Zarcon

National Labor Relations Board - Board Decisions

Nov 28, 2003

340 N.L.R.B. 1222 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1222
Zarcon, Inc. and Carpenters District Council of Kan-
sas City & Vicinity. Cases 26–CA–20603 and 26–
CA–20604
November 28, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN
AND SCHAUMBER
On March 7, 2003, Administrative Law Judge George
Carson II issued the attached decision. The Respondent
filed exceptions and supporting argument. The Charging
Party filed cross-exceptions and a supporting brief. The
General Counsel and the Charging Party filed answering
briefs in response to the Respondent’s exceptions.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, and conclusions only
to the extent consistent with this Decision and Order, and
to adopt the recommended Order as modified.
The Respondent did not except to the judge’s findings
that it violated Section 8(a)(1) of the Act. With respect
to the 8(a)(3) violations found by the judge, we reject the
Respondent’s exceptions, for the reasons discussed in the
judge’s decision. The Charging Party’s exceptions, in
turn, challenge the judge’s dismissal of the allegations
that the Respondent unlawfully interrogated Michael
Butts and Todd Bearden. As explained below, we find
that the Respondent violated Section 8(a)(1) with respect
to the Butts’ interrogation and find it unnecessary to pass
on the Bearden’s interrogation.
On June 5, 2001, Butts and two other union members
went to Zarcon’s office and applied for work. After leav-
ing, Butts called the Respondent’s supervisor, Randy Lea
Sr., and asked if Zarcon was hiring. Lea asked Butts
where he had been working, and Butts replied that he
was working at Artisan Construction Services, a union
contractor where Lea had formerly been employed. Lea
then asked, “You ain’t carrying a [union] card no more?”
Butts replied that he was, and that he was ready to go to
work. When Butts asked if Zarcon was hiring, Lea re-
sponded, “No. I’ve got a full boat right now.”2

1 The Charging Party moves that the Respondent’s exceptions be
stricken under the Board’s Rules and Regulation, Sec. 102.46(b). We
deny the motion because the Respondent’s exceptions allege substan-
tive errors by the judge and can be easily connected to particular por-
tions of his decision, despite the fact that they do not specifically iden-
tify the parts of the judge’s decision to which objection is made. Days
Hotel of Southfield, 311 NLRB 856 fn. 2 (1993).
2 Lea admitted, at the hearing, that the Respondent did, in fact, need
carpenters at that time (indeed the Respondent hired a carpenter the
In evaluating whether an interrogation violates the Act,
the Board examines whether, under the totality of the
circumstances, the interrogation reasonably tends to re-
strain, coerce, or interfere with rights guaranteed by the
Act. Rossmore House, 269 NLRB 1176 (1984), affd. sub
nom. Hotel & Restaurant Employees Local 11 v. NLRB,
760 F.2d 1006 (9th Cir. 1985); Sunnyvale Medical
Clinic, 277 NLRB 1217, 1218 (1985). Lea, a supervisor
and part owner of the Respondent, asked Butts whether
he was carrying a union card, over the telephone, during
Butts’ job inquiry. See Metta Electric, 338 NLRB 1059
(2003). Because Lea admitted that he considered Butts
to be a good carpenter, his question about a union card
was clearly not relevant to Butt’s ability, skill, productiv-
ity, and reliability as an employee. Action Multi-Craft,
337 NLRB 268, 277 (2001), citing Culley Mechanical
Co., 316 NLRB 26 (1995). That Lea’s question was de-
signed to interfere with Butts’ chance of being hired is
evident from Lea’s admission that he used the informa-
tion gained in his questioning as the basis for the unlaw-
ful failure to hire Butts. Id. Further, Lea’s question to
Butts was asked in the context of employer hostility and
discrimination: the Respondent informed its employees
that it would have union organizers removed from its
jobsite by law enforcement officers; it informed them
that an employee had been laid off because of his union
activities; it threatened that the Company would close if
the Union succeeded in organizing its employees, threat-
ened representatives of the Union with physical violence
if they did not cease engaging in activities protected by
Section 7 of the Act; it laid off an employee because of
his union activities, and refused to hire nine employee-
applicants because of their affiliation with the Union. In
these circumstances, we find that Lea’s interrogation of
Butts violated Section 8(a)(1).3
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for the judge’s Conclusion
of Law 1.
“1. By informing its employees that it would have un-
ion organizers removed from the jobsite by law enforce-
ment officers, informing its employees that an employee
had been laid off because of his union activities, threat-
ening that the Company would close if the Union suc-
ceeded in organizing its employees, interrogating
Mitchell Butts concerning his union membership, activi-
ties and sympathies, and threatening representatives of
the Union with physical violence if they did not cease

next day and several others subsequently) and that he did not hire Butts
and the other two applicants “because I could not hire Union people.”
3 Because it would not affect the Order, we do not reach the issue of
whether the Respondent unlawfully interrogated employee Bearden.
340 NLRB No.145
ZARCON, INC. 1223
engaging in activities protected by Section 7 of the Act,
the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Zarcon,
Inc., Springfield, Missouri, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 1(g) and re-
number the following paragraph accordingly.
“(g) Interrogating its employees regarding their union
membership, sympathies, or activities.”
2. Substitute the attached notice to employees for that
of the administrative 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 a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT refuse to hire employee applicants be-
cause they are members of Carpenters Local 978, any
local union affiliated with Carpenters District Council of
Kansas City & Vicinity, or any other labor organization.
WE WILL NOT lay off employees because of their un-
ion membership and activities.
WE WILL NOT inform employees that we will have
union organizers removed from our jobsites by law en-
forcement officers.
WE WILL NOT inform our employees that another
employee has been laid off because of his union activi-
ties.
