Town & Country Electric

National Labor Relations Board - Board Decisions

Dec 16, 1992

309 N.L.R.B. 1250 (N.L.R.B. 1992)

1250
309 NLRB No. 181
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Oral argument additionally was held in Sunland Construction
Co., Cases 15–CA–10618–1 et al. and Sunland Construction Co.,
Cases 15–CA–10927–2 et al.
2 The Chamber of Commerce did not file a brief. Subsequently, the
AFL–CIO submitted a letter citing a recently issued relevant court
decison.
3 Respondent Town & Country Electric has excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions un-
less the clear preponderance of all the relevant evidence convinces
us that they are incorrect. Standard Dry Wall Products, 91 NLRB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
Respondent Town & Country Electric further contended that the
judge was biased in that he prejudged the issues before him. Based
on our review of the entire record, including the judge’s decision,
we conclude that the Respondent’s contentions are without merit.
4 Although he found that Respondent Ameristaff Personnel Con-
tractors, Ltd. coercively interrogated an applicant for employment,
the judge concluded that the violation was adequately remedied by
his recommended Order regarding Ameristaff’s principal, Respond-
ent Town & Country, which he found also violated Sec. 8(a)(1) of
the Act by this conduct. We find merit in the General Counsel’s ex-
ception to the judge’s failure to require that Respondent Ameristaff,
which was acting as the agent for Respondent Town & Country in
the procurement of employees, also cease and desist from interrogat-
ing employees in violation of the Act. Accordingly, we shall order
Respondent Ameristaff to cease and desist from such conduct and
to post an appropriate notice.
5 The Union offered to pay these members the difference between
union scale and the Respondent’s wages and benefits if they would
attempt to organize the Respondent’s nonunion employees.
6 In adopting the judge’s finding that Respondent Town & Country
Electric violated Sec. 8(a)(3) of the Act by refusing to retain em-
ployee Malcolm Hansen, we stress the evidence here that, as the
judge found, the pivotal event leading to Town & Country’s decision
was Hansen’s protected concerted activity in seeking to organize the
unit employees during their lunch break on September 14, 1987.
7 All dates are in 1989 unless otherwise noted.
Town & Country Electric, Inc. and Ameristaff Per-
sonnel Contractors, Ltd. and Charles Evans
Town & Country Electric, Inc. and Ameristaff Per-
sonnel Contractors, Ltd. and International
Brotherhood of Electrical Workers, Local 292,
AFL–CIO
Town & Country Electric, Inc. and International
Brotherhood of Electrical Workers, Local
Union 343, AFL–CIO. Cases 18–CA–11035, 18–
CA–11044, and 18–CA–11080
December 16, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY, OVIATT, AND RAUDABAUGH
On September 18, 1990, Administrative Law Judge
Joel A. Harmatz issued the attached decision. Re-
spondent Town & Country Electric filed exceptions
and a supporting brief; the General Counsel filed
cross-exceptions, a supporting brief, and an answering
brief to the Respondent’s cross-exceptions; and Re-
spondent Town & Country Electric filed an answering
brief to the General Counsel’s cross-exceptions.
On January 22, 1992, the Board scheduled oral argu-
ment because this case raised important 8(a)(3) and (1)
issues with respect to whether paid union organizers
are ‘‘employees’’ within the meaning of the Act, if so,
whether it violates the Act to refuse to hire a paid or-
ganizer.1 Thereafter, the Respondent, the General
Counsel, and the Charging Party Union, and, as amici
curiae, the American Federation of Labor and Con-
gress of Industrial Organizations and its Building and
Construction Trades Department, AFL–CIO, the
Chamber of Commerce of the United States of Amer-
ica, the Associated General Contractors of America,
Inc., and the Associated Builders and Contractors Inc.,
presented oral argument before the Board. The Re-
spondent and the amici also filed briefs.2
The Board has considered the decision and the
record in light of the exceptions, briefs, and oral argu-
ment, and has decided to affirm the judge’s rulings,
findings,3 and conclusions and to adopt the rec-
ommended Order as modified below.4
For the reasons discussed below, we find that paid
union organizers Michael Priem and Greg Shafranski,
as well as nine other union members who sought em-
ployment with the Respondent,5 are ‘‘employees’’
within the meaning of the Act. Thus, we agree with
the judge that the Respondent violated Section 8(a)(3)
and (1) of the Act by refusing to interview and con-
sider for employment Priem, Shafranski, and eight
other union members because of their union affiliation
and by discharging employee Malcolm Hansen because
of his union activities.6
I. BACKGROUND
A. Facts
Town & Country Electric, Inc. (Town & Country) is
the largest nonunion electrical contractor in the State
of Wisconsin. In early September 1989,7 Boise Cas-
cade awarded Town & Country a contract to perform
electrical renovation work at Boise’s facility in Inter-
national Falls, Minnesota. Town & Country was to
begin work on September 11. There is a Minnesota
statutory requirement that an electrical contractor em-
ploy one electrician licensed by the State for every two
unlicensed electricians engaged in such work on the
jobsite. Town & Country did not have a single elec-
trician licensed in Minnesota at the time Boise Cas-
cade awarded it the contract.
To obtain electricians licensed in Minnesota, Town
& Country retained Ameristaff, a temporary employ-
ment agency based in Minneapolis, for recruitment
purposes. Under this arrangement, Ameristaff was re-
sponsible for advertising job opportunities related to
the Boise-Cascade operation and assumed liability for
1251TOWN & COUNTRY ELECTRIC
8 The General Counsel did not allege that O’Mellan’s questioning
of the phone applicants violated Sec. 8(a)(1) of the Act.
9 We adopt the judge’s finding that the Respondent did not violate
Sec. 8(a)(3) by refusing to consider Jones for employment, or an-
other union member, Roger Chartrand, who arrived at the Embassy
Suites as the Respondent’s representatives were departing.
10 The General Counsel did not allege that Town & Country’s fail-
ure to hire Weseman constituted a violation.
fringe benefits earned by employees on its payroll who
worked there. Town & Country, however, retained ex-
clusive discretion regarding interviewing, hiring, the
setting of wage rates and granting of increases, super-
vising and the discharge of employees on the Boise-
Cascade project. The judge found, and we agree, that
Town & Country exercised plenary authority and con-
trol over employees retained by Ameristaff for its ac-
count and that, even absent a joint-employer relation-
ship, Ameristaff was an agent whose conduct in con-
nection with hiring for the Boise project was binding
on Town & Country.
On September 3, Ameristaff ran an advertisement in
a major Minneapolis newspaper announcing employ-
ment opportunities for ‘‘licensed journeymen elec-
tricians’’ and including its telephone number. Ron
Sager, Town and Country’s manager of human re-
sources, made it clear to Ameristaff before the adver-
tisement was placed that job applicants had to be
‘‘able to work a merit [nonunion] shop.’’ When appli-
cants responded to the advertisement, Ameristaff’s re-
ceptionist, Lorrie Ann O’Mellan, asked them whether
they preferred to work union or nonunion and, if the
job seeker had worked only union projects, whether
the person would work nonunion.8 Steven Buelow,
Ameristaff’s president, arranged for Town & Country
to interview applicants at the Embassy Suites in Min-
neapolis on September 7.
Members and officials of International Brotherhood
of Electrical Workers, Locals 292 and 343, learned of
Ameristaff’s job advertisements. The Unions, which
had authorized their members to work nonunion for or-
ganizational purposes, encouraged unemployed mem-
bers to apply and, if hired, to organize the jobsite.
There was a fund the Unions had established to reim-
burse members for wage, travel, and health benefit dif-
ferentials they incurred on nonunion jobs.
On September 7, Sager and Dennis Defferding, the
Respondent’s project manager, traveled from Appleton,
Wisconsin to Minneapolis to conduct job interviews
for the Boise-Cascade project. They did not arrive at
the Embassy Suites until about 11 a.m. because their
flight had been delayed for several hours by adverse
weather conditions. When they arrived, there were
about a dozen unemployed members of IBEW Local
292, including Priem and Shafranski, waiting to inter-
view. None had previously scheduled interviews, ex-
cept for Malcolm Hansen who had called Ameristaff
that morning and was told by O’Mellan to report for
an interview at the Embassy Suites. The only other ap-
plicant appearing for an interview, Gary Weseman,
was not a union member and had previously scheduled
an interview through Ameristaff. Buelow distributed
applications, under the Ameristaff logo, to all the ap-
plicants.
Town & Country began the interviews with Craig
Jones, a union member who had no appointment, ap-
parently because Jones said that he had to leave soon
to care for his children. During the interview, Jones
characterized Town and Country’s starting rate of $15
per hour as an insult. Jones also told the Town &
Country representatives that he would have to discuss
out-of-town work with his wife. Town & Country told
Jones that it would keep his application on file. There
was no further contact between Jones and Town &
Country representatives.9 Town & Country next inter-
viewed Gary Weseman but did not hire him.10
Meanwhile, Buelow informed the remaining appli-
cants that the job was nonunion. The union members
responded that they were interested in any work avail-
able. Buelow left the room and, about 15 minutes later,
returned and read off a list of seven names. None were
present. After identifying that group of names as those
applicants with prearranged appointments, Buelow said
that he did not know if anyone without an appointment
would be interviewed. Priem, one of the two paid
union organizers, told Buelow that there were at least
eight licensed journeymen present who could take the
place of those applicants who had failed to appear.
After Town & Country interviewed Jones and
Weseman, Buelow reported to Sager that none of the
other applicants had appointments. Sager expressed cu-
riosity as to how those applicants without appoint-
ments had known about the interviews. Buelow at
some point showed him several of the applications and
commented, ‘‘I think they’re union.’’ Sager decided to
cancel further interviews and return to Appleton pur-
portedly because his attendance was required for a
manpower meeting at 3:30 that afternoon. Yet, Sager
admitted that he had previously learned, on September
5, of the licensed journeyman/helper ratio that Min-
nesota law requires. It is undisputed that Town &
Country employed no electricians licensed in Min-
nesota at the time Sager decided to return to Appleton.
When Sager announced to the remaining applicants
that he would conduct no further interviews, Hansen
protested that he had called the number in the news-
paper advertisement and was told to ‘‘show up.’’ Han-
sen announced that he would not leave until Sager
interviewed him. After threatening to call local authori-
ties and have the union members removed from the
hotel room, Sager said that he would check about Han-
sen’s situation and ‘‘honor the commitment’’ if Han-
1252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sen had made an appointment. Buelow confirmed that
Hansen had called Ameristaff so Sager interviewed
him. Sager then announced to the other applicants that
he would not interview anybody else.
Town & Country conducted several interviews with
Hansen before deciding to hire him. On September 14,
2 days after Hansen began work, the Respondent dis-
charged Hansen because, as the judge found, he at-
tempted to organize the Respondent’s nonunion em-
ployees working at the jobsite.
B. Judge’s Findings
The judge found that, considering Town & Coun-
try’s dire need at the time for electricians who were
licensed in Minnesota and the evidence that Town &
Country aborted the Embassy Suites interviews imme-
diately after learning of the remaining applicants’
union affiliation, the General Counsel established a
prima facie case that Town & Country had
discriminatorily refused to consider these applicants for
hire notwithstanding its subsequent hire of Hansen.
In considering Town & Country’s defenses, the
judge rejected its contention that Sager did not want to
interview anyone whom Ameristaff had not
prescreened. The judge stressed that Town & Country
had interviewed Jones without this condition being met
and that Sager, who should have known that
Ameristaff had screened only seven applicants, ex-
pressed pleasure on arriving at the Embassy Suites and
observing that the turnout was larger than anticipated.
The judge found it incomprehensible that, given
Sager’s purported urgency about attending the man-
power meeting later that day, Sager made no effort on
his arrival at the Embassy Suites to monitor the inter-
viewing process so as to best utilize the limited time
he claimed was available for the interviews. For these
reasons, the judge found that, except for Jones and
Chartrand, discussed supra, Town & Country violated
Section 8(a)(3) by failing to demonstrate that it would
not have interviewed and considered for hire those
named in the complaint in the absence of their union
affiliation.
Regarding Hansen’s discharge, the judge concluded
that Town & Country had failed to substantiate by
credible evidence that it would have discharged Han-
sen even in the absence of his organizational activity.
The judge distinguished the Fourth Circuit’s decision
in H. B. Zachry Co. v. NLRB, 886 F.2d 70 (1989), de-
nying enf. to 289 NLRB 838 (1988), discussed infra,
from the present case because, in his view, the evi-
dence showing that the Union planned to reimburse
Hansen for any wage and benefit losses he incurred on
the nonunion job did not warrant a finding that Hansen
was a paid union organizer.
C. Exceptions
Based on the court’s decision in Zachry, supra, the
Respondent argues in its exceptions that the
discriminatees were not bona fide applicants under the
statute. The Respondent notes that Priem and
Shafranski were full-time salaried business representa-
tives and that the Union paid Hansen full journeyman’s
scale, in addition to the pay he received from
Ameristaff, for the 31 hours that he worked at the Re-
spondent’s jobsite. The Respondent claims that the
Union’s payments to Hansen put him in the same cat-
egory as full-time salaried business agents whom the
court excluded from the definition of employee under
Section 2(3). Regarding the rest of the alleged
discriminatees, the Respondent argues that no violation
occurred when it rejected their applications because, if
they had been hired, the Union’s ‘‘salting resolution’’
would have paid them the difference between the Re-
spondent’s wages and union scale and thus disqualified
them under Zachry.
The Respondent also contends that the alleged
discriminatees did not qualify as statutory employees
because their first obligation under the salting resolu-
tion was to fulfill the Union’s organizing purpose. The
Respondent asserts that it was the Union which was
the the discriminatees’ employer in the circumstances
here. According to the Respondent, these union mem-
bers would only work for it under the Union’s direc-
tion and, in the process, they would interfere with the
self-determination rights of its other employees. Fur-
ther, because the salting resolution required members
to leave the nonunion jobsite once organizing had
ceased, the Respondent argues that none of the alleged
discriminatees met the statutory definition of employee
because they were not seeking permanent employment.
Thus, for the above reasons, the Respondent urges the
Board to find that the applicants for employment
whom it rejected and Hansen were not employees
under Section 2(3) of the Act.
II. ANALYSIS
A. Overview
We agree, for the reasons stated by the judge, that
the Respondent violated Section 8(a)(3) and (1) by re-
fusing to hire Priem, Shafranski, and eight other union
members who applied for work and by later discharg-
ing employee Malcolm Hansen because of his union
activities. Additionally, in finding these 8(a)(3) viola-
tions, we specifically affirm the judge’s findings that
Hansen, as well as the discriminatees that Town &
Country rejected for employment because of their
union affiliation, are statutory employees for the rea-
sons fully discussed below.
1253TOWN & COUNTRY ELECTRIC
11 Websters Third New International Dictionary, 743 (rev. 1971).
See also Funk & Wagnalls Standard College Dictionary, 433 (1973),
which defines ‘‘employee’’ as ‘‘one who works for another in return
for salary, wages, or other consideration.’’
12 We assume that the statutory purpose is expressed by the ordi-
nary meaning of its words. INS v. Phinpathya, 464 U.S. 183, 189
(1984).
13 2A Singer, Sutherland Statutory Construction, Sec. 47.23 (4th
ed. 1973) (Suppl. 1991).
14 Compare NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974)
(based on legislative history of the Taft-Hartley Act, managerial em-
ployees are not covered by Act, although not explicitly excluded
from Sec. 2(3)).
15 H.R. Rep. No. 969, 74th Cong., 2 Leg. Hist. 2917–2918 (NLRA
1935).
16 2 Leg. Hist. 3119, 3220 (NLRA 1935).
B. Paid Union Organizers as ‘‘Employees’’
Within the Meaning of Section 2(3)
1. The definition of ‘‘employee’’
We begin our analysis recognizing that applicants
are ‘‘employees.’’ Phelps Dodge Corp. v. NLRB, 313
U.S. 177 (1941). As applicants are ‘‘employees,’’ the
question is whether paid union organizer applicants are
employees.
Congress, in 1935, broadly defined ‘‘employee’’ in
Section 2(3), providing that:
The term ‘‘employee’’ shall include any em-
ployee, and shall not be limited to the employees
of a particular employer, unless the Act explicitly
states otherwise, and shall include any individual
whose work has ceased as a consequence of, or
in connection with, any current labor dispute or
because of any unfair labor practice, and who has
not obtained any other regular and substantially
equivalent employment
The word ‘‘employee’’ both in common usage and
in the law ordinarily includes individuals concurrently
working for different employers. ‘‘Employee’’ com-
monly refers to individuals ‘‘employed by another,’’
‘‘under wages or salary,’’11 without reference to any
requirement that they be employed by only a single
employer. Similarly, a standard legal definition of
‘‘employee’’ encompasses any ‘‘person in the service
of another under any contract of hire, express or im-
plied, oral or written, where the employer has the
power or right to control the employee in the material
details of how the work is to be performed,’’ without
reference to, or proscription of, dual employment.
Black’s Law Dictionary 471 (rev. 5th ed. 1979). As
long as union organizers employed by or seeking work
with an employer do so for wages in return for as-
signed work, they meet the standard dictionary defini-
tion of ‘‘employee.’’ Giving Section 2(3), as amended,
its ‘‘ordinary meaning,’’12 we find that the definition
of ‘‘employee’’ as ‘‘any employee’’ is sufficiently ex-
pansive to encompass paid union organizers.
2. Exclusions
Next we look to the exclusions in Section 2(3). Con-
gress in 1935 excluded specific categories from its
broad definition of ‘‘employee,’’ i.e., agricultural la-
borers and individuals performing domestic service in
the home. In 1947, Congress added to the exclusions
so that the 2(3) definition of ‘‘employee’’ now ex-
cludes:
any individual employed as an agricultural la-
borer, or in the domestic service of any family or
person at his home, or any individual employed
by his parent or spouse, or any individual having
the status of an independent contractor, or any in-
dividual employed as a supervisor, or any individ-
ual employed by an employer subject to the Rail-
way Labor Act, as amended from time to time, or
by any other person who is not an employer as
herein defined.
‘‘Paid union organizers’’ do not appear in these ex-
clusions. Under the well-settled principle of statutory
construction—expressio unius est exclusio alterius—
only these enumerated classifications are excluded
from the definition of ‘‘employee.’’13 Accordingly,
full-time, paid union organizers are ‘‘employees’’
within the ordinary meaning of this provision. See gen-
erally State Bank of India v. NLRB, 808 F.2d 526,
531–532 (7th Cir. 1986), cert. denied 483 U.S. 1005
(1987).
3. Legislative History
We must also look to the legislative history, how-
ever, because a statute will not be given its ordinary
meaning if there is ‘‘a clearly expressed legislative in-
tention to the contrary.’’ Consumer Product Safety
Commission v. GTE Sylvania, 447 U.S. 102, 108
(1980). There is no evidence in the legislative history
that Congress intended Section 2(3), at least as to paid
union organizers, to be more restrictive than the ordi-
nary meaning of its terms.14 On the contrary, the legis-
lative history reflects Congress’ intent to expansively
interpret ‘‘employee.’’
Although Congress did not specifically consider the
status of union organizers when enacting Section 2(3),
it expansively referred to ‘‘employees’’ as ‘‘workers,’’
‘‘wage earners,’’ ‘‘workmen,’’15 and ‘‘every man on
the payroll.’’16 Even when Congress amended Section
2(3) in 1947 specifically to exclude additional classi-
fications from the definition of ‘‘employee,’’ it did not
narrow the general definition of ‘‘employee.’’ Rather,
Congress continued to describe ‘‘employees’’ inclu-
sively as individuals ‘‘work[ing] for another for hire,’’
1254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 H.R. Rep. No. 245, 80th Cong., 1st Sess., 1 Leg. Hist. 309
(LMRA 1947).
18 See Florida Power & Light v. Electrical Workers Local 2164,
417 U.S. 790, 807–811 (1974).
19 See also Kelley v. Southern Pacific Co., 419 U.S. 318, 324
(1974); Dellums v. Powell, 566 F.2d 216, 222 and fn. 22 (D.C. Cir.
1977), cert. denied 438 U.S. 916 (1978); Beaver v. Jacuzzi Bros.,
454 F.2d 284, 285 (8th Cir. 1972); Mazer v. Lipshutz, 360 F.2d 275,
278 (3d Cir. 1965), cert. denied 385 U.S. 833 (1966).
20 This position recently was endorsed by the District of Columbia
Court of Appeals in Willmar Electric Service v. NLRB, 968 F.2d
1327 (D.C. Cir. 1992).
and ‘‘work[ing] for wages and salaries under direct su-
pervision.’’17
Further, Congress reassessed and rebalanced the
right of an employer to require undivided loyalty from
some of its workers with respect to labor unions by its
1947 amendment of Section 2(3) excluding ‘‘super-
visors’’ from the definition of ‘‘employee.’’18 Had
Congress concluded that paid organizers were not enti-
tled to the protection afforded ‘‘employees’’ by the
statute, it knew how to exclude them. It did not.
Under the broad terms employed by Congress when
enacting and amending Section 2(3), paid organizers
applying for work, or hired to work for wages under
the employer’s direct supervision, meet the require-
ments for statutory ‘‘employee’’ status.
4. Interpretations of Section 2(3)
a. The Supreme Court
Consistent with the inclusive language of Section
2(3), and Congress’ expressed intent to expansively de-
fine ‘‘employee,’’ the Supreme Court has consistently
interpreted Section 2(3) broadly to cover individuals
not explicitly excluded. The seminal case is Phelps
Dodge Corp. v. NLRB, supra, where the Supreme
Court broadly interpreted the Act to include applicants
for work as well as actual hires. The Court also re-
jected Phelps Dodge’s argument that certain strikers
who had obtained employment elsewhere were not en-
titled to reinstatement because they were not statutory
‘‘employees.’’ Writing for the Court, Justice Frank-
furter twice characterized the definition of ‘‘em-
ployee’’ in Section 2(3) as a ‘‘broad’’ one, which ‘‘ex-
pressed the conviction of Congress ‘that disputes may
arise regardless of whether the disputants stand in the
proximate relation of employer and employee . . . .’’’
Id. at 192 (quoting from H. R. Rep. No. 1147, 74th
Cong., 1st Sess. p. 9). In these situations, emphasized
Justice Frankfurter, ‘‘to deny the Board power to wipe
out the prior discrimination . . . would sanction a
most effective way of defeating the right of self-orga-
nization.’’ Id. at 193.
