Edwards Painting Inc.

National Labor Relations Board - Board Decisions

Nov 30, 2016

364 NLRB No. 152 (N.L.R.B. 2016)

364 NLRB No. 152
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the
Executive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections
can be included in the bound volumes.
Edwards Painting, Inc. and International Union of
Painters and Allied Trades, District Council 5,
Affiliated with International Union of Painters
and Allied Trades. Cases 19–CA–116399 and
19–CA–122730
November 30, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
On September 26, 2014, Administrative Law Judge
John J. McCarrick issued the attached decision. The
Respondent filed exceptions, a supporting brief, and a
reply brief. The General Counsel filed an answering
brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,1
findings,2 and conclusions, to amend the remedy,3 and to

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.
2 By motion dated September 18, 2015, the General Counsel re-
quested that certain allegations related to the two discharges involving
Sean Carter in Case 19–CA–116399 be severed from this case pursuant
to a non-Board settlement agreement entered between the parties on
September 4, 2015. On November 24, 2015, the Board issued an Order
granting the General Counsel’s request. Thereafter, on November 30,
2015, the Union requested withdrawal, pursuant to the terms of the
settlement agreement, of the unfair labor practice charge allegations
related to Carter’s discharges. Accordingly, the allegations concerning
Carter’s discharges have been severed and are not before us.
The Respondent filed 97 exceptions to virtually all of the judge’s
findings, but acknowledges that it only provided record and legal sup-
port and briefed the exceptions involving Connie Edwards (Respond-
ent’s Exceptions 2, 52–62, 70–72, 91–93, and 94–96). Accordingly, we
disregard as deficient the remainder of the Respondent’s bare excep-
tions under Sec. 102.46(b)(2) of the Board’s Rules and Regulations.
See, e.g., New Concept Solutions, LLC, 349 NLRB 1136, 1136 fn. 2
(2007); Holsum de Puerto Rico, Inc., 344 NLRB 694, 694 fn. 1 (2005),
enfd. 456 F.3d 265 (1st Cir. 2006).
In affirming the judge’s findings, we do not rely on his citations to
Latino Express, Inc., 358 NLRB 823, 823 (2012), Sodexo America
LLC, 358 NLRB 668, 668–669 (2012), or Station Casinos, Inc., 358
NLRB 637 (2012), because the Supreme Court’s decision in NLRB v.
Noel Canning, 134 S.Ct. 2550 (2014) rendered those decisions invalid.
We note that Latino Express was reaffirmed by the Board at 361 NLRB
No. 137 (2014), and that the Board subsequently reached a different
result in Sodexo. See Sodexo America LLC, 361 NLRB No. 97 (2014).
Instead of Station Casinos, we rely on Metro One Loss Prevention
adopt the recommended Order as modified and set forth
in full below.4
The Respondent is a family-owned painting company,
which operates from the home of husband and wife Gene
and Connie Edwards in Oregon City, Oregon.
On August 8 and 9, 2013, Gustavo Garcia, Roben
White, Roman Ramos, and Arturo Ramos visited the
Respondent’s office looking for work and on both occa-
sions spoke with Connie Edwards.5 The Respondent
does not have a formal application process or written
application form. It is undisputed that Connie Edwards
became aware of the applicants’ affiliation with the Un-
ion during these encounters. During her conversation
with White and Garcia on August 8, Connie Edwards
made statements that the Respondent did not hire union
painters and that it would close down before it went un-
ion. During Roman and Arturo Ramos’ visit on August
9, Connie Edwards made similar statements that the Re-
spondent did not hire union painters.6 On both occa-
sions, Connie Edwards took the applicants’ names and

Services Group, 356 NLRB 89, 89 (2010) (employer violates Sec.
8(a)(1) if it communicates to employees that it will jeopardize their job
security, wages, or other working conditions if they support the union).
3 We shall modify the judge’s recommended tax compensation and
Social Security reporting remedy, and the corresponding provisions of
the Order and notice, in accordance with our decision in AdvoServ of
New Jersey, Inc., 363 NLRB No. 143 (2016). In accordance with our
recent decision in King Soopers, Inc., 364 NLRB No. 93 (2016), we
shall also amend the remedy to provide that the Respondent shall com-
pensate affected employees for their search-for-work and interim em-
ployment expenses regardless of whether those expenses exceed inter-
im earnings. Search-for-work and interim employment expenses shall
be calculated separately from taxable net backpay, with interest at the
rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356 NLRB 6
(2010). For the reasons stated in his separate opinion in King Soopers,
supra, slip op. at 9–16, Member Miscimarra would adhere to the
Board’s former approach, treating search-for-work and interim em-
ployment expenses as an offset against interim earnings.
4 We shall modify the judge’s recommended Order to conform to the
violations found and to the Board’s standard remedial language. We
shall also modify the Order to include a provision requiring the Re-
spondent to post the notice in English and Spanish. The judge recom-
mended that the notice be posted in both English and Spanish in the
remedy section of his decision, but he inadvertently omitted from his
recommended Order language giving effect to this remedy. We shall
substitute a new notice to conform to the Order as modified.
5 We affirm the judge’s finding that Connie Edwards was an agent of
the Respondent. At all relevant times, Connie Edwards was the majori-
ty owner and corporate secretary, and was involved in the operation of
the business, including managing the payroll. The cases that the Re-
spondent cites to support its claim that Connie Edwards did not have
authority to act for it are distinguishable. In none of those cases, as
here, was the putative agent also the respondent’s owner.
6 We find it unnecessary to pass on the judge’s finding that Connie
Edwards’ statement on September 14, 2013, to employees that the
Respondent would “never go union” violated Sec. 8(a)(1), as finding
this additional violation would be cumulative and would not affect the
remedy.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
contact information and gave them Gene Edwards’ tele-
phone number. She placed the applicants’ contact in-
formation on the home refrigerator and discussed them
with her husband. Connie Edwards testified that, after a
few days, she disposed of the contact information be-
cause work was winding down. None of the applicants
was ever contacted by the Respondent.
The judge found that the Respondent violated Section
8(a)(3) and (1) by refusing to hire White, Garcia, and
Roman Ramos.7 We agree. In affirming the refusal-to-
hire violations, we agree with the judge that the General
Counsel demonstrated that the Respondent was hiring at
the time the applicants applied for work. On that point,
however, we do not rely on the judge’s finding that the
Respondent hired “about 2 to 7 painters in August
[2013].”8 Rather, we rely on the record evidence estab-
lishing that the Respondent hired at least seven employ-
ees beginning shortly after August 8, 2013, the first date
of the unlawful conduct, and through about December
21, 2013. See FES, 331 NLRB 9, 14 (2000) (if the Gen-
eral Counsel is seeking a remedy of instatement and
backpay based on openings that he knows or should have
known have arisen prior to the commencement of the
hearing on the merits, he must prove the existence of
those openings at the hearing), supplemented 333 NLRB
66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002).9
Further, in rejecting the Respondent’s contention that
Garcia and Roman Ramos were not as qualified as the
employees it eventually hired, we do not rely on the
judge’s finding that three of those employees—Boris
Borrayo, Ernesto Gonzalez, and Jesus Mendoza—had
little painting experience because they were the lowest
paid.10 Rather, we find that the Respondent failed to

7 We have conformed the Order to the judge’s finding that the Re-
spondent did not unlawfully refuse to consider for hire, or hire, Arturo
Ramos in violation of Sec. 8(a)(3) and (1) because, as noted by the
judge, the record establishes, and the General Counsel conceded, that
Arturo Ramos had no genuine interest in employment when he applied
for a position with the Respondent on August 9, 2013. See Toering
Electric Co., 351 NLRB 225, 233 (2007).
8 ALJD 20:30–31.
9 According to General Counsel Exhibit 34, entitled “Summary of
Dates When Employees First Appear on 2013 Payroll Records Pro-
duced by Respondent in Response to Subpoena,” at least the following
seven employees appear to have been hired after August 8, 2013: Ter-
rence Dowd, Terry Balla, Rolando Flores, Colton Morris, Dan Rodri-
guez, Diego Arrezola, and Andrew White, Jr.
We also agree with the judge’s finding that the General Counsel, in
addition to showing that the Respondent was hiring at the time of the
unlawful conduct, demonstrated that the applicants had relevant experi-
ence for the positions for hire and that antiunion animus contributed to
the Respondent’s decision not to hire them. FES, 331 NLRB at 12.
10 ALJD 20:32–33. There is no dispute regarding Roben White’s
qualifications. At the time of his application, White was a journeyman
painter with over 30 years of experience.
meet its rebuttal burden under FES because it did not
provide evidence regarding the qualifications of at least
four of the seven employees it hired after August 8,
2013.11 Without such evidence, the Respondent’s con-
tention that the employees it hired all possessed qualifi-
cations superior to Garcia and Roman Ramos fails.12
FES, 331 NLRB at 12 (on rebuttal, it is the respondent’s
burden to show, at the hearing on the merits, that those
whom it later hired had superior qualifications to the
discriminatees).
ORDER
The National Labor Relations Board orders that the
Respondent, Edwards Painting, Inc., Oregon City, Ore-
gon, its officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Interrogating employees about their union activities
or affiliation or the union activities or affiliation of other
employees.
(b) Telling employees that it wants to make sure no
one it hires will bring up anything having to do with the
Union.
(c) Instructing employees not to discuss the Union or
engage in union activities, including by telling them, in
reference to their union activities, not to cause trouble or
problems.
(d) Instructing employees not to hand out union flyers
on its jobsites.
(e) Telling employees that support for the Union is fu-
tile, including by telling them that it is not, and will nev-
er be, a union shop.
(f) Threatening employees with layoff, discharge, or
job loss because of their union activities, membership, or
support, including attendance of union meetings, signing
petitions in support of the Union, or selecting the Union
as their collective-bargaining representative.
(g) Threatening to administer drug tests to employees
because they concertedly complain about terms and con-
ditions of employment, including employee drug use on
the job.
(h) Telling applicants for hire that it does not hire un-
ion painters.
(i) Promising employees benefits, including wage in-
creases and future assignments, if they cease activities in
support of the Union.
(j) Ordering off-duty employees who support the Un-

11 Those four employees are Balla, Morris, Arrezola, and Andrew
White, Jr. GC Exhs. 34 and 33.
12 We find it unnecessary to pass on the judge’s finding that the Re-
spondent additionally violated Sec. 8(a)(3) and (1) by refusing to con-
sider White, Garcia, and Roman Ramos for employment because the
remedy for a refusal-to-consider violation would be subsumed within
the broader remedy for the refusal-to-hire violation.
EDWARDS PAINTING, INC. 3
ion to leave its property while allowing other off-duty
employees to remain on its property.
(k) Threatening to call or calling the police because
employees are distributing union literature.
(l) Discharging employees because of their union or
other protected, concerted activities.
(m) Opposing employees’ receipt of unemployment
benefits because of their union or other protected, con-
certed activities.
(n) Transferring employees among jobsites to isolate
them from other employees because of their union or
other protected, concerted activities.
(o) Failing to assign work to employees because of
their union or other protected, concerted activities.
(p) Refusing to rehire employees because of their un-
ion or other protected, concerted activities.
(q) Granting employees wage increases in order to dis-
courage employees from engaging in union or other pro-
tected, concerted activities.
(r) Refusing to hire applicants for employment because
of their union or other protected, concerted activities.
(s) 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) Within 14 days from the date of this Order, offer
Craig Prinslow, James Scott Oldham, and Wyatt
McMinn full reinstatement to their former positions, or,
if those positions no longer exist, to a substantially
equivalent position, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
(b) Within 14 days from the date of this Order, notify
the Oregon Employment Department that it no longer
opposes Wyatt McMinn’s receipt of unemployment ben-
efits and withdraw any appeal it has filed to the Oregon
Employment Department’s determination that Wyatt
McMinn is not disqualified from receiving unemploy-
ment benefits.
(c) Make Craig Prinslow, James Scott Oldham, and
Wyatt McMinn whole for any loss of earnings and other
benefits suffered as a result of their discharges, in the
manner set forth in the remedy section of the judge’s
decision as amended by this decision, plus reasonable
search-for-work and interim employment expenses.
(d) Make Craig Prinslow whole for any loss of earn-
ings and other benefits suffered as a result of its refusal
to rehire him in October 2013, in the manner set forth in
the remedy section of the judge’s decision as amended
by this decision, plus reasonable search-for-work and
interim employment expenses.
(e) Make James Scott Oldham and Wyatt McMinn
whole for any loss of earnings and other benefits suffered
as a result of its failure to assign them work in Septem-
ber, October, and November 2013, less any net interim
earnings, plus interest.
(f) Compensate Craig Prinslow, James Scott Oldham,
and Wyatt McMinn for the adverse tax consequences, if
any, of receiving a lump-sum backpay award, and file
with the Regional Director for Region 19, within 21 days
of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the back-
pay awards to the appropriate calendar years for each
employee.
(g) Within 14 days from the date of this Order, remove
from its files all references to the discharge of Craig
Prinslow about July 30, 2013; the refusal-to-rehire Prins-
low in October 2013; the failure to assign work to James
Scott Oldham in September through November 2013; the
failure to assign work to Wyatt McMinn in September
through November 2013; the discharge of James Scott
Oldham about November 13, 2013; the discharge of Wy-
att McMinn about November 13, 2013; and the opposi-
tion to Wyatt McMinn’s claim for unemployment bene-
fits since about January 2014, and, within 3 days thereaf-
ter, notify each of them in writing that this has been done
and that those actions will not be used against them in
any way.
(h) Within 14 days from the date of this Order, offer
Gustavo Garcia, Roben White, and Roman Ramos in-
statement to the positions for which they applied, or, if
those positions no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges they would have enjoyed had
Gustavo Garcia and Roben White been hired on August
8, 2013, and had Roman Ramos been hired on August 9,
2013.
(i) Make Gustavo Garcia, Roben White, and Roman
Ramos whole for any loss of earnings and other benefits
suffered as a result of the refusal to hire them, in the
manner set forth in the remedy section of the judge’s
decision as amended by this decision, plus reasonable
search-for-work and interim employment expenses.
(j) Compensate Gustavo Garcia, Roben White, and
Roman Ramos for the adverse tax consequences, if any,
of receiving a lump-sum backpay award, and file with
the Regional Director for Region 19, within 21 days of
the date the amount of backpay is fixed, either by agree-
ment or Board order, a report allocating the backpay
awards to the appropriate calendar years for each em-
ployee.
(k) Within 14 days from the date of this Order, remove
from its files any reference to the refusal to hire Gustavo
Garcia, Roben White, and Roman Ramos, and, within 3
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
days thereafter, notify each of them in writing that this
has been done and that this action will not be used
against them in any way.
(l) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(m) Within 14 days after service by the Region, post at
its Oregon City, Oregon facility, copies of the at-
tached notice in English and Spanish marked “Appen-
dix.”13 Copies of the notice, on forms provided by the
Regional Director for Region 19, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places including all places
where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice, in both English and Spanish, to all
current employees and former employees employed by
the Respondent at any time since June 7, 2013.
(n) Within 14 days after service by the Region, hold a
meeting or meetings, during working time, scheduled to
ensure the widest possible attendance, at which the at-
tached notice is to be read in English and Spanish to the
employees assembled for this purpose, by Gene Edwards
or another responsible official of the Respondent in the
presence of a Board agent, or at the Respondent’s option,
by a Board agent in the official’s presence.
(o) Within 21 days after service by the Region, file
with the Regional Director for Region 19 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that Respondent has taken to