WE WILL NOT threaten that the Company will close
if the Union succeeds in organizing our employees.
WE WILL NOT threaten representatives of the Union
with physical violence if they do not cease engaging in
activities protected by Section 7 of the Act.
WE WILL NOT interrogate our employees regarding
their union membership, sympathies, or activities.
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 this Order,
offer Kelly Hall, Mitchell Butts, Larry Cadle, Stanley
Campbell, Robert Teitel, Donald Clemens, Arthur
Kessler, Stephan Hutton, and Rebecca Ellison instate-
ment to the positions for which they applied, or, if those
positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges to which they would have been enti-
tled if we had not discriminated against them.
WE WILL make the above-named discriminatees
whole for any loss of pay and benefits they may have
suffered as a result of the discrimination against them, to
be computed in the manner set forth in the remedy sec-
tion of the judge’s decision.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful re-
fusal to hire the above-named discriminatees and, within
3 days thereafter notify them in writing that this has been
done and that the unlawful actions will not be used
against them in any way.
WE WILL, within 14 days from the date of this Order,
offer Eric Berner 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 previously enjoyed.
WE WILL make Eric Berner 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 judge’s decision.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the discharge of
Eric Berner, and WE WILL, within 3 days thereafter,
notify him in writing that his discharge will not be used
against him in any way.

ZARCON, INC.
Melvin L. Ford and Ruth Small, on brief, Esq., for the General
Counsel.
Charles F. Kiefer Jr., Esq., for the Respondent.
Michael J. Stapp, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This
case was tried in Springfield, Missouri, on December 16, 17,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1224
and 18, 2002. The charge in Case 26–CA–20603 was filed on
October 13, 2000, and was amended on December 15, 2000.
The charge in Case 26–CA–20604 was filed on July 23, 2001.1
The complaint issued on August 30, 2002. The complaint al-
leges several violations of Section 8(a)(1) of the National Labor
Relations Act, and the layoff of one employee and refusal to
consider for hire or to hire eight employees in violation of Sec-
tion 8(a)(3) of the Act. At the hearing I permitted an amend-
ment alleging a refusal to consider for hire or to hire one addi-
tional employee. The Respondent’s answer denies any viola-
tion of the Act. I find that the Respondent did violate Section
8(a)(1) and (3) of the Act substantially as alleged in the com-
plaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Zarcon, Inc., the Company, is a corporation
engaged in the construction industry at various sites in and near
Springfield, Missouri. The Company annually purchases and
receives goods valued in excess of $50,000 from other enter-
prises located in the State of Missouri, each of which other
enterprises received those goods directly from points outside
the State of Missouri. The Respondent admits, and I find and
conclude, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
The Respondent admits, and I find and conclude, that Car-
penters District Council of Kansas City & Vicinity, the Union,
is a labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Overview
The Company began operating in 1995. President David
Moulin, Floyd Myer, Larry Fry Sr., Jeff Sandridge, and Randy
Lea Sr. were stockholders. All of the stockholders actively
worked for the corporation. Myer was the estimator. Fry, San-
dridge, and Lea were supervisors. The record does not estab-
lish the extent of the holdings of the foregoing individuals;
however, President Moulin controlled the corporation. Moulin
had formerly had some ownership interest in Artisan Construc-
tion Services, a union construction company at which both Fry
and Lea had worked. When Lea came to Zarcon, Moulin told
him that he had one request, “Don’t ever try to organize me.”
Lea promised that he would not, and he kept his word.
The Respondent’s answer pleads that it has recognized the
Congress of Independent Unions and that it “can only recog-
nize” that Union. The issue in this case is discrimination, not
recognition. Discrimination with regard to the hire and tenure
of employment of employees because of the employer’s prefer-
ence for one union over another is the “most rudimentary kind

1 The charges were filed in Region 17. Case 26–CA–20603 was for-
merly Case 17–CA–20889 and Case 26–CA–20604 was formerly Case
17–CA–21289. All dates are in 2000 unless otherwise indicated.
of discrimination covered by Section 8(a)(1) and (3) of the
Act.” Long Transportation Co., 191 NLRB 202, 205 (1971).
The Congress of Independent Unions is not affiliated with the
AFL–CIO. Notwithstanding the assertion in the Respondent’s
answer regarding recognition of the Congress of Independent
Unions, President Moulin considered the Company to be non-
union. He explained to former Administrative Assistant/Office
Manager Allyson Deubel-Rowe that the Company “did not
have Union employees. We [the Company] were members of
the Congress of Independent Unions.” In October 1999, Arthur
(Art) Kessler, an organizer with the Union, spoke with Supervi-
sor Randy Fry Sr., at a jobsite. Fry stated that he hated the
Union and that the Company would “never sign a Union agree-
ment with the Carpenters Local.”
Prior to April 11, 2001, when an applicant contacted the
Company seeking work, former Administrative Assis-
tant/Office Manager Deubel-Rowe would write down the appli-
cant’s name and telephone number, the applicant’s craft, and a
brief note of the applicant’s experience. She would then put the
paper in the box of the appropriate supervisor. At all relevant
times prior to August 2001, when Lea’s employment ceased,
Lea hired carpenters and Fry hired employees with experience
hanging acoustical ceilings. If an applicant had experience in
both areas, Deubel-Rowe would make a copy of her notes and
give the information to both supervisors.
This “salting” case is unusual in that there is virtually no dis-
pute regarding the facts. Supervisor Fry and former Adminis-
trative Assistant/Office Manager Deubel-Rowe were called by
the General Counsel in the presentation of his case. Former
supervisor and stockholder, Randy Lea Sr., was called by the
Charging Party. On the third day of the hearing, the Respon-
dent rested without presenting any witnesses. Supervisor Fry
testified that he did not care whether employees were in the
Union, “as long as they give me a full day’s work.” I do not
credit that testimony which, as already noted, was specifically
contradicted by Lea and Deubel-Rowe. It is also contrary to
Fry’s uncontradicted statement to Organizer Kessler.
