discover the information necessary to list those union
employees.
Respondent pointed out that it hired applicants known to be
union members and that shows that it did not refused to hire
anyone because of their union membership. However, of all its
union applicants, only a few openly showed their union sup-
port.58 Those that openly supported the Union included all the

58 The record does show that Respondent hired Alan Stockton even
though he went to Respondent to apply along with a group from the
alleged discriminatees. Zerr and Biehle were union employees.
Zerr, Biehle, Richards, and Voight applied in a group of 13 and
several of those wore union identifying logos. That group had a
confrontation with Ty Runyan at Respondent’s facility. Sherry
Passmore applied later on December 12 along with several
others including Rick Zerr who identified themselves with the
Union. On that occasion, Greg Taylor told Zerr to get the hell
out of the office. All that evidence contributes to a finding that
Respondent wanted to avoid hiring union organizers. Therefore,
I not persuaded by Respondent’s argument that it’s hiring of
some union members proved that it lacked union animus.
However, one issue regarding refusal to hire was not dis-
puted. Greg Taylor testified that to his knowledge, Respondent
has not used any tradesmen temporary workers on any job in
the Austin Center area since May 30, 2002.
I shall consider whether Respondent proved it would not
have hired the alleged discriminatees in the absence of union
activity.
King
Jack Wayne King was interviewed by Ty Runyan. King
listed some union contractors in his initial efforts to go to work
for Respondent. During their subsequent interview, Ty Runyan
asked how long he had been on the books.
Respondent argued that the Union had nothing to do with its
refusal to hire King. Moreover, after reviewing King’s resume,
which showed he had worked for union contractors, King was
permitted to fill out an application59 and was asked to appear
for an interview. Ty Runyan testified that King smelled of al-
cohol at his interview and it was that which led Runyan to re-
ject King’s application. Respondent argued that while King
testified he had not had any alcohol on the morning of his in-
terview, he did not deny that he consumed alcohol the night
before.
Credibility
I credit the undisputed testimony of Ty Runyan regarding
King. He testified that King smelled of alcohol during his job
interview. When asked about alcohol during cross-examination,
King testified that he was not sure whether he had been drink-
ing the night before.
Findings
In view of my credibility determinations, I find in agreement
with Respondent that King smelled of alcohol at the time of his
job interview. The Board in FES made it clear that it would not
find a violation where an employer would not have hired the
alleged discriminatee in the absence of protected activities.
Here, there was no showing that Respondent hired anyone that
smelled of alcohol during his or her employment interviews.

union hall and he wore an IBEW pencil clip during his prehire inter-
view with Ty Runyan. Additionally, Respondent hired Kevin Gustin
and Phillip Lawhon even though it knew Gustin and Lawhon were in
the Union.
59 The evidence showed that applicants were not routinely permitted
to submit an application. Instead, the routine involved those that ap-
peared at Respondent’s facility seeking employment, were put on an
employment register and only upon review of the register, did Respon-
dent ask some of those listed to complete an application.
TITUS ELECTRIC CONTRACTING 1385
There was evidence through King, that Respondent had a repu-
tation of seeking clean-cut applicants. Therefore, I find Re-
spondent showed it would have refused to hire King in the ab-
sence of his union activity.
Richards
As to Keith Richards, Ty Runyan testified that he was told
that Richards liked to fight. A person named Nick Lyons saw
Richards at Titus and told Ty Runyan to be careful of Richards
because he liked to fight. Lyon mentioned an incident on a job
he worked with Richards. Runyan checked with Carl Jackson60
and Jackson confirmed what Nick Lyons had told Runyan and
Jackson also told Runyan about another incident where Rich-
ards had “gotten into it” with the superintendent.
Credibility
I credit the testimony of Ty Runyan as to the reason why he
decided against offering work to Richards. Runyan testified as
to specifics regarding how he learned that Richards like to fight
and that evidence was not rebutted.
Findings
Here again, as in the case of King, Respondent proved that
factors other than protected activity, was involved in the deci-
sion to reject Richards. The evidence Respondent offered to the
effect that it learned Richards liked o fight was not rebutted and
there was no showing that Richards was treated with disparity
in that regard. There was no showing that Respondent did not
normally reject applicants that like to fight. Therefore, I find in
agreement with Respondent that it proved it would not have
hired Richards in the absence of his union affiliation.
Passmore
As to Sherry Passmore, Carl Jackson and Frank Nerio told
Runyan that she had been fired at Guy’s Electric. Jackson and
Nerio said that Passmore had too much to drink during lunch
and could not return to work on one occasion. She and a co-
worker told Guy’s owner they had too much to drink during
lunch and had decided against going back to work.61
Credibility
I credit the testimony of Sherry Passmore and Jean-Guy
Fournier.
Findings
Despite my credibility findings it is correct that Sherry
Passmore and another employee came back late from lunch and
told Guy’s Electric they had too much to drink and decided
against returning to work that day. Even though I credit the
testimony that Guy’s Electric did not discharge Passmore, I
agree with Respondent that it would not have hired Passmore in
the absence of her union activities. Respondent knew that