Following Congress’ 1947 amendment of Section
2(3) to exclude supervisors, independent contractors,
and others, the Supreme Court reaffirmed an expansive
interpretation of ‘‘employee.’’ In Chemical Workers v.
Pittsburgh Plate Glass Co., 404 U.S. 157, 166–168
(1971), the Supreme Court held that ‘‘employee’’
under Section 2(3) broadly covers those who work for
another for hire, although not those who have retired.
Similarly, in Sure-Tan, Inc. v. NLRB, 467 U.S. 883,
891 (1984), the Court said that the ‘‘breadth of 2(3)’s
definition is striking: the Act squarely applies to ‘any
employee.’ The only limitations are specific exemp-
tions’’ contained in the statute. In concluding that un-
documented aliens were statutory ‘‘employees,’’ the
Court relied not only on Section 2(3)’s broad language,
but also on the conclusion that an expansive interpreta-
tion of the statute was consistent with ‘‘the Act’s
avowed purpose of encouraging and protecting the col-
lective-bargaining process.’’ Id. at 892.
The Supreme Court’s analysis of the word ‘‘em-
ployee’’ under the Employee Retirement Income Secu-
rity Act (ERISA), a statute that also addresses work
place issues, endorses the application of common law
agency principles. Thus, in Nationwide Mutual Insur-
ance Co. v. Darden, 112 S.Ct. 1344, 1349 (1992), the
Supreme Court, finding that ‘‘employee’’ under
ERISA was ill defined, turned to the common law,
quoting Community for Creative Non-Violence v. Reid,
490 U.S. 730, 739–740 (1989):
[W]hen Congress has used the term ‘‘employee’’
without defining it, we have concluded that Con-
gress intended to describe the conventional mas-
ter-servant relationship as understood by common
law agency doctrine.
Only where employing traditional agency principles
would thwart congressional intent or produce absurd
results will the Court refuse to apply those principles.
Nationwide Mutual Insurance Co. v. Darden, supra,
112 S.Ct. at 1349.
Under common law agency principles:
A person may be the servant of two masters, not
joint employers, at one time as to one act, if the
service to one does not involve abandonment of
the service to the other. Restatement (Second) of
Agency, Section 226, pp. 498–500 (1957).19
NLRA Section 2(3), like its ERISA counterpart, cir-
cuitously defines ‘‘employee’’ as ‘‘any employee.’’
There being no contrary congressional intent, we find
no bar to applying common law agency principles to
the determination whether a paid union organizer is an
‘‘employee.’’ Under those principles, paid union orga-
nizers cannot be excluded from the definition of ‘‘em-
ployee’’ on the basis that they are paid by their union
as well as by the employer they are attempting to orga-
nize.20
1255TOWN & COUNTRY ELECTRIC
21 See also Sure-Tan, Inc. v. NLRB, supra, 467 U.S. at 891;
Bayside Enterprises v. NLRB, 429 U.S. 298, 304 (1977); NLRB v.
Hearst Publications, 322 U.S. 111 at 130 (1944); Iron Workers v.
Perko, 373 U.S. 701, 706 (1963).
22 Briggs Mfg. Co., 75 NLRB 569, 570 (1947); Oak Apparel, 218
NLRB 701 (1975). See also Consolidation Coal Co., 266 NLRB
670, 674 (1983); Giant Food Markets, 241 NLRB 727, 728 fn. 3
(1979); Little Rock Crate & Basket Co., 227 NLRB 1406 (1977).
23 Briggs Mfg. Co., supra, 75 NLRB at 570; Little Rock Crate &
Basket Co., supra; Oak Apparel, supra, 218 NLRB at 707; L. D.
Brinkman Southeast, 261 NLRB 204, 210 (1984).
24 The Board also rejected the contention that the paid organizers
in Oak Apparel were not employees because the union directed their
organizational activities and controlled their employment through
compensation.
25 Anthony Forest Products, 231 NLRB 976, 977–978 (1977);
Lyndale Mfg. Corp., 238 NLRB 1281, 1283 fn. 3 (1978); Margaret
Anzalone, Inc., 242 NLRB 879, 888 (1979); Palby Lingerie, Inc.,
252 NLRB 176, 182 (1980); Pilliod of Mississippi, 275 NLRB 799,
811 (1985); Multimatic Products, 288 NLRB 1279, 1313 fn. 226,
1316 (1988).
26 The Second Circuit refused to enforce the Board’s order on
other grounds, however.
In sum, Supreme Court decisions support a reading
of Section 2(3) that includes paid union organizers
within the definition of employee.
b. The Board
Courts repeatedly have held that the task of deter-
mining ‘‘the contours of the term ‘employee’ properly
belongs to the Board.’’ Chemical Workers v. Pitts-
burgh Plate Glass, supra, 404 U.S. at 167.21 When un-
dertaking this task, the Board has uniformly interpreted
‘‘employee’’ in the ‘‘broad generic sense’’ to ‘‘include
members of the working class generally.’’22 Under this
expansive interpretation, the Board has found that Sec-
tion 2(3) covers not only employees of a particular em-
ployer, but also employees of another employer,
former employees of a particular employer, applicants
for work, temporary and part-time employees, and in-
dividuals attending school or working a second job.23
In accord with its broad interpretation of Section
2(3), the Board historically has held that paid union or-
ganizers are ‘‘employees’’ entitled to the Act’s protec-
tions. Thus, in Dee Knitting Mills, 214 NLRB 1041
(1974), enfd. mem. 538 F.2d 312 (2d Cir. 1975), the
Board held that ‘‘an employee does not lose his status
because he is also paid to organize.’’ Id. In Oak Ap-
parel, supra, the Board adopted the administrative law
judge’s conclusion that:
The definition in the Act provides that ‘‘the term
‘employee’ shall include any employee, and shall
not be limited to the employees of a particular
employer, unless the Act explicitly states other-
wise. . . .’’ While the definition expressly ex-
cludes particular kinds of employees, [paid union
organizers] would not fall into any of these ex-
cluded categories. In accord with the broad appli-
cation given to this definition, the Board and the
courts find generally that individuals who are
hired by, work under the control of, and receive
compensation from, an employer, are employees
of that employer and entitled to the protection of
the Act, including cases where they were em-
ployed on a part-time or temporary basis; were at-
tending school; were working on a second job; or
in other circumstances which indicated they in-
tended to remain on a particular job for a limited
time. [Footnote omitted.]
The Board in Oak Apparel rejected the argument
that the discharged union organizers were not ‘‘em-
ployees’’ because they did not intend to remain in the
respondent’s employ beyond the period required for
organization.24 The Board found it immaterial for pur-
poses of Section 8(a)(3) whether the discharged orga-
nizers sought permanent employment with the respond-
ent. Permanency of employment, the Board held, was
relevant for election purposes, but was unrelated to the
issue of ‘‘employee’’ status. Id. at 701, citing Phelps
Dodge Corp. v. NLRB, supra, 313 U.S. at 192; Dee
Knitting Mills, supra. To hold otherwise, concluded the
Board, would result in employers discriminating ‘‘with
impunity against temporary or casual employees who
are not includable in any bargaining unit.’’ Id. Since
Oak Apparel, the Board consistently has held that paid
union organizers are statutory employees entitled to the
Act’s protection.25
c. The courts of appeals
The Second, Third, and District of Columbia Circuit
Courts of Appeals agree with the Board that a paid
union organizer can nonetheless be an ‘‘employee’’
under the Act. See NLRB v. Henlopen Mfg., 599 F.2d
26, 30 (2d Cir. 1979) (dictum);26 Escada (USA), Inc.
v. NLRB, 140 LRRM 2872 (3d Cir. 1992), enfg. mem.
304 NLRB 845 (1991); Willmar Electric Service v.
NLRB, 968 F.2d 1327 (D.C. Cir. 1992). Two courts of
appeals disagree with the Board. See NLRB v. Elias
Bros. Big Boy, 327 F.2d 421, 427 (6th Cir. 1964);
H. B. Zachry Co. v. NLRB, 886 F.2d 70 (4th Cir.
1989).
5. Reexamination of our interpretation of
Section 2(3)
On reexamination of our analysis of the scope of
Section 2(3) in Oak Apparel and its progeny, we con-
clude that the definition of ‘‘employee’’ encompasses
paid union organizers.
As more fully explained above, we rely on: (1) the
language of Section 2(3) which, given its ordinary
meaning and Congress’ determination not to place paid
union organizers among its other exclusions, must be
read inclusively to encompass paid organizers; (2) the
Supreme Court’s consistently broad interpretation of
1256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 The court cited Nationwide Mutual Insurance Co. v. Darden,
supra, 112 S.Ct. at 1344, in support of its application of common
law agency principles. Id. at 1329.
28 In our view, the Respondent’s restrictive definition of ‘‘em-
ployee’’ to exclude those working for two employers at the same
time draws little support from its citation to Chemical Workers v.
Pittsburgh Plate Glass, supra. There the Supreme Court held that the
statutory language must be given its ‘‘ordinary meaning;’’ nothing
in that decision points to a conclusion that dual-employed individ-
uals fall outside the ordinary meaning of ‘‘employee.’’ On the con-
trary, the Supreme Court expansively interpreted ‘‘employee’’ in
Pittsburgh Plate Glass to include anyone working for another for
hire.
29 NLRB v. Hearst Publications, supra at 126 (1944); Phelps
Dodge Corp. v. NLRB, supra, 313 U.S. at 193 (‘‘the central purpose
of the Act [is] directed . . . toward the achievement and mainte-
nance of workers’ self-organization’’); Republic Aviation v. NLRB,
324 U.S. 793, 797 (1945).
30 Paid organizers are not employees because they fulfill the im-
portant function of providing coworkers with information on their
rights to self-organization. Having concluded that paid organizers are
employees, however, their employment furthers this fundamental
policy of the Act.
31 Note, H. B. Zachry Co. v. NLRB: Paid Full-Time Union Orga-
nizer Not an ‘‘Employee,’’ 50 La. L. Rev. 1211, 1217 (1990). The
Board is free to exclude statutory employees from bargaining units
who are otherwise protected by the Act. NLRB v. Action Automotive,
469 U.S. 490, 498 (1985). See generally NLRB v. Hendricks County
Rural Electric Corp., 454 U.S. 170, 190 (1981). As stated in Oak
Apparel, supra, 218 NLRB at 701:
The distinction between an employee’s status with respect to the
appropriate unit and his or her status as an ‘‘employee’’ within
the meaning of Section 2(3) has been recognized since the in-
fancy of the administration of the Act.
32 Paid union organizers do not, however, forfeit their status as
‘‘employees’’ because they do not intend to retain their employment
beyond the duration of an organizing campaign. Although the perma-
nency of employment is relevant to the issue of voter eligibility, it
is irrelevant to ‘‘employee’’ status. Oak Apparel, 218 NLRB at 701.
It is well settled that temporary employees are within the ambit of
Sec. 2(3) and are entitled to the Act’s protections. See, e.g., Pennsyl-
vania Electric Co., 289 NLRB 1200 (1988); EDP Medical Computer
Section 2(3) and its application of common law agency
principles to find that an individual cannot be excluded
from the definition of ‘‘employee’’ on the basis that he
is being paid by two employers; (3) the reasoning
found in our own precedents, most recently approved
by the District of Columbia Circuit in Willmar Electric
Service, supra, that, among other things, rejects the po-
sition that because the employment of paid union orga-
nizers is of limited duration they cannot be ‘‘employ-
ees.’’
The Respondent and its amici rely on the Fourth
Circuit’s reasoning in H. B. Zachry v. NLRB, supra.
The court held that it would distort the ‘‘ordinary
meaning’’ of ‘‘employee’’ to include within the 2(3)
definition someone who was employed and directed in
his organizing efforts by the union and who would
continue to receive wages and benefits from the union
while he was also employed by the employer being or-
ganized (citing Chemical Workers v. Pittsburgh Plate
Glass, supra, 404 U.S. at 167–168). H. B. Zachry v.
NLRB, supra, 886 F.2d at 73.
The District of Columbia Circuit in Willmar Electric
Service v. NLRB, supra, recently addressed this point.
The court applied common law agency principles to in-
terpret Section 2(3) to include concurrently employed
paid union organizers.27 Observing that a paid organiz-
er’s employment would give him a better perch from
which to propagandize, the Willmar court nonetheless
found that this was inadequate to distinguish the paid
organizer from an unpaid union zealot, who was plain-
ly an ‘‘employee.’’ We agree and conclude that union
organizers are ‘‘employees.’’28
C. Policy Considerations
We next consider whether protecting paid union or-
ganizers as ‘‘employees’’ furthers the policies of the
National Labor Relations Act.
The right to organize is at the core of the purpose
for which the statute was enacted.29 No coherent pol-
icy considerations to the contrary have been advanced
that do not, on analysis, resolve themselves into argu-
ments that employers be permitted to discriminate
based on an individual’s presumed or avowed intention
to join or assist a labor organization.30
We find no conflict between protecting paid union
organizers as employees and legitimate managerial
rights:
Protection of the workers’ right to self-organiza-
tion does not curtail the appropriate sphere of
managerial freedom; it furthers the wholesome
conduct of the business enterprise. Phelps Dodge
Corp. v. NLRB, supra, 313 U.S. at 182.
While working for the employer, the paid organizer
is subject to its direction and control, and is respon-
sible for performing assigned work. The organizer’s
activities, like those of any employee, may be limited
pursuant to lawful no-solicitation rules. Republic Avia-
tion Corp. v. NLRB, supra, 324 U.S. at 802–803 fn. 10.
Outside work time, however, the organizer—like other
workers—is free to solicit for the union. Id. The fact
that a paid organizer may approach his nonwork time
organizing activities with greater vigor than an unpaid
union adherent is not an acceptable basis for denying
the organizer statutory protections.
The Respondent and its amici also contend that find-
ing that an organizer is an ‘‘employee’’ within the
ambit of Section 2(3) would impinge on the employees
self-determination rights because the union organizer
would be paid by the union to vote for it in an elec-
tion.
The organizer’s status as a statutory employee does
not, however, ensure his right to vote.31 In determining
whether statutory ‘‘employees’’ are eligible to vote,
the Board applies a traditional ‘‘community of inter-
est’’ test. Multimatic Products, supra, 288 NLRB at
1316. Under this test,32 paid union organizers fre-
1257TOWN & COUNTRY ELECTRIC
System, 284 NLRB 1232 (1987). To hold otherwise, and single out
paid union organizers for exclusion from 2(3) coverage as ‘‘tem-
poraries’’ flies in the face of Sec. 7 protections. Of course, employ-
ers may lawfully refuse to hire individuals seeking temporary em-
ployment, where the refusal is based on neutral hiring policies, uni-
formly applied. Willmar Electric Service, supra, 303 NLRB 245, 246
fn. 2.
33 Oak Apparel, supra, 218 NLRB at 701; Dee Knitting Mills,
supra, 214 NLRB at 1041; 299 Lincoln Street, Inc., 292 NLRB 172,
180 (1988).
34 Amici argue that paid union organizers are not ‘‘employees’’
because their request for employment is a guise to gain access to
the employer’s private property to further the union’s objectives. Al-
though gaining such access likely will facilitate the paid organizer’s
union activities, as long as the organizer is able, available, and fully
intends to work for the employer if hired, he will not be disqualified
from ‘‘employee’’ status. Further, a paid union organizer employee
arguably poses no greater threat to an employer’s property rights
than a prounion employee who voluntarily engages in organizational
activity. Note H. B. Zachry Co. v. NLRB: Paid Full-Time Union Or-
ganizer Not an ‘‘Employee,’’ 50 La. L. Rev. 1211, 1215–1216
(1990).
35 Although employers lawfully may insist that employees ade-
quately perform assigned work, they cannot insist that employees
forego organizing activities, or treat those activities as disloyalty.
Texaco, Inc. v. NLRB, 462 F.2d 812, 814 (3d Cir. 1972), cert. denied
409 U.S. 1008 (1972); Misericordia Hospital Medical Center v.
NLRB, 623 F.2d 808, 813 (2d Cir. 1980). Employees have the fun-
damental right to urge their coworkers to support the union, on com-
pany property, outside working hours. Republic Aviation v. NLRB,
supra.
36 We find no merit in the Respondent’s contention that because
an employer’s payment of wages to the organizer partially offsets
the union’s obligation to pay him, this payment may violate Sec.
8(a)(2)’s proscription against employers contributing financial sup-
port to unions. Organizer employees are paid by the employer for
work performed for the employer, not for the union. We also note
that Sec. 302 of the Labor Management Relations Act specifically
contemplates that paid union personnel can be ‘‘employees’’ of other
employers. Thus, although Sec. 302 generally prohibits employers
from paying union employees, it expressly exempts payments by em-
ployers ‘‘to any . . . employee of a labor organization, who is also
Continued
quently are excluded from voting, either as ‘‘tem-
porary’’ employees, or because their interests suffi-
ciently differ from those of their coworkers.33 In short,
employee status is not synonymous with voter eligi-
bility. Willmar, supra at 1330. Accordingly, any con-
cern over unions packing bargaining units with their
paid functionaries is, in our experience and judgment,
misplaced.
Next, the Respondent relies on the Fourth Circuit’s
determination that our approach does not sufficiently
account for the adversary relationship between em-
ployer and union. The circuit relied on the Supreme
Court’s decision in NLRB v. Babcock & Wilcox, supra,
among other things, as support for this view.
Our determination that paid union organizers are
‘‘employees’’ is, however, completely consistent with
the philosophy of NLRB v. Babcock & Wilcox Co.,
supra. Babcock & Wilcox, as recently reaffirmed by the
Supreme Court in Lechmere, Inc. v. NLRB, 112 S.Ct.
841 (1992), balances the property rights of employers
against the Section 7 rights of employees to learn
about self-organization from nonemployees. This bal-
ancing process, however, is inapplicable to 2(3) em-
ployees. Neither Babcock & Wilcox nor Lechmere in-
terpret Section 2(3), or so much as hint that property
rights may be resurrected as a device to bar activity
long protected by the statute.34 Instead, they address
the lawful restrictions that employers can place on
nonemployees. See Willmar at 1330.
The Respondent and its amici vigorously contend
that paid union organizers will engage in union activi-
ties to the detriment of work assigned by the employer
or will embark on acts inimical to the employer’s le-
gitimate interests. We do not agree. The statute’s
premise is at war with the idea that loyalty to a union
is incompatible with an employee’s duty to the em-
ployer. The fact that paid union organizers intend to
organize the employer’s work force if hired establishes
neither their unwillingness nor their inability to per-
form quality services for the employer. Indeed, because
the organizers seek access to the jobsite for organiza-
tional purposes, engaging in conduct warranting dis-
charge would be antithetical to their objective. No
body of evidence has been presented that would sup-
port any generalized, or specific, finding that paid
union organizers as a class have a significant, or in-
deed any, tendency to engage in such conduct.
The statute is founded on the belief that an em-
ployee may legitimately give allegiance to both a
union and an employer. To the extent that may appear
to give rise to a conflict, it is a conflict that was re-
solved by Congress long since in favor of the right of
employees to organize. To hold otherwise at this late
date would require ‘‘some type of transcendent loy-
alty’’ on the part of an ‘‘employee’’ to the employer
that, in theory, even the Fourth Circuit would not re-
quire. Zachary, supra, 886 F.2d at 73.35
Our decisions finding that union organizers are not
meaningfully distinguishable from other ‘‘employees’’
under the statute should not be read, however, to give
paid union organizers carte blanche in the workplace.
If the organizer violates valid work rules, or fails to
perform adequately, the organizer lawfully may be
subjected to the same nondiscriminatory discipline as
any other employee. See Wellington Mfg. v. NLRB,
330 F.2d 579 (4th Cir. 1964), cert. denied 379 U.S.
882 (1964); Sears, Roebuck & Co., 170 NLRB 533
(1968). In the absence of objective evidence, however,
we will not infer a disabling conflict or presume that,
if hired, paid union organizers will engage in activities
inimical to the employer’s operations. Thus, we find
no policy reason to disregard present decisional law to
find that since a union orgainzer serves the union as
well as the company he is eliminated from the defini-
tion of employee under Section 2(3) of the Act.36
1258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
an employee . . . of such employer, as compensation for, or by rea-
son of, his service as an employee of such employer. 29 U.S.C.
§ 186 (c)(1) (1988).
The Chamber of Commerce asserted at oral argument that paid or-
ganizers are not 2(3) employees because they work for labor organi-
zations which are not ‘‘employers’’ under Sec. 2(2). We reject this
argument. Although Sec. 2(3) expressly excludes individuals who
work for persons who are not statutory ‘‘employers,’’ labor organi-
zations are 2(2) ‘‘employers’ of their own employees. Further, it is
immaterial for purposes of our analysis whether unions are statutory
employers; the organizer derives his ‘‘employee’’ status from his
employment, or attempted employment, with the hiring entity. Thus,
for example, an agricultural employee (who is excluded under Sec.
2(3)), or a Federal Government employee (who works for an entity
outside Sec. 2(2)), would nonetheless be a 2(3) employee if he
sought dual employment with a statutory employer.
37 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Having carefully reviewed the language of Section
2(3), its legislative history, policy, and the wealth of
decisional law interpreting this statutory provision, we
reaffirm our adherence to Oak Apparel and its prog-
eny. We conclude that full-time, paid union organizers
are ‘‘employees’’ entitled to the Act’s protections.
For these reasons, we conclude that all the appli-
cants, including Priem and Shafranski, who sought em-
ployment with the Respondent on September 7, 1989,
were employees within the meaning of Section 2(3) of
the Act. Thus, we adopt the judge’s findings that the
Respondent violated Section 8(a)(3) and (1) of the Act
by refusing to consider for employment the 10 appli-
cants named by the judge because of their union affili-
ation and by subsequently discharging Hansen because
of his organizing efforts.
ORDER
The National Labor Relations Board orders that:
A. Respondent Town & Country Electric, Inc., Ap-
pleton, Wisconsin, its officers, agents, successors, and
assigns, shall take the action set forth in the rec-
ommended Order of the administrative law judge.
B. Respondent Ameristaff Personnel Contractors,
Ltd., Minneapolis, Minnesota, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating job applicants concern-
ing their union membership.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its facility in Minneapolis, Minnesota,
copies of the attached notice marked ‘‘Appendix.’’37
Copies of the notice, on forms provided by the Re-
gional Director for Region 18, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notice to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER OVIATT, concurring.
For reasons set forth in my concurring opinion in
Sunland Construction Co., 309 NLRB 1221 (1992), I
join in the majority’s findings in this case.
MEMBER RAUDABAUGH, concurring.
