Colburn Electric Co.

National Labor Relations Board - Board Decisions

Jul 16, 2001

334 N.L.R.B. 532 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 532
Colburn Electric Company and International Broth-
erhood of Electrical Workers, Local Union 995,
AFL–CIO, CLC. Cases 15–CA–13614 and 15–
CA–13617
July 16, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
TRUESDALE
AND WALSH
On February 20, 1998, Administrative Law Judge
Keltner W. Locke issued the attached decision. The
General Counsel and the Respondent each filed excep-
tions and a supporting brief, and the General Counsel
filed an answering brief to the Respondent’s exceptions.
On May 11, 2000, the Board issued its decision in
FES, 331 NLRB 9, setting forth the framework for
analysis of refusal-to-hire and refusal-to-consider allega-
tions such as those involved in this case. Thereafter, on
June 22, 2000, the Board invited the parties to file sup-
plemental briefs so that they could address “the FES
framework as it applies to the record in this case.” The
General Counsel subsequently filed a supplemental brief.
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, as modified and set
forth in full below.2
In this proceeding, the judge found that the Respon-
dent did not, as alleged, violate Section 8(a)(3) and (1) of
the Act by changing its application policy and hiring
practices, by refusing to consider for hire and to hire ap-
plicants Kendrick Russell, Wallace Roland Goetzman,
and Donald Longuepee, and by discharging employees
Eugene Cage, Patrick Clary, and Michael Simoneaux.3
The judge concluded, however, that the Respondent vio-
lated Section 8(a)(1) of the Act by promulgating and
maintaining a discriminatory no-solicitation rule,4 by
requiring employees to signify their assent to this unlaw-
ful rule, and by threatening employees with discharge if
they engaged in union activities, and violated Section
8(a)(3) and (1) of the Act by issuing a written warning to
employee Clifford Zylks and by discharging Zylks be-
cause of his union activities. We agree with all of the
findings the judge made, but we address at further length
his conclusions regarding the Respondent’s changes to
its application policy and hiring practices, as well as its
alleged refusals to consider for hire and to hire Russell,
Goetzman, and Longuepee.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In adopting the judge’s credibility resolutions that discredit testi-
mony by employee Patrick Clary, we do not rely on Clary’s purported
violation of the witness sequestration rule imposed during the hearing.
Rather, we affirm the judge’s credibility resolutions as to Clary’s testi-
mony based on his findings regarding this witness’ demeanor. See JD
II, F, par. 14.
2 We shall modify the recommended Order and issue a new notice in
accordance with our decisions in Indian Hills Care Center, 321 NLRB
144 (1996), and Excel Container, 325 NLRB 17 (1997). In doing so,
we modify the judge’s recommended Order and notice to reflect that
the Respondent’s overly broad no-solicitation rule included a provision
extending its unlawful prohibition to “working hours.” See fn. 4, infra.
A. Relevant Facts
During late 1995,5 the Respondent was performing
work as an electrical subcontractor to Nabholz Construc-
tion Co., the general contractor at the “Tanger Mall” job-
site in Gonzales, Louisiana. On November 28, the Re-
spondent, a nonunion contractor, placed an advertisement
in a local newspaper soliciting qualified electricians and
urging them to contact an “800” phone number the Re-
spondent maintained at its home office in Tulsa, Okla-
homa. The judge found that “a large number of appli-
cants” nevertheless visited the jobsite seeking employ-
ment. The Respondent’s job superintendent, Robert
Jackson, hired union salt Clifford Zylks on November 28
and three more employees, including Simoneaux, on
November 29, and they all began work the day after the
Respondent hired them. Jackson also promised a number
of other applicants electricians’ jobs that would begin
after a shipment of light fixtures arrived.
On December 1, the Union’s business manager, Ken-
drick Russell, visited the jobsite. In response to Rus-
sell’s questions, Jackson said that the Respondent had
about 6 weeks of work remaining on the project and then
“we’re gone.” Jackson added that he was waiting on a
shipment of light fixtures to arrive and we “might be
needing a few” electricians, but that the Respondent was
3 Although he adopts the judge’s findings that the Respondent law-
fully discharged employees Eugene Cage and Michael Simoneaux,
Chairman Hurtgen disagrees with the judge’s conclusions that the Gen-
eral Counsel established a prima facie case under Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982).
4 In adopting the judge’s finding that the Respondent’s no-
solicitation rule discriminatorily prohibited employees from engaging
in union activities, we note that there were no exceptions filed to the
judge’s failure to find the Respondent’s discriminatory no-solicitation
rule overbroad because it extended this to “working hours.” See Our
Way, 268 NLRB 394, 394–395 (1983).
5 All dates are in 1995, unless otherwise noted.
334 NLRB No. 72
COLBURN ELECTRIC CO. 533
“going to crank up with what we got right now but . . .
see how it goes.” Russell then informed Jackson that he
was going to bring some “guys that are unemployed” and
“we are going to try and organize your company.” Jack-
son responded, “that’s obvious.” When Russell asked if
the Respondent had “any problem hiring union electri-
cians,” Jackson said that he had no objection.
About December 1, after Russell’s visit, Jackson tele-
phoned the Respondent’s owner, Samuel Colburn, at
company headquarters in Tulsa to discuss the status of
the Tanger Mall project. Colburn “threw a hissy” when
Jackson reported that he had promised jobs to about 9 or
10 applicants who had replied to the Respondent’s news-
paper advertisement. Colburn asked Jackson “how can
you put that many people in one little building and work
them?” When Jackson asked what he should do, Colburn
replied that Jackson should call the applicants to whom
he had promised employment and tell them to report for
work after the light fixtures arrived. Colburn also told
Jackson not to take any more applications. The judge
found, based on Jackson’s and Colburn’s credited testi-
mony, that the Respondent had hired all the electricians it
needed for the Tanger Mall jobsite by this time.
On December 4, Russell again visited the Respon-
dent’s jobsite and brought Goetzman and Longuepee
with him in order to apply for work. Jackson told them
that, after the Respondent had placed the newspaper ad-
vertisement seeking electricians, he “probably had 30 or
40 people running in and out of this job filling out appli-
cations.” He explained that Nabholtz Construction,
based on insurance concerns, had ordered the Respon-
dent to meet job applicants offsite. Jackson told Russell
that he needed to contact the Respondent’s main office in
Tulsa and referred him to an “800” telephone number on
a sign that Jackson had posted on the Respondent’s
trailer. Thus, Russell and the two applicants who had
accompanied him to the jobsite did not receive applica-
tion forms on December 4.6
Later on December 4, Jackson telephoned Russell and
suggested that they meet at a restaurant near the jobsite.
The next day, Russell went alone to the restaurant and
completed a job application. When Russell asked Jack-
son about Goetzman and Longuepee, Jackson replied, “I
think we’re not going to take any more applications.”
On December 6, Jackson’s wife, Francine, who worked
with him on the jobsite, went to the same restaurant and
took applications from about six other applicants, includ-
ing alleged discriminatee Clary, to whom Jackson had

rden.

6 Additionally, the judge noted that “the record suggests that Jackson
had run out of application forms, and had none to provide when the
three men visited.”
promised jobs the previous week before Russell visited
the jobsite.
The judge found that the Respondent does not main-
tain a file of completed applications on hand for the pur-
pose of keeping track of job applicants for future consid-
eration. Rather, the Respondent, on hiring new employ-
ees, requires them to complete applications as it begins to
compile their personnel files.7
B. Refusal to Consider for Hire Allegations
In Wright Line,8 the Board formally set forth a test of
causation for all cases alleging violations of Section
8(a)(3), or violations of Section 8(a)(1) turning on em-
ployer motivation. Under the Wright Line test, in order
to establish that an employer unlawfully discharged an
alleged discriminatee, the General Counsel must show by
a preponderance of the evidence that the protected activ-
ity was a motivating factor in the employer’s decision to
discharge. Once the General Counsel has made the re-
quired showing, the burden shifts to the Respondent to
demonstrate that it would have taken the same action
even in the absence of the protected union activity.
Regarding the present case, Wright Line, supra, estab-
lishes the analytical framework for resolving alleged
8(a)(3) violations raised by refusal to consider for hire
allegations. Based on the Wright Line burdens of proof,
the recent decision in Wright Line, supra, sets forth the
specific criteria that the General Counsel has to meet in
order to demonstrate a prima facie case of a violation.
Thus, FES imposes on the General Counsel the burden to
show: “(1) that the respondent excluded applicants from
a hiring process; and (2) that antiunion animus contrib-
uted to the decision not to consider the applicants for
employment.” 9 Once the General Counsel has met both
prongs of the FES test, the burden shifts “to the respon-
dent to show that it would not have considered the appli-
cants even in the absence of their union activity or
affiliation.” The Board will find a violation if the
respondent cannot meet this bu
1. Alleged Discriminatory Change in Policy by Refusing
to Accept Applications at Jobsite
The complaint alleges that, about December 4, the Re-
spondent violated Section 8(a)(3) and (1) of the Act by
changing its policy in refusing to accept job applications
at its jobsite in order to discriminate against union-
7 The judge further found that, although the Respondent ultimately
gave Russell an application without any intention to hire him, the Re-
spondent deviated from its established policy as a precaution because
Russell was a business agent.
8 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
9 FES, supra at 15.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 534
affiliated applicants. In recommending dismissal of this
allegation, the judge analyzed this issue under Lancet
Arch10 in which the Board found a violation of Section
8(a)(3) and (1) even though the employer had not been
hiring when the conduct occurred. The Board in FES
superseded Lancet Arch by setting forth a new test that
encompasses all refusal to consider allegations relating to
the hiring process. Thus, FES provides the proper analy-
sis for determining whether the Respondent unlawfully
changed its application policy.
Applying the framework of FES to the present situa-
tion, we agree with the judge that the Respondent’s con-
duct was not unlawful. Here, the judge credited Jack-
son’s testimony that the general contractor had de-
manded, for insurance reasons, that the Respondent no
longer accept applications at the jobsite before these un-
ion applicants sought employment on December 4. The
credited evidence further shows that Colburn had told
Jackson not to take any further job applications by this
time because the Respondent had previously hired all the
employees it required for this job. Finally, the evidence
shows that the Respondent does not instruct job appli-
cants to complete employment applications until after the
Respondent has decided to hire them. In these circum-
stances, we conclude that the General Counsel has not
met its burden of establishing, pursuant to FES, supra,
“that the respondent excluded applicants from a hiring
process” by declining to give them applications on De-
cember 4.11 We shall therefore dismiss this complaint
allegation.
2. Alleged Discriminatory Change in Hiring Practices by
Accepting Applications at a Location
near the Jobsite
The complaint further alleges that, about December 6,
the Respondent violated Section 8(a)(3) and (1) of the
Act by accepting applications at a location near the job-
site. As stated, the framework for considering this alle-
gation is the refusal to consider for hire test set forth in
FES.
Applying FES here, we find that the Respondent did
not exclude union applicants from the hiring process by
changing the situs for accepting job applications to a
nearby restaurant. We reiterate that the Respondent took
this action based on a demand from the general contrac-

10 324 NLRB 191 (1997).
11 Although the General Counsel further argued that the Respondent
unlawfully changed its practice on the advent of the Union by requiring
applicants to contact its main office in Tulsa, we agree with the judge,
particularly given Nabholz’ insurance concerns, that the Respondent’s
conduct did not constitute a “material change” as an earlier newspaper
advertisement had also informed applicants to call this same “800”
number.
tor which had insurance concerns regarding the presence
of job applicants at the jobsite. Further, as noted, the
Respondent’s hiring had been completed and the filling
out of applications merely documented hiring decisions
already made.12 Thus, for reasons identical with those
supporting dismissal of the previous allegation, we con-
clude that the General Counsel did not meet the first
prong of the FES test.13
3. Refusing to Consider for Hire Russell, Goetzman,
and Longuepee
The complaint also alleges that, about December 4, the
Respondent refused to allow these individuals to submit
applications at the jobsite and, thus, refused to consider
them for employment. The judge applied the framework
in The 3E Co.14 and Ultrasystems Western Constructors15
in considering whether the Respondent’s conduct vio-
lated Section 8(a)(3) and (1) of the Act. The 3E Co. and
Ultrasystems required, inter alia, the General Counsel to
show that the employer either was hiring or had concrete
plans to hire at the time of its alleged refusal to consider
the applicant for hire. Because the General Counsel had
not shown that the Respondent was hiring at the time that
Russell, Goetzman, and Longuepee sought employment,
the judge applied existing precedent and concluded that
the Respondent had not unlawfully refused to consider
them for employment.
As stated, the Board in FES set forth a new test for re-
fusal to consider allegations and also implicitly overruled
3E and Ultrasystems to the extent they are inconsistent
with FES. Contrary to those earlier cases, the Board held
in FES that:

A refusal to consider an applicant on the basis of
union activity or affiliation has at least two inde-
pendent consequences, either of which would war-
rant a remedy, given the purposes of the National
12 There is no showing that the change in practice prejudiced appli-
cants with union affiliations or interfered with the exercise of their Sec.
7 rights in any manner. Indeed, after the Respondent accepted an ap-
plication from Russell at the restaurant about December 5, Jackson’s
wife went to the same restaurant the next day and received completed
applications from employees (including paid union organizer Patrick
Clary) to whom Jackson had promised jobs before the advent of the
Union.
13 In adopting the judge, we find it unnecessary to pass on the
judge’s statement at fn. 31 of his decision that “[t]he absence of an
alleged discriminatee would . . . preclude a finding” that there has been
discrimination in violation of Sec. 8(a)(3). It is well established that an
identifiable class of unnamed individuals can also constitute discrimi-
natees within the meaning of this provision. See generally Grand Rap-
ids Press, 325 NLRB 915 (1998), enfd. mem. 208 F.3d 214 (6th Cir.
2000).
14 322 NLRB 1058, 1061–1062 (1977), enfd. mem. 132 F.3d 1482
(D.C. Cir. 1997).
15 316 NLRB 1243, 1243–1244 (1995).
COLBURN ELECTRIC CO. 535
Labor Relations Act. First, the refusal excludes ap-
plicants from the hiring process, whether or not job
openings are available at the time of the application.
Such excluded applicants are then not within the
pool of applicants for whom future jobs may become
available. There is no question that an obstruction of
this sort constitutes discrimination “in regard to
hire” even if there are no job openings at the time it
is imposed. Second, such a discriminatory refusal is
a deterrent to employees’ engaging in their right of
self-organization.