13 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.”
comply.
Dated, Washington, D.C. November 30, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT ask you about your union activities or
membership or the union activities or membership of
other employees.
WE WILL NOT tell you that we want to make sure no
one we hire brings up anything that has to do with Inter-
national Union of Painters and Allied Trades, District
Council 5, affiliated with International Union of Painters
and Allied Trades (the “Union”).
WE WILL NOT tell you not to discuss the Union or en-
gage in union activities, including by telling you, in ref-
erence to your union activities, not to cause trouble or
problems.
WE WILL NOT tell you not to hand out union flyers on
our jobsites.
WE WILL NOT tell you that your support for the Union
is futile, including by telling you that we will not, and
will never be, a union shop.
EDWARDS PAINTING, INC. 5
WE WILL NOT threaten you with layoff, discharge, or
job loss because of your union activities, membership, or
support, including attendance of union meetings, signing
petitions in support of the Union, or selecting the Union
as your collective-bargaining representative.
WE WILL NOT threaten to drug test you because you
concertedly complain about your terms and conditions of
employment, including employee drug use on the job.
WE WILL NOT tell applicants for hire that we do not
hire union painters.
WE WILL NOT promise you benefits, including wage
increases and future assignments, to discourage you from
supporting the Union.
WE WILL NOT order off-duty employees to leave our
property because they support the Union while allowing
off-duty employees who do not support the Union to
remain on our property.
WE WILL NOT threaten to call or call the police because
you are distributing union flyers.
WE WILL NOT fire you because of your union member-
ship or support or because you act together with other
employees for your benefit and protection.
WE WILL NOT oppose your receipt of unemployment
benefits because of your union membership or support.
WE WILL NOT transfer employees among jobsites in
order to isolate them from other employees, because of
their union or other protected, concerted activities.
WE WILL NOT fail to assign work to employees because
of their union or other protected, concerted activities.
WE WILL NOT refuse to rehire you because of your un-
ion membership or support.
WE WILL NOT give you wage increases in order to dis-
courage you from supporting a union.
WE WILL NOT refuse to hire you because of your union
membership or support.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days of the date of the Board’s
Order, offer Craig Prinslow, James Oldham, and Wyatt
McMinn full reinstatement to their former positions, or,
if those positions no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL, within 14 days of the date of the Board’s
Order, notify the Oregon Employment Department that
we no longer oppose Wyatt McMinn’s receipt of unem-
ployment benefits and withdraw any appeal we have
filed to the Oregon Employment Department’s determi-
nation that Wyatt McMinn is not disqualified from re-
ceiving unemployment benefits.
WE WILL make Craig Prinslow, James Oldham, and
Wyatt McMinn whole for the wages and other benefits
they lost because we fired them, less any net interim
earnings, plus interest, plus reasonable search-for-work
and interim employment expenses.
WE WILL make Craig Prinslow whole for the wages
and other benefits he lost because we refused to rehire
him in October 2013, plus interest, plus reasonable
search-for-work and interim employment expenses.
WE WILL make James Scott Oldham and Wyatt
McMinn whole for the wages and other benefits they lost
because we failed to assign them work in September,
October, and November 2013.
WE WILL compensate Craig Prinslow, James Oldham,
and Wyatt McMinn for the adverse tax consequences, if
any, of receiving one or more lump-sum backpay awards,
and WE WILL file with the Regional Director for Region
19, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay awards to the appropriate calendar
years for each employee.
WE WILL, within 14 days of the date of the Board’s
Order, remove from our files all references to the dis-
charge of Craig Prinslow, James Oldham, and Wyatt
McMinn, the opposition to Wyatt McMinn’s unemploy-
ment claim, the refusal to rehire Craig Prinslow, and the
failure to assign work to James Scott Oldham and Wyatt
McMinn, and WE WILL, within 3 days thereafter, notify
them in writing that this has been done and that these
actions will not be used against them in any way.
WE WILL, within 14 days of the date of the Board’s
Order, offer to Gustavo Garcia, Roben White, and Ro-
man Ramos instatement to the positions for which they
applied, or, if those positions no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges they would have
enjoyed had Gustavo Garcia and Roben White been hired
on August 8, 2013, and had Roman Ramos been hired on
August 9, 2013.
WE WILL make Gustavo Garcia, Roben White, and
Roman Ramos whole for the wages and other benefits
they lost because we refused to hire them, less any net
interim earnings, plus interest, plus reasonable search-
for-work and interim employment expenses.
WE WILL compensate Gustavo Garcia, Roben White,
and Roman Ramos for the adverse tax consequences, if
any, of receiving lump-sum backpay awards, and WE
WILL file with the Regional Director for Region 19, with-
in 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating
the backpay awards to the appropriate calendar years for
each discriminatee.
WE WILL, within 14 days of the date of the Board’s
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Order, remove from our files all references to the failure
to hire Gustavo Garcia, Roben White, and Roman Ramos
and WE WILL, within 3 days thereafter, notify them in
writing that this has been done and that the failure to hire
them will not be used against them in any way.
EDWARDS PAINTING, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/19-CA-116399 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273–1940.
Rachel Harvey, Esq., for the General Counsel.
Gene Edwards, President, In Pro Se, for the Respondent.
James Scott Oldham, Union Representative, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JOHN J. MCCARRICK, Administrative Law Judge. This case
was tried in Portland, Oregon, over a 5-day period between
May 6 and May 20, 2014, upon the Order Consolidating Cases,
Consolidated Complaint, and Notice of Hearing, as amended1
(complaint), issued on April 17, 2014, by the Regional Director
for Region 19.
The complaint alleges that Edwards Painting, Inc., Respond-
ent, violated the Act by engaging in the following unfair labor
practices:
The complaint alleges Respondent violated Section 8(a)(1)
of the Act by:
 interrogating its employees about their union ac-
tivities on numerous occasions;
 threatening employees with lay off if they signed
a petition in support of the Union or if they
voted for representation by the Union;

1 On May 9, 2014, counsel for the General Counsel moved to amend
the complaint to add par. 5(d) alleging that in about August 2013 Re-
spondent created an employee application form that asked prospective
applicants for their union affiliation. The motion to amend was granted
and Respondent was deemed to deny the new allegation. In its brief
counsel for the General Counsel moved to amend the complaint to
withdraw complaint pars. 5(a)(vi), 7(a)(iii), 8(b), 9(b), 14, and 16 since
alleged discriminatee Carter did not appear and testify in support of
these allegations at the hearing as required under a subpoena issued
to him at the request of the General Counsel. The motion is granted.
 threatening employees with discharge if they at-
tended a union meeting;
 threatening it employees with discharge because
of their union membership;
 threatening its employees with discharge if they
signed a petition in support of the Union;
 threatening to call and calling the police because
its employees were distributing union flyers to
employees at its facility;
 threatening employees with lay off if they signed
a petition in support of the Union or if they
voted for representation by the union;
 ordering its off-duty employees who supported the
Union to leave its property while allowing other
off-duty employees to remain;
 promising employees a wage increase if they
would cease their union activities;
 telling its employees there could be no trouble;
 telling employees that Respondent would never go
union;
 telling applicants for hire that it does not hire un-
ion painters;
 telling its employees that it did not want people it
hires to stir up union stuff;
 telling its employees on numerous occasions that
it is not a union shop and never will be a union
shop;
 telling employees if they ceased talk about the
Union, ceased organizing and there was no
more trouble, it would have work for them
through the winter;
 telling employees that the Union is mafia;
 telling employees that the Union was trying to
steal its work;
 telling its employees they would be subject to
random drug testing because the employees
concertedly complained about an employee us-
ing drugs on the worksite;
 telling employees that working conditions would
improve if they removed their union T-shirts;
 telling its employees they were not to cause prob-
lems, start any trouble or hand out union flyers
on the jobsite and;
 engaging in surveillance of its employees’ union
or concerted activities.
The complaint alleges that Respondent violated Section 8(a)(1)
and (3) of the Act by:
 terminating employees Craig Prinslow, Sean
Carter, James Oldham, and Wyatt McMinn for
engaging in union or other concerted, protected
activity;
 transferring its employees Oldham and McMinn to
isolate them from other employees and by fail-
ing to assign work to Oldham, Prinslow, and
McMinn for engaging in union or other con-
certed protected activity;
EDWARDS PAINTING, INC. 7
 granting its employees wage increases and by op-
posing McMinn’s receipt of unemployment
benefits for engaging in union or other concert-
ed protected activity, and:
 refusing to consider for hire or hire applicants Ar-
turo Ramos, Gustavo Garcia, Roben White, and
Roman Ramos because they supported the Un-
ion or to discourage employees from engaging
in union or other concerted protected activity.
Respondent filed a timely answer to the complaint stating it
had committed no wrongdoing.
FINDINGS OF FACT
On June 24 and 25, 2014, Respondent filed its post-hearing
briefs. On June 27, 2014, counsel for the General Counsel filed
a Motion to Strike Extra-Judicial Evidence from Respondent’s
Briefs. Given the pro se nature of Respondent’s representation,
counsel for the General Counsel does not object to the apparent
late filing of the briefs and I will consider Respondent’s argu-
ments contained therein. However, counsel for the General
Counsel objects to the addition of extraneous evidence referred
to in Respondent’s briefs that was not offered at the hearing.
General Counsel contends that striking Respondent’s citations
to extra-record evidence is necessary because consideration of
such evidence would deprive the General Counsel and the
Charging Party of due process, including the opportunity to
object to introduction of the evidence, cross-examine witnesses
about it, call witnesses to rebut it, and respond to it substantive-
ly in a brief.
In making my findings of fact, I have relied only on the evi-
dence contained in the transcript, including the testimonial and
documentary evidence. While I have considered the arguments
of the parties, I have not considered any evidence from the
briefs of either counsel for General Counsel or Respondent.
Accordingly, it is unnecessary to strike portions of Respond-
ent’s briefs.
Upon the entire record, except as noted above, including the
briefs from counsel for the General Counsel and Respondent, I
make the following findings of fact.
I. JURISDICTION
Respondent admitted it is a painting company located in Or-
egon City, Oregon. While it failed to deny it is an Oregon Cor-
poration and admitted it derived gross revenues in excess of
$500,000 during the last 12 months, it denied that it is engaged
in interstate commerce by denying it has purchased and re-
ceived goods valued in excess of $50,000 directly from points
located outside the State of Oregon or from other enterprises
located in the State of Oregon which received the goods direct-
ly from points outside the State of Oregon.
Respondent’s tax return from the State of Washington2 re-
flects that, during the calendar year 2013 it had sales of
$100,000 within the State of Washington.
At the hearing Tracy Martin, the credit manager for Miller
Paint Company, Inc. (Miller) testified that Miller is an Oregon
Corporation with an office in Portland, Oregon. During the last

2 GC Exh. 19.
calendar year Respondent purchased paint and other supplies
from Miller valued in excess of $50,000 and Miller in turn
purchased goods valued in excess of $50,000 from points locat-
ed directly outside the State of Oregon.
John Wied, the CFO of Walsh Construction Company, Ore-
gon (Walsh) testified that Walsh is an Oregon corporation with
an office in Portland, Oregon. In the course of the past 12
months Respondent provided services to Walsh valued in ex-
cess of $50,000. During that same period of time Walsh pur-
chased goods valued in excess of $50,000 from points located
directly outside the State of Oregon.
Based upon the above, I find that Respondent is an employer
engaged in interstate commerce within the meaning of Section
2(2), (6), and (7) of the Act. Siemons Mailing Service, 122
NLRB 81, 85 (1959).
II. LABOR ORGANIZATION
Respondent denied that International Union of Painters and
Allied Trades, District Council 5, Affiliated with International
Union of Painters and Allied Trades (Union) is a labor organi-
zation within the meaning of Section 2(5) of the Act.
At the hearing Robin White, president, Local 10, Interna-
tional Union of Painters and Allied Trades, District Council 5,
Affiliated with International Union of Painters and Allied
Trades, testified that Local 10 represents employees of painting
employers in the Portland, Oregon area in collective bargain-
ing, grievance/arbitration proceedings, and other matters related
to terms and conditions of employment. Local 10 is affiliated
with the International Union of Painters and Allied Trades,
District Council 5, Affiliated with International Union of Paint-
ers and Allied Trades, White testified that employee members
of Local 10 participate in meetings to consider proposed collec-
tive-bargaining agreements, and election of union officers.
Based upon the above, I find that Local 10, International Union
of Painters and Allied Trades, District Council 5, Affiliated
with International Union of Painters and Allied Trades, is a
labor organization within the meaning of Section 2(5) of the
Act. Alto Plastics Mfg. Corp., 136 NLRB 850, 851–852
(1962).
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent is a painting contractor with an office and place
of business at the home of Gene and Connie Edwards in Ore-
gon City, Oregon. Respondent engages mainly in painting the
interior and exterior of multi-family residential buildings. Dur-
ing the relevant period herein, Respondent had about 20 em-
ployees. About 50 percent of those employees were inexperi-
enced painters who were working in their first painting job. In
the 1980’s Respondent was signatory to the Union’s master
collective-bargaining agreement. At some point Respondent
sought to cancel the collective-bargaining agreement and as a
result Gene Edwards said the Union tried to destroy Respond-
ent. Edwards explained, “[T]hey go after you and take every—
every means at their disposal to put you out of business.” In his
affidavit to the Board on January 14, 2014, Gene Edwards ad-
mitted “I will shut down the company before I go union.”
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1. Supervisory status
Respondent denied that Charley Gene Edwards, Connie Ed-
wards, Grant Eugene Edwards, or Bob Edwards are supervisors
within the meaning of Section 2(11) of the Act or agents within
the meaning of Section 2(13) of the Act.
Charley Gene Edwards (Gene Edwards) is the president of
Respondent. Prior to December 2013 he was a part owner and
president of Edwards Painting Inc. After December 2013 Mrs.
Edwards and their son Grant Edwards transferred all of their
stock in Edwards Painting, Inc., to Gene Edwards. Gene Ed-
wards is the chief officer of Respondent and has authority to
hire, fire, assign employees’ work, and discipline Respondent’s
employees.
The record reflects that Connie Edwards (Mrs. Edwards),
Charley Gene Edwards, wife, prior to December 2013 was an
officer and shareholder of Respondent. In December 2013 she
transferred her ownership interest to her husband and resigned
as secretary of Edwards Painting, Inc. Mrs. Edwards prepared
all of the paperwork necessary for the paychecks of Respond-
ent’s employees and pays Respondent’s bills.
Grant Edwards was a part owner and officer of Respondent
prior to December 2013 when he resigned his position as vice
president and transferred his stock to his father, Gene. Grant is
one of Respondent’s superintendants and has authority to hire,
fire, and assign work to employees.
Bob Edwards is Gene and Connie Edwards’ nephew. Bob
Edwards works for Respondent as an estimator and superin-
tendant. Bob Edwards runs jobs, assigns work to employees,
and has effectively recommended that employees be hired.
Based upon the above, I find that Gene Edwards, Grant Ed-
wards, and Bob Edwards are supervisors within the meaning of
Section 2(11) of the Act and agents within the meaning of Sec-
tion 2(13) of the Act. Oakwood Healthcare, Inc., 348 NLRB
686, 687 (2006), citing NLRB v. Kentucky River Community
Care, 532 U.S. 706, 713 (2001). Based upon her ownership
interest, her status as an officer of Respondent, her intake of
applications and her payroll function, I find that Connie Ed-
wards is an agent of Respondent within the meaning of Section
2(13) of the Act. Beacon Electrical Co., 350 NLRB 238, 242
fn. 11 (2007); Diehl Equipment Co., 297 NLRB 504, 504 fn. 2
(1989); Toering Electric Co., 351 NLRB 225, 236 (2007); Wal-
Mart Stores, 350 NLRB 879, 884 (2007); Service Employees
Local 87 (West Bay Maintenance), 291 NLRB 82, 83 (1988).
2. The James Oldham and Wyatt McMinn terminations
James Scott Oldham (Oldham) has been a painter for 27
years. He is a member of the Union and is classified by the
Union as a journeyman painter. In July 2010 Oldham began
working for the Union as a field representative responsible for
organizing nonunion painting contractors. In this capacity,
Oldham works as a “salt,” applying for work with nonunion
painting contractors to organize their employees.
Oldham and fellow Local 10 member Mike Bokamper ap-
plied for work with Respondent at Respondent’s Four Square
jobsite in Portland, Oregon. Oldham spoke with Grant Ed-
wards who was Respondent’s superintendant on this jobsite.
Both Oldham and Bokamper were hired by Grant Edwards on
about June 2, 2013.3 Three or 4 days later Oldham went to
Respondent’s home office and filled out an application he was
given by Gene Edwards.
On about June 7, at the Four Square job, Oldham told Grant
Edwards that Wyatt McMinn (McMinn), who was Local 10’s
vice president and a 17-year journeyman painter, was available
for work. Grant Edwards asked Oldham if McMinn was union
and Oldham told Grant Edwards he was not. A few days later
Respondent hired McMinn and assigned him to work at the Art
House project. On June 8, Oldham was also assigned to work
at the Art House project where both worked for about 2
months.
On about June 13, at the Art House job McMinn spoke with
Grant Edwards. Edwards asked McMinn where he had worked
and if he had worked for union shops. McMinn said he had not
worked for union shops. At the hearing, Grant Edwards did not
describe the conversation he had with McMinn when they first
met. He generally denied interrogating any employees about
union activities, but did not deny asking McMinn if he had
worked for union shops before. Grant Edwards admitted that
he asked painter Shane Rohde (Rohde ) when he was hired in
the summer of 2013, if he was a member of the Union.
Toward the end of June 2013, Oldham, Bokamper, and
McMinn began speaking with Respondent’s employees about
the Union and asked employees to sign a petition for union
representation. Employees discussed their jobs and complained
about not getting overtime, about Respondent’s disorganiza-
tion, about lack of respect from management, and about health
benefits.
In early July 2013, Oldham set up a meeting for Respond-
ent’s employees to attend at a church near the Four Square
project. Oldham asked six or seven employees to attend the
meeting. At about this time Grant Edwards had a conversation
with Oldham and McMinn outside the Art House project.
Edwards asked them, “are you guys union.” Oldham replied,
“What’s a union.” Edwards said, “I want to know are you guys
union.” When Oldham asked him why he was asking this,
Edwards replied, “because I just want you to be honest with me
there’s a meeting going on Saturday, and it’s about signing a
petition. And I want to know if you guys are union.” Edwards
asked if they knew about the meeting. Edwards repeatedly
asked Oldham and McMinn if they were union.4 Edwards told
Oldham and McMinn that a union representative was causing
problems for Respondent. When Oldham and McMinn admit-
ted that they had talked to a union representative, Edwards said
that Respondent was not, and would never be, a union shop,
and that the only reason Respondent had jobs like the Art
House project, was because it was nonunion. When Oldham
and McMinn asked what would happen if they signed the Un-
ion’s petition, Edwards said that if they signed the petition, they
could not work for Respondent and that the Union would not
allow them to work for Respondent if they were union. Old-
ham asked how they could be working for him if they were
union and Edwards repeated that if they were union, they could
not work for him. I credit both Oldham and McMinn as their

