Bonita Nurseries, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1998

326 N.L.R.B. 1164 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1164
Bonita Nurseries, Inc. and Hansen Brothers, Incorpo-
rated, Joint Employers and United Association
of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and
Canada, Local 741, AFL–CIO. Case 28–CA–
13906
September 30, 1998
DECISION AND ORDER
BY MEMBERS FOX, HURTGEN, AND BRAME
On February 19, 1998, Administrative Law Judge Mi-
chael D. Stevenson issued the attached decision. The
General Counsel, joined by the Charging Party, filed
exceptions and a supporting brief. The Respondents
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 exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.2
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Liza Walker-McBride, Esq., for the General Counsel.
William P. Allen and Gerard Morales, Esq., of Phoenix, Ari-
zona, for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge. This
case was tried before me at Tucson, Arizona, on June 24, 25,
and 26, 1997,1 pursuant to a complaint issued by the Regional
Director for Region 28 of the National Labor Relations Board
on December 31, and which is based on a charge filed by
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, Local 741, AFL–CIO (Union) on September 13. The
complaint alleges that Bonita Nurseries, Inc. and Hansen
Brothers, Incorporated (Respondents) have engaged in certain
violations of Section 8(a)(1) and (3) of the National Labor Re-
lations Act (the Act).

1 The General Counsel and the Charging Party have excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge's credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
2 We find unpersuasive the Acting General Counsel’s contention, in
which the Charging Party joins, that a violation has been established
here even if the Respondents are not found to be joint employers. We
note that this contention is contrary to the allegations of the complaint
and to the position taken by the Acting General Counsel at the hearing.
We agree with the judge’s finding that the Respondents are not joint
employers, and we therefore dismiss the complaint on that basis. We
find it unnecessary to pass on the judge’s alternative basis for dismiss-
ing the complaint.
1 All dates are in 1996 unless otherwise indicated.
The principal issues are: (1) Whether Respondents are joint
employers; and (2) Whether Respondent Bonita made offers of
employment to Gilbert Barios, Mark Gallego, Allen Slatzer, Jay
Casey, Philo Nichols, and Benjamin Witt, and subsequently
withdrew the offers because the offerees joined, supported, and
assisted the Union, or engaged in other concerted activities for
the purposes of collective bargaining or other mutual aid or
protection and in order to discourage employees from engaging
in such activities or other concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. Briefs, which have
been carefully considered, were filed on behalf of the General
Counsel and Respondent.
On the entire record of the case, and from my observation of
the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. RESPONDENTS’ BUSINESS
Respondent Bonita Nurseries, Inc. admits that it is a Dela-
ware corporation engaged in the production and wholesale
distribution of tomatoes and that it has an office and place of
business located in Wilcox, Arizona. Respondent Bonita Nurs-
eries, Inc. further admits that during the 12-month period end-
ing September 13, in the course and conduct of its business
operations described above, it has sold and shipped from its
facility goods valued in excess of $50,000 directly to points
outside the State of Arizona. Accordingly, it admits and I find,
that it is an employer engaged in commerce and in a business
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
Respondent Hansen Brothers, Incorporated admits that it has
been engaged in the construction business since 1974 and that it
has an office and place of business located in Wilcox, Arizona.
Respondent Hansen stipulated at hearing (Tr. 12), and I find
that for all times material to this case, that it is an employer
engaged in commerce and in a business affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondents admits at hearing, and I find, that United Asso-
ciation of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, Local
741, AFL–CIO is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Overview
Sometime before 1992, a process was developed for growing
tomatoes in a liquid solution (hydroponic). Under the right
conditions, and with a properly constructed greenhouse, the