331 NLRB at 16.
Thus, based on the two-pronged conjunctive test
stated in FES, a discriminatory refusal to consider now
violates Section 8(a)(3) of the Act even when the em-
ployer is not hiring any employees.16 The proper analy-
sis is whether the employer excluded applicants from the
hiring process and, if so, whether the employer treated
them in this manner based on antiunion considerations.
The General Counsel has failed to meet this burden with
respect to the first prong of the FES test in this instance.
Here, the general contractor, Nabholz Construction,
had ordered the Respondent to discontinue taking appli-
cations at the jobsite for insurance reasons. Thus, the
Respondent, for legitimate cause, began meeting with job
applicants at a nearby restaurant. Also, by the time these
alleged discriminatees applied for employment, the Re-
spondent had hired all the employees it needed to com-
plete the job. The Respondent’s employment practice is
to receive job applications only from employees whom
the Respondent has hired. Although the Respondent did
permit Russell, about December 5, to submit a job appli-
cation even though the Respondent had no plans for ad-
ditional hires at that time, the judge found that the Re-
spondent made an exception to its existing practice be-
cause of Russell’s status as a paid union official. The
refusal by the Respondent’s hiring official, Jackson, to
accept further applications from Goetzman and Longue-
pee at the jobsite is entirely consistent with the Respon-
dent’s general hiring policies.
Thus, for reasons identical with those supporting dis-
missal of previous refusal to consider for hire allegations,
the General Counsel did not meet his burden to establish,
based on the credited evidence, that the Respondent had
unlawfully excluded the alleged discriminatees from the
hiring process. Therefore, we shall also dismiss this
complaint allegation.

16 FES, supra.
C. Refusal to Hire Allegations
Based on the Wright Line burdens of proof, FES estab-
lishes the criteria that the General Counsel has to meet in
order to demonstrate a prima facie case of unlawful re-
fusal to hire. The General Counsel has the burden of
establishing on the merits under FES:

(1) that the respondent was hiring, or had concrete
plans to hire, at the time of the alleged unlawful con-
duct; (2) that the applicants had experience or training
relevant to the announced or generally known require-
ments of the positions for hire, or in the alternative, that
the employer has not adhered uniformly to such re-
quirements, or that the requirements were themselves
pretextual or were applied as a pretext for discrimina-
tion; and (3) that antiunion animus contributed to the
decision not to hire the applicants.

331 NLRB at 12. [Footnotes omitted.]
Once the General Counsel has met these FES require-
ments, the Respondent has the burden of showing that it
would not have hired the applicants even in the absence
of their union activity or affiliation and, if the Respon-
dent cannot meet this burden, the Board will find a re-
fusal to hire violation.
The complaint alleges that, since about December 4,
the Respondent has refused to hire applicants Russell,
Goetzman, and Longuepee. Here, as stated, the judge
credited testimony by Jackson and Colburn that the Re-
spondent had hired a sufficient number of employees to
finish the Tanger Mall job before the union applicants
sought work about December 4. As the judge found, the
Respondent had made commitments to hire a number of
employees, but was waiting for light fixtures to arrive at
the jobsite before putting the new hires to work. Thus,
we find that the General Counsel has failed to establish
the first prong of the FES test that the Respondent was
hiring at the time of the alleged unlawful refusal to hire.
We need not consider the other prongs of this conjunc-
tive test. Accordingly, we shall also dismiss this com-
plaint allegation.
ORDER
The National Labor Relations Board orders that the
Respondent, Colburn Electric Company, Tulsa, Okla-
homa, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining in effect a rule prohibiting employees
from discussing the Union or engaging in other union
activities during working hours, compelling employees
to sign or agree to abide by such an unlawful rule, or
otherwise threatening employees with discharge or other
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 536
adverse employment action if they discuss union-related
matters during working hours.
(b) Issuing written warnings to its employees because
they engaged in union activities during working hours.
(c) Discharging any employee who joined, formed, or
assisted the Union or engaged in concerted activities,
because the employee refused to assent to a rule unlaw-
fully restricting his right to engage in such protected ac-
tivities during working hours, and/or to discourage em-
ployees from engaging in such activities.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the rule it promulgated on or about De-
cember 21, 1995, which prohibited employees, under
penalty of discharge, from engaging in union activities
during working hours.
(b) Within 14 days from the date of this Order, rescind
the written warning issued to employee Clifford Zylks
and remove from its files any references to it or to Zylks’
subsequent unlawful discharge, and, within 3 days there-
after, notify him in writing that this has been done and
that this unlawful action will not be used against him in
any way.
(c) Within 14 days from the date of this Order, offer
employee Clifford Zylks full reinstatement to his former
job or, if this job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
(d) Make Clifford Zylks whole for any loss of earnings
and other benefits he suffered as a result of the unlawful
discrimination against him, with interest.
(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records, including an electronic copy of such re-
cords if stored in electronic form, necessary to analyze
the amount of backpay due under the terms of this Order.
(f) Within 14 days after service by Region 15, post at
its various facilities copies of the attached notice marked
“Appendix.”17 Copies of the notice, on forms provided
by the Regional Director for Region 15, after being
signed by the Respondent’s authorized representative,

17 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-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since December 21, 1995.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT maintain in effect a rule prohibiting
our employees from discussing the Union or engaging in
other union activities during working hours, compelling
our employees to sign or agree to abide by such an
unlawful rule, or otherwise threatening our employees
with discharge or other adverse employment action if
they discuss union-related matters during working hours.
WE WILL NOT issue written warnings to our employ-
ees because they engage in union activities during work-
ing hours.
WE WILL NOT discharge any employee who joined,
formed, or assisted the Union or engaged in concerted
activities, because the employee refused to assent to a
rule unlawfully restricting his right to engage in such
protected activities during working hours, and/or to dis-
courage employees from engaging in such activities.
COLBURN ELECTRIC CO. 537
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order,
rescind our unlawful no-solicitation rule promulgated on
or about December 21, 1995, which prohibited employ-
ees, under penalty of discharge, from engaging in union
activities during working hours.
WE WILL, within 14 days from the date of this Order,
rescind the written warning issued to employee Clifford
Zylks and remove from our files any references to it or to
Zylks’ subsequent unlawful discharge, and WE WILL,
within 3 days thereafter, notify him in writing that this
has been done and that these unlawful actions will not be
used against him in any way.
WE WILL, within 14 days from the date of this Order,
offer Clifford Zylks full reinstatement to his former job
or, if this job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
WE WILL make Clifford Zylks whole for any loss of
earnings and other benefits he suffered as a result of dis-
crimination against him, with interest.

COLBURN ELECTRIC COMPANY

Andrea J. Goetze, Esq., for the General Counsel.
Phil Frazier, Esq. (Frazier, Smith & Phillips, P.A.), of Tulsa,
Oklahoma, for the Respondent.
K. E. Russell, of Baton Rouge, Louisiana, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. In this
case, the General Counsel of the National Labor Relations
Board (the General Counsel) alleges that Colburn Electric
Company (the Respondent or the Company) violated Section
8(a)(1) and (3) of the National Labor Relations Act (the Act).
The General Counsel contends that these violations included
issuing a warning to and then discharging an employee, dis-
charging three other employees, refusing to allow certain job
applicants to fill out applications, and refusing to consider these
applicants for employment, to discourage membership in or
activities on behalf of the Charging Party, International Broth-
erhood of Electrical Workers, Local 955, AFL–CIO. The Gen-
eral Counsel further contends that the Respondent violated the
Act by putting into effect a rule prohibiting union activity dur-
ing working time, and by threatening employees with discharge
if they did engage in union activity during working time.
I find that Respondent violated the Act by issuing a written
warning to one employee and then discharging him, by prom-
ulgating the rule prohibiting union activity during working
time, and by threatening employees with discharge if they en-
gaged in union activity during working time. Otherwise, I find
that the Respondent did not violate the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 538
I heard this case on April 15–18, 1997, in Baton Rouge, Lou-
isiana.1 After the hearing, the parties filed briefs,2 which I have
considered.3

1 Portions of the transcript of that hearing indicate that a “Judge
Locke” is presiding, and other portions refer to a “Judge Keltner.”
They are the same person. Certain errors of the transcript are noted and
corrected.
2 In addition to filing a brief, the Charging Party has also filed a let-
ter on behalf of witness Patrick M. Clary, whom Respondent subpoe-
naed to appear at the hearing and produce certain records. The Charg-
ing Party states that although Clary appeared and testified, the Respon-
dent has not paid Clary the witness fee and mileage required by the
Board’s regulations. The Charging Party’s letter attached a copy of the
subpoena duces tecum, which was addressed to Clary at the Charging
Party’s union hall. It also bore Clary’s residential address in Walker,
Louisiana.
The Charging Party asks that I order the Respondent to pay Clary
mileage at 32 cents per mile for an asserted round-trip journey of 1480
miles between “his job in Oklahoma City, Oklahoma to Walker, Lou-
isiana and back.” The Charging Party also asks that I order Respondent
to pay Clary a witness fee of $40 per day for each of the 4 days of the
hearing, for a total of $633.60.
The Respondent’s counsel opposed this request in a letter which ac-
knowledged that Respondent had subpoenaed Clary. Respondent’s
letter seems to imply that although the Charging Party did not expressly
petition to revoke the subpoena served on Clary, as it did for certain
other witnesses, “the revocation dealt only with subpoena numbers and
not with individuals.”
The fact remains that Clary received a subpoena compelling his ap-
pearance, and he showed up. He is entitled to mileage and a witness
fee.
However, and contrary to the Charging Party’s position, Clary is not
entitled to round-trip mileage between his home in Walker, Louisiana,
and a jobsite in Oklahoma. The subpoena did not compel him to travel
from his home to Oklahoma; rather, it required him to travel from his
home to the courtroom in Baton Rouge.
He is also not entitled to a witness fee for all 4 days of the hearing.
The Respondent’s letter, in reply to the Charging Party’s, states that
“the union was advised on the first day [of hearing] that Mr. Clary
would not be called as a witness for the respondent.” The Charging
Party has not contradicted this statement, and this representation of an
officer of the court is entitled to reliance. Clary’s later testimony, on
day three of the hearing, was on behalf of the General Counsel, not the
Respondent. Therefore, I find that Clary is entitled to a witness fee for
1 day and mileage between his home in Walker, Louisiana, and the
courtroom in Baton Rouge. I direct that the Respondent, in accordance
with Sec. 102.32 of the Board’s Rules and Regulations, pay to Clary
this witness fee and mileage at the same rates that are paid witnesses in
the courts of the United States.
3 At the hearing, I excluded certain tape recordings offered by the
General Counsel on the basis that they were unintelligible. I also re-
jected from evidence some of the transcripts made by the witnesses
who also made the recordings in question, on the basis that the poor
quality of the recording did not assure the reliability of the transcript.
The General Counsel’s posthearing brief urges me to reconsider, ar-
guing that although the probative value of a recording may be evaluated
based upon what can be heard on the tape, this is not the standard for its
admissibility. However, I do not believe that an unintelligible tape has
significant relevance, let alone probative value. To the extent that
small bits and pieces of the recording may be understood, in isolation
and absent context, I believe the limited probative value is outweighed
by the dangers of unfair prejudice and confusion. Rule 403, Federal
Rules of Evidence.
FINDINGS OF FACT
I. STATUS OF THE PARTIES
Respondent has admitted facts establishing that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act, and subject to the jurisdiction of
the National Labor Relations Board (the Board). I so find.
Respondent has also admitted that the Charging Party is a la-
bor organization within the meaning of Section 2(5) of the Act,
and I so find. Additionally, Respondent has admitted, and I
find, that Owner Sam Colburn and Job Foreman Robert Jack-
son are supervisors and agents of the Respondent within the
meaning of Section 2(11) and (13) of the Act. Respondent also
has admitted, and I find, that at all times material to this case,
Francine Jackson was an agent of Respondent within the mean-
ing of Section 2(13) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
This case involves events on and around the Company’s
“Tanger Mall” jobsite in Gonzales, Louisiana. In December
1995, the Respondent was performing work there as an electri-
cal subcontractor to Nabholz Construction Co., the general
contractor.
Foreman Robert Jackson was Colburn Electric’s person in
charge at this jobsite. His wife, Francine Jackson, worked with
him as an“electrician’s helper, secretary, and parts runner.”
The Respondent had a construction trailer on the jobsite, which
served as the Jacksons’ office.
Respondent’s employees at this jobsite were not represented
by a union. However, the Charging Party began a campaign to
organize the Colburn Electric employees.
A number of electricians with union affiliations obtained
employment with the Respondent, but did not reveal their union
ties when they began work. At least two of these employees
were also paid union organizers.
The material facts concern the ensuing union activities, and
the Company’s actions alleged to be unlawful responses to that
union activity. For clarity, the unfair labor practice allegations
raised by the complaint4 will be discussed in chronological
order.

