Volair Contractors

National Labor Relations Board - Board Decisions

Apr 30, 2004

341 N.L.R.B. 673 (N.L.R.B. 2004)

VOLAIR CONTRACTORS, INC. 673
Volair Contractors, Inc. and Plumbers & Pipefitters
Local Union 74, United Association of Journey-
men & Apprentices of the Plumbing & Pipefit-
ting Industry of the U.S.A. and Canada. Cases
4–CA–27432 and 4–CA–27028
April 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On July 29, 1999, Administrative Law Judge Arthur J.
Amchan issued the attached decision. The Respondent
and the General Counsel filed exceptions and supporting
briefs, and the Respondent filed a reply brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions as
modified below and to adopt the recommended Order as
modified.3
The complaint alleges that the Respondent violated
Section 8(a)(1) and (3) of the Act by discharging Melvin
Baldwin and laying off Louis Oliver because of their
union activities, and that it violated Section 8(a)(1) by
interrogating and making certain coercive statements to
these and other employees concerning those activities.
The judge found that the Respondent unlawfully dis-
charged Baldwin, but recommended that the other allega-
tions be dismissed. He also refused to find that the Re-
spondent’s failure to recall Oliver was unlawful, because
it was not alleged in the complaint to violate the Act.
We adopt the judge’s conclusions on these issues.
Although we are in essential agreement with the
judge’s findings and conclusions, we find it necessary to
more fully explain our rationale on several issues. Thus,
we find, for the reasons stated by the judge, but also for
reasons explained below, that Baldwin was a statutory
employee and not a supervisor at the time of his dis-

1 The General Counsel’s reply brief was rejected as untimely.
2 The Respondent and the General Counsel have 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 unless
the clear preponderance of all of 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 exam-
ined the record and find no basis for reversing the findings.
3 We shall modify the judge’s recommended Order to be consistent
with our decision in Ferguson Electric Co., 335 NLRB 142, 143
(2001), and to substitute standard language for other portions of the
judge’s Order. Further, we shall substitute a new notice in accordance
with our recent decision in Ishikawa Gasket American, Inc., 337 NLRB
175, 177 (2001).
charge; that the Respondent did not unlawfully interro-
gate Baldwin;4 and that Baldwin’s discharge was unlaw-
ful but Oliver’s layoff was not. We also agree with the
judge, for the reasons stated in his decision, that the Re-
spondent did not unlawfully interrogate employee John
Cabral pursuant to an unfair labor practice charge arising
from Oliver’s layoff.5 Finally, we find that the judge did
not abuse his discretion by declining to find that the Re-
spondent unlawfully refused to recall Oliver.6
I. BALDWIN ALLEGATIONS
A. Factual Background
The Respondent hired Melvin Baldwin, a pipefit-
ter/welder, in November 1997 to be the foreman of a
crew assembling and installing new boilers in the
Wanamaker building in Wilmington, Delaware. Baldwin
reported directly to the Respondent’s outside superinten-
dent, Joseph Tigue, who was overseeing several projects
for the Respondent. Baldwin was issued a cell phone so
that he could contact Tigue, who was frequently absent
from the jobsite. Baldwin also ordered supplies for the
job and had authority to recommend that his crew work
overtime, although he could not require them to do so
without authorization from higher management.
In the course of his work on the Wanamaker project,
Baldwin asked Tigue for additional manpower and, at
Tigue’s request, recommended several workers who had
the necessary skills for the job. Tigue subsequently in-
terviewed the recommended individuals by telephone
and hired them. Baldwin also complained to Tigue about
4 We disagree, however, with the judge’s finding that the General
Counsel abandoned this allegation and address the issue on its merits.
5 In this regard, we agree with the judge that the questioning was not
coercive merely because the Respondent did not furnish all the safe-
guards prescribed in Johnnie’s Poultry Co., 146 NLRB 770, 774–775
(1964), enf. denied on other grounds 344 F.2d 617, 619 (8th Cir. 1965).
In adopting this conclusion, we observe that, under certain circum-
stances, even questions having no express connection with employees’
protected activity or Board charges may be coercive, triggering the
need for Johnnie’s Poultry safeguards. For example, employees who
participate in open protected activity with a coworker (or know of such
activity) may infer that the employer’s subsequent discharge of and
questions about the coworker relate to the protected activity, even if
such activity or the filing of a Board charge is never mentioned. See,
e.g., Parkwood Chevrolet, 262 NLRB 256, 265 (1982). Here, however,
as the judge found, there is no evidence that the questioned employee,
John Cabral, had any knowledge of Oliver’s union affiliation or the
Union’s charge. Moreover, Cabral had previously complained to man-
agement after having a fight with Oliver and, thus, would reasonably
have believed that Tigue’s request for a statement that Oliver was a
“troublemaker” referred to that incident rather than relating to Sec. 7
rights.
6 The General Counsel raised this issue for the first time in his brief
in support of exceptions. The Board has rejected as untimely motions to
amend the complaint made for the first time in exceptions. See United
States Service Industries, 324 NLRB 834, 835 fn. 10 (1997).
341 NLRB No. 98
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 674
the quality of some of his workers and was told, “If you
don’t like them, get rid of them.”
Baldwin completed the Wanamaker project in late De-
cember or early January 1998, several weeks after the
scheduled project deadline. The Respondent then as-
signed him to work in its fabrication shop, preparing pip-
ing to be installed at the Laird campus of the University
of Delaware. On this job, Baldwin reported to the pro-
ject superintendent, Charles Wertz, who was a level be-
low Tigue in the Respondent’s management hierarchy.
Baldwin worked with two other welders, assigning them
tasks based on a blueprint given to him by Wertz, and
administered a welding certification test to welder John
Cabral at Wertz’ request.
In February 1998, Baldwin began to install the piping
in cooling towers at the Laird site as part of a four-man
crew. He spent much of his time doing hands-on work
and was responsible for correcting the work of other
crewmembers. He continued to report to Wertz, who
was on site 80 percent of the time. The installation of
pipe in the cooling towers was completed on March 20, 3
weeks behind schedule. Thereafter, the Respondent be-
gan installing pipe in other areas, with several additional
crews, and Baldwin was at times consulted about the
allocation of the work force.
Also in mid-March, Baldwin contacted the Union and
signed an authorization card. A couple of other employ-
ees working on the Laird site were also known union
members. Shortly after Baldwin signed his authorization
card, he and union supporter Steve Tennet wore their
union T-shirts to work. Wertz asked them why they
were wearing union T-shirts. When Baldwin responded
by asking whether he had anything against unions, Wertz
stated that Baldwin didn’t want to know his views on
unions but that he could tell Baldwin stories about his
experience with unions on other jobs. On a later occa-
sion, Wertz commented to Baldwin, “What, no Union
[T]-shirt today?”
On April 6, Baldwin took a welding test at the Union’s
headquarters and became a member of the Union. On
April 7, Tigue came to the Laird jobsite and told Baldwin
he was fired because he was not pushing his crew hard
enough. Although Tigue was hiring pipefitters for the
Laird project at the time, he did not consider retaining
Baldwin as a rank-and-file pipefitter.
B. Analysis and Conclusions
1. Supervisory status
Before addressing Baldwin’s termination, the judge
considered whether Baldwin was a statutory supervisor
at the time of termination and thus unprotected by the
Act. He found that Baldwin was a supervisor on the
Wanamaker project, by virtue of the authority Tigue
granted him to discharge unsatisfactory workers,7 but
that Baldwin ceased to be a supervisor when he began
work on the Laird project under the supervision of
Wertz. The Respondent excepts to the judge’s conclu-
sion on the grounds that Baldwin was never told that he
had lost the authority Tigue granted him on the Wana-
maker project, and that his subordination to Wertz on the
Laird project did not establish that his status had
changed. In addition, the Respondent argues that, in any
event, Baldwin was a supervisor because he exercised
independent judgment in assigning, directing, and disci-
plining his crew on the Laird project. We find no merit
in the Respondent’s exceptions.8
The burden of proving supervisory status is on the
party alleging it exists, and “th[at] burden does not shift.”
Chemical Solvents, Inc., 331 NLRB 706 fn. 3 (2000);
NLRB v. Kentucky River Community Care, Inc., 532 U.S.
706 (2001). We adopt the judge’s determination that
Baldwin’s subordination to Wertz when he moved to the
Laird project was a significant change in his position that
cast doubt on the continuation of his authority to fire
workers and effectively recommend others for hire. Nei-
ther Wertz nor Tigue ever told Baldwin that he had such
authority at the Laird project, as Tigue had told Baldwin
when he worked on the Wanamaker project. In fact, the
record indicates that, while Baldwin had discussed man-
power issues, including hiring and firing, directly with
Tigue on the Wanamaker job, Tigue discussed these mat-
ters with Wertz on the Laird project. There is no evi-
dence that Baldwin recommended anyone for hire while
working on the Laird project or was ever asked to do so,
in spite of Respondent’s need for pipefitters prior to
Baldwin’s discharge.9 Thus, we agree with the judge

