Hawaiian Dredging Construction Company, Inc.

National Labor Relations Board - Board Decisions

Feb 9, 2015

362 NLRB No. 10 (N.L.R.B. 2015)

362 NLRB No. 10
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive 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.
Hawaiian Dredging Construction Company, Inc. and
International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers and
Helpers, Local 627. Case 37–CA–008316
February 9, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On February 4, 2013, Administrative Law Judge Elea-
nor Laws issued the attached decision. The General
Counsel and Charging Party each filed exceptions and a
supporting brief, the Respondent filed an answering
brief, and the General Counsel filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.1
The judge recommended dismissing the complaint,
which alleged that the Respondent, Hawaiian Dredging
Construction Company, Inc., violated Section 8(a)(3) and
(1) of the Act when it discharged, laid off, or terminated
13 members of the International Brotherhood of Boiler-
makers, Iron Ship Builders, Blacksmiths, Forgers and
Helpers, Local 627 (Boilermakers) upon repudiation of
the Respondent’s 8(f) bargaining relationship with that
union. The judge concluded that the Respondent had met
its burden to establish that the discharges were motivated
by a substantial and legitimate business justification. We
disagree. The evidence establishes that the discharges
were motivated by the alleged discriminatees’ union af-
filiation, and therefore were unlawful. In the alternative,
even assuming an absence of specific evidence of unlaw-
ful motive, the Respondent’s conduct was “inherently
destructive” of the employees’ rights and its asserted
business justification did not outweigh the destructive
impact. Accordingly, we find that the Respondent vio-
lated Section 8(a)(3) and (1).
I. FACTUAL BACKGROUND
The Respondent is the largest general contractor in
Hawaii, employing approximately 375 craft employees.
At the time of the events at issue here, the Respondent

1 The name of Kona Akuna was included in the complaint but omit-
ted from the list of alleged discriminatees in the judge’s decision. We
correct this inadvertent error.
was a member of the Association of Boilermakers Em-
ployers of Hawaii (the Association). The Association
and the Boilermakers had been parties to an 8(f) prehire
collective-bargaining agreement for at least 20 years.
Pursuant to this agreement, the Boilermakers provided
the Respondent with employees to perform welding and
other duties.
The most recent agreement between the Association
and the Boilermakers expired on September 30, 2010, at
which time the parties had not reached a new agreement,
despite ongoing negotiations. By email on October 1,
the Boilermakers notified Tom Valentine, who was then
the Respondent’s senior project manager and chairman
of the Association, of its availability to continue negoti-
ating. Attached to the email was a letter from the Boil-
ermakers’ attorney, advising the Boilermakers that be-
cause its agreement with the Association had expired, its
members were free to cease working without notice.
Also on October 1, a crew of Boilermakers-represented
employees informed the Respondent that they would not
perform work that day because the agreement had ex-
pired. A week later, on October 8, the Association and
the Boilermakers agreed to extend the terms of the ex-
pired agreement through October 29, to facilitate further
bargaining.
The October 29 expiration date passed and negotia-
tions continued into November, with the parties disagree-
ing about the inclusion of certain benefits. On November
12, Valentine sent the Boilermakers four copies of the
collective-bargaining agreement that he believed the par-
ties had successfully negotiated. On November 17, the
Boilermakers sent a letter to Valentine listing various
corrections and additional terms relating to the disputed
benefits. On December 6, Valentine informed the Boil-
ermakers that the Association would not accept the addi-
tional terms. That same day, the Association filed a
charge with the Board, alleging that the Boilermakers
violated Section 8(b)(3) of the Act by refusing to sign the
purported agreement and by insisting on terms that had
not been negotiated.
On February 17, 2011, the Association received notice
of the Regional Office’s decision to dismiss the Decem-
ber 6 charge, on the ground that the parties had not
reached a complete agreement. That same day, the As-
sociation terminated its 8(f) relationship with the Boil-
ermakers, and it informed the Boilermakers that the As-
sociation would no longer be using its members for fu-
ture work.2 The Respondent also temporarily shut down
ongoing welding operations that day and issued termina-