To receive into evidence written transcripts of tape recordings which
are wholly or partially unintelligible would compound the danger of
unfair prejudice and confusion, particularly where, as here, the person
making the transcripts has been closely identified with, and paid by,
one of the parties to this proceeding, the Charging Party.
Additionally, it is important to note that the tapes and transcripts I
rejected were made by two witnesses, Clary and Zylks, whose testi-
mony I did not credit. The poor audio quality of these tapes makes it
impossible to tell, by listening, whether the content has been edited or
altered. For the same reasons I found the testimony of these witnesses
to be unreliable, I conclude that, absent some extrinsic evidence that the
tapes are reliable and complete, the tapes and transcripts made by these
witnesses should not be considered reliable. The record does not con-
tain such evidence. Therefore, I adhere to my rulings at the hearing.
4 By “Complaint,” I refer to the order consolidating cases, consoli-
dated complaint and notice of hearing (GC Exh. 1(l)), as amended
orally at the hearing.
COLBURN ELECTRIC CO. 539
A. December 4, 1995 Change in Application Policy
Complaint paragraph 12 alleges that about December 4,
1995, “Respondent changed its application policies by refusing
to accept applications at its jobsite.” Complaint paragraph 22
alleges that by this action, the Respondent “has been discrimi-
nating, in regard to the hire or tenure or terms or conditions of
employment of its employees” in violation of Section 8(a)(3)
and (1) of the Act.
In its answer, Respondent admitted the allegations in com-
plaint paragraph 12 “insofar as taking job applications on the
jobsite. However, affirmatively answering, Respondent alleges
and states that employees seeking to apply for work could make
that wish known at jobsite and the application was provided
and completed off the jobsite.” (GC Exh. 1(n).)
Foreman Robert Jackson, who was in charge of the Com-
pany’s work at the Gonzales, Louisiana site, did the hiring for
that job. In response to a newspaper advertisement on Novem-
ber 28, 1995, a large number of applicants contacted Jackson.
He promised a number of them jobs, to begin at a later time,
after a shipment of fixtures arrived, when more electricians and
helpers would be needed.
It appears that Jackson promised jobs to too many people.
At least, that was Owner Samuel Colburn’s reaction when
Jackson called Colburn at the company headquarters in Okla-
homa, and told Colburn what he had done. This telephone
conversation took place on about December 1, 1995.
Colburn credibly testified that when Jackson reported that he
had promised jobs to another 9 or 10 persons Colburn “threw a
hissy,” asking Jackson “how can you put that many people in
one little building and work them?” (Tr. 627.)
According to Colburn, Jackson responded with a question:
“Well, what am I going to do? I’ve already promised them the
job”? At this point, the Company was expecting a large ship-
ment of light fixtures to be installed at this jobsite. Colburn
replied that Jackson should call the applicants he had promised
employment and tell them to come to work after the fixtures
arrived. (Tr. 627.) Colburn also told Jackson not to take any
more applications. (Tr. 628.)5
Also on December 1, 1995, Union Business Manager Ken-
drick Russell visited Jackson at the Gonzales, Louisiana jobsite.
No one else was present while they talked. Unknown to Jack-
son, Russell tape recorded their conversation.6

5 Based on my observations of the witnesses, I credit both Colburn
and Jackson. Colburn’s testimony also explains a puzzling statement
Jackson made at the beginning of the hearing after the General Counsel
called him as a witness. Jackson testified that he did not get worried
about having employees work too much overtime, even though over-
time cost more. (Tr. 68–69.) Jackson’s toleration of overtime appears
more understandable in light of the admonition he received from
Colburn after promising jobs to too many applicants. Simply paying
for some extra overtime was a better alternative to Jackson than hiring
too many workers and risking another “hissy” from his boss.
6 Russell visited the jobsite before Jackson telephoned Colburn in
Oklahoma, which Jackson mentioned to Colburn. (Tr. 625.) The se-
quence of events explains why Jackson said to Russell that they would
probably be hiring. It was before he experienced Colburn’s “hissy”
about hiring too many workers.
In response to Russell’s questions, Jackson said that there
remained about 6 weeks of work on the project and then “we’re
gone.” Jackson said he was waiting on a shipment of lights to
arrive and “might be needing a few” electricians, but “It just
depends . . . we are going to crank up with what we got right
now but huh see how it goes.” Jackson then added, “But well,
probably be needing some more.”
Russell then told Jackson he was going to bring some “guys
that are unemployed,” to which Jackson replied, “That will be
fine.” Russell then said, “We are going to try and organize
your company. Want you to know that.” Jackson responded,
“That’s obvious.”
When Russell asked if they had “any problem hiring union
electricians,” Jackson replied, “I don’t have a problem with
that.” (GC Exh. 22.)7
On December 4, 1995, Russell and two other persons, Ro-
land Goetzman and Donald Longuepee, met with Jackson at the
Colburn jobsite.8 Also present was a man identified as
“Kenny,” who represented the general contractor, Nabholz
Construction.9
Again, without telling Jackson, Russell tape recorded the
conversation.10 According to the transcript of that recording,
Jackson told them that Nabholz Construction was having insur-
ance problems, and that Colburn Electric could no longer take
applications for employment at the jobsite. Jackson explained
that following the newspaper advertisement he “probably had
30 or 40 people running in and out of this job filling out appli-
cations.” Because of this traffic, the general contractor “put a
stop” to Colburn Electric taking job applications on site.11
Jackson also said that the applicants needed to contact
Colburn Electric’s main office in Tulsa, and that this telephone
7 The tape recording itself is GC Exh. 21. The transcription of that
recording is GC Exh. 22.
8 Complaint par. 12 did not identify the individuals who are alleged
to be the victims of the discrimination this paragraph alleges. How-
ever, the evidence establishes that they were Russell, Goetzman, and
Longuapee, who were alleged to be discriminatees in complaint para-
graph 14. (The complaint identified Roland Goetzman as “Wallace
Roland Goetzman.”) While complaint par. 12 alleges that the Respon-
dent refused to accept applications from certain unnamed job seekers,
par. 14 alleges that the Respondent discriminated against Russell,
Goetzman, and Longuapee by refusing to consider them for hire and by
refusing to hire them. Neither Goetzman nor Longuepee testified at the
hearing.
9 It appears that this person was Kenny Nokes, the general contrac-
tor’s job superintendent at the site. (Tr. 564.) Nokes did not testify,
although the general contractor’s construction superintendent, Gerald
Dees, did.
10 Russell recorded this conversation on the same tape as the Decem-
ber 1, 1995 conversation. GC Exh. 21. GC Exh. 22 includes the tran-
script of both.
11 During this meeting, the general contractor’s representative cau-
tioned Russell, Goetzman, and Longuepee that they must wear hard
hats on the site, another insurance requirement. Apparently, Russell
doubted that there really was such a hard hat rule, because before he
left, he approached two workers and asked them about it while his tape
recorder was running. Both men affirmed that they were supposed to
wear hard hats. (GC Exh. 22.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 540
number appeared on a sign which Jackson had posted on the
trailer. (GC Exh. 22.)12
It does not appear that the Company gave Russell, Goetz-
man, and Longuepee application forms when they visited the
Colburn Electric trailer on December 4, 1995. On the other
hand, the record suggests that Jackson had run out of applica-
tion forms, and had none to provide when the three men vis-
ited.13
For the same reasons discussed in the next section, below,
with respect to allegations in complaint paragraph 13, I con-
clude that on December 4, 1995, Respondent did not accept
applications from Goetzman and Longuapee. It did later accept
an application from Russell but never accepted applications
from Goetzman or Longuapee.
The complaint alleges that by refusing to accept applications
at its jobsite on December 4, 1995, the Respondent violated
both Section 8(a)(1) and (3) of the Act. If this conduct does
violate Section 8(a)(3), then the General Counsel does not have
to prove that it also violates Section 8(a)(1). Discrimination in
violation of Section 8(a)(3) may be presumed to interfere with,
restrain, and coerce employees in the exercise of their Section 7
rights, and thereby violate Section 8(a)(1).14
On the other hand, even if the alleged conduct does not con-
stitute discrimination which violates Section 8(a)(3), it still may
be unlawful under Section 8(a)(1) if it interferes with, restrains,
or coerces employees in the exercise of their Section 7 rights.
Before evaluating whether the evidence establishes a violation
of Section 8(a)(1) independent of any 8(a)(3) violation, I will
consider the 8(a)(3) allegation.
As discussed below, Board precedent makes clear that an
employer can discriminate against a job seeker by refusing to
accept an application from him, and that, depending on the
motivation, such discrimination can violate Section 8(a)(3).
Such a violation is quite distinct from discrimination arising
from a refusal to consider the applicant for hire, and does not

12 The General Counsel argues that by requiring applicants to contact
its main office in Tulsa, the Respondent was changing its hiring proce-
dures on December 4, 1995, in response to the Union’s efforts. (GC
Br. at pp 9–10.) However, the Company’s November 28, 1995 “help
wanted” advertisement, published before the Union’s efforts became
apparent, listed the “800” number of Colburn Electric’s office in Tulsa,
and instructed applicants to “ask for Rick.” (GC Exh. 34.) The fact that
the Company later publicized this procedure with a sign rather than
another newspaper advertisement does not signify a material change.
When Business Manager Russell telephoned the Tulsa office on De-
cember 4, 1995, he similarly was connected with “Rick.” (GC Exh.
24.)
13 After the meeting, Russell telephoned Colburn Electric’s main of-
fice, as Jackson had suggested, and secretly tape recorded this conver-
sation. A man named “Rick” at Colburn Electric told Russell that
Jackson had run out of application forms the previous week, and told
people who wanted applications that they could return the following
week to get them. See GC Exh. 24, transcript of GC Exh. 23. This
evidence tends to corroborate Jackson’s testimony, which I credit, that
he had no applications. (Tr. 137.)
14 Sec. 8(a)(3) prohibits an employer from encouraging or discourag-
ing membership in any labor organization by discrimination in regard
to hire or tenure of employment or any term or condition of employ-
ment. See 29 U.S.C. § 158(a)(3).
require the same elements of proof. Therefore, even though the
two paragraphs concern the same people in the same situation
on the same date, complaint paragraph 12, alleging a refusal to
accept applications from job seekers, describes a separate
8(a)(3) violation from complaint paragraph 14, which alleges
that Respondent refused to hire or consider for hire Russell,
Goetzman, and Longuapee.
The difference between an 8(a)(3) violation arising from a
refusal to consider an applicant for employment, and an 8(a)(3)
violation arising from a refusal to accept his job application,
becomes apparent from Lancet Arch, Inc., 324 NLRB 191
(1997).15 This decision warrants reading with care to appreci-
ate all its subtleties.
The judge in Lancet Arch cited Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), as a basis for his conclusion that the em-
ployer’s refusal to provide applications to job seekers violated
Section 8(a)(3). However, he did not describe in detail how he
evaluated the facts under the Wright Line framework. More-
over, the judge’s decision in Lancet Arch also cited Ultrasys-
tems Western Constructors, 310 NLRB 545 (1993), as modified
at 316 NLRB 1243 (1995), which provides another test differ-
ent from that in Wright Line.
The Wright Line framework guides the analysis of facts in a
wide range of alleged 8(a)(3) violations. By comparison, the
Ultrasystems test is more limited in application, describing the
elements the General Counsel must prove to establish that an
employer has engaged in an unlawful refusal either to hire or to
consider a job applicant for hire.
The evaluation process in Wright Line requires the General
Counsel to prove, among other things, that there has been an
adverse employment action, as one element necessary to estab-
lish a violation of Section 8(a)(3). The Ultrasystems test does
not specifically require the General Counsel to prove the occur-
rence of such an adverse employment action, but it does require
a showing that at the time of the alleged refusal to consider or
hire an applicant, the employer either was hiring or had con-
crete plans to do so. This “hiring or planning to hire” require-
ment appears to serve the same function as the “adverse em-
ployment action” criterion of the Wright Line test. It assures
that a finding of discrimination is based on the denial or loss of
something actual, such as the opportunity to compete for a job
that was actually going to be filled.
In Lancet Arch, the Board found a form of discrimination in
the hiring process even though the employer had not been hir-
ing when it occurred. Thus, in modifying the judge’s remedy in
Lancet Arch, 324 NLRB 191 at fn. 3, the Board stated that:

15 It is true that in Lancet Arch, the Board affirmed a judge’s finding
that an employer had violated Sec. 8(a)(3) by refusing to provide employ-
ment application forms to union members, rather than by refusing to accept
such applications. However, refusing to give a job seeker a blank applica-
tion form appears to have the same gravamen as refusing to accept an
application from him. Either act prevents the person from having his
application on file, and I assume that both would require similar elements
of proof. Therefore, I will consider the Lancet Arch decision carefully to
understand what elements of proof the Board requires to establish this kind
of violation of Sec. 8(a)(3).
COLBURN ELECTRIC CO. 541
[I]t was not alleged that there were available positions for the
five union members, nor claimed or established on the record
that the Respondent refused to consider the five for hire. In
these specific circumstances, where the 8(a)(3) allegation was
expressly restricted to the Respondent’s failure to proffer em-
ployment applications, we have modified the Order and notice
to delete the judge’s additional “consider for hire” language.

The Board therefore ordered that the respondent in Lancet
Arch give employment application forms to the five discrimina-
tees, but did not order that the respondent consider them for
employment.
The Lancet Arch decision therefore provides important guid-
ance on when an employer’s refusal to provide a job seeker
with an employment application, and presumably an em-
ployer’s refusal to accept such an application, violates Section
8(a)(3) of the Act. It indicates that such a violation can occur
even when the employer is not hiring and does not have con-
crete plans to hire.
It thus makes a significant distinction between an 8(a)(3)
violation based on a refusal to hire or consider for hire, which
does require proof that the employer was hiring or planning to,
and an 8(a)(3) violation based on a refusal to give out an em-
ployment application form, which, it appears from Lancet Arch,
does not require such proof. In view of my finding here that
Colburn Electric was not hiring or planning to hire on Decem-
ber 4, 1995, I must pay careful attention to the rationale of the
Lancet Arch decision and analyze the present facts in the same
way.
Since the evidence in Lancet Arch did not establish that the
employer was hiring or planning to, I infer that the Board’s
decision was not predicated on the Ultrasystems framework,
which does require such proof. Because the Board did not use
the Ultrasystems criteria, and did not describe a new standard, I
will assume that the Board applied its well established Wright
Line test in Lancet Arch. This test requires proof of an adverse
employment action, so the Board must have concluded that the
Lancet Arch employer’s refusal to give job seekers the re-
quested application form satisfied its definition of such an “ad-
verse employment action.”
The Wright Line requirement of an “adverse employment ac-
tion” entails a showing that some harm has occurred to the
discriminatee’s employment status. In the case of a job appli-
cant, that harm presumably would involve some reduction in
the likelihood that the applicant would be hired. Therefore, in
Lancet Arch, the Board must have determined implicitly that
refusal to give out application forms substantially diminished
the applicants’ prospects for employment in the future, if not at
the moment.
Such a conclusion would flow from the usual way in which
businesses use employment application forms. They keep them
on file in case a job opening might occur sometime in the fu-
ture, and then refer to the applications as needed. Quite obvi-
ously, refusing to allow an applicant the right to complete and
submit an application effectively excludes him from such future
consideration. His proxy, the employment application, is not
standing in line at the personnel office door.
In the usual way businesses treat employment applications,
denial of the right to complete and file this document certainly
does affect an applicant’s employment opportunity adversely.
However, Colburn Electric did not use employment applica-
tions the way most businesses do.
The evidence establishes that Colburn Electric did not rely
on such applications as a way of keeping names on file for
future consideration, or even as a tool to use in comparing job
applicants and selecting the most suitable. Rather, the Respon-
dent here used employment application forms to document
hiring decisions already made. A new employee turned in the
written application after being offered the job and around the
time he reported for work, much as a new employee would
submit a tax withholding form.
In this unusual circumstance, whether or not the Respondent
accepted a job application form would have no effect on the job
seeker’s prospects for employment in the future. Instead of
reviewing old employment applications, when Colburn Electric
needed employees it advertised for them in the newspaper.
This practice may be well suited to the Respondent’s needs as a
construction contractor with frequently changing jobsites.
However, it means that being considered for employment did
not depend on whether or not the job seeker had an application
on file.
Under these conditions, unlike the more typical situation in
Lancet Arch, refusing to accept an application form does not
remove the job seeker’s proxy from any pool to be considered
later when openings arise. Therefore, I conclude that Respon-
dent’s refusal to accept applications from Goetzman and
Longuapee did not constitute an “adverse employment action”
within the meaning of Wright Line.
The Wright Line framework requires the General Counsel to
prove four elements to establish a prima facie case. First, the
General Counsel must show the existence of union or protected
activities. Here, one applicant was the Union’s business man-
ager, who brought along the other two job seekers. Clearly,
they were all identified with the Union. I find that the General
Counsel has satisfied the first Wright Line requirement.
Second, Wright Line requires proof that the employer knew
about the protected activities. Union business manager told
Jackson, “we are going to try and organize your company” and
Jackson replied “That’s obvious.” The General Counsel has
established the second Wright Line element.
However, the General Counsel has not established the third
requirement, that there has been an adverse employment action.
As discussed above, I have concluded that the Respondent’s
refusal to accept applications did not cause or constitute an
“adverse employment action.” I believe this conclusion is con-
sistent with the Board’s decision in Lancet Arch, and therefore
recommend that the 8(a)(3) allegation raised by complaint
paragraph 12 be dismissed.16