For the reasons stated in my concurring opinion in
Sunland Construction Co., 309 NLRB 1221 (1992), I
concur in the finding of a violation here.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT coercively interrogate job applicants
concerning their union membership.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
AMERISTAFF PERSONNEL CONTRACTORS,
LTD.
Florence Brammer, Esq., for the General Counsel.
James Pease, Esq. (Melli, Walker, Pease, & Ruhly, S.C.), of
Madison, Wisconsin, for the Respondent Town & Country
Electric, Inc.
Garth R. Seehower, Esq., of Racine, Wisconsin, for the Re-
spondent Ameristaff Personnel Contractors, Ltd.
Steve Gordon, Esq. (Gordon, Miller, & O’Brien), of Min-
neapolis, Minnesota, for the Charging Parties.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This case
was tried in Minneapolis, Minnesota, on December 11–14,
1989, on an initial unfair labor practice charge filed on Sep-
tember 25, 1989, and a consolidated complaint issued on No-
vember 16, 1989, alleging that the Respondents are joint em-
ployers on a specific project in International Falls, Min-
nesota, and in connection therewith engaged in numerous
1259TOWN & COUNTRY ELECTRIC
1 The witnesses presented by each side to this controversy, for the
most part, were not entirely credible, thus, complicating the factfind-
ing process. In that connection, my direct, personal observation of
the witnesses was often a factor influencing resolutions of credibil-
ity. However, plausibility, or the lack thereof in a line of testimony,
was given greater weight and was the controlling factor more often
than not. It is for this latter reason that many critical resolutions fol-
low no clear pattern and facially appear asymmetrical. Thus, in cer-
tain instances, I believed and disbelieved the same witness, though
the testimony conflicted with the same opposing witness. These di-
verse, seemingly inconsistent resolutions, were framed on the basis
of my impressions which varied as the context shifted, rendering one
line more logical than the other.
2 See, e.g., Sunland Construction Co., Case 15–CA–10618–1, et al.
(9/5/89); J. E. Merit Constructors, JD–13–90, Case 15–CA–10661
(1/26/90).
3 All dates refer to 1989, unless otherwise indicated.
4 The Minnesota requirements for licensing are: (1) 8000 hours of
verifiable craft work, and (2) successful completion of a Class ‘‘A’’
journeyman electrician test.
5 This figure includes about 25 unskilled workers, 71 indentured
apprentices, and 130 journeyman electricians.
independent 8(a)(1) violations, and, further, violated Section
8(a)(3) and (1) of the Act by refusing since September 7 to
hire 12 applicants for employment; by since September 13,
refusing to hire Charging Party Charles Evans; by on Sep-
tember 14, discharging Malcolm Hansen; and by since Sep-
tember 20, refusing to hire Roger Kolling. In duly filed an-
swers, the Respondents denied that any unfair labor practices
were committed. Following close of the hearing, briefs were
submitted on behalf of the General Counsel, the Charging
Party, and separately, for each of the Respondents.
On the entire record, including my opportunity directly to
observe the witnesses and their demeanor,1 and after consid-
ering the posthearing briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Town & Country Electric, Inc., a Wis-
consin corporation (T & C), from its facilities in Appleton,
Wisconsin, is engaged as an electrical contractor in the con-
struction industry. In the course of that operation, it annually
provides services valued in excess of $50,000 directly to cus-
tomers located outside the State of Wisconsin.
The Respondent, Ameristaff Personnel Contractors, Ltd.
(Ameristaff), a Wisconsin corporation, from its facilities in
Green Bay, Wisconsin, is engaged in operation of a tem-
porary employment agency. In the course of that operation,
Ameristaff annually provides services to T & C valued in ex-
cess of $50,000.
On the foregoing, I find that the Respondents T & C and
Ameristaff are employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the record demonstrates, and I find
that the International Brotherhood of Electrical Workers,
Local 292, AFL–CIO and its sister, Local Union 343, admit
employees to membership and, at least in part, exist for the
purpose of representing them in the negotiation and adminis-
tration of collective-bargaining agreements, and hence are
labor organizations within the meaning of Section 2(5) of the
Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Statement
This is another case in which recruitment patterns and hir-
ing decisions by a ‘‘merit shop’’ contractor have collided
with the job recovery strategy of unions in the construction
industry.2 Merit shop is a code word for nonunion. Being a
merit shop employer, the Respondent T & C, was unaffili-
ated with any labor organization. Its electrical operations,
however, require access to craftsmen whose skills are com-
parable to those traditionally represented by AFL–CIO build-
ing trade unions, namely, the International Brotherhood of
Electrical Workers.
Early in September 1989,3 T & C was awarded electrical
renovation work at a paper mill operated by Boise Cascade
in International Falls, Minnesota. Work at that location was
to be performed in accord with the Minnesota law. Among
the statutory restrictions is a requirement that one electrician
licensed by the State be employed for every two engaged in
electrical work on the job.4 Based in Appleton, Wisconsin,
T & C was a nonresident contractor, with limited experience
on Minnesota projects.
Work was to begin on Monday, September 11. T & C, the
largest nonunion electrical contractor in the State of Wiscon-
sin, in early September, did not have a single electrician li-
censed in Minnesota, either within its files or among its work
force of some 260.5 Moreover, as a nonunion operator, T &
C does not solicit from, and hence could not fill its need
from union hiring halls.
To obtain qualified electricians, and ultimately to locate
craftsmen licensed in Minnesota, T & C retained Respondent
Ameristaff, a temporary employment agency, to stir the labor
markets, and ultimately, to stand, at least frontally, as the im-
mediate employer of the manpower secured for T & C’s ac-
count.
The instant complaint arises from union efforts to infiltrate
the recruitment process. Attempts of this sort to obtain work
with nonunion contractors, and organize them from within,
stands as a recent innovation. It is a marked departure from
historic measures used by building trade unions in the ongo-
ing struggle to preserve jobs and negotiated labor standards.
In the past, most, if not all, skilled trade unions had endeav-
ored to protect their respective crafts by denying skilled labor
to nonunion contractors, a tactic highly effective in a tran-
sient industry, where hiring halls provide a convenient source
of qualified craftsmen in virtually all geographic areas. This
sequestration of union labor was facilitated by constitutional
bans on nonunion employment, which are subject to enforce-
ment against members through internal disciplinary machin-
ery. In recent years, however, employment opportunities with
union contractors have declined, causing construction unions
to take a second look at the growth of nonunion competition.
To that end, a market recovery strategy was fashioned as a
means of organizing nonsignatory employers. Hence, in
1988, Locals 292 and 343 authorized their membership to
work nonunion, if for organizational purposes. (R. Exhs. 4(c)
and (e).) A fund was established to reimburse members for
wage, travel, and health benefit differentials, that he suffered
on such jobs.
1260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Steven Buelow, Ameristaff’s president, testified that he had no
role during the Minneapolis recruitment operation other than to dis-
tribute and collect applications. Defferding testified to the contrary,
suggesting that, at least in the case of Malcolm Hansen, who was
‘‘selected’’ by Defferding and Sager, Buelow was involved in that
process ‘‘because he [Hansen] was going to be Mr. Buelow’s em-
ployee.’’ As between the two, Buelow overwhelmingly was the more
credible.
7 According to Buelow, Ameristaff ‘‘never purported to supervise
or direct employees’’ of its clients. An instructional guide provided
to employees by Ameristaff states that: ‘‘All client rules and regula-
tions apply—you are working under their direction and supervision.’’
G.C. Exh. 14.
8 As shall be seen, Malcolm Hansen was the sole Ameristaff em-
ployee on the Boise-Cascade job. T & C established his wage rate.
When Hansen received a wage increase, it was at T & C’s election.
According to Steven Buelow, Ameristaff’s president, it billed T &
C based on a formula which incorporated Hansen’s wage rate and
per diem as a multiplier.
9 Buelow testified that on September 13 he was informed by T &
C to terminate Hansen. His lack of control in such matters was ex-
plained as follows:
[T]he client has the ability to terminate that contract at any
time . . . . If the guy is not working out or if they didn’t have
any more work for them, they have the right to terminate the
contract.
10 T & C contests joint-employer status, citing authority which is
inapposite. Thus, see Slurry Matic, Inc., 169 NLRB 184, 185 (1968),
concerned an allegation that two entities were a ‘‘single employer,’’
a concept subject to a more rigorous test than joint employer. See,
e.g., Pacific Mutual Door Co., 278 NLRB 854, 858 fn. 18 (1986).
11 The opposite does not follow. Thus Ameristaff shall not be
deemed responsible for independent unlawful conduct on the part of
T & C over which it had no authority or control.
12 Local 292’s geographical jurisdiction includes the Greater Min-
neapolis area and the five surrounding counties.
This strategy was unleashed against T & C under condi-
tions of surprise during a Minneapolis recruitment effort
waged in conjunction with the Boise-Cascade project. Thus,
T & C’s response to the union initiative forms the premise
for allegations of discrimination on behalf of disappointed
job seekers, all members of Local 292, who responded in
person at a recruitment session held at a Minneapolis hotel
on September 7, and others who made individual phone con-
tacts with T & C. Of the applicants, a single member of
Local 292 was hired, and the General Counsel contends that
this individual, Malcolm Hansen, was discharged unlawfully
on September 14, after unsuccessful attempts on behalf of T
& C, to curtail his organizational activity.
B. Concluding Findings
1. The joint-employer issue
Operationally, T & C’s arrangement with Ameristaff af-
forded access to manpower, under a shield from traditional
employment obligations. Unlike T & C’s own employees, T
& C assumed no liability for fringe benefits as to those car-
ried on the payroll of Ameristaff and other similarly situated
agencies with which it deals. Insofar as might be discerned
from this record, Ameristaff’s involvement in connection
with the Boise-Cascade operation was restricted to advertis-
ing, communicating with job prospects, compiling completed
applications, arranging the accommodations for interviews,
and completing the paperwork necessary to maintain payroll
for those hired. Ameristaff neither interviewed, nor influ-
enced hiring decisions,6 and had no presence, and hence no
overseeing role, at the Boise-Cascade jobsite. Most, if not all,
conventional employment prerogatives were retained by T &
C. Interviewing, hiring, supervising,7 the setting of wage
rates and granting of increases,8 and, for all intents and pur-
poses, discharges,9 were matters reposed to exclusive discre-
tion of T & C operatives.
On these facts, it is indisputable that T & C exercised ple-
nary authority and control over employees retained by
Ameristaff for its account. In these circumstances, even ab-
sent a joint-employer relationship,10 Ameristaff, having a
mere nominal role, possessed the legal vestiges of an agent
whose conduct, in connection with the manning of the Boise-
Cascade job, was binding on T & C.11 See, e.g., Storall Mfg.
Co., 275 NLRB 220 fn. 3 (1985).
2. The embassy suites allegations
a. The issues
This phase of the case is premised on a mass refusal to
consider certain Local 292 members12 in the course of an
interview session conducted in Minneapolis on September 7.
All but two that attended, completed applications at that
time. Only one covered by this immediate allegation was
interviewed. In addition to the alleged discrimination, certain
independent 8(a)(1) allegations are imputed to Ron Sager, T
& C’s manager of human resources, and Steven Buelow,
Ameristaff’s president and owner. The coercive conduct in-
cludes interrogation of applicants concerning their interest in
union work; statements that applicants would be employed
only at union projects; threats that those without ‘‘appoint-
ments’’ would be placed in a file for union jobs only and
would not be considered for employment on nonunion jobs;
and statements that union members could not be hired.
The Respondents deny that their representatives either un-
lawfully questioned, threatened, expressed a preference, or
attempted to impede organization. Furthermore, it is argued
that the failure to interview those present, was based on con-
siderations totally unrelated to union activity. Thus, T & C
urges that I credit evidence that the time available to com-
plete the process impelled T & C to confine interviews to
those with prescheduled appointments.
b. Factual overview
Ron Sager was primarily responsible for manning the
Boise-Cascade job. He was informed in late August or early
September that T & C had secured an electrical contract in
International Falls, Minnesota. He testified that he was told
that the job was to be treated as a short-term operation, since
T & C would have to survive a 3-month trial period to be
retained.
Initially, Sager faced two problems. First, he had little lead
time, as work was scheduled to begin on September 11, and,
second, he had no clear source of required manpower. More-
over, because the job was described as short term, he alleg-
edly did not wish to hire from the outside on a ‘‘permanent’’
basis. Therefore, on September 1, he contacted Steven
Buelow, Ameristaff’s owner and president, requesting that
Buelow investigate the availability of electricians for a
‘‘short term’’ job in Northern Minnesota, adding that he
needed an answer by 5 p.m.
1261TOWN & COUNTRY ELECTRIC
13 T & C argues that Priem and Shafranski, because of their status
as paid, full-time union officials, are not entitled to redress under the
Act. As matters now stand, that issue is currently before the Board
on remand and might well be subject to reconsideration in H. B.
Zachry Co., [289 NLRB 838 (1988)], enf. denied 886 F.2d 70 (4th
Cir. 1989). Under current Board policy, however, this defense is
nonmeritorious.
14 G.C. Exh. 13. Chartrand arrived late, after applications were so-
licited. He testified that he was denied an opportunity to submit an
application because those officiating were in a hurry to leave. He
states that someone took his name, address, and telephone number,
advising that he would be in touch. Chartrand, who claims to have
been desperate for work, received no further contact. Another indi-
vidual who arrived late, failing to file an application was Steven
Shannon. His name was deleted from the complaint at the outset of
the hearing. In her posthearing brief, counsel for the General Coun-
sel represented that Shannon arrived after the interview team had left
and hence had no personal contact with them.
15 I reject Priem’s uncorroborated testimony that after collecting
the applications, Buelow stated that they needed eight people imme-
diately for this project. From all indications on this record, that fig-
ure went well beyond T & C’s needs, and Priem’s testimony in this
regard impressed as a pat, unbelievable attempt to broaden the
former’s liability under this complaint.
Having been retained by T & C to recruit qualified elec-
tricians, Ameristaff followed up in area newspapers. On Sep-
tember 3, 1989, a blind advertisement appeared in a major
Minneapolis newspaper announcing employment opportuni-
ties for ‘‘licensed journeymen electricians.’’ Despite Sager’s
testimony that the job was short term, the ad described the
project as having a ‘‘two-year’’ duration. (G.C. Exh. 2.) The
telephone number of Ameristaff was included.
Members and officials of Locals 292 and 343 learned of
the advertisements. Unemployed members were encouraged
to respond.
On September 5, according to Buelow, Sager made it clear
that among other things, any prospects had to be ‘‘able to
work a merit shop,’’ which quite correctly was understood
by Buelow as reference to a nonunion shop. Buelow relates
that, at some time prior to September 7, this was clarified
by T & C to mean those willing to relocate and ‘‘work a
merit shop.’’
Ameristaff customarily prescreens applicants to determine
if they meet the client’s criteria. In anticipation of responses
to the ads, Buelow set up a screening process for
Ameristaff’s receptionist, Lorrie. She was instructed, inter
alia, to inquire whether job seekers preferred to work union
or nonunion, and that, should they respond that they were in
a union, or had only worked union, Lorrie was to ask if they
would work nonunion.
Sager relates that on Tuesday, September 5, after the ad
had run, Sager first learned of the journeyman/helper ratio
under Minnesota law. For this reason, Sager instructed
Ameristaff that only licensed electricians interested in work-
ing for a merit shop employer would be hired for the Boise-
Cascade job. Ameristaff had been informed that T & C need-
ed more than one licensed electrician. On September 5,
Ameristaff was first informed, on a confidential basis of the
location of the job.
As indicated, work was to commence at International Falls
on Monday, September 11. Sager and the designated project
manager, Dennis Defferding, were aware, at least since Sep-
tember 5, that the job could not begin until hire of at least
one journeyman or master electrician who was licensed in
Minnesota. Thus, Sager’s testimony that as of September 7,
he was ‘‘pretty anxious’’ to hire a licensed electrician comes
as no surprise.
To meet this requirement, Buelow, had scheduled appoint-
ments for the Embassy Suites in Minneapolis on Thursday,
September 7. That day, T & C chartered an aircraft to trans-
port Buelow, and T & C’s Sager and Defferding from Apple-
ton, Wisconsin, to Minneapolis. About 14 unemployed mem-
bers of Local 292, including 2 full-time salaried officials of
that organization, appeared at the Embassy Suites in quest of
work. Applications, under Ameristaff logos, were distributed
and completed. Interviews were conducted by Sager and
Defferding. Three were interviewed, two were offered jobs,
but only one, Malcolm Hansen, was hired. However, the hir-
ing process was cut off before any others would be inter-
viewed. None of this latter group was subsequently contacted
by T & C.
c. The evidence
The complaint identifies 12 applicants, all members of
Local 292, as having been denied employment wrongfully in
consequence of the September 7 interview session. Those
named are as follows:
Ken Axt Red Larson
Steve Claypatch Roger Chartrand
Steve Leyendecker David Hagen
Robert Hallman Bob Printy
Craig Jones Greg Shafranski
Harley Barton Michael Priem
Of this group Priem and Shafranski were paid business rep-
resentatives of Local 292.13 The rest, including Claypatch, a
nonpaid member of that Local’s executive board, were appar-
ently unemployed.
All except Chartrand filed applications.14 Of this group
only Jones was interviewed. Parenthetically, it is noted that
a longstanding member of Local 292, Malcolm Hansen, was
interviewed and actually hired. The third and only other per-
son extended an interview was Gary Weseman, a nonaffiliate
of Local 292.
More specifically, a composite of credible testimony of
Sager and Priem reveals that, due to a flight delay, the inter-
view team did not arrive until 11 a.m. Two rooms had been
reserved. One was arranged as a waiting area, with refresh-
ments and tables for completing applications; the other was
used for actual interviews. After the entire group repaired to
this area, those assembled were addressed initially by Sager.
He first explained the benefits provided by T & C, including
its health and 401(k) plan. Buelow of Ameristaff then distrib-
uted applications, which bore the Ameristaff logo, for com-
pletion by those present. (G.C. Exh. 3.) Later, Buelow gath-
ered the completed applications and carried them to the room
in which interviews were conducted.15
Craig Jones was the first interviewed and Gary Weseman,
the only nonmember of Local 292, was second. It is impor-
tant to bear in mind that Weseman was the only applicant
present that Buelow had previously scheduled for an inter-
view. (R. Exh. 10.)
There also is no dispute that Buelow, after collecting the
completed applications, returned to the waiting room. A dis-
1262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Buelow claims that Ameristaff enjoys a clientele which includes
union as well as nonunion contractors. The union contractors are not
identified, nor are the particular unions with which they deal. Cus-
tomarily, however, construction contractors that have bargaining re-
lationships with affiliated craft unions, will obtain skilled personnel
from the latter’s hiring hall, either on a compulsary or voluntary
basis. To say the least, Buelow’s testimony aroused curiosity as to
why this class of ‘‘unionized contractors’’ would bother with a com-
mercial, fee-based, manpower agency.
17 During the ensuing week, T & C embarked on this independent
search. The campaign began with the placement of ads in Minnesota
newspapers and those published in surrounding States as well as
Colorado, Louisiana, and Texas. Although Sager testified that the
Minneapolis papers were included, documentary evidence proved
this to be untrue. G.C. Exh. 17. Sager also testified that he made
numerous phone calls in the effort to locate electricians licensed in
Minnesota.
18 I have no quarrel with Buelow’s testimony that it was his inten-
tion—concerning applications garnered at the Embassy Suites (G.C.
Exhs. 13(a)–(k))—to verify employment references, but he did not
do so because Ameristaff was off the job the following week.
19 This is not meant to imply that in the event of a finding of ille-
gality, all named discriminatees would be entitled to monetary re-
dress. Thus, in that event, the Respondents could cut backpay liabil-
ity by demonstrating in an appropriate compliance proceeding that
fewer jobs were available than discriminatees.
20 It is not entirely clear, and it need not now be decided, just how
many licensed electricians would be required at startup. Yet, I am
convinced that the Embassy Suites venture fell far below expecta-
pute existed as to what was said, but under all versions, it
is clear that the applicants were informed that the job in
question was nonunion.16 After Buelow was informed that
the men were interested in any work available, he left again.
He again returned after about 15 minutes to read off a list
of seven names. None were present. Buelow identified this
group as those with prearranged appointments, then stated
that: ‘‘we don’t know if we can interview the rest of you be-
cause you didn’t have appointments.’’ Buelow was advised
by Priem that at least eight licensed journeymen were present
who could take the place of those with appointments.
After this, Buelow again left the waiting area, this time re-
turning with Sager. The latter informed that he had to catch
a plane and that: ‘‘We are only going to interview people
that had appointments and . . . we are asking everybody to
leave if you don’t have an appointment.’’ Malcolm Hansen
protested, stating that he called the number in the newspaper
ad and was told to ‘‘show up.’’ He announced that he would
not leave until interviewed. Sager then threatened to call the
local authorities and have them removed. However, he also
informed Hansen that he would check and if Hansen had an
appointment he would ‘‘honor the commitment.’’ When
Sager was informed by Buelow that Hansen had called
Ameristaff that morning, he elected not to labor the point,
but to interview Hansen, while announcing to the others: ‘‘I
will not interview anybody else, because we’ve got to get
going.’’ Hansen was hired. Thereafter, the session was termi-
nated. Other than Hansen and Jones, no one that completed
an application that day was ever interviewed or, for that mat-
ter contacted, by either T & C or Ameristaff.
d. Analysis
(1) The discriminatory refusal to employ
The 8(a)(3) allegations concerning this group might be
viewed from two perspectives; namely, the failure to inter-
view and the post-September 7 failure to seek out the union
allied, job seekers during T & C’s ongoing quest for licensed
electricians.
Before considering the General Counsel’s case, the issues
might be simplified by acknowledging T & C’s contention
that on or about Tuesday, September 12, Sager received in-
formation which made it economically infeasible to consider
the Embassy Suites applicants. It was confirmed at that time
that, under Minnesota law, Ameristaff could not be used as
the employer of licensed personnel on the Boise-Cascade job.
Yet, T & C would incur liability for ‘‘placement fees’’ if it
used the Embassy Suites applications, all of which were so-
licited by Ameristaff. The minimum guarantee to Ameristaff
would be $1320 per applicant. T & C argues that to avoid
this expense, that avenue was abandoned in favor of in-house
recruitment.17
The evidence supporting this claim is beyond suspicion. It
basically conforms with my understanding of the business
practices generally followed by suppliers of temporary man-
power. To this extent, and insofar as the allegations cover the
timeframe after September 7, the Respondent has met its bur-
den of showing that these applications would not have been
activated thereafter even if those seeking work were non-
union. See Wright Line, 251 NLRB 1083 (1980). I am per-
suaded that based on the ‘‘placement fees,’’ the Embassy
Suites applicants, as unknown quantities, would not have
been considered for employment after T & C learned of
Ameristaff’s nullification. Other than speculation, the Gen-
eral Counsel has offered no cause to believe otherwise.18
However, this view does not offer a complete defense.