process could be extremely profitable. Apparently climate
conditions in southeastern Arizona near Tucson are ideal, be-
cause in 1992, Respondent Bonita Nurseries, Inc. (Bonita) be-
gan construction of the first greenhouse consisting of 10 acres
under roof (phase 1). The results were so successful that in
1994 an additional 10-acre greenhouse was added to the first
326 NLRB No. 105
BONITA NURSERIES, INC. 1165
(phase 2), and in 1996 a third 20-acre greenhouse was added
(phase 3). The record contains an overhead photograph of the
40-acre structure (R. Exh. 4), which produces annually ap-
proximately 20 million pounds of beefsteak tomatoes.
The record is sparse regarding the identity of the builders of
the original structure in 1992. It appears that Bonita, working
in collaboration with a Dutch company called Dalsem-
Kassenbouw (Dalsem), erected the greenhouse, using a local
general contractor. Apparently because the Dutch either in-
vented and/or refined the technology for the growing of toma-
toes in liquid solution, they were considered the experts in the
process. All or most of the supervisors in phase 1 were Dutch.
Nonsupervisory labor included Dutch, Belgium, Mexican (pos-
sibly undocumented), and others. All nonsupervisory employ-
ees, foreign and local, shared a nonunion status. Employee
classifications on phase 1 included irrigation system installers
(other), pipefitters, heating/air-conditioning technicians, gla-
ziers, metal assemblers/welders, cement masons, and laborers.
The use of nonunion employees, some of whom were na-
tionals of a foreign country and some of whom may not have
been legally working in the United States, angered local union
officials who believed their members should have the jobs.
One of these affected unions was the Charging Party, which
represented many classifications used on the construction work
of the greenhouse. For all times material to this case, Wayne
Bryant was marketing representative for the Union. Bryant, a
General Counsel witness, and another union official named
Ross Hazlett were to play major roles in the instant case. By
the time Bonita began phase 2 of the project, the Union was
ready to battle for the jobs.
2. Phase 2
In 1994, either Dalsem or Bonita caused an ad to be placed
in a local paper seeking experienced heating engineers and
other classifications needed to work on phase 2. Bryant re-
sponded, but was told by an employer representative that it was
too late for Americans to be hired on the project and that Bry-
ant might be used on the next phase. Another person who re-
sponded was Philo Nichols, alleged discriminatee and the Gen-
eral Counsel witness. A member of the Union for over 25
years, Nichols applied for work as a pipefitter or heating engi-
neer, but was not hired.
During the hiring process for the 1994 project, Bryant
learned that Dalsem had applied for labor certifications (visas)
for foreign labor. The application was denied by the U.S. De-
partment of Labor, on the grounds that Dalsem submitted the
application instead of Bonita, an American company, as re-
quired by regulation (G.C. Exh. 38). It is not clear what role, if
any, the Union played in the denial of the application. It is
clear, however, that after denial, the Union learned that certain
foreign workers were employed on phase 2. Believing the for-
eign workers were there illegally, the Union made a complaint
to the U.S. Department of Immigration and Naturalization Ser-
vice (INS). Upon receiving this information, INS conducted a
“raid” on the phase 2 jobsite where a number of undocumented
workers were arrested. The record does not show the final
disposition of the 1994 INS charges.
The Union also complained to the Arizona Registrar of Con-
tractors, an agency responsible for enforcing the State’s re-
quirement that general contractors have proper licenses (and
warranties of work and bonds) to perform construction work in
that State. The General Counsel called a witness named Andy
Ridgley, an investigator for the Arizona State Registrar of Con-
tractors, a consumer protection agency. In 1994, Ridgley re-
sponded to the Union’s complaint, and after investigation, de-
termined that Bonita was acting as a general contractor, i.e.,
hiring subcontractors to perform work on the project and over-
seeing their work, without an Arizona general contractor’s li-
cense. Bonita’s president, Johan van den Berg, pled guilty to
this charge and was fined approximately $750 plus court costs.
Notwithstanding all the above, phase 2 was ultimately com-