7 In addition to granting Baldwin firing authority, Tigue also asked
Baldwin to recommend additional workers for the Wanamaker job and
generally hired the workers he recommended after a brief telephone
interview. Authority to effectively recommend both hiring and dis-
charge may establish supervisory status. Delta Carbonate, 307 NLRB
118, 120 (1992), enfd. 898 F.2d 486 (3d Cir. 1993) (shift leaders were
statutory supervisors because they had authority to, inter alia, effec-
tively recommend hiring, promotion, and discharge).
8 The Respondent also argues that: Baldwin was hired as a foreman
and was never told he had lost that title; his salary remained unchanged;
he retained the cell phone that had been issued to him on the Wana-
maker project; and he attended at least one supervisory meeting while
on the Laird project. However, such secondary indicia of supervisory
status cannot establish supervisory status in the absence of primary
indicia. J. C. Brock Corp., 314 NLRB 157, 159 (1994).
9 Although the Respondent hired employee Steve Tennet, a worker
previously recommended by Baldwin, after Baldwin was reassigned to
the Laird project, the record evidence is equivocal as to whether Bald-
win recommended Tennet before or after he was reassigned. Thus, the
record does not establish that Baldwin continued to effectively recom-
mend workers for hire after his reassignment.
VOLAIR CONTRACTORS, INC. 675
that Respondent has presented insufficient evidence that
Baldwin had hiring and firing authority on the Laird pro-
ject.
The Respondent has not demonstrated that Baldwin
was a supervisor by virtue of either his assignment of
work to and direction of his crewmembers or his alleged
disciplinary authority, because it failed to show that
Baldwin exercised this authority using independent
judgment, as required by Section 2(11), rather than in a
routine manner. Chrome Deposit Corp., 323 NLRB 961,
963 (1997). Although Wertz affirmed, in response to a
leading question by the Respondent’s counsel, that
Baldwin’s direction of other crewmembers required him
to use independent judgment, such “conclusionary state-
ments made by witnesses in their testimony, without
supporting evidence, do not establish supervisory author-
ity.” Sears, Roebuck & Co., 304 NLRB 193 (1991) (cit-
ing American Radiator Corp., 119 NLRB 1715, 1718
(1958)).
There is no record evidence that Baldwin’s assignment
or direction of his crew required independent judgment.
Wertz testified that Baldwin’s responsibilities on the
Laird project were to set the job up, tell Wertz what he
needed for manpower, assign different tasks to the crew,
and lay out the job. But, Baldwin testified that he fol-
lowed Wertz’s instructions in laying out the job and as-
signed tasks to his crewmembers with reference to a
blueprint provided by Wertz. Such circumscribed au-
thority does not indicate the use of independent judg-
ment. See Artcraft Displays, Inc., 262 NLRB 1233,
1234–1235 (1982) (leadmen who direct crews in accor-
dance with instructions and floor plans furnished by em-
ployer do not exercise independent judgment necessary
for supervisory status); see also Electrical Specialties,
Inc., 323 NLRB 705, 707 (1997) (leadmen who lay out
work pursuant to general contractor’s specifications not
supervisors).10
The Respondent’s reliance on Baldwin’s alleged dis-
ciplinary authority while working on the Laird site is
equally unavailing. The Board has declined to find indi-
viduals to be supervisors based on alleged authority that
they were never notified that they possessed and where
its exercise was sporadic and infrequent. See Greenspan,
D.D.S., P.C., 318 NLRB 70, 76 (1995), enfd. 101 F.3d
107 (2d Cir. 1996); see also Tree-Free Fiber Co., 328
NLRB 389, 392–393 (1999) (citing Greenspan D.D.S.,