3 All dates herein refer to 2013 unless otherwise specified.
4 Tr. 63, lines 4–18.
EDWARDS PAINTING, INC. 9
testimony was given in a straightforward and consistent manner
that had the ring of truth to it.
While he denied interrogating his employees, Grant Edwards
admitted that he asked Oldham and McMinn about the union
meeting. Edwards admitted that he may have told Oldham and
McMinn Respondent probably would not be able to stay in
business if it went union and that the Union would not allow its
members to work for Respondent. Edwards further admitted
saying that Respondent did not “plan on going union” and in
his Board affidavit admitted that he may have told employees
that Gene Edwards would never go union.
I found Grant Edwards to be one of the most incredible wit-
nesses I have observed in over 29 years as a judge. His testi-
mony was given in a painfully halting manner with minutes
passing between question and answer, giving the observer the
impression that he had no recollection of events whatsoever.
He repeatedly looked to his father, who was sitting at counsel
table, as if to have him provide the proper response. His testi-
mony lacked any specificity and was characterized by his ina-
bility to recall events of even a few days past. His testimony
was often contradicted by prior statements given in his Board
affidavit. I do not credit his testimony.
Grant Edwards admitted learning of Oldham and McMinn’s
union meeting from painter Alberto Valencia. Gene Edwards
also admitted that he learned about Oldham and McMinn’s
union activities within their first few months of employment
and that he heard about their planned union meeting. Gene
Edwards admitted he knew “all Oldham and McMinn were
there for was to cause problems.”5
On about August 2, 2013, at 4 p.m. Oldham and McMinn
went to Respondent’s home office to pick up their paychecks,
as was the standard procedure for Respondent’s employees.
When picking up their checks, employees would remain on
Respondent’s property for 10 to 45 minutes. Oldham’s vehicle
was parked in Respondent’s driveway with two or three other
employees’ cars. A number of union members were located at
the curb near the driveway to Respondent’s home office with a
three by eight foot union banner that displayed the Local 10
logo. The union members were not blocking the driveway.
Oldham and McMinn went to speak with the protesters and put
on union T-shirts.6 Oldham and McMinn then went back up
the driveway to speak with Respondent’s employees. At this
point Gene Edwards appeared near the house. After a few
minutes, Grant Edwards drove up, got out of his truck, looked
at Oldham and McMinn’s union shirts, and said so it looks like
you guys are done. Oldham said that they were not done and
that they were there to organize. Grant Edwards said that they
could not work for Respondent if they were union because the
Union would not let them. Grant Edwards told Oldham and
McMinn they couldn’t work here if you’re union. Grant Ed-
wards went into the house and Gene Edwards brought out
paychecks that had been amended to add $2 per hour.7 Gene
Edwards said I gave you boys a raise. You are doing good
work and I don’t want any trouble. Gene Edwards said that

5 Tr. 394–396.
6 GC Exh. 2.
7 GC Exhs. 3 and 4.
Respondent was not a union company and would never be un-
ion. Both Grant and Gene Edwards told Oldham and McMinn
that they got their checks and to leave. Oldham and McMinn
walked down the driveway to stand with the union supporters
holding the banner. Grant Edwards then walked down to Old-
ham and McMinn, said that he was not pleased that the Union
showed up at his father’s home, and asked that in the future
they respect that it was Gene Edwards’ home and not come
there anymore. Oldham and McMinn talked to Grant Edwards
about the benefits of unionization, and Grant Edwards said,
“You know, I know my dad, and one thing for certain is he’s
not union and he’s never going to be union. So you’re wasting
your time. You’re wasting your breath.”8 While at the hearing
Grant Edwards denied that he told employees Respondent
would never go union, in his Board affidavit he admitted he
may have made such statements.9 As noted above, I do not
credit Grant Edwards but give credence to the testimony of
Oldham and McMinn.
In early August 2013 Oldham and McMinn were assigned to
Respondent’s Hollyfield job in Lake Oswego, Oregon where
they regularly wore their union T-shirts. Walsh Construction
was the general contractor and Bob Edwards was Respondent’s
superintendant at this jobsite. On about August 5, 2013, Bob
Edwards approached Oldham and McMinn on the job and
asked what was going on. Edwards told Oldham and McMinn
that Walsh was asking about the union T-shirts. Edwards then
said he had heard that there will be picketing today. Oldham
replied there would be no picketing. Bob Edwards said that
picketing was ineffective and asked them if they were moles for
the Union. When Oldham said they were not moles, Edwards
said he respected their work and they were doing good but that
they couldn’t have trouble. If they wanted to keep working
there could be no trouble. Oldham said he and McMinn were
there to organize Respondent as a union shop and Edwards
replied he knew Gene (Edwards) and he would never go union.
He then told Oldham and McMinn that all the guys who signed
the union petition would get laid off this winter.
Bob Edwards admitted that he asked Oldham if he was in the
Union and told him he knew that union members would be
kicked out if they went to work for a nonunion employer. He
also admitted asking Oldham, after he admitted that he was in
the Union, why he was there. While Edwards initially denied
telling Oldham that there could be no trouble, he later admitted
to saying that there should be no “shenanigans.” He also ad-
mitted he told Oldham that he would never be part of the Un-
ion. Edwards denied telling Oldham or McMinn that employ-
ees who signed the petition would be laid off. I credit Oldham
and McMinn’s version of this incident. They both testified and
an honest and straightforward manner. Their testimony was
detailed and devoid of inconsistency. I do not credit Bob Ed-
wards as his testimony like that of all the other Edwards’ was
obviously biased based upon their close familial relationship.
On August 9, 2013, Oldham and McMinn went to Respond-
ent’s home office to get their paychecks. When they received
their checks, Gene Edwards told them to keep up the good

8 Tr. 72, 272.
9 Ibid. 852–856.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
work. Upon seeing their checks, Oldham and McMinn noticed
that they had received another $1-per hour raise.10 Gene Ed-
wards said he did not want any trouble on his jobs. He told
Oldham to keep it up and you’ll get another dollar. While Gene
Edwards denied generally that he had told Oldham or McMinn
that he did not want any problems on the job, he admitted in his
Board affidavit that he may have said I don’t want any prob-
lems. Respondent also granted wage increases to about nine of
its employees on August 211 and throughout August, as the
Union’s organizing campaign peaked.12 Gene Edwards admit-
ted that he gave Oldham and McMinn wage increases because
they were doing a good job.
In mid-August at the Hollyfield job, Grant Edwards told
Oldham that he was doing a good job. When Oldham asked if
Edwards liked his and McMinn’s work, Edwards replied that he
did. Oldham asked if they gave up wearing the five shirts and
organizing if they could continue to work. Edwards said if they
give up the union stuff you’ll have work through the winter.
Grant Edwards stated that he recalled the conversation de-
scribed by Oldham but denied saying that he would have work
for Oldham and McMinn if they ceased organizing, claiming
not to recall whether there was any mention of the Union. For
the reasons stated above I credit Oldham and McMinn over
Grant Edwards.
In about mid-August Oldham and McMinn were painting
walls at the Art House job. After about half the job was done,
they noticed there was a color change in the white paint they
were using. After Oldham called Grant Edwards and described
the problem, Edwards told Oldham that what occurred was a
paint manufactures’ issue. Edwards said to box the paint to-
gether, i.e., mix and rotate all of the buckets of paint so that
they became one batch of paint. Oldham and McMinn did as
instructed, and continued to paint the walls. According to Old-
ham and McMinn, they could not see a difference in paint color
once they had boxed the paint. It was not until in late August
or early September that other painters noticed the shade differ-
ence while touching it up. When advised of the color differ-
ence, Grant Edwards told Oldham and McMinn that this hap-
pened sometimes, that it was not their fault, and that they
should not worry about it. Grant Edwards failed to deny mak-
ing such a statement to Oldham and McMinn. Oldham and
McMinn were never disciplined in any way for this incident.
Respondent contends that Oldham and McMinn sabotaged
the Art House painting by deliberately applying the wrong col-
or of paint. No evidence was adduced to support this allega-
tion.
By August 30, 10 of Respondent’s employees had signed a
petition13 for the Union to represent them. On August 30, Old-
ham was driving with McMinn to Respondent’s office to pick
up their paychecks. While driving, Oldham received a text
message from painter Jeffrey Tucciarone, who had signed the
Union’s petition on August 28, saying, “hey just let you know

10 GC Exh. 5.
11 GC Exh. 32.
12 Ibid. and GC Exh. 8.
13 GC Exh. 8.
I’m not joining the union [sic].”14
Oldham and Tucciarone then exchanged text messages in
which Jeffrey Tucciarone told Oldham that Grant Edwards
knew who had signed the petition and had repeatedly asked him
about who had signed it.
When Oldham got to Respondent’s home office on August
30, Gene Edwards told Oldham not to start any trouble. He
told Oldham that he was being given another raise. Oldham
asked Gene and Grant Edwards if they wanted to see the union
petition15 employees had signed. Gene Edwards replied that he
knew who was on the petition but said let me see it. When
Oldham had given Gene Edwards the petition, Edwards re-
viewed it and said who he was going to lay off. After Oldham
handed him the petition, Gene Edwards went through it making
statements about individual petition signers, and said, “Well,
this guy wasn’t a very good painter. This guy we’re going to
layoff anyway. This guy and this guy, I already knew about
them. I figured as much,” and, “[T]his guy’s no good, or this
guy won’t be here too long.”16
During the discussion painter Steve McNatt, walked past and
Gene Edwards asked him if he had signed up with the Union.
McNatt replied he had not.
On September 14, 2013, Oldham and McMinn were again at
Respondent’s office to get their paychecks. Gene Edwards told
both Oldham and McMinn that he had no jobs for them since
he only had big jobs and they were causing too much trouble.
He said that when he found a small job, he would put them on
it. While at Respondent’s office, Oldham and McMinn were
passing out union flyers to employees on the driveway near the
house concerning organizing Respondent. Gene Edwards ad-
mitted he may have told Oldham and McMinn they should be
careful about what they were printing. Gene Edwards told
Oldham and McMinn that they could not pass out the flyers.
Connie Edwards came out of the house and said that Respond-
ent would never go union. Meanwhile, Gene Edward’s grand-
son confronted Oldham and McMinn about passing out flyers
and an argument ensued. Gene Edwards threatened to call the
police if Oldham and McMinn did not leave the premises.
Oldham said they were not leaving and would continue to dis-
tribute flyers. Gene Edwards then called the police. No other
employees were told they had to leave the Edwards’ property.
On September 24, 2013, Oldham and McMinn were working
on Respondent’s Four Square jobsite, wearing T-shirts that
said, “Walsh Construction Co. Hired a contractor That breaks
FEDERAL LAW.”17 During the day a Walsh supervisor
named Lane spoke with Oldham and McMinn and asked what
was on the shirt. Oldham told him what the shirts stated. Lane
took a photo of the shirt and asked if Grant Edwards knew
about the shirts. Lane told Oldham that he and that another of
Respondent’s employees had called Grant Edwards about the
T-shirts. Later that day Grant Edwards told Oldham and
McMinn that they were being moved to another jobsite called
Springwater. The Springwater job involved painting the exteri-

14 GC Exh. 7.
15 GC Exh. 8.
16 Tr. 94, 281.
17 GC Exh. 9.
EDWARDS PAINTING, INC. 11
or of a building. At the time of being transferred, it was raining
hard and as a result they could not work that day. They were
sent home by the Springwater general contractor. The rain
continued on September 25 and neither Oldham nor McMinn
could work that day. Respondent had inside jobs on September
24 and 25 that Oldham and McMinn could have worked.
Oldham called Grant Edwards the next morning to ask for
work, and Grant Edwards said he did not have any, even though
Respondent had other ongoing jobs and a significant workload
at the time.18 After September 24, both Oldham and McMinn’s
hours working for Respondent were substantially curtailed.
Oldham and McMinn had worked over 39 hours per week prior
to September 24. After September 24 they averaged 20 and 21
hours per week, respectively.19
On Sunday September 29, 2013, Oldham spoke by phone
with Gene Edwards about work assignments. Edwards said he
did not want any problems from you guys. He said he had a job
at the Cannery job in Sherwood, Oregon, but he did not want
any problems and he did not want Oldham and McMinn hand-
ing out flyers. At the hearing Gene Edwards denied telling
Oldham or McMinn that he did not want any problems when he
sent them to the Cannery project. However, in his Board affi-
davit he admitted that he may have told McMinn and Oldham
that he did not any problems from them at the Cannery
jobsite.20 I credit McMinn and Oldham. I found Gene Edwards
to be a particularly hostile witness whose testimony was
marked by inconsistency with his Board affidavit and his own
testimony at the hearing. His hostility to the Union based upon
his past history with the Union was palpable and in my view
colored his testimony and rendered it unreliable.
On October 1, 2013, Oldham and McMinn were painting in-
terior doors at the Cannery job. According to Oldham it was
raining and cold, about 42 degrees. Oldham had trouble getting
the paint to adhere to the doors he was painting. He had paint-
ed about 24 doors and had problems with about six of them. In
Oldham’s opinion, as a 27-year journeyman painter, the inabil-
ity of the paint to adhere to the doors was caused by the cold
and humidity from the rain. According to Oldham the condi-
tions exceeded the specifications for the paint they were using.
Jim Ernstrom (Ernstrom), a sales representative for paint sup-
plier Miller, stated that the temperature conditions, as described
by Oldham, would be “right on the bottom” and “close to too
cold” and “approaching where you could almost freeze it,”
which could cause the paint to dry slowly or to show “crazing”
or crackling.21 Oldham immediately called Gene Edwards and
reported the problem with the doors. Edwards told Oldham to
roll the doors with a paint roller. About 20 minutes later Gene
Edwards arrived at the jobsite and tried to roll paint on the
doors. This was unsuccessful and Edwards tried to spray the
doors and then roll them. Neither Oldham nor McMinn were
disciplined by Respondent in any way due to the problems with
the doors at the Cannery job.
Gene Edwards claimed at the hearing that Oldham and

18GC Exh. 31.
19 GC Exhs. 26 and 27.
20 Tr. 411.
21 Tr. 796–798.
McMinn sabotaged the doors at the Cannery project and assert-
ed that he could not allow Oldham and McMinn to work on
jobs where they could blame other employees for their sabo-
tage. No evidence was adduced that Oldham or McMinn ever
blamed other painters for anything. Oldham and McMinn both
denied that they sabotaged any of Respondent’s work.
Gene Edwards stated at the hearing that he should have dis-
charged Oldham and McMinn for the incident involving the
doors at the Cannery project and should have filed a police
report over the incident. However the record is clear that Re-
spondent did not discipline Oldham and McMinn at the time of
the incident. Rather, Respondent gave these “saboteurs” a $1-
per-hour raise.22 Indeed it was not until about October 11, that
Gene Edwards first told Oldham and McMinn that he thought
they had sabotaged the doors. Respondent continued to employ
Oldham and McMinn for over a month after the incident, and
Gene Edwards admitted that there were no problems with their
work during that time.
While Respondent called KeyWay Superintendent Roberts to
testify that Respondent was charged for a number of hinges that
disappeared from the Cannery project, the record is devoid of
evidence that Oldham or McMinn took the hinges. Moreover
there is no evidence that Respondent relied upon missing hing-
es as a reason for discharging either Oldham or McMinn.
On October 11,23 Oldham and McMinn went to Respond-
ent’s home to receive their paychecks. Gene Edwards told
Oldham there were no jobs for him since he could not put Old-
ham on larger jobs because they caused too much trouble.
Oldham and McMinn then walked into the driveway, where
they ran into painter Sean Carter (Carter). Carter told Oldham
there had been drug use on the jobsite the previous day by
painter Steve McNatt (McNatt) and that Respondent did not
care. Grant Edwards admitted that Carter had reported that
both McNatt and painter Mendoza had used drugs on the job.
Carter then left. Oldham and McMinn went to speak with Gene
Edwards about this issue and told him they did not want to
work on jobs or with employees who were using drugs. Gene
Edwards told them not to worry about this as it was no concern
of theirs. McNatt then came up and asked for Carter, saying he
was going to kill him and asked where Carter lived. At the
hearing, while Gene Edwards denied that McNatt made a threat
to Carter that day, Respondent admitted in its answer that that
McNatt said Carter “needed his hind end kicked.”24 Grant Ed-
wards said he was going to give McNatt a drug test and if he
was clean he was going to fire Carter. Oldham asked Grant
Edwards if he was going to test McNatt then. Edwards said he
would but when McNatt started to leave, Oldham said that
McNatt couldn’t leave or any drug test would be invalid. Gene
Edwards said that Oldham looked like he knew about drugs and
that Oldham and McMinn looked like dope smokers. He said
he had a random drug testing policy and that he was going to
test Oldham and McMinn. Oldham asked to see Respondent’s