pleted and the result was so successful that phase 3 went into
the planning stages in 1995. This time many of the issues
glossed over in phases 1 and 2 would be joined for the instant
case. The same confusion as to the identity of the general con-
tractor, the role of foreign labor, and whether union labor was
unlawfully kept off the project are all present.
3. Phase 3
a. With one exception, the General Counsel called all of Re-
spondent’s witnesses as adverse witnesses. Perhaps the most
important adverse witness is Van den Berg, president of Bonita
and 50 percent owner of the Company. He is also president of
USVHP Greenhouse Management which controls the produc-
tion processes in the greenhouse and played no role in the con-
struction of the final 20-acre greenhouse.
Bonita began its preparation for phase 3 by following the
same path it took in 1994. That is, it first entered into an
agreement with Dalsem to construct the greenhouse by using
Dutch, Belgium, and other foreign supervisory and non-
supervisory employees. This time a number of new parties
were on the scene. First, on December 1, 1995, a European
company named Hortitec, owned in whole or in part by Van
Heynincen, Van den Berg’s Bonita partner, entered into agree-
ment with Bonita to supply the raw materials to erect the
greenhouse (G.C. Exh. 11).
Bonita employs Nic Helderman as general manager and
Jeane Wilmoth as controller, and both testified as adverse wit-
nesses for the General Counsel. In addition, Darcy Renfro also
testified as an adverse witness for the General Counsel. Renfro
works as a senior associate for a Tucson business, Strategic
Issues Management Group (SIMG). In May 1995, this com-
pany and Renfro in particular were retained by Bonita (G.C.
Exh. 3), to assist in the application for visas for Dutch and Bel-
gium employees to work on phase 3, allegedly as employees of
Dalsem. These applications had to be funneled through a state
agency and ultimately to the U.S. Department of Labor. As
part of the process, local unions had to be given notice that
Bonita was seeking, allegedly on behalf of Dalsem, visas for
four classifications, irrigation-system installers, heating transfer
technicians, glaziers, and metal assemblers (G.C. Exhs. 39(a)–
(d). To be successful, the applicant was required to show that
qualified and experienced local labor was not available to do
the job.
For the Union, it was “deja vu all over again.” They re-
ceived notice of the new applications and initially took the
position as before, that there was an abundance of local labor
qualified and available, and the labor was registered as union
members in good standing in the Union’s hiring hall.
In fact, in late summer or early fall 1995, Bonita had caused
ads to be placed in certain local publications seeking local per-
sons with the skills sought in the visa applications. By now this
procedure was familiar terrain as it had been done for phase 2.
A number of persons responded to the ads, including five of the
six alleged discriminatees (for unknown reasons Benjamin Witt
did not testify). In addition to those union members who re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1166
sponded and were interviewed, in late October 1995, the Union
gave Renfro and Helderman a list of other union members sup-
posedly available for work (R. Exh. 9). This was apparently a
list of all members in the Charging Party’s Local, with phone
numbers blocked out by Bryant, supposedly based on the re-
quirements of some privacy law. When Renfro and Helderman
complained that the list of names was worthless, a second
shorter list was produced by the Union a few days later, this
time with phone numbers available (R. Exh. 11). Renfro and
Helderman attempted to contact the persons on the second list
to invite them to submit applications, but they had little or no
success, due either to disinterest or to inability to contact the
person.
During the fall of 1995, a series of meetings was held be-
tween Renfro and Bryant and other union officials for the pur-
pose of enlisting union officials into the campaign for approval
of the visa applications. During one or more of these meetings,
Bryant raised the possibility of Bonita signing a collective-
bargaining agreement (project agreement) with the Union.
Bryant furnished a draft to Renfro (G.C. Exh. 40). When the
proposed agreement went nowhere (i.e., there is no credible
evidence that Bonita ever seriously considered entering into a
project agreement), Bryant even drafted a short form project
agreement (G.C. Exh. 45) which met a similar fate.
If the project agreement had been accepted, there would have