10 Baldwin’s crew consisted of a welder, a crane operator with weld-
ing skills, and a helper, whose functions on the job were undoubtedly
determined in large part by their craft skills. Assigning work to em-
ployees on the basis of their known job skills does not require the use
of independent judgment. See Brown & Root, Inc., 314 NLRB 19, 21-
22 (1994).
P.C., for the proposition that, “[w]hen an individual has
not been notified, orally or in writing, that he is vested
with a supervisory power, the frequency of exercise of
the authority is relevant to a determination of whether in
fact the authority has been delegated to him by manage-
ment”). Here, Wertz summarily testified that Baldwin
had the authority to discipline on the Laird project and
Tigue testified that Baldwin had such authority on the
Wanamaker project and retained it on the Laird project.
However, neither Wertz nor Tigue testified that they in-
formed Baldwin of his alleged disciplinary authority.11
And Baldwin testified without contradiction that he had
never disciplined anyone or written anyone up on either
the Laird or Wanamaker projects and explained that “I
never discussed [the Respondent’s] policy [for writing
people up]” and “I don’t know what the policy was.”
Because there is no evidence that Baldwin was ever
made aware of any disciplinary authority or ever exer-
cised it, it cannot be a basis for concluding that Baldwin
was a supervisor. Thus, we agree with the judge that the
Respondent has failed to establish that Baldwin was a
statutory supervisor on the Laird project.
2. Interrogation
The complaint in Case 4–CA–27028 alleges that “[i]n
or about mid-March 1998 . . . Respondent, by Charles
Wertz, at the Laird Project, interrogated an employee
concerning the employee’s union membership, activities
and sympathies.” This allegation refers to incidents de-
scribed above: Wertz asking Baldwin and Tennet in
mid-March why they were wearing union T-shirts and
Wertz’ subsequent negative remarks about his experience
with unions. The judge dismissed the allegation on the
grounds that it was “not addressed in the General Coun-
sel or Charging Party’s brief” to the judge and was there-
fore abandoned. The judge also found nothing in the
record to indicate that Wertz’ comments “restrained, co-
erced or interfered with Baldwin’s Section 7 rights.”
While we disagree that the allegation was aban-
doned,12 we agree with the judge that it lacks merit.
11 Rather, when asked whether Baldwin knew of his authority to dis-
cipline, Tigue testified, “I would say yes.” That testimony does not
establish that Baldwin was ever told of his alleged authority; if any-
thing, it suggests the opposite.
12 On the contrary, the General Counsel argued this allegation, albeit
tersely, in a footnote in his posthearing brief to the judge (attached to
the Respondent’s reply brief): “Even under Wertz’s account of the one
exchange he admits to have occurred [with Baldwin], there was no
legitimate purpose for any questioning regarding the shirt . . . Because
the two instances of questioning in Baldwin’s account were not amica-
ble or casual and were not . . . made in a context free from other unfair
labor practices, they rise to the level of violations of Section 8(a)(1) of
the Act.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 676
In evaluating allegations of coercive interrogation, the
Board considers the totality of the circumstances pre-
sented in each case, including the background of the em-
ployer-employee relationship, the nature of the informa-
tion sought, the identity of the questioner, and the place
and method of interrogation. Rossmore House, 269
NLRB 1176, 1177–1178 (1984) (known union adherent),
enfd. sub nom. Hotel & Restaurant Employees Local 11
v. NLRB, 760 F.2d 1006 (9th Cir. 1985); Sunnyvale
Medical Clinic, 277 NLRB 1217, 1218 (1985) (not
known union adherent). Here, the question about Bald-
win’s union T-shirt was posed by his immediate supervi-
sor, Wertz, in direct response to Baldwin’s demonstra-
tion of open union support by wearing the shirt. See
Cardinal Home Products, 338 NLRB 1004, 1009, 1010
(2003). The conversation occurred informally at the
work site, in a context free from other unfair labor prac-
tices.13 Wertz’ statement that Baldwin did not want to
hear his views, but that he could tell stories about his
experience with unions on other jobs, while suggestive of
a possible personal dislike of unions, was respectful of
Baldwin’s Section 7 right to support unionization. In
addition, it was made only in response to Baldwin’s ask-
ing whether Wertz had anything against unions. Wertz
did not suggest, even indirectly, that any negative reper-
cussion for Baldwin might result from union member-
ship. Nor, in the circumstances, did Wertz’s later com-
ment—“What, no union [T]-shirt today?”—carry any
negative connotation. There is therefore no basis for
finding Wertz’ comments coercive. Cf. Assn. of Com-
munity Organizations For Reform Now (ACORN), 338
NLRB 866, 869 fn. 1, 4 (2003) (supervisor’s questioning
of employees about their support for union, in context of
statements that unionization had negative aspects and
would “bring [the business] down,” constituted coercive
interrogation).

13 It is true that, 3 weeks after Wertz’ comments, Baldwin was
unlawfully discharged. However, contrary to Member Liebman,
Chairman Battista finds that this subsequent discharge did not retroac-
tively transform Wertz’ facially noncoercive comments into an 8(a)(1)
violation. Rather, he finds that the single subsequent violation, di-
vorced by time and context, did not convert Wertz’ entirely unthreaten-
ing comments into statements that would reasonably tend to interfere
with the exercise of Sec. 7 rights.
Member Schaumber agrees that he would find no Sec. 8(a)(1) viola-
tion in Wertz’ comments even if he agreed that the discharge of Bald-
win was unlawful.
Contrary to her colleagues, Member Liebman would find that the
subsequent unlawful discharge of Baldwin only 3 weeks after Wertz’
questioning regarding his union affiliation lends a coercive character to
these remarks. See Medcare Associates, Inc., 330 NLRB 935, 940
(2000) (“[A] question that might seem innocuous in its immediate
context may, in the light of later events, acquire a more ominous tone.”)
In this context, Member Liebman would find that Wertz’ questioning
violated Sec. 8(a)(1).
3. Termination
The judge concluded that Baldwin’s termination was
unlawful. Although he found no direct evidence that the
Respondent harbored antiunion animus,14 he inferred
unlawful motivation, in part because he found that the
reason proffered by the Respondent—dissatisfaction with
Baldwin’s work as a foreman, and, in particular, his fail-
ure to push his crew to complete work on schedule—was
a pretext. The judge also relied on the timing of the dis-
charge, 3 months after Baldwin failed to meet the dead-
line on the Wanamaker project, and evidence that two
other unsuccessful foremen had been treated more leni-
ently than Baldwin.15 We agree with the judge, for the
reasons discussed in his decision. Several other facts
support a finding of pretext. First, the delay between the
first appearance of the alleged problem in Baldwin’s
work and his discharge is significant in light of the fact
that Baldwin was discharged only 3 weeks after the Re-
spondent learned of his union activity. Second, while the
Respondent provided other job opportunities to foremen
who failed to meet project deadlines, it discharged Bald-
win at a time that it needed pipefitters.16 Third, Tigue
admitted that Baldwin is “very good at what he does”
and “knows his trade inside and out.”
In exceptions, the Respondent argues that Tigue did
not discharge Baldwin immediately after the alleged
problem with his work arose because he wanted to give
Baldwin another chance. Although the judge did not
specifically discredit Tigue’s testimony to this effect, we
find it unpersuasive in view of the judge’s discrediting of
Tigue’s testimony that he brought the alleged problem
with Baldwin’s work to his attention. We agree with the
judge that the absence of credited evidence that the Re-
spondent ever spoke to Baldwin about his allegedly un-
satisfactory performance and the delay in discharging
him undermine the Respondent’s assertion that the al-
leged problem was the motivation for his discharge.17
14 Although Wertz made statements to Baldwin about his T-shirt, re-
flecting his dislike of unions, the judge indicated that these comments
did not amount to unlawful interrogation or antiunion animus.
15 The Respondent excepted to the judge’s apparent reliance on the
fact that Baldwin was discharged a day after taking a Local 74 welding
test to become a member of the Union, because there is no evidence
that the Respondent knew about the test. It is not clear that the judge
actually relied on this evidence, but we agree with the Respondent that
it does not support a finding of unlawful motive.
16 According to Tigue, one of these unsuccessful foremen, Sam
Spangler, was offered work as a regular mechanic while the other,
Bryan Roe, was offered work as a basic plumbing mechanic.
17 We agree with the judge that the Respondent’s failure to retaliate
against other open union supporters does not preclude a finding that
Baldwin’s discharge was unlawfully motivated. It is well established
that an employer’s failure to take adverse action against all union sup-
porters does not disprove a discriminatory motive, otherwise estab-
VOLAIR CONTRACTORS, INC. 677
II. OLIVER’S LAYOFF
A. Factual Background
In June 1998, the Respondent hired Louis Oliver as a
pipefitter on the Laird project. On July 23, Oliver re-
quested a pay increase, and Project Superintendent Wertz
granted the request after consulting with Outside Super-
intendent Tigue. Nonetheless, it appears that there was
some conflict between Wertz and Oliver over work-
related issues. In addition, Oliver had a fight with an-
other employee, John Cabral, who reported the dispute to
management.
On August 13, Oliver contacted the Union and signed
an application for membership. There is no evidence that
the Respondent knew of Oliver’s union activity. On Au-
gust 28, Wertz terminated Oliver, who was the least sen-
ior pipefitter on the Laird job and was still in his proba-
tionary period, without explanation. Oliver was not re-
placed. On September 3, the Union served the Respon-