2. The events in 2000
In late May, Union Organizer Kessler requested Eric Berner
to apply for work with Zarcon without revealing his union af-
filiation. He did so and was hired on May 26. Kessler made
the same request of Todd Bearden, who had recently come
from St. Louis. Bearden was hired on June 1.
On June 5, Kelly Hall, Mitchell (Mitch) Butts, and Larry
Cadle went together to the Zarcon office. Butts and Cadle were
wearing union hats. Hall was wearing an Artisan Construction
Services’ hat. As noted above, Artisan was a local contractor
that was unionized. In the course of the conversation at the
Zarcon office, Butts informed Deubel-Rowe that he had been a
member of the Union for 12 years. Deubel-Rowe informed
Butts that Zarcon was a nonunion shop and asked if that would
be a problem. Butts replied that it would not. Each of the em-
ployees gave Deubel-Rowe their names, telephone numbers,
and years of experience. Thereafter, Hall and Butts called
Randy Lea Sr., whom they knew from working at Artisan. In
the course of the conversation between Butts and Lea, Lea
questioned Butts, asking “You ain’t carrying a card no more?”
ZARCON, INC. 1225
Butts replied that he was and that he was ready to go to work.
Lea informed both of the employees that he would give them a
call if any work came up. He did not do so. At the hearing,
Lea acknowledged that he knew Hall, Butts, and Cadle, that all
three were good carpenters, that the Company was in need of
carpenters, that he took their telephone numbers but did not call
them, “Because I could not hire Union people.” Lea further
acknowledged that he falsely told Hall that he had a “full boat,”
whereas he could have used him, but “he was a union person.”
Thereafter, Organizer Kessler requested Jimmy Mitchell,
who had recently come to the Carpenters Local from Texas,
Richard (Rick) Lehmann, and Joe San Paolo to apply for work
with Zarcon. They did, and all were hired on or about June 26.
Thereafter, Mitchell worked until October 27, Lehmann worked
until November 3, and San Paolo worked until November 10.
In addition to the foregoing hires on June 6, the Company
hired employee Jack Sessions who, although having worked as
a carpenter in California, had for the past 5 years been the man-
ager of a Pizza Hut in Springfield. Sessions worked until No-
vember 17 and was rehired on June 6, 2001. On June 23, the
Company hired Michael Sams. Sams worked for only 2 weeks.
In late June and early July, Berner, Bearden, Mitchell, Leh-
mann, and San Paolo were all working at the American
Freightways’ jobsite in Harrison, Arkansas. Supervisor Lea
was informed by Supervisor Fry that there was organizational
activity at that jobsite. Lea understood that Fry’s information
came from his son, Larry Fry Jr. and recalled that Fry Sr. men-
tioned the names of Berner and Al Berry and, “I think Todd
Bearden.” Berry had previously been sent from the American
Freightways’ jobsite by Foreman John Holt following a per-
sonal dispute. Berry later reported to Bearden that he under-
stood the report of union activity had originated with employee
Corey Hudson and that Hudson had identified only Berner.
Regardless of who was included in the initial rumor, Lea con-
firms that Fry asked him to “take care of it.” On June 22, Lea
spoke with Berner, noting that he liked to be “straight with
people, and he liked people to be straight with him.” He in-
formed Berner that union organizers might try to sell him on
the benefits of the Union, that the Union was “trying to salt and
organize companies,” that President Moulin had a “lot of
money,” and “if that happened, they would have a table full of
attorneys, and he [Moulin] would shut down and reopen the
next day, under a new name.” Some days after this, Lea ad-
dressed all of the employees and stated that Zarcon was a non-
union company. Lea testified that, upon going to the jobsite, “it
didn’t take long to see” that Berner was involved in union ac-
tivity. Lea made no such statement regarding Berry or
Bearden.
Berner had solicited Berry to sign a union authorization card,
but there is no evidence that the Company was aware that Berry
had signed. There is no evidence that Bearden engaged in any
union activity. There is no evidence of further rumors of union
activity at the American Freightways jobsite after Lea spoke to
the employees. Lea testified that he “reluctantly” laid off
Berner at Supervisor Fry’s insistence because of his union ac-
tivities on July 26. About a week after this, Berner spoke with
Berry who informed him that “he spoke with Randy Lea, and
Randy told him that I was laid off because I was affiliated with
the Union in some way, and that I was speaking with Art
Kessler.” In September, when Berry was in charge at the Pet
Warehouse jobsite, he confided to Bearden that Berner was
terminated because “Randy [Lea] found out that he [Berner]
was Union.” Berry went on to note that Lea had told Berner
that he was being let go “because they were running out of
work.” Lea did not deny telling Berry that Berner had been
terminated because of the Union. Lea acknowledged that he
spoke with Foreman John Holt regarding the Union and Berner.
When asked whether he had specifically informed Holt that
Berner had been terminated because of his union activities, Lea
answered, “I don’t know if I actually just come out and said it
to John [Holt] or not, but John knew.” Regardless of the spe-
cific words that Lea used, his conclusion that Holt knew that he
had terminated Berner because of the Union is confirmed by
the testimony of Rick Lehmann who overheard Holt tell an-
other employee, whose first name was Steve, that, “Eric
[Berner] was let go because he was spying for the Union.”
