Wireways, Inc.

National Labor Relations Board - Board Decisions

Oct 15, 1992

309 N.L.R.B. 245 (N.L.R.B. 1992)

245
309 NLRB No. 26
WIREWAYS, INC.
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefullly examined the
record and find no basis for reversing the findings.
In adopting the judge’s discrediting of portions of alleged
discriminatee McGlammary’s testimony, we do not rely on the
judge’s comment that McGlammary had an ‘‘ulterior motive’’ for
seeking a job with the Respondent ‘‘and this same motive was con-
trolling his testimony.’’ We note that the judge credited the testi-
mony of Project Manager Peacock, the other participant in the inter-
view McGlammary recounted, in other respects, and that the judge
also provided ample analysis of McGlammary’s demeanor and the
content of his testimony to support discrediting him.
2 We note that the incident giving rise to this violation did not
occur during the critical period.
Wireways, Inc. and International Brotherhood of
Electrical Workers, AFL–CIO, Local 637.
Cases 11–CA–14188 and 11–RC–5739
October 15, 1992
DECISION, ORDER, AND CERTIFICATION
OF RESULTS OF ELECTION
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On March 5, 1992, Administrative Law Judge Rob-
ert A. Gritta issued the attached decision. The General
Counsel filed exceptions and a supporting brief and the
Respondent filed an answering brief.
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 exceptions1 and briefs and has
decided to affirm the judge’s rulings, findings, and
conclusions only to the extent consistent with this De-
cision and Order.
The judge found, and we affirm, that the Respondent
did not threaten its employees that it would close its
business if they selected the International Brotherhood
of Electrical Workers, Local 637, as their collective-
bargaining representative. With respect to the allega-
tion that the Respondent, by its foreman, McCarty,
also violated Section 8(a)(1) by statements made to
employee Smith indicating that Smith would be dis-
charged if the Union did not win the election and that
only union stewards would receive raises if the Union
did win, the judge found that these statements ‘‘could
constitute violations of the Act.’’ He did not, however,
order a remedy because, in his view, the incident was
noncoercive, having occurred at a nonworksite between
a low-level foreman and a known employee union or-
ganizer. We find that the threat to discharge and of fu-
tility in selecting the Union as the collective-bargain-
ing representative are by their very nature coercive
even under the circumstances present here and, there-
fore, violate Section 8(a)(1) of the Act. We also find,
however, that the comments were isolated and re-
stricted to one individual, with no evidence of dissemi-
nation. For these reasons, we agree that McCarty’s
comments do not warrant setting aside the election.
Although the judge found that Supervisor Taylor
violated Section 8(a)(1) when he denied employee
Divers the right to distribute union literature during
breaktime, he also found that this violation was effec-
tively repudiated several days later when Taylor told
his employees that they were free to distribute lit-
erature during breaktimes and was further repudiated a
month later when the Respondent posted its rules re-
garding distribution of literature in the plant. Based on
his finding that the violation was effectively cured, the
judge found that no remedial order was required.
The General Counsel excepts, contending that be-
cause Taylor did not mention anything about union lit-
erature or union activities in this discussion, his al-
leged repudiation did not conform to the standards ad-
vanced in Passavant Memorial Area Hospital, 237
NLRB 138 (1978). We find merit in the General
Counsel’s exceptions.
As relevant to the facts of this case, a repudiation,
to be effective, must be ‘‘timely,’’ ‘‘unambiguous,’’
‘‘specific in nature to the coercive conduct,’’ and
‘‘free from other proscribed illegal conduct.’’ Id. at
138. The repudiation must also give assurances to em-
ployees that in the future their employer will not inter-
fere with the exercise of their Section 7 rights. Ibid.
Even assuming, arguendo, that the other conditions
have been met, we find that because neither Taylor, in
his discussions with the employees, nor the employee
notice made specific reference to the distribution of
union literature, the alleged repudiation was ambiguous
and, therefore, ineffective. We shall, accordingly, issue
a cease-and-desist order and require the posting of a
notice to remedy the 8(a)(1) violation.2
246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Wright Line, 251 NLRB 1083 (1980), affd. NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983).
4 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.’’ 1 All dates are in 1990 unless otherwise indicated.
Finally, although we agree with the judge’s finding
that the Respondent did not violate Section 8(a)(3) by
refusing to hire several named electricians because of
their union affiliation, we disagree with his finding that
the General Counsel did not establish union animus.
We find that animus is established through Taylor’s
prohibition against distributing union literature during
an employee’s breaktime and through Foreman
McCarty’s isolated threat of discharge uttered to em-
ployee Smith at the New Year’s Eve party. We find,
however, that notwithstanding any prima facie case,
the case was rebutted when the Respondent dem-
onstrated that the applicants were not hired because
they all had sought, or had previously earned, wages
that clearly exceeded the budgeted wages the Respond-
ent was offering.3
ORDER
The National Labor Relations Board orders that the
Respondent, Wireways, Inc., Panama City, Florida, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with discharge for en-
gaging in union or protected concerted activities.
(b) Informing its employees that their union organi-
zational efforts were futile.
(c) Promulgating a no-distribution rule that prohibits
its employees from distributing union literature during
nonworking time.
(d) 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 Covington, Virginia, copies
of the attached notice marked ‘‘Appendix.’’4 Copies of
the notice, on forms to be provided by the Regional
Director for Region 11, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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 al-
tered, 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.
CERTIFICATION OF RESULTS OF ELECTION
It is certified that a majority of the valid ballots
have not been cast for the International Brotherhood of
Electrical Workers, AFL–CIO, Local 637 and that it is
not the exclusive representative of these bargaining
unit employees.
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 threaten our employees with dis-
charge for engaging in union and/or protected con-
certed activities.
WE WILL NOT threaten our employees that their
union organizational efforts are futile.
WE WILL NOT promulgate a no-distribution rule that
prohibits our employees from distributing union lit-
erature during nonworktime.
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.
WIREWAYS, INC.