lished, for its adverse action against a particular union supporter. Mas-
ter Security Services, 270 NLRB 543, 552 (1984). In any event, it is
not surprising that the Respondent might have responded less favorably
to a demonstration of union support by someone it considers a supervi-
sor—like Baldwin—than by a rank-and-file employee like Tennet, who
wore his union shirt at the same time and suffered no adverse action.
Member Schaumber finds that the General Counsel has not shown
by a preponderance of the evidence that Baldwin’s discharge was dis-
criminatory in violation of Sec. 8 (a)(3). He does not believe the evi-
dence supports a finding of antiunion animus. Thus, in the time period
that Baldwin and Oliver were discharged, the Respondent also hired
two union members for the Laird project (who worked from the spring
of 1998 until they voluntarily left near the project’s completion in Sep-
tember 1998), and there is no evidence that the Respondent treated
them adversely in any way. Further, even assuming antiunion animus,
which he does not, Member Schaumber notes there was substantial
delay on both the Wanamaker project and the Laird project and Bald-
win was the foreman on the Wanamaker project and in charge of a crew
on the Laird project. It is true that 3 months elapsed from the end of
the Wanamaker project to the discharge, but in Member Schaumber’s
view that cannot serve as a predicate upon which to rest a finding of
pretext in light of the Respondent’s reasonable explanation from two
witnesses—that was not discredited by the judge—that it wanted to see
if Baldwin’s next project was more successful than the Wanamaker
project. It was not. He disagrees with his colleagues that discharging
Baldwin “only three weeks” after Baldwin exhibited prounion senti-
ment is evidence of animus. Had it been one day, and in the absence of
the above-referenced counter-balancing evidence, would be another
matter. Finally, Member Schaumber does not agree that on this record
the Respondent’s failure to offer Baldwin a job as a pipefitter estab-
lishes disparate treatment. While Sam Spangler was rehired as a regu-
lar mechanic, he was discharged first. He came back to be rehired and
was put to work under “harder foremen.” There is no evidence that
Baldwin came back, or sought to stay on with the Respondent as a
pipefitter, or that he would not have been retained had he done so.
Bryan Roe was hired as a mechanic, not as the foreman of a crew like
Baldwin, and later given a crew. When he proved unsuccessful at that
task, he was returned to being a mechanic.

dent with an unfair labor practice charge arising from
Oliver’s discharge.
On September 19, the first phase of the Laird project
was completed, and several other workers left the Re-
spondent’s employ or were transferred to other jobs. In
November, the Respondent hired pipefitters for a new
phase of another project. Oliver did not reapply for work
and was not recalled.
B. Analysis and Conclusions
The judge dismissed the allegation that Oliver’s layoff
violated Section 8(a)(3). He found that the Respondent
gave “shifting reasons” for its action, indicative of pre-
text, but he declined to infer that the Respondent knew of
Oliver’s union affiliation and was unlawfully motivated
in laying him off. In exceptions, the General Counsel
argues that the judge should have inferred knowledge
and unlawful motive from the pretextual nature of the
Respondent’s explanation, the fact that Oliver was the
only employee laid off, the Respondent’s failure to recall
Oliver when it resumed hiring in November, the Respon-
dent’s unlawful discharge of Baldwin, and Oliver’s fre-
quent conversations at the jobsite with open union sup-
porters. We find no merit in the exceptions.
Initially, we disagree that the Respondent gave “shift-
ing” reasons for Oliver’s layoff. Although the Respon-
dent listed several reasons for its action, it did not change
its story by giving different reasons on different occa-
sions. Nor is the Respondent’s credited explanation—
that Oliver was laid off because the Laird project was
winding down and he was the least senior pipefitter on
the job—inconsistent with the Respondent’s other stated
reason, that Oliver had difficulty getting along with oth-
ers. Although the judge rejected the latter contention as
undocumented, he, nevertheless, apparently credited tes-
timony supporting it.18 And, contrary to the judge’s
finding, the Respondent did not claim that it laid Oliver
off because he had “safety problems,” another contention
that the judge rejected; rather, the Respondent gave that
reason in explaining why it did not recall Oliver. We
therefore conclude, as did the judge, that the Respon-
dent’s explanation for Oliver’s layoff is not so obviously
pretextual as to warrant an inference that the Respondent
must have known of Oliver’s union affiliation and laid
him off for that reason.
The General Counsel argues that the Respondent’s
knowledge of Oliver’s union affiliation must be inferred
from the fact that he frequently spoke with open union
supporters Lenny Barber and Tennet. But the record
18 Thus, the judge credited testimony by a coworker that Oliver had
frequent conflicts with Wertz and testimony by Cabral, who had re-
ported a fight with Oliver to management.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 678
shows that all three men worked at the same site, and,
according to Oliver, Wertz often sent him to assist Bar-
ber and Tennet when they had pipefitting problems.
Barber testified that they often discussed work as well as
the Union. Even assuming that Wertz observed such
conversations, there is no evidence that he overheard
them. Under these circumstances, we decline to infer
that the Respondent knew that Oliver supported the un-
ion, merely because he often spoke with employees who
did.
The General Counsel also argues that the Respondent’s
knowledge of Oliver’s union affiliation at the time of his
layoff should be inferred from the Respondent’s assert-
edly unlawful failure to recall him. However, the Re-
spondent learned of Oliver’s union affiliation about a
week after his layoff through a charge filed on his behalf
by the Union. Thus, even assuming that the Respon-
dent’s failure to recall him when it hired pipefitters sev-
eral months later was motivated by the discovery of his
union affiliation, such a conclusion has no bearing on
whether the Respondent knew of Oliver’s union affilia-
tion when it laid him off.
In sum, there is no credited evidence that Oliver par-
ticipated in any open union activity or otherwise openly
expressed support for the union; the Respondent’s expla-
nation for Oliver’s layoff is not clearly pretextual; and
the only evidence of animus is the unlawful discharge of
Baldwin 5 months before Oliver’s layoff. Therefore, we
agree with the judge that the circumstantial evidence
does not warrant an inference that the Respondent knew
of Oliver’s union affiliation and that it was unlawfully
motivated in laying him off.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Volair
Contractors, Inc., Wilmington, Delaware, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 2(c).
“(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charge of Melvin Baldwin, and within 3 days thereafter
notify him in writing that this has been done and that the
discharge will not be used against him in any way.”
2. Substitute the following for paragraph 2(d).
“(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