For, it fails to embrace earlier events, including any peremp-
tory refusal to interview and consider for employment the
disappointed job seekers at the Embassy Suites. If unlawfully
motivated, T & C’s failure to interview at that time on pend-
ing applications created an ambiguity, to be resolved against
the wrongdoer, warranting an assumption that the alleged
discriminatees, if given a chance, would have been hired,
would have demonstrated proficiency, and would have been
retained directly by T & C after Ameristaff’s disqualifica-
tion.19 Thus, the events at the Embassy Suites remain viable
and are central to the 8(a)(3) allegations in this case.
In this regard, there can be no question that, as of Septem-
ber 7, T & C was hard pressed to hire licensed electricians.
At that time, operations were expected to commence at Boise
Cascade on Tuesday, September 12. In the interim, between
September 1 and 5, it does not appear that it had secured a
single journeyman electrician either from its rolls or through
Ameristaff’s efforts. Indeed, on September 5, the opportuni-
ties for locating qualified personnel was squeezed further. On
that date, T & C learned that Minnesota regulations pre-
cluded any operations absent an electrician licensed in that
State. As of September 7, it had not secured a single elec-
trician meeting this requirement. Moreover, T & C’s des-
perate posture at the Embassy Suites was compounded by the
fact that, if this venture failed, only 4 days would remain,
a timeframe made even more critical by intervention of a
weekend.20
1263TOWN & COUNTRY ELECTRIC
tions. Thus, a classified ad reappeared in the Minneapolis newspaper
on Monday, September 11, this time describing the project as of 4-
year duration. G.C. Exh. 4. Sager testified that the Respondent
planned to hire 4 to 6 journeyman electricians ‘‘the first couple of
weeks’’ on the job, and then to increase to 8 to 10 for the remainder
of the job. Defferding’s testimony suggested that T & C was less
ambitious, at least, in terms of its hopes for the early weeks. Thus,
he testified that T & C hoped to pick up one or two through
Ameristaff’s September 7 interviews. He added that if only one were
hired, the actual work force could be expanded beyond the 2 to 1
ratio. This refers to state licensing procedures which permit unli-
censed personnel to obtain temporary permits, pending completion of
the certification process, allowing them to work without counting
against the ratio. Defferding testified that it was T & C’s intent to
use two of its own employees in that fashion, thus, allowing a total
work force of five, including the licensed journeyman. As matters
turned out, only one T & C employee, Michael Grow, obtained a
temporary license. For this reason, Project Superintendent Rodney
Smithback, though on the site at all times, was essentially relegated
to paperwork and could not legitimately work with the tools. On
cross-examination, Defferding admitted to telling a Board investiga-
tor that in early September, T & C anticipated a need for 15 to 30
electricians on the job. I had my doubts about Defferding’s account,
but, in any event, issues of this nature are best left to an appropriate
compliance proceeding.
21 The existence of an untoward motivation is hardly impaired by
suspicion that emerges from the Respondent’s recruitment strategy
following termination of Malcolm Hansen on September 14. There-
after, the Respondent placed ads in numerous newspapers within the
State of Minnesota, but, inexplicably, declined to use newspapers
based in the Minneapolis area. G.C. Exh. 17. Imagination is not
taxed by one’s attempt to reckon the reason for this omission.
It is in this light that the curtailment of interviews on Sep-
tember 7 must be evaluated. The underlying facts, without
question, demonstrate that the Respondent elected not to con-
sider applicants who were present, and who offered them-
selves as available for work and qualified as licensed elec-
tricians.
Sager’s own testimony confirms that the decision not to
conduct further interviews was announced only after the T &
C operatives were informed that this group was believed to
be allied with an affiliated labor organization. Thus, Sager
relates that, after the interviews of Jones and Weseman,
Buelow reported that none of the others had appointments.
Sager expressed curiosity as to how those without interviews
knew that the T & C representatives were present. Sager then
allegedly told Buelow that they were late and had to get back
to Appleton, stating that, ‘‘as bad as we needed people,’’ he
didn’t want to waste time with them if Buelow ‘‘didn’t
screen them like the others.’’ Buelow was told to
doublecheck to assure that those waiting had no appoint-
ments. He returned, stating that those waiting had become a
bit unruly. Sager admits that he at this point learned of their
union affiliation, as Buelow showed him several applications,
commenting, ‘‘I think they’re union.’’ Sager suspected that
T & C was being harassed or being set up. He admits that
it was at that point that he and Defferding decided to an-
nounce, for the first time, that interviews would be extended
only to those with appointments. Sager concedes that the an-
nouncement was made before anyone had accepted employ-
ment and without knowledge that anyone present had an ap-
pointment. Thus, at that juncture, he was resigned to writeoff
the Minneapolis trip as a total failure. T & C remained un-
prepared to meet its scheduled Boise-Cascade starting date,
and merely had 2 working days to accomplish what it had
not in the past 7.
Considering the circumstances confronting T & C at the
time, and the fact the Embassy Suites venture was aborted
immediately after learning of the union affiliation of those
present, an inference is warranted that—notwithstanding the
subsequent hire of Hansen—this step was taken against ap-
plicants, who together offered a broad source of ostensibly
qualified electricians, at least in part on antiunion consider-
ations.21 Thus, the onus was on the Respondents to dem-
onstrate that these applicants would not have been inter-
viewed and considered even if not union members. See
Wright Line, 251 NLRB 1083, 1089 (1980).
The defense begins with T & C’s declaration that it was
not antiunion, an argument which springs from the estimate
that some 40 percent of its employees are or were members
of the IBEW. This demographic is more a function of the
impact of union training and apprenticeship programs on em-
ployment markets than any desire on the part of this ‘‘merit
shop employer’’ to let down its guard. Indeed, T & C’s own
position suggests that those hired were known to be union
renegades, and hence posed no organizational threat. The 40-
percent statistic was furnished by Sager himself. When called
on to explain how he knew of his employees’ union status,
Sager stated:
[We]’ve gotten . . . statements from the people we’ve
hired, that they have gotten letters in mail that they are
going to be fined or that now that they are no longer
a part of the union, they are working for nonunion, they
have to appear before a committee of some sort and
then they bring that to our attention.
Along this same line, in its posthearing brief, T & C states
that it ‘‘knew that the Union’s constitution and by-laws pro-
hibited union members from working for nonunion employ-
ers,’’ and that T & C therefore ‘‘believed the union opposed
the hiring of any of its members by a nonunion employer.’’
From this frame of mind, T & C would assume that com-
petent electricians could be added to its payroll with little
risk that ardent union members would be among those hired.
Any notion that T & C open its doors with equanimity to
qualified craftsmen who overtly manifested an intention to
organize would be inconsistent with the economic goals of
this avowed ‘‘merit shop employer.’’ The business posture of
T & C is no different than those familiar to other nonunion
contractors, including that involved in in J. E. Merit Con-
structors, JD–13–90, pp. 7–8. The observations there apply
with equal force to T & C:
[T]he Respondent considers itself as among the class
of contractors which refer to themselves as ‘‘merit em-
ployers.’’ This is nothing more than a ‘‘buzz’’ ref-
erence to nonunion shop. It is a calling antithetical to
any form of contractual relationship with traditional
building trade unions. Indeed, one might fairly assume
that this class of employers, at least in the area of costs,
enjoys a labor-oriented, competitive edge in an industry
where bidding wars generate revenues, and effective
performance turns upon the ability to attract competent
workers on a casual, short term basis. The benefit of
1264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 In support of this deduction, Sager observes that there was no
prior public announcement that T & C and Ameristaff personnel
would be present in Minneapolis to conduct interviews.
23 In its posthearing brief, T & C characterizes the applicants as
‘‘intruders.’’ However, the interview team did nothing to suggest
who was, and who was not welcome until union affiliation emerged.
In light of the above credibility resolutions, it is concluded that
Buelow, Sager, and Defferding knew, or should have known from
the outset that their were more jobseekers present than Buelow had
scheduled for interview. In any event, Sager admitted that were it
not for the press of time, all present would have been interviewed
irrespective of any lack of appointment or prescreening.
24 In this instance, Priem and Hansen are credited over Sager and
Defferding. None were entirely truthful, and as shall be seen, credi-
bility resolutions, though based on my firm impressions are not en-
tirely consistent in their cases. All struck as a bit too flexible with
truth, willing to bend and improvise to strengthen or cover weak-
nesses in their respective cause. However, in this particular instance,
the late arrival of the interview team enhances the likelihood of the
mutually consistent accounts of Priem and Hansen, it being entirely
probable that by 11 a.m. most of the Local 292 members would
have appeared.
25 The interview team’s departure for Minneapolis that morning
was delayed about 2 hours due to fog. Sager testified that a ‘‘criti-
cal’’ manpower meeting, affecting 37 different jobs, had been sched-
uled for Appleton at 3:30 p.m. that very day. This, according to
Sager, compacted the time available to conduct the Embassy Suites
interviews. There are no written records kept of such meetings, and
independent evidence that it was scheduled or held was totally lack-
ing. Although Sager testified that the meeting was fixed, timewise,
taking place every Thursday at about 3:30 p.m., no explanation was
offered as to why it was necessary to schedule the Minneapolis trip
that same day. Defferding was not examined as to the meeting and
hence did not testify that he attended such a meeting. Sager’s
uncorroborated testimony in this respect does not square with his
failure to diligently explore Buelow’s agenda to assure effective use
of the time available. He was not believed.
26 G.C. Exh. 13(c).
operating nonunion in this industry is magnified when
on considers that most industrial maintenance work is
more labor intense than customarily encountered in
other forms of construction activity, with the ratio of
labor to material costs proportionately higher.
There can be little debate that any formal organiza-
tion drive by an affiliated labor union challenges this
fundamental economic advantage. It follows that indis-
criminate hiring from that source clearly would enhance
that peril. In this light, hiring decisions confronting the
Respondent . . . may be equated with a choice between
suicide and survival.
Beyond the foregoing, the Respondent’s explanation for
the termination of interviews is founded on Sager’s parole
testimony as to intentions, not communicated to those present
until after their union affiliation was discovered. Thus, it is
the sense of his testimony that he at no time wished to inter-
view anyone without a scheduled appointment and who had
not been screened by Ameristaff. Yet, as indicated, prior to
his learning of union involvement, no attempt was made by
either Ameristaff or T & C to single out or identify those
with appointments, nor was there an earlier suggestion that
appointment was requisite to interview.
In this regard, however, Sager testified that, on arrival at
the Embassy Suites, he simply assumed that all present had
appointments.22 He claims that he first learned that this was
not the case when Buelow reported that this was not so.
Thus, if Sager is to be believed, it was his intent from the
outset, albeit unannounced, to interview only those with ap-
pointments, and that Buelow’s report concerning the union
status of those waiting did not inspire any such judgment.
The General Counsel attacks Sager’s credibility on a num-
ber of grounds. First, it is argued that, on arrival, he knew,
or should have known, that more job seekers were present
than the seven with appointments. This raises a preliminary
issue as to just how many applicants were present when the
interview team arrived an hour and 30 minutes late.
Sager testified that only four to six prospects were present,
prompting him to remark that it appeared that only those
with appointments showed up. This is somewhat consistent
with Defferding’s observation that when the management
team arrived at 11 a.m., ‘‘there were a couple of gentlemen
in the lobby . . . waiting for us.’’ However, according to
Michael Priem, he and Greg Shafranski, both business rep-
resentatives of Local 292, arrived at the Embassy Suites at
about 8:30 a.m. on September 7, only to learn that the rep-
resentatives of T & C and Ameristaff had been delayed. He
testified, with corroboration from Malcolm Hansen, that at
about 11 a.m., Sager, Defferding, and Buelow arrived. Priem
and Hansen offered names, but do not identify precisely
which, or how many, applicants were present at that time,
and how many arrived later. Both, however, testified that the
interview team expressed pleasure with the size of the turn-
out. I believed Priem and Hansen, because their account was
more plausible,23 and also stood above other flaws in Sager’s
story.24
Thus, Sager elected to begin the interviews with Craig
Jones, who had no appointment, yet was called without in-
quiry as to whether any such condition had been met. Appar-
ently, to diminish this contradiction, Sager would have me
believe that, though pressed for time,25 he never saw
Buelow’s list (R. Exh. 10), or asked Buelow who, was
scheduled, and, thus, was unmindful that Jones had no ap-
pointment. Buelow had actually scheduled seven interviews.
Sager testified that on the flight to Minneapolis, Buelow ad-
vised him that these were scheduled at 20-minute or one-half
hour intervals. Obviously, if all showed up, simple math in-
dicates that the interview team would he hard pressed to
make it to the Minneapolis airport by 3:30 p.m., let alone re-
turn to Appleton for the meeting allegedly scheduled for that
time. In this light, it is incomprehensible that Sager made no
effort on arrival at the Embassy Suites, and thereafter until
union activity became an issue, to monitor the number who
were present and who would later arrive that were entitled
to interview, and hence might delay the return trip.
In addition, Sager sought to bolster the import of prior ap-
pointments by explaining that those lacking them would not
have been prescreened by Ameristaff, and he did not wish
to interview those who had not gone through this process. He
denied knowledge, however, of what was entailed in the
prescreening.26 In fact, the prescreening format was a sim-
plistic, handwritten system, designed for implementation by
an Ameristaff clerical employee who would take calls from
those responding to newspaper ads. In contrast, the applica-
1265TOWN & COUNTRY ELECTRIC
27 It is difficult to accept that Sager would insist on prescreening
without knowledge of the areas probed in that exercise. I reject
Sager’s testimony that T & C neither solicited, nor was aware that
Ameristaff was screening prospects along union lines. I would also
note that T & C has attempted, albeit inartfully, to place a ‘‘spin’’
on the evidence fingering Sager as the progenitor of this inquiry. It
is clear that Buelow denied that he was instructed by T & C to in-
quire into an applicant’s union preferences. At the same time, how-
ever, Sager admittedly told Buelow that the electricians had to be
willing to work for a merit shop employer. Yet, the Respondent in
its posthearing brief states:
Buelow . . . prepared a prescreening form which, inter alia,
asked applicants if they preferred union or nonunion work. This
inquiry was strictly Buelow’s idea. [Emphasis added.]
This is an ‘‘eye roller’’ of the first order. Could Buelow, who equat-
ed merit shop with nonunion, develop the information specifically
requested by Sager without asking? Fairly stated, the ‘‘idea’’ was
planted, if not directed, by Sager.
28 Jones admitted that, during his interview, he characterized T &
C’s starting rate as an ‘‘insult.’’ However, he denied stating specifi-
cally that he would not work for that rate. Although not given a job
offer, Jones admittedly told the T & C representatives that he would
have to discuss out-of-town work with his wife. He was asked
whether he would consider an offer to work locally. He said he
would, and then was told that his application would be kept on file.
He neither contacted, nor received contact from T & C or
Ameristaff, thereafter. On the face of his own testimony, T & C’s
officials could rightfully assume that Jones either was disinterested
or would contact them after talking to his wife. In this light, it is
concluded that he would not have been hired in consequence of the
September 7 interview even if not allied with Local 292. The 8(a)(3)
allegation in his case shall be dismissed.
29 Chartrand is excluded from the remedial class. He did not file
an application. Buelow admitted that he took Chartrand’s name and
address, but observes that there was no followup because Ameristaff
was removed from the job. The problem here is the element of
knowledge of Chartrand’s union affiliation. He avers that Buelow
asked about his employment experience. However, when examined
as to which contractor he identified, Chartrand did not respond di-
rectly, replying, ‘‘I had worked for Muska [a union contractor] that
year or the year before.’’ It was my impression that Chartrand was
testifying from deduction, rather than what he actually told Buelow.
His testimony was unreliable, and, accordingly, unlike those filing
applications, there is no evidence that either T & C or Ameristaff
had any basis for distinguishing Chartrand from Weseman, who
acted on his own, quite independent of any union. Thus, the General
Counsel, in his case, has failed to identify this latecomer with others
denied interview on union-related grounds.
30 The General Counsel’s witnesses were not entirely consistent.
Thus, Don Larson, also a member of Local 292, testified that
Buelow returned and simply announced ‘‘that this was a nonunion
job.’’ Thus, his testimony fails to reflect any element of interroga-
tion.
31 Region 18 apparently gave a great deal of attention to certain
evidence uncovered during the investigation which triggered the
8(a)(1) allegations in this case. Legally and factually, these issues
demand the same degree of attentiveness on the part of the under-
signed as the other, remedially robust issues in this case. Here, coun-
sel for the General Counsel filed a 43-page brief, a document, vir-
tually useless to any reasoned evaluation of the Government’s posi-
tion concerning the numerous independent 8(a)(1) allegations. Ap-
parently the Charging Party assumed that the General Counsel would
do a better job in this regard, for it specifically relies on the General
Counsel’s ‘‘representations and arguments’’ on these issues. It is true
that the General Counsel’s narrative discussion imputes conduct to
management representatives which might be viewed as incompatible
with Sec. 7 guarantees. However, little attempt has been made to
isolate these references to any definable unfair labor practice, and,
certainly, no attempt is made to put forth rationale as to why, how,
Continued
tions compiled and available to Sager at the Embassy Suites
offered a detailed basis for evaluating past experience and
qualifications. Ameristaff’s prescreening format developed
little more than information concerning a prospect’s will to
work nonunion. There is no evidence that prescreening re-
sults were ever communicated in any form to either Sager or
Defferding. Moreover, Jones obviously was not prescreened
and no such requirement was mentioned in his case. Indeed,
Buelow testified that Sager said nothing about whether he
would interview people without appointments until after
Buelow had made this report some of the applicants were
union. In my opinion, Sager’s testimony concerning
prescreening was yet another false plank in his attempt to
structure an explanation disassociating the sudden termi-
nation of the interview from disclosure that the waiting appli-
cants were union members.27
With the collapse of Sager’s credibility, it follows that the
interviews were terminated when T & C remained at ‘‘square
one,’’ with no appreciable leads to a single Minnesota jour-
neyman. Though Sager was understandably ‘‘anxious’’ to
man this job, this objective was displaced by a more compel-
ling need to shun a waiting group of applicants, all, or some
of whom, would qualify. His action, after learning of the
union presence, is rationally explained by the inference gen-
erated under the General Counsel’s case-in-chief. Accord-
ingly, except in the case of Jones,28 it is concluded that the
Respondent has failed to demonstrate by credible evidence
that those named in the complaint, who filed applications,29
would not have been interviewed and considered even if un-
affiliated with Local 292. Accordingly, Respondent T & C
violated Section 8(a)(3) and (1) of the Act by this peremp-
tory conduct.
(2) Interference, restraint, and coercion
(a) By Buelow
The complaint alleges that the Respondents violated Sec-
tion 8(a)(1) by Buelow’s interrogation of Embassy Suites ap-
plicants as to whether they were looking for union work. In
support, Priem testified that Buelow collected the completed
applications, but, after about 15 minutes, he returned stating,
‘‘Are you looking for all union work?’’ Malcolm Hansen’s
initial testimony describes the inquiry as, ‘‘Are you men in-
terested in union work?’’30
Buelow denied that he raised the ‘‘union-nonunion’’ issue,
claiming that it was the applicants that questioned him as to
the existence of union work. He claims that he replied to
these inquiries by stating, ‘‘we do have both types of con-
tractors, however, the people that were here today were rep-
resentatives of Town and Country Electric and they were
interviewing for the project at Boise.’’ Thus, those present
were alerted to the fact that union work was not available
at that time.
In this state of events, even accepting the above accounts
of Priem and Hansen, their testimony would not substantiate
that Buelow’s expressed curiosity was coercive. The failure
by the General Counsel to analyze and cite precedent in con-
junction with what, at best, presents a thin, borderline issue
is inexcusable.31 Without benefit of guidance, it is my view
1266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
or under what line of thinking, the allegations should be sustained.
This ‘‘scattershot’’ technique is inexcusable. No one knows better
than the General Counsel just what evidence, theories, and precedent
support the violations where a complaint incorporates multiple
counts of Sec. 8(a)(1). The administrative process could be bene-
fitted through the simple task of passing this information on so that
the General Counsel’s position might be understood, and the 8(a)(1)
allegations resolved under conditions minimizing confusion, delay,
and opportunity for error. While can appreciate that no party has an
obligation to file a brief, there also is no rule obligating a litigant
to make an effective presentation.
32 The failure to brief the 8(a)(1) allegations in meaningful fashion
has produced an esoteric game of mix and match. The degree of
guesswork involved is suggested by the General Counsel’s abstract
comment that the remark covered by this allegation constitutes an
unlawful ‘‘promise.’’
33 Recently, the Board appears to have hesitated over possible 8(c)
protection for antinuion argumentation founded on customer pref-
erences. See Harrison Steel Castings, 293 NLRB 1158 (1989). The
General Counsel, having failed to analyze the issue, or cite any au-
thority whatever, again, in context of a debatable issue, has dumped
its own responsibility as an adversary on the administrative law
judge.
that, in context, the inquiry as to the applicants’ preferences
would have no tendency to impede protected rights. Earlier,
the jobseekers, who were accompanied by Local 292 busi-
ness representatives, and who obviously were acting jointly
to further institutional designs, had completed applications
which, according to the General Counsel’s own argument,
contained information clearly disclosing a history of union
employment at union scale. It was this, and only this willful
disclosure, which served to invite Buelow’s response.
Against this background, it strains credulity to assume that
any among this group would have sensed any degree of pres-
sure from an attempt to clarify their preference for union or
nonunion work. Rossmore House, 269 NLRB 1176 (1984).
The complaint also alleged that Buelow, still at the Em-
bassy Suites violated Section 8(a)(1) by telling applicants
that they would be employed ‘‘only at union projects and
. . . not . . . at nonunion projects.’’32 This allegation is ap-
parently based on testimony of Priem and Hansen. Priem de-
scribes Buelow as stating that Ameristaff had union and non-
union work and that the applications taken at the Embassy
Suites would be placed on file until the union work came in.