60 Jackson had worked for Guy’s Electric as project manager on the
Town Center job and Ty Runyan testified that he frequently checked
with Jackson regarding applicants that were former employees of Guy’s
Electric on that job.
61 There was no dispute but that Passmore failed to return to work
because she and a coworker had too much to drink at lunch. There was
a dispute as to whether Passmore was fired for that incident. Guy’s
Electric owner, Jean-Guy Fournier testified that she was not fired.
Passmore had consumed so much alcohol during her
lunchbreak that she and another employee felt they should not
return to work. I find that Respondent acted on the basis of that
information and refused to offer a job to Passmore. Therefore, I
find that Respondent did not engage in unfair labor practices by
failing to hire Sherry Passmore.
Zerr
Respondent argued that it refused to hire Rick Zerr because
of negative references from Carl Jackson and Frank Nerio.62
Both recommended that Respondent not hire Zerr. Jackson
testified that Zerr spent too much time talking on his cell phone
during his employment with Guy’s Electric63 even to the point
of using the cell phone while operating heavy machinery. Nerio
testified that he did not remember making a recommendation to
Respondent regarding Zerr. Respondent pointed out that it hired
known union supporters including Kevin Gustin and Allan
Stockton and that it did not demonstrate union animus.
Credibility
I credit the testimony of Rick Zerr and Jean-Guy Fournier.
Zerr’s testimony shows that he applied for work with Respon-
dent on several occasions beginning on November 15. The
testimony of Zerr and Fournier shows that Respondent recog-
nized Zerr as being affiliated with the Union; that Zerr was a
union steward when he worked for Guy’s Electric; and that
Guy’s owner, Jean-Guy Fournier, permitted Zerr to use his cell
phone to conduct union business during work.
Findings
As shown herein, all the FES criteria were satisfied in the
case of Rick Zerr. Respondent argued that it refused to hire
Zerr because of negative references from Carl Jackson and
Frank Nerio. However, Nerio testified that he did not recall
making a recommendation regarding Zerr. As to Jackson’s
recommendation, he was critical of only one thing in Zerr’s
work and that was Zerr using his cell phone to conduct union
business. I am not persuaded that an employer may legally
refuse to hire anyone associated with a union on showing that it
did so because he was permitted to engage in union steward
business while working for a prior employer. Therefore, I find
that Respondent did violate Section 8(a)(1) and (3) by refusing
to hire Rick Zerr.
Biehle
Respondent argued that Robert Biehle has given inconsistent
reasons why Respondent refused to hire him during these and
civil defamation proceedings. In the civil defamation proceed-
ings Biehle contended that he was denied employment because
Carl Jackson recommended him as “worthless.” Whereas in
these proceedings, Biehle is contended that he was denied em-
ployment because of the Union.