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

FEDERAL LAW GIVES YOU THE RIGHT TO

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

WE WILL NOT discharge or otherwise discriminate
against any of you for supporting Plumbers and Pipefit-
ters Local Union 74 or any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Melvin Baldwin full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges enjoyed.
WE WILL make Melvin Baldwin whole for any loss of
earnings and other benefits suffered as a result of his
discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Melvin Baldwin, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.
VOLAIR CONTRACTORS, INC.

Michael C. Duff, Esq., for the General Counsel.
Francis A. Mastro, Esq. (Apruzzese, McDermott, Mastro &
Murphy), of Liberty Corner, New Jersey, for the Respon-
dent.
Stephen J. Holroyd, Esq. (Sagot, Jennings & Sigmond), of
Philadelphia, Pennsylvania, for the Charging Party.
VOLAIR CONTRACTORS, INC. 679
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Philadelphia, Pennsylvania, on May 24 and 25,
1999. The charge in Case 4–CA–27028 was filed April 9, 1998.
The General Counsel issued a complaint in this matter on Au-
gust 31, 1998. On September 3, 1998, the charge was filed in
Case 4–CA–27432. The complaint was issued December 18,
1998. The two cases were consolidated on December 28, 1998.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent and the Charging Party, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, Volair Contractors, Inc., is a mechanical con-
tractor, with its principal office and place of business in Wil-
mington, Delaware, where it annually purchases and receives
goods valued in excess of $50,000 directly from points outside
of the State of Delaware. Respondent admits and I find that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Union, Plumbers
and Pipefitters Local Union 74, is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
These cases concern the General Counsel’s allegation that
Volair terminated Melvin Baldwin on April 9, 1998, and laid-
off of Louis Oliver on August 28, 1998, in retaliation for their
union activities, thus violating Section 8(a)(1) and (3) of the
Act. There are also a number of independent 8(a)(1) allega-
tions related to this termination and layoff.
A. Melvin Baldwin’s Employment with Volair
Volair hired Melvin Baldwin, a pipefitter/welder, in Novem-
ber 1997. He was initially hired to be the foreman of a crew
that was installing new boilers as the part of the renovation of
the Wanamaker building in Wilmington, Delaware. Baldwin’s
salary was $20 per hour.
At the Wanamaker project, Baldwin reported to Joseph
Tigue, Volair’s outside superintendent.1 Tigue was responsible
for projects other than the Wanamaker project and divided his
time amongst these projects. When Tigue was not present at
the Wanamaker site, Baldwin was in charge of the Volair em-
ployees. Although Baldwin could recommend that his crew at
Wanamaker work overtime, he was required to seek authoriza-
tion for overtime hours from higher levels of management.
Volair gave Baldwin a cellphone so that he could contact Tigue
and others from the Wanamaker jobsite. Baldwin also ordered
supplies for the job.
When the Wanamaker project started there were only three
other employees working with Baldwin. When Baldwin asked