Priem’s prehearing affidavit reflects that after he asked
Buelow what would happen to the applications, the latter
simply replied that they would be filed ‘‘for future job op-
portunities.’’ To this Priem replied, ‘‘I think I know what file
they will go into.’’ Thus, the affidavit omits the
union/nonunion dichotomy. (R. Exh. 2.) As was true there,
Priem’s account given at the hearing plainly amounted to his
interpretation of Buelow’s remarks, rather than what was ac-
tually said.
Hansen testified that Buelow stated:
[T]he contractor that we are now working with now is
for nonunion jobs. There will be union work coming in
later. We will keep your applications on file for a later
date.
The two versions are not perfectly consistent, and in my
opinion Hansen’s is too vague to support a violation. The
differences, together with my lack of complete confidence in
Hansen and Priem, lead me to give the Respondents benefit
of the doubt and the 8(a)(1) allegation in this respect is dis-
missed.
(b) By Ron Sager
The complaint alleged that the Respondents violated Sec-
tion 8(a)(1) of the Act by several remarks attributed to Ron
Sager at the Embassy Suites. The first involves a comment,
somewhat identical to that attributed to Buelow, that those
without appointments would be placed in a file for employ-
ment at union projects and would not be considered for em-
ployment on nonunion jobs. The General Counsel’s brief
does not mention any testimony which would be relevant to
this allegation. Yet, no attempt is made to delete it. Appar-
ently, it was more convenient to defer this allegation to the
administrative law judge. After an independent study of the
record, no evidence has been located which might tend to
substantiate this allegation and it is dismissed.
The complaint also alleges that Sager expressed a threat
that ‘‘he could not hire . . . members of a union because his
customers would not allow it.’’ The General Counsel does
not specify the testimony relied on to support this allegation.
My own culling of the record suggests that the allegation
might pertain to testimony by three different witnesses to
three distinct incidents.
The first derives from a colloquy between Priem and coun-
sel for the General Counsel, as follows:
Q. Was anything said about the customer during Ron
Sager’s remarks when he came into the room?
A. Yes. They had stated to us that we can’t hire sig-
natory people as per our customer on this project. [Em-
phasis added.]
No attempt was made at the hearing to clarify that it was
Sager who made the statement. In any event, if made, others
would have been within earshot and I am unwilling to accept
Priem’s uncorroborated testimony in this respect.
A second possibility emerges from testimony by Craig
Jones, who relates that, during his interview, he asked wheth-
er T & C had considered working union, and was told by
Sager that they would ‘‘not be signatory to any union and
that basically their customers preferred it that way.’’ Sager
could not recall making these statements. In crediting Jones,
his account merely expresses a customer preference for non-
union contractors, rather than an absolute ban, and hence the
statement is considered fair argumentation within the pur-
view of Section 8(c).
The third derives from Hansen’s employment interview.
He claims that, in the course thereof, Sager said, ‘‘Well, you
know, our customer up there is . . . Boise Cascade. . . .
We can’t have any signatory employees up there.’’ ‘‘Our
customer, Boise Cascade, will not allow it.’’ Sager denied
any such remarks. Defferding could not recall any conversa-
tion to the effect that they couldn’t have union signatory peo-
ple at Boise Cascade, or that Boise Cascade, wouldn’t allow
such employees into the plant. As indicated below, I believed
Sager over Hansen, in connection with coercive comments
the latter attributed to Sager during his employment inter-
view. Accordingly, any 8(a)(1) allegation based on this inci-
dent is dismissed.33
1267TOWN & COUNTRY ELECTRIC
34 Defferding was, perhaps, the least impressive witness. There are
many reasons why I have great difficulty entertaining the notion that
T & C was indifferent to union affiliation. For reasons already
given, I have difficulty accepting that T & C operatives were un-
aware of the content of Ameristaff’s screening process. Moreover,
prior to this interview, Buelow reported that the presence of union
members might well constitute a threat to the recruitment process,
a development which would arouse strong curiosity as to possible
involvement of those yet to be interviewed. The suggestion by
Defferding that T & C was indifferent to union allegiances hardly
enhances his credulity in this proceeding.
35 Hansen’s interview was conducted in two parts. Defferding testi-
fied that, during the interval between those meetings, he observed
Hansen talking with his union ‘‘buddies.’’ He claims that, for this
reason, when Hansen returned, Defferding asked: ‘‘are they giving
you a hard time because you are considering working for us[?]’’
Thus, Defferding claims to have assumed that ill will was blowing
between Hansen and other applicants. This is incredulous. Hansen at
the time had not been offered a job. Like Hansen, his union ‘‘bud-
dies’’ were present in quest of jobs. That Defferding could have read
conflict between Hansen and any of the applicants is pure nonsense.
I am convinced that Defferding’s concern stood on more pragmatic
grounds. Before treating with Hansen, Defferding and others on the
interview team had been alerted to union intervention in connection
with the manning of this job. Being sensitive to union attitudes to-
ward ‘‘merit shop’’ contractors (C.P. Exh. 1), the dynamics of what
had already transpired would lead Defferding to a single concern;
namely, that Hansen was in league with other union members
present on that occasion. In contrast with Defferding’s testimony, it
is more likely that he would assume that Hansen was part of the
conspiracy, and that he was hired out of desperation, on hope that
he could be controlled.
The complaint also alleges 8(a)(1) allegations on grounds
that Sager:
(i) threatened that ‘‘an applicant for employment
would be required to resign membership if hired,’’
while questioning the applicant as to whether he would
comply, and (ii) threatened that an ‘‘applicant could not
discuss unions or organize on behalf of unions at the
Boise Cascade site.’’
These allegations presumably are predicated on testimony
of Hansen as to what transpired during his interview at the
Embassy Suites. Hansen’s version, in material part, is as fol-
lows:
Well, they called me in there and they said, ‘‘Well,
we know you are a union member.’’ I said, ‘‘Yes, I’ve
been a union member for 28 years.’’ And then we
talked about the job up there and what it consisted of,
and Mr. Sager asked me . . . so I went through basi-
cally my work experience since 1956.
I think then Denny Defferding went into that he was
once a union member and that any people they hire,
once they hired them, they expect them to drop their
union membership, and Denny Defferding asked me if
I would be willing to do that, and I responded with
‘‘whatever.’’
Ron Sager was very emphatic that there would be no
talk about union, no organizing. He said we could talk
about fishing, hunting, women, but there will be no talk
about the union in any shape or form.
After a break in the interview, Hansen returned and was
hired. He claims that Sager stated at that time, as follows:
We’ve got to trust each other. We’ve got to be con-
fident [sic]. We don’t have to tell what we know. ‘‘In
fact there is two people out there in the hall. I imagine
they are waiting for you. I imagine they are union
members. Don’t tell them anything. . . . You don’t
have to.’’ I asked him, I said, ‘‘Well, when will I be
getting this vacation and hospitalization and all that you
offered?’’ Well, he said, ‘‘As soon as you and I can
agree on that you are coming to Town & Country per-
manent and you drop your union membership, you will
receive all those benefits.’’
Sager testified that during the first interview, Hansen vol-
unteered that he was trained by and a member of the IBEW.
He denied that either he or Defferding inquired as to his
union status. Sager denied any statement that Hansen had to
drop his union membership before getting on T & C’s pay-
roll. He denied that anything was said at that time concern-
ing Hansen’s right to discuss the union on or off the job at
Boise Cascade, nor was his right to engage in organization
activity discussed.
Defferding, when asked if he had questioned Hansen about
the Union, stated: ‘‘I don’t remember asking the question, I
just remember it came up. I believe he volunteered it because
we had no problem with it.’’34 Defferding testified that, once
disclosed, the only comment concerning Hansen’s member-
ship pertained to whether, as a union affiliate, he had any
problem accepting employment with a ‘‘merit shop’’ because
others who did so, later were exposed to threats. Defferding
denied that anything was said concerning trust and confiden-
tiality. He also denied that Hansen would be required to drop
union membership before going on T & C’s payroll. He de-
nied that Hansen was told that he could not organize on that
job, or that their were limitations on his right to do so.
Neither Hansen, Sager, nor Defferding impressed as im-
peccable witnesses. In many areas, I would prefer Hansen
over defense witnesses, including Sager and Defferding.
However, in this instance, T & C is given benefit of the
doubt. Hansen was given a job out of Respondent’s despera-
tion, with knowledge of his union history. Prior to his inter-
view, Sager and Defferding were alerted to a possible union
attempt to infiltrate the hiring process, and, between inter-
views, Hansen was observed cavorting with his union ‘‘bud-
dies.’’35 In this light, probability leads me to believe the tes-
timony that T & C would have finessed the union issue, rath-
er than address it with the heavyhandedness suggested by
Hansen. On the basis of Sager’s credited denials, the 8(a)(1)
allegations emerging from this interview are dismissed.
3. The termination of Hansen
a. Overview
The second major combination of allegations relates to the
employment of Hansen, who had been a member of Local
292 for 28 years and a licensed electrician for about 18
years. He was not a paid union organizer, and apparently did
not serve the Union in any official capacity. As indicated
above, he was hired with knowledge of his union history as
the last to be interviewed, and the only licensed electrician
secured through Ameristaff’s Embassy Suites venture. Sager
1268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
36 I credit Hansen’s denial that he claimed master’s status. Sager
testified that in Wisconsin, it was not unusual to find one with a
master’s license willing to work for $16 hourly. Consistent there-
with, Defferding testified that Hansen was given T & C’s $16 rate
for master electricians at the interview. This is inconsistent with the
$15 rate documented in G.C. Exh. 5(b), the employment contract be-
tween Hansen and Ameristaff. Moreover, Buelow corroborates that
Hansen was initially assigned a $15 rate, that was later increased to
$16, the rate reflected in Hansen’s paycheck. It is also noted that
in his employment application, dated September 7, Hansen fails to
represent that he held a master’s license. G.C. Exh. 5(b).
37 By letter of that date, the Union notified T & C that Hansen
was a member of Local 292. G.C. Exh. 5(a). The return receipt re-
flects that it was not delivered to T & C until September 21. R. Exh.
3. T & C replied to the Union by letter of September 21, denying
that Hansen had ever been employed by it, naming Ameristaff as his
employer. The letter is cumulative as Hansen’s union sympathy, and
T & C’s knowledge thereof is a given.
38 Smithback testified that he actually gave the directions to Han-
sen on this date, while telling him that he would have to provide,
‘‘on his own,’’ safety glasses with side shields, hard hat, and safety
shoes. He adds that at a safety meeting on Monday, September 11,
attended by Hansen, the Boise-Cascade requirement that these items
be worn at all times was mentioned repeatedly. Defferding testified
that, when hired, Hansen was told that he was required to wear steel-
toed shoes. It is a fact that Hansen did not arrive at the jobsite with
safety shoes, and circumstances precluded his obtaining them until
his last day on the job. In contrast with Smithback and Defferding,
Hansen testified that before reporting, he was told to bring his tools
and a hammer drill if he had one, but not safety shoes. Although
the testimony dealt with Hansen’s compliance with safety standards,
Sager admitted that this did not contribute to T & C’s decision not
to place Hansen on its payroll.
39 Smithback testified that he was involved in a meeting and when
he returned to the work area ‘‘around noon or shortly after,’’ he was
notified that the inspectors were present. Tom Steiner apparently did
not agree. He described a great deal of work as having been per-
formed prior to the arrival of the inspectors. He claims that they did
not appear until late afternoon.
testified that they elected to give Hansen, who allegedly stat-
ed that he had a master’s license,36 an opportunity to work.
Hansen accepted at $15 hourly and $25 daily per diem.
Though interviewed and selected for hire by T & C offi-
cials, technically, Hansen was retained on Ameristaff’s pay-
roll for referral to T & C’s Boise-Cascade job. (G.C. Exh.
5(b).) He worked on September 12–14. On this latter date,
he was terminated when T & C cancelled its contract with
Ameristaff, while declining to place Hansen on its payroll.37
As indicated above, Ameristaff’s relationship with Hansen
appeared to be a paper transaction, with T & C providing
sole supervision, and Ameristaff having no discretionary role
in his discharge. T & C’s key players in the elimination of
Hansen were Sager, Defferding, and Rodney Smithback, T &
C’s project superintendent. However, Smithback was the sole
T & C functionary with day-to-day supervisory authority at
the Boise-Cascade site. His testimony, with support from T
& C employees Randy Reinders, Tom Steiner, and Michael
Grow, is critical to the effort on the part of the defense to
impeach Hansen’s performance on that job, so as to confirm
that union considerations where not involved.
The General Counsel’s contention that Hansen was termi-
nated on proscribed grounds centers on undisputed testimony
that, during his brief 3-day tenure, Hansen flaunted his union
membership, while engaging in overt, repetitive efforts to or-
ganize coworkers. Before announcing his intentions in that
regard, T & C, on Tuesday, September 12, increased his
wages and per diem. He was gone 2 days later.
Under the complaint, the organizational activity had a con-
tumacious flair, since manifested by Hansen in the face of
alleged instructions that he cease all union activity. These in-
structions are among a series of independent 8(a)(1) allega-
tions naming Smithback as having told Hansen not to discuss
the Union on the job, on the jobsite, or off the job; as having
threatened discharge for organizing on the jobsite, and as
having questioned Hansen as to what it would take to get
him to quit discussing unions and to support the Company.
The General Counsel implicates Ron Sager in this coercive
pattern through allegation that he too prohibited Hansen from
discussing or engaging in union activity.
b. Hansen’s employment at Boise Cascade
On Friday, September 8, Hansen called T & C, speaking
with Sager. He at that time was given directions to the ‘‘Ar-
rowhead Lodge’’ in International Falls.38
T & C’s onsite personnel at Boise Cascade during Han-
sen’s tenure was limited to Project Superintendent
Smithback, Tom Steiner, a 25-year-old apprentice, who had
never worked outside of Wisconsin for T & C, Randy
Reinders, a 29-year-old journeyman electrician unlicensed in
Minnesota, and Mike Grow, a helper on T & C’s payroll.
Much of the testimony focused on Hansen’s 3-day tenure,
with the General Counsel stressing his union activity and the
Respondent’s reaction thereto, and T & C attempting to dis-
credit Hansen’s competence as well as performance during
this period. My findings in this connection are summarized
below.
Tuesday, September 12. This was T & C’s first day on the
job. According to Smithback, the crew arrived later than in-
tended. After the unloading of tools, another delay was en-
countered because Boise Cascade had not laid out the mate-
rials as promised.
Around noon, State Inspectors Bob Johnsen and Gordon
Oslin met with Smithback in the crew’s presence.39
Smithback was informed by the inspectors that T & C was
in violation of Minnesota restriction on crew ratios. Thus, in
addition to Smithback, there were three T & C employees,
plus Hansen on the job. This offended Minnesota law by ex-
ceeding the required ratio of licensed to unlicensed person-
nel. Johnsen stated that because Hansen was the only li-
censed journeyman, two others would have to be removed.
To comply, Smithback agreed that he would perform no
electrical work, while electing to remove Mike Grow.
A dispute exists as to whether the investigators were in-
formed that Hansen was employed by a Ameristaff and not
by T & C. Thus, T & C’s witnesses claim that Hansen re-
ported this at that time. For example, according to
Smithback, Hansen told the investigators:
I don’t think that Town and Country is legally working
because I don’t work for them. I work for a temporary
1269TOWN & COUNTRY ELECTRIC
40 Mike Grow, Randy Reinders, and Tom Steiner would later cor-
roborate Smithback in this regard. Steiner testified that Smithback
said he would check to confirm Hansen’s position re Ameristaff.
Grow, Reinders, and Steiner, virtually at every turn, offered choral
corroboration of Smithback’s testimony. The improbability of their
testimony at this juncture foreshadows inherently questionable ac-
counts in other significant areas. I considered them to be thoroughly
unconvincing.
41 Smithback and Mike Grow denied telling the inspectors that
Hansen was employed by T & C. Reinders testified that Smithback
told the inspectors that Hansen was employed by Ameristaff.
42 I credit Hansen and Johnsen. Apart from the latter’s disinterest,
I find support for their accounts in testimony by Sager that he did
not learn that there was a question concerning the use of ‘‘tem-
porary’’ or third party employees on the Boise-Cascade job until
much later when he received a message from Robert C. Stephenson,
T & C’s vice president. However, Sager and Smithback confirm that
they participated in a telephone conversation on the heels of the con-
ference with the inspectors. If the agency issue had been broached
to the inspectors, Smithback certainly would have been mentioned
this to Sager. If Hansen was right, Ameristaff’s involvement was far
more critical than other topics discussed with the inspectors. In that
event, T & C would have to terminate operations until a qualified
journeyman could be hired and placed on its payroll. I also have
doubts that, if aware of Ameristaff’s involvement, the inspectors, as
Smithback indicates, would not have known its legal ramifications.
John Quinn, the executive secretary of the Minnesota State Board of
Electricity, testified, without contradiction, that he informed Stephen-
son on September 11, that he had ‘‘advance notice’’ that T & C
planned on hiring through an employment agency, and that Stephen-
son was informed that this arrangement would be unacceptable.
Smithback’s testimony that the inspectors were not of a similar mind
assumes a possible, but unlikely lack of communication between
electrical board headquarters and the electrical board’s field person-
nel. It is more likely that, as Johnsen testified, Hansen was identified
as a T & C employee, thus obviating discussion of the agency issue.
43 Steiner testified that the only time Hansen mentioned his earn-
ings was when he said that ‘‘he was making more than T & C was
giving him.’’ When Steiner asked how much, Hansen declined to tell
him. Steiner was a thoroughly unreliable witness, whose testimony
struck as a pat, finely honed attempt to place meat on the bones of
Respondent’s case, wherever he could and with repeated exaggera-
tion and disregard for truth. Reinders testified that the only reference
to wages that he was aware of grew from Hansen’s discussion of
differences between his earnings on union jobs and at Boise Cas-
cade. As for Grow, on his inquiry as to how Hansen could afford
to lose money by working for T & C, Hansen denied that this was
the case, indicating that his hourly rate was being subsidized by the
Union. I believed Hansen in this respect.
44 In this instance, I believe that Hansen was mistaken. Although
I have no doubt that such a remark was made by Smithback during
Hansen’s employment, Tuesday was a bit early. It was not until
Wednesday that Hansen announced his intention to organize. Prior
to that, his references to union activity were general, oblique, and
ambiguous, and in the circumstances would not have prompted the
strong admonition attributed to Smithback.
45 In the face of Smithback’s admission as to the late start that
morning, it is of interest that Reinders testified that after the inspec-
tors left, not much work got done because of the dialogue that en-
sued in consequence of Hansen’s claims for more money and author-
ity based on the licensing problem.
company Ameristaff and I don’t think they can be here
doing that.40
In response, Johnsen, according to Smithback, indicated that
the inspectors were not sure of the ruling covering that situa-
tion, and therefore would let the job progress, but that the
circumstances were strange and the job would be watched
closely.
Hansen denied having mentioned Ameristaff at that time.
In fact he asserts that Smithback described him to the inspec-
tors as an employee of T & C. Inspector Johnsen, an appar-
ently disinterested witness, corroborated Hansen. He testified
that Smithback identified himself as the T & C representative
on the job, and that when Johnsen inquired as to whether
those on the job, including two apprentices, were his em-
ployees, Smithback responded, ‘‘Yes, they are. Mr. Malcolm
Hansen is the journeyman in our employment.’’ Contrary to
T & C’s witnesses,41 Johnsen denied that Hansen referred to
his employment with Ameristaff at that time.42
On departure of the inspectors, Hansen advised Smithback
as follows:
Well, it looks like I’m pretty important guy on the job
right now. If only two people can work and it’s going
to be on my license under my direction, looks like
should have a little more money.
Smithback then apparently contacted Sager, who in turn
spoke with Hansen. According to Hansen in their ensuing
conversation, he sought an increase and eventually settled on
an offer of $17 hourly and an increase in per diem to $32.
With the exception of the size of the increase, Sager does not
seriously dispute the content of this conversation.
Later that day, during break, Steiner asked Hansen how
much he was making on the job. Hansen told him that he
earned more than Smithback, also informing Steiner that ‘‘at
home,’’ he customarily earned $25.70 an hour. In response,
Steiner asked what Hansen was doing at International Falls.
Hansen stated that he could not disclose at that time, but
would tell him before leaving the job.43 According to Han-
sen, Smithback who heard and was unhappy with Hansen’s
remarks, allegedly instructed: ‘‘I don’t want you talking
about unions on the job, at the cabin or anything. I don’t
want Steiner and Reinders to hear it. I just don’t want to
hear it. That’s it.’’ Hansen stated that he would not com-
ply.44
Sager testified that on the afternoon of September 12, he
received a call from Smithback who was unhappy with the
fact that Hansen was telling the other workers on the job that
he earned more than Smithback. Sager suggested that the lat-
ter call Defferding, while indicating that he should avoid up-
setting Hansen because he was needed. Sager added that
Hansen had a gun at their head, requiring respect for his de-
mands.
On September 12, the curtain was lifted on the attempt by
T & C’s witnesses to portray Hansen as a poor worker, who
failed to demonstrate that he possessed craftsmenlike skills.
Smithback admitted that he had no direct opportunity to
evaluate Hansen’s work that day. He did testify, however,
that he was ‘‘a little surprised at the amount of work that
they didn’t get done on the 12th.’’45 He added that:
[B]oth Tom Steiner and Randy Reinders came up to
me and asked me specifically if I could find something
for Mick to do, so they could get some work done. He
was interrupting them, consistently talking, would not
allow them to proceed in a fashion to which they were
accustom to working.
1270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
46 The attack on Hansen’s competence included reference to the
latter’s position that bent conduit was subject to appropriate measure
either on a top-to-top or bottom-to-bottom basis. Steiner with initial
agreement from Reinders stated that this was in error as the accurate
measurement could only be made from top to top. Reinders, on
cross-examination was forced to concede that it made no difference,
as the top would become the bottom simply by turning the offset
pipe upside down.
47 Reinders claims that he attempted on Tuesday to correct Han-
sen’s method of handling the drill. Hansen, however, denied this,
pointing out that it was his practice, and for years, had carried his
own personal drill bit for use on this, and all other jobs on which
he was employed.
48 As noted in T & C’s posthearing brief, Hansen, in addition to
feeding the clamps, would pass conduit to the men as they worked
on the scaffolding, and move it for them as their work progressed.
49 Smithback relates that were it not for the licensing problem,
Hansen would have removed from the job at this point. This is taken
as a remarkably strong statement after only a partial days work and
by one who claimed no opportunity directly to observe Hansen.