been no need for visas for foreign labor. However, Bryant held
out a prospect of joining Bonita in an effort to obtain supervi-
sors’ visas in return for a project agreement. As the project
agreement was not accepted, and the parties never negotiated
over same, the Union not only refused to assist in Renfro’s
efforts to obtain visas, but actively opposed her efforts.
On December 5, 1995, Bonita’s application for visas was de-
nied by the Department of Labor (G.C. Exh. 8). An appeal to
the Department of INS was similarly denied.
b. As a result of Bonita’s inability to obtain visas, it suppos-
edly considered for a time acting as general contractor for
phase 3. This is what Bonita attempted to do in phase 2, but
ended up pleading guilty to violations of applicable Arizona
regulations and paying a fine. In 1996, as in 1994, Bonita
lacked an Arizona general contractor’s license and clearly
could not be a general contractor in phase 3. Notwithstanding
these facts, on March 18, Wilmoth sent a “Dear Andy” letter to
Ridgley, the state investigator responsible for the 1994 plea of
guilty, and asked a series of legal questions relative to the State
of Arizona licensing laws for contractors (G.C. Exh. 14). Ridg-
ley, apparently untroubled by the question of whether he was
practicing law without a license, answered the question. Nei-
ther the questions nor the answers are particularly helpful in
resolving the issues presented in this case. It suffices to say
that Bonita concluded if it wanted phase 3 built, it was required
to enter into a contract with a general contractor licensed by the
State of Arizona.
c. The General Counsel called James Hansen as an adverse
witness. Hansen, co-owner of Respondent Hansen Brothers,
Incorporated (Hansen Bros.) testified that in the early 1990’s,
he suffered a work-related accident which caused him to be off
work for 4 years. Just as his recuperation was ending, a person
named Jim Martin who did accounting work for Hansen Bros.
told him about the project in question in this case. By coinci-
dence, Martin also did accounting work for Bonita, but he did
not testify in this case. Martin, Van den Berg and Hansen all
lived in or around Wilcox, Arizona. Hansen Bros. had per-
formed some work on phase 2, but not as a general contractor.
Apparently, its work was satisfactory, as Van den Berg selected
Hansen Bros. over another contractor named Smith & Bell
which had been the general contractor on phase 1.
Originally, phase 3 had been scheduled to begin in Decem-
ber, 1995, but when the visa applications and Bonita as a gen-
eral contractor didn’t work out, the project was pushed into the
spring. On April 8, Bonita, Hansen Bros., and Hortitec as
“Owner’s Agent” entered into a contract for the building of
phase 3 (G.C. Ex. 10). The contract specified (p. 2) that Han-
sen Bros. was to contract and coordinate with various owner
appointed administrators who will provide technical expertise
and supervision of the construction of the greenhouse and in-
stallation of the agricultural equipment. In addition, Hansen
Bros. was authorized to contract as required, with subcontrac-
tors licensed by the State of Arizona. Hansen Bros. itself was
fully licensed by the State of Arizona: Plumbing license (Feb.
10, 1995), a general building contractor’s license (Feb. 10,
1995), and a general commercial contractor’s license (April 8,
1996) (G.C. Exh. 48).
Before the work got underway in April, Hansen first hired
Russell Tunks as job superintendent and working foreman. A
statutory supervisor, Tunks was responsible for hiring all Han-
sen Bros. employees (about 19–20) and for supervising not
only Hansen Bros. employees, but also the employees of vari-
ous subcontractors on the job. He also was responsible for
reporting work hours to Wilmoth so she could prepare the pay-
roll. Tunks did not testify in the case.
As noted above, Hansen arranged with Wilmoth, Bonita’s
controller, to prepare the payroll for Hansen Bros. In addition,
Wilmoth prepared Hansen Bros. quarterly tax returns, wrote
checks on Hansen Bros. accounts in accord with instructions of
Jim Hansen, made periodic payments to subcontractors and
prepared and signed I–9 forms. According to Wilmoth, an I–9
is a U.S. Government form for each employee, that ensures that
the employer is only hiring people who are legally entitled to
work in the U.S. (Tr. 243). Wilmoth agreed to perform the
work for Hansen Bros. because for some reason Martin could
not. With the use of computer programs, and her own exper-
tise, Wilmoth spent only 2–3 hours per week working on Han-