2 It is undisputed that the termination of the 8(f) relationship was
lawful.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
tion notices to its 13 Boilermakers-represented employ-
ees (the alleged discriminatees). The notices cited “con-
tract has expired” as the reason for the terminations.3
On February 23, 2011, the Respondent entered into a
collective-bargaining agreement with the United Plumb-
ers and Pipefitters Union (Pipefitters). The Respondent
resumed its welding operations on March 1, the day the
Pipefitters dispatched its first employee to the Respond-
ent. About this time, the Respondent contacted 10 of the
13 alleged discriminatees, informed them that it had
reached an agreement with the Pipefitters, and stated that
the alleged discriminatees would need to speak to the
Pipefitters’ leadership if they were interested in returning
to work. Eight of the 13 alleged discriminatees regis-
tered with the Pipefitters, and the first was dispatched to
the Respondent on March 22, 2011.
II. THE JUDGE’S DECISION
The judge dismissed the complaint, finding that the
Respondent's discharge of its 13 Boilermakers-
represented employees did not violate Section 8(a)(3)
and (1) of the Act. The judge analyzed the discharges
under the framework set forth in NLRB v. Great Dane
Trailers, Inc., 388 U.S. 26 (1967). In a Great Dane
analysis, the lawfulness of the employer’s conduct turns
on the impact of its conduct on Section 7 rights. If an
employer’s discriminatory conduct is “inherently de-
structive” of employee rights, no proof of antiunion mo-
tive is required, and the Board may find an unfair labor
practice even if the employer comes forward with evi-
dence that it was motivated by business considerations.
If, on the other hand, the adverse impact on employee
rights is “comparatively slight,” an antiunion motivation
must be proved to sustain an 8(a)(3) charge if the em-
ployer has come forward with evidence of a legitimate
and substantial business justification for the conduct.4
Under either scenario, once it has been established that
the employer engaged in discriminatory conduct that
affected employee rights to some extent, the conduct will
be found unlawful unless the employer establishes that it
was motivated by legitimate objectives. Id. at 33–34.

3 The General Counsel excepts to the judge’s finding that the
discriminatees were “laid off,” contending instead that they were dis-
charged. We agree with the General Counsel. Each notice deemed the
action the employee’s “separation,” and, as the parties stipulated, the
Respondent did not inform the alleged discriminatees of any possibility
of recall. Moreover, according to Valentine’s credited testimony, the
Respondent no longer considered them to be employees.
4 The judge’s analysis at one point erroneously suggests that the
Board will determine whether an employer’s conduct had a “compara-
tively slight” impact on employee rights only after the conduct is first
found to be “inherently destructive.” In fact, under Great Dane, the
impact will be deemed to be either “comparatively slight” or “inherent-
ly destructive.” 388 U.S. at 34.
Under this framework, the judge rejected the General
Counsel’s contention that the Respondent’s conduct was
“inherently destructive” of the employees’ Section 7
rights. Because the Respondent considered the alleged
discriminatees for reemployment without regard to their
prior affiliation with the Boilermakers, the judge found
that any adverse impact was “comparatively slight.” She
concluded that, in any event, there was no violation be-
cause the Respondent established a legitimate and sub-
stantial business justification for the discharges. Specifi-
cally, the judge found that the discharge of the alleged
discriminatees following the expiration of the parties'
contract was justified by the Respondent’s longstanding
practice of performing craft work only under a valid col-
lective-bargaining agreement. Alternatively, the judge
found that the discharges would also be lawful under the
Board’s motive-based Wright Line standard.5
On exceptions, the General Counsel and the Boiler-
makers contend that the Respondent's discharge of all of
its employees who had been referred by the Boilermakers
constituted “inherently destructive” conduct. They fur-
ther assert that the Respondent’s alleged practice of
working only under a collective-bargaining agreement is
not a sufficient justification for discriminatorily discharg-
ing employees, particularly because the Respondent had,
in fact, previously performed welding work without a
collective-bargaining agreement during the period be-
tween October 29, 2010 (when the Boilermakers’ agree-
ment expired), and February 17, 2011 (when the Re-
spondent terminated its relationship with the Boilermak-
ers). Accordingly, they assert, the Respondent cannot
prevail even if the effect of the discharges is found to be
“comparatively slight.”
III. ANALYSIS
Contrary to the judge, we find that the discharges vio-
lated Section 8(a)(3) and (1). As explained below, the
discharges were unlawful under both Wright Line and
Great Dane.6

5 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983).
6 Although the General Counsel neither clearly advanced a Wright
Line theory at the hearing nor excepted to the judge’s failure to find a
violation under that framework, this does not preclude the Board from
doing so. The complaint is sufficient to encompass a Wright Line theo-
ry. It alleges that the Respondent discharged the employees “because
[they] were members of the Union” and that this conduct violated Sec.
8(a)(3) and (1). The complaint need not plead a specific legal theory,
as long as it contains “a clear and concise description of the acts which
are claimed to constitute unfair labor practices.” See NLRB Rules and
Regulations, Sec. 102.15. Indeed, the Board, with court approval, has
often found violations for different reasons and on different theories
from those of administrative law judges or the General Counsel where
the unlawful conduct was alleged in the complaint. See, e.g., Pepsi
HAWAIIAN DREDGING CONSTRUCTION CO. 3
A. The Respondent denies that the alleged
discriminatees’ association with the Boilermakers played
any role in its decision to discharge them. Rather, it con-
tends, the sole reason for the discharge was that it no
longer had a collective-bargaining agreement with the
Boilermakers. Inasmuch as this case turns on the Re-
spondent’s motive, Wright Line is the appropriate analyt-
ical framework. See Nationsway Transport Services,
327 NLRB 1033, 1034 (1999).
Under Wright Line, the General Counsel has the initial
burden to show that protected conduct was a motivating
factor in the employer’s decision. The elements com-
monly required to support a finding of unlawful motiva-
tion are union activity, the employer’s knowledge of that
activity, and evidence of animus. The burden then shifts
to the employer to demonstrate that it would have taken
the same action even in the absence of the employees’
union activity. Wright Line, supra, 251 NLRB at 1089.
We find that the General Counsel established discrimina-
tory motive, and the Respondent has failed to meet its
rebuttal burden.
The first two elements of the Wright Line test are un-
disputed: all of the alleged discriminatees were Boiler-
makers members, and their union affiliation was known
to the Respondent. The third element, animus, is readily
established by the Respondent’s summary discharge of
all of its Boilermakers-represented employees, and only
its Boilermakers-represented employees. Although an
employer is free to terminate an 8(f) relationship with a
union after expiration of a contract, it cannot discrimina-
torily discharge its employees because of their affiliation
with that union.7 Here, however, it did just that. On
February 17, the Association notified the Boilermakers
that it was terminating their relationship and that it did
not “intend to utilize members of the Boilermaker’s [sic]
Union for future work.” The same day, the Respondent
issued termination notices to all of its employees repre-
sented by the Boilermakers. Those facts virtually com-
pel a finding that the Respondent discharged the alleged
discriminatees because of their Boilermakers affiliation.