16 It is not necessary to go further with the Wright Line analysis be-
cause failure to prove any of the four requirements results in failure to
establish a prima facie case. However, should the Board disagree with
my conclusion at the third step, I note that I would find that the General
Counsel also has not established the fourth element, a link or nexus
between the adverse employment action and the protected activities.
Based on the credited evidence, I conclude that the Respondent did not
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 542
However, the refusal to accept applications must also be ana-
lyzed to determine whether it constitutes an independent viola-
tion of Section 8(a)(1).17 The General Counsel contends that
the Respondent changed its application procedure as a device to
make it more difficult for electricians affiliated with the Union
to apply. Thus, the General Counsel cites M & M Electric Co.,
323 NLRB 361 (1997).
In M & M Electric Co., an electrical contractor changed its
hiring practices when a union began trying to organize its em-
ployees. Previously, this employer had accepted all applica-
tions for employment. However, the new practices it imple-
mented included hiring former employees first, hiring employ-
ees recommended by other employers or by other nonunion
contractors or who had been observed by the employer’s repre-
sentatives on a jobsite, and hiring from unknown applicants as a
last resort.
In a decision affirmed by the Board, the judge found that
these changes ensured that Respondent was “able to screen out
union adherents by merely telling them Respondent is not hir-
ing and refusing to give them applications.” Id. at 370.
The facts in that case contrast sharply with the facts I find
here. Colburn Electric did not change its hiring practices in a
way that narrowed the area of consideration to those applicants
unlikely to be associated with the Union. It simply stopped
considering all applicants because it already had found the
workers it needed.
It is not unlawful for an employer to stop hiring when it has
already hired, or made commitments to hire, too many people.
Similarly, the law does not require an employer to go through
the motions of the hiring process, or pretend to be hiring, when
management has decided that more employees aren’t needed.
The record may suggest that Owner Colburn and Foreman
Jackson had somewhat different opinions about how many
employees would be needed. It would not be the first time that
a supervisor in the field and his superior at headquarters
reached different conclusions about how to proceed. There is
nothing either surprising or suspicious about that.
At his Tulsa headquarters, Colburn certainly had a closer
view of the accounting ledgers and balance sheets than of the
dangling cables and boxes of supplies which his foreman saw at

accept employment applications on December 4, 1995, because it had
already decided whom it would hire. Since applications were used to
document hiring decisions already made, and not as a tool for making
those decisions, it would serve no purpose for Respondent to accept
applications from Goetzman and Longuapee. Jackson later accepted an
application from Russell. However, I find that he did so not because
the Respondent expected to hire any more employees for this job, but
because Russell was the Union’s business manager, and the Respondent
wished to be cautious.
17 In the case of an 8(a)(1) violation, it is the message itself, whether
communicated in the form of a statement or signified by an act of dis-
crimination, which may violate the law by interfering with, restraining,
or coercing employees in the exercise of their rights guaranteed by Sec.
7 of the Act. To determine whether the alleged changes in hiring prac-
tices violate Sec. 8(a)(1), I must focus on whether those changes rea-
sonably would tend to interfere with, restrain, or coerce employees in
the exercise of Sec. 7 rights, and not on what motivated the Respondent
to make the alleged changes.

the Louisiana jobsite. So it is understandable that he and Jack-
son would be concerned about different things. While Jackson
focused on getting the project done on time, Colburn pondered
over the cost.
It is also understandable that Colburn’s opinion prevailed.
He was the boss. And it is equally understandable, particularly
after Colburn’s “hissy,” that when Jackson received the order
not to offer jobs to any more people, he followed it.
Apart from declining to accept applications after it had made
its hiring decisions, the Respondent did not change its hiring
practices in other ways which would make it less likely or con-
venient for job seekers with union affiliations to apply. The
other possible changes in Respondent’s hiring practices warrant
some discussion.
The orders Jackson received from the home office included a
requirement that applicants be instructed first to call the Tulsa
headquarters. That certainly gave higher management informa-
tion needed to oversee the hiring process from a distance, and
helped assure that it did not again get out of hand. However,
having the job seeker initiate the hiring process with a call to
Respondent’s headquarters does not, in any obvious way, make
it less likely for someone with union connections or sympathies
to apply. Moreover, as noted above, it was not really a new
requirement. The November 28, 1995 “help wanted” adver-
tisement which generated so much response also listed a num-
ber to contact at the Respondent’s Tulsa headquarters.
The heavy response to that November 28 advertisement, so
much greater than the response to a previous advertisement,
appears to have caused more than one unexpected effect. It
certainly played a role in Jackson’s making employment com-
mitments to too many people. It also generated a lot of foot
traffic at the jobsite, as applicants went to the company trailer
seeking employment.
The presence of so many visitors in a hard hat area raised the
concerns of the general contractor and its insurance carrier. So
the general contractor told Colburn Electric to interview the
applicants elsewhere. This change in interview location, dis-
cussed further below, also did not make it less likely or less
convenient for job seekers with union sympathies or affiliation
to apply.18
Moreover, the changes made by Colburn Electric were both
more limited than, and qualitatively different from, the changes
made by the respondent in the M & M Electric Co. case. The
respondent there figuratively put on blinders, looking only to
those sources unlikely to yield prounion workers. Colburn
Electric took no such step.
The record does not establish that the Respondent began
casting its nets in different waters, and the General Counsel
does not allege that the Respondent made this kind of change.
Instead, the General Counsel contends that Colburn Electric
stopped giving out application forms. It certainly did, after it
had decided whom it would hire as soon as the shipment of
light fixtures arrived. It is difficult to conclude that refusing to
18 Although unlawful motivation is not an element of an 8(a)(1) vio-
lation, the complaint has alleged the changes in hiring practices to
violate Sec. 8(a)(3), as well. I find that Respondent made such changes
for nondiscriminatory reasons unrelated to the Union.
COLBURN ELECTRIC CO. 543
give out applications to anyone, which I find to have been the
case on December 4, 1995, selectively excluded applicants who
favored the Union or tended to do so.
In sum, Respondent never changed its hiring practices in a
way that would reduce the likelihood of netting prounion appli-
cants. It did not limit consideration to its previous employees
or give preference to those who worked in non–unionized job
settings, as the respondent in M & M Electric Co. had done. I
find that the General Counsel has failed to establish that Re-
spondent violated the Act as alleged in paragraph 12 of the
complaint. Therefore, I recommend that this allegation be dis-
missed.
B. December 4, 1995—Alleged Refusal to Allow Job Applicants
to Fill Out Applications and Alleged Refusal to Consider
These Applicants for Employment
Paragraph 13 of the complaint alleges that about December
4, 1995, the Respondent refused to allow job applicants Ken-
drick E. Russell, Wallace Roland Goetzman, and Donald E.
Longuepee to fill out applications at the jobsite. Respondent
denied this allegation.
Complaint paragraph 14 alleges that since about December
4, 1995, Respondent refused to consider these same individuals
for employment and refused to employ them. In its answer,
Respondent admitted this allegation.
Paragraph 22 of the complaint alleges that the conduct de-
scribed in paragraphs 13 and 14 violated Section 8(a)(1) and (3)
of the Act.
As discussed above, the general contractor, Nabholz Con-
struction, had ordered the Respondent to discontinue its prac-
tice of taking applications at the jobsite because Nabholz and
its insurer were concerned about the number of people walking
around the jobsite without hard hats. (Tr. 553.)19
The Company then began meeting with job applicants at a
nearby fast food restaurant,20 and posted a sign to this effect on
the trailer it used as an office at the jobsite. It would meet with
all applicants, regardless of union affiliation or sympathies, at
this same place.21

19 I base this finding in part on the credited testimony of Gerald
Dees, the general contractor’s representative at the jobsite. However,
because motive is not an element of an 8(a)(1) violation, the reason for
the change in application procedure did not affect whether or not it was
lawful under this section of the Act.
20 The general contractor’s project superintendent, Gerald Dees,
credibly testified that this fast food restaurant was about 50 feet from
the jobsite. (Tr. 553.)
21 The General Counsel contends that the Respondent’s bookkeeper
at the jobsite, Francine Jackson, told a job applicant, Patrick Clary, that
they had to complete the application at a fast food restaurant because
the Union had been “messing with them.” When he applied for work,
Clary did not disclose that he was a union organizer and also did not
tell Francine Jackson that he was tape recording the conversation.
This tape recording is of very poor quality. Much of it is unintelligi-
ble, and, I find, it has little if any probative value. Moreover, for rea-
sons discussed below, I do not credit Clary’s testimony. I do not find
that Francine Jackson made the statement attributed to her. However,
even were I to assume that Francine Jackson made such a statement, it
would not affect my conclusion that Respondent did not violate Sec.
8(a)(1) by taking applications at the restaurant rather than in its trailer
on the jobsite.
Later, on December 4, 1995, Jackson telephoned Russell and
asked him to meet at 9 a.m. the next day at Shoney’s Restau-
rant, so that Jackson could give Russell an application to fill
out. Jackson clearly made this contact after conferring with
Colburn Electric management in Tulsa.22 According to a tape
recording which Russell made when Jackson phoned him, Rus-
sell asked “what about the other 2 guys,” to which Jackson
replied, “They didn’t say anything to me about the other two
guys.” (GC Exhs. 24 and 25.)
Russell completed the application during his meeting with
Jackson at the restaurant. He then asked, “What about the other
two guys?” Jackson replied, “I think we’re not going to take
any more applications.” (GC Exhs. 26 and 27.)
I find that the Respondent did not refuse to allow Russell to
fill out an application, as alleged in complaint paragraph 13
although it did not allow him to submit one at the jobsite. In-
stead, it received one from him at a restaurant about 50 feet
from the jobsite. However, the Respondent did refuse to allow
Goetzman, and Longuepee to submit applications, as alleged.
Respondent admits, and I find, that it refused to consider
Russell, Goetzman, and Longuepee for employment, and re-
fused to employ them. As noted above, these job applicants
clearly fell within the category of “employees” protected by the
Act.23
For the reasons stated in the section above, I have found that
Respondent’s refusal to allow Goetzman and Longuapee to
submit job applications did not constitute a violation of Section
8(a)(1) or Section 8(a)(3). Now, I must determine whether
Respondent’s refusal to consider and to hire Goetzman,
Longuapee, and Russell constituted unlawful discrimination
under the Act. Analytically, an unlawful refusal to consider an
applicant for employment should be distinguished from an
unlawful refusal to hire, so I will begin with Respondent’s ad-
mitted refusal to consider the three job applicants.
In Ultrasystems Western Constructors, 316 NLRB 1243
(1995), the Board applied a four-part test to determine whether
an employer unlawfully had refused to consider job applicants.
The Board later affirmed a judge’s decision using this same test
in The 3E Co., 322 NLRB 1058 (1997).
Under the framework applied in Ultrasystems and The 3E
Co., the General Counsel may establish that an employer has
refused to consider a job applicant, in violation of Section
8(a)(3) and (1) of the Act, by proving the following four ele-
ments: (1) the employer is covered by the Act; (2) the employer
at the time of the purportedly illegal conduct was hiring or had
concrete plans to hire employees; (3) antiunion animus contrib-
22 In her capacity as secretary at the jobsite, Francine Jackson kept a
log which confirms that Owner Samuel Colburn instructed her husband,
Robert Jackson, to call Russell and arrange to give him an application.
An entry for December 4, 1995, states, in part, “Sam [Colburn] called
Bob [Jackson] later that afternoon and told Bob to get in touch with
Ricky Russell and set up an appointment.” R. Exh. 5. I do not con-
clude that by making this appointment, the Respondent was signifying
that it again had plans to hire. Rather, I find that Colburn was being
cautious because Russell was a union official.
23 Additionally, the fact that Russell was also the Union’s business
manager did not affect his status as an “employee” protected by the
Act. NLRB v. Town & Country Electric, 516 U.S. 85 (1995).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 544
uted to the decision not to consider, interview, or hire an appli-
cant; and (4) the applicant was a bona fide applicant.
The Respondent has admitted that it is an employer covered
by the Act. Therefore, the first requirement has been satisfied.
Second, the General Counsel must prove that at the time of
the purportedly illegal conduct, the Respondent was hiring or
had concrete plans to hire employees. On December 4, 1995,
the Respondent did have plans to hire employees, but already
had decided whom it would hire and had made oral commit-
ments to those individuals. Foreman Jackson credibly testified
that he made these commitments on or before November 30,
1995. (Tr. 103–104.)24
Owner Colburn’s testimony, which I also credit, indicates
that he thought Jackson had made commitments to too many
applicants, but nonetheless, he instructed Jackson to tell these
applicants to come to work after a shipment of light fixtures
arrived. The record convincingly establishes that Jackson fol-
lowed these instructions.
Because these individuals did not submit written applications
until shortly before they began employment, the Respondent’s
records do not reflect when Jackson extended the oral commit-
ment to each of them. However, I do not find that the absence
of written confirmation detracts from Jackson’s credibility.25