sen Bros.’ matters, a job which she performed with the knowl-
edge and permission of Van den Berg.
On some of the forms and reports which Wilmoth completed
for Hansen Bros., she adopted the practice of placing after her
name, “administrative assistant.” Wilmoth credibly testified
that she created the title on her own as she didn’t know what
title to use. I attach no particular significance to the use of this
title, because to do so would elevate form over substance.
Some of the accounting work and check writing done for
Hansen Bros. by Wilmoth related to certain subcontractors and
suppliers. A detailed analysis of this evidence is not required.
It suffices to say that Hansen Bros. received from Bonita
$40,000 for its services plus costs. As permitted by its general
contractors license, Hansen Bros. contracted with certain sub-
contractors to perform work on phase 3. Many or most of these
subcontractors had performed work on phases 1 and 2 and it is
possible that Bonita may have conveyed this information to
Hansen Bros. According to Wilmoth, Bonita also entered into
contracts with suppliers such as Cobre Building System, Terry
Preas Welding and Avila Concrete. Among the Hansen Bros.
subcontractors to which Wilmoth may have written checks on
behalf of Hansen Bros. were Agro Welding, a heating contrac-
BONITA NURSERIES, INC. 1167
tor, controlled by Harry Bonsang who also lives in the Wilcox
area and worked on phase 3, Wilcox Rock & Sand, a cement
supplier, DuBois Excavating,2 Mountain High Greenhouse
Const., which provided certain glazier services, and Guardian
Industries, a supplier of glass to the project, rather than a sub-
contractor. (As to Guardian, in some cases, it may also have
dealt directly with Bonita.)
No representative of any administrator, subcontractor, or
supplier testified, and the various business arrangements and
practices described by Wilmoth are not in every instance crystal
clear.
B. Analysis and Conclusions
1. Preliminary issues
In their answer (G.C. Exh. 2 (e), p. 3), Respondents have
raised two affirmative defenses: “Estoppel” and “applicable
statute of limitations.” At hearing, counsel for Respondent
elaborated on his theory of these affirmative defenses. As to
the first, Respondent argues “equitable estoppel” in that the
alleged discriminatees knew or should have known that there
would be no job for them well before the construction began.
As to the second affirmation defense, counsel contends the
charge was filed December 13, 1996, which is well outside the
statute of limitations (Tr. 9).
The burden of proving these affirmative defenses, or any af-
firmative defenses is on the party asserting them. Sage Devel-
opment Co., 301 NLRB 1173, 1189 fn. 37 (1991). In addressing
these defenses, I have first searched Respondents’ brief in vain
for any factual or legal argument to support the affirmative
defense. Because Respondents have not argued the points in
the brief, I find these matters have been waived. Cf. Food &
Commercial Workers Local 137 v. Food Employers Council,
827 F.2d 519 fn. 2 (9th Cir. 1987); FTC v. World Travel Vaca-
tion Brokers, 861 F.2d 1020, 1025–1026 (7th Cir. 1988); and
Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1988).
In any event, I also find that the defenses lack merit. In All
Shores Radio Co., 286 NLRB 394, 398 (1987), the Board ex-
pressed grave doubts as to whether the doctrine of equitable
estoppel can be applied against the Government or one of its
agencies. The Board also concluded on the merits that an at-
torney could not rely on a time extension to file an EAJA appli-
cation, granted by the Board’s Executive Secretary, where the
Executive Secretary lacked authority to grant such extension.
Assuming arguendo that equitable estoppel might apply to the
NLRB, I find that the Respondents fall short because there was
no privity between the Board and Respondents at the time the
alleged discriminatees applied for employment. Ryan Opera-
tions G.P. v. Santiam-Midwest Lumber Co., 31 F.3d 355, 360
(3d Cir. 1995); Konstantinidis v. Chen, 626 F.2d 933, 936–937
(D.C. Cir. 1980). Finally, I find no evidence to show that when
they applied for work the alleged discriminatees knew that so
far as Bonita was concerned, there were no jobs for them. In
fact, the opposite is true: they were offered jobs.
As to the statute of limitations defense, I first note that the
charge was filed on September 13, not December 13. More-
over, the project did not begin until on or about April 8. Ac-
cordingly, the charge is well within the 6-month limitation
period.