1 Larry Shub, another Volair management official, also worked at
Wanamaker. With regard to personnel issues, Baldwin reported to
Tigue.
Tigue for additional help, Tigue asked him if he knew anybody
who could do Volair’s work on the jobsite. Baldwin recom-
mended Bryan Roe, Steve Tennet, and Adam Gurin, all of
whom were interviewed by telephone, and then hired by Tigue.
At one point in the project Baldwin complained to Tigue
about the work of other employees. Tigue responded by telling
Baldwin, “If you don’t like them, get rid of them.” Baldwin did
not fire or discipline any employees.
Respondent claims that it was very unhappy with Baldwin’s
performance in running his crew at Wanamaker. Joseph Tigue
alleges that three boiler rooms were scheduled to be completed
in 3 weeks, but took 6–9 weeks instead. Tigue alleges that he
spoke with Baldwin twice about the pace at which Baldwin’s
crew was progressing at Wanamaker. The first occasion was
during the first week or week and a half that Baldwin was at the
site. Baldwin asked for more help and Tigue obtained it. A
week or so later, the same thing occurred. There is no docu-
mentation for Volair’s contention that it was dissatisfied with
Baldwin’s job performance.
Upon completion of the boilers at Wanamaker, which oc-
curred sometime in late December or early January 1998,
Baldwin was assigned to work in Volair’s fabrication shop,
preparing piping for an upcoming job at the Laird campus of
the University of Delaware. During the several weeks that
Baldwin worked in the fabrication shop he reported to Charles
Wertz, one of Volair’s project superintendents. He worked with
two Volair welders and on January 21, 1998, signed a form, on
behalf of Volair, certifying that welder John Cabral had per-
formed certain welds satisfactorily.
Although Tigue’s testimony intimates there were problems
with Baldwin’s job performance while working at the shop, I
decline to credit this testimony because it is contradictory, un-
supported by any documentation or the testimony of Wertz.
Tigue testified that at some point he told Wertz that Baldwin
“seemed to be a good guy in what he was doing, but he really
brought the Wanamaker job in way over on me.”2 It is not
clear whether this conversation occurred at the time of Bald-
win’s transfer to the shop or when he went onto the Laird job-
site.
Wertz, on the other hand, testified that he first became con-
cerned with Baldwin’s performance towards the end of Febru-
ary, weeks after Baldwin had left the fabrication shop and
started work on the Laird jobsite.3 Wertz testified further that
prior to that time Baldwin’s performance “seemed like it was
all right.” Finally, Wertz testified that he recommended that
Tigue fire Baldwin because the crew was not completing its
work fast enough. Wertz did not cite any shortcomings in
Baldwin’s work as a pipefitter.
2 Tigue also testified that “Mel Baldwin, as a man, he’s very good at
what he does. He knows his trade inside and out. But, on the Laird
job, we kept falling further behind and further behind. . . .” Tigue later
said he was talking about the Wanamaker job, rather than Laird.
3 Wertz testified that he discussed his concern that not enough work
was being completed, with Baldwin on one occasion. Even this is not
documented. I credit Baldwin’s testimony that prior to the day of his
discharge, April 7, 1998, he had not received any criticism of his job
performance.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 680
At the beginning of February, Volair started working at the
Laird campus. The first phase of its contract involved the in-
stallation of piping in two cooling towers. At Laird, Baldwin
no longer reported directly to Tigue, but worked for Wertz,
who was on site at least 80 percent of the time. At this point
Respondent had only one crew on the site consisting of Bald-
win, a welder, a helper and a crane operator, who also per-
formed some of the welding.
In mid-March 1998, Baldwin called Theodore Pankowski, an
organizer for Plumbers and Pipefitters Local 74. He signed a
union authorization card on March 17. At about this time
Baldwin and Volair employee Steve Tennet wore union T-
shirts to work. Wertz asked them why they were wearing the
shirts and Baldwin asked Wertz if he had anything against un-
ions. Wertz responded that Baldwin didn’t want to know his
feelings but that he could tell him stories about his association
with the union on a job in Maryland.4 Baldwin and Tennet
wore union T-shirts to the Laird site on one other occasion.5
On a third occasion, Wertz commented to Baldwin and Tennet,
“[W]hat no Union T-shirt today?”
By March 20, the installation of the piping in the cooling
towers at Laird had been completed, albeit 3 weeks behind
schedule. Volair then moved into other areas to install piping.
By this time Respondent had several work crews on the site.
There was no foreman designated for any of the crews. Bald-
win was at times consulted as to how the work force was bro-
ken up for a day’s tasks and attended one or more supervisor’s
meetings. However, Baldwin spent most of his time at the
Laird project working with tools and performing the other tasks
of a rank-and-file pipefitter.
On April 6, Baldwin took a Local 74 welding test and be-
came a member of the Union. The next day Tigue appeared at
the Laird jobsite and fired him. Tigue told Baldwin he was
being fired for not pushing his crew hard enough. At the time
of Baldwin’s discharge, Volair was in the process of hiring a
number of employees, including pipefitters to work on the
Laird project. Tigue gave no consideration to retaining Bald-
win as a rank and file pipefitter. On at least two other occa-
sions he had done so with other foremen or leadmen, whose
ability to “run a crew” he had deemed to be deficient.6

4 I credit Baldwin’s account of this conversation over that of Wertz,
although I deem the differences in their accounts to be fairly insignifi-
cant in determining any issues in this matter. Wertz testified that all he
said was, “nice shirt” and then asked Baldwin and Tennet if they co-
ordinated their clothing.
5 Tennet, a Union member, worked on the Laird project until its
completion in September 1998. There is no evidence of any retaliation
by Volair against him or Len Barber, a union member who was hired in
April and also left voluntarily in September. The day he was hired,
Barber informed Charles Wertz that he would not cross the picket line
that the Union had established to protest Baldwin’s discharge. Barber
told Wertz that he was a union member.
6 One of these employees, Brian Roe, received a raise when en-
trusted with “running a crew,” which was not taken away when this
responsibility was taken away from him. From this I conclude that the
fact that Baldwin’s salary remained the same throughout his employ-
ment at Volair does not necessarily indicate that he was a supervisor
throughout his employment.
Volair did not designate any employee as a foreman for any
of the crews at Laird after Baldwin’s discharge. All the crews
on the site were supervised directly by Charles Wertz.
B. Analysis with Regard to Baldwin’s Case.
Was Baldwin a “Supervisor” When he was Fired?
As an affirmative defense to the allegation that it violated
Section 8(a)(1) and (3) in terminating Melvin Baldwin, Re-
spondent contends that he was a supervisor within the meaning
of Section 2(11) of the Act. I agree with Volair that Baldwin
was a supervisor on the Wanamaker project. However, the
issue herein is whether Baldwin was a supervisor at the time of
his discharge, We Can, Inc., 315 NLRB 170, 173 (1994). I
conclude that Respondent has not met its burden of proving that
he was a supervisor after he left the Wanamaker site.
Pursuant to Section 2(3) of the Act, “supervisors” are not
employees. Section 2(11) of the Act, defines “supervisor” as
“any individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or effec-
tively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely rou-
tine or clerical nature, but requires the use of independent judg-
ment.”
A party seeking to exclude an individual from the category
of an “employee” has the burden of establishing supervisory
authority. The exercise of independent judgment with respect
to any one of the factors set forth in Section 2(11) establishes
that an individual is a supervisor. However, not all decision-
making constitutes the independent judgment necessary to es-
tablish that an individual is a statutory supervisor. Similarly,
the fact that an individual gives direction to other employees
without first checking with a higher authority, does not neces-
sarily make one a supervisor. For example, an individual does
not necessarily become a supervisor in situations in which his
authority to direct employees emanates solely from his skill or
experience, Southern Bleachery & Print Works, Inc., 115
NLRB 787, 791 (1956), enfd. 257 F.2d 235, 239 (4th Cir.
1958).
If an employee has not been specifically notified that he or
she has supervisory authority, the exercise of supervisory au-
thority on an irregular and sporadic basis is not sufficient to
establish supervisory status, Browne of Houston, 280 NLRB
1222, 1225 (1986), and Greenspan, D.D.S., P.C, 318 NLRB 70,
76 (1995). However, when a person has been so notified, it is
irrelevant whether or not this supervisory authority has been
exercised, NLRB v. Southern Seating Co., 468 F.2d 1345 (4th
Cir. 1974); Greenspan, DDS P.C., supra.
In the instant case Joseph Tigue told Baldwin that he had au-
thority to fire employees on the Wanamaker jobsite. This es-
tablishes Baldwin’s supervisory status on that project. Had
their been no change in Baldwin’s status after the completion of
the Wanamaker project, I would conclude that he remained a
supervisor. However, his status changed dramatically, by vir-
tue of his subordination to Charles Wertz. In light of this
change, I find that it is incumbent on Volair to prove that he
continued to be a supervisor. It has not done so.
VOLAIR CONTRACTORS, INC. 681
After the Wanamaker project was completed, Baldwin was
informed that he no longer reported directly to Joseph Tigue,
but instead reported to Charles Wertz, who was a level below
Tigue in Volair’s management hierarchy. In the absence of
evidence to the contrary, it is reasonable to assume that his
authority was not the same as it was on the Wanamaker site. I
conclude there was no specific delegation of any supervisory
authority to Baldwin after he left Wanamaker. There is no
evidence that he exercised “independent judgment” necessary
to make him a supervisor after he left Wanamaker. Even if he
did so, there is insufficient evidence that he exercised such
judgment on other than an irregular or sporadic basis.7
The fact that none of the other Volair crews on the Laird pro-
ject had a supervisor other than Wertz is an indication that
Baldwin was not a supervisor. The fact that Wertz ran the crew
without another supervisor after Baldwin’s discharge also is an
indication that Baldwin was not a supervisor at Laird.
C. Respondent violated Section 8(a)(1) and (3) in Terminating
the Employment of Melvin Baldwin on April 7, 1998
In order to prove a violation of Section 8(a)(3) and (1), the
General Counsel must show that union activity has been a sub-
stantial factor in the employer’s adverse personnel decision. To
establish discriminatory motivation, the General Counsel must
show protected activity, employer knowledge of that activity,
animus or hostility towards that activity and an adverse person-
nel action caused by such animus or hostility. Inferences of
knowledge, animus and discriminatory motivation may be
drawn from circumstantial evidence rather than direct evi-
dence.8 Once the General Counsel had met his burden, the
burden of persuasion shifts to the employer to prove its affirma-
tive defense that it would have taken the same action even if the
employee had not engaged in protected activity. Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (lst Cir. 1981).
In the instant case, there is direct evidence of Baldwin’s un-
ion activity and Respondent’s knowledge of that activity.9 I
infer that Baldwin’s discharge was motivated by antiunion
animus due to the pretextual nature of the reasons it offers for
his termination, the 3-month delay between his alleged poor
performance on the Wanamaker job and his discharge and,
assuming he had any supervisory responsibility, Volair’s dispa-
rate treatment of Baldwin in not offering him the opportunity to
continue his employment as a pipefitter, without such duties,
Montgomery Ward & Co., 316 NLRB 1248, 1253 (1995), enfd.
97 F.3d 1448 (4th Cir. 1996), Shattuck Denn Mining Corp. v.
NLRB, 362 F.2d 466 (9th Cir. 1966).