22 GC Exhs. 32 and 33.
23 While Oldham and McMinn testified this event occurred on Octo-
ber 18, based upon Carter’s timecards the event occurred on October
11.
24 GC Exh. 1(k), par. 15(d).
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
drug testing policy and Edwards refused to provide it.
Gene Edwards told Oldham and McMinn to be ready for a
drug test the following Monday. Oldham and McMinn asked
Edwards where he wanted them to take the drug test. Gene
Edwards initially said he had not found a place for them to be
tested and later said he was not going to give them a drug test.
At the hearing Gene Edwards claimed Respondent had sent
other employees for drug testing. However, he later admitted it
had been over 10 years since he had drug tested employees and
this was required by the general contractor. He further admit-
ted that Oldham and McMinn were the only employees he had
ever required to take a random drug test.25 Respondent did not
give McNatt a drug screen.
On October 21, Gene Edwards told Oldham and McMinn
that there would be no drug test for them that day and to follow
up with him later. On October 23, Gene Edwards said there
would be no drug test for Oldham or McMinn.
Grant Edwards admitted that on October 11, Carter notified
him via text message that McNatt had sent Carter 13 text mes-
sages threatening Carter with violence.26 On October 14,
Carter forwarded some of McNatt’s text messages to Grant
Edwards. The messages said:
“The gypsy jokers [a motorcycle gang] are my best friends,”
“Snitches get stitches,” “You f**** with my life you’re dead
you f***** with my family you’re f****** with this you’re
going to f****** get your s*** kicked [sic].”27
The morning of October 14, Grant Edwards told Carter he
needed to file a police report about McNatt’s threats before he
could come back to work. When Carter told Oldham of Grant
Edwards’ demand that he file a police report, Oldham agreed to
go with Carter to file the report. Oldham called Grant Edwards
and told him he was going to go with Carter because he and
McMinn had both witnessed McNatt’s threats toward Carter
and to file the report Carter and Oldham left work and went to
the police department in Hillsboro, Oregon, and filed a police
report. At Grant Edwards’ request, Carter provided Grant Ed-
wards with a case number that could be used to access his po-
lice report, but Grant Edwards never tried to access the report.
Later that day at about 3:30 p.m., as Oldham was getting ready
to drive home, Gene Edwards called him and said there was a
new policy in place, that anyone who left work needed to get
prior permission. Oldham explained that he had contacted
Grant Edwards and had gotten permission to leave. Edwards
told Oldham that he had many problems with Carter and that he
was fired.
On October 28, 2013, Respondent assigned Oldham and
McMinn to work on the ADT Security job in Beaverton, Ore-
gon, for 4 days. Bob Edwards was Respondent’s supervisor on
this job. R&H was the general contractor for this job and Nate
Brown was the R&H superintendant. When Oldham and
McMinn got to the job, Bob Edwards told them that the job was
too big for just the two of them to complete in 4 days. That
same day R&H Superintendant Brown asked Oldham how two

25 Tr. 461–463.
26 GC Exh. 30, pp. 1–10.
27 Ibid., GC Exh, pp. 11–14.
guys were supposed to finish the job in 4 days. During the
course of the job Brown asked Oldham if they were union.
When Oldham replied they had worked for union contractors,
Brown said Bob Edwards told him they had been sent from the
union hall.
On the last day of the job, Oldham and McMinn prepared
posters that said R&H hired Edwards Painting who ignores
drug use on the job. This poster was displayed during lunch
and breaks outside the jobsite. Brown asked them if this was a
sanctioned picket.
After finishing work on the ADT job, Oldham called Gene
Edwards about further assignments. Gene Edwards said he
didn’t want to start trouble and had no more work for Oldham
or McMinn. When Oldham later called in for work, Gene Ed-
wards said he could not put them on any big jobs because they
caused too many problems.
The next job Respondent assigned to Oldham and McMinn
was the Terwilliger Plaza job in Portland, Oregon, on Novem-
ber 12, 2013. This job involved the remodel of one condo and
R&H was the general contractor. Respondent assigned only
Oldham and McMinn to this job. When assigning them Gene
Edwards told them not to start any trouble. This warning was
repeated by Bob Edwards when he saw them on the job. While
on the job on November 12, Oldham and McMinn spoke with a
Terwilliger employee who told them that employees had to pay
a lot for parking. On the same day, a Terwilliger supervisor
told them his parking was paid by the employer. Oldham and
McMinn decided to create a poster that stated, “$80 FOR
PARKING IS UNFAIR TO THE SUPPORT STAFF! Go to:
www.oregonunions.org.” 28The following day they placed the
poster on bulletin boards throughout the Terwilliger building.
No evidence was adduced that Terwilliger Plaza had a rule
prohibiting posting on its bulletin boards.
On November 13, 2013, Bob Edwards told Oldham and
McMinn to get their tools and asked if they had put up the post-
ers. When Oldham replied they had, Edwards said, Terwilliger
is upset and wants you off the property. I tried to keep you on
the job. This decision is coming from Terwilliger. Oldham and
McMinn left the jobsite.
That evening Oldham called Gene Edwards for further work.
Edwards asked them if they were done over at Terwilliger Pla-
za. Oldham said they put out a poster, and Terwilliger Plaza
did not want them there anymore. Gene Edwards said, “So you
handed out a postcard, huh? Hand out flyers, right?” and said
he guessed “it is what it is.”29 When Oldham again asked for
another job Edwards said he did not have anything right then
and that they could not go to bigger jobs because they started
too much trouble. Oldham asked him if they should call again
on Sunday night, and Gene Edwards said he did not know and
that he did not see any small jobs coming back up anytime
soon. Oldham asked if they should file for unemployment, and
Gene Edwards said they should do what they had to do.
Respondent did not investigate the circumstances surround-
ing Oldham and McMinn’s posting on the Terwillger bulletin
boards. Both Gene and Bob Edwards denied seeing the poster

28 GC Exh. 11.
29 Tr. 161–162, 325–326.
EDWARDS PAINTING, INC. 13
Oldham and McMinn created and posted. While Bob Edwards
initially denied discussing the poster with R&H superintendent
Saxe, he later admitted that he assumed the postcard had some-
thing to do with Terwilliger Plaza’s employees’ parking ex-
penses. He later admitted that he “assumed the whole time that
[Oldham and McMinn] were trying to unionize Terwilliger
Plaza’s workforce” and explained, “That was what they did.
They posted flyers on projects. […] Scott and Wyatt would
post flyers on our projects about the union….”30
While Respondent never told Oldham and McMinn that they
were being discharged or laid off, it did not assign them any
work after November 13 despite further calls from Oldham and
McMinn through December 1.
Gene Edwards claimed that he did not fire Oldham and
McMinn but he admitted that he has not assigned them work
since November 13. He further admitted in an unemployment
hearing that after Oldham and McMinn were removed from the
Terwilliger Plaza job for posting on bulletin boards, “that was
the end of their career.”31 In addition, Gene Edwards admitted
that Respondent would not let Oldham work for Respondent
“because he works for somebody else.” At the hearing Ed-
wards admitted that McMinn is no longer employed by Re-
spondent.32
Grant and Bob Edwards both essentially claimed that Old-
ham and McMinn stopped working for Respondent after the
Terwilliger Plaza project due to a lack of work. Grant Edwards
stated in his Board affidavit that he had no work for Oldham
and McMinn after November 13.33 Despite Respondent’s claim
of no work, Respondent’s payroll records reflect that from No-
vember 2013 to the end of 2013, Respondent steadily employed
between 19 and 22 employees and hired or rehired 3 employ-
ees. Gene Edwards stated that Respondent maintained a work
force through the end of 2013, with 20 or more employees.34
3. McMinn applies for unemployment benefits
McMinn applied for unemployment benefits35 with the State
of Oregon on about January 15, 2014. Respondent opposed
benefits for McMinn but the benefits were granted on appeal.36
At the hearing Gene Edwards denied Respondent had opposed
unemployment benefits for McMinn. However, in a document
Respondent submitted to the State in response to McMinn’s
unemployment claim, Gene Edwards wrote, “He was band [sic]
from building for breaking rules of the building, by building
management and will not be working again.”37
The State denied McMinn’s claim on the basis that McMinn
“was discharged when he was kicked off the job by the building
owner” and that he “posted a sign in the building he was per-
forming work in [sic] that the owners should not be charging
tenants for parking.” 38

30 Tr. 732.
31 Tr. 425–426.
32 Ibid at 413–414.
33 Ibid at 610.
34 GC Exhs. 31, 34.
35 GC Exh. 13.
36 GC Exhs. 14 and 15.
37 GC Exh. 20.
38 Ibid, GC Exhs. 14 and 21.
McMinn appealed this ruling, resulting in a telephonic hear-
ing before an administrative law judge for the State of Oregon.
In the telephonic hearing, Gene Edwards argued that McMinn
was removed from the Terwilliger Plaza project. He stated, in
response to a question about why McMinn was kicked off the
job, “You can’t just come up there and post on their bulletin
boards anything you want, any type of obscenity or whatever, if
you don’t have a right to.”39 Edwards also alleged McMinn
had sabotaged work at the Cannery and the Art House projects.
Finally, he claimed that McMinn intentionally painted the
foundation at the Springwater project, though he admitted that
McMinn’s spraying the foundation was not part of his basis for
discharging McMinn.
About April 21, 2014, the administrative law judge issued a
decision finding that McMinn was not disqualified from receiv-
ing unemployment benefits.40 The period for Respondent to
file an appeal from the administrative law judge’s decision had
not expired at the time of the instant hearing. Gene Edwards
testified that he had not decided whether to file an appeal.
Thus, the record is clear that Respondent opposed the unem-
ployment benefits on the basis that McMinn had sabotaged
doors on the Cannery job, had improperly mixed paint and had
posted flyers at the Terwilliger job.
4. The Craig Prinslow termination
Craig Prinslow was a 28-year journeyman painter and had
been a member of Local 10 since 2012. Prinslow called Grant
Edwards about a job on July 5, 2013 and Edwards indicated
Respondent had work. On July 8, 2013 Prinslow again spoke
with Grant Edwards who said there was work on the Four
Square job and that Respondent was not a union company and
would never be. Edwards asked Prinslow if he was a union
member and Prinslow said he was not up on his dues. Edwards
said he wanted to make sure Prinslow was not union and would
not bring up the union on the job.
On July 12, 2013, Prinslow was assigned to work on the
Four Square jobsite with five to six other painters. That day he
had a conversation with Grant Edwards. Edwards said he was
making sure that Prinslow was not a union member or talking
to the employees about the union. Prinslow replied he was not
a union member and just wanted to work.
At the hearing Grant Edwards did not describe his exchanges
with Prinslow on July 8 and 12. While he generally denied
interrogating employees about their union affiliation, he did not
specifically deny that he asked Prinslow about his union affilia-
tion. Grant Edwards did not deny Prinslow’s testimony that he
told Prinslow that Respondent was not and never would be a
union shop. Only upon confrontation with his Board affidavit
did Edwards admit he may have made such statements to em-
ployees.41 Neither did Edwards deny Prinslow’s testimony
about statements that he did not want Prinslow or other em-
ployees to talk about the Union. I credit Prinslow whose testi-
mony was given in a detailed and honest manner without hostil-
ity, contradiction or embellishment. For the reasons stated

39 Tr. 425–426.
40 GC Exh. 15.
41 Tr. 854–856.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
above I do not credit Grant Edwards.
At the Four Square job on July 30, Prinslow signed a union
petition seeking Union representation, wore a Union T-shirt42
and put a union sticker on his hard hat. He was the only em-
ployee wearing a union T-shirt. When he was going into work,
Prinslow talked to other employees about the benefits of joining
the Union. Later that day Grant Edwards came to the jobsite
and asked Prinslow what was with the union shirt and sticker.
Prinslow said he got them from the Union. Edwards asked if
Prinslow had signed up with the Union and Prinslow said he
had. Edwards asked Prinslow if he was a union member when
he came to work for him and Prinslow said he was not. He
asked Prinslow if he was trying to recruit guys, and Prinslow
said he was not, but that he had answered questions the guys
had. Edwards said it was a good thing the job was winding
down and that he had to let Prinslow go. Edwards said Re-
spondent was not a union shop and never would be. Edwards
said the Union would never let Prinslow work for a non union
shop. He then asked Prinslow if he had talked about the Union
to other employees and Prinslow said he had. Prinslow finished
out the day and did not quit the job. Prinslow admitted he went
to work on another job on July 31. While being offered a job
with another employer on July 29, Prinslow claims he was go-
ing to ask Grant Edwards to match the new job offer. He said
there was still 30 days work left at the Four Square job. In
October Prinslow called Grant Edwards for work and was told
there were no jobs.
Grant Edwards admitted that Prinslow told him he had
signed with the Union that day because he needed health insur-
ance. Edwards did not deny Prinslow’s testimony that he told
Prinslow Respondent was not, and never would be, a union
shop or that the Union would not let him work for Respondent
if he signed the petition, but as noted above, he admitted mak-
ing similar comments to employees. Edwards failed to deny
that he asked Prinslow whether he was a union member when
he was hired and whether he was there to recruit guys. Ed-
wards first stated that he told Prinslow that the job he was
working on was slowing down and that he would have to let
him go.43 Then, in Respondent’s case, Edwards said that he
was thinking of discharging Prinslow for slow work perfor-
mance, but that Prinslow quit.44 Finally a third version was
given on cross-examination that he may have told Prinslow he
had to let him go and that he told him he was looking for a way
to lay him off so he could collect unemployment.45
When Prinslow was terminated on July 30, three other em-
ployees were doing similar work, yet none of those employees
were discharged. The Four Square project was not winding
down at the time and continued until at least October.46 Re-
spondent had substantial work for months after July 30, and
hired seven to nine new employees the month following Prins-
low’s discharge.47 Further, Grant Edwards admitted that the

42 GC Exh. 2.
43 Tr. 614.
44 Ibid at 823–824.
45 Tr. 859–861.
46 GC Exh. 22.
47 Ibid. GC Exhs. 31 and 34.
work performance of many employees on the Four Square pro-
ject was poor.
5. The Sean Carter termination
Painter Carter, hired by Respondent on June 23,48 was one of
the first employees to sign the petition that Oldham showed to
Gene Edwards on August 30. While Gene Edwards said he did
not look at the petition, he admitted he assumed Carter was
involved in the Union’s organizing campaign because he spent
time with Oldham and McMinn. Grant Edwards admitted that
he saw Carter wear a union T-shirt. Grant Edwards also admit-
ted that he and Carter discussed the union during smoke breaks
and that Carter told him that Oldham and McMinn had asked
him to sign a union petition. He admitted that he told Carter he
thought Respondent would have a hard time staying busy if its
employees unionized.
Grant Edwards admitted that he fired Carter on about August
30 and told Gene Edwards of the discharge the same day.
Grant Edwards said he fired Carter for failing to paint enough
doors or door frames. At Respondent’s office on August 30,
after Oldham showed Gene Edwards the petition his employees
had signed, Carter told Oldham and McMinn that Grant Ed-
wards fired him. When both Oldham and McMinn asked Gene
Edwards if Carter had been fired, Edwards said Carter had not
painted enough doors. When Carter asked Gene Edwards if he
had a job or if he was fired, Edwards gave an equivocal answer.
Oldham told Gene Edwards he thought Carter had been fired
because he signed up for the Union. At the end of the conver-
sation, Gene Edwards asked Carter if he was available for work
on Monday and Carter continued working.
Carter continued to work for Respondent on the Four Square
project until October 18.49 On October 18, Grant Edwards told
Carter to go to Respondent’s office so that Gene Edwards could
discharge him. At Respondent’s office, Gene Edwards told
Carter that he was discharged and that he would be forcibly
removed if he set foot on one of Respondent’s jobsites again.
No reason was given for Carter’s discharge. Carter’s final
timecard reflects that he worked for Respondent for only 1
week after making the police report about McNatt’s threats.
Gene and Grant Edwards both stated that Carter had attend-
ance and production problems. Gene Edwards said that Carter
never put in a full week during his entire work history, and
stated that he was certain Carter missed workdays between the
date of his filing the police report and the date of his discharge.
Grant Edwards said that Carter should have been discharged
several times and that he was the absolute worst employee Re-
spondent had ever had with respect to attendance.
The record is devoid of Carter’s alleged attendance prob-
lems. Moreover Respondent did not discipline Carter until
after he complained about McNatt’s drug use on the job and his
threats of violence. Moreover, Respondent did nothing to
document Carter’s alleged production problems.
Respondent does not keep any formal attendance records.
Respondent’s timecards may reflect when employees missed
days, but they generally do not reflect the reasons for missed

48 GC Exh. 34.
49 Ibid GC Exh. 22.
EDWARDS PAINTING, INC. 15
days. Respondent maintains neither personnel files nor written
records documenting the reasons for employees’ discharges.
Thus, Respondent was unable to establish that any employee
was ever treated consistently with Carter. However, Grant
Edwards told Oldham in early June that he was having a prob-
lem with some of his employees not showing up on time or
taking days off. Respondent did not produce any evidence that
any other employee was discharged for attendance issues. Re-
spondent’s timecards reflect that painter McNatt missed a num-
ber of days of work.50 No evidence was adduced that Respond-
ent took any action against McNatt for his attendance.
Grant Edwards also claimed that Carter was fired because
the Four Square job was ending. However, Gene Edwards
admitted that Respondent maintained a large work force
through the end of the year at the Four Square job. The record
shows that Respondent hired two new employees in October
and two in November.51
6. The refusal to consider for hire Gustavo Garcia, Roben
White, and Roman and Arturo Ramos
a. Gustavo Garcia and Roben White
Gustavo Garcia (Garcia) has been an organizer and field rep-
resentative for the Union for 6 years. His trade specialty is a
drywall finisher and he has little experience painting but he has
some painting skills including taping windows and doors. Rob-
in White (White) has been Local 10 president for 5 years and a
journeyman painter for 30 years.
On August 7, 2013, Garcia and White, neither of whom was
working at the time, agreed to apply for work with Respondent.
Both agreed they would work for Respondent indefinitely. On
August 8, 2013 both went to Respondent’s office at Gene Ed-
wards’ home wearing union T-shirts.52 They were met at the
door by Connie Edwards and told her they wanted to apply for
work with Respondent. Mrs. Edwards asked if that was what
they looked like when they applied for work. She said Re-
spondent was a non-union company and did not hire union
painters. She said that they had been union before and would
close down the business before going union again. She asked
for their names and phone numbers and gave them Gene Ed-
wards’ phone number. She said that Gene Edwards did the
hiring for Respondent. She said that Respondent was union
many years ago and would never go union again. She said they
would never hire union painters because they talk to employees
about going union. She told them to leave and never come
back again because they don’t hire union painters. In his Board
affidavit Gene Edwards admitted he was not going to hire un-
ion plants. Neither Garcia nor White were called for work with
Respondent.
b. Roman and Arturo Ramos
Roman Ramos has been a field representative for the Union
for seven years. Arturo Ramos is a Local 10 member. Both
Roman and Arturo’s trade specialty is glazer. Glazers make
window frames and they had little experience painting.