DECISION
STATEMENT OF THE CASE
ROBERT A. GRITTA, Administrative Law Judge. This case
was tried before me on May 9 and 10, 1991, in Covington,
Virginia, based on a charge filed by International Brother-
hood of Electrical Workers, AFL–CIO, Local 637 (the
Union) on December 13, 1990, and a complaint issued by the
Regional Director for Region 11 of the National Labor Rela-
tions Board on January 31, 1991.1
The complaint alleged that Wireways, Inc. (Respondent)
violated Section 8(a)(1) and (3) of the Act by threatening
employees with reprisals for engaging in protected activities,
promulgating a no-distribution rule prohibiting distribution of
union literature during nonworktime, and refusing to hire em-
ployee applicants because they engaged in protected activi-
ties. In addition objections to the election held February 1,
1991, were filed by the Union and challenges to the voting
eligibility of 13 individuals were made by the Board agent
and the Union. The objections mirror several of the 8(a)(1)
complaint allegations and the challenges involve unit place-
ment of individuals based on employment classification or
employee status to be determined by the complaint allegation
of refusal to hire. The Regional Director’s Report on Objec-
tions and Challenges resolved two of the challenges which
were subsequently opened and counted. A revised tally of
247WIREWAYS, INC.
2 Although the work history resume of Alfred Long was received
into the record as an addendum to Long’s employment application,
GCX–8, it was not contained in the original exhibits.
3 Uncontroverted and credible testimony of several witnesses.
ballots issued April 5, 1991, showing 17 no votes and 4 yes
votes. The remaining 11 challenges are not determinative and
therefore need not be resolved. The objections are consoli-
dated with the unfair labor practice case for determination.
Respondent’s timely answer denied the commission of any
unfair labor practices.
All parties hereto were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to introduce
evidence, and to argue orally. Briefs were submitted by the
General Counsel and Respondent on June 28, 1991. Both
briefs were duly considered.
On the entire record2 in this case and from my observation
of the witnesses and their demeanor on the witness stand,
and on substantive, reliable evidence considered along with
the consistency and inherent probability of testimony, I make
the following
FINDINGS OF FACT
I. JURISDICTION AND STATUS OF LABOR
Organization—Preliminary Conclusions of Law
The complaint alleges, Respondent admits, and I find that
Wireways, Inc. is a Florida corporation engaged in construc-
tion and electrical contracting work in Covington, Virginia,
from its central office in Panama City, Florida. Jurisdiction
is not in issue. Wireways, Inc., in the past 12 months, in the
course and conduct of its business operations, purchased and
received goods and materials at its Covington, Virginia job-
site valued in excess of $50,000 directly from points located
outside the State of Virginia, and provided services valued
in excess of $50,000 directly to enterprises in States other
than the State of Virginia.
I conclude and find that Wireways, Inc. is an employer en-
gaged in commerce and in operations affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
The complaint alleges, Respondent admits, and I conclude
and find the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ISSUES
1. Whether Respondent threatened:
(a) To close the plant if the Union were selected to rep-
resent its employees.
(b) To discharge employees for engaging in union activity.
(c) Employees with statements that union organizing ef-
forts were futile.
2. Whether Respondent promulgated a no-distribution rule
prohibiting employees from distributing union literature on
nonworktime.
3. Whether Respondent discriminatorily refused to hire ap-
plicants for employment.
III. OVERVIEW3
Wireways, Inc. was formed in 1973 as an industrial con-
tractor in the wood products industry specializing as an elec-
trical instruments engineering contractor. Its main customers
are papermills, sawmills, plywood plants, and particle board
plants within the southeastern United States. Wireways is a
small company headquartered in Panama City, Florida, and
as a rule subcontracts its work through bids. Its bids are usu-
ally on the lower end of the price scale.
The instant jobsite is the Westvaco Papermill in Coving-
ton, Virginia, and is considered a large project. There are
35–40 contractors constructing a large recovery boiler to
generate steam for the manufacturing process. One of the
principal contractors is Goterverken Boiler Systems, Incor-
porated. Wireways is a subcontractor to Goterverken and is
charged with the installation of the electrical systems, instru-
mentation systems, and startup support. The usual hierarchy
at larger jobsites is: project manager, superintendents, general
foreman, foremen, craftsmen, helpers, and laborers.
Wireways is a nonunion contractor and competed with M
& J Electric, a union contractor, for the subject work at the
Covington, Virginia papermill. The project was scheduled to
begin in October 1990 and be completed in August 1991.
IV. UNFAIR LABOR PRACTICES
8(a)(1)—Threats and Rule Promulgation
Several alleged threats and a no-distribution rule resulted
from a confrontation between Field Superintendent Taylor
and journeymen electricians Divers and Long.
Additional threats resulted from a conversation at a sea-
sonal party in a private home.
Divers testifed that he was hired November 5, 1990, after
being interviewed by Taylor. During the first week of De-
cember, Divers began passing out union literature on the job,
as instructed by McGlammary, financial secretary of Local
Union 637. The crews usually took their breaktime in the vi-
cinity of their work stations on the boiler. Divers usually
used his 15-minute breaktime at 9 a.m. for distribution of the
union literature although on the day in question he passed
out literature again at 10 a.m. Several minutes after his 10
a.m. distribution, Divers’ foreman told him to report to Tay-
lor at the company trailer. When Divers entered the trailer,
Taylor was reading a piece of the union literature that had
been distributed. Taylor told Divers he could not distribute
union literature at breaktime, but he could distribute literature
before work, at lunchtime, and after work. Divers informed
Taylor that the law did allow employees to distribute union
literature on breaktime. Taylor said because the Company
paid for the breaktime, distribution of anything was prohib-
ited and employees could be terminated. Divers testified that
Taylor also said that Wireways would never go union and if
the Union won the Company would close its doors.