7 Baldwin’s administration of a welding test to Cabral does not es-
tablish or even indicate supervisory status, Hogan Mfg. Co., 305 NLRB
806, 807 (1991); F. A. Bartlett Tree Expert Co., 325 NLRB 243, fn. 1
(1997). Similarly, neither Baldwin’s attendance at one or more super-
visor’s meetings, nor the fact that he was consulted by Wertz regarding
the staffing of Volair’s crews makes him a supervisor, SDI Operating
Partners, L.P., 321 NLRB 111 (1996).
8 Flowers Baking Co., Inc., 240 NLRB 870, 871 (1979); Washington
Nursing Home, Inc., 321 NLRB 366, 375 (1966); W. F. Bolin Co. v.
NLRB, 70 F.3d 863 (6th Cir. 1995).
9 I do not believe Joseph Tigue’s testimony that he was unaware of
Baldwin’s union activity or sympathy when he fired him.
In drawing this inference I am mindful of the fact that two
union members, Steve Tennet and Len Barber worked on the
Laird project from the spring of 1998 until they left voluntarily
at or near its completion in September 1998. There is no evi-
dence of any unfair labor practices against either employee or
any persuasive evidence of expressions of antiunion animus
towards them. However, I think this factor, which cuts against
a finding of discrimination, is outweighed by the factors dis-
cussed in the preceding paragraph.10
D. Louis Oliver’s Case
Louis Oliver was hired as a pipefitter by Volair in June 1998.
He was assigned to the Laird project where he worked with a
welder and a helper. He alleges that at the outset of his em-
ployment, Charles Wertz told him to stay away from Steve
Tennet and Lenny Barber because they “were trouble” and did
more talking than work.11 Wertz denies making this remark
and I credit Wertz’s testimony over that of Oliver on this issue.
There is no evidence that Tennet or Barber (who testified at the
hearing) were ever threatened with discipline by Volair. Both
men, who made their union sympathies known to Wertz, left
the job voluntarily when it was near or at completion.12
On or about July 23, Oliver asked Wertz for a $2 per hour
raise, from $16 per hour to $18. Wertz discussed this request
with Tigue, who granted Oliver a $1 per hour raise, even
though he was not due for any salary increase. A week later
Volair raised Oliver’s salary to $18 per hour. Oliver alleges
that Wertz initiated the discussion about a raise by asking him
what it would take to keep him from going Union. I credit
Wertz’ testimony denying this assertion. There is no evidence
indicating that Wertz had any reason to believe that Oliver was
considering joining the Union. Moreover, as it does not neces-
sarily follow that Oliver would leave the job if he joined the
Union, I credit Tigue’s testimony that the raises were granted to
simply to keep Oliver as an employee.
Oliver also testified that when discussing a raise with him,
Wertz said that he wanted Oliver to run the Laird job because
he was going to get rid of the union guys. One reason I credit
Wertz’ denial that this conversation occurred is that there is no
10 Par. 5 of the complaint in Case 4–CA–27028 alleges that in or
about mid-March 1998, Charles Wertz interrogated an employee con-
cerning the employee’s union membership, activities and sympathies at
the Laird project. From the formal papers, I infer that the allegation
pertains to Baldwin. This allegation is not addressed in the General
Counsel or Charging Party’s brief and I assume it has been abandoned.
In any event I see nothing in the record regarding an interrogation of
Baldwin by Wertz that would lead me to conclude that he restrained,
coerced or interfered with Baldwin’s Sec. 7 rights. I will therefore
dismiss this paragraph of the complaint.
11 On cross-examination, Oliver said that Wertz mentioned to him
that Tennet and Barber were union members. He did not say that on
direct examination.
12 In crediting Wertz’ testimony over Oliver’s, I have taken into con-
sideration the fact that Len Barber, a union member, observed Wertz
and Oliver argue a number of times and never heard them discuss or
mention the Union. Barber’s testimony at transcript p. 87, LL. 23–24
should read, “He [Oliver] did have a lot of conflict with a foreman
named Charles Wertz,” rather than “He did not have a lot of conflict . .
. .”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 682
indication that Volair made any attempt to get rid of Tennet and
Barber.
Louis Oliver contacted the Union in August and signed an
application for membership on August 13. He testified that on
August 10, Wertz said to him that I’ve heard you’re going Un-
ion. Wertz denied any knowledge of Oliver’s union sympathies
prior to laying him off on August 28. I credit his denial as there
is no evidence indicating how Wertz would have been aware of
Oliver’s interest in the Union.
The General Counsel also alleges that Wertz, on one occa-
sion, said to Oliver that he should have run over a union picket
who lay down in front of his car (apparently during the 2-day
picketing in April that followed Baldwin’s discharge). Further,
the General Counsel alleges that near the end of his employ-
ment, Wertz told Oliver that he was going to be a loser, like
other union members, on the unemployment line. Once more, I
credit Wertz’s denial of these allegations because there is insuf-
ficient direct or inferential evidence to conclude that Wertz
knew that Oliver was a union supporter.
On August 23, Volair ran a newspaper advertisement for
plumbers and pipefitters. Five days later, Charles Wertz laid
Oliver off. He gave Oliver no explanation for the layoff.
Oliver was the least senior pipefitter on the Laird project and he
was not replaced.13 With the service of the instant unfair labor
practice charge on September 3, Volair was notified of Oliver’s
union sympathies. Shortly thereafter, Joseph Tigue ap-
proached John Cabral, a welder with whom Oliver had on one
occasion argued. Tigue asked Cabral to sign a statement that
Oliver was a troublemaker. Cabral replied that he was busy
and never signed the document.
The first phase of the Laird job was completed on September
19. At this time several other employees at Laird either left
Volair’s employment or were transferred to other jobs. In No-
vember, Volair hired pipefitters to work on the second phase of
the project.14 Oliver was not recalled by Volair and did not
reapply for employment.
E. Analysis of Oliver’s Case
Paragraphs 5 and 7 of the complaint in Case 4–CA–27432
allege six independent 8(a)(1) violations. I dismiss these por-
tions of the complaint pursuant to my crediting Charles Wertz’
denials over the testimony of Louis Oliver, which underlies
these allegations.
Paragraph 6 of the complaint alleges that the August 28 lay-
off violated Section 8(a)(1) and (3). I dismiss this allegation
since I conclude that the General Counsel has not established
that Respondent knew of Louis Oliver’s union activities.
Moreover, there is nothing in the record that persuades me that
Volair did not decide to lay off Oliver, its most junior pipefitter,
because the first phase of the Laird project was winding down.
Volair’s failure to recall Oliver in November, strongly suggests
discrimination, particularly since Respondent in the past has
taken the initiative in recalling former employees. However,
the complaint does not allege that Volair violated the Act in