50 GC Exh. 36.
51 Ibid. GC Exh. 34.
52 Ibid.
Ramon Ramos was not employed in August 2013 when he
applied for work with Respondent. Had he been offered work
with Respondent he would have worked there indefinitely. On
August 9, Roman Ramos and his brother Arturo Ramos went to
the Respondent’s office to apply for work. They were met by
Mrs. Edwards, and Roman Ramos stated Local 10 had sent
him. Mrs. Edwards said Respondent “did not hire union and
that they are a non union company. Tell Local 10 not to send
anymore workers here.”53 Ramon Ramos left his name and
phone number with Mrs. Edwards and she gave them Gene
Edwards phone number. Ramon Ramos was never called for
work with Respondent.
Both Gene and Connie Edwards admitted that the union ap-
plicants appeared at Respondent’s office wearing union T-
shirts, and that Connie Edwards asked who was sending them
there. She admitted saying that she did not think union mem-
bers could work for a nonunion shop. She denied saying Re-
spondent did not hire union painters or that Respondent would
never go union. I do not credit Connie Edwards’ testimony. It
is inconsistent with the three union applicant’s testimony and
inconsistent with Gene Edwards own admission that he was not
going to hire union plants. I credit the testimony of Gustavo
Garcia, Roben White, and Roman Ramos whose testimony was
detailed and consistent.
While Respondent claims it does not hire applicants who
come to its office, Connie Edwards nevertheless admits to have
left the contact information of the union applicants on the re-
frigerator in her home and to have told Gene Edwards it was
there. Moreover, Oldham said he was told to go to Respond-
ent’s office to fill out an application.
At the hearing, Gene Edwards admitted that he knew union
applicants came to his office to apply for work and that the
Union was trying to get him to hire union members as plants.
Further, in his Board affidavit he admitted he had decided he
was not going to hire union plants to work for him.54 Despite
that admission, Gene Edwards testified that Respondent did not
hire applicants who applied for work at its office, Respondent
was not hiring, and Respondent was not hiring employees
without painting experience. Yet he admitted he knew nothing
of the applicants’ skill levels at the time when they applied.
Despite Gene Edwards’ claim that Respondent was not hir-
ing employees who had no painting experience, Oldham testi-
fied that about half of the painters who worked with him while
he was employed by Respondent had no painting experience.
Gene and Grant Edwards both admitted that Respondent hired
employees with no painting experience.
While Gene Edwards’ claimed that Respondent was not hir-
ing at the time the union applicants applied for work, Respond-
ent’s payroll records55 show that Respondent hired about two to
seven painters in August, after the four union applicants tried to
get jobs with Respondent. Among those hired were three of
Respondent’s lowest paid employees, Boris Borrayo, Ernesto
Gonzalez, and Jesus Mendoza.56 Grant Edwards admitted that

53 Tr. 365.
54 Tr. 441.
55 GC Exh. 34.
56 Supra. Exhs. 32–33.
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Borrayo and Mendoza had little or no painting experience be-
fore they started working for Respondent, and Gene Edwards
claimed not to know whether Gonzalez had painting experi-
ence.
7. August Alteration of Respondent’s employee information
forms to include an inquiry concerning union affiliation
Around the time when the four union applicants came to Re-
spondent’s office, Connie Edwards changed Respondent’s em-
ployee information form that new employees had to complete,
to include a question about union affiliation. Gene Edwards
admitted one employee, Terrence Dowd, filled out the altered
form around August 30 before discontinuing its use and admit-
ted destroying Dowd’s employee information form after receiv-
ing General Counsel’s subpoena calling for its production.
B. The Analysis
1. The 8(a)(1) allegations
Paragraphs 5 through 17 of the complaint allege a great
number of violations of Section 8(a)(1) of the Act. These vio-
lations include multiple interrogations, telling employees not to
stir up union issues or trouble, telling employees Respondent is
not and never would be a union shop, threatening employees
with discharge for engaging in union activities, ordering off-
duty employees who supported the Union off Respondent’s
property, promising wage increases and continued work to
discourage union activities, threats to call the police and calling
the police in retaliation for engaging in union activity, and
threatening employees with drug screening for engaging in
protected, concerted activity. For ease of review and analysis I
will discuss each allegation of the complaint seriatim.
a. Complaint paragraph 5 alleges Respondent’s various
agents and supervisors interrogated its employees
Interrogation of an employee about their union activities is
unlawful where it would reasonably tend to interfere with,
restrain, or coerce the employee in the exercise of protected
activities. Emery Worldwide, 309 NLRB 185, 186 (1992);
Rossmore House, 269 NLRB 1176, 1177–1178 (1984). The
Board considers various circumstances surrounding the alleged
interrogation, including the background, the nature of infor-
mation sought, identity of the questioner, the place and method
of the interrogation, and whether the interrogation is accompa-
nied by threats or promises. Medcare Associates, Inc., 330
NLRB 935, 939 (2000); Hoffman Fuel Co., 309 NLRB 327,
327 (1992); Rossmore House, 269 NLRB at 1177–1178.
The Board applies an objective test in determining if Section
8(a)(1)of the Act has been violated. Intent is not at issue. Ra-
ther the Board considers if the alleged conduct would reasona-
bly tend to interfere with the free exercise of employee rights
under the Act. Multi-Ad Services, 331 NLRB 1226, 1227–1228
(2000); American Freightways Co., 124 NLRB 146, 147
(1959).
i. Complaint paragraph 5(a)(i)–(v) alleges that Grant Ed-
wards interrogated employees on June 7, 13, July 11, 12, and
30 at various projects
About June 7, when Oldham spoke to Grant Edwards about
hiring McMinn, Grant Edwards asked Oldham if McMinn was
union. On June 13, when McMinn first met Grant Edwards at
the jobsite, Edwards questioned him about his union affiliation.
On July 11, after learning of the union meeting Oldham and
McMinn had planned, Grant Edwards repeatedly asked them
about their union activities and affiliation. On July 8 and 12,
when Prinslow was interviewed, Grant Edwards told him he
wanted to make sure he was not a union member. Grant Ed-
wards interrogated painter Shane Rohde when he began work-
ing for Respondent in the summer 2013 about his union affilia-
tion. On July 30, Grant Edwards asked Prinslow about his
union activities and affiliation.
Each of these allegations constitute a coercive interrogation
in violation of Section 8(a)(1) of the Act. The interrogations
were conducted by a high official of Respondent and accompa-
nied by statements that Respondent would never go union and
that employees could not work for Respondent if they were
union. I find that Respondent has violated Section 8(a)(1) of
the Act as alleged in complaint paragraph 5(a)(i)–(v).
ii. Complaint paragraph 5(b) alleges that Bob Edwards
interrogated employees on August 5 at the Hollyfield project
On about August 5, right after Oldham and McMinn began
openly displaying their union support, Bob Edwards questioned
them about their wearing union T-shirts and asked if they were
union “moles.”
I find that this statement was a coercive interrogation asking
essentially if Oldham and McMinn were engaged in union ac-
tivity. While it was obvious from their T-shirts that they were
open union supporters, the additional question about being
“union moles” suggests that Edwards was seeking additional
information about their union activities beyond whether they
were mere supporters of the Union. I find that this question
violated Section 8(a)(1) of the Act as alleged in complaint par-
agraph 5(b).
iii. Complaint paragraph 5(c) alleges that Gene Edwards
interrogated employees on august 30 at respondent’s office
About August 30, while Oldham was showing Gene Ed-
wards the union petition, Gene Edwards asked painter McNatt
if he signed the union petition.
When the owner of a company asks about an employee’s un-
ion affiliation and activity, there can be little doubt of its coer-
cive effect on their Section 7 activity. As such Gene Edwards’
interrogation of McNatt violated Section 8(a)(1) of the Act as
alleged.
iv. Complaint paragraph 5(d) alleges that in august respond-
ent added a question concerning union affiliation to an
employee application form
The record reflects that in August 2013 Respondent added a
question about union affiliation to its employee information
form. While the form existed for only a short time with the
question about union affiliation, it appears that at least one job
applicant filled out the form.
Asking a potential employee about union affiliation, as a
condition of employment, would reasonably coerce a job appli-
cant, implying that Respondent did not intend to hire or employ
union members. The Respondent’s form was filled out by at
EDWARDS PAINTING, INC. 17
least one potential employee interfering with the employee’s
Section 7 rights, in violation of Section 8(a)(1) of the Act as
alleged.
b. Complaint paragraph 6 alleges that on about July 8 grant
Edwards told its employees that it does not want the people it
hires to stir up union stuff
An employer’s direction that an employee should not to en-
gage in union activities tends to interfere with employee rights
to engage in such activities in violation of Section 8(a)(1) of the
Act. Penn Tank Lines, Inc., 336 NLRB 1066, 1068 (2001); We
Can, Inc., 315 NLRB 170, 181 (1994). Statements that em-
ployees should not start or cause trouble, in the context of the
employees engaging in union or protected concerted activities,
are likewise unlawful. Sam’s Club, 322 NLRB 8, 14–15
(1996), enfd. 141 F.3d 653 (6th Cir. 1998).
On July 8, Grant Edwards told Prinslow he wanted to make
sure no one he hired would bring up anything that had to do
with the Union. Such a statement is clearly a direction not to
engage in union activity in violation of Section 8(a)(1) of the
Act.
c. Complaint paragraph 7(a) and (b) alleges that Respond-
ent’s agents and supervisors told its employees that it is not a
union shop and will never be a union shop
Employer statements to the effect that the employer will
never be a union shop are unlawful because they would reason-
ably give employees the impression that it would be futile for
them to support the Union, thus interfering with, restraining,
and coercing them in the exercise of their right to select a union
to represent them, in violation of Section 8(a)(1). Venture In-
dustries, 330 NLRB 1133, 1133 (2000); Wellstream Corp., 313
NLRB 698, 706 (1994); Bestway Trucking, 310 NLRB 651,
671 (1993); Maxi City Deli, 282 NLRB 742, 745 (1987).
i. Complaint paragraph 7(a)(i)–(ii) allege that on July 8 and
11 Grant Edwards told its employees that it is not a union shop
and will never be a union shop
Also on July 8, Grant Edwards told Prinslow that Respond-
ent would never be a union shop. On July 11, Grant Edwards
told Oldham and McMinn that Respondent would never be a
union shop. On July 30, when he fired Prinslow, Grant Ed-
wards told him Respondent would never be a union shop. On
August 2, when the Union picketed with a banner at Respond-
ent’s home-office, Gene Edwards told Oldham and McMinn
Respondent would never be a union shop.57
Each of these statements gave the impression to its employ-
ees that it would be futile to select the Union and violated Sec-
tion 8(a)(1) of the Act.
ii. Complaint paragraph 7(b)(i)–(ii) allege that on August 8
and 9 Connie Edwards told its employees that it is not a union
shop and will never be a union shop
On August 8 and 9, when four applicants came to Respond-

57 While the latter two allegations were not alleged in the complaint
they were fully litigated and closely related to the allegations contained
in par. 7(a). I will consider these additional de facto amendments.
Pergament United Sales, 296 NLRB 333, 334 (1989).
ent’s home office to apply for jobs, Connie Edwards told them
Respondent would never be a union shop. Similarly on Sep-
tember 14, at the time Oldham and McMinn were distributing
union flyers at Respondent’s home office, Connie Edwards told
them Respondent would never be a union shop.58
Connie Edwards’ repeated statement to employees and po-
tential employees that it would never be a union shop commu-
nicated to employees that it would be futile for them to support
the Union and therefore violated Section 8(a)(1) of the Act.
d. Complaint paragraph 8 and 9 allege that on July 11 and
August 2 Grant Edwards threatened employees with discharge
if they attended a union meeting and because of their union
membership
Employer threats of job loss for engaging in union activity
coerce employees in the exercise of their Section 7 rights in
violation of Section 8(a)(1) of the Act. Station Casinos, Inc.,
358 NLRB 637 (2012). If an employer implies job loss caused
by a third party, the Board will find this to be unlawful where
the employer had no objective factual basis for making such a
statement. NLRB v. Gissel Packing Co., 395 U.S. 575, 617–
619 (1969); Hoffman Security, Ltd., 315 NLRB 275, 277–278
(1994); Blaser Tool & Mold Co., 196 NLRB 374, 374 (1972).
On about July 11, Grant Edwards told Oldham and McMinn
that if they signed a union petition, they could not work for
Respondent, because the Union would not allow it. Grant Ed-
wards claimed his statement was only a statement about the
union’s rules. However, since it misrepresented the Union’s
rules about members working for nonunion contractors it was
not a statement of any rule but a threat to union supporters they
could not work for Respondent. The statement violated Section
8(a)(1) of the Act.
About August 2, picketers located at the curb near the drive-
way to Respondent’s home office held a three by eight foot
union banner that displayed the Local 10 logo. Oldham and
McMinn went to speak with the protesters and put on union T-
shirts. Oldham and McMinn then went back up the driveway
and began speaking with Respondent’s employees. Grant Ed-
wards told Oldham and McMinn so it looks like you guys are
done. Oldham said that they were not done and that they were
there to organize. Grant Edwards said that they could not work
for Respondent if they were union because the Union would not
let them. Grant Edwards told Oldham and McMinn they
couldn’t work here if you’re union. Grant Edwards’ statement
was made in the presence of other employees and in the context
of Oldham and McMinn’s union activity. This statement, com-
ing immediately upon learning of their union activity, in the
context of statements that they could not work for Respondent
because they were union, amounted to a threat of job loss in
violation of Section 8(a)(1) of the Act.