24 The testimony of Patrick M. Clary, a witness for the government,
corroborates Jackson. Clary saw the Company’s November 28, 1995
“help wanted” advertisement, telephoned the main office number given
in the advertisement, and received instructions to report to the jobsite.
That same day, Clary went to the jobsite and met with Jackson.
Clary testified that at this meeting with Jackson on November 28,
Jackson said he could use Clary as soon as a shipment of light fixtures
arrived. (Tr. 486.) He did not file a written application at that time, but
did so after receiving a telephone message from the Company on De-
cember 5. He began work the next day. (Tr. 487–488.)
25 Jackson’s testimony that he made oral commitments to hire certain
applicants could be open to challenge as simply too convenient. How-
ever, there are reasons to believe him in addition to my observations of
his demeanor while testifying.
As noted above, Patrick M. Clary, a witness for the General Coun-
sel, gave testimony which corroborated Jackson’s version. The Com-
plaint alleges Clary to be a discriminatee, and therefore, it was not in
his interest to give testimony supporting the Respondent’s theory.
Moreover, another alleged discriminatee who testified for the General
Counsel, Eugene Cage, gave testimony largely consistent with Jack-
son’s version except that, according to Cage, Jackson merely told him
to “check back within a week” rather than explicitly promising him a
job. (Tr. 345.) However, Jackson did hire Cage, and did not require
him to complete a job application until the time Cage reported to work.
Therefore, the testimony of both Clary and Cage indicates that persons
hired did not file written applications until right before they reported
for duty.
The absence of written documentation is also consistent with the fact
that Respondent is a relatively small employer, rather than a large com-
pany with an elaborate personnel staff. In the fashion of a “Mom and
Pop” business, Jackson supervised the electricians at the jobsite and his
wife handled the paperwork.
Just as a lack of staff may have discouraged paperwork, the “cul-
ture” of the industry itself would appear consistent with doing a mini-
mum of record keeping. Skilled craftsmen may well place a higher
value on getting things done than on writing things down, and may
deem a written job offer unnecessary when “a man’s word is his bond.”
When Owner Colburn learned that Jackson had made commitments to
Under the second requirement of the test applied in Ultrasys-
tems and The 3E Co., the General Counsel bears the burden of
proving that at the time of the purportedly unlawful conduct,
the employer was hiring or had concrete plans to hire employ-
ees. However, the General Counsel has not proven that, as of
December 4, 1995, the Respondent was hiring or intended to
hire anyone other than the individuals it had previously se-
lected, but who could not be put to work until the shipment of
light fixtures arrived.
The law does not require that the Respondent revoke these
hiring decisions and instead offer employment to the three men
who showed up later seeking work. Consummating a previ-
ously made hiring decision follows the selection process in the
same way that presentation of the winner’s trophy comes after
the race itself. It does not entail a fresh contest among appli-
cants, or a new choice of whom to employ. An applicant can-
not be excluded unlawfully from being considered unless he
seeks to be a candidate while the selection process is going on
or about to start. In this case, it was already over.
In sum, I find that the General Counsel has not carried its
burden of proving that at the time of the allegedly unlawful
action, the Respondent was hiring or had concrete plans to hire
employees. I conclude that Respondent did not violate the Act
by refusing to consider Russell, Goetzman, and Longuepee for
employment..26
The complaint also alleges that since about December 4,
1995, the Respondent refused to employ Russell, Goetzman,
and Longuepee. This allegation may be analyzed under the
framework established in Wright Line, supra.
The evidence clearly establishes the first two elements that
the General Counsel must prove to make a prima facie case.
When he spoke with Jackson on December 1, 1995, Russell
plainly stated his intent to organize the Respondent’s employ-
ees. Thus, the General Counsel has established both that the
alleged discriminatees were engaged in union activities, and
that the Respondent knew about it.
At the third step, Wright Line requires the General Counsel
to prove that the Respondent took an adverse employment ac-
tion. Respondent has admitted that it refused to hire Russell,
Goetzman, and Longuepee. As noted above, these three men
unquestionably are “employees” as that term is used in the Act,
and fall within its protection. However, the question of what

hire more people than Colburn thought necessary, he did not tell Jack-
son to go back on his word. Instead, he instructed Jackson to put those
people to work after the light fixtures arrived. Considering all of these
circumstances together, the absence of paperwork documenting the
hiring commitments does not change my impression that Jackson was a
truthful witness, and I credit his testimony.
26 In case the Board disagrees with my conclusion at step 2 of the Ul-
trasystems analysis, I make the following findings with respect to the
issues raised at the third and fourth steps. At step 3, I find that the
government has not established, by a preponderance of the evidence,
that animus against the Union motivated the Respondent in excluding
Russell, Goetzman, and Longuepee from consideration. At step 4, I
find that these individuals were employed in the electrical construction
industry and were bona fide job applicants. See Blaylock Electric, 319
NLRB 928 fn. 1 (1995); Windemuller Electric, 306 NLRB 664 (1992).
COLBURN ELECTRIC CO. 545
constitutes an “adverse employment action” for this particular
type of employee is a bit more difficult.
Before deciding whether the Respondent has taken some ac-
tion adverse to their employment status, it is necessary to de-
termine what that status entails. Because the men are job appli-
cants, their legal status as “employees” under the Act does not
entitle them to a paycheck or, necessarily, to be hired. How-
ever, it does entitle them to be treated in a manner free of any
discrimination based on their union activities, affiliation, or
sympathies.
If an employer decided to hire more workers, but rejected
certain applicants because of their union ties, that action would
deprive them of the legal rights they enjoyed as “employees”
under the Act. Therefore, it would constitute an “adverse em-
ployment action.” On the other hand, when an employer hires
no one, there is no employment action, adverse or otherwise.
The Board has held that a necessary element of proving a re-
fusal to hire allegation involves showing that the employer was
hiring at the time. In GM Electrics, 323 NLRB 125, 128
(1997), the Board listed the elements which, “combined with
the proof of animus, make out a prima facie case that hostility
to union activity or affiliation was a motivating factor in an
employer’s failure to hire: union activity, employer knowledge,
and timing, and the availability of jobs for the applicants.”
In Bay Control Services, 315 NLRB 30 (1994), the Board
adopted a judge’s finding that an employer did not violate Sec-
tion 8(a)(3) of the Act by refusing to hire certain union mem-
bers on the dates alleged, but rejected portions of the judge’s
reasoning. Instead, the Board stressed that, “as the judge
found, there was no showing that there were jobs available for
new hires on those dates.” Id. at 30, fn. 2.
In this case, the General Counsel has not proven that the Re-
spondent was hiring employees on December 4, 1995. Rather,
the record shows that Foreman Jackson had made commitments
to hire certain applicants, but had to wait until the light fixtures
arrived before putting them to work. Considering that Owner
Colburn believed Jackson had extended commitments to too
many workers, and told Jackson not to take any more applica-
tions, the prospects that Jackson would be hiring others in the
future were not great.
Moreover, once the light fixtures were installed, the need for
workers would diminish. Although some tasks, such as fixing
defects noted on the “punch list” would require some employ-
ees, the work force would not be expanding. Jackson told Rus-
sell on December 1, 1995, that about 6 weeks work remained
on the project and then, Jackson said, “We’re gone.” (GC Exh.
22.)
In sum, the evidence does not establish either that Respon-
dent was hiring on December 4, 1995, or had concrete plans to
do so. Therefore, I cannot find that Respondent took any ad-
verse employment against Russell, Goetzman, or Longuepee by
failing to offer them jobs. The General Counsel has not proven
the third Wright Line element, and therefore has not established
a prima facie case.
Additionally, I conclude that the evidence fails to establish
any independent violation of Section 8(a)(1). I recommend that
these allegations be dismissed.
C. .Jackson’s Alleged December 5, 1995 Statement that Re-
spondent Would not Hire Employees Because of their Union
Membership, Activities, or Sympathies
Complaint paragraph 7 alleges that about December 5, 1995,
the Respondent, by Foreman Jackson, at its jobsite, advised its
employees that it would not hire individuals because of their
union membership, activities, or sympathies. To prove this
allegation, the General Counsel relies on a tape recording of a
conversation Clifford Zylks testified he had with Jackson on
that date. (GC Exh. 28.)
The Union paid Zylks as a full–time organizer during the
same period he was on the Respondent’s payroll as an em-
ployee. Zylks testified that his December 5, 1995 conversation
with Jackson took place at the jobsite, and that two other per-
sons, Steve Palmer and Francine Jackson, were also present.
(Tr. 376.) Zylks did not tell Foreman Jackson that he was re-
cording their conversation.
The General Counsel played the tape at the hearing. Most of
it was unintelligible, and although I received the recording into
evidence, I rejected a transcript which Zylks testified he made
from the tape.27 Much of the tape was unintelligible, making it
difficult to determine the accuracy of the transcript Zylks
made.28
Apart from the question of what was said, the tape leaves un-
resolved who said it. Zylks testified that four individuals were
present during this conversation, and three of them were men. I
have not credited Zylks and do not consider his testimony reli-
able, but even assuming that Zylks made the tape at the time
and place he testified, the distorted sound quality makes it diffi-
cult to distinguish among the voices. Moreover, the frequent
unintelligible portions of the tape interrupt the normal flow of
words in a conversation, leaving the understandable parts with-
out context.29

27 Because the General Counsel played the tape during the hearing,
some of the words spoken on it appear in the hearing transcript pre-
pared by the court reporter, but the transcript simply describes many
portions as “inaudible.” (Tr. 456–464.) From my own review of the
tape recording, I am not certain about the accuracy of the hearing tran-
script. However, I have not ordered the transcript corrected because the
poor quality of the recording leaves uncertainty as to what actually had
been said on the tape.
28 Although Respondent objected to admission of tape recordings
and transcripts on the basis that they were made without Jackson’s
knowledge or consent, I received into evidence a number of recordings
and transcripts over those objections. Under Board precedent, the tape
recordings clearly are admissible. Williamhouse of California, Inc.,
317 NLRB 699 (1995); Wellstream Corp., 313 NLRB 698, 711 (1994);
and Plumbers Local 598 (Rust/W.S.H.), 255 NLRB 450, 462–464
(1981). I rejected Zylks’ transcript of the December 5, 1995 conversa-
tion not because he had made the recording without Jackson’s knowl-
edge and consent, but rather because the evidence did not establish that
the transcript (GC Exh. 29) reliably reduced to writing what actually
had been said. The danger of unfair prejudice and confusion warranted
its exclusion. See Fed.R.Evid. 403; see also fn. 3, above.
29 As noted above, the poor audio quality also makes it impossible to
tell, by listening, whether the tape had been edited or altered. Based on
my observations of the witnesses, I have not credited Zylks, and my
doubts about his testimony also make me cautious about placing trust in
his tape.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 546
Zylks’ testimony does not resolve these questions, and other
evidence does not support finding the violation alleged. Thus,
the General Counsel called Jackson as a witness before Zylks
testified, and did not ask him about the purported conversation
or the tape.
The Respondent called Francine Jackson to testify, but she
did not refer to the alleged conversation. Although the General
Counsel asked her if her husband had had a conversation about
the Union with another employee, David West, the General
Counsel did not inquire about the December 5, 1995 conversa-
tion on Zylks’ tape. The other witness to that conversation,
David Palmer, did not testify at all.
The tape recording also stated that the date was December 4,
1995, but Zylks testified that this date on the tape was wrong.
(Tr. 456.) That, too, calls into question its reliability. Addi-
tionally, based on my observations of the witnesses, I do not
credit Zylks’ testimony.
In sum, the credited evidence does not establish that Jackson
made the statements alleged in paragraph 7 of the complaint.
Therefore, I recommend that this allegation be dismissed.
D. Respondent’s Alleged Change of Hiring Practices
on December 6, 1995
Complaint paragraph 15 alleges that about December 6,
1995, Respondent changed its hiring practices by accepting
applications at a Wendy’s restaurant located next to its jobsite.
The complaint further alleges that this change violated both
Section 8(a)(1) and (3) of the Act.
There is no dispute that sometime in early December 1995
Respondent began interviewing job applicants at a restaurant
about 50 feet from the jobsite, rather than at the jobsite itself.
The credited evidence30 establishes that the general contractor,
acting upon insurance concerns, told Colburn Electric that job
applicants should be interviewed off the construction site.
Paragraph 15 does not allege that any specific person has
been discriminated against “in regard to hire or tenure of em-
ployment or any term or condition of employment.” 29 U.S.C.
§ 158(a)(3). Moreover, no paragraph of the complaint fills in
the necessary information missing from paragraph 15, the name
of an individual who suffered an adverse employment action, a
required element of the General Counsel’s case under Wright
Line.31 Not only does the complaint fail to plead that any per-
son has suffered such an adverse employment action because of
the change alleged in paragraph 15, the evidence does not es-
tablish that such harm has occurred.
There is also another barrier to establishing that the change
alleged in complaint paragraph 15 violates Section 8(a)(3).
Apart from the necessity of showing that the respondent has

30 Based on my observations of the witnesses, I have credited Gerald
Dees, of Nabholz Construction, the general contractor at the jobsite,
and Jackson’s testimony, which is consistent with Dees’ testimony.
31 Even assuming that the 8(a)(3) discrimination alleged in complaint
par. 15 should be evaluated in accordance with Lancet Arch, which
does not require a showing that the Respondent was hiring or planning
to hire, Sec. 8(a)(3) still requires a showing that someone has been
subjected to some form of discrimination. The absence of an alleged
discriminatee would, in my view, preclude a finding that there has been
such discrimination.
engaged in discrimination, as manifested by an adverse em-
ployment action, Section 8(a)(3) also requires proof that such
discrimination encouraged or discouraged membership in a
labor organization.
The evidence does not establish that moving the location for
interviews and applications a short distance to the fast food
restaurant discouraged prounion applicants, or any applicants,
from going there for an interview. The evidence does suggest
that at times the jobsite was muddy, and to that extent at least,
the fast food restaurant reasonably would seem more inviting
than the construction site trailer.
With respect to the issue of animus, I find that the Respon-
dent changed where it accepted applications and interviewed
applicants because the general contractor told it to do so, and
not from any antiunion motivation. For all of these reasons, I
recommend that the 8(a)(3) violation alleged in complaint
paragraph 15 be dismissed.
Because evidence of unlawful motivation is not an element
of an 8(a)(1) violation, I need not and will not consider the
Respondent’s reasons for interviewing applicants at the fast
food restaurant when I determine whether this section of the
Act has been violated. I find no objective basis for concluding
that moving the location of job interviews 50 feet from the
jobsite reduces the likelihood that prounion workers will apply
for or be interviewed for a job. Similarly, the evidence does
not establish that relocating job interviews this short distance
imposes any increased burden on any applicant, whether sym-
pathetic to the Union or not.
To violate Section 8(a)(1), the conduct at issue must in some
way interfere with, restrain, or coerce employees in the exercise
of their right to form, join, or assist labor organizations, to bar-
gain collectively through representatives of their own choosing,
to engage in other activities for their mutual aid and protection,
or to refrain from such activities. The evidence does not estab-
lish that interviewing a job applicant at the restaurant rather
than in the trailer nearby would have any tendency to interfere
with, restrain, or coerce employees in the exercise of any of
these rights. Therefore, I also recommend that the 8(a)(1) alle-
gation be dismissed.
E. Alleged December 7, 1995 Interrogation of
Employees by Foreman Robert Jackson
(Allegation Withdrawn at Trial)
Complaint paragraph 9 had alleged that on December 7,
1995, the Respondent, by Foreman Robert Jackson, interro-
gated employees about their union membership, activities, and
sympathies, in violation of Section 8(a)(1) of the Act. The
General Counsel withdrew this allegation at trial. Although I
need not make any findings about the allegation, I mention it
here for clarity and completeness.
F. December 13, 1995 Discharge of Employees Patrick M.
Clary and Michael Simoneaux
Paragraph 16 of the complaint alleges that on about Decem-
ber 13, 1995, the Respondent discharged employees Patrick M.
Clary and Michael Simoneaux. The complaint alleges that
these discharges violated Section 8(a)(1) and (3) of the Act.
COLBURN ELECTRIC CO. 547
The Respondent admits discharging Clary and Simoneaux,
but states that the discharges were for causes unrelated to these
employees’ protected activities. I will discuss these discharges
in alphabetical order.
On about December 4, 1995, the general contractor directed
Colburn Electric to put up gate signs at the jobsite, so that one
gate would be labeled for use by the Respondent’s personnel,
and the other gate would be used by all others. This appears to
have been a “reserve gate” system of the sort typically used to
assure that picketing directed against one subcontractor will not
cause the employees of other subcontractors, not involved in
the labor dispute, to cease work. The general contractor told
Colburn it wanted the gate signs up by Monday, December 6,
1995.
On December 12, 1995, Foreman Jackson was at the jobsite
as employees came to work, watching to make sure that
Colburn Electric’s employees used the gate reserved for them.
According to Jackson, whom I credit, he warned Clary not to
go through the wrong gate, but Clary did so anyway.
Clary’s version is somewhat different from Jackson’s, al-
though he did admit going through the wrong gate. However,
Clary claimed that he had already gone through this gate when
Jackson told him he go through the Colburn gate. Clary further
testified as follows:

A. He [Jackson] told me to go through the gate
marked “Colburn.” And I turned and I said, “Bobby, we
talked about this yesterday.”
And he said, “Go on into work.” So I turned and went
into work.
Q. Which gate did you use?
A. Actually, I was already past what they had called
the gate. It was just the sidewalk. [Tr. 503.]

I do not credit Clary’s testimony, in part because it appears
to have an internal inconsistency. As quoted above, Clary
stated that when Jackson told him to go through the gate
marked “Colburn,” he replied, “Bobby, we talked about this
yesterday.” But elsewhere in Clary’s testimony, he denied that
Jackson had talked with him about the gates. Instead, Clary
claimed, he and Jackson merely had talked about “we both
were going to be civilized and there was going to be no trouble
on this job.” (Tr. 502.)
Obviously, it was in Clary’s interest to deny that Jackson
previously had told him to use the Colburn gate, just as it was
in Clary’s interest to claim that he had already gone through the
wrong gate before Jackson told him to use the Colburn gate.
Otherwise, Clary would be admitting that he had been in-
structed to use the Colburn gate and had violated that instruc-
tion.
However, Clary’s denial that he had been told in advance to
use the Colburn gate does not have the ring of truth. If Jackson
hadn’t told Clary about the gates, it seems strange that, when
Jackson told Clary to go through the Colburn gate, Clary would
respond “we talked about this yesterday.” That reply simply
doesn’t make much sense if they hadn’t discussed use of the
Colburn gate.
It is not very plausible that Jackson would go to the trouble
of establishing a reserve gate system and then fail to tell his
employees to use it. Indeed, Jackson’s presence as employees
came to work signifies the importance attached to their use of
the proper gate. I find Clary’s testimony, indicating that Jack-
son had not previously told him to use the Colburn gate, inher-
ently unlikely.32
Moreover, there are other significant reasons for my decision
not to believe Clary. At the beginning of the hearing, the Gen-
eral Counsel invoked the rule requiring sequestration of wit-
nesses, and I imposed that rule in the manner specified by the
Board in Greyhound Lines, 319 NLRB 554 (1995). However,
Clary testified that before he took the witness stand, he exam-
ined an exhibit for about 30 minutes and made notes.
It is not entirely clear whether Clary obtained this exhibit
from the Union’s representative or from counsel for the General
Counsel, but Clary testified that after he looked at the exhibit,
he gave it to counsel for the General Counsel. Neither the Un-
ion nor the General Counsel had asked my permission to show
the exhibit to Clary before he testified.
This exhibit was not a transcript. However, I conclude that
showing the exhibit to Clary created a danger to testimony
which was to be prevented by my instruction that “counsel for a
party may not, in any manner, including the showing of tran-
scripts, inform a witness about the content of the testimony
given by a preceding witness without express permission of the
administrative law judge.” (Tr. 35–36.)33

32 Other parts of Clary’s testimony cast doubt on his credibility. He
testified that he told Foreman Jackson that the union members “were
there to show him the quality of work that we could do but that we
weren’t going to try to organize Colburn Electric.” (Tr. 501, emphasis
added.) Yet Union Organizer Russell’s letter to Jackson identified
Clary as a member of the “Organizing Committee.” (R. Exh. 21.) In
fact, Russell testified that Clary was a full-time organizer (Tr. 322) and
Clary admitted on cross-examination that he had been a paid organizer
for the Union. (Tr. 517.) Considering that when Clary made the “we
weren’t going to try to organize” statement the Union was paying him
to be a full-time organizer, the untruthfulness of this declaration is
palpable. A person’s truthfulness off the stand may affect his credibil-
ity as a witness, and I find that it does so here.
33 The General Counsel’s brief argues that showing an exhibit to
Clary did not violate the sequestration order because the prohibition
only concerns testimony, and the exhibit was not testimony. The ex-
hibit provided to Clary was the daily log kept by Francine Jackson, who
served as secretary at the jobsite, based on information provided by her
husband, Foreman Robert Jackson. (R. Exh. 5.) It often constituted
their contemporaneous, or almost contemporaneous notes about the
events which are at issue in this case. Many of these events involved
Clary.
Although the log was not itself testimony, it summarized Jackson’s
account of these events and thus provided important information about
the essence of his testimony. Robert Jackson testified before Clary, and
thus was a “preceding witness” within the meaning of the sequestration
order.
The General Counsel’s brief further contends: “No risk of fabrica-
tion of testimony occurred because Clary could not know what other
witnesses had said about [the exhibit he examined] or its contents, or
even, arguably, that it was a formal exhibit that had been admitted.”
However, I believe it is unlikely that Clary would have examined the
log for 30 minutes, and made notes about it, if he had no knowledge of
its significance.
The sequestration rule protects not only against the risk of deliberate
fabrication, but also against the possibility that the witness’ recollection
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 548
Examining the exhibit for 30 minutes was long enough to
have had an effect on the witness’s testimony. More seriously,
the fact that Clary made notes from the exhibit raises the possi-
bility that he wanted his testimony to be affected by it. I need
not determine whether the sequestration order literally was
violated to conclude that Clary’s study of this exhibit before
testifying raises a question about his credibility.
For this reason, as well the other reasons discussed above
and my observations of all the witnesses, I do not credit Clary’s
testimony. Instead, I find that when he came to work on De-
cember 12, he disobeyed Foreman Jackson’s instruction and
entered the jobsite through the gate reserved for the workers of
other employers.
Later on December 12, 1995, during his lunch period, Clary,
along with Clifford Zylks, Herbert (Bo) Brown, and Eugene
Cage, picketed the jobsite. Clary testified the picket sign stated
that Colburn Electric did not provide him or his family with
health insurance. The next day, Jackson discharged Clary,
giving as a reason that Clary had not used the Colburn gate on
the previous day.
It appears that Clary was the first person discharged for fail-
ing to use the Colburn gate, but he was not the last. Jackson
credibly testified that he also terminated the employment of
Angelo Konstantinides and Eugene Cage for similar infrac-
tions. There is no evidence that Konstantinides engaged in any
union activity.
I will evaluate Clary’s discharge under the standards the
Board promulgated in Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). At the first step of the Wright Line analysis, the Gen-
eral Counsel must establish that the alleged discriminatee en-
gaged in union or other protected activities. Clary was a mem-
ber of the Union’s organizing committee and the day before his
discharge, he picketed the jobsite during his lunch period.
Therefore, I find that the General Counsel has satisfied the first
Wright Line requirement.
The General Counsel next must establish that the Respon-
dent knew of Clary’s protected activities. On December 11,
1995, the Union delivered to the Respondent a letter stating, in
part, “Please be advised that IBEW Local Union 995 is engaged
in organizing activity with your company, Colburn Electric Co.,
which is protected under Section 7 of the National Labor Rela-

may be affected even without his conscious assent. Clary was a paid
union organizer as well as an alleged discriminatee seeking reinstate-
ment, and thus had an interest in the outcome of this case on the per-
sonal as well as the professional level. Reading this log prepared by his
adversaries, right before he took the stand, predictably could have an
impact on his state of mind, and therefore, on the tenor of his testi-
mony.
In arguing that showing the log to Clary did not violate the seques-
tration order, the General Counsel’s brief further states that “Clary was
shown documents counsel for the General Counsel could reasonably
expect to be part of his cross-examination. Therefore, the showing to
Clary of R Exh. 5 did not violate the sequestration rule.” However, it is
not entirely clear to me how Clary could have been cross-examined, let
alone impeached, with a document he had not prepared, signed, ini-
tialed, adopted, or even seen until the day of hearing.
tions Act.” The letter identified Clary as a member of the orga-
nizing committee. (R. Exh. 21.)
The Respondent received this letter the day before it dis-
charged Clary. Moreover, Clary’s picketing was an open activ-
ity which would have been hard to miss.
Additionally, the log kept by Francine Jackson, based on in-
formation provided by her husband, Foreman Robert Jackson,
provides evidence that management knew about Clary’s orga-
nizing activities. An entry dated “12–12” states, in part, “Steve
Vandura came to Bob & I and told us Mike Clary was talking
about joining the union to him. Between that time slot. On
Colburn Co. Time. He said he would testify that, that was not
the first time.” (R. Exh. 5.)
The log entry for this date also records the picketing by
Clary and others during the lunchbreak. It then states, “Later
that afternoon Bob & I were informed that Mike Clary was
talking union on Colburn Elec. time to other guys.” (R. Exh.
5.)
In sum, the evidence makes a very strong case of employer
knowledge. Therefore, I find that the General Counsel has met
its burden at the first two steps of the Wright Line analysis.
At the third step, the General Counsel must establish that the
Respondent took an adverse employment action against the
alleged discriminatee. Clearly it did. It discharged him. The
General Counsel has satisfied the third step of the Wright Line
analysis.
Finally, the General Counsel must show a nexus or link be-
tween the allege discriminatee’s protected activities and the
adverse employment action. Here, the timing is quite suspi-
cious and I find that it is sufficient to establish the necessary
link. Additionally, the fact that the log kept by the Jacksons
reflects both Clary’s protected activities and, a little later,
Clary’s discharge, gives rise to a suspicion that the two were
related.
Therefore, I find that the General Counsel has established a
prima facie case. The burden now shifts to the Respondent to
show that it would have taken the same action against Clary
even in the absence of protected activity.
The Respondent discharged Clary because he disobeyed the
foreman’s instruction and entered the jobsite using the gate
reserved for employees of other companies. To analyze the
seriousness of this misconduct, I start with the principle that an
employer may require that its employees enter and leave
through the gate designated for their use. An employer may
also discharge an employee for disobeying a lawful order,
which is insubordination.
In the case of reserve gates at construction sites, if an em-
ployee of the company with which a union has a labor dispute
fails to use the gate reserved for the employees of that com-
pany, and instead uses the gate reserved for neutral employers,
that action taints, or makes invalid, the neutral gate. When that
happens, the union which has the dispute with the one employer
lawfully may picket the gate reserved for neutrals.
In this case, if Colburn’s employees used the gate reserved
for the general contractor and other subcontractors, rather than
their own gate, then the union lawfully could picket the general
contractor and other subcontractors at their gate. If employees
of those companies honored the picket line, then it could shut
COLBURN ELECTRIC CO. 549
down the entire project. Therefore, Colburn Electric had very
important reasons for imposing a strong penalty on any of its
employees who used the wrong gate.
The General Counsel has not argued that Clary had a right to
use the neutral gate, but instead has contended that the Respon-
dent seized on Clary’s use of the wrong gate as a pretext.
However, for the same infraction, the Respondent also dis-
charged at least two other employees, including one with no
known union activities and no known ties to the Union. The
Respondent took very seriously its duty to preserve the integrity
of the gates. Its ability to continue to do work at the jobsite
presumably depended on it.
Clary’s work as a paid union organizer did not grant him a
privilege to use the wrong gate, and thereby destroy the reserve
gate system because the Union didn’t like it. He was also a
Colburn Electric’s employee, and as an employee, he had to
abide by the same nondiscriminatory company rules that other
employees had to follow. See NLRB v. Town & Country Elec-
tric, 516 U.S. 85 (1995). When he broke the rule, he received
the same penalty that other employees received regardless of
whether they had or had not engaged in union activity.
The evidence therefore does not establish that Clary received
harsher treatment than another employee, without protected
activity, who broke the same rule. That fact would lead to the
conclusion that the Respondent has overcome the General
Counsel’s prima facie case. However, and although the Gen-
eral Counsel does not argue the case in precisely this way, I
believe it is also appropriate to consider whether the discharges
of other employees might have been a kind of “cover” to make
the termination of Clary’s employment appear legitimate and
nondiscriminatory.34
The evidence, after all, clearly documents both Clary’s pro-
tected activities and management’s awareness of those activi-
ties, and his discharge follows rather quickly after Clary pick-
eted the jobsite during his lunch hour, an open example of pro-
tected union activity expressly noted in the Jacksons’ log.
Moreover, the rule in question, to enter and leave by the gate
reserved for Colburn Electric employees, not only was a recent
rule but was itself the result of the Union’s activity at the job-
site.
In these circumstances, I believe it is appropriate to ask
whether the gate rule itself was a seine devised to catch and
remove the union “fish” but which happened to ensnare some
nonunion ones as well. I conclude that it was not.
If the rule had concerned some relatively unimportant matter,
but carried the discharge penalty for violation, its motivation
would be suspicious. However, the gate rule was of vital im-
portance to Respondent’s continued presence at the jobsite.
Specifically, if the neutral gate, used by persons associated
with companies other than Colburn Electric, were tainted, then
it would be lawful for the Union to picket at that gate and the