Taylor denied making any statements that Wireways
would never go Union or if the union won the Company
would close its doors. Taylor did admit that he told Divers
on Wednesday of the first week in December 1990 that dis-
tribution of union literature was not allowed during
breaktime and adds that he admonished Divers for taking ex-
cessive time on breaks and leaving his work station atop the
boiler. Taylor stated that Divers’ foreman, McCarty, had re-
ported that Divers was in the MCC room work station at the
bottom of the boiler at 9:20 a.m. distributing union literature.
Work stations on the boiler are separated by a boiler height
of 17–18 stories and Taylor said it would take Divers 15
minutes to get back to his work station atop the boiler. Tay-
248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lor explained that although each foreman did not time each
employee’s break it was easily policed because each crew
foreman shut down his station crew at 9 a.m. and 3 p.m. for
the 15-minute breaktime. Divers continued passing out union
literature during his breaktime, and according to Taylor, con-
tinued to extend his 15-minute breaktime periods. Divers de-
nied that Taylor mentioned the length of his breaks during
the conversation in the trailer but admitted that he heard Tay-
lor had told Foreman McCarty that several of his men were
taking excessive time on breaks. Divers recalled also that
Taylor said the men whose work station was atop the boiler
should stay on top for break and those men whose work sta-
tion was on the bottom of the boiler should stay at the bot-
tom for break.
Taylor testified that on Friday of the same week he had
second thoughts about what he told Divers about no distribu-
tion during breaktime and counseled with Project Manager
Peacock. Peacock told Taylor the employees could do what
they wanted to do during breaktime within the 15-minute
limit. The following Monday, during the scheduled safety
meeting of all employees, Taylor told the employees that
they could indeed engage in any activities during breaktimes,
lunchtime, and before and after work. Although Taylor did
not single out Divers, he was present at the meeting. Shortly
thereafter Taylor again admonished Divers for extending his
15-minute breaktime to 30–45 minutes. Taylor told Divers it
was fine to do whatever he wanted to during break but, it
had to be done within the allowable 15-minute period. Al-
though Taylor has the authority to write up employees for
rule infractions, he verbally warns employees four or five
times before taking any definitive action. At some subse-
quent point in time, during December 1990, Taylor fired
Divers for poor work quality and excessive unexcused ab-
sences. Several days later, Divers pleaded with Taylor to be
rehired stating that he would show for work everyday. Taylor
relented and rehired Divers. Divers worked for a short while
then quit the last week in December 1990. Several weeks
later, Taylor and Peacock discussed posting a notice to em-
ployees explaining that solicitations among employees are al-
lowed during breaks, lunch periods, and other nonworking
time. The notice also prohibited distribution of literature in
working areas although allowing distribution in nonwork
areas. The notice was posted in mid-January 1991. At the
same time another notice to employees was posted stating
that Wireways does not intend to close its business, whether
the electricians’ Union is voted in.
Alfred Long testified that on Saturday, December 29,
1990, Taylor called him to the office trailer and told him that
a charge was filed against the Company claiming unfair labor
practices. Taylor told Long that anyone involved in the suit
or connected with it in any way would be terminated when
the suit was settled. Long did not say anything in response
to Taylor and Taylor added that he would make the same
speech to all employees the next day. Long stated that to his
knowledge Taylor did not make the statement to any other
employees and Long did not report the incident to Peacock.
Long, with the aid of McGlammary, was attempting to orga-
nize the Wireways’ job. Long quit his employment imme-
diately after the union election.
Taylor admitted that Long and Divers talked to him about
the Union, but he denies that he ever told any employees
about the unfair labor practice charge or that he threatened
to terminate any employee involved in or connected with the
charge. Taylor states that he discussed the charge with Pea-
cock who told him not to worry about it because the Com-
pany would hire an expert to handle it. Long on one occa-
sion asked Taylor if he had anything against the Union. Tay-
lor said he did not and told Long he respected his right to
do what he thought was right. Long during the conversation
told Taylor that he would like to see a Union come in. Tay-
lor stated that the company policy was not to engage em-
ployees in union discussions as part of any election cam-
paign. The Company chose to post literature about unions for
the employees to read. Taylor recalled that many employees
were passing around union literature on the job and many
employees put union stickers on their work hats and
lunchboxes.
Wilbert Smith testified that he was the first electrician
hired by Wireways for the project. He was interviewed and
hired by Peacock on October 26, 1990. Kyle McCarty was
later hired as an electrician and a month later was promoted
to foreman. On Monday, December 31, 1990, Smith attended
a New Year’s Eve party at the home of a friend, Mike Bing.
Several electricians including Kyle McCarty attended the
party. During the party Smith and McCarty moved their beer
drinking to the back porch. While on the porch the two
talked about the upcoming election. Smith recalled that
McCarty said if the vote did not go for the Union that the
Company would fire Smith. McCarty also said that if the
vote did go for the Union there would be no raises in pay
except for the shop stewards. Smith told McCarty that he
was aware the Company would try to fire him because of his
activity. The conversation ended and both returned to the
party. Smith did not report the incident to Peacock. Smith
continued to talk to employees on the jobsite about the
Union at lunchtime and McCarty was usually in the group.
Smith had, before applying for the job at Wireways, dis-
cussed organizing the jobsite with Union Representative
McGlammary. Smith voluntarily quit Wireways following the
election February 1, 1991.
Analysis
It is undisputed that Divers distributed union literature dur-
ing worktime, particularly on December 5, 1990, and that
Taylor told Divers he could not distribute union literature
during breaktime. Although Divers denies that Taylor ever
spoke to him about taking excessive breaktime, the record as
a whole supports Taylor’s version of the entire conversation
on December 5, relative to the time of distribution of union
literature. Divers knew that Taylor had knowledge of exces-
sive breaks because he was admittedly aware that Taylor in-
structed McCarty to police the breaktime because several
employees were extending breaks. Divers’ later recall of
Taylor’s specific proscription, ‘‘those up stay up and those
down stay down,’’ was precipitated by the very conduct Div-
ers admittedly engaged in and to which Taylor credibly testi-
fied. It’s most reasonable to assume if Taylor admonished
Divers about distribution of union literature during breaktime
he certainly admonished him about distribution of the same
union literature during worktime. Taylor testified without
contradiction that 2 days after the incident he told all em-
ployees in a safety meeting that distribution of literature dur-
ing breaktime was allowed. Although Divers denies his pres-
ence in the meeting, there is no evidence that employees’ ac-
249WIREWAYS, INC.
tivity, particularly Divers’, was in any way stifled by Tay-
lor’s erroneous appraisal of breaktime activities. Further, the
Respondent unquestionably posted a notice to all employees
repudiating Taylor’s previous oral denial of distribution of
union literature during the employees’ breaktime.