58 While complaint par. 7(b) alleges only that Connie Edwards told
employees that Respondent would never be a union shop on August 8
and 9, the same statement made on September 14 is alleged to be viola-
tive of Sec. 8(a)(1) of the Act in General Counsel’s brief. Since this
matter is closely related to the other allegations in the complaint and
was fully litigated at the hearing, I will consider the complaint may
support this additional allegation. Permanent United Sales, supra; Eis-
ner Electric, Inc., 316 NLRB 597 (1995).
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
e. Complaint paragraph 10(a) alleges that on August 2
Connie, Gene and Grant Edwards ordered off-duty employees
who supported the union to leave its property while permitting
other off duty employees to remain
The Board has held that an employer who denies off-duty
employees access to non-working areas of its property, ab-
sent a legitimate business justification, violates section 8(a)(1)
of the Act. Sodexo America LLC, 358 NLRB 668, 668–669
(2012); Tri-County Med. Ctr., 222 NLRB 1089, 1089 (1976).
Santa Fe Hotel, Inc., 331 NLRB 723, 723 (2000); Automotive
Plastic Technologies, 313 NLRB 462, 463 (1993). The Board
has long held that employees have a right to distribute union
literature on an employer’s premises during nonworking time in
nonworking areas. NLRB v. Babcock & Wilcox, 351 U.S. 105,
110–111 (1956); Republican Aviation Co. v. NLRB, 324 U.S.
793, 803–804 (1945). Further, an employer’s threats to call the
police or calls to the police in response to employees’ protected
activities on its property violates Section 8(a)(1) of the Act.
Winkle Bus Co., 347 NLRB 1203, 1219 (2006).
On August 2, when the Union picketed with a banner at Re-
spondent’s home office, Oldham and McMinn wore union T-
shirts and talked to employees about the Union. In response,
Gene, Connie, and Grant Edwards told Oldham and McMinn to
leave but allowed other employees to remain. While Respond-
ent contends that Oldham and McMinn were asked to leave
because they were blocking the driveway or because they had
remained on the property too long, there is no evidence that
Oldham or McMinn blocked the driveway or that they had
stayed longer on the property than on any other occasion when
they got their paychecks.
Respondent has consented to its employees’ presence on its
property after working hours to deliver their timesheets and to
pick up paychecks. The record reflects further that it has been
common for employees to remain on Respondent’s property for
from 10 to 45 minutes while doing so. Respondent’s removal
of Oldham and McMinn was for the purpose of limiting their
right to engage in Section 7 activity, including speaking with
other employees about the Union. Such discriminatory conduct
in limiting off-duty employees’ access to its property for engag-
ing in Section 7 activity violated Section 8(a)(1) of the Act.
f. Complaint paragraph 10(b)(i)–(iii)
The complaint paragraphs allege that on August 5 Bob Ed-
wards told employees there could be no trouble, threatened that
employees would be laid off if they signed a petition supporting
the union or voted for the union and told employees that Re-
spondent would never go union.
As noted above, an employer may not tell its employees not
to engage in union activities without running afoul of Section
8(a)(1) of the Act. Penn Tank Lines, Inc., 336 NLRB 1066,
1068 (2001); We Can, Inc., 315 NLRB 170, 181 (1994).
Moreover, an employer who threatens job loss for engaging
in union or other protected activity violates Section 8(a)(1) of
the Act. Station Casinos, Inc., 358 NLRB 637 (2012). This
rule applies even if a respondent attributes job loss to a third
party if the statement has no basis in fact. NLRB v. Gissel
Packing Co., 395 U.S. 575, 617–619 (1969); Hoffman Security,
Ltd., 315 NLRB 275, 277–278 (1994); Blaser Tool & Mold
Co., 196 NLRB 374, 374 (1972). Statements that an employer
will never be a union shop are likewise unlawful Venture In-
dustries, 330 NLRB 1133, 1133 (2000); Wellstream Corp., 313
NLRB 698, 706 (1994); Bestway Trucking, 310 NLRB 651,
671 (1993); Maxi City Deli, 282 NLRB 742, 745 (1987).
On about August 5, Bob Edwards told Oldham and McMinn
that he wanted to have them on the project but that they could
not have any trouble, that employees who signed the Union’s
petition would be laid off in the winter, and that he knew Gene
Edwards would never go union. Each of these statements vio-
lated Section 8(a)(1) of the Act. Telling employees that he
wanted no trouble was simply a buzz word for no union activi-
ty. As noted above telling employees that a company will nev-
er go union is unlawful as is threatening layoff for engaging in
union activity.
g. Complaint paragraph 11 alleges that on August 8 and 9
Connie Edwards told job applicants that Respondent does not
hire union painters
As already noted above, when an employer makes threats of
job loss or other negative consequences for being affiliated with
a union or engaging in activities in support of a union, they
coerce employees in violation of Section 8(a)(1) of the Act.
Station Casinos, Inc., 358 NLRB 637, supra. This applies even
when an employer attributes such consequences to a third party
without factual basis. NLRB v. Gissel Packing Co., 395 U.S.
575, 617–619 (1969); Hoffman Security, Ltd., 315 NLRB 275,
277278 (1994); Blaser Tool & Mold Co., 196 NLRB 374, 374
(1972).
On August 8 and 9, when the four union applicants came to
Respondent’s office to apply for work, Connie Edwards told
them Respondent did not hire union painters. While Connie
Edwards contended that her statement was only a statement
concerning the Union’s rules, her statement misrepresented the
Union’s rules. Accordingly they amounted to telling employ-
ees that Respondent did not hire painters who were members of
the Union and violated Section 8(a)(1) of the Act.
h. Complaint paragraphs 12 and 13 allege that on August 9
and in mid-August Gene Edwards promised employees wage
increases if they refrained from engaging in union activity
The Board has held that when an employer promises benefits
in the context of a union organizing campaign the effect is to
influence employees to relinquish their support for the union in
violation of Section 8(a)(1) of the Act absent evidence that it
had a legitimate reason for the promise. NLRB v. Exchange
Parts Co., 375 U.S. 405, 408 (1964); Dyncorp, 343 NLRB
1197, 1198 (2004), affd. 233 Fed. Appx. 419 (6th Cir. 2007).
On August 9, Gene Edwards gave Oldham and McMinn a
wage increase and he told them that he did not want trouble on
his jobs. Edwards added that if they kept it up, they would get
another raise. In mid-August, Grant Edwards told Oldham
that if he and McMinn stopped their organizing activities, they
would have work through the winter.
Gene Edwards linked pay increases to no trouble on the job,
merely a buzz word for no union activity. He further linked
additional pay raises to no more union conduct. Grant Ed-
wards’ promise of future work was likewise contingent upon no
EDWARDS PAINTING, INC. 19
further union activity. These statements by both Gene and
Grant Edwards were therefore coercive and unlawful violations
of Section 8(a)(1) of the Act.
i. Complaint paragraph 15(a)–(d)
These complaint paragraphs allege that Gene Edwards from
early September to October 18 threatened employees with dis-
charge if they signed a petition supporting the Union, threat-
ened to call and called the police because employees were dis-
tributing union literature to employees picking up paychecks
and told its employees they would be subject to random drug
tests because they concertedly complained about employees
using drugs on the job.
Employer threats of job loss for engaging in union activities
violates Section 8(a)(1) of the Act. Station Casinos, Inc., 358
NLRB 637 (2012).
The Board has long held that an employer who denies off-
duty employees access to nonworking areas of its property,
absent a legitimate business justification violates Section
8(a)(1) of the Act. Sodexo America LLC, 358 NLRB 668, 668–
669 (2012); Tri-County Medical Center, 222 NLRB 1089, 1089
(1976). When an employer has a business justification for
denying access to nonworking areas, such a restriction cannot
be based on Section 7 activity. Santa Fe Hotel, Inc., 331
NLRB 723, 723 (2000); Automotive Plastic Technologies, 313
NLRB 462, 463 (1993). Moreover, it has long been established
that employees have a right to distribute union literature on
their employer’s premises during nonworking time in nonwork-
ing areas. NLRB v. Babcock & Wilcox, 351 U.S. 105, 110–111
(1956); Republican Aviation Co. v. NLRB, 324 U.S. 793, 803–
804 (1945).
An employer who threatens to call or calls the police in re-
sponse to employees’ lawful union activities on its property
violates Section 8(a)(1) of the Act. Winkle Bus Co., 347 NLRB
1203, 1219 (2006).
Finally, the Board has held that employee drug use issues,
safety, and drug testing practices are terms and conditions of
employment, and concerted employee complaints about such
subjects are protected under Section 7 of the Act. Trompler,
Inc., 335 NLRB 478, 479–480 (2001), enfd. 338 F.3d 747 (7th
Cir. 2003); Talsol Corp., 317 NLRB 290, 316–317 (1995);
Motorola, Inc., 305 NLRB 580 fn.1 (1991), enf. denied in part
on other grounds 991 F.2d 278 (5th Cir. 1993); Johnson-
Bateman Co, 295 NLRB 180, 182–184 (1989). It is a violation
of Section 8(a)(1)of the Act for an employer to threaten drug
testing of employees for engaging in protected activities. Pa-
cific Custom Materials, 327 NLRB 75, –81 (1998); Eldeco,
Inc., 321 NLRB 857, 867 (1996).
On August 30, Gene Edwards while reviewing the employee
petition stated which of the individual petition signers he was
going to let go. Edwards’ statements were a threat that the
various petition signers were going to be laid off for signing the
petition in violation of Section 8(a)(1) of the Act.
On September 14 while Oldham and McMinn were distrib-
uting union literature at Respondent’s home office, Gene Ed-
wards told them to leave, threatened to call and then called the
police to remove them. Respondent contends that it was re-
quired to call the police because Oldham had caused an alterca-
tion among its employees. However, the record is devoid of
evidence that Oldham or McMinn did more than engage in
peaceful handbilling. While another painter became hostile in
reaction to Oldham’s protected activity, there is no evidence
that Oldham and McMinn engaged in similar conduct. Moreo-
ver, it is undisputed that the painting employee’s’ confrontation
with Oldham and McMinn had ended by the time Gene Ed-
wards threatened to call and called the police.
Respondent makes much of the fact that Oldham and
McMinn engaged in union activities at Gene and Connie Ed-
wards’ home. However, Respondent has invited its employees
onto its property during nonworking hours in a nonworking
place to submit timecards and to receive their paychecks. Re-
spondent cannot justify a discriminatory denial of access to its
property to employees who choose to engage in union activi-
ties. Respondent’s attempts to remove Oldham and McMinn
from its property while they were engaged in union activities
was discriminatory and, therefore, violates Section 8(a)(1) of
the Act. Sodexo America LLC, 358 NLRB 668, 668–669; San-
ta Fe Hotel, Inc., 331 NLRB at 723; Automotive Plastic Tech-
nologies, 313 NLRB at 463; Tri-County Medical Center, 222
NLRB at 1089.
On about October 11, as a result of Carter, Oldham, and
McMinn’s concerted complaint about the safety of painter
McNatt using drugs on the job, Gene Edwards told Oldham and
McMinn that they looked like drug users and that he was going
to test them under Respondent’s random drug testing policy. It
is admitted that Respondent has never had a random drug test-
ing policy nor has it ever randomly drug tested any employee.
Clearly, Edwards’ statement that he was going to drug test Old-
ham and McMinn was not as the result of any policy of Re-
spondent’s but rather in retaliation for their protected, concerted
complaint. It was therefore coercive and unlawful and violated
Section 8(a)(1) of the Act.
j. Complaint paragraph 17 alleges that on September 29
Gene Edwards told its employees they were not to cause any
problems, start any trouble, or hand out any union literature
while on the jobsite
An employer’s express or explicit admonishment to an em-
ployee not to engage in union activities tends to interfere with
employee rights to engage in such activities in violation of
Section 8(a)(1). Penn Tank Lines, Inc., 336 NLRB 1066, 1068
(2001); We Can, Inc., 315 NLRB 170, 181 (1994). Thus, in-
structions to employees not to start or cause trouble, in refer-
ence to or in response to their engaging in union or protected
concerted activities, are unlawful. Sam’s Club, 322 NLRB 8,
14–15 (1996), enfd. 141 F.3d 653 (6th Cir. 1998).
On about September 29, after Respondent removed Oldham
and McMinn from a jobsite after they wore T-shirts protesting
Respondent’s violation of Federal law, Gene Edwards told
Oldham that he did not want any problems from him and
McMinn and that they should not hand out flyers. This state-
ment amounted to a threat to Oldham and McMinn not to en-
gage in union activities and violated Section 8(a)(1) of the Act.
2. The 8(a)(3) and (1) allegations
In order to establish a violation of Section 8(a)(3) and (1) of
the Act, the General Counsel must demonstrate by a preponder-
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ance of the evidence that the employee was engaged in protect-
ed activity, that the employer had knowledge of that activity,
and that the employer’s hostility to that activity “contributed
to” its decision to take an adverse action against the employee.
Director, Office of Workers’ Comp. Programs v. Greenwich
Collieries, 512 U.S. 267, 278 (1994); Wright Line, 251 NLRB
1083, 1089 (1980), enfd. on other grounds 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
Once the General Counsel has established that the employ-
ee’s protected activity was a motivating factor in the employ-
er’s decision, the burden shifts to Respondent to show that it
would have taken the same action even in the absence of the
protected activity. Wright Line, supra. The employer has the
burden of establishing that affirmative defense. Id.
Discriminatory motive may be established in several ways
including through statements of animus directed to the employ-
ee or about the employee’s protected activities, Austal USA,
LLC, 356 NLRB 363, 363 ( 2010); the timing between discov-
ery of the employee’s protected activities and the discipline,
Traction Wholesale Center Co. v. NLRB, 216 F.3d 92, 99 (D.C.
Cir. 2000); the existence of other unfair labor practices that
demonstrate that the employer’s animus has led to unlawful
actions, Mid-Mountain Foods, 332 NLRB 251, 251 fn. 2
(2000); evidence that the employer’s asserted reason for the
employee’s discipline was pretextual, such as disparate treat-
ment of the employee, shifting explanations provided for the
adverse action, failure to investigate whether the employee
engaged in the alleged misconduct, or providing a nondiscrim-
inatory explanation that defies logic or is clearly baseless,
Lucky Cab Co., 360 NLRB No. 43 (2014); ManorCare Health
Services – Easton, 356 NLRB 202, 204 (2010); Greco &
Haines, Inc., 306 NLRB 634, 634 (1992); Wright Line, 251
NLRB at 1088 fn.12, citing Shattuck Denn Mining Co. v.
NLRB, 362 F.2d 466, 470 (9th Cir. 1966); Cincinnati Truck
Center, 315 NLRB 554, 556–557 (1994), enfd. sub nom. NLRB
v. Transmart, Inc., 117 F.3d 1421 (6th Cir. 1997)).
a. Complaint paragraphs 18(a) and (h) allege that on July
30 Respondent discharged employee Craig Prinslow and in
October failed to assign Prinslow work
It is undisputed that Prinslow engaged in union activities, in-
cluding signing the Union’s petition and wearing a union T-
shirt and sticker on the job. It is likewise undisputed that Re-
spondent was aware of those activities. Respondent’s plethora
of threats, directives to refrain from engaging in union activity
and interrogations in violation of Section 8(a)(1) of the Act,
establish Respondent’s animus toward its employees’ union
activities.
Grant Edwards had interrogated Prinslow at the time of his
hire about his union affiliation to ensure he was not union and
he assured Prinslow that Respondent would never be a union
company. On the day Edwards discharged Prinslow, he asked
what Prinslow was doing with the union T-shirt and sticker.
Edwards asked Prinslow if he had signed up with the Union and
Prinslow admitted he had. After asking Prinslow if he had
talked about the Union to Respondent’s employees and Prins-
low said that he had, it was only then that Edwards fired Prins-
low, saying it was a good thing the job was winding down and
that he had to let Prinslow go.
Respondent contends that it did not fire Prinslow, but rather
Prinslow quit. In this regard Grant Edward’s testimony and
Respondent’s defense resemble an episode of the “Keystone
Kops.” Edwards first stated that he told Prinslow that the job
he was working on was slowing down and that he would have
to let him go.59 Then, in Respondent’s case, Edwards said that
he was thinking of discharging Prinslow for slow work perfor-
mance, but that Prinslow quit.60 Finally a third version was
given on cross-examination that he may have told Prinslow he
had to let him go and that he told him he was looking for a way
to lay him off so he could collect unemployment.61
As to Respondent’s contention that work was slowing down,
when Prinslow was terminated on July 30, three other employ-
ees were doing similar work, yet none of those employees were
discharged. The Four Square project was not winding down at
the time and continued until at least October.62 Respondent had
substantial work for months after July 30, and hired seven to
nine new employees the month following Prinslow’s dis-
charge.63
As to Prinslow’s poor work performance, there is no evi-
dence of this other than Grant Edwards’ vague and discredited
testimony.
The pretextual nature of Respondent’s defenses not only es-
tablishes Respondent’s hostility toward Prinslow’s union activ-
ities but also defeats any attempt by Respondent to meet its
burden of establishing that it would have discharged Prinslow
and refused to rehire him even in the absence of his protected
activities. Prinslow’s credited testimony was unrebutted that
while he had a job offer he accepted for July 31, he would have
continued to work for Respondent if they had met the wage
offer of his new employer. However, Respondent never gave
Prinslow such an opportunity as it fired him once it discovered
he was actively involved with the Union. Thus General Coun-
sel has established that Respondent fired Prinslow and refused
to consider him for rehire in October in violation of Section
8(a)(3) and (1) of the Act.
b. Complaint paragraph 18(b) alleges that on August 2, 9,
and 29 Respondent granted its employees wage increases
An employer who grants employees wage increases during a
union organizing campaign violates Section 8(a)(3) of the Act,
absent a persuasive business justification for the timing of the
increase other than the union campaign. Latino Express, Inc.,
358 NLRB 823, 823 (2012); Register Guard, 344 NLRB 1142,
1142 (2005). It is undisputed that Respondent granted wage
increases to a number of employees, including Oldham and
McMinn, in August, at the peak of the Union’s organizing
campaign.
On August 2, the date of the first wage increase, Oldham and
McMinn disclosed their support for the Union’s organizing
efforts by joining the pickets who were displaying a prounion
banner at Respondent’s office and by wearing union T-shirts