2. Apparently Hansen Bros. made an unsecured loan to DuBois prior
to the time it commenced work on phase 3.
In light of the above, Respondents’ affirmative defense are
without merit.
2. Alleged joint employer status
The General Counsel urges that Bonita and Hansen Bros. are
joint employers. In NLRB v. Browning-Ferris, 691 F.2d 1117,
1122–1123 (3d Cir. 1982), the court explained exactly what a
joint employer is:

two independent legal entities that have merely historically
chosen to handle jointly . . . important aspects of their em-
ployer-employee relationship. In other words, one employer,
while contracting in good faith with an otherwise independent
company, has retained for itself sufficient control of the terms
and conditions of employment of the employees who are em-
ployed by the other employer. [Citations omitted].

In sum, the issue to be resolved in a case like the present case,
is whether the employer exercises or has the right to exercise
sufficient control over the labor relations policies of the con-
tractor or over the wages, hours and working conditions of the
contractor’s employees from which it may be reasonably in-
ferred that the employer is in fact an employer of the contrac-
tor’s employees. Southern California Gas Co., 302 NLRB 456,
461 (1991).
At page 24 of its brief, the General Counsel cites the case of
Holiday Inn of Benton, 237 NLRB 1042, 1044 (1978), enfd. in
part 617 F.2d 1264 (7th Cir. 1980). In Holiday Inn, the Board
arranged its analysis of joint employer status into four principal
factors: (1) interrelation of operations; (2) centralized control
of labor relations; (3) common management, and (4) common
ownership or financial control. In as much as these four factors
are the very same mentioned by the Supreme Court in Radio
Union v. Broadcast Service of Mobile, 380 U.S. 255, 256
(1965), to determine “single employer” status, it appears that
the court in Browning-Ferris Industries, supra, is correct when
it speaks of a blurring of the “joint employer” and “single em-
ployer” concepts.3 In fact, in TLI, Inc. and Crown Zellerbach
Corp., 271 NLRB 798 (1984), enfd. mem. 772 F.2d 896 (3d
Cir. 1985), the Board specifically adopted the appropriate stan-
dard set forth in NLRB v. Browning-Ferris Industries.
The General Counsel’s case rises or falls on the role played
by Wilmoth who performed certain payroll and accounting
tasks for Hansen Bros. while she was a full-time employee of
Bonita. In reviewing the scope of her activities for Hansen
Bros., the time spent each week performing them and the fact
that she received instead of wages from Hansen Bros., only a
promise by Jim Hansen to perform work on her house in the
future, I am convinced that the General Counsel’s evidence
falls short of establishing joint employer status. First, there is
no evidence that Wilmoth had authority to hire, fire, discipline,
responsibly direct or perform any other supervisory function
with respect to the employees working on the project. While
her unilateral use of the term “administrative assistant” on cer-
tain forms she completed for Hansen Bros., might raise ques-
tions, I credit Wilmoth’s explanatory testimony that she used
the term on her own, because she didn’t know any other title to
use. Moreover, suspicion cannot serve as a basis for finding
discriminatory conduct on Respondents’ part. International
Assoc. of Firefighters, 297 NLRB 865, 872 (1990).
3 See also II Hardin, Developing Labor Law, 1599 (3d ed. 1992),
and NLRB v. Western Temporary Services, 821 F.2d 1258, 1266 (7th
Cir. 1987).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1168
While it is true that Bonita exercised some control over ap-
pointment of the administrators, administrators were not em-
ployees. Hansen Bros. exercised control over hiring and day-
to-day work of employees, his own and many of the subcon-
tractors. Jim Hansen delegated this job in particular to Tunks,
his superintendent, who did not testify.4 I have considered
whether an adverse inference may be drawn and weighed
against Respondents for not calling Tunks.5 Since there is no
evidence that Tunks currently works for Hansen Bros., it would
be inappropriate to draw an adverse inference.6 NLRB v. Nor-
bar, Inc., 752 F.2d 235, 240 (6th Cir. 1985); Lancaster-
Fairfield Community Hospital, 303 NLRB 238 fn. 1 (1991).
Even if I were to draw an adverse inference, it would not assist
General Counsel to overcome the lack of evidence in proving
joint employer status. See Riverdale Nursing Home, Inc., 317
NLRB 881, 882 (1995). Bonita has nothing to do with Tunks
and it simply cannot be shown that Bonita meaningfully af-
fected matters within the purview of Hansen Bros. relating to
the employment relationship such as hiring, firing, discipline,
supervision and direction.” Id. at. 882. See also Namer, Inc.,
285 NLRB 521, 521–522 (1987).
In sum, I have considered the argument of the General Coun-
sel in the context of this record and conclude, as did the Board
in TLI, Inc., that any control exercised by Bonita over the con-
struction workers on phase 3 did not affect the terms and condi-
tions of employment to such a degree that Bonita may be
deemed a joint employer. I reach the same conclusion with
respect to any control Bonita may have had over the economics
of its relationship with Hansen Bros. Accordingly, I conclude
that Bonita and Hansen Bros., for all times material to this case,
have not been proven to be joint employers.
At page 33 of her brief, the General Counsel contends in the
alternative, that even if I do not find a joint employer relation-
ship between Respondents, the evidence supports a finding that
Respondents individually engaged in conduct proscribed by the
Act. This argument faces a threshold barrier which cannot be
overcome: it is outside the scope of the complaint. The General
Counsel recognized as much in an end of the case colloquy
with the judge:

J. Stevenson: So you would contend that if I were to not find
a joint employer status, I, of necessity, would not be able to
find a refusal to hire for union related reasons then, is that
right?

Ms. Walker-McBride: I think that’s true.

[Tr. p. 702]

4 Tunks hired a welder named Ray Nevins to work on phase 3.
Nevins was the only witness to testify for Respondent. Nevins claimed
to have been a union man when he was hired by Tunks in the spring.
However, sometime before he was hired, Nevins had stopped paying
union dues. I find his probative value to Respondents’ case limited—
very limited.
5 In her argument regarding joint employer status, the General Coun-
sel devotes only a small portion to Tunks (Br., 25). I note that the
General Counsel could have called Tunks as a witness, much as she
called all or most of Respondents’ officials as her witnesses.
6 I also find it inappropriate to draw an adverse inference relative to
Bonsang, a rather mysterious character in the case. There is no evi-
dence, merely because he was a subcontractor on the project to consider
him favorably disposed toward Hansen Bros.
Regrettably, the General Counsel does not address her change
of position in the brief, nor the apparent legal issues raised.7
Because the General Counsel alternative position will not
change the end result in this case, I will consider it on its mer-
its.
3. Alleged unlawful refusal to hire
As already mentioned, the General Counsel alleges in the
complaint that Respondents unlawfully refused to hire six em-
ployees. Also as noted above, five of the six testified as the
General Counsel’s witnesses. Before considering their testi-
mony, I recite some familiar legal principles. The elements of a
refusal to hire case are contained in Big E’s Foodland, Inc., 242
NLRB 963, 968 (1993):

Essentially, the elements of a discriminatory refusal to hire
case are the employment application by each alleged dis-
criminatee, the refusal to hire each, a showing that each was
or might be expected to be a union supporter or sympathizer,
and further showings that the employer knew or suspected
such sympathy or support, maintained an animus against it,
and refused to hire the applicant because of such animus.

See also J. M. Merit Constructors, 302 NLRB 301, 303–304
(1991).
I begin by questioning the bona-fides of the alleged dis-
criminatees in this case. In general, applicants as potential
employees are accorded the protection of the Act. NLRB v.
Mount Desert Island Hosp., 695 F.2d 634, 638 (1st Cir. 1982).
Even applicants, so-called “salts,” whose primary objective is
to organize their fellow employees after they are hired onto a
job, are considered employees and entitled to the protection of
the Act. See NLRB v. Town & Country Electric, 516 U.S. 85
(1995). Yet, this case presents a different issue: the applicants’
offer to work represented by their applications and interviews
was conditional. They would work if and only if the employer
signed a project agreement. Since under the facts and circum-
stances of this case, neither nonparty Dalsem, nor Bonita nor
Hansen Bros. were legally required to sign a project agreement,
the applicants’ undisclosed condition precedent renders their
status as bona-fide applicants for employment suspect.
O’Daniel Trucking Co., 313 NLRB 18 fn. 1 (1993). Compare
D.S.E. Concrete Forms, Inc., 303 NLRB 890 fn. 2 (1991). For
this reason, I therefore recommend that this segment of the case
be dismissed.8
Assuming in the alternative, that the applicants were bona-
fide, I will also recommend dismissal, using the Board’s Wright
Line analysis.9
I find that each of the discriminatees who testified was
known by Helderman and Renfro to be a union supporter or
7 I see three potential issues here:
(1) Does the complaint bar the General Counsel from taking the al-
ternative position she does in the brief?
(2) Was the alternative position argued by the General Counsel in its
brief fully litigated?
(3) Finally, do the General Counsel’s remarks to me raise a question
whether Respondents may have been misled to its prejudice as to what
the General Counsel’s position was?
8 There is no issue in this case regarding union salts. Compare M. J.
Mechanical Services, Inc., 324 NLRB 815 (1997).
9 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982); approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983). Manno Electric, Inc., 321
NLRB 278 (1996).
BONITA NURSERIES, INC. 1169
sympathizer, and that these two interviewers were agents of
Bonita whose knowledge is imputed to Respondent. After the
interviews, Casey was sent a letter offering him a position:

November 10, 1995

Jay Casey
4735 W. Mars St. #2
Tucson, AZ 85741

Dear Jay:

We are happy to inform you that after an extensive re-
view of your application and interview with Bonita Nurs-
eries we would like to offer you a position in our upcom-
ing project. As you know, we are constructing a state of
the art 20 acre Greenhouse utilizing the latest technology
in construction, irrigation and heating transfer. This pro-
ject promises to be challenging as well as rewarding.
Please call Nick Halderman, the general manager at
Bonita Nurseries at 520–384–4621 as soon as possible for
specific information regarding the job.