I do not credit Divers’ denial that Taylor disciplined him
for taking too long on breaks during the December 5 con-
versation. Divers was not impressive as a witness with his
terse testimony and guarded responses. His testimony was
more contrived than real. With regard to Divers’ testimony
of statements by Taylor, in the December 5 conversation,
that Wireways would never go Union or, would probably
close its doors if the Union won the election, it seems incon-
gruous with the admitted context of the moment. Divers ap-
peared to add the statements as an afterthought, with an ori-
gin in rumor, rather than any substance of truthful recall. In
my view Taylor genuinely attempted to recall all the facts
and Divers did not. I, therefore, discredit Divers’ testimony
of the violative statements attributed to Taylor and credit
Taylor’s denials.
Taylor’s admission that he denied Divers’ right to distrib-
ute union literature during breaktime constitutes conduct
which is violative of Section 8(a)(1) of the Act, notwith-
standing the lack of evidence in the record to evince commu-
nication to other employees. However, Taylor’s retraction
several days later, communicated to all employees, effec-
tively repudiated the restriction on employees’ Section 7
rights including the threat to discharge Divers which Taylor
was not asked to respond to. Additionally, the management
later posted a notice for all employees enforcing the retrac-
tion communication by Taylor. Based on the record evidence
as a whole, I conclude and find that Taylor’s promulgation
of a violative no-distibution rule on December 5 was effec-
tively corrrected and, therefore, does not constitute a viola-
tion requiring a remedy. Further, the incident as evidenced
in the record is one of isolation which the Board frequently
finds does not require any remedial action.
Long’s version of the December 29 conversation with
Taylor was a bare account of statements that would substan-
tiate the allegations of the complaint and appeared too ex-
treme to be credible. Although Long attributed to Taylor an
intent to tell all employees that anyone connected with the
unfair labor practice charge would be terminated, Long ad-
mittedly had no knowledge of such nor did the General
Counsel offer any evidence of communication to other em-
ployees.
In contrast Taylor admittedly spoke with Long and Divers
about union organization while both were attempting to orga-
nize the employees. Taylor stated that Long and Divers initi-
ated union conversations with him in which both stated they
were desirous of the Union coming in. Respondent’s undis-
puted election campaign policy was to post literature about
unions for all employees to read and to refrain from engag-
ing employees in any union discussion. The record as a
whole clearly shows that Respondent followed its policy of
nonintervention.
Taylor’s entire testimony was given in a forthright and di-
rect manner even including certain matters unfavorable to
Respondent, and the General Counsel offered no rebuttal.
Taylor was a trustworthy witness who endeavored to relate
the facts as they occurred. I credit his testimony entirely. On
the other hand, Long’s testimony inspired doubts as to his
reliability and leads me to discredit his testimony of con-
versations with Taylor and to credit Taylor’s denials.
Smith’s version of his conversations with McCarty at the
beer drinking party was a less than complete account of what
transpired. Whether Smith’s recollections were faulty due to
the nature of the party or he testified to his interpretations
of the event rather than accurately reporting all that occurred,
I cannot determine. What I can determine is that a one-sided
recall of certain facially coercive statements eliminates a con-
text to permit fair evaluation. The unfortunate demise of the
declarant (McCarty) just prior to trial only serves to increase
the difficulty associated with credibility resolutions.
Uncontroverted testimony is not automatically deemed credi-
ble and I cannot, based on demeanor or reasonableness, find
that Smith is anything but a credible witness. However, I
cannot find that the alleged statements of reprisal are based
solely on the organizational efforts of Smith and other known
prounion employees. Although I believe the remarks to be
borderline statements in a context most favorable to the Gen-
eral Counsel, I must conclude and find that the statements
attributable to McCarty are true and could constitute viola-
tions of the Act. I shall not, however, order a remedy be-
cause in my view the incident is noncoercive, having oc-
curred at a nonworksite and limited to a beer influenced col-
loquy between a low-level foreman and a known employee
union organizer. Further, in the absence of any evidence to
show communication of the alleged statements to other em-
ployees by either of the principals, I conclude that the inci-
dent is isolated and does not require a remedy.
Section 8(a)(3)—Refusal to Hire
Robert Peacock testified he is project manager for
Wireways at the Westvaco jobsite. He has 25 years’ experi-
ence in Industrial Trades and has worked for Wireways since
1973. As project manager he supervises personnel, manages
the office, buys materials, and hires electricians, instrument
fitters, pipefitters, welders, helpers, and laborers. This project
was his first in the Virginia area and began in October 1990
with a projected completion date of August 1991. Wireways
does not require any particular training or educational stand-
ards for prospective employees. As a general rule for jour-
neyman electrician, the Company wants a work history of
electrical experience with 4 or 5 years’ experience in an in-
dustrial trade environment. The Company does give pref-
erence in hiring to prior Wireways’ employees. Although the
qualifications differ among electricians, instrument fitters,
and pipefitters, there is no formal hiring procedure for any
craft. Wireways does not however hire any employee who is
employed full time elsewhere.
Peacock has X number of dollars and Y number of
manhours budgeted for a project, and he tries to hire quali-
fied employees with experience fit for the project and within
his budget. He does not screen applicants for union member-
ship nor is he familiar with the union/nonunion status of con-
tractors in the Virginia area, excepting M & J Electric, a
contractor on the Westvaco jobsite engaged in similar elec-
trical work.