When Bearden was hired he was initially assigned to work
under Supervisor Ken Sandridge at a Staples’ store. While
working on that job, he had several conversations with San-
dridge, including one in which he commented that he had come
from St. Louis. Sandridge asked what Bearden thought about
the Union, and then continued, noting that organizer Art
Kessler came around to the Company’s jobsites and “harasses
the men.” Sandridge noted that he could not hit Kessler but
that he could call the law enforcement officials and have the
officers remove Kessler from the jobsite.
After working at the American Freightways’ jobsite,
Bearden was assigned to the Millennium Investments’ jobsite
and then to the Battlefield Mall jobsite. On July 18, at the Bat-
tlefield Mall jobsite, Kessler approached Bearden, pretending
not to know him, and gave him a card containing information
about union wages and benefits. Thereafter, Bearden informed
Supervisor Lea that Kessler had given him the card, and Lea
suggested that he throw it in the trash. Lea continued talking,
explaining that Kessler was trying to get the employees to vote
the Union in at the Company but that “wouldn’t ever happen
. . . [because] Dave Moulin had deep pockets and that he would
close the door and open up the next morning under a new
name.”
Thereafter, Bearden returned to the Millennium jobsite
where work was being directed by Foreman Rick Merritt.
Kessler visited that jobsite in September. Merritt approached
Kessler. Bearden heard him tell Kessler that he “needed to
leave and get off the job, or he was going to start throwing
rocks at him.” Thereafter, Merritt commented, “Guys like that
should be taken out and shot.”
The following day, Merritt referred to having run Kessler off
of the jobsite and stated, “if the Union got in” that “they would
shut the doors and open under a new name.”
3. The applications of April 11, 2001
On April 11, organizer Art Kessler went with Stanley Camp-
bell, Robert Teitel, Donald Clemens, and Stephan Hutton to
Zarcon’s office. All were wearing insignia reflecting their
affiliation with the Carpenters’ Union. Dubel-Rowe knew who
Kessler was. She took their names, telephone numbers, and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1226
experience. Each stated that he had experience in metal studs,
drywall, and acoustical ceilings. Kessler had 22 years experi-
ence, Campbell had 34 years experience, Teitel had 27, Clem-
ens had 23, and Hutton had 7 years experience. Hutton was the
last of the group to state his experience. When he said 7 years,
Dubel-Rowe responded, “You’re the pup,” and everyone
laughed. Dubel-Rowe reported the group applications to Fry
who stated that he “did not intend to hire the Union applicants.”
Deubel-Rowe saved the handwritten notes that she made of
these applicants’ names, telephone numbers, and experience.
She also typed up a sheet listing the five. Shortly after this,
Deubel-Rowe approached President Moulin and stated that she
thought it would be a good idea to get “normal applications . . .
and keep them on file, just to cover their butts . . .” The Com-
pany did so. There was no policy regarding when an applica-
tion became inactive. In early December 2002, some 2 weeks
before this hearing, the Company obtained revised applications
and adopted a policy of maintaining applications in an active
status for 30 days.
Lea was familiar with Kessler and Campbell and knew that
both were good carpenters. He testified that all five applicants
were qualified and that Zarcon was in need of carpenters.
When asked whether he did not call those individual because he
would lose his job if he hired union people, Lea answered, “if I
did, yes, I would.” The first carpenter that Lea recalled hiring
after April 11, 2001, was Jack Sessions, the former Pizza Hut
manager who had worked for the Company in the year 2000.
Sessions was hired on June 6. Thereafter, Lea’s daughter was
hospitalized and he “didn’t hire any more people” during that
time. Lea placed that time as “toward the end of June.” There-
after, Lea acknowledges hiring Robbie and Ronnie Gay, Scott
Hass, and Corey Hudson, who were hired on July 10. Com-
pany records show that employee Mike Rikard was hired on
June 10, Ryan Reynolds was hired on June 16, and Brian Wil-
son was hired on June 25, 2001. All are shown as holding the
position of “wallboard installation,” the position for which
carpenters were hired. Lea was not questioned regarding those
individuals.
4. The application of Rebecca (Becky) Ellison
At the hearing, Administrative Assistant/Office Manager
Dubel-Rowe was questioned regarding the application of Becky
Ellison who had applied for work on August 22, 2001. Ellison’s
application reflects over a year of experience working through
Carpenter’s Local 978, the local in the Springfield, Missouri
area and 8 years of experience working through Carpenter’s
Local 613. Her application also reflects 4 years of experience
with the United States Navy, a total of 13 years experience.
When Deubel-Rowe informed Supervisor Fry of the application,
she recalls he stated that he “didn’t believe she had enough ex-
perience to be able to do the job” and that he “thought she was
Union and wasn’t going to hire her.” On August 30, 2001, a
week and a day after Ellison applied, the Company’s payroll
records reflect that four employees were hired for wallboard
installation: Cary McAdams, Eric Olliverson, Michael Ritschel,
and Daniel Redding. The Company’s payroll records reflect
that all four shared the birth date of “1/1/1940.” Assuming the
accuracy to those entries, the records do not reflect the work
experience reported by those four 62-year-old applicants.
B. Analysis and Concluding Findings
1. The 8(a)(1) allegations
The complaint, in subparagraph 5(a), alleges that Supervisor
Lea unlawfully interrogated employees on June 8 and June 22
and that Supervisor Sandridge unlawfully interrogated employ-
ees on June 9. The only evidence relating to any interrogation
by Supervisor Lea is the testimony of Butts that, in the telephone
conversation that he had with Lea on June 5, Lea asked if he was
still carrying a union card. Butts knew Lea from working at
Artisan, a unionized employer. Shortly before this telephone
call, Butts had worn a union hat to the Zarcon office and specifi-
cally informed Dubel-Rowe that he had been a member of the
Union since 1991. I find no coercion in this circumstance where
Butts had, virtually contemporaneously, shown his continuing
union affiliation by his clothing and affirmative statement. Dur-
ing the second week of June, at the Staples’ jobsite, Supervisor
Sandridge asked employee Bearden what he thought of the Un-
ion and, without waiting for a reply, referred to organizer
Kessler coming onto the jobsite. Sandridge stated his intention
to call law enforcement officers when this occurred. So far as
the record shows, Bearden did not speak. As hereinafter dis-
cussed, Sandridge’s comment regarding calling law officers did
violate the Act. Although asking Bearden what he thought of
the Union, Sandridge kept talking. He did not seek a response to
the question and Bearden made none. Bearden’s testimony
reflects that Sandridge’s remarks were intended to apprise this
recently hired employee that he should have nothing to do with
organizer Kessler or the Union. Bearden’s testimony does not
establish a coercive interrogation. I shall recommend that all
allegations relating to interrogation be dismissed.