We are looking forward to working with you.

Sincerely,

/s/ Johan van den Berg
Johan van den Berg
[G.C. Exh. 5]10

The other alleged discriminatees, received similar letters of-
fering them positions. Slatzer, who retired about the time the
project was getting underway claimed that he never received an
offer of employment. But the General Counsel does not dispute
that Slatzer, too, was offered a position, just like the others (br.
10 and 11 fn. 5).
After Bonita contracted with Hansen, the commencement of
the project having been delayed due to the visa and licensing
problems recited above, and none of the alleged discriminatees
having contacted Bonita pursuant to G.C. Exh. 5, Bonita sent
out another letter to Wayne Bryant which reads as follows:

March 28, 1996

Wayne Bryant
9421 N. Raleigh Pl.
Tucson, Arizona 85737

Dear Mr. Bryant:

We are writing to inform you of the status of Bonita Nurser-
ies’ 20-acre expansion project in Bonita, Arizona. Since our
initial contact with in October of 1995, plans for construction
have changed significantly.

Unfortunately, Bonita Nurseries’ original plan to hire you in
conjunction with specialists associated with the greenhouse
manufacturing company did not come through. As a result,
Bonita Nurseries has contracted with a general contractor for
the construction of the 20-acre greenhouse. Construction per-
sonnel will be hired at the discretion of the contractor.

10 Casey claimed that he attempted to reach Helderman by phone for
two days during normal hours, but there was never any answer. I don’t
believe this testimony, because there is no reason to believe that Bonita
would not be answering its phone at a time when a multi-million dollar
project is in progress.
Again, thank you for your interest in working at Bonita Nurs-
eries. We will keep your name on file should we need addi-
tional help in your expertise.

Sincerely,

/s/ Nic Helderman
Nic Helderman
General Manager
[R. Exh. 25.]11

Upon receipt of this letter, which was identical to a letter
sent to some other job applicants, Bryant never advised any of
the alleged discriminatees about its contents, because the in-
formation was of no use to Bryant, even though he was an offi-
cial of the Union (Tr. 564). Sometime shortly before or after
receipt of the letter, Bryant learned that the new general con-
tractor was Hansen Bros. and that it would be hiring workers
(Tr. 564).
To recapitulate, I find that Bonita had good and sufficient
reasons for withdrawing the offers of employment tendered to
the alleged discriminatees in this case. That is Hansen Bros.
was the general contractor and specifically reserved for itself
the right to hire its own employees. No alleged discriminatee
ever applied to Hansen Bros. even though Bryant was advised
of the role of Hansen Bros. in phase 3. I find that the General
Counsel has failed to establish a prima facie case under Wright
Line and if it did, Respondents have rebutted the prima facie
case with credible evidence.12 For all reasons stated herein, I
will recommend that this case be dismissed.
CONCLUSIONS OF LAW
1. Respondents are employers within the meaning of Section
2(2) of the Act, engaged in commerce and in an industry affect-
ing commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondents have not engaged in the unfair labor practice
alleged in the complaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended13
ORDER
It is ordered that the complaint is dismissed in its entirety.
11 Bryant is not alleged to be a discriminatee, and it is not clear
whether he applied for work on phase 3. The point of the letter is to
give notice to Bryant and to the Union that all union members would
need to reapply with Hansen Bros. If those employees offered posi-
tions by Bonita had been automatically carried over to Hansen, this
would have lent support to the General Counsel’s joint employer the-
ory.
12 Among the other differences between the instant case and many
others where the violation has been found, is the lack of 8(a)(1) find-
ings or any other evidence from which illicit motive could be drawn.
Indeed, I have searched the record as a whole (see Casey Electric, Inc.,
313 NLRB 774 (1994)) for any evidence to show animus and have
found none.
13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.