At Westvaco, Peacock got quite a number of applications
from the usual sources, walk-ins, and solicited the Virginia
Employment Commission to help screen applicants for jour-
neyman and helper classifications with journeyman wages of
$11 per hour. Wireways’ wages are less than most nonunion
250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
contractors and less than all union contractors. VEC for-
warded the applications to Peacock. He received a total of
330–350 applications including 100–120 for journeyman
electricians. Peacock’s total complement for the project was
120 employees with between 22–26 journeyman electricians
and instrument fitters needed. With the abundance of applica-
tions, Peacock culled out those with experience on boiler
projects or work histories to fit the project and those whose
desired wages or wage histories fell within his budget limits.
If applicants did not list a desired wage or listed ‘‘open’’ or
‘‘negotiable,’’ Peacock looked at past wages in the appli-
cants’ work histories. In Peacock’s experience if he offered
an employee a job at less wages than the employee was ac-
customed to receiving, the employee would either be less
productive or would leave for the first job paying more. He,
therefore, as a rule, does not call skilled applicants who list
higher desired wages and offer them work at lesser wages.
If the difference in wages desired and Peacock’s scale is
around a $1, he compares the desired wages with the past
wages in work history to determine an employee’s probable
acceptance of his lower wage offer. Peacock found that by
making such wage determinations he could spend less time
on hiring procedures and more time on his project duties.
Usually Peacock does not hire craft employees on the spot,
because applications precede the need for craft positions. In
the case of helpers and laborers, many are hired on the spot
because of the lack of need for skills and without regard to
the wage determination he makes for the crafts. As the
project started, Peacock needed laborer and material handler
classifications to set up supply and support facilities for the
later arrival of the crafts.
From October 1990 to January 1991, Peacock did all the
interviewing of applicants with Taylor filling in on occasion
when Peacock was out of town. When interviewing craft ap-
plicants, Peacock expanded on their work history by inquir-
ing into the types of work they performed, where they had
worked, whether the work was full time, and whether em-
ployees were safety conscious. He also assessed the appli-
cant’s individual communication skills, their appearance, and
the application forms for neatness and thoroughness. Many
of the craft applications were made at a time prior to actual
need so few applicants were interviewed at the time of filing.
Several early applicants were later interviewed and some-
times hired when they either called back or in person
checked on the status of their applications. Peacock relies on
an individual’s tenacity to show that he wants to work.
During the course of hiring, Peacock had to make several
adjustments in wage offers due to the lack of qualified appli-
cants. The instrument fitter is a specialized journeyman elec-
trician and must have instrument experience. In order to hire
the number of instrument fitters needed, Peacock had to be
more competitive in wages and finally offered $12 per hour
with a $2-per-hour per diem to help employees stay on the
job full time. The welder classification presented a more
unique problem. Peacock began hiring welders based on
work experience at $11 per hour. All welders were sent, at
company expense, to a trade school for certification in the
various welding skills. It developed that Peacock was paying
the welders $11 per hour to fail the certification test and thus
forfeit any further employment. He settled on a $4-per-hour
wage for new hired welders and on certification paid them
the regular rate commensurate with their certified skills.
Some welders were certified to weld for the pipefitters and
others were certified to weld for the electricians. Over time
Peacock was able to outfit the crews with qualified welders.
Peacock stated that all the alleged discriminatees with the
exception of Been were qualified electricians and had accept-
able experience. He testified that the interviews with
Redman, Gill, and Been lasted 5–6 minutes following their
filing of the applications. Peacock did not ask any questions
of their union membership, and none of the three stated that
he would work for less than $11 per hour. Neither did any
of them check back later with Peacock. Peacock said he
would not hire Been because his desired wage was not com-
mensurate with the work experience shown and because the
wages shown were outside the budget. Peacock never got a
message from Gill seeking an interview following his appli-
cation.
Been testified that when he, Redman, and Gill got the ap-
plication on October 26, 1990, from Peacock they filled them
out. Been asked Peacock if he was hiring then. Peacock said,
‘‘not now’’ but I may contact you later. Peacock also told
them to call back if they were not contacted by the Com-
pany. Nothing was said about wages. Been did go back in
person wearing an IBEW shirt and cap to check if his de-
sired wage of $14.25 was too high. Peacock told Been that
the Company was getting ready to hire and Been said he
would work for $8 per hour. Peacock said, ‘‘Okay,’’ and
asked Been if he could do the work. Been replied that he fig-
ured he could do the work, and Peacock then asked Been if
he was in the Union. Been stated that all the past employers
listed on his application were union contractors, but Peacock
did not ask if the employers were Union nor did Been tell
Peacock they were Union. Following this conversation, Been
had no further contact with the Company. Been further testi-
fied that his work history listed on his application as elec-
trician was erroneous. His actual work history was only that
of an apprentice with pay of $9 per hour.
Redman testified that he made application for Wireways
with Been and Gill in a group. Redman was wearing work
clothes and Been wore an IBEW shirt and cap. The group
was in the trailer about 30 minutes during which time Pea-
cock outlined the different parts of the job and how long the
job would last. Peacock said the wages would be $11 or $12
and commented on Redman’s penmanship, asking if he had
taken any mechanical drawing classes. Peacock did not ask
any questions about union membership nor did he comment
on wages desired by any of the three. Redman did not have
any further contact with Peacock or the VEC.
Gill, the last of the trio, testified that Peacock gave all
three an application which they filled out. Peacock looked at
the completed applications and said he would give them a
call for an interview the following week. Peacock said he
had hired five employees and was in the process of setting
up material and equipment. The entire conversation between
Peacock and the three lasted 15 minutes, and Peacock did
not ask any questions about the Union. The following week
Gill phoned Peacock, but he was out on the jobsite and un-
available. Several weeks later Gill returned to the Wireways’
trailer to talk to Peacock. He instead spoke with Mark, the
safetyman, because Peacock was in Florida. Gill asked Mark
to tell Peacock that he would like an interview. Gill had no
further contact with Wireways.
251WIREWAYS, INC.