62 As shown herein, before being hired by Respondent after Guy’s
Electric went out of business, both Jackson and Nerio worked for Guy’s
Electric. Jackson was a project manager and Nerio was an area fore-
man, with Guy’s Electric.
63 The evidence was not rebutted that Zerr was union steward on the
Guy’s Electric job and that he used his cell phone while at work with
the consent of Guy’s Electric, to conduct union business.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1386
Respondent also argued that Ty Runyan credibly testified
that he has known Biehle for 16 years; he does not like Biehle
and would not have hired him under any circumstances. Addi-
tionally, Carl Jackson recommended that Respondent not hire
Biehle.
Credibility
I credit the testimony of Robert Biehle and that of Jean-Guy
Fournier. I disagree with Respondent’s argument that Biehle
was inconsistent by claiming in a civil defamation suit that he
was prevented from work by Carl Jackson saying he was
worthless on the one hand and by claiming he was denied em-
ployment because of his union affiliation in these proceedings.
Both could be correct.
However, I also credit Ty Runyan’s testimony that he did not
hire Biehle because he had known him for 16 years and did not
like Biehle.
Findings
Despite my credibility findings there was no showing that Ty
Runyan was untruthful when he testified that he would not have
hired Biehle because he did not like Biehle. Runyan testified
that he knew Biehle for 16 years and did not like Biehle per-
sonally. It is not unreasonable to believe that employers some-
times refuse to hire people they dislike. Moreover, there was no
showing that Runyan’s dislike for Biehle was based on Biehle’s
exercise of protected activities. I also note there was no rebuttal
to Runyan’s testimony.
Therefore, I am convinced that Respondent proved it would
have refused to hire Biehle in the absence of his union affilia-
tion.
Section 8(a)(4)
By Ty Runyan threatening to lay off employees because of
unfair labor practice charges.
Phillip Lawhon attended classes while working. On April 4,
Ty Runyan came in the class and said he need to speak to those
employees about what the union did to its contractors. Runyan
held up and read a handbill he said had been found on the Town
Lake Event Center job. Ty Runyan asked the 28 employees in
the class if any of them were with the union stuff that’s going
on there.64 Runyan said that since the Union was tying them up
with charges and withdrawing charges, he was not going to be
able to go on bidding at as fast a pace as he had before the un-
ion stuff and that he was going to have to start laying people
off. Ty Runyan said there were union people working at the
Company and that he knew one that he had given a raise and
promoted that was going back and telling the Union what was
going on at the Company.
Credibility
In view of my findings herein, the full record and the de-
meanor of the witnesses, I credit the testimony of Phillip Law-
hon regarding Ty Runyan’s April 4 talk to employees. As

64 There is a question of whether Respondent, through Ty Runyan,
engaged in unlawful interrogation by asking the employees on this
occasion whether they were involved in the union stuff. That matter
was considered above under the heading “By Interrogating employees
about union activities.”
shown above, Lawhon made notes of the talk immediately upon
its conclusion and used those notes in an affidavit to the Re-
gional Office.
Findings
An employer engages in unlawful activity in violation of
Section 8(a)(4) when it threatens employees that layoffs may
occur because of the filing of unfair labor practice charges (Na-
tional Association of Government Employees (International
Brotherhood of Police Officers), 327 NLRB 676 (1999); Larry
Blake’s Restaurant, 230 NLRB 27 (1977); S.E. Nichols Marcy
Corp., 229 NLRB 75 (1977); Portsmith Ambulance Service,
323 NLRB 311 (1997)). Ty Runyan held out to his employees
on April 4, 2002, that he would start laying people off if the
Union continued filing unfair labor practice charges. That con-
stitutes a violation of Section 8(a)(1) and (4).
CONCLUSIONS OF LAW
1. Titus Electric Contracting, Inc. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. International Brotherhood of Electrical Workers Local 520
is a labor organization within the meaning of Section 2(5) of
the Act.
3. By promulgating and enforcing an appearance policy that
discriminatorily prohibited wearing union logos; by threatening
to phone and actually phoning the police because of the Union
picketing Respondent’s facility; by openly photographing the
union picket line; by creating the impression of surveillance of
its employees’ union activities; by engaging in coercisive inter-
rogation of its employees about their union activities; and by
promulgating an unlawful no solicitation policy, the Respon-
dent violated Section 8(a)(1).
4. By discharging its employees Tommy Means, Phillip
Lawhon, and John Blair, and by refusing to hire Rick Zerr, the
Respondent violated of Section 8(a)(1) and (3).
5. By threatening layoffs if the Union continued to file unfair
labor practice charges, Respondent violated Section 8(a)(1) and
(4).
6. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6),
(7), and (8) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist there from and to take certain affirmative action designed
to effectuate the policies of the Act.
The Respondent having engaged in unlawful conduct by dis-
criminatorily discharging employees Tommy Means, Phillip
Lawhon, and John Blair, it must offer them reinstatement to
each of their former jobs or, if one or more of those jobs no
longer exists, to a substantially equivalent position; and Re-
spondent must make Means, Lawhon, and Blair, whole for all
loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
TITUS ELECTRIC CONTRACTING 1387
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
As I have found that Respondent has illegally refused to hire
Rick Zerr in violation of sections of the Act, I shall order Re-
spondent to offer Zerr immediate and full instatement to a posi-
tion for which he is qualified or, if those positions no longer
exist, to a substantially equivalent position. I further order Re-
spondent to make Zerr whole for all loss of earnings suffered as
a result of the discrimination against him. Back pay shall be
computed as described in F. W. Woolworth Co., supra, with
interest as described in New Horizons for the Retarded, supra.
[Recommended Order omitted from publication.]