Moreover, the diary entry itself is questionable. It appears inappro-
priately placed, lending support to the possibility that it was entered
after the fact, as argued by proponents of the complaint. In any
event, the entry makes no reference to the quality of Hansen’s per-
formance. This omission is striking when considered in light of
Steiner and Reinders’ accounts of destroyed drill bits and saw blades
due to poor work practices, as well as his alleged output of fouled
parts, requiring partial rework. Consistent with Tuesday’s variance,
entries in the diary for the balance of that week dwell exclusively
on productivity, with not a single mention of Hansen’s failure to per-
form in a workmanlike manner.
50 According to Sager, he did not learn that there was a question
concerning the use of temporary employees on the Boise-Cascade
job until Tuesday, following the pay raise conversation with Hansen.
The source was a cryptic message from Bob Stephenson. Sager first
places this as having occurred that ‘‘morning,’’ but later would tes-
tify that this message was not received until 4:30 p.m. In this con-
nection, it is noteworthy that John Quinn, the state electrical official,
testified that when, on September 11, he instructed Stephenson not
[A]s they set up a scaffold, placed pipe on it and
then were about to take clamps to the top of the scaf-
fold with them . . . and then proceed to run the
conduit[,] . . . Mick would not allow them to take the
clamps up because then he would have nothing to do
[if] he couldn’t throw the clamps up to them.
So he took essentially a two man job and made it
into a three man job and in the process—they com-
plained about he talked an awful lot.
Steiner’s testimony was more far reaching than
Smithback’s summation. His criticism appeared to highlight
malfeasance, rather than nonfeasance. He testified that, to-
gether with Reinders, on Tuesday, he was running conduit,
above ground on scaffolding, as Hansen, at ground level bent
pipe for them. When asked to evaluate Hansen’s work in that
regard, Steiner stated that he could have done a better job
as Hansen’s bends were not in accord with measurements,
and had skewed angulation. Steiner claims that he rebent
some of the pipe. Steiner also testified that an offset made
by Hansen was not right, and that from his observation, Han-
sen lacked familiarity with the machine, a conclusion de-
duced from his use of angulation charts to discern multipliers
used to effect bends of different degrees.
Steiner also testified that the crew was cutting strut, a
‘‘U’’ shaped channel to be anchored to a wall designed to
hold conduit. Steiner asserts that the cuts, made on the porta-
band saw, were not straight, and that most of the cutting was
performed by Hansen. He also claims that he observed Han-
sen, rocking the band saw, a practice which could break the
blades, and instructed him as to the proper technique. With
Hansen being the primary operator of the band saw, they
went through six blades in 3 days. In addition, Hansen and
Steiner had to recut struts.
Steiner testified that late in the day, the crew resumed
hanging strut on the wall. He had Hansen cut a strut for a
‘‘disconnect’’ which ended up shorter than the measurements
Steiner had provided. Reinders confirmed that this short
length was pursuant to a measurement originally made by
Steiner, then remeasured by Hansen.46
If Steiner is to be believed blades were not the only tools
ruined by Hansen that day. He related that the latter in drill-
ing holes in the struts, spurned the use of a ‘‘center punch’’
as a starter, using a larger bit, forcing the drill, at high
speeds, directly on the metal. This allegedly caused the drill
bits to dull rapidly. Hansen allegedly burned up every avail-
able drill bit by the end of the first day.47
Steiner did confirm that, among the above-described tasks
performed by Hansen that day, he insisted on feeding clamps
to Steiner and Reinders as they worked on the scaffolding.
The box of clamps were not placed on the scaffolding before
hand, because, precisely as Smithback had related, Hansen
needed something to do.48 When examined further on this
point, Steiner offered that Hansen really preferred this task
to other work that he might have done. Steiner ultimately
agreed that the accumulation of too many parts and tools on
scaffolding would tend to create a safety hazard.
Reinders also spoke to Smithback that day, reporting that
the drill bits were shot, and that they had broken so many
band saw blades that only one remained. In fact, Mike Grow
was sent to the hardware store to purchase additional blades
that Tuesday afternoon. On cross-examination, he admitted
that two portabands were on the job and that both were used
regularly, frequently and by ‘‘everybody.’’
Smithback testified that he called headquarters late in the
day to report that he was not pleased with Hansen’s perform-
ance and that he was not meeting expectations as ‘‘he was
unsatisfactory, his performance was unsatisfactory.’’
Smithback claims that, on September 12, he made an entry
on the daily foreman’s diary citing Hansen with work that
‘‘does not come close to being satisfactory in the production
end.’’ There was no reference to damaged materials, tools,
or parts. (R. Exh. 12(a).)49
Wednesday, September 13. Apart from the assault on Han-
sen’s competence, testimony as to events of this day includes
Hansen’s account concerning the emergence of the
Ameristaff issue and evidence that this was the first occasion
on which Hansen announced specifically his aims on behalf
of the IBEW.
First, Hansen testified that in the morning, Area Inspector
Gosland approached him on the jobsite requesting that he
identify his employer. Hansen, in Smithback’s presence, re-
plied: ‘‘Well, I’m not positive who I work for. I filled out
an application with Ameristaff, but I’m working with the
guys here from Town & Country and I use Town & Coun-
try’s tools and Town & Country employees are . . . working
off my license.’’ According to Hansen, Smithback informed
Gosland that Hansen was working for T & C.50
1271TOWN & COUNTRY ELECTRIC
to use a labor service, Stephenson indicated that adherence would be
no problem. Quinn added that, in his presence, Stephenson tele-
phoned his office, overhearing Stephenson instruct that ‘‘they could
not use an employment service for contract labor, and that should
be taken care of.’’ (This was memorialized by Quinn’s letter to Ste-
phenson dated October 18. G.C. Exh. 12.) According to Sager, he
did not actually talk to Stephenson until Wednesday, September 13,
whereupon Stephenson reported that Quinn had advised that they
could not use temporary employees on any jobsite in Minnesota.
51 If Smithback had made the report he claims to have made on
Tuesday evening, this exchange would have been old news and re-
petitive.
52 Here again, the criticism did not include references to the bro-
ken tools and scrapped parts, or the basic charge of ‘‘poor workman-
ship’’ attributed to Hansen by Steiner and Reinders.
53 Smithback testified that Hansen had also made a comment to
him on Thursday morning suggesting that Hansen was under the im-
pression that he was subject to a broad ban on union activity. Thus,
he testified that, at that time, Hansen asked where Smithback got the
idea that the Union could not be discussed on mill property.
Later, during an afternoon break, Hansen announced, for
the first time, that he was on the project to organize for the
Union. Smithback, Steiner, and Reinders were present. Ac-
cording to Hansen, at that point, Smithback leaped to his
feet, stating, ‘‘Jesus Christ, I don’t need that. I don’t want
you talking about unions anymore. I got to call the office
and talk to Ron Sager.’’ Smithback then went into the office.
Smithback admits that Hansen made this announcement, but
he testified to saying nothing before seeking guidance from
headquarters.
According to Hansen, Smithback later returned, advising
Hansen, in the presence of Steiner and two Boise Cascade
employees (Everett Hall and Dennis Moran) as follows:
I just talked to Ron Sager over at Appleton, and I don’t
want you talking about the union. Ron Sager doesn’t
want you talking about the union. Boise Cascade
doesn’t want you talking about the union, and if you
don’t quit talking about the union, I’m going to fire
you.
Hansen replied, ‘‘That could be, but I’m not going to stop
talking about the Union.’’
Sager concedes that at some point that day, Smithback
called, reporting that Hansen was engaged in union activity.
Sager claims that he instructed Smithback that he could not
restrict Hansen from doing this on his own time, but, if while
working, he is talking to excess on any topic, Smithback was
free to appeal for a little less talk and a little more work.
Consistent therewith, Smithback testified that he then ap-
proached Hansen telling him ‘‘please talk less and do more
work.’’
Parenthetically, it is noted that Sager relates that he had
received an earlier phone call that morning from Smithback
who reported that Hansen was wandering around and not
being very productive. Sager told Smithback that at this point
they had to make decisions at headquarters, and for him to
just keep his eye on the situation. Smithback averred that he
was told in that conversation ‘‘there’s not a lot you can do.’’
He claims that they asked if Hansen was working steady,
whereupon Smithback replied, ‘‘No, he talks a lot.’’51
Smithback states that he was told that all he could do ‘‘is
ask him to talk less and work more.’’ However, Smithback
claims that he was admonished that Hansen could talk about
anything he wished as long as it doesn’t interfere with the
work.
According to Hansen, at Smithback’s urging, he tele-
phoned Sager, who allegedly stated:
I don’t want you talking about the union. . . . Boise
Cascade won’t allow us to talk about the union. I don’t
want you talking about it. I don’t want you talking
about anything but the job. I don’t want you talking
about church. I don’t want you talking about gambling.
I don’t want you talking about anything but work. Now
go get Smithback and tell him to call me.
Sager agrees that this conversation took place. He claims,
however, that he informed Hansen that Smithback had re-
ported that his productivity was under question and that he
didn’t have safety shoes as required. An incident involving
a hard hat was also mentioned. Hansen allegedly grew angry,
hanging up the phone.52
Of major significance to the above conflict is a concession
by Sager that on either Wednesday or Thursday, or both, he
possibly had two conversations with Hansen concerning Han-
sen’s declaration: ‘‘I’m going to not stop talking about the
union.’’53 Sager alleges that he reacted as follows:
I don’t care what you talk about as long as it’s on your
own personal time, if it interferes with your work,
that’s another story . . . you can talk about anything
you want . . . on your breaks, your noon hours, your
own personal time before work, after work, at the
lodge, whatever, but you can’t talk about it on your
work time, if it interferes with your work. . . . same
way if you were talking about baseball or hunting or
fishing, religion, politics, telling a joke whatever.
The General Counsel in this respect raises the question as to
why Hansen would repeatedly assert his intention to persist
in union activity, if Sager and Smithback’s constraints did
not extend beyond the project and did not reach nonworking
time. After all, Hansen lived, slept, ate, drove to and from
work with T & C’s employees and had ample access to
them. Sager’s admission concerning Hansen’s expressed in-
tention to pursue organization is more compatible with the
total restraint, then the limited one suggested in his own, and
the testimony of Smithback.
In a further incident, as the men were returning from work
that day, Hansen relates that Smithback, in presence of either
Steiner or Reinders, complimented his work, asking him how
much it would take to get him to ‘‘jump ship and come over
to our side.’’ When asked what he meant by that, Smithback
said, ‘‘Get up off your union activity and come to work for
us.’’ Hansen grinned and said, ‘‘I don’t think you have
enough money.’’ When they arrived at the cabin, Smithback
repeated that Hansen was not to discuss the Union as he was
tired of hearing it and did not want the others to hear it.
In addition to denying all 8(a)(1) conduct attributed to him
by the complaint, Smithback was sharply critical of Hansen’s
performance this day. First he states that his other elec-
tricians complained that Hansen was rough with the manual
and power tools. In one instance, Tom Steiner accused Han-
sen of breaking five blades on a portable band saw due to
1272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
54 Reinders, who like the rest of T & C’s witnesses struck as heav-
ily biased and totally lacking in objectivity, first corrected himself
when he initially placed this appeal on Wednesday, then twice stated
that it occurred on Thursday morning. Apparently dissatisfied with
this response, T & C’s counsel inquired a third time. Apparently,
Reinders got the message, for this time he went back to Wednesday,
relating that these very words were used by Smithback to Hansen
at that time.
55 Reinders was less sure of the cause, and apparently did not ob-
serve Hansen take a hammer to the unit. When questioned as to the
cause, he speculated: ‘‘Maybe the way he was forcing on the handle
to get it started on the pipe might have had something to do with
it.’’ The ‘‘maybe’’ became accusation when Reinders clarified that
Hansen was leaning into the handle, an unnecessary and improper
way to operate that machine. However, on cross-examination,
Reinders admitted that he did not know when the teeth broke off,
and to further confuse his speculation, conceded that others had used
the ‘‘300 threader’’ that week.
56 Hansen’s problems on the ‘‘300 threader’’ apparently did not
end on Wednesday. Steiner testified that on Thursday, Hansen was
engaged on that machine cutting and threading short pieces of con-
duit for installation. The next day, after Hansen’s departure, Steiner
discovered that the conduit was cut to improper lengths and not
properly threaded. Smithback claims that he learned on Thursday
that, in preparing a particular component, Hansen was guilty of im-
improper use. He allegedly broke most of the drill bits T &
C had at the site. Smithback claims that he personally ob-
served Hansen reject proper practice by using a hammer to
bang a piece of pipe into a clamp on a ‘‘rigid 300 mule ma-
chine.’’
In addition to the foregoing, Smithback states that:
Throughout the day on Wednesday I did notice that
he was speaking with people an extraordinary large
amount of time. He tended to have coffee with the [T
& C] crew and then coffee with the mill crew and he
would talk to the guys and in his way [of] talking his
personality would be forceful enough, he would more
or less make it hard to work while he was talking to
you.
. . . .
The rest of the guys were upset with the amount of
productivity they had gotten done too, meaning Randy
and Tom, because Mike was not present. They were
both upset saying, ‘‘Man, we should have been farther
than this, we just can’t get anything done. Everything
Mick cuts he cuts crooked.’’ They had to recut, rebend,
redo, most everything he had done and—okay, he was
talking Wednesday morning when I came in and Randy
Reinders believe asked me a question about . . . how
we were going to do it . . . and we were discussing
what was to be done . . . and Mick came storming up
and yelled at me ‘‘I thought we made it perfectly clear
that I’m in charge of this group and that if you want
to talk to anybody who’s working, Randy or Tom, I
had to talk through Mick,’’ I could not talk to the guys
on the crew.
Smithback summed up by stating:
On Wednesday, [Hansen’s] performance was negligible,
didn’t really do much of anything but talk to people
and disappear from the immediate site . . . for periods
of time.
Steiner was pretty much in tune with Smithback in criticiz-
ing Hansen’s performance on Wednesday. He avers that he,
Reinders, and Hansen were installing struts, but that Hansen
did not get a lot done, because he was talking to them about
the Union. This, according to Steiner was irritating, distract-
ing them from performing while listening to Hansen. Steiner
also testified to another occasion when Hansen delayed his
response to a request for help because engrossed in conversa-
tion with Boise Cascade employees. In broader terms, Steiner
explained:
He wasn’t there most of the time on Wednesday, I
wouldn’t say most of the time, but he wasn’t there a
lot of times, he was either going to the bathroom—in
fact one time Randy [Reinders] had gone to the bath-
room and came back and I had to ask him if he had
seen Malcolm and he said ‘‘no.’’ And then we were
waiting and waiting for him to com[e] back and then
he came back and I guess he was talking to somebody
from another . . . [contractor] or something like that.
Steiner also testified that on Wednesday morning, Smithback
was apprised of Hansen’s having broken drill bits, and there-
fore, in addition to his talking about the Union, and his ab-
sence from the work area, Smithback was alerted to specific
allegations that would plainly demonstrate Hansen’s faulty
workmanship.
Reinders was also called to comment on Hansen’s per-
formance on Wednesday. Like Steiner, he accused Hansen of
sitting around talking a lot that day with employees of Boise
Cascade and other contractors on the job. His summary of
this observation shows a remarkable resemblance to the testi-
mony of Steiner:
On Wednesday, [Hansen’s] performance was negligible,
didn’t really do much of anything but talk to people
and disappear from the immediate site . . . for periods
of time.
The subject of these conversations, according to Reinders,
was union. Moreover, their disruptive effects was suggested
by Reinders’ testimony that he had to beckon Hansen to re-
turn to assist other members of the crew, and according to
Reinders, Hansen performed work-related tasks only about 5
hours that day. He claims that he reported this, including the
fact that unionization was among the topics, to Smithback,
who attempted to correct Hansen merely by telling him
‘‘he’d like to see a little more work and less talk.’’54 Ac-
cording to Reinders, nothing else was said by Smithback.
Reinders would broaden the allegations of broken tools
and parts to include Hansen’s culpability in connection with
the disabling of the ‘‘300 threading machine.’’ Thus,
Reinders testified that on Wednesday, Hansen was operating
the 300 threading machine, when it became disabled. The
damage to the machine caused misalignment of the teeth,
which cut threading into the pipe. According to Smithback,
on that very day, he personally observed Hansen hammering
the jaws of the machine tight, instead of making the adjust-
ment by hand.55 This allegedly caused improper threading by
tearing metal chunks from the machine, again causing re-
work. Reinders admits that Hansen fixed the machine him-
self, an effort which took a considerable amount of time.56
1273TOWN & COUNTRY ELECTRIC
proper spacing of pipe connectors while cutting pipe of such erratic
lengths as to require that some be redone. This went unmentioned
in his diary for that day. Furthermore, it is my understanding from
Smithback’s testimony that this dereliction, if true, would not have
been discovered until after Hansen’s termination.
57 The Respondent asserts that because Smithback had been told
by Hansen, following the inspectors’ visit that Hansen was in
charge, Smithback did not discuss these deficiencies with Hansen.
However, this so-called ‘‘licensing problem’’ did not prevent
Smithback from admonishing Hansen to work more and talk less.
Nor would this excuse his failure to list in the foreman’s diary, the
litany of other, more major offenses, which according to T & C, bor-
dered on willful sabotage.
58 The access to Boise Cascade was under interdict of union pick-
ets, who apparently were protesting the presence of another non-
union contractor, B.E. & K. Construction. The latter was engaged in
new construction at that site.
59 As always, Smithback denied that he made any statement limit-
ing union activity. However, he admits that at the time, Hansen told
him ‘‘right then and there’’ that he had no intention of stopping talk-
ing union on the jobsite, while inquiring as to who told Smithback
that he could not do so on Boise-Cascade property. Here again, the
question emerges as to whether Hansen would have concocted or as-
sumed such a constraint, while communicating both to Sager and
Smithback that it would be ignored, if not instructed to refrain from
union activity. In Smithback’s case this declaration is even more cu-
rious, considering Smithback’s sworn testimony that he had never
mentioned to Hansen that the Union could not be discussed.
60 Sager does not deny that this phone call was initiated by Han-
sen. While he denied making a bribery offer, he did not contradict
Hansen’s testimony that the matter was raised.
61 Smithback offered to take Hansen to the shoe store on three sep-
arate occasions. The first time the store was closed, the second,
Smithback did not show up on the lunchbreak as he had promised,
and the third time, on Thursday, the day of termination, the shoes
were actually purchased. It is noted in this regard that Hansen was
not permitted to drive his vehicle to and from the Boise-Cascade
jobsite and therefore was dependent on Smithback for transportation
during normal business hours.
62 According to Hansen, he had his hat off once on the entire job,
and that was while having coffee, indoors at the desk of Everett
Hall, and in presence of Denny Moran, both employees of Boise
Cascade, who were also hatless.
63 Hansen testified that he never possessed authorization cards on
this jobsite.
T & C’s posthearing brief includes a representation that on
Wednesday, Steiner and Reinders reported their observations
concerning Hansen’s performance to Smithback. In his log
for that day, Smithback simply stated:
Malcolm Hansen is a prolific talker. I wish I could
channel the energy he puts into talking into productive
work. All of his talking is slowing down the job.57
Sager testified that he believed that on Wednesday, Sep-
tember 13, he called Buelow to report that Hansen was being
evaluated for productivity and safety violations. Buelow testi-
fied that the only reason given him concerning termination
of Hansen was T & C’s inability to use Ameristaff or a tem-
porary contractor. In any event of major concern, is the fact
that Sager himself does not list faulty workmanship as
among Hansen’s alleged failings, an omission which consist-
ently reemerges in documentation, and reasons expressed by
Sager and Defferding for Hansen’s demise.
Thursday, September 14. Hansen’s final workday was
highlighted by two incidents, the first occurring during the
ride to work that morning, and the second during the noon-
time break. Several 8(a)(1) allegations are imputed to
Smithback during these episodes, and an assertion by T &
C that Hansen had caused ‘‘disharmony’’ within the crew, an
important link in reconstructing the motive for the termi-
nation also appears to have found its genesis that day.
Hansen’s union activity on Thursday opened that morning
at the plant gates when Smithback’s vehicle was confronted
by pickets.58 Hansen emerged from the truck to inform the
pickets that he was crossing only to further union interests
by organizing. Afterwards, as they entered the premises,
Hansen claims that Smithback stated that he didn’t want any
more union talk, also inquiring if Hansen had thought over
the offer to ‘‘jump Ship.’’ When Hansen asked how much
would be involved, Smithback referred him to Sager.59
It is undisputed that Hansen did call Sager. At this time,
he claims to have informed Sager of Smithback’s sellout in-
quiry. Sager denied any interest in giving anything to per-
suade Hansen to abandon organization activity.60 Sager then
switched topics, turning to reports about Hansen’s job per-
formance. Sager charged that Hansen (1) refused to wear
safety shoes,61 (2) worked without his hardhat,62 and (3) had
a production problem. Hansen, who had not previously been
criticized, reacted, ‘‘that’s Bullshit,’’ arguing that Smithback
was only concerned about union activity. Sager said he
would call Hansen back that evening after discussing the sit-
uation with Defferding. However, according to Hansen,
Sager again instructed Hansen to refrain from union activity.
During the noon recess, Hansen sought to convince the
crew as to the merits of union organization. He avers that
he then suggested that Bob Jensen, the business agent from
Local 294, be contacted with the further observation that, if
an election petition were filed, the men could be in the
Union by Christmas. Smithback, according to Hansen,
jumped up, and in the presence of Grow, Steiner, and
Reinders attempted to silence Hansen, again stating that he
did not want Hansen talking to the men about the Union on
the road, at the cabin, or on the job. Hansen then replied that
he thought it would be good if Jensen came out and ‘‘we’d
have a little meeting and petition for an election.’’ Grow said
that the meeting would be held at the bottom of the lake,
asking Hansen if he had good anchors.
Smithback relates that just prior to this noontime meeting
Reinders and Steiner were complaining at the means used by
Hansen in soliciting them to sign with the Union.63 He de-
scribed Reinders as so upset, he had packed his bags, threat-
ening to leave the project. Grow, who had just returned was
so upset he was shaking, and as Hansen continued to talk to
him about the Union, Grow asked what it would take for
Hansen to drop the Union and come over to T & C. Hansen,
according to Smithback, continued pushing ‘‘little white
cards for them to sign.’’ The men reacted: ‘‘we’re just not
interested in the union.’’ Grow related that when Hansen
brought out the cards, he rebuffed: ‘‘you don’t understand,
I’m not interested, can’t you get that through your head.’’