Peacock recalled that McGlammary’s application conversa-
tion was short. During the conversation, Peacock did not ask
any questions about union membership nor did he make any
statement that 5–10’s can make up the difference for a low
hourly wage. Peacock denied that McGlammary said he
would work for $11 per hour and any statements about Local
Union 637 members being supplied to the jobsite by Busi-
ness Manager Johnson.
McGlammary testified that he applied for an electrician’s
position at Wireways through the VEC on October 18, 1990.
The VEC informed McGlammary that the starting wage was
$11 per hour. He checked back with the VEC on October
25, because he heard electricians were being hired and the
VEC scheduled an interview for McGlammary at Wireways
with Peacock. After discussing applying for work at
Wireways with Business Representative Johnson,
McGlammary on November 1, 1990, went to the Wireways’
office trailer for the scheduled interview. He wore his IBEW
shirt with the union insignia emblazoned on the front. Pea-
cock gave him an application which he filled out and re-
turned. Peacock reviewed the application and said, ‘‘[I]t
looks like you’ve done a little of everything.’’ McGlammary
told Peacock he had worked 5 years on past projects for
Westvaco. Peacock asked McGlammary if he was Union and
stated that Wireways was nonunion. Peacock told
McGlammary that his past wages were more money than
Wireways could offer but 5–10’s would make up the dif-
ference. McGlammary then ended the interview by telling
Peacock that Local Union 637 had several qualified elec-
tricians and Peacock could call Johnson if he needed men.
McGlammary never heard from or talked to Wireways again.
McGlammary’s purpose in applying for work at Wireways
was to organize the Company’s employees. Although the de-
tails of his salary and expenses while working at Wireways
was as yet undefined, he had worked at another nonunion
company, Southern Air, intending to organize its employees.
His hourly wage at Southern Air was $9.50 per hour, and he
was paid his union salary and expenses while employed
there. His organizational efforts were fruitless so he quit after
2 weeks’ work. Although Southern Air was McGlammary’s
last contractor employer he did not list it on his application
to Wireways.
McGlammary began his union organizing campaign at
Wireways in October 1990 by talking to prospective employ-
ees and some employees already hired. Among the working
employees he talked to about union organizing were Wilbert
Smith, the first electrician hired by Wireways (10/26/90) and
Michael Divers hired as an electrician later (11/5/90).
McGlammary also spoke to each discriminatee, Gill,
Redman, Been, Bourne, Taylor, and Thompson, before he
applied for work at Wireways. He recalled telling Bourne to
wear his Local Union 637 jacket when applying to
Wireways. McGlammary discussed the Wireways’ organizing
campaign with the six union members and was to monitor
their efforts if they were hired.
The work applications in the record show that each
discriminatee listed at least one union contractor in his work
history with wages of $14.56 per hour or more. Of the de-
sired wages sought only two showed less than $14.25 per
hour. Bourne listed wages desired as ‘‘open’’ and Thompson
listed ‘‘nego.’’ In addition to the listing of union contractors
in their work history, Redman, Bourne, and Taylor showed
Local Union 637 apprenticeship and/or affiliation. Taylor did
not list any electrical journeyman history, but he did list
welding. Been listed electrical experience as well as welding
and operator skills. McGlammary listed current employment
as financial secretary and assistant business manager of
Local Union 637 with wages of $14.56 per hour.
The General Counsel subpoenaed the 300 plus applications
Wireways received for the Westvaco project. In addition to
the applications of the discriminatees and several employees
hired by Wireways, the General Counsel put 34 applications
of hired employees into the record (GCX–13). Although not
definitive of all employees hired by Wireways the applica-
tions show the following hiring:
October 1990 - 1 electrician helper
November - 1 laborer, 1 material runner, 1 material
supply, 2 electrician helpers.
December - no hires
January 1991 - 1 fire watch, 1 helper, 1 electrician,
1 electrician laborer, 3 electrician helpers, 1 welder
February - 1 electrician helper, 1 electrician, 1 instru-
ment fitter, 1 pipe foreman
March - 1 pipefitter welder, 1 welder helper, 2 welders,
1 helper, 4 instrument fitters, 1 electrician helper,
1 electrician
April - 1 pipefitter, 2 instrument fitters, 1 instrument
helper
The separate application exhibits show:
October 1990 - 1 electrician
November - 1 electrician, 2 electrician helper
December - 0
January 1991 - 1 electrician
February - 1 pipewelder, 1 pipefitter leadman,
1 electrical foreman, 1 electrical helper
April - 1 instrument fitter leadman
With regard to wages desired by applicants for all crafts
relative to the starting wage when hired, the 42 exhibits
show:
Nonelectrician - 1 received more, 2 received less,
4 desired wages were not specified.
Electricians - 5 received same, 4 received more,
15 received less, 4 desired wages were not
specified. Of the 4 receiving more 2 were instrument
fitters and 2 were helpers.
Helpers or Welder - 6 received less, 1 received same
Analysis
The General Counsel theorizes that Respondent systemati-
cally excluded from employment all applicants who were
members of Local Union 637 or who worked in the past for
union contractors with emphasis on M & J Electrical con-
tractor.
The General Counsel must prove by a preponderance of
the record evidence that Respondent in its failure to hire the
alleged discriminatees was motivated by their union activity
subject to the causation test of Wright Line, 251 NLRB 1083
(1980). Union activity includes affiliation, active or inactive
union membership, and past employment with union contrac-
tors. His evidence must show that the alleged discriminatees
252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
made applications for positions, that Respondent refused to
hire such applicants, that Respondent knew the applicants
were union members or suspected they were union members,
and that Respondent harbored animus against union members
or sympathizers and refused to hire the alleged
discriminatees because of its animus.
Respondent admits it is a nonunion contractor and prefers
to work nonunion, which is its right presuming it does not
discriminate in its hiring practices. Respondent also admitted
that with the exception of discriminatee Been, the subject ap-
plicants were qualified to work as an electrician among the
20 plus positions offered. Wireways did hire electricians both
before and after the alleged discriminatees applied for work.