59 Tr. at 614.
60 Ibid at 823–824.
61 Tr. at 859–861.
62 GC Exh. 22.
63 Ibid. GC Exhs. 31 and 34.
EDWARDS PAINTING, INC. 21
when they picked up their paychecks at Respondent’s office.
Respondent handwrote the wage increases onto Oldham and
McMinn’s extant paychecks leading to the inference that Re-
spondent had not planned to grant the wage increases before
seeing Oldham and McMinn’s union activity. At the same time
Gene Edwards promised Oldham and McMinn that they would
get more raises if they did not cause trouble, a buzz word that
implied that Oldham and McMinn would receive further wage
increases if they abandoned their union activities. Gene Ed-
wards’ claim that he gave wage increases at that time of year
are unsupported by any records or testimony other than Ed-
ward’s discredited testimony. The claim is rejected. The tim-
ing of the wage increases alone is grounds for an inference that
Respondent’s motivation for granting them was an unlawful
violation of Section 8(a)(3) of the Act.
c. Complaint paragraphs 18(c) and (e) allege that on August
30 and October 18 Respondent discharged its employee
Sean Carter
Carter engaged in activity protected by Section 7 of the Act
including signing the Union’s petition and wearing a union T-
shirt at work. It is undisputed that Respondent knew of
Carter’s union activities. Gene Edwards admitted he assumed
Carter was a union supporter. While Gene Edwards denied
looking at the petition Oldham showed him on August 30, I
find this implausible as the credited testimony reflects that Ed-
wards went down the petition and listed who would be fired.
Carter’s name appeared on the list.
As noted above there is a plethora of Respondent’s display
of animus toward its employees’ union activities. The timing
of Carter’s initial termination by Grant Edwards on August 30,
came after Grant Edwards had learned of Carter’s support for
the Union, including his signing the union petition. This timing
suggests that hostility toward Carter’s union activities was a
factor in his discharge. Only after Oldham and McMinn pro-
tested that Respondent had fired Carter for engaging in union
activities did Gene Edwards decide to reverse his son’s decision
and rehire Carter, further demonstrating a causal connection
between Carter’s union activities and his termination.
Respondent contends that Gene Edwards did not know Grant
Edwards had fired Carter yet Grant Edwards admitted he told
Gene Edwards he had discharged Sean Carter for performance
problems earlier in the day on August 30. Unbelievably, Re-
spondent contended that Carter simply continued coming to
work after his discharge without authorization. So, Respondent
simply allowed Carter to keep working. I find this preposterous
explanation is nothing more than a later day pretext to cover up
the true nature of Respondent’s reason for firing Carter, his
union activity. This pretext undermines any attempt by Re-
spondent to meet its burden of establishing that it would have
discharged Carter on August 30 even in the absence of his pro-
tected activities.
Carter continued working for Respondent until about Octo-
ber 18. On October 11, Carter engaged in additional protected,
concerted activities. Together with Oldham and McMinn,
Carter complained to Respondent about painter McNatt using
drugs on the job. They also complained to Respondent about
McNatts’ threats of violence and death to Carter for making the
complaint. Respondent was aware of Carter’s protected activi-
ty, since he told Respondent of the complaints. Respondent’s
animus toward its employees’ protected activities has been well
documented above. Respondent’s statement that these issues
were of no concern to Oldham, McMinn nor Carter together
with its threats to drug test Oldham and McMinn in response to
their protected-concerted complaint, tends to show that the
complaint was a contributing factor in Carter’s discharge.
Respondent claims that Carter was fired on October 18 since
he was the worst employee it had ever employed. Respondent
claims that from the outset of his employment on June 23, he
had abysmal attendance, consistently refused to work at his
assigned jobsites, and had extremely slow production, however
Respondent produced no documents to support of any of these
assertions. Moreover, I have previously noted my reasons for
not crediting either Gene or Grant Edwards’ testimony. Any
claim that Respondent terminated Carter on October 18 due to
lack of work is belied by Respondent’s payroll records that
show Respondent had a heavy workload and hired or rehired
employees around the time of Carter’s October 18 discharge.
Given the absence of documentary or credited testimonial
evidence to support Respondent’s defenses that it fired Carter
for his alleged egregious work performance, I must conclude
that the reason Carter was terminated was not his poor work
performance but rather his Section 7 activity, the final Section 7
straw that broke the camel’s back for Gene Edwards. Alco
Electric Co., 258 NLRB 819 (1981). Tres Estrellas de Oro,
329 NLRB 50, 58 (1999); PVM I Associates, Inc., 328 NLRB
1141, 1152–1153 (1999).
d. Complaint paragraphs 18(d), 18(f) and (h) allege that in
September and October Respondent transferred its employees
Oldham and McMinn from jobsite to jobsite to isolate them
from other employees and failed to assign them work
In Montgomery Ward, 290 NLRB 981, 981–982 (1988), the
Board held that employer isolation of union supporters from
other employees is unlawful.
By August 2, Respondent was aware that Oldham and
McMinn were actively engaged in the union’s organizing cam-
paign. After wearing prounion T-shirts on the Four Square
jobsite on September 24, Oldham and McMinn were removed
from that jobsite and sent to a jobsite where Respondent knew
they would be unable to work because of heavy rain. From that
time, Oldham and McMinn were isolated from other employees
and were assigned about half the work they had been assigned
previously. Respondent admits that it isolated Oldham and
McMinn from other employees by assigning them work where
no other employees were working. Since Respondent did not
have many small jobs, this assignment resulted in fewer hours
for Oldham and McMinn. Respondent contends that it took this
action to prevent them from blaming others for their “sabotage”
of property on which they were working.
That Respondent harbored animus toward Oldham and
McMinn’s union activities, is amply described above. Moreo-
ver, the timing of their removal from the Four Square jobsite
and the drop in their work assignments coincided with their
protected activity in wearing T-shirts protesting Respondent’s
violation of federal labor law. Given Respondent’s prior ad-
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
monitions not to engage in union activity while on its jobsites, I
will draw an adverse inference that Respondent’s reason for
removing Oldham and McMinn from the Four Square jobsite
was motivated by their protected, concerted activity. Interna-
tional Automated Machines, 285 NLRB 1122, 1123 (1987),
enfd. 861 F.2d 720 (6th Cir. 1988).
In addition Respondent’s defense for removing Oldham and
McMinn from the Four Square job and assigning them to iso-
lated jobs when available is no more than pretext. There is no
record evidence that Oldham or McMinn ever blamed any other
employee for damaging property. Moreover, I have found that
there is no credible evidence that either Oldham or McMinn
engaged in any acts of sabotage while working for Respondent.
The pretextual nature of Respondent’s defenses both shows its
hostility toward Oldham and McMinn’s their protected activi-
ties and precludes Respondent from establishing that it would
have taken the same actions even in the absence of those activi-
ties.
e. Complaint paragraphs 18(i) and (j) allege that in
November Respondent discharged its employees Oldham
and McMinn
The evidence clearly establishes that both Oldham and
McMinn were engaged in union and other protected, concerted
activities as is Respondent’s knowledge of and animus toward
those activities. The nexus between their protected activity and
their discharge has likewise been established.
On November 13, Respondent removed Oldham and
McMinn from the Terwilliger job and failed to assign them any
further work after representatives of Terwilliger Plaza asked
that they leave its property because they posted flyers on bulle-
tin boards that commented on the cost of parking for Terwil-
liger employees and advised of the option of contacting a un-
ion.
There is no doubt that Respondent was aware that Oldham
and McMinn were engaged in union activity long before the
incident at Terwilliger Plaza. Nor is there any dispute that
Respondent knew they were engaged in protected activity in
putting up the posters advising Terwilliger employees of their
right to contact a union over benefit issues. Gene Edwards’
decision to discharge Oldham and McMinn after their removal
from the Terwilliger Plaza project was, at least in part, motivat-
ed by the content of their message to Terwilliger Plaza’s em-
ployees. Gene Edwards’ statement at the unemployment hear-
ing that “You can’t just come up there and post on their bulletin
boards anything you want, any type of obscenity or whatever, if
you don’t have a right to”64 reflects that Edwards believed
Oldham and McMinn had no right to appeal to Terwilliger
Plaza employees concerning their terms and conditions of em-
ployment and was therefore a legitimate basis for their dis-
charge. Indeed, there was no record evidence that Terwilliger
Plaza prohibited a general posting of information on its bulletin
boards.
While initially denying that Respondent had terminated Old-
ham and McMinn, claiming rather that it had no work for them,
Gene Edwards admitted that Oldham and McMinn are no long-

64 Tr. 425–426.
er employed by Respondent. He stated in the unemployment
hearing that posting on the Terwilliger Plaza bulletin boards
“was the end of their career.”
By way of further defense, Respondent contends that Old-
ham and McMinn were terminated because they sabotaged
work. The evidence reflects that Oldham and McMinn credibly
testified that walls they painted at the Art House project were
the wrong shade of white. They also admitted that there were
problems with doors Oldham painted at the Cannery project.
The problems were both reported immediately to either Gene or
Grant Edwards. There is no evidence that either Oldham or
McMinn tried to hide the problems or blame anyone else for the
wall color or the paint texture on the doors. While these inci-
dents occurred over a month before Oldham’s and McMinn’s
discharge, Oldham and McMinn were never disciplined for
either incident. Indeed, Grant Edwards absolved them of re-
sponsibility for the color of the paint on the walls, blaming
instead the paint supplier. Despite Gene Edwards claim that the
doors at the Cannery project were intentionally sabotaged by
Oldham and amounted to criminal conduct, he never disci-
plined Oldham nor did he file a police report. I conclude that
Respondent’s claims of sabotage are pretext. Edward G. Budd
Mfg. Co., 138 F.2d at 90–91; Tres Estrellas de Oro, 329 NLRB
at 58; PVM I Associates, Inc., 328 NLRB at 1152–1153; Alco
Electric Co., 258 NLRB at 822.
Because Respondent again can point to nothing other than
pretext to support its discharge of Oldham and McMinn, it can-
not meet its burden of establishing that it would have dis-
charged them even in the absence of their protected activities. I
conclude that both Oldham and McMinn were terminated by
Respondent in violation of Section 8(a)(3) and (1) of the Act.
f. Complaint paragraph 18(k) alleges that since January
2014 Respondent has opposed McMinn’s receipt of
unemployment benefits
In Grand Central Partnership, 327 NLRB 966, 966 (1999),
the Board found that a respondent violated the Act by opposing
an employee’s unemployment application in retaliation for the
employee filing unfair labor practice charges and participating
in a Board hearing.
Respondent added insult to injury after discharging McMinn
by opposing his unemployment claim with the State of Oregon.
In the State unemployment hearing Gene Edwards raised the
pretextual defenses claimed herein. Gene Edwards argued that
McMinn was removed from the Terwilliger Plaza project stat-
ing, “You can’t just come up there and post on their bulletin
boards anything you want, any type of obscenity or whatever, if
you don’t have a right to.” Edwards also alleged McMinn had
sabotaged work at the Cannery project and the Art House pro-
jects. Respondent’s contest of McMinn’s unemployment claim
was an extension of its previous discrimination based on
McMinn’s union and other protected, concerted activity and
violated Section 8(a)(3) and (1) of the Act.
EDWARDS PAINTING, INC. 23
g. Complaint paragraph 19 alleges that on August 8 and 9
Respondent refused to consider for hire Arturo Ramos, Gustavo
Garcia, Roben White, and Roman Ramos because they engaged
in protected-concerted activity or to discourage employees
from engaging in protected-concerted activity
In FES, 331 NLRB 9, 12 (2000), supplemented, 333 NLRB
66 (2001), enfd. 301 F.2d 83 (3d Cir. 2002), the Board held that
an employer may violate Section 8(a)(3) of the Act by refusing
to hire or refusing to consider for hire job applicants based
upon anti union animus. In order to establish a discriminatory
refusal to hire the General Counsel must show
“. . . under the allocation of burdens set forth in Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), . . . .: (1) that the
respondent was hiring, or had concrete plans to hire, at the
time of the alleged unlawful conduct; (2) that the applicants
had experience or training relevant to the announced or gener-
ally known requirements of the positions for hire, or in the al-
ternative, that the employer has not adhered uniformly to such
requirements, or that the requirements were themselves pre-
textual or were applied as a pretext for discrimination; and (3)
that antiunion animus contributed to the decision not to hire
the applicants.
Once this is established, the burden will shift to the respond-
ent to show that it would not have hired the applicants even in
the absence of their union activity or affiliation. If the respond-
ent asserts that the applicants were not qualified for the posi-
tions it was filling, it is the respondent’s burden to show, at the
hearing on the merits, that they did not possess the specific
qualifications the position required or that others (who were
hired) had superior qualifications, and that it would not have
hired them for that reason even in the absence of their union
support or activity. In sum, the issue of whether the alleged
discriminatees would have been hired but for the discrimination
against them must be litigated at the hearing on the merits. If
the General Counsel meets his burden and the respondent fails
to show that it would have made the same hiring decisions even
in the absence of union activity or affiliation, then a violation of
Section 8(a)(3) has been established. The appropriate remedy
for such a violation is a cease-and-desist order, and an order to
offer the discriminatees immediate instatement to the positions
to which they applied or, if those positions no longer exist, to
substantially equivalent positions, and to make them whole for
losses sustained by reason of the discrimination against them.”
In order to establish a discriminatory refusal to consider ap-
plicants for hire the General Counsel must show:
(1) that the respondent excluded applicants from a hiring pro-
cess; and (2) that antiunion animus contributed to the decision
not to consider the applicants for employment. Once this is es-
tablished, the burden will shift to the respondent to show that
it would not have considered the applicants even in the ab-
sence of their union activity or affiliation.
If the respondent fails to meet its burden, then a violation of
Section 8(a)(3) is established. The appropriate remedy for
such a violation is a cease-and-desist order; an order to place
the discriminatees in the position they would have been in,
absent discrimination, for consideration for future openings
and to consider them for the openings in accord with nondis-
criminatory criteria; and an order to notify the discriminatees,
the charging party, and the Regional Director of future open-
ings in positions for which the discriminatees applied or sub-
stantially equivalent positions. Id. at 15
In Toering Electric Co, 351 NLRB 225, 228, 233 (2007), the
Board further explained that the requirements of discriminatory
refusal to hire or consider for hire apply only to employees
defined under Section 2(3) of the Act, that is:
. . . someone genuinely interested in seeking to establish an
employment relationship with the employer. Simply put, only
those individuals genuinely interested in becoming employees
can be discriminatorily denied that opportunity on the basis of
their union affiliation or activity; one cannot be denied what
one does not genuinely seek. We further hold that the General
Counsel bears the ultimate burden of proving an individual’s
genuine interest in seeking to establish an employment rela-
tionship with the employer.
In Toering, supra at 233, the Board explained that in hiring
cases to establish an applicant is an employee under the Act
two components must be shown:
(1) there was an application for employment,[footnote omit-
ted] and (2) the application reflected a genuine interest in be-
coming employed by the employer. As to the first component,
the General Counsel must introduce evidence that the individ-
ual applied for employment with the employer or that some-
one authorized by that individual did soon his or her behalf. In
the latter instance, agency must be shown.
As to the second component (genuine interest in becoming
employed), the employer must put at issue the genuineness of
the applicant’s interest through evidence that creates a reason-
able question as to the applicant’s actual interest in going to
work for the employer. In other words, while we will no
longer conclusively presume that an applicant is entitled to
protection as a statutory employee, neither will we presume,
in the absence of contrary evidence that an application for
employment is anything other than what it purports to be.
Consequently, once the General Counsel has shown that the
alleged discriminatee applied for employment, the employer
may contest the genuineness of the application through evi-
dence including, but not limited to the following: evidence
that the individual refused similar employment with the re-
spondent employer in the recent past; incorporated belligerent
or offensive comments on his or her application; engaged in
disruptive, insulting, or antagonistic behavior during the ap-
plication process; or engaged in other conduct inconsistent
with a genuine interest in employment. Similarly, evidence
that the application is stale or incomplete may, depending up-
on the circumstances, indicate that the applicant does not gen-
uinely seek to establish an employment relationship with the
employer. Assuming the employer puts forward such evi-
dence, the General Counsel, to satisfy the genuine applicant
element of a prima facie case of hiring discrimination, must
then rebut that evidence and prove by a preponderance of the
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
evidence that the individual in question was genuinely inter-
ested in seeking to establish an employment relationship with
the employer. Thus, the ultimate burden of proof as to the
Section 2(3) status of the alleged discriminatee-applicant rests
with the General Counsel.
Under the Toering test, the record reflects that Garcia,
White, and Roman Ramos65 had a genuine interest in employ-
ment. Each came to Respondent’s office and said they were
interested in jobs with Respondent. In speaking with Connie
Edwards they did nothing that would suggest they were not
genuinely interested in employment. Each testified credibly
that they would have accepted a position with Respondent, if
offered.
The evidence shows that as of August 8 and 9, when the
three attempted to apply for work with Respondent, Respondent
had concrete plans to hire, hiring several employees shortly
thereafter.
The applicants met the requirements for the positions they
were seeking. Garcia and Roman Ramos, though they had no
professional painting experience, had some relevant experience.
While Gene Edwards claimed that Respondent was not hiring
employees without painting experience at the time, this is in-
consistent with the record evidence which establishes Respond-
ent hired many employees without prior painting experience,
including several employees hired shortly after August 8 or 9.
White was an experienced painter.
It has been well established that Respondent harbored ani-
mosity toward employees’ union activities. Respondent’s al-
tered employee information form, requiring applicants to di-
vulge their union affiliation, together with Connie Edwards’
statements to the four applicants that Respondent did not hire
union painters because they would try to organize its employ-
ees, that it would never go back to being union again, and that it
would close down its business before it would go union again,
demonstrates Respondent’s hostility to union applicants.
Moreover, by telling the applicants that Respondent did not
hire union painters, Connie Edwards excluded them from the
hiring process. In addition while Respondent contends it does
not hire applicants who come to its home office, this assertion
is inconsistent with Connie Edwards’ testimony that she posted
the applicants’ telephone numbers on the refrigerator at her
home for Gene Edwards’ consideration.
The evidence establishes that Garcia, White, and Roman
Ramos were employees within the meaning of the Act as they
had a genuine interest in working for Respondent and would
have accepted jobs if offered. All three met the standard of the
jobs applied for as they had some painting experience and Re-
spondent in fact hired many totally inexperienced painters. The
record further shows that Respondent intended to and in fact
hired painters at the time the three applied and hired painters
with no experience. Respondent’s antiunion animus contribut-
ed to the decision to exclude the applicants from the hiring
process, and Respondent’s pretextual defenses are insufficient
to meet its burden of showing that it would not have considered