Steiner and Reinders chimed in that Grow was speaking for
them as well. Steiner confirmed that Hansen ‘‘just kept on
going.’’ At this juncture, Hansen allegedly stated, ‘‘No, I
will not stop talking bout the union.’’ Grow testified, with
support from Smithback, Reinders, and Steiner that he then
1274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
64 Reinders justified his reaction by describing an experience in
which he was roughed up when he declined to join a union during
an organization campaign in California. Reinders admits that he pre-
viously mentioned this experience to Hansen, who indicated that his
people ‘‘weren’t that way, they didn’t beat up on people and . . .
it was his policy to be up front and honest and they are not violent
people.’’ Despite this, and although Hansen had engaged in no unto-
ward conduct on his own, Reinders testified that he was suspicious
as to what he might do. However, later that afternoon, having been
calmed down by Smithback, Reinders testified that he called on
Hansen to tell him that he was the best organizer ‘‘I’ve ever come
up against.’’ Hansen replied that there was no hard feelings against
any of the crew, and that they were ‘‘some great guys.’’ Reinders
also expressed that Hansen had a lot of guts staying in the cabin
with the others after announcing he was a union organizer.
65 Reinder’s edginess about Boise Cascade might well have been
influenced by factors totally unrelated to unionization or Hansen. A
young man of 25, he had been married only 7 months. He had an
infant daughter. He received only 2 days’ notice of his Boise-Cas-
cade assignment, a 10-hour drive from his home in Oshkosh. This
was his first job for T & C outside Wisconsin, and in the past, he
had routinely commuted to projects spending nights at home. Admit-
tedly, his wife was not thrilled with this development.
66 Reinders, Steiner, and possibly Mike Grow were also present.
67 Smithback admits that Hansen accused him of lying on the pro-
ductivity question, demanding that he call Sager back immediately
to straighten out the issue. Smithback claims that he argued back
that his criticism was valid and there was nothing to straighten out.
Smithback does not aver that Hansen was ever informed of the other
alleged discrepancies in his job performance.
68 Sager denied having received any such report. He could not re-
call whether Smithback had told him that Hansen’s productivity
problem was limited to the above incident.
asked Hansen why he doesn’t give up on the Union and
come over to T & C.
Against, this background of resistance, according to T &
C, Hansen sat back, quietly, stating ‘‘I’ve got an idea, let’s
take a vote right now.’’ At this point, because Reinders was
upset, Smithback intervened, admittedly stating ‘‘Hey guys,
before you answer that, I would really rather that you talk
about something else, fishing or something.’’ Nonetheless,
Hansen suggested that the men take a vote, whereupon
Smithback stated, ‘‘I’d rather we not take a vote.’’ At that
point, the conversation ended. However, as Steiner testified,
Reinders grew nervous. He left to call his wife, a habit he
developed when stressed. According to Smithback, after 20
minutes, Reinders returned telling Smithback that ‘‘if this
thing is not settled today, I’m going home tonight.’’
Reinders testified that the was upset to the point of vio-
lence in consequence of Hansen’s actions during the lunch-
time incident. He described the provocation as follows:
We were trying to get work done and he kept bring
it [the Union] up and it didn’t stop and we were sitting
there eating lunch and the feeling that I got was like
he sorta felt like he was losing his battle organizing us
because no matter how many times he asked us, we’d
tell him no. We’re not interested.
We’d tell him that individually even as a group
when we were all there, we’d tell him ‘‘no,’’ but he
just kept at it and kept at it.
. . . .
And while we were sitting there at lunch, Malcolm
was sitting . . . directly across from me and he had a
way of starting these stories no matter if it was about
his mother or his father or his friends and it would end
up as a reason why we should join the union.
. . . .
And at lunch it was like he was grasping for straws.
We’re sitting . . . and he’s pulling stuff out of his wal-
let, he’s got cards you know, why don’t you take a look
at this, it’s a card to sign you up for the union . . .
he had a picture card . . . referring to him as a union
organizer. And he’s pulling out all these receipts for
union dues . . . and he just kept—why don’t you look
at it, why don’t you take a look at it.
If you want, tonight we’ll go down to the Flame and
see the woman dancers, have a few beers, I got my
friend, he’ll come up and we’ll get you signed up right
now.
Reinders claims that he had ‘‘enough of his pushing informa-
tion on me.’’ In fact, Reinders was provoked to the point of
being ready to ‘‘rap . . . [Hansen] right up side the head,’’
thus, freely admitting that he was ready to punch Hansen be-
cause of his repetitious efforts to solicit on behalf of the
Union.64 As others had testified, Reinders called his wife,
telling her, ‘‘if things didn’t improve real quick, I was com-
ing home. . . . I wasn’t going to put up with it anymore.’’65
After the noontime incident, Sager’s earlier criticism of
Hansen provoked a confrontation between Hansen and
Smithback. Thus, in the presence possibly of Denny Moran
and Everett Hall, both employed by Boise Cascade,66 Hansen
relates that the following ensued:
I said to Rod, ‘‘I understand you are not satisfied with
my work.’’ I said to Denny Moran and Everett Hall,
‘‘Are you satisfied with my work?’’ [They replied]
‘‘Oh we’re satisfied. We’re satisfied with all you peo-
ple’s work.’’ Smithback said, ‘‘ Well, you don’t have
to worry about [it] if they’re satisfied. It’s me, and I
was only dissatisfied on Tuesday morning.
According to Hansen, Smithback used that occasion once
more to instruct him not to talk ‘‘about the union or anything
else.’’67
Smithback, according to Hansen, backed off, immediately
telephoning Sager stating, ‘‘Ron, that was bullshit about
Mickey’s production. . . Steiner and Reinders were setting
the pace and he was moving the scaffolding for them and
handing out material.’’68 However, Hansen was then called
to the phone, whereupon Sager instructed him to call Buelow
over at Ameristaff. He did, with Buelow, stating as follows:
Mickey . . . we got a little flapdo. The State Board of
Electricity won’t let me hire people from Minnesota to
work as an electrician because we haven’t got a license
so I guess whatever contract I have with you has been
done.
When Hansen inquired as to whether T & C would pick him
up on its payroll, Buelow told him to call Sager.
Hansen then called Sager, asking if he would be working
directly for T & C. He was told ‘‘absolutely not.’’ Hansen
claims that he was never given any reason for T & C’s re-
fusal to hire him, a fact or facts, which Hansen states remain
1275TOWN & COUNTRY ELECTRIC
69 The fact that Hansen took this job to further organizational in-
terests is of no comfort to T & C. Hansen was a rank-and-file union
member, who served that body in no official capacity. From all ap-
pearances, he was dependent financially on employment as a jour-
neyman electrician in the construction industry. The fact that, in con-
nection with his employment at the Boise-Cascade site, he was reim-
bursed by the Union for wage and benefit differentials does not
place him in the category of the paid union organizer whose eligi-
bility for a Board remedy was considered in H. B. Zachry Co., 289
NLRB 838 (1988), enf. denied 886 F.2d 70 (4th Cir. 1989). Thus,
that case is plainly distinguishable, and Hansen’s intention to orga-
nize was not incompatible with his basic employment needs and ob-
jectives and did not debar him from statutory protection. See, e.g.,
Circo Resorts, 244 NLRB 880, 887 (1979), enfd. as modified 646
F.2d 403 (9th Cir. 1981).
70 In this light, it is understandable that Buelow, on being informed
of Ameristaff’s termination, instinctively went to the trouble of pre-
paring paper work facilitating Hansen’s transfer to the payroll of T
& C.
71 T & C observes that it had never retained an agency employee
on its payroll after a mere 3 days’ employment. However, it was
previously unaware of Minnesota licensing constraints and there is
no evidence that T & C was ever before in a position where continu-
ation of a project depended on such action.
72 Testimony on behalf of T & C that union affiliation was a mat-
ter of no concern to the interviewers was so out of comport with
economic realities as to raise question as to what else the defense
might expect me to believe. This reaction was hardly allayed by the
observation by T & C’s attorney that ‘‘T & C’s only concern with
an applicant’s union membership was that the applicant might be
fined for coming to work for T & C.’’
73 The claim of discrimination is bolstered by Hansen’s testimony
that the effort to discourage his union involvement was the subject
of a variety of independent 8(a)(1) violations. Thus, he testified that
Smithback repeatedly stated that he could not engage in union activ-
ity anywhere, and threatened termination if he did so. Smithback,
with corroboration from the T & C employees, denied that this was
true. In fact he denied ever mentioning the Union in his attempts
to curtail Hansen’s loquaciousness. This despite, an awareness that
the other crew members had told Hansen during breaks that they did
not want to discuss the Union, and his admission to a strong feeling
that Hansen was wrong in continually pushing the Union on them
in these circumstances. Hansen is preferred over claims that
Smithback resisted the temptation of bringing Hansen under control.
Based on Hansen’s testimony, I find that Smithback, on his own, at-
tempted unlawfully to interdict Hansen’s union activity in these par-
ticulars, but also inquired as to whether Hansen could be bribed to
cease his organizational efforts. Yet, at the same time, I did not be-
lieve Hansen’s attempts to implicate Sager in a prohibition on union
activity. Thus, Hansen testified that in two, separate telephone con-
versations with Sager, the latter instructed him not to talk about the
Union. Sager denied having made the statements. In context, it was
unlikely that Sager would have made these remarks, considering
what was known about Hansen at the time of his hire, and after he
had announced organization as his goal. I credit Sager, and shall dis-
miss the 8(a)(1) allegation involved.
74 Steiner, an apprentice, and Reinders, a journeyman, who could
not qualify to take the Minnesota licensing exam because for lack
of creditable experience, laid the foundation for the attack on Han-
sen’s workmanship. Hansen is an experienced journeyman with
many years in the trade. His employment record does not suggest
either a lack of competence or that he was prone to be inefficient.
In my opinion, where possible, Hansen provided well reasoned ex-
planation as to the erroneous nature of assumptions underlying the
accusations of these young men, still in their twenties. My mistrust
of Steiner and Reinders was sufficiently deep as to warrant rejection
of their testimony in areas which were totally subjective and incapa-
ble of refutation by Hansen, and for that reason, beyond his ability
to register clear and straightforward denials.
unknown to him. Sager disputes this, but claims to have de-
scribed unimproved ‘‘low productivity’’ as the sole cause.
c. Analysis
The issue here is limited to examination of T & C’s
grounds for refusing to retain Hansen on its payroll.69 T &
C’s termination of its agency contract with Ameristaff, was
impelled by Minnesota law, and was plainly legitimate.
However, the purity of motive underlying this transaction did
not carry over, ipso facto, to justify the refusal by T & C
to employ Hansen on a direct basis. As of September 14, T
& C still could not operate at Boise Cascade unless its direct
payroll included a locally licensed electrician.70 Moreover,
although Sager testified that temporary agency employees are
made permanent only 5 to 10 percent of the time,71 common
sense dictates that the temporary will always be retained if
he is available, competent, needed on an ongoing job com-
mitment, and where agency commissions considered against
other factors will not make that an unprofitable decision.
Thus, for purposes of this proceeding the motive underlying
its failure to utilize Hansen is determinative of the 8(a)(3)
and (1) allegations.
Economic reality neutralizes any debate concerning T &
C’s posture with respect to union organization. As a merit
shop employer, it is dedicated to a method of operation in
the highly competitive construction industry which is not
compatible with wage and benefit standards sanctioned by
affiliated craft unions such as the IBEW.72 (C.P. Exh. 1.)
There is no real dispute that on the second day of his em-
ployment, Hansen announced that he was a union organizer,
and persisted in organizing on behalf of that Union. On the
heels of these purely verbal and noncoercive efforts, Sager
testified that he became convinced that a decision had to be
made on Hansen’s status when he received reports that em-
ployees were offended, claiming harassment and low morale.
Finally, Sager admits that, as of September 14, when T &
C declined to put Hansen on its payroll, at least two licensed
electricians were needed to discharge its responsibilities on
the Boise-Cascade job. It, thus, appears that the elimination
of Hansen took priority over the risk that the job would be
shut down for lack of a licensed electrician.
The foregoing is sufficient to give rise to the inference that
union activity was at least part of the motive for Respondent
T & C’s failure to place Hansen on its payroll, thus, in ac-
cord with Wright Line, supra, placing the onus on T & C to
demonstrate that this would have taken place even in the ab-
sence of Section 7 activity.73 T & C’s numerous witnesses
attempted to substantiate that Hansen was a poor worker,
who failed to meet productivity standards, and who failed to
perform in a craftsmenlike manner. Its evidentiary case was
shifting, replete with contradiction, and in the end, furnished
a strong suggestion that union activity played an important
role in its decision not to retain Hansen. In sum, the defense
is structured upon a composite of lies made possible through
T & C’s access to a willing combination of highly biased
witnesses.
Those responsible for eliminating Hansen allegedly acted
on reports from Smithback, who in large measure was de-
pendent on reports from Steiner and Reinders.74 However,
1276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
75 Neither Defferding, nor Sager indicated that they were aware
that Hansen had abused or misused tools or equipment. Defferding
assertedly received daily reports from Smithback concerning Hansen.
However, his knowledge of a quality problem appears limited to a
report from Smithback on Thursday morning. He claims that
Smithback reported that ‘‘[Hansen’s] production went up, [but] the
quality went down when we had to remove and replace most of the
work that Mr. Hansen put in because of poor workmanship.’’ In this
area, Sager’s testimony was vague. He avers that Smithback on
Tuesday mentioned some bad cuts on a unistrut or piece of pipe. He
also asserts that on Thursday morning Smithback called and ‘‘men-
tioned something about some of the mistakes or some of his work
specifics and I don’t recall because it wasn’t germane at the time,
I think the decision had pretty much been made at that juncture.’’
On the contrary, it clearly emerges from Sager’s testimony that re-
ports spawned by the subsequent lunchtime incident actually pro-
duced the final judgment on Hansen.
76 On cross-examination, Sager admitted that the morale problem
was a factor contributing to the decision but denied that ‘‘it was a
big part of it.’’ Considering the chronology described on the face of
his own testimony, I am convinced that the noontime incident was
the proverbial ‘‘straw’’ that broke the ‘‘camel’s back.’’
77 Buelow testified that it was on Wednesday morning, September
13, Sager instructed: ‘‘we could not have Mickey on the job.’’ In
his words:
I was informed [by Sager] that John Quinn . . . had informed
them [T & C] that Malcolm could not be there on our payroll.
the indictment of Hansen by Steiner and Reinders apparently
lacked the attention it deserved. Thus, Smithback, according
to T & C’s witnesses, was advised on Tuesday of the inci-
dents involving Hansen’s responsibility for the broken band
saw, the improper bending of pipe, the cutting of struts to
erroneous lengths, and misconceptions about how pipe
should be measured, all serious discrepancies. Smithback,
who claims that, but for the licensing problem, he would
have terminated Hansen that first day, executed a diary entry
for that day which indicts Hansen with flawed ‘‘production,’’
but says nothing about poor quality of work. Steiner, the next
day, added Hansen’s predilection to break drill bits to the list
of quality infractions, reporting this as well to Smithback.
The latter’s diary for that date is critical of Hansen, but sole-
ly on the basis of excessive ‘‘talking.’’ No reference is made
to a continuing propensity to mishandle and damage tools or
to produce bad parts. The pattern continued on Thursday.
Steiner and Reinders once more accused Hansen of faulty
work methods on that day, yet Smithback’s diary entry did
not stray from the familiar:
Malcolm Hanson did improve the quantity of work he
did today. Still not up to our expectations. And he still
spends much time B.S.ing with mill employees and
w/our employees.
Smithback, while testifying under oath, possessed a clear
grasp of the bad parts, tool breakage, and abuse of equipment
described by Steiner and Reinders. It is difficult to under-
stand why these breakdowns in Hansen’s craftsmanship were
given so little attention at the time. The offenses were spe-
cific. They reflected serious failures in craftsmanship. They
were reported in timely fashion. Yet, the objective trail does
not lead to any suggestion that, by September 14, quality had
become an element of T & C’s case against Hansen.
Like the diary notes, higher management did not seem to
dwell on the quality of Sager’s performance. Sager and
Defferding concentrated on productivity, describing ‘‘dishar-
mony’’ as a triggering event.75 Indeed, well after the fact,
Vice President Stephenson in his letter of October 23, merely
described Hansen’s work problem as ‘‘productivity.’’ (R.
Exh. 5.) Surely, these management officials were conversant
with industrial lexicon and that, given its ordinary meaning,
a ‘‘productivity’’ problem relates to the quantity of an em-
ployees work, rather than ones ability to turn out quality
parts without destroying equipment. Indeed, in light of T &
C’s presently, professed position that Hansen had set out de-
liberately to sabotage the job, one would think that these al-
leged indiscretions would occupy the centerpiece for objec-
tions to Hansen’s employment. They obviously were after-
thought, if not totally contrived.
The testimony of Sager concerning the triggering cir-
cumstances is certainly more indicative of what actually oc-
curred than the testimony of Smithback, Steiner, and
Reinders. He testified that on Wednesday, September 13 ‘‘I
didn’t know if we were going to keep Malcolm . . . we
were evaluating him for productivity and safety violations.’’
However, as I understand Sager’s testimony, it was not until
September 14, that Hansen’s status came to a head. That
afternoon Sager received a telephone call from Smithback
who reported that because of Hansen, Reinders was ‘‘ex-
tremely nervous and upset’’ and he wanted to leave the job
immediately ‘‘for his own safety.’’ Reinders also mentioned
that he was fed up ‘‘with all the talk’’ and that there was
a real problem with morale on the job. It is apparent that
Smithback’s report sprung from Reinders’ reaction to the
prounion overtures made by Hansen during the noon break.
In consequence, Sager apparently sought out Defferding, ad-
vising as follows:
[W]e’ve got to make a decision here, the guy is affect-
ing the morale of our people, I know that a couple of
our people were upset and one extremely agitated, he
was getting a short fuse and one of the guys felt intimi-
dated and wanted to leave the job site, I said, ‘‘listen,
I don’t care if we aren’t working at that jobsite, I’ve
got to look out for our personnel, we can’t do that to
them.’’
Sager did not testify that, in that conversation, any other
grounds for termination were mentioned to Defferding.76
In consequence, Sager testified that he called Smithback,
stating ‘‘Hey, a decision has been made that we are going
to let Malcolm Hansen go from Ameristaff. . . . I’m going
to call Steve Buelow and tell him the situation and have
Malcolm call Steve Buelow . . . in the afternoon.’’
Smithback was given the ‘‘OK’’ to wait till after work be-
fore informing Hansen.
In explaining the discharge to Buelow, according to
Sager’s testimony the harassment issue went unmentioned.
He claims to have told Buelow that, ‘‘the guy’s really caus-
ing problems, he’s wandering around . . . we have low pro-
ductivity from him . . . he just got his safety shoes
today. . . . [H]e’s just not an employee or potential em-
ployee that we would look to be hiring.’’ According to
Sager, Buelow stated that rather than create issues about pro-
ductivity, he would simply tell Hansen that ‘‘temporaries’’
had been barred from the job.77
1277TOWN & COUNTRY ELECTRIC
With this information, Buelow claims that he instructed his assist-
ant ‘‘to cut an invoice’’ permanently placing Hansen on T & C’s
payroll. This was countermanded later that afternoon, when Sager in-
formed that T & C at no time indicated that they would pick up
Hansen, and that they would not do so in that they had received bad
reports concerning his productivity, that a man with less experience
could bend pipe quicker, and that Hansen also had violated safety
policies. It is noted that John Quinn testified that his conference with
Stephenson took place on Monday, September 11. While T & C’s
good faith, in complying with obligations to the State of Minnesota
is of no relevance here, the timing described by Buelow is more
consistent with Quinn’s uncontested testimony.
78 Although Defferding received Smithback’s ‘‘foreman diaries,’’
they were not available to him until September 15, after the termi-
nation.
79 In a weak attempt to associate the fears of the men with vio-
lence apparently addressed to B.E. & K. at the site, Smithback ac-
knowledged that Hansen had told the men that his Union had noth-
ing to do with the violence, but he could not speak for the unions
engaged in the B.E. & K. dispute. At p. 89 of its posthearing brief,
counsel for T & C appears to have been led by imagination in argu-
ing that ‘‘Hansen did everything he could to make Reinders believe
that the past [union violence] was repeating itself . . .’’ and further
that ‘‘Hansen had done everything he could to play on the fears of
the T & C crew and to increase the pressure on them.’’ If anything,
these assertions are refuted, rather than supported by, this record.
Sager, on cross-examination acknowledged that the safety
shoes and hard hat issues were not the reason for terminating
Ameristaff on this job, and did not contribute to T & C’s
decision not to place Hansen on its payroll. The morale prob-
lem that Hansen was causing on the job was admitted to be
a ‘‘part of it.’’ According, to Sager the other factor was Han-
sen’s productivity, details of which he could recall. Sager at
no time made reference to the alleged failure of Hansen to
perform in a workmanlike manner.
Defferding knew the difference between poor quality and
poor productivity. Yet, in describing his reasons for the ter-
mination, he did not zero in on the bad parts and attempted
to deflect the disharmony issue. His position concerning
Hansen was based entirely on daily telephonic reports from
Smithback.78 The first, actually, was late Tuesday afternoon,
September 12. Smithback called, complaining that he was
disappointed with Hansen’s output, his apparent disinterest in
performing ‘‘physical labor’’ and his appearance without
safety shoes.
On Wednesday, September 13, Smithback called again,
complaining that Hansen was not helping with production
and was missing from the job even more than the previous
day, going so far as to without explanation, leave the work-
site for 45 minutes to an hour. Smithback again allegedly
mentioned that Hansen had been told to get his steeltoed
shoes, but had not done so.
The puzzling aspect of Defferding’s account arises in con-
junction with a report from Smithback accusing Hansen of
disrupting the crew. In this connection, the phrase ‘‘dishar-
mony to the crew,’’ is given a different meaning by
Defferding than Sager. Thus, it will be recalled that Sager at-
tributed such a condition to Reinders’ complaints about Han-
sen’s persistent and aggressive attempts to foist the Union on
coworkers. In contrast, Defferding initially described Han-
sen’s wandering as the cause of this disharmony. On cross-
examination, when Defferding was again given the oppor-
tunity to describe how Hansen created disharmony, he used
the term to describe Hansen’s constant preference for talk
over work. Defferding, of course, denied knowledge as to the
content or subject matter covered by Hansen on those occa-
sions. Ultimately, Defferding admitted that later on Thursday,
Smithback called back, recommending that Hansen be re-
moved because ‘‘it was no longer possible to run a harmo-
nious crew and still have Mr. Hansen on that crew.’’