The evidence shows that each alleged discriminatee filed
an application for employment with Respondent for positions
to be available when the project actually got under way.
However, two of the applications are less than substantial as
support for the General Counsel’s complaint. David Thomp-
son’s application was unsigned and undated which under
usual business practices would remove him from any consid-
eration for employment, more particularly where as here the
Respondent had a wealth of applications for a limited num-
ber of positions. Charles Been although applying for a jour-
neyman electrician’s position and in support of his applica-
tion listing his former positions as electrician with journey-
man’s pay testified that he was an apprentice electrician still
in training and with past wages at M & J Electric of $9 per
hour rather than $14.56 per hour as listed on his application.
The General Counsel apparently did not consider Been’s rev-
elation material to the complaint allegation, but I do. Where
the General Counsel relies on circumstantial evidence to in-
ferentially support the complaint theory and allegations of
discrimination, his evidence should not only be probative but
able to withstand minimum scrutiny. This, Been’s evidence
does not do. The conflict between the objective evidence and
Been’s admissions in his testimony renders his inclusion
among the discriminatees in the complaint untenable. In view
of the above, I shall dismiss all allegations related to Charles
Been and David Thompson with regard to Respondent’s fail-
ure to hire. Although Thomas H. Taylor’s application was
sorely deficient in work history, particularly because he ap-
plied as a welder or electrician, it does satisfy the bare essen-
tials of making application for work. However any applicant
that did not complete the work history section of the applica-
tion as did Taylor or failed to sign the application as did
David Thompson, had little chance of being considered for
employment within Peacock’s hiring procedures due to the
lack of information and the large number of applications re-
ceived.
Admittedly Wireways did not hire any of the alleged
discriminatees. Of the 100 to 120 employees Wireways did
hire for the Westvaco project, the General Counsel offered
34 applications and Respondent offered 8 applications into
the record. The 9 applications among the 34 offered by the
General Counsel and 5 of the 8 offered by Respondent listed
1 or more of 10 union contractors (evidenced in the record)
in their work history. There is no evidence in the record that
any employee or applicant told Peacock that a contractor list-
ed in the work histories were Union or nonunion nor did
Peacock make any inquiries about the listed contractors. Al-
though Peacock admitted that he knew sometime after the
project started that M & J was working union at the
Westvaco project there is no evidence to show whether M
& J was using union members pursuant to a jobsite agree-
ment as some contractors do on certain projects or was an
organized union contractor. Moreover, no evidence exists to
show M & J’s union or nonunion status in the State of
Michigan as listed by three of the alleged discriminatees. The
applications evidence further shows that two of the eight of-
fered by Respondent were given preference in hiring as help-
ers because they had worked for Wireways in the past.
The General Counsel’s contention that the applications in
the record evince the transparency of Respondent’s budgetary
defense, and more disproves it, is not supported by the
record evidence. The evidence shows that Respondent did
hire employees within its budget wages except for the
uncontroverted circumstances of the welders and instrument
fitters. With regard to Peacock’s opinion and hiring rule of
not offering less wages to an applicant that expresses a desire
for higher wages because an employee wanting more than he
gets would likely produce less and would leave for a job
paying more, over and above the obvious common sense ap-
plication of human nature, the record does disclose that on
several occasions that very result occurred. Divers quit with-
out explanation notwithstanding he had been rehired by Tay-
lor following a discharge for excessive absences, Long and
Smith both quit within hours after the union election,
Thompson left the hospital job at $11 per hour after only a
few weeks for another job paying $14.50 per hour, and
McGlammary only worked 2 weeks at the Southern Air job-
site where wages were $9.50 per hour. Peacock’s method of
separating applications by wages desired and giving first
consideration to those closest to the budgeted wage, particu-
larly those applicants who check back and show more inter-
est in employment, is an acceptable business practice. More
particularly, where as here, the applicants were told by Pea-
cock to check back if they did not hear from the Company.
On its face it is nondiscriminatory, and the General Counsel
offered no evidence contrary to the practice.
The General Counsel contends that the record discloses
that none of the employees hired were members of 637 or
had last worked for M & J Electric, a known union contrac-
tor. One application showing union apprenticeship of the
hired applicant the General Counsel disregards as not reflect-
ing union membership; however, he included a latent appren-
tice among the ostensible journeymen discriminatees. An-
other application of a hired employee included M & J Elec-
tric, Westvaco, in the work history and the General Counsel
dismissed the theoretical variance as not a serious challenge
to Respondent’s nonunion policy. Further the General Coun-
sel contends that the record shows Respondent’s hostility to-
ward unions and its refusal to hire employees previously em-
ployed by union contractors. The evidence simply does not
support the argued hostility or the refusal to hire. The record,
in fact, affirmatively shows the opposite. Diver’s admitted
extension of breaktime to distribute union literature was an
unauthorized use of worktime for exercising Section 7 rights
which the Act does not protect. If the issue were discipline
for such actions, the Respondent would be free and clear to
discipline Divers for his distribution of union literature.
However Respondent chose to let it pass with no more than
an oral admonishment. The objective evidence in the record
clearly contrasts with the argued refusal to hire employees
formerly employed by union contractors.
253WIREWAYS, INC.
Two instances recorded in the testimony of McGlammary
and Been attribute unlawful interrogation to Peacock during
the application interview although neither is alleged as an
independent 8(a)(1) violation. Both witnesses testified that
Peacock asked them if they were in the Union, notwithstand-
ing that each prominently displayed IBEW shirts and caps.
The other eight witnesses, none of whom displayed any
union affiliation in their dress, testified that Peacock did not
ask them any questions about the Union. I find it incredulous
that of 10 applicants, only the 2 with obvious union affili-
ation were nonetheless questioned by Peacock as to whether
they were affiliated. I find the testimony of McGlammary
and Been suspect. McGlammary’s testimony was more
robotlike than a genuine recall of events and significant con-
versations were not related in his affidavit which more ap-
proximated the occurrence of the events than that of his testi-
mony. McGlammary had an ulterior motive in applying for
employment and this same motive was controlling of his tes-
timony. I find that the critical substance of his testimony was
more imagined than real and discredit all his testimony of
conversations with Peacock unless corroborated by Peacock.