Subparagraph 5(b) of the complaint alleges that Sandridge
threatened “to call the police on Union organizers.” Sandridge’s
stated intention to call law enforcement officers if organizer
Kessler came onto the jobsite implicitly suggested that Bearden
should avoid organizers and explicitly informed him that the
Respondent would not permit the Union to have access to its
employees. Board precedent is clear that, when dealing with
access of nonemployee union organizers, “there is a threshold
burden on the respondent to establish that it had . . . an interest
which entitled it to exclude individuals from the property.”
Indio Grocery Outlet, 323 NLRB 1138, 1141 (1997), enfd. 187
F.3d 1080 (9th Cir. 1999). A respondent’s threat to have law
officers arrest nonemployee union representatives at a jobsite
violates the Act unless the respondent establishes that it has a
property interest in its jobsites which entitle it to exclude indi-
viduals from the property.” R & R Plaster & Drywall Co., 330
NLRB 87, 88 (1999). The Respondent presented no evidence
establishing the nature or extent of its property interest at the
Staples’ jobsite. By informing its employees that it would have
union organizers removed from the jobsite by law enforcement
officers, the Respondent violated Section 8(a)(1) of the Act.
Subparagraph 5(c) of the complaint alleges that the Respon-
dent informed its employees that other employees were dis-
charged because of their union membership or activities. In
subparagraph 5(g), it alleges that the Respondent informed
ZARCON, INC. 1227
employees that they had been laid off because of their Union
activities. The allegations of subparagraph 5(c) are attributed
to Foreman John Holt, who was overheard by employee Leh-
mann telling an employee identified as Steve that Berner was
“let go because he was spying for the Union,” and to Foreman
Al Berry at the Pet Warehouse jobsite, who told Bearden that
Berner was laid off because “Randy [Lea] found out that he
was Union.” The allegation of subparagraph 5(g) relates to
Berry’s admission to Berner that Berry had spoken with Lea
and that “Randy [Lea] told him that I was laid off because I was
affiliated with the Union” The Respondent’s answer denies that
Holt and Berry are supervisors. Supervisor Lea acknowledged
speaking about Berner and the Union with Holt, that he did not
know if he “actually just [came] out and said it [that Berner was
laid off because of the Union] to John [Holt] or not, but John
knew.” Thus, Holt’s supervisory status is not relevant. If Holt
was not a supervisor, the Respondent violated Section 8(a)(1)
by Lea’s informing Holt either implicitly or explicitly that
Berner had been laid off because of his union activities. If Holt
was a supervisor, the Respondent violated Section 8(a)(1) by
Holt’s statement. Berry was in charge of the Pet Warehouse
jobsite when he spoke with Bearden. Insofar as his statement
to Bearden was consistent with the Respondent’s policies as
confirmed by Lea’s admission that he laid off Berner because
of his union activities, Berry’s statement was made in his ca-
pacity as an agent. Although Berry’s report to Berner was true,
the record does not establish Berry’s position at that time. If
Berry were an employee, Lea’s statement to him would violate
Section 8(a)(1). Insofar as Berry was an agent when he spoke
with Bearden, any finding regarding Berry’s conversation with
Bearden would be cumulative. The Respondent, by informing
employees that an employee had been laid off because of his
union activities, violated Section 8(a)(1) of the Act.
Subparagraph 5(d) of the complaint alleges threats of closure
by Supervisor Lea on June 21 and July 18 and by Foreman
Rick Merritt on September 29. Employee Eric Berner testified
that, at the American Freightways’ jobsite on June 21, when
Lea spoke with him individually, Lea explained that the Union
was seeking to organize and Moulin had a “lot of money” and
“if that happened, they would have a table full of attorneys, and
he [Moulin] would shut down and reopen the next day, under a
new name.” Employee Todd Bearden testified that Lea made a
similar comment to him at the Battlefield Mall jobsite on July
18 and that Foreman Merritt, at the Millennium jobsite, stated
that “if the Union got in” that “they would shut the doors and
open under a new name.” Lea did not deny either conversation.
Merritt did not testify. The Respondent’s answer denies that
Merritt was a supervisor. The record is insufficient to establish
whether Merritt was a supervisor; however, it does establish
that he was an agent in that he excluded persons from the job-
site on behalf of the Respondent. His repetition of the threat of
closure is consistent with the statements of Supervisor Lea. By
threatening that the Company would close if the Union suc-
ceeded in organizing its employees, the Respondent violated
Section 8(a)(1) of the Act.