34 The fact that an employee or employees with no union affiliation
or activity received similar discipline will not make an employer’s
action lawful if the true reason for the adverse employment action is to
punish some other members of the affected group for engaging in union
activity or to discourage employees from such activity. See, e.g., Mini-
Togs, Inc., 304 NLRB 644, 648 (1991).
entire project might be shut down. The general contractor
would have little choice but to expel the Respondent from the
project.
A neutral gate becomes tainted through a “pattern of destruc-
tion,” for example, when employees of the primary employer,
with which a union has a dispute, use the gate reserved for neu-
tral employers. See, e.g., Oil Workers Local 3–689 (Martin
Marietta), 307 NLRB 1031 (1992). Colburn Electric had a
compelling interest, therefore, in assuring that its employees
entered and left the jobsite strictly through its own gate, so that
they did not destroy the neutrality of the gate reserved for other
companies and their workers.
Colburn Electric’s employees had to be impressed with the
requirement that they must use only their own gate, because
taking a shortcut which seemed merely convenient to them
could have lasting adverse consequences for the Company’s
future on the project. In these circumstances, the penalty of
discharge for a first offense was commensurate with the seri-
ousness of the violation, and with the harm which Colburn
itself could suffer if the gate violation occurred. Thus, the gate
rule served a legitimate, not a pretextual purpose.
Additionally, Clary’s open defiance of Jackson’s instruction
to use the Colburn gate established his propensity to ignore this
rule in the future. His repeated disregard of the correct gate
easily could establish the pattern of destruction necessary for
the Union to picket lawfully at all gates. Clary, by himself, not
only could destroy the gate system but seemed inclined to do so
but demonstrated an intention to do so by disobeying a direct
order to use the proper gate.
The way Clary flouted his supervisor’s instruction suggests
that he intended to continue to use the neutral gate and thereby
destroy its usefulness. Clary’s role as a paid organizer for the
Union is consistent with such an intention. I find that he acted
from this motivation, and that his choice to use the neutral gate
was deliberate.35
I find that by imposing the same penalty on Clary it imposed
on others who violated the gate rule, the Respondent was fur-
thering its legitimate business interests, and not using the rule
as a ruse or cover for unlawful discrimination.
In sum, I find that Respondent has carried its burden of
showing that it would have discharged Clary for this infraction
regardless of his union affiliation and activities. Therefore, I
recommend that the allegation that Respondent discharged
Clary in violation of Section 8(a)(1) and (3) of the Act be dis-
missed.36
35 Clary’s status as a Colburn Electric employee gave him a power to
destroy the neutral gate that other paid union officials who were not
Colburn employees did not possess. He could destroy the neutral gate
simply by using it. Regardless of his simultaneous loyalty to the Union
as its paid organizer, Clary did not have the right to use his special
status as a Colburn Electric employee to destroy the reserve gate sys-
tem. Such conduct does not fall within the protection of the Act.
36 I do not consider it significant that Jackson waited until the day af-
ter the infraction to discharge Clary for it. Clary was the first person to
be disciplined for violating this rule and also had engaged in open
union activity. It is entirely reasonable that a foreman would want to
“sleep on it,” and perhaps consult higher management, before taking
action in so delicate a situation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 550
With respect to the discharge of Michael Simoneaux, the
General Counsel characterized Simoneaux as a known union
activist. However, the evidence does not establish that Si-
moneaux was a union activist, although, by his own admission,
Foreman Jackson apparently thought Simoneaux was. (Tr. 72.)
Simoneaux did not testify. Zylks and Clary testified that on
December 13, 1995, at the jobsite near the “gang box” (where
tools are kept), Clary gave Simoneaux a union authorization
card Simoneaux signed and gave back to Clary. According to
Zylks and Clary, Foreman Jackson came up behind Simoneaux
as he was filling out the card. (Tr. 387–388.)
Based on my observations of the witnesses, as well as for the
additional reasons discussed above, I do not credit the testi-
mony of either Clary or Zylks. Another witness, Herbert (Bo)
Brown, testified that on the day he was discharged, Simoneaux
had a conversation with Zylks about joining the Union. How-
ever, Brown did not indicate that Clary was involved in this
conversation. Brown also did not testify either that Simoneaux
signed a union card or that Jackson was in the area when Si-
moneaux did so. (Tr. 218.)37
As noted, Simoneaux did not testify and from Brown’s tes-
timony, which I credit, I find no basis for concluding that Jack-
son saw Simoneaux sign a union card. It would be expected
that Jackson, as foreman, would be all around the jobsite, so his
presence near the “gang box” would not be out of the ordinary.
Similarly, the evidence does not establish that the presence of
two electricians talking at the “gang box” would be an unusual
event, or likely to excite suspicion of union activity.
In sum, I find the evidence insufficient to establish that man-
agement knew that Simoneaux had discussed the Union with
Zylks or Clary. The evidence also is insufficient to establish
that Simoneaux had signed a union authorization card. Addi-
tionally, Union Organizer Russell’s December 11, 1995 letter
to Jackson did not list Simoneaux as a member of the Union’s
organizing committee, and I find that he was not.38
Applying the Wright Line standards, I find that the General
Counsel has satisfied the requirement at step 1 by showing that
Simoneaux discussed the Union with another employee. Such
conversation is protected by the Act.
At the second step, the General Counsel must establish that
the Company knew that Simoneaux was engaged in protected
activities. The General Counsel has met this burden, but in a
manner which is not without irony. The General Counsel

37 Brown’s testimony also raises some questions about his accuracy
as a witness. For example, Brown testified on direct examination that
although he had attendance problems while working at Colburn, he had
not been disciplined for them. Yet on cross-examination, he admitted
he received a warning about attendance. Additionally, although Union
Organizer Russell’s December 11, 1995 letter to Jackson identified
Brown as a member of the organizing committee, Brown testified, “I
did not agree to become a member of an organizing committee.” (Tr.
232.)
It would seem in Brown’s interest to admit that he was a member of
the organizing committee, so his testimony that he did not agree to be
on the organizing committee is certainly not self-serving. In sum, I find
that Brown was an honest witness but with a less-than-perfect memory.
38 However, as discussed below, the evidence does establish man-
agement’s belief that Simoneaux was engaged in union activities.
called Foreman Robert Jackson to testify. The examination
included the following:

Q. Do you remember an employee by the name of Mi-
chael Simoneaux?
A. Yes.
Q. And how did his employment relationship with
Colburn end?
A. He was fired.
Q. And you knew he was engaged in union organizing
on the job at the time you fired him, right?
A. Yes [Tr. 72.]

By this admission from a supervisor, the General Counsel
has established that the foreman knew something that may not
have been the case. At least the record, far from establishing
that Simoneaux was an organizer, merely suggests that Si-
moneaux was an employee receptive to being organized. Yet if
management believed that Simoneaux was a union organizer,
that belief is sufficient to satisfy the second step of the Wright
Line analysis.
At step 3, the General Counsel must prove that the Respon-
dent took an adverse employment against Simoneaux. The
Respondent did. It discharged him.
At the last step, the General Counsel must establish some
link or nexus between the protected activities of the alleged
discriminatee and the adverse employment action. In the case
of Simoneaux, that link is tenuous at best, because Simoneaux’s
only protected activity established by the evidence was talking
to another employee about the Union. Moreover, the record
does not establish that the Respondent was aware of this activ-
ity.
If there is any link, it must spring from the fact that the Re-
spondent believed Simoneaux to be an organizer, and that other
employees were engaging in protected activity, most notably
picketing the jobsite. Although this is a relatively weak link, I
find that it is sufficient to carry the General Counsel’s burden at
step 4. Therefore, I find that the General Counsel has estab-
lished a prima facie case.
The burden then shifts to the Respondent to establish that it
would have discharged Simoneaux in any event, even if he had
not engaged in protected activities.
Jackson testified that he discharged Simoneaux for not show-
ing up for work. I credit this testimony, and also credit Jack-
son’s uncontradicted testimony that he told Simoneaux this
reason during the discharge interview.
Based on my observation of the witnesses, I find that Jack-
son was telling the truth. He impressed me as being scrupu-
lously honest, and his testimony is consistent with that impres-
sion. For example, Jackson admitted that he “knew” Si-
moneaux to be a union organizer, even though that admission
clearly was not in his interest.
Without this testimony, that Jackson “knew” Simoneaux to
be a union organizer, the General Counsel would not have been
able to establish the second Wright Line requirement and there-
fore would not have established a prima facie case with respect
to Simoneaux. I credited the testimony because, based upon his
demeanor, I found Jackson to be telling the truth. Similarly, I
COLBURN ELECTRIC CO. 551
credit his testimony that the reason he discharged Simoneaux
was because of Simoneaux’s absences, not his union activity.
The General Counsel contends that a log kept by Francine
Jackson, based on information provided by her husband, Fore-
man Robert Jackson, contains a suspicious entry with respect to
the Simoneaux discharge. For Friday, December 8, under the
words “Rec’d shipment of park lot poles” appear words which
have been scratched out, but most of which are still legible.
The words state “Bob fired Michael Simoneaux for not calling
in for [illegible] days.” (R. Exh. 5.)
However, another, longer entry regarding the Simoneaux
discharge appears in the log for December 13, the day on which
Simoneaux’s employment was terminated. An obvious expla-
nation would appear to be that Francine Jackson began to write
on the wrong page, realized her mistake, and scratched through
the entry. However, the General Counsel did not ask about this
entry while cross-examining Francine Jackson about the log.
In these circumstances, I attribute no significance to the
scratched-through log entry. I find that the Respondent has met
its burden of rebutting the General Counsel’s prima facie case
with respect to the discharge of Michael Simoneaux. There-
fore, I recommend that this allegation be dismissed.
G. December 14, 1995 Discharge of Eugene Cage
Complaint paragraph 17 alleges that on about December 14,
1995, the Respondent discharged employee Eugene Cage. The
complaint alleges that this action violated Section 8(a)(1) and
(3) of the Act.
The Respondent’s answer admits that it discharged Cage, but
denies that it violated the Act. Rather, it asserts that it dis-
charged Cage for “just cause” unrelated to Cage’s protected
activity. I will analyze this allegation in accordance with the
Wright Line criteria.
At step 1, the General Counsel has established that Cage en-
gaged in protected union activity. On December 11, 1995, the
Union delivered a letter to Foreman Jackson, which identified
the members of its organizing committee, and included Cage’s
number. On that same day, he testified, he began wearing a
union badge.
Cage participated in the picketing of the Colburn Electric
gate on December 12, 1995, and later engaged in an ostensible
“unfair labor practice strike” which he testified occurred during
part of the workday on December 13, 1995. Thus, the General
Counsel clearly has proven the first Wright Line element.
The General Counsel has also satisfied its burden at step 2 of
the Wright Line analysis. Picketing is an open activity which
would be obvious to management. Additionally, Foreman
Jackson admitted that he knew that Cage had been engaged in
Union organizing at the time of Cage’s discharge.
The General Counsel also has met the step 3 requirement of
showing an adverse employment action. The Respondent has
admitted discharging Cage.
Finally, the General Counsel has established the step 4 re-
quirement of showing a link or nexus between the protected
activity and the adverse employment action. The discharge
came the day after Cage’s picketing, and thus the timing itself
is sufficient to provide the necessary nexus. I conclude that the
General Counsel has established a prima facie case.
The Respondent asserts that it discharged Cage for the same
reason it discharged Clary and Konstantinides, failure to use the
Colburn Electric gate after the Respondent, at the direction of
the general contractor, established a gate reserved for its use.
On direct examination, Cage testified that when Foreman
Jackson fired him, Jackson did not explain or give any reason
for the action. According to Cage, Jackson “didn’t give me no
reason why he fired; he just said I was fired.” (Tr. 351.) Then,
on cross-examination, Cage admitted that Jackson told him he
was discharged for using the wrong gate “two or three days
ago.” (Tr. 355.)39
Cage denied being an organizer and denied being a member
of the Union’s organizing committee. (Tr. 355.) Yet the Union
identified Cage as being on the organizing committee in its
December 11, 1995 letter to the Respondent. (R. Exh. 21.)
Cage’s protected activity, wearing a union badge, picketing,
and participating in an “unfair labor practice strike,” clearly
identified him with the organizing effort. Moreover, as an al-
leged discriminatee, it was in his interest to demonstrate that he
had engaged in protected activity, and not in his interest to
disclaim a role in organizing.40
These contradictions, and particularly Cage’s denial on di-
rect examination that Jackson gave a reason for his discharge,
followed by his admission on cross-examination that Jackson
provided such an explanation, undercut the credibility of
Cage’s testimony. For this reason, and based on my observa-
tions of the witnesses, I credit Jackson’s testimony, rather than
that of Cage. Although I believe Cage was an honest witness
and sincerely tried to recall the events as they happened, the
inconsistencies in Cage’s testimony persuade me that Jackson’s
is more reliable.
Jackson testified that he discharged Cage for “walking off
the job other than through our gate.” (Tr. 111; see also Tr. 72.)
I find that Cage did fail to use the gate reserved for Colburn
Electric employees when he left the jobsite on December 13,
1995.41