I regard Been as an untrustworthy witness with strong incli-
nation to perceive and give accounts of events most support-
ive of his own self-interest. Been’s testimony of his second
visit to Peacock contrasts with that of the two witnesses who
accompanied Been to the application interview with Peacock.
The substance of what Been states was his second visit is
more congruous with the other applicant witnesses and Pea-
cock’s testimony of the one and only application interview.
Redman testified that Been wore an IBEW shirt and cap to
the application interview and no union questions were asked
by Peacock. Gill substantiated that no union questions were
asked at the application interview. Been stated he wore the
union shirt and cap at a second interview with Peacock at
which time he was asked about the Union. With the excep-
tions of the union shirt and cap and the union questions,
there is no real inconsistency between the General Counsel’s
three witnesses as to the substance of their conversation with
Peacock and I credit the testimony of Redman and Gill in
that regard. Both impressed me as trustworthy witnesses with
capacity to recollect specifics. Been counseled with
McGlammary following his application interview with Pea-
cock focusing on the inflated wages shown on his applica-
tion. It is most plausible to me that Been realized Peacock
saw through his stated work history and contrived to change
its effect on his employment application by attempting to re-
habilitate his falsified application work history and wage his-
tory by creating a conversation with Peacock about lower
wages. On balance I renew my belief that their is no real in-
consistency of substance between Peacocks’, Gill’s, and
Redman’s version of the conversation with Peacock and that
of Been with the exception of Been’s second visit. I regard
Peacock’s, Gill’s, and Redman’s as a more complete and
credible account of what transpired and I discredit Been’s
testimony of any second visit. As stated above, I find it in-
credulous that the only applicants subjected to questions
about the Union were the two openly displaying union affili-
ation in their dress. Peacock’s demeanor was that of a wit-
ness making a genuine effort to relate the events as they oc-
curred and exhibited no evasiveness. I found Peacock to be
a trustworthy witness and credit his testimony entirely.
I do not find any evidence of unlawful motivation in the
record. Although it might be said a portion of the evidence
raises some suspicion that union affiliation played a part in
the decision not to hire McGlammary, the same evidence
does not support a conclusion that Respondent systematically
avoided hiring those individuals who Respondent might sus-
pect were union members based on past employment records.
Further, in my opinion, the alleged unlawful expressions re-
lied on by the General Counsel would not be sufficient to
support the missing elements of the General Counsel’s case.
Many applications were filed and reviewed by Peacock for
a limited number of positions. The uncontroverted system of
hiring individuals as needed for the project and the basis for
determining their qualifications and selection remain intact.
There is no competent proof that any applicant hired was less
suited for employment than the alleged discriminatees or the
corollary that the alleged discriminatees were more suited for
employment among all the applicants. Neither is there any
proof in the record that Wireway’s wage practice had a dif-
ferent impact on employees depending on their union affili-
ation or lack thereof. Discrimination is not to be lightly in-
ferred and here the record evidence creates a substantial
doubt as to whether Peacock had any intention of discrimi-
nating against job applicants who were either members of a
union, affiliated with a union, or previously were employed
by a union contractor. I therefore conclude and find that the
General Counsel has not established by a preponderance of
the evidence, a prima facie case of discriminatory refusal to
hire the employees named in the complaint.
The Objections
Objection 5 and the Regional Director’s other objections
are coextensive with unlawful threat allegations in the com-
plaint. Contrary to the General Counsel’s contention an
8(a)(1) violation is not a fortiori conduct requiring the elec-
tion be set aside. The Board does not apply a per se rule.
Moreover conduct critical enough to be considered objection-
able to an election atmosphere may be de minimus and thus
not require setting the election aside. In assessing objection-
able conduct as de minimis or not the Board considers,
among other factors, the number of violations, their severity,
the extent of dissemination, and the size of the voting unit.
Applying the Board’s reasoning to the instant case the al-
leged unfair labor practices, whether meritorious or not, do
not constitute conduct sufficient to set the election results
aside.
Objection 2 is bottomed on the Employer’s employee
handbook, specifically paragraph 28, page 14. The handbook
sets forth Respondent’s rule for distribution of any literature
in the working area (GCX–14). Although the handbook is
dated September 90, the record shows that it was not distrib-
uted to employees until sometime in January 1991. The Re-
spondent in a further attempt to correct the prior unlawful
oral rule against distribution of union literature posted a no-
tice to employees in mid-January 1991, stating, inter alia,
‘‘employees may distribute literature in non-working areas as
long as this is not done when you are supposed to be work-
ing or in a manner which would interfere with the work of
other employees.’’ Although the handbook rule does not ex-
plicitly inform employees of their right to distribute union
literature in nonwork areas during nonworking time the con-
temporaneous posting of the notice to employees clarifies the
254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
handbook rule for all employees. Moreover the Respondent’s
enforcement policy throughout the period, with the exception
of Taylor’s single transgression, conformed with the rule as
expressed in the notice to employees. Indeed, the record evi-
dence clearly shows that employees freely distributed union
literature in nonwork areas during nonworking time, both be-
fore and after, the timely retraction of the unlawful oral rule
and continued to do so until the election. Accordingly, I con-
clude and find that Objection 2 is without merit and the re-
sults of the election are valid.
ADDITIONAL CONCLUSIONS OF LAW
1. The General Counsel has failed to sustain his burden of
proof that Respondent threatened employees with plant clo-
sure if the Union won the election, threatened employees
with discharge for engaging in union activity, and threatened
employees that their union organizing efforts were futile.
2. The General Counsel has failed to sustain his burden of
proof that Respondent promulgated a violative no-distribution
rule.
3. The General Counsel has failed to sustain his burden of
proof that Respondent discriminatorily refused to hire appli-
cants for employment.
4. The objections to the election are without merit.
[Recommended Order for dismissal omitted from publica-
tion.]