Subparagraph 5(e) of the complaint alleges that Foreman
Merritt threatened union representatives with physical harm
because they attempted to discuss the Union with employees
and subparagraph 5(f) alleges that he “[p]rohibit[ed] union
representatives from its project . . .” Bearden’s credible testi-
mony establishes that, in late September at the Millennium
jobsite, Merritt told Kessler that he “needed to leave and get off
the job, or he was going to start throwing rocks at him.” Mer-
ritt’s status as a supervisor is immaterial with regard to this
allegation since he was in charge of the jobsite and, in directing
Kessler to leave, was acting as the Respondent’s agent. See
Ramey Supermarkets, 321 NLRB 432, 435 (1996). The Re-
spondent presented no evidence establishing that it had “an
interest which entitled it to exclude individuals from the prop-
erty.” Indio Grocery Outlet, supra. I find that the prohibition
from its project is encompassed by the threat to throw rocks at
Kessler if he remained. The foregoing statement threatened
physical violence against him if he did not leave and, in so
doing, the Respondent violated Section 8(a)(1) of the Act.
The complaint, in subparagraph 5(e), alleges that Supervisor
Lea directed employees to throw away union authorization
cards. Kessler approached Bearden, pretending not to know
him, and gave him a card containing information about union
wages and benefits. Thereafter, Bearden informed Supervisor
Lea that Kessler had given him the card. Bearden did not recall
that Lea had suggested that he throw the card in the trash until
counsel specifically asked if Lea “had a suggestion as to what
you could do with that card.” Bearden did not testify to the
words Lea used that he interpreted as a suggestion. The card
was not a union authorization card. If Lea had directed
Bearden to throw the information card in the trash, I am certain
that he would have so testified. Referring to union literature as
trash does not violate the Act. Arrow-Hart, Inc., 203 NLRB
404 (1973). There is no evidence that Lea “directed” Bearden
to “throw away union authorization cards.” I shall recommend
that this allegation be dismissed.
2. The layoff of Eric Berner
The testimony of Berner and admissions of Supervisor Lea
establish that Berner engaged in union activity, that the Re-
spondent suspected him of having engaged in union activity
and that Lea confirmed these suspicions, that the Respondent
bore animus towards union activity and that Berner’s union
activities were the motivating factor for his layoff. Thus, all of
the criteria set out in Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), were established by the General Counsel. In its brief,
the Respondent argues that no inference of unlawful action
regarding Berner should be drawn because neither Berry nor
Bearden, who were also identified in the initial rumors relating
to union activity, were laid off. This argument ignores the tes-
timony of Lea that, upon going to the American Freightways’
site, he confirmed that Berner was engaging in union activities.
Lea was not questioned regarding what, if anything, he learned
regarding the rumored activities of Bearden and Berry. There
is no evidence that Bearden engaged in any union activities,
and there is no evidence that the Respondent ever became
aware that Berry had signed a union authorization card. The
Respondent presented no evidence rebutting the General Coun-
sel’s prima facie case that Berner was laid off because of his
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1228
union activity. The Respondent, by laying off Eric Berner be-
cause of his union activity violated Section 8(a)(3) of the Act.
3. The refusals to consider or to hire
a. The applications of June 5, 2000, and August 22, 2001
The Board, in FES, 331 NLRB 9 (2000), sets out the ele-
ments necessary to establish an unlawful refusal to hire as fol-
lows:

To establish a discriminatory refusal to hire, the General
Counsel must, under the allocation of burdens set forth in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), first show the
following at the hearing on the merits: (1) that the respondent
was hiring, or had concrete plans to hire, at the time of the al-
leged unlawful conduct; (2) that the applicants had experience
or training relevant to the announced or generally known re-
quirements of the positions for hire, or in the alternative, that
the employer has not adhered uniformly to such requirements,
or that the requirements were themselves pretextual or were
applied as a pretext for discrimination; and (3) that antiunion
animus contributed to the decision not to hire the applicants.
Id. at 12. [Footnotes omitted.]

Regarding the first criterion, the Board notes that its analysis
“presupposes that there were appropriate openings in the em-
ployer’s work force.” Ibid. Thus, evidence sufficient to estab-
lish a prima facie case of refusal to hire requires the existence
of a position that the applicant could have filled. In the instant
case, the testimony of Lea that he needed carpenters and that he
took the telephone numbers of the three alleged discriminatees
who applied on June 5, but did not call them “[b]ecause I could
not hire Union people,” coupled with the hire of Sessions,
Sams, and covert applicants Jimmy Mitchell, Rick Lehmann,
and Joe San Paolo establishes the existence positions for all
three of the alleged discriminates who applied on June 5, 2000.
The hire of four employees within 8 days of Ellison’s appli-
cation confirms the existence of a position for her at the time of
her application.
The second criterion of FES relates to qualifications. The
work histories Hall, Butts, and Cadle together with Lea’s testi-
mony establishes that they were fully qualified. Ellison had 13
total years of experience with 9 years being through two Car-
penters Union locals. I find that she was fully qualified.
Regarding the third criterion, that antiunion animus contrib-
uted to the decision not to hire the applicants, Lea’s testimony
establishes that he did not call Kelly, Butts, or Cadle “[b]ecause
I could not hire Union people.” Fry, upon reviewing Ellison’s
application stated that he “didn’t believe she had enough ex-
perience” and that he “thought she was Union and wasn’t going
to hire her.” The foregoing statement establishes that Ellison’s
union affiliation contributed to the decision not to hire her.
I find that General Counsel established a prima facie case
with regard to these alleged discriminatees.
Under the criteria set out in FES, if the General Counsel es-
tablishes a prima facie case and the respondent “fails to show
that it would have made the same hiring decisions even in the
absence of union activity or affiliation,” a violation of Section
8(a)(3) of the Act is established. In its brief, the Respondent
notes the testimony of Fry that he did not care whether employ-
ees were union or not. I have not credited that testimony. The
Respondent presented no evidence relating to any of its hiring
decisions. Fry did not testify regarding any basis for question-
ing Ellison’s qualifications or experience. The Respondent
failed to rebut the General Counsel’s prima facie case. I find
that the Respondent violated Section 8(a)(3) of the Act by re-
fusing to hire Hall, Butts, Cadle, and Ellison.
b. The applications of April 11, 2001
The General Counsel and Charging Party seek an instate-
ment and backpay remedy for the five applicants of April 11,
2001. The Respondent argues that there was no violation of the
Act because there were no positions available on April 11,
2001, and that by the time hiring did occur, in June and July,
these applicants would “have been at the bottom of his [Lea’s]
application call list.”