39 On recross-examination, Cage testified that he was not sure but
thought the day of his discharge was a Monday. According to the log
kept by Francine Jackson, her husband discharged Cage on Friday,
December 15, 1995 “for not using our entrance on 12–13.” (R. Exh. 5.)
40 Additionally, in response to a question on redirect examination,
Cage said that he did not participate in any union activity on a volun-
tary basis, but in response to the next question, agreed that he partici-
pated in union activity because he wanted to do so. (Tr. 362.) How-
ever, I believe that these responses resulted merely from misunder-
standing the question.
41 Although signs marked the entrances to the jobsite, there was no
fence to prevent workers from entering or leaving at locations other
than the designated gates. I find that Cage walked off the job without
using either the gate designated for Colburn Electric employees or the
gate reserved for others.
Cage denied using the wrong gate but he did not specifically deny
leaving the jobsite without going through a gate at all. Therefore, a
finding that Cage failed to use the gate reserved for Colburn Electric
does not require a choice between the testimony of Cage and Jackson.
However, to the extent that the testimony of these witnesses is in con-
flict, for the reasons discussed above I credit Jackson.
It may also be noted that Cage engaged in picketing on December
13, 1995, after which he returned to work. There is no contention that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 552
For the reasons discussed above with respect to the discharge
of Clary, the Respondent had a legitimate, important interest in
making sure that the reserve gate system it had established
remained untainted. It discharged employees for failing to use
the Colburn Electric gate regardless of their union activity or
lack of it. Therefore, I find that Respondent has established
that it would have discharged Cage even in the absence of un-
ion activity, and has carried its burden of rebutting the General
Counsel’s prima facie case. I recommend that the allegations
that Respondent unlawfully discharged Eugene Cage be dis-
missed.
H. December 21, 1995 Alleged Promulgation of Rule Prohibit-
ing Discussion of Union During Working Hours
Complaint paragraph 10 alleges that Respondent violated
Section 8(a)(1) of the Act on about December 21, 1995, by
promulgating and maintaining at its jobsite a rule prohibiting its
employees from talking about union matters during working
hours.
Respondent has denied this allegation. However, Foreman
Jackson testified that he called a meeting of employees and
asked them to sign a document stating: “To Whom It May
Concern. There has been union activities going on during
working hours. THIS WILL NOT BE TOLERATED. THIS IS
A WARNING. If this happens again anytime except breaks or
lunch you will be fired.” (R. Exh. 8.) He told the employees to
sign this document, and 10 of them did.
I find that this rule violates Section 8(a)(1) of the Act.
The Respondent contends that, in accordance with the prin-
ciple that “working time is for work,” it lawfully may prohibit
the employees from discussing the Union during such working
time. However, Respondent cannot credibly claim that the rule
assures that working time will be spent doing work, because the
rule, on its face, does not prohibit employees from discussing
any subject other than the Union.
Applying an objective standard, the words of the rule cannot
reasonably be understood as a requirement that employees
work rather than talk during working time. Thus, the rule does
not threaten employees with discharge no matter how much
time they spend talking about sports, deer hunting, the weather,
or any topic except the Union. However, the rule states that
they may not discuss the Union during working time and will
be discharged if they do.
I find that the Respondent interfered with, restrained, and co-
erced employees in the exercise of rights protected by Section 7
of the Act by promulgating this rule, and thereby violated Sec-
tion 8(a)(1) of the Act. I further find that Respondent violated
Section 8(a)(1) by requiring employees to sign the notice of this
rule. See, e.g., Heck’s, Inc., 293 NLRB 1111, 1119–1120
(1989).
The General Counsel further argues that Respondent has al-
lowed employees to engage in solicitations unrelated to the

when Cage failed to use the Colburn Electric gate, it was while on his
way to picket rather than later, after he had finished work for the day.
Moreover, it would not save Cage time to leave the jobsite at a location
other than the Colburn gate if he were on his way to picket near the
Colburn gate. Therefore, I conclude that when Cage failed to use the
Colburn gate on December 13, 1995, it was at the end of his workday.
Union during working time. In particular, the General Counsel
points to the testimony of Clifford Zylks that he sold candy to
other employees during working time, and to the testimony of
Herbert Brown that a vendor came on the jobsite and sold
shrimp to employees during working time, without objection
from Foreman Jackson.
The rule in question is manifestly unlawful on its face, and
evidence of other solicitations is not needed to establish a viola-
tion. However, I do credit Brown’s testimony that Foreman
Jackson allowed employees to use working time to buy shrimp
from a vendor, earlier the same month that Jackson promul-
gated the unlawful rule.42 The evidence does not establish that
Respondent later issued any rule restricting such solicitations at
the jobsite.
In sum, I recommend that the Board find that Respondent
violated Section 8(a)(1) of the Act as alleged in paragraph 10 of
the complaint.
I. December 21, 1995 Discipline and Discharge of
Clifford Zylks
Paragraph 18 of the complaint alleges that on about Decem-
ber 21, 1995, the Respondent issued a written warning to em-
ployee Clifford Zylks. Paragraph 19 of the complaint alleges
that on about December 21, 1995, the Respondent discharged
Zylks. The complaint alleges that these actions violated Sec-
tions 8(a)(1) and (3) of the Act.
The Respondent admits that it gave Zylks a warning and dis-
charged him on December 21, 1995. However, Respondent’s
answer states that it discharged Zylks for “just cause” unrelated
to protected activity.
Foreman Jackson testified that on December 20, 1995, he re-
ceived a written complaint from an employee, David Houstein,
that Zylks was bothering him. Houstein’s complaint stated, “I
am tired hereing [sic] Cilff [sic] talking about the Union. I ask
him to stop about Union. So we could go back to work. He
was talking to some Carpenter about the Union. He said (F—k
work)? I’m talking Union. It’s impossible to work with him.”
(R. Exh. 7, emphasis in original.)43
Jackson decided to think about this matter before taking any
action. The next day, he called a meeting of employees at
which he announced the rule, discussed above, prohibiting
employees from discussing the Union during working time.
Jackson testified that he told Zylks “he could no longer harass
42 I do not find that Jackson allowed Zylks to sell candy during
working time. As discussed above, I do not credit Zylks’ testimony.
Moreover, even assuming that Zylks did ask Jackson if he wanted to
buy candy, and even assuming that Jackson replied that he did not but
that some of the employees might, as Zylks testified, this evidence
would not establish that Jackson intended to allow Zylks to sell the
candy during working time rather than during lunch and breaks.
43 Houstein did not testify. Gerald Dees, the general contractor’s
construction superintendent, testified that he saw an incident in which
Houstein was on a ladder and Zylks was on the floor below talking to
Houstein. Dees credibly testified that Houstein said, “Damn it. Shut
up. I’m tired of hearing that union bullcrap. If you don’t shut up, I’m
walking off the job.” (Tr. 556.) Although I find that this incident took
place, Dees’ testimony is not specific as to when it occurred, and I
cannot conclude that it was the incident which resulted in Houstein’s
written complaint to Jackson.
COLBURN ELECTRIC CO. 553
my employees or conduct union business on Colburn Electric’s
time. He refused to do that. He told me he would conduct
union business any time that he felt like it.” And therefore,
Jackson testified, “I fired him.” (Tr. 148.)
Although, based on my observations of the witnesses, I
would credit Jackson to resolve any conflict in the testimony,
Zylks’ account of his discharge does not contradict Jackson’s
version. On cross-examination, Zylks described the meeting at
which Jackson announced the rule prohibiting discussion of the
Union during working time. In part, Zylks testified as follows:

Q. BY MR FRAZIER. And you told him, did you not,
and the other hands, that you were going to talk union
business any time somebody wanted to talk union busi-
ness, correct?
A. Yes, sir. I told him I was going to talk about the
union.
Q. And that was in direct violation of what he had
asked you not to do, correct?
A. Yes, sir. [Tr. 451.]

I find that Jackson discharged Zylks because Zylks had dis-
cussed the Union with other employees during working time,
and because Zylks refused to promise that he would not do so
in the future.
The General Counsel clearly has established the first Wright
Line requirement. Zylks engaged in extensive union activity.
Moreover, the Respondent has admitted, through Foreman
Jackson, that it knew about Zylks’ union activity. In this in-
stance, an employee’s complaint about Zylks’ union activity
precipitated the meeting which culminated in Zylks’ discharge.
Both a warning and a discharge are adverse employment ac-
tions, thus satisfying the third Wright Line requirement. At the
final step, there is a clear, unequivocal link between Zylks’
protected activities and the warning and termination. The Gen-
eral Counsel has made not merely a prima facie case, but a very
compelling one.
The Respondent appears to base its defense largely on the
premise that it had a right to promulgate the rule selectively
banning union activity during working time, and therefore had
the right to discipline an employee who refused to abide by this
rule. However, as discussed above, the rule is unlawful. Ask-
ing employees to pledge their allegiance to such an unlawful
rule also coerces them in the exercise of their Section 7 rights.
An employer may not selectively prohibit the discussion of
unionization. Under certain circumstances, an employer law-
fully may restrict employee solicitation and distribution in a
nondiscriminatory manner, but the evidence does not establish
that the Respondent had ever placed in effect such a neutral
rule.44

44 The Respondent elicited testimony from Foreman Jackson indicat-
ing that employees would be subject to discipline if they were talking
rather than working, regardless of what they were discussing. (Tr.
193.) However, this testimony does not establish that Respondent had
ever announced such a rule to its employees. I find that, apart from the
discriminatory rule it promulgated on December 21, 1995, the Respon-
dent did not have any no-solicitation or no-distribution rule in effect at
this jobsite at any time material to the complaint.
Clearly, the evidence does not establish that Respondent dis-
ciplined or discharged Zylks for violation of a nondiscrimina-
tory no-solicitation or no-distribution rule. Rather, as Jackson
testified, Zylks “told me he would conduct union business any
time that he felt like it. And therefore, I fired him.” (Tr. 148.)
By his own testimony, Jackson did not discharge Zylks be-
cause Zylks had persisted in talking with another employee
when that employee wanted to get work done. Jackson also did
not discharge Zylks because Zylks refused to promise he would
not, in the future, go on speaking to an employee at work after
that employee asked not to be distracted.
Instead, Jackson discharged Zylks because Zylks would not
abide by a rule which discriminatorily prohibited discussion of
the Union during working time. To overcome the General
Counsel’s prima facie case, the Respondent must show that it
would have discharged Zylks even in the absence of union
activity. It cannot make such a showing when the very reason
for the discharge was Zylks’ intent to continue his union activ-
ity.
A similar analysis also applies to the warning Respondent
gave to Zylks before discharging him. I recommend that the
Board find that Respondent violated Section 8(a)(3) and (1) as
alleged in paragraphs 18 and 19 of the complaint.
J. Alleged Threats of Discharge in December 1995
Complaint paragraph 11, as amended orally at the hearing,
alleges that on December 21 and 28, 1995, and on another date
in December 1995 not known more precisely, Respondent, by
Foreman Jackson, threatened employees with discharge if they
engaged in union activities. The Respondent has denied these
allegations.
The evidence establishes very convincingly that on Decem-
ber 21, 1995, Jackson did threaten employees with discharge if
they engaged in union activities. Indeed, Jackson required
them to sign a warning not to engage in union activities “during
working hours,” and this announcement concluded with the
words, “If this happens again anytime except breaks or lunch,
You Will Be Fired.” (R. Exh. 8, emphasis in original.) The
record also establishes that Jackson made a similar threat of
discharge orally at the time he announced this rule to employ-
ees and made them sign it. (See Tr. 221.)
I have found that at this time, Respondent did not have in ef-
fect any valid, nondiscriminatory rule restricting solicitations
during working time. Employees were free to discuss whatever
they wished to talk about, except the Union. Both the oral and
written threats to discharge employees if they discussed the
Union clearly interfered with, restrained, and coerced employ-
ees in their rights guaranteed by Section 7 of the Act. Equally
clearly, these threats, which Jackson made on December 21,
1995, violated Section 8(a)(1) of the Act.
With respect to the allegation that Jackson made a similar
threat on December 28, 1995, Herbert Brown testified that on
the day he was laid off,45 Jackson “told me if I said anything
45 Brown’s memory appeared to be uncertain as to the exact date of
his layoff. On cross-examination, he testified it was just before
Christmas, but when asked if it could have been just after Christmas,
answere, “It could have been.” (Tr. 227.) Based on the record as a
whole, I find that Brown’s last day at work was December 28, 1995.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 554
about organization again, he was going to fire me. But, he told
me we were all going to have a layoff, ‘So, you will be laid off
today.’” (Tr. 222.)46
I conclude that Brown was an honest witness, although his
memory may have limited his ability to give precise informa-
tion about these events, which occurred almost a year and a half
before the hearing. Additionally, Respondent has not denied
that Jackson made employees sign the warning on December
21, 1995, and the additional statement, on the day of Brown’s
layoff, is similar.47 I credit Brown’s testimony, and find that
Jackson did threaten to discharge him on about December 28,
1995, if Brown said anything further about union organization.
As to the third allegation that Jackson threatened employees
with discharge, Brown testified that it took place sometime
between December 21 and 28, 1995. I credit his testimony, and
find that sometime during this week, Jackson threatened em-
ployees with discharge if they discussed the Union during
working time. This statement also violated Section 8(a)(1) of
the Act.
It is clear that Jackson believed that he could lawfully forbid
employees from discussing the Union during working time.
Indeed, the Respondent, not the General Counsel, introduced
into evidence the written threat which I find to be violative. (R.
Exh. 8.)
However, neither motivation nor good faith is an element of
proof for an 8(a)(1) violation. The chilling effect of the threats
in question does not depend on what Jackson had in his head or
heart. Rather, that effect must be judged objectively, based on
the contents of the statement itself. Applying such a standard, I
find that the threats here clearly interfered with, restrained, and
coerced employees in the exercise of protected rights.
Therefore, I recommend that the Board find that the Respon-
dent violated the Act, as alleged in complaint paragraph 11.

46 The complaint does not allege that the Respondent’s layoff of
Brown violated the Act.
47 Brown’s testimony does not indicate that Jackson qualified this
“don’t talk about organizing” statement by limiting the prohibition to
working time. However, even if Jackson included this qualifier, it
doesn’t matter. Even with the words “on working time,” the threat still
interferes with, restrains, and coerces employees in violation of Sec.
8(a)(1).
CONCLUSIONS OF LAW
1. Colburn Electric Company is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. International Brotherhood of Electrical Workers, Local
Union No. 995, AFL–CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by the
following acts: on about December 21, 1995, promulgating and
maintaining at its jobsite a rule prohibiting its employees from
talking about union matters during working hours; on about
December 21, 1995, requiring employees to sign or signify
their assent to this unlawful rule; on or about December 21 and
28 and on another date in December 1995, not known more
precisely, threatening employees with discharge if they en-
gaged in union activities; on or about December 21, 1995, issu-
ing a written warning to employee Clifford Zylks and then
discharging him because Zylks joined, formed, or assisted the
Union and engaged in concerted activities and to discourage
employees from engaging in these activities, or because he
refused to assent to a rule unlawfully restricting his right to
engage in union activities during working time.
4. The Respondent violated Section 8(a)(3) of the Act by the
following acts: On or about December 21, 1995, issuing a
warning to employee Clifford Zylks and then discharging him
because Zylks joined, formed, or assisted the Union and en-
gaged in concerted activities and to discourage employees from
engaging in these activities.
5. The Respondent did not violate the Act in any other man-
ner alleged in the complaint.
REMEDY
To remedy the unfair labor practices found here, I recom-
mend that Respondent be ordered to rescind the rule it promul-
gated on December 21, 1995, prohibiting employees, under
penalty of discharge, from discussing unionization or engaging
in other union activities during working time; to rescind the
warning it issued to employee Clifford Zylks on about Decem-
ber 21, 1995; to reinstate Zylks to his former position of em-
ployment or, if that position no longer exists, to a substantially
equivalent position of employment, and make him whole, with
interest, for all losses he suffered because of Respondent’s
unlawful discrimination against him.
[Recommended Order omitted from publication.]