65 The General Counsel concedes that Arturo Ramos would not have
accepted a position with Respondent, if offered, as of August 9, when
he attempted to apply.
the applicants in the absence of their union activities or affilia-
tion. I conclude that Respondent failed to hire or consider for
hire Garcia, White, and Roman Ramos in violation of Section
8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent Edwards Painting, Inc., is an employer en-
gaged in commerce and in an industry affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. International Union of Painters and Allied Trades, District
Council 5, affiliated with International Union of Painters and
Allied Trades (Union) is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By engaging in the following conduct, the Respondent
committed unfair labor practices in violation of Section 8(a)(1)
of the Act.
(a) Interrogating employees about their union activities or af-
filiation or the union activities or affiliation of other employees.
(b) Telling employees that it wants to make sure no one it
hires will bring up anything having to do with the Union.
(c) Instructing employees not to discuss the Union or engage
in union activities, including by telling them, in reference to
their union activities, not to cause trouble or problems.
(d) Instructing employees not to hand out union flyers on its
jobsites.
(e) Telling employees that support for the union is futile, in-
cluding by telling them that it is not, and will never be, a union
shop.
(f) Threatening employees with layoff, discharge, or job loss
because of their union activities, membership, or support, in-
cluding attendance of union meetings, signing petitions in sup-
port of the Union, or selecting the union as their collective bar-
gaining representative.
(g) Threatening to administer drug tests to employees be-
cause they concertedly complain about terms and conditions of
employment, including employee drug use on the job.
(h) Telling applicants for hire that it does not hire union
painters.
(i) Promising employees benefits, including wage increases
and future work, if they cease activities in support of the Union.
(j) Ordering off-duty employees who support the Union to
leave its property while allowing other off-duty employees to
remain on its property.
(k) Threatening to call or calling the police because employ-
ees are distributing union literature.
4. By engaging in the following conduct, the Respondents
committed unfair labor practices in violation of Section 8(a)(3)
of the Act:
(a) Discharging employees Craig Prinslow, Sean Carter,
James Oldham, and Wyatt McMinn for engaging in union or
other protected, concerted activities.
(b) Opposing employee Wyatt McMinn’s receipt of unem-
ployment benefits for engaging in union or other protected,
concerted activities.
(c) Transferring employees James Oldham and Wyatt
McMinn among jobsites to isolate them from other employees
for engaging in union or other protected, concerted activities.
(d) Failing to assign work to employees James Oldham, Wy-
EDWARDS PAINTING, INC. 25
att McMinn, and Craig Prinslow for engaging in union or other
protected, concerted activities.
(e) Failing to rehire employee Craig Prinslow for engaging in
union or other protected, concerted activities.
(f) Granting employees wage increases in order to discour-
age employees from engaging in union or other protected, con-
certed activities.
(g) Refusing to hire or refusing to consider for hire appli-
cants Gustavo Garcia, Roben White, and Roman Ramos for
engaging in union or other protected, concerted activities.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended66
REMEDY
In addition to the ordinary remedies, General Counsel seeks
the extraordinary remedy of having the notice read to employ-
ees. The Board had held in Federated Logistics, 340 NLRB
255, 258 (2003), that when an employer commits pervasive
unfair labor practices by high level managers in the context of
an organizing campaign, that such conduct will tend to have a
chilling effect. To fully remedy these unfair labor practices the
Board will order that the notice to employees be read to em-
ployees.
Here, Respondent has engaged in numerous egregious unfair
labor practices, These include threats of termination, directions
to refrain from engaging in union activity and the firing of four
employees who included the main union organizers, all in retal-
iation for the Union’s organizing campaign. There can be little
doubt that Respondent’s conduct has chilled employee support
for the Union. Accordingly, I will order that the notice to em-
ployees be read to employees in English and Spanish by Re-
spondent and/or by a Board agent in the presence of Respond-
ent, to assure employees of their rights and Respondent’s obli-
gations under the Act.
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The evidence having established that the Respondent dis-
charged its employees Craig Prinslow, Sean Carter, James Old-
ham, and Wyatt McMinn, having failed to assign work to Prins-
low, Oldham, and McMinn, having opposed McMinn’s unem-
ployment benefits, having granted its employees wage benefits,
and having failed to consider for hire Gustavo Garcia, Roben
White and Roman Ramos, my recommended Order requires the
Respondent to make them whole. My recommended Order also
requires the Respondent to offer Craig Prinslow, Sean Carter,
James Oldham, and Wyatt McMinn, immediate reinstatement
to their former positions, displacing if necessary any replace-
ments, or if their positions no longer exist, to substantially
equivalent positions, without loss of seniority and other privi-
leges previously enjoyed, and to make them whole for any loss
of earnings and other benefits suffered as a result of the dis-
crimination against them. My order in addition requires Re-

66 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections shall be waived for all purposes.
spondent to offer Gustavo Garcia, Roben White, and Roman
Ramos instatement to the positions for which they applied or, if
those positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other rights or
privileges. My recommended order further requires that back-
pay shall be computed in accordance with F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987), plus daily
compound interest as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010).
The recommended order also requires that the Respondent
shall expunge from its files and records any and all references
to the unlawful discharges and any reference to the unlawful
refusal to hire issued to the above-named employees, and to
notify them in writing that this has been done and that the un-
lawful discrimination will not be used against them in any way.
Sterling Sugars, Inc., 261 NLRB 472 (1982). Further, the Re-
spondent must not make any reference to the expunged material
in response to any inquiry from any employer, employment
agency, unemployment insurance office, or reference seeker, or
use the expunged material against them in any other way.
The Respondent shall be required to post a notice that as-
sures its employees that it will respect their rights under the
Act. As the Respondent has a large number of employees
whose primary language is Spanish, the Respondent shall be
required to post the paper notice in both English and Spanish.
In addition to physical posting of paper notices, notices shall
be distributed electronically, such as by email, posting on an
intranet or internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by
such means. J. Picini Flooring, 356 NLRB 11 (2010).
General Counsel also requests that discriminatees be reim-
bursed for any excess taxes owed as a result of a lump-sum
backpay award and that Respondent be ordered to complete the
appropriate paperwork as set forth in IRS Publication 975 to
notify the Social Security Administration what periods to which
the backpay should be allocated as requested in the remedy
section of the complaint herein.
In Don Chavas LLC d/b/a Tortillas Don Chavas, 361 NLRB
No. 10 (2014), Board ordered that it will routinely require the
filing of a report with the Social Security Administration allo-
cating backpay awards to the appropriate calendar quarters.
The Board also held that it will routinely require respondents to
compensate employees for the adverse tax consequences of
receiving one or more lump-sum backpay awards covering
periods longer than 1 year. The Board concluded that it is the
General Counsel’s burden to prove and quantify the extent of
any adverse tax consequences resulting from the lump-sum
backpay award and that such matters shall be resolved in com-
pliance proceedings.
Pursuant to Don Chavas LLC d/b/a Tortillas Don Chavas, I
will order that Respondent shall file a report with the Social
Security Administration allocating any backpay awards to the
appropriate calendar quarters.
ORDER
The Respondent, Edwards Painting, Inc., Oregon City, Ore-
gon, its officers, agents, successors, and assigns shall
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from
(a) Interrogating employees about their union activities or af-
filiation or the union activities or affiliation of other employees.
(b) Telling employees that it wants to make sure no one it
hires will bring up anything having to do with the Union.
(c) Instructing employees not to discuss the Union or engage
in union activities, including by telling them, in reference to
their union activities, not to cause trouble or problems.
(d) Instructing employees not to hand out union flyers on its
jobsites.
(e) Telling employees that support for the Union is futile, in-
cluding by telling them that it is not, and will never be, a union
shop.
(f) Threatening employees with layoff, discharge, or job loss
because of their union activities, membership, or support, in-
cluding attendance of union meetings, signing petitions in sup-
port of the Union, or selecting the Union as their collective-
bargaining representative.
(g) Threatening to administer drug tests to employees be-
cause they concertedly complain about terms and conditions of
employment, including employee drug use on the job.
(h) Telling applicants for hire that it does not hire union
painters.
(i) Promising employees benefits, including wage increases
and future work, if they cease activities in support of the Union.
(j) Ordering off-duty employees who support the Union to
leave its property while allowing other off-duty employees to
remain on its property.
(k) Threatening to call or calling the police because employ-
ees are distributing union literature.
(l) Discharging employees for engaging in union or other
protected, concerted activities.
(m) Opposing employees’ receipt of unemployment benefits
for engaging in union or other protected, concerted activities.
(n) Transferring employees among jobsites to isolate them
from other employees for engaging in union or other protected,
concerted activities.
(o) Failing to assign work to employees for engaging in un-
ion or other protected, concerted activities.
(p) Failing to rehire employees for engaging in union or oth-
er protected, concerted activities.
(q) Granting employees wage increases in order to discour-
age employees from engaging in union or other protected, con-
certed activities.
(r) Refusing to hire or refusing to consider for hire applicants
for engaging in union or other protected, concerted activities.
(s) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Craig
Prinslow, Sean Carter, James Scott Oldham, and Wyatt
McMinn full reinstatement to their former positions, or, if those
positions no longer exist, to a substantially equivalent position,
without prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
(b) Within 14 days from the date of this Order, notify the
Oregon Employment Department that it no longer opposes
Wyatt McMinn’s receipt of unemployment benefits and with-
draw any appeal it has filed to the Oregon Employment De-
partment’s determination that Wyatt McMinn is not disquali-
fied from receiving unemployment benefits.
(c) Make Craig Prinslow, Sean Carter, James Scott Oldham,
and Wyatt McMinn whole for any loss of earnings and other
benefits suffered as a result of their discharges, less any net
interim earnings, plus interest.
(d) Make Craig Prinslow whole for any loss of earnings and
other benefits suffered as a result of its refusal to rehire him in
October 2013, less any net interim earnings, plus interest.
(e) Make James Scott Oldham and Wyatt McMinn whole for
any loss of earnings and other benefits suffered as a result of its
failure to assign them work in September, October, and No-
vember 2013, less any net interim earnings, plus interest.
(f) Compensate Craig Prinslow, Sean Carter, James Scott
Oldham, and Wyatt McMinn for the adverse tax consequences,
if any, of receiving a lump-sum backpay award, and file a re-
port with the Social Security Administration allocating the
backpay award to the appropriate calendar quarters.
(g) Within 14 days from the date of this Order, remove from
its files all references to the discharge of Craig Prinslow about
July 30, 2013;the refusal to rehire Prinslow in October 2013;
the discharge of Sean Carter about August 30, 2013; the dis-
charge of Sean Carter about October 18, 2013; the failure to
assign work to James Scott Oldham in September through No-
vember 2013; the failure to assign work to Wyatt McMinn in
September through November 2013; the discharge of James
Scott Oldham about November 13, 2013; the discharge of Wy-
att McMinn about November 13, 2013; and the opposition to
Wyatt McMinn’s claim for unemployment benefits since about
January 2014, and, within 3 days thereafter, notify each of them
in writing that this has been done and that those actions will not
be used against them in any way.
(h) Within 14 days from the date of this Order, offer Gustavo
Garcia, Roben White, and Roman Ramos instatement to the
positions for which they applied, or, if those positions no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges they would have
enjoyed had Gustavo Garcia and Roben White been hired on
August 8, 2013, and had Roman Ramos been hired on August
9, 2013.
(i) Make Gustavo Garcia, Roben White, and Roman Ramos
whole for any loss of earnings and other benefits suffered as a
result of the refusal to hire them, less any net interim earnings,
plus interest.
(j) Compensate Gustavo Garcia, Roben White, and Roman
Ramos for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and file a report with the Social
Security Administration allocating the backpay award to the
appropriate calendar quarters.
(k) Within 14 days from the date of this Order, remove from
its files any reference to the refusal to hire Gustavo Garcia,
Roben White, and Roman Ramos, and, within 3 days thereafter,
notify each of them in writing that this has been done and that
this action will not be used against them in any way.
(l) Consider Arturo Ramos for hire for the position for which
EDWARDS PAINTING, INC. 27
he applied, or, if that position no longer exists, for a substantial-
ly equivalent position, in the event that he applies for such a
position in the future.
(m) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(n) Within 14 days after service by the Region, post at its
Oregon City, Oregon facility, copies of the attached notice
marked “Appendix.”67 Copies of the notice, on forms provided
by the Regional Director for Region 19, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. In addition to physical
posting of paper notices, notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent customar-
ily communicates with its employees by such means. Reasona-
ble steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent 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 June 7, 2013.
(o) Within 14 days after service by the Region, hold a meet-
ing or meetings, during working time, scheduled to ensure the
widest possible attendance, at which the attached notice is to
be read in English and Spanish to the employees assem-
bled for this purpose, by Gene Edwards or another responsible
official of the Respondent in the presence of a Board agent,
and/or by a Board agent in the presence of Gene, Connie,
Grant, and Bob Edwards.
(p) Within 21 days after service by the Region, filed with the
Regional Director for Region 19 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that Respondent has taken to comply.
Dated, Washington, D.C. September 26, 2014
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

67 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.”
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT ask you about your union activities or mem-
bership or the union activities or membership of other employ-
ees.
WE WILL NOT tell you that we want to make sure no one we
hire brings up anything that has to do with International Union
of Painters and Allied Trades, District Council 5, affiliated the
International Union of Painters and Allied Trades (the “Un-
ion”).
WE WILL NOT tell you not to discuss the Union or engage in
union activities, including by telling you, in reference to your
union activities, not to cause trouble or problems.
WE WILL NOT tell you not to hand out union flyers on our
jobsites.
WE WILL NOT tell you that your support for the Union is
pointless, including by telling you that we will not, and will
never be, a union shop.
WE WILL NOT threaten you with layoff, discharge, or job loss
because of your union activities, membership, or support, in-
cluding attendance of union meetings, signing petitions in sup-
port of the Union, or selecting the Union as your collective-
bargaining representative.
WE WILL NOT threaten to drug test you because you concert-
edly complain about your terms and conditions of employment,
including employee drug use on the job.
WE WILL NOT tell applicants for hire that we do not hire un-
ion painters.
WE WILL NOT promise you benefits, including wage increases
and future work, to discourage you from supporting the Union.
WE WILL NOT order you to leave our property because you
support the Union while allowing employees who do not sup-
port the Union to remain on our property.
WE WILL NOT threaten to call or call the police because you
are distributing union flyers.
WE WILL NOT fire you because of your union membership or
support or because you act together with other employees for
your benefit and protection.
WE WILL NOT oppose your receipt of unemployment benefits
because of your union membership or support.
WE WILL NOT refuse to rehire you because of your union
membership or support.
WE WILL NOT give you wage increases in order to discourage
you from supporting a union.
WE WILL NOT refuse to hire you or refuse to consider you for
hire because of your union membership or support.
WE WILL NOT in any like or related manner interfere with
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
your rights under Section 7 of the Act.
WE WILL offer Craig Prinslow, Sean Carter, James Oldham,
and Wyatt McMinn their jobs back along with their seniority
and all other rights or privileges.
WE WILL notify the Oregon Employment Department that we
no longer oppose Wyatt McMinn’s receipt of unemployment
benefits and withdraw any appeal we have filed to the Oregon
Employment Department’s determination that Wyatt McMinn
is not disqualified from receiving unemployment benefits.
WE WILL pay Craig Prinslow, Sean Carter, James Oldham
and Wyatt McMinn for the wages and other benefits they lost
because we fired them.
WE WILL pay Craig Prinslow for the wages and other benefits
he lost because we refused to rehire him.
WE WILL pay James Scott Oldham and Wyatt McMinn for
the wages and other benefits they lost because we failed to
assign them work.
WE WILL compensate Craig Prinslow, Sean Carter, James
Oldham, and Wyatt McMinn for the adverse tax consequences,
if any, of receiving one or more lump-sum backpay awards
covering periods longer than 1 year.
WE WILL file a report with the Social Security Administration
allocating backpay for Craig Prinslow, Sean Carter, James
Oldham and Wyatt McMinn to the appropriate quarters.
WE WILL remove from our files all references to the dis-
charge of Craig Prinslow, Sean Carter, James Oldham, and
Wyatt McMinn, the opposition to Wyatt McMinn’s unemploy-
ment claim, the refusal to rehire Craig Prinslow, and the failure
to assign work to James Scott Oldham and Wyatt McMinn, and
WE WILL notify them in writing that this has been done and that
these actions will not be used against them in any way.
WE WILL offer to Gustavo Garcia, Roben White, and Roman
Ramos the jobs they applied for, or similar jobs, and give them
their seniority and other benefits from the date they should have
been hired.
WE WILL pay Gustavo Garcia, Roben White, and Roman
Ramos for the wages and other benefits they lost because we
failed to hire them.
WE WILL compensate Gustavo Garcia, Roben White, and
Roman Ramos for the adverse tax consequences, if any, of
receiving one or more lump-sum backpay awards covering
periods longer than 1 year.
WE WILL file a report with the Social Security Administration
allocating backpay for Gustavo Garcia, Roben White, and Ro-
man Ramos to the appropriate quarters.
WE WILL remove from our files all references to the failure to
hire Gustavo Garcia, Roben White and Roman Ramos and WE
WILL notify them in writing that this has been done and that the
failure to hire them will not be used against them in any way.
WE WILL consider Arturo Ramos for hire for the job he ap-
plied for, or a similar job, if he applies for such a job in the
future.
EDWARDS PAINTING, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/19-CA-116399 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273–1940.