In FES, the Board held that, to establish a refusal to consider
violation the General Counsel must show “(1) that the respon-
dent excluded applicants from a hiring process; and (2) that
antiunion animus contributed to the decision not to consider the
applicants for employment.” Id. at 15. In further discussion
regarding a respondent’s refusal to consider applicants because
of their union affiliation, the Board stated:

When a job opening follows on the heels of a refusal to con-
sider an applicant for positions of that kind, the question
whether the applicant would have been offered that job had he
been given nondiscriminatory consideration at the outset is a
remedial issue appropriately determined in the compliance
stage of the refusal-to-consider violation. As discussed above,
one significant consequence of a discriminatory refusal-to-
consider violation is the discriminatory denial of access to the
pool of applicants for future openings. Because the funda-
mental purpose of Board remedies is to “undo the effects of
[the] violations of the Act,” NLRB v. Seven-Up Bottling Co.,
344 U.S. 344, 346 (1953), it is appropriate to consider in
compliance whether, had the applicant entered the pool at the
time of application, he or she would have been hired for a job
that subsequently opened up. FES, supra at 16.

Although the foregoing language would appear to be appli-
cable to the instant case in which hiring occurred only a few
weeks after the applications, further language in FES directs
that “matters that can be litigated at the unfair labor practice
stage, must be litigated at that stage and cannot be deferred to
compliance.” Id. at 17. Assuming the latter language is opera-
tive, I cannot conceive of any situation in which there would be
a job opening that followed “on the heels of a refusal to con-
sider” that should not be litigated at the unfair labor practice
hearing since it would have occurred prior to the hearing and
would be known to the General Counsel.
Insofar as the General Counsel is obligated to litigate all
openings of which he is aware that have occurred prior to the
hearing, I must conclude that openings occurring at any time
after the alleged discriminatees applied would constitute “ap-
propriate openings in the employer’s work force available to
the applicant.” This conclusion is confirmed by the Board’s
statement in 3D Enterprises Contracting Corp., 334 NLRB 57
ZARCON, INC. 1229
(2001), that “the General Counsel must also litigate the ques-
tion of whether the discriminatees would have been hired for
any such subsequent openings in the absence of the discrimina-
tory refusal to consider them.” Thus, it would appear the first
criterion of a refusal-to-hire violation, a showing that “the re-
spondent was hiring . . . at the time of the alleged unlawful
conduct,” need not be contemporaneous with the alleged dis-
criminatee’s application.
Lea testified that Zarcon was in need of carpenters at the
time these employees applied on April 11, 2001. That testi-
mony is uncontradicted. The absence of the hire of any carpen-
ter until former employee Sessions was hired on June 6, 2001,
and the hire of additional carpenters in June and July does not
contradict Lea’s testimony, nor does it establish that the Re-
spondent did not need carpenters. It establishes only that the
Respondent did not hire carpenters immediately following the
applications of the union affiliated carpenters.
Even if I did not credit Lea’s testimony, the hire of former
employee Sessions on June 6, 2001, and additional carpenters
later in June and in early July, establishes that, although not
contemporaneous with the employees’ applications, there were
“appropriate openings” for the applicants.
The testimony of the five April 11, 2001 applicants confirm
that they were qualified. The least qualified of the five was
Stephan Hutton who had 7 years experience. Lea was familiar
with Kessler and Campbell and considered them to be good
carpenters. Lea, who made the hiring decisions regarding car-
penters, testified that all five applicants were qualified.
Regarding the third criterion of a refusal-to-hire violation,
Lea’s testimony that he “could not hire Union people” con-
firms, in the words of the Board, “that antiunion animus con-
tributed to the decision not to hire the applicants.” When asked
whether he did not call those individuals who applied on April
11, 2001, because he would lose his job if he hired union peo-
ple, Lea answered, “if I did, yes, I would.” The General Coun-
sel established a prima facie case that the five applicants were
not offered employment because of their union affiliation.
The only document placed in evidence by the Respondent
was Respondent’s Exhibit 1, which shows the names, date of
hire, and date of termination of employees during the relevant
period. The Respondent had no formal application process
until some point after April 11, 2001. Prior to that, the Re-
spondent’s only records of applicants were Deubel-Rowe’s
notes that were given to the respective supervisors. The record
does not establish when, after April 11, pursuant to Deubel-
Rowe’s suggestion, the Respondent began taking formal appli-
cations. There is no evidence reflecting the date of application
or the identity of any applicants for carpenter positions from
April 11, 2001, until Ellison applied on August 22, 2001. The
Respondent presented no testimonial or documentary evidence
refuting Lea’s testimony that, on April 11, 2001, Zarcon was in
need of carpenters by establishing the date or dates that it con-
tends that positions became available.
The Respondent argues that, at the point that hiring actually
occurred after April 11, 2001, the five applicants, would “have
been at the bottom of his [Lea’s] application call list.” The
Respondent cites no evidence in support of this argument for
the simple reason that there is no such evidence. The Respon-
dent presented no evidence contradicting Lea’s testimony that
Zarcon was in need of carpenters on April 11, 2001, when the
applicants would have been at the top of Lea’s list. Even as-
suming that the positions that the Respondent thereafter filled
did not become became available until after April 11, the Re-
spondent presented no evidence that the alleged discriminatees
were not the most recent applicants for those position at the
time that they became available.