Smithback’s reference to disharmony was far narrower
than Defferding’s definition. He does not suggest that it re-
lated to any conduct other than union activity. Indeed, ac-
cording to Smithback, Defferding knew that the term was
used to explain Hansen’s union activity during nonworking
time. Thus, Smithback testified that Hansen, on Thursday,
was beginning to disrupt the crew ‘‘pretty heavily’’ while
creating ‘‘disharmony.’’ In this connection, he specifically
reported the lunchtime incident, described above, to
Defferding, in terms evident in the following colloquy with
the undersigned:
JUDGE HARMATZ: Excuse me a minute, did you dis-
cuss this incident with Mr. Defferding, this lunch time
on Thursday incident?
THE WITNESS: Yes.
JUDGE HARMATZ: Did you tell him the scenario that
you described to us, did you tell him that people were
upset?
THE WITNESS: Yeah, told him people were upset.
JUDGE HARMATZ: Did you tell him why?
THE WITNESS: Yeah, I told him Randy was ready to
fight or run.
JUDGE HARMATZ: And let me just go over that one
more time for emphasis. The reason that these people
were upset is because Mr. Hansen was constantly push-
ing the union on them?
THE WITNESS: Correct.
JUDGE HARMATZ: And you reported that to Mr.
Defferding?
THE WITNESS: Denny, yes.
JUDGE HARMATZ: And you couldn’t be mistaken
about that?
THE WITNESS: No.
It was my distinct impression that the term ‘‘disharmony’’
more appropriately fit union activity, the subject of Reinders
complaints, than the variant subjects that Defferding would
place under that umbrella. In this light, the attempt to rede-
fine, diminish, or cast aside the alleged disharmony is under-
standable. Sager had previously testified that ‘‘disharmony’’
was a factor in T & C’s decision. Hansen’s termination could
not be upheld if provoked out of T & C’s desire to appease
coworkers who might have been offended by the former’s at-
tempts to organize them. Although Smithback claimed that
Hansen was ‘‘hounding and badgering’’ the men, the testi-
mony he offers simply shows that Hansen repeatedly solic-
ited their support and they repeatedly declined. He was
alone, the others unified. In this context, if management
sought to restore harmony, statutory guarantees would re-
quire counselling those disturbed by, before condoning ad-
verse action against, the union protagonist.79
In sum, the defense is laden with several shifts. First the
effort to demean Hansen on the quality of his work is
unconfirmed by the objective evidence, and though these al-
legations against Hansen reflect a consistent pattern of in-
1278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
80 A replacement was obtained, but not until after the decision to
eliminate Hansen. Sager testified that, he was not involved in the re-
cruitment, but that a licensed electrician, Fred Ensign, was hired
after the Hansen termination on Friday, September 15, thus, allowing
the job to progress. Defferding was instrumental in the hiring of En-
sign. On Thursday, September 14, Defferding claims to have tele-
phoned Guy Martin of B.E. & K., stating, ‘‘we were to be releasing
through Ameristaff . . . our licensed . . . person and that we would
be requiring an electrician for a short term basis because we had
some other people coming on, that we need somebody . . . with a
license.’’ B.E. & K. obliged and effective Friday, September 15, En-
sign was transferred from B.E. & K.’s payroll to that of T & C. En-
sign was hired sight unseen, solely upon B.E. & K.’s recommenda-
tion in this regard, and apparently without independent basis for
evaluation.
81 Local 343, like Local 292, has no jurisdiction over International
Falls. Its geographic sphere consists 39 counties in southern and
western Minnesota.
competence, they were given feint attention by Sager,
Defferding, or Stephenson in describing the grounds for re-
jecting Hansen. This discrepancy is paralleled by the events
of Thursday, September 14. I am convinced that on that day,
T & C personnel at the jobsite and at headquarters were pre-
occupied with the question of disharmony created by Han-
sen’s persistent efforts to push the Union. Sager’s testimony
suggests that this was a triggering event, while Defferding
would engage in a conscientious attempt, alternatively, to
disguise and then, steer away from this factor.
In my opinion, it was the noontime incident that caused
the breakdown in T & C’s will to endure Hansen. Thus,
Sager testified that, because of job indiscretions, he would
have acted in terminating Hansen a day or a day and a half
sooner were it not for the need for Hansen’s license.
Smithback, though confessing to a limited opportunity to ob-
serve Hansen on Tuesday, September 12, claims that he
would have terminated him at the end of that day for similar
reasons. As matter’s turned out, Hansen was eliminated on
Thursday, September 14, when nothing had changed—T &
C still had no assurance of replacement, and the licensing
problem persisted.80 Indeed, the urgency to remove Hansen
is even more suspect when one considers Defferding’s testi-
mony that, as of September 14, T & C had other licensed
electricians lined up to report on this job. Apparently, T &
C could not wait for the arrival of these replacements. More-
over, even with the hiring of replacement Ensign, Sager testi-
fied that the need for qualified journeyman did not end, for
he relates that in the days that followed Hansen’s termi-
nation, T & C did not ‘‘know if we were going to be able
to man the job with licensed electricians.’’ During the fol-
lowing week, as he relates: ‘‘The President of our Company
was making the decision . . . whether or not we were going
to continue at Boise Cascade or back out entirely.’’
In my opinion, the defense in Hansen’s case was struc-
tured on a thinly veiled attempt to mislead as to the true rea-
sons for T & C’s action, and, since lacking in credible sup-
port, fails to rebut the inference of unlawful motivation.
Moreover, Sager’s own testimony, and the efforts by
Defferding to shy away from the noontime encounter, strong-
ly suggests that the outrage of coworkers concerning Han-
sen’s protected activity during that incident was the pivotal
event leading to his termination. This view of the evidence
actually bolsters the General Counsel’s position, and, in any
event, it is plain that T & C has failed to substantiate by
credible evidence that Hansen would have been removed
even if he had not engaged in organizational activity. It is
concluded that the Respondent T & C violated Section
8(a)(3) and (1) of the Act in this respect.
4. The individual refusals to hire
a. Preliminary statement
The third area of discrimination pertains to alleged illegal
refusals to hire in connection with telephonic expressions of
employment interest by Local 343 members Charles Evans
on September 13, and Roger Kolling, on September 20.81
Neither appeared at the Embassy Suites.
The separate routes taken by Kolling and Evans did not
lead to employment.
Independent 8(a)(1) violations are also attributed to Re-
spondent in this regard. They include alleged interrogation of
Kolling by Sager and Defferding, and a threat by Sager to
Evans that he would have to resign from the Union if hired.
b. Richard Kolling
Kolling, since 1986 and during the events in issue here,
served as a full-time Local 343 business representative. He
denies that union sources led him to apply for work with T
& C. Instead, he claims that on September 18, he received
a job lead from the Minnesota State Employment Service.
(G.C. Exh. 16.) He denies any prior awareness of T & C.
On September 20, he acted on the referral by calling T &
C. He spoke to Sager. Kolling relates that Sager inquired as
to his union status, but that Kolling denied any affiliation
with unions, indicating that he was not a union member, in-
stead stating that he had operated as an ‘‘open shop’’ con-
tractor in Rochester, Minnesota. After discussing the scope
of Kolling’s operation as a contractor, Sager put Defferding
on the phone. Defferding also inquired as to Kolling’s union
status, with the latter again entering a denial, while ulti-
mately stating: ‘‘why all the . . . union questions . . . be-
cause I was really . . . trying to get a job.’’ Kolling was
asked by Defferding if he would accept work in International
Falls, while indicating that the rate was $15 hourly, with
travel allowances. Defferding stated that he would mail out
an application after Kolling furnished a resume. Kolling ad-
vised that he would do so.
Sager acknowledged that he participated in such a con-
versation with Kolling. The latter identified himself as an
electrical contractor. Concerning Kolling, Sager testified, ‘‘I
remember asking him what kind of contractor he was . . .
was he a residential, commercial or industrial, licenses that
he held, was he a union contractor or a non-union contractor,
does he work with either . . . because we subcontract work
out . . . to subcontractors for different projects.’’ Kolling
said he was just looking for temporary work because things
were slow at the time. They then discussed the Boise-Cas-
cade job, whereupon Sager put Defferding on the phone.
Defferding testified that they first discussed Kolling’s in-
dustrial experience. Later, when union affiliation arose,
Defferding assertedly stated that T & C had ‘‘no problems
with that.’’ Kolling was informed of T & C’s interest, and
1279TOWN & COUNTRY ELECTRIC
82 Kolling failed to relate that he ever submitted the resume. Ac-
cording to his own testimony, Defferding told him to do so before
an application would be forwarded.
83 Kolling had two conversations with T & C representatives. He
attempted to tape both. He claims that the tape of the first did not
take. In any event, no tape or transcript of a tape was offered in evi-
dence.
84 Kolling’s name appears on R. Exh. 11, a computer list of all
sent applications. The document indicates that his application was
mailed on September 22.
85 Kolling was not a persuasive witness and his uncorroborated tes-
timony was an unsuitable basis for findings prejudicial to T & C.
It is true that Sager admittedly asked Kolling if he had operated as
a union contractor. However, such an inquiry, when addressed to an
individual who identifies himself as an employing enterprise, rather
than an employee, does not strike as inherently coercive. No ration-
ale which reasonably would support a finding of illegality in this
context has been offered. The 8(a)(1) allegations implicating
Defferding and Sager in proscribed interrogation are dismissed.
86 The complaint, over denial, alleges that ‘‘Lori’’ is an agent of
Ameristaff. It further alleges that the Respondents violated Sec.
8(a)(1) by her interrogation of Evans during this phone conversation.
Once more, I am left to my own devices, for the General Counsel
has failed to brief either issue. On the merits, the task is rudi-
mentary, for Evans’ account was uncontradicted and there is every
reason to believe that this occurred. On the question of agency,
Buelow acknowledged that he was assisted by someone named Lori,
and that she was relegated to the task of answering the phone, and
performing the initial screening. This latter function, included inquir-
ies concerning union status. In this light, the testimony of Evans
completes the circumstantial chain indicating that he and Buelow
were describing the same individual, and that she was an agent
whose conduct was binding on Respondent Ameristaff. In context of
her other remarks, this interrogation of a job prospect was clearly
coercive and violative of Sec. 8(a)(1). Moreover, the unfair labor
practice, having been committed within the spectrum of operations
for which Ameristaff had been retained by T & C, is deemed bind-
ing on the latter.
was asked if he had a resume. He said he did, whereupon
Defferding requested that he forward it immediately.82
Kolling never did so. According to the General Counsel,
Kolling’s failure to submit a resume did not defeat the alle-
gation that T & C unlawfully declined to hire him. Accord-
ing to Kolling, he soon realized that any resume would in-
clude references betraying his denials of union affiliation.
For this reason, on September 21, he called Sager to disclose
his union ties. Sager indicated that this was not a concern.
Kolling then indicated that he wished to continue the process
by completing an application. According to Kolling, though
Sager agreed to forward the application, it was never re-
ceived. Sager admits to this conversation, but claims that he
suspected that Kolling was trying to get something that he
shouldn’t so Sager was ‘‘on his guard.’’ During the con-
versation, Kolling informed Sager that the September 20 con-
versation had been taped and that he was concerned about
Sager’s questions concerning the Union.83 He claims that,
because of the taping, an application was sent out to Kolling.
However, to the Company’s knowledge, it was never com-
pleted and returned.84
In my opinion, the General Counsel has failed in this in-
stance to produce credible, prima facie evidence warranting
a finding that Kolling’s failure to land a job was based on
anything other than his own inaction. The probabilities sup-
port the testimony of Sager,85 and I am convinced that an
application was duly forwarded, but never returned. The sub-
mission of a completed application was understood by all to
be a critical requisite for hire, and this omission by Kolling,
offered the sole, nondiscriminatory reason for his inability to
secure employment. The 8(a)(3) and (1) allegations in his
case shall be dismissed.
c. Charles Evans
In September 1989, Evans was an unemployed licensed
electrician and a member of Local 343. He was contacted by
his business representative and told to call the 414 telephone
number which corresponded to that appearing in the Septem-
ber 11 edition of the Minneapolis Star Tribune (G.C. Exh.
4.) On September 13, he did so, speaking to Lorrie of
Ameristaff. The latter questioned him as to qualifications and
work history, and then asked if he were union or nonunion.
He declared himself as union, inquiring as to why she would
ask. Lorrie allegedly said, ‘‘We have to know whether you
are union or nonunion because we don’t put union people on
nonunion jobs.’’86 According to Evans, she then said she
would have Buelow contact him later in the week.
However, on September 13, Evans telephoned Lorrie
again, questioning her once more as to the interest in his
union affiliation. She reiterated her explanation, but inquired
as to whether Evans would work nonunion. Evans signified
that he would.
Evans testified that he never received the promised phone
call from Buelow. However, Buelow relates that when Evans
called Lorrie the second time, the call was transferred to him.
Evans allegedly complained that in his earlier conversation,
Lorrie had asked him illegal questions about his union affili-
ation, observing further that this was totally unnecessary.
Buelow claims that he explained that Ameristaff works with
union and nonunion contractors, including the contractor at
Boise Cascade. Evans stated that he wanted work on that
project. Buelow testified that he would have a T & C official
call him, because Ameristaff could not hire him for that job.
Evans admits that he was subsequently contacted by Sager.
The latter allegedly informed him that it was T & C’s posi-
tion that ‘‘they didn’t hire any . . . union people at the job
site, that if I wanted to work there, that if I wanted to work
there that I would have to drop my union affiliation.’’ Evans
gave no definite answer, whereupon Sager told him to give
him a call if he changed his mind about accepting the job.
There was no further communication between Evans,
Ameristaff, and/or T & C.
Sager recalled a phone conversation with Evans. He relat-
ed that when he informed Evans that the job was at Boise
Cascade in International Falls, Evans expressed concern at
the violence he had read about in the newspapers at that site.
When Sager pointed out that those reports concerned a new
construction job and not the maintenance work that T & C
was engaged in, Evans stated, ‘‘Well I don’t know if I’d be
willing to go up there and work under those circumstances.’’
Evans was again asked if he would be willing to take the
job, but Evans again replied, ‘‘I don’t know if I would or
not.’’ According to Sager, he told Evans to give him a call
if he ‘‘changed his mind.’’ Sager denied telling Evans that
union people would not be hired at that jobsite, or that Evans
would have to drop his union affiliation if he wanted to work
there.
1280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
87 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
On cross-examination, Evans acknowledged that he was
concerned about reported violence at the Boise-Cascade site,
and that Sager attempted to assuage him of this concern,
while advising him at length of the precautions that had been
taken to neutralize the ‘‘trouble.’’ Evans insists, however,
that it was not the violence but the trouble he would face
from Local 343 if he renounced union membership that dis-
couraged him from accepting the job.
In this light, I credit Sager and Buelow, and conclude that
Evans expressed disinterest in employment at Boise Cascade,
that no statements were made concerning any nonunion pol-
icy or union resignations by Sager, and that T & C at no
time refused him employment by reason of union affiliation.
In short, in this instance the General Counsel has failed to
adduce credible proof that proscribed considerations played
any part whatever in Evans’ failure to obtain a job at Boise
Cascade. The 8(a)(3) and (1) allegation in this respect shall
be dismissed.
CONCLUSIONS OF LAW
1. The Respondents, Ameristaff and T & C, are employers
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Respondent Ameristaff is the agent of Respondent T &
C for the purposes of soliciting job applicants, arranging for
the hire and completion of applications for those prospects,
and the maintenance of payroll and employment records of
those hired for Respondent T & C’s account at the Boise-
Cascade jobsite.
3. Local 292 and 343 of the International Brotherhood of
Electrical Workers are labor organizations within the mean-
ing of Section 2(5) of the Act.
4. Respondent T & C on September 7, 1989, violated Sec-
tion 8(a)(3) and (1) of the Act by refusing to interview and
consider for employment the job applicants listed below be-
cause of their union membership:
Ken Axt Red Larson
Steve Claypatch Greg Shafranski
Steve Leyendecker David Hagen
Robert Hallman Bob Printy
Harley Barton Michael Priem
5. The Respondents, T & C and Ameristaff, on September
13, 1990, violated Section 8(a)(1) of the Act by interrogating
a job applicant concerning union activity.
6. Respondent T & C, on September 13, 1990, violated
Section 8(a)(1) of the Act by banning employee union activ-
ity during nonworking time, and by threatening discharge for
engaging in such activity.
7. Respondent T & C, on September 13, 1990, violated
Section 8(a)(1) of the Act by inquiring as to what it would
take to induce an employee to refrain from union activity.
8. Respondent T & C, on September 14, 1989, violated
Section 8(a)(3) and (1) of the Act by refusing to retain Mal-
colm Hansen because of his union activity.
9. Respondent T & C did not, since September 13, 1990,
refuse to employ Charles Evans, or from September 20,
1990, refuse to hire Roger Kolling for reasons proscribed by
Section 8(a)(3) and (1) of the Act.
10. Except as found in paragraphs 4, 5, 6, 7, and 8 above,
the Respondents did not engage in any of the unfair labor
practices set forth in the complaint.
THE REMEDY
Having found that Respondent T & C has engaged in cer-
tain unfair labor practices, it shall be recommended that it
cease and desist therefrom, and take certain affirmative ac-
tion deemed necessary to effectuate the policies of the Act.
It having been found that Respondent T & C, in effect,
terminated Malcolm Hansen in violation of Section 8(a)(3)
and (1) of the Act, it shall be recommended that it be or-
dered to reinstate him to his prior position and make him
whole for earnings lost by reason of the discrimination
against him.
Having found that the Respondent violated Section 8(a)(3)
and (1) of the Act by refusing to hire the employees named
below:
Ken Axt Red Larson
Steve Claypatch Greg Shafranski
Steve Leyendecker David Hagen
Robert Hallman Bob Printy
Harley Barton Michael Priem
it shall be recommended that they be offered immediate em-
ployment in positions for which they have applied and are
qualified, to the extent vacancies exist, and they shall be
made whole for any earnings lost by reason of the discrimi-
nation against them.
Backpay due under the terms of this Order shall be com-
puted on a quarterly basis as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), and shall be reduced by net in-
terim earnings, with interest computed as specified in New
Horizons for the Retarded, 283 NLRB 1173 (1987). All rein-
statement and backpay recommendations are subject to the
procedures discussed in Dean General Contractors, 285
NLRB 573 (1987), and Haberman Construction Co., 236
NLRB 79 (1978).
With respect to Respondent Ameristaff, with one excep-
tion, all unfair labor practices found, occurred outside the
scope of its authority. The unlawful discrimination and coer-
cive conduct imputed to T & C was effected by that firm
at times and under conditions where its authority was exclu-
sive. Ameristaff was in no position to influence the unlawful
failure at Boise Cascade to retain Hansen or the termination
of interviews at the Embassy Suites. In this light, the reme-
dial burden imposed on T & C should not be lightened by
any form of shared relief between these parties, and to do
so, in the circumstances, would penalize Ameristaff for hav-
ing a business relationship with the perpetrator of unlawful
conduct.
Respondent Ameristaff committed a single act of unlawful
interrogation. In that connection, the findings should be suffi-
ciently instructive to make entry of a formal order against
Ameristaff a needless exercise. The incident is remedied ade-
quately through the Order recommended in the case of T &
C. For this reason, and considering the nature of this singular
violation, together with Ameristaff’s method of operations,
no remedy shall be recommended in its case.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended87
1281TOWN & COUNTRY ELECTRIC
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
88 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The Respondent, Town & Country Electric, Inc., Appleton,
Wisconsin, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating job applicants concerning their
union membership.
(b) Instructing employees to cease engaging in union ac-
tivity during nonworking time, and threatening them with
discharge if they do not comply.
(c) Asking employees whether they could be bribed to re-
frain from engaging in union activity.
(d) Discouraging union activity by refusing to hire, termi-
nating, or in any other manner discriminating against em-
ployees with respect to their hours, wages, or other terms and
conditions or tenure of employment.
(e) In any like or related manner interfering with, coercing,
or restraining employees in the exercise of the rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer immediate employment to the employees listed
below in positions for which they applied and qualify or, if
nonexistent, to substantially equivalent positions, and make
them whole for losses sustained by reason of the discrimina-
tion against them, with interest, as set forth in the remedy
section of this decision:
Ken Axt Red Larson
Steve Claypatch Greg Shafranski
Steve Leyendecker David Hagen
Robert Hallman Bob Printy
Harley Barton Michael Priem
(b) Offer Malcolm Hansen immediate reinstatement to his
former position or, if nonexistent, to a substantially equiva-
lent position, and make him whole for losses sustained by
reason of the discrimination against him, with interest, as set
forth in the remedy section of this decision.
(c) Remove from its files, delete, and expunge any and all
reference to the unlawful termination of Malcolm Hansen,
notifying him that said action has been taken, and that said
termination will not be used against him in the future.
(d) Preserve and, on request, make available to the Board
and its agents for examination and copying, all payroll
records, social security records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its facilities in Appleton, Wisconsin, and Inter-
national Falls, Minnesota, copies of the attached notice
marked ‘‘Appendix.’’88 Copies of the notice, on forms pro-
vided by the Regional Director for Region 18, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT coercively interrogate job applicants con-
cerning their union membership or preference for union or
nonunion work.
WE WILL NOT instruct employees to cease engaging in
union activity during nonworking time or threaten them with
discharge if they do not comply.
WE WILL NOT ask employees whether they could be bribed
to refrain from engaging in union activity.
WE WILL NOT discourage union activity by refusing to
hire, terminating, or in any other manner discriminating
against employees with respect to their hours, wages, or
other terms and conditions or tenure of employment.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
WE WILL offer immediate employment to the employees
listed below in positions for which they applied or, if non-
existent, to substantially equivalent positions, and WE WILL
make them whole for losses sustained by reason of the dis-
crimination against them, with interest:
Ken Axt Red Larson
Steve Claypatch Greg Shafranski
Steve Leyendecker David Hagen
Robert Hallman Bob Printy
Harley Barton Michael Priem
WE WILL offer Malcolm Hansen immediate reinstatement
to his former position or, if nonexistent, to a substantially
equivalent position, and make him whole for losses sustained
by reason of the discrimination against him, with interest.
1282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL remove from our files, delete, and expunge any
and all reference to the unlawful termination of Malcolm
Hansen, notifying him that said action has been taken, and
that said termination wlll not be used against him in the fu-
ture.
TOWN & COUNTRY ELECTRIC, INC.