13 Volair does not have a formal seniority system.
14 This appears to be the first hiring done by Volair after laying off
Oliver.
failing to recall Oliver. It only alleges a violation with regard
to his layoff. 15
F. The Allegations Regarding Joseph Tigue’s Request
that John Cabral Sign a Document Stating that
Louis Oliver was a Troublemaker
The complaint, at paragraph 6, alleges that in mid-September
1998, Joseph Tigue, requested an employee to sign a document
stating that another employee who supported the Union was a
troublemaker.
The Board in Johnnie’s Poultry, 146 NLRB 770 (1964), es-
tablished safeguards designed to minimize the coercive impact
of an investigatory interview by an employer, while allowing
the employer to investigate facts concerning issues raised in a
complaint or unfair labor practice charge. It stated that the
employer:

Must communicate to the employee the purpose of the ques-
tioning, assure him that no reprisals will take place, and ob-
tain his participation on a voluntary basis; the questioning
must occur in a context free from employer hostility to un-
ion organization and must not be itself coercive in nature,
and the questions must not exceed the necessities of the le-
gitimate purpose by prying into other union matters, elicit-
ing information concerning an employee’s subjective state
of mind, or otherwise interfering with the statutory rights of
employees . . . .

Volair clearly did not satisfy the requirements of Johnnie’s
Poultry when asking John Cabral to sign a statement about
Louis Oliver, whose layoff was the subject of an unfair labor
practice charge filed against it a few days earlier. However, the
record does not indicate that Tigue mentioned the Union or
Oliver’s union sympathies to Cabral, or that Cabral was aware
of Oliver’s union activities or the unfair labor practice charge
filed on Oliver’s behalf. Given the lack of evidence in this
regard, I conclude that the General Counsel has not established
that Volair was interfering with, restraining, or coercing Cabral
with regard to rights afforded him in Section 7 of the Act. I
therefore dismiss paragraph 6 of the complaint.
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(1) and (3) in discharg-
ing Melvin Baldwin on April 7, 1998.
2. Respondent did not violate the Act as otherwise alleged in
the complaints.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
15 Respondent offered some shifting explanations for the Oliver lay-
off. In addition to relying of his lack of seniority, it contended that
other reasons for the layoff were his safety record and his inability to
get along with others. There is no documentation to support these
contentions and I reject them. While these contentions make Respon-
dent’s claim of nondiscrimination less convincing, Blue Note, 288
NLRB 16, 18 (1988), I do not find the pretextual nature of these expla-
nations sufficiently strong to infer knowledge, animus and discrimina-
tory discharge, as I did with respect to Baldwin.
VOLAIR CONTRACTORS, INC. 683
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged Melvin
Baldwin it must offer him reinstatement and make him whole
for any loss of earnings and other benefits, computed on a quar-
terly basis from date of discharge to date of proper offer of
reinstatement, less any net interim earnings, as prescribed in F.
W. Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended16
ORDER
The Respondent, Volair Contractors, Inc., Wilmington,
Delaware, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for supporting Plumbers and Pipefitters Local Union 74,
or any other union.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Melvin
Baldwin full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make Melvin Baldwin whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the deci-
sion.

16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge and notify
Melvin Baldwin in writing that this has been done and that the
discharge will not be used against him in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its fa-
cility in Wilmington, Delaware, copies of the attached notice
marked “Appendix.”17 Copies of the notice, on forms provided
by the Regional Director for Region 4, 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 notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since April 7, 1998.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
(g) IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.

17 If this Order is enforced by a Judgment of the United States Court
of Appeals, the words in the notice reading “Posted By Order of the
National Labor Relations Board” shall read “Posted Pursuant To a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”