Thus, even if I were to assume, contrary to Lea’s testimony,
that no positions were available on April 11, 2001, the hire of
Sessions on June 6, Mike Rikard on June 10, Ryan Reynolds on
June 16, Brian Wilson on June 25, Rodney and Ronnie Gay,
Scott Hass, and Corey Hudson, on July 10, establishes that
positions did become available prior to those dates of hire.
Giving the Respondent every benefit of any doubt that can be
inferred from the record in this case, there is no evidence that
the union applicants of April 11, 2001, were not the most recent
applicants for those positions at the time those positions be-
came available. In view of the overwhelming evidence cor-
roborating Lea’s testimony that the Respondent would not hire
“union people,” the hire of applicants other than the alleged
discriminates in June and July establishes nothing other than
that the Respondent waited until applicants who were not affili-
ated with the Union applied to fill the positions. The Respon-
dent has not rebutted the General Counsel’s prima facie case.
The Respondent, by refusing to hire Stanley Campbell,
Robert Teitel, Donald Clemens, Art Kessler, and Stephan
Hutton, because of their union affiliation, violated Section
8(a)(3) of the Act.
CONCLUSIONS OF LAW
1. By informing its employees that it would have union or-
ganizers removed from the jobsite by law enforcement officers,
informing its employees that an employee had been laid off
because of his union activities, threatening that the Company
would close if the Union succeeded in organizing its employ-
ees, and threatening representatives of the Union physical vio-
lence if they did not cease engaging in activities protected by
Section 7 of the Act, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and Section 2(6) and (7) of the Act.
2. By laying off Eric Berner because of his union activities,
the Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (3) and
Section 2(6) and (7) of the Act.
3. By refusing to hire the nine employee-applicants named
in subparagraph 2(d) of the recommended order, because of
their affiliation with the Union, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily laid off Eric Berner,
it must offer him reinstatement and make him whole for any
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1230
loss of earnings and other benefits, computed on a quarterly
basis from date of layoff to date of proper offer of reinstate-
ment, 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).
The Respondent, having unlawfully refused to hire Kelly
Hall, Mitchell Butts, and Larry Cadle, who applied on June 5,
2000; Stanley Campbell, Robert Teitel, Donald Clemens, Ar-
thur Kessler, and Stephan Hutton, who applied on April 12,
2001; and Rebecca Ellison, who applied on August 22, 2001; it
must offer them instatement and make them whole for any loss
of earnings or other benefits they may have suffered as a result
of the discrimination practiced against them from the date that
they would have commenced working for the Respondent,
which I find to be the date following their respective applica-
tions, to the date that their employment would have ended, less
any net interim earnings, as prescribed in F. W. Woolworth Co.,
supra, plus interest as computed in New Horizons for the Re-
tarded, supra. The amounts due to the discriminatees, if any-
thing, shall be determined at a compliance hearing taking into
account amounts they would have received on other jobs to
which the Respondent would later have assigned them. Dean
General Contractors, 285 NLRB 573 (1987).2
Insofar as the work at the jobsites involved in this proceed-
ing has been completed, Respondent must mail a copy of the
Notice to all former employees who were working for the Re-
spondent on June 5, 2000, and all former employees who
worked for the Respondent at any time thereafter. Jo-Del, Inc.,
326 NLRB 296 at fn. 4 (1998).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The Respondent, Zarcon, Inc., Springfield, Missouri, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to hire employee applicants because they are
members of Carpenters Local 978, any local union affiliated
with Carpenters District Council of Kansas City & Vicinity, or
any other labor organization.
(b) Laying off employees because of their union membership
and activities.
(c) Informing employees that it would have union organizers
removed from jobsites by law enforcement officers.
(d) Informing employees that an employee had been laid off
because of his union activities.
(e) Threatening closure if the Union succeeded in organizing
the Company’s employees.

2 Although all employees hired in May and June 2000 ceased work-
ing by the end of that year, the testimony of Bearden confirms that the
employees were moved from job to job in the Springfield area.
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.
(f) Threatening representatives of the Union physical vio-
lence if they did not cease engaging in activities protected by
Section 7 of the Act.
(g) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Eric
Berner 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 Eric Berner 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.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful layoff, and within 3 days
thereafter, notify Eric Berner in writing that this has been done
and that the layoff will not be used against him in any way.
(d) Within 14 days from the date of this Order, offer Kelly
Hall, Mitchell Butts, Larry Cadle, Stanley Campbell, Robert
Teitel, Donald Clemens, Arthur Kessler, Stephan Hutton, and
Rebecca Ellison instatement to the positions for which they
applied, or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges to which they would have been enti-
tled if the Respondent had not discriminated against them.
(e) Make the above-named discriminatees whole for any loss
of pay and benefits they may have suffered as a result of the
discrimination against them, to be computed in the manner set
forth in the remedy section of this decision.
(f) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful refusal to hire the above-
named discriminatees and, within 3 days thereafter notify them
in writing that this has been done and that the unlawful actions
will not be used against them in any way.
(g) Within 14 days from the date of this Order, notify the
above-named discriminatees in writing that any future job ap-
plication will be considered in a nondiscriminatory way.
(h) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to determine the amount of back-
pay due under the terms of this Order.
(i) Mail to all former employees employed by the Respon-
dent at any time on or after June 6, 2000, and post at its office
and jobsites in and around Springfield, Missouri, copies of the
attached notice marked “Appendix.”4 Such notice shall be
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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ZARCON, INC. 1231
mailed to the last known address of each former employee.
Copies of the notice, on forms provided by the Regional Direc-
tor for Region 12, after being signed by the Respondent’s au-
thorized representative, shall be mailed within 14 days after
service by the Region and 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

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(j) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.