America, Inc., 339 NLRB 986 (2003); Jefferson Electric Co., 274
NLRB 750, 750–751 (1985), enfd. 783 F.2d 679 (6th Cir. 1986). We
note further that the Respondent’s posthearing brief to the judge ana-
lyzed the case under Wright Line, and, as stated above, the judge in-
cluded an alternative Wright Line analysis in her decision.
7 Cf. Automatic Sprinkler Corp., 319 NLRB 401, 402 fn. 4 (1995)
(“The expiration of an 8(f) contract simply privileges a withdrawal of
recognition, not a discriminatory discharge of employees.”), enf. denied
120 F.3d 612 (6th Cir. 1997), cert. denied 523 U.S. 1106 (1998); Jack
Welsh Co., 284 NLRB 378, 379, 383 (1987) (finding 8(a)(3) violation
where employees were discharged after employer decided to “go open
shop” rather than renew its 8(f) agreement; employees were “never
given an opportunity to quit”).
We further find that the Respondent has not met its re-
buttal burden of demonstrating that it would have dis-
charged the alleged discriminatees even in the absence of
their affiliation with the Boilermakers. The Respondent
maintains that it requires that all its craft work be per-
formed under collective-bargaining agreements to avoid
the instability and unpredictability of working without
the protections of an agreement. It asserts that this busi-
ness model—not the alleged discriminatees’ union affili-
ation—was the reason for the discharges.
We do not doubt that the Respondent’s practice is to
rely on hiring halls for labor pursuant to prehire collec-
tive-bargaining agreements. Upon examination of the
full record, however, we are not persuaded that the Re-
spondent so strictly adheres to that practice that it would
have discharged the discriminatees on that basis alone.
In fact, the evidence reveals the contrary. As the General
Counsel observes, the Boilermakers-represented employ-
ees performed craft work in the months leading up to the
February 17, 2011 discharges. Even setting aside the
period from November 12 until February 17—when the
Respondent believed the parties had an enforceable
agreement—there were two periods during which the
Respondent knowingly operated without an agreement in
place. The first period occurred from October 1 through
7. Although its agreement with the Boilermakers had
expired on September 30, it was not until October 8 that
the parties agreed to extend the terms of that agreement
through October 29. Yet the Respondent continued to
perform craft work during that week-long period. The
dissent overlooks the probative value of this evidence,
contending that the hiatus periods between contracts
were treated as contract extensions by the parties pursu-
ant to “tacit agreement.” It relies on the testimony of
Valentine and the Respondent’s President William Wil-
son that, when the Boilermakers’ membership rejected
the Respondent’s latest offer on September 30, they be-
lieved that the expired agreement would continue to be
enforced. Although that may have initially been the
case, the Union promptly and affirmatively dispelled this
belief. On September 30, Union Business Manager
Meyers called Valentine to inform him that because the
contract was expiring and the membership had rejected
the Respondent’s most recent proposal, they should re-
sume negotiations that day. Valentine countered that
immediate negotiations were unnecessary because the
parties could continue working under the terms of the
expired agreement. According to Valentine’s own testi-
mony, Meyers expressly disagreed. (Tr. 195–196).
The Boilermakers’ subsequent actions confirm that it
viewed the expired contract as inoperative. On October
1, the Boilermakers sent Valentine an email stating, “As
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
you know Allen [Meyers] was available to continue ne-
gotiations last night and will be available all day. At-
tached is a letter for your information.” The attached
letter, from the Boilermakers’ attorney, advised the Boil-
ermakers that because its agreement with the Respondent
had expired, its members were free to cease working at
any time. Valentine admitted that he perceived this as a
threat that the Boilermakers would engage in a work
stoppage, notwithstanding the no-strike clause contained
in the parties’ expired agreement. And, in fact, Valen-
tine’s concerns were substantiated later that day when the
Boilermakers members announced a work stoppage.
These actions hardly reflect a “tacit agreement” to extend
the terms of the expired contract.
The second period occurred from October 30 through
November 12. The parties failed to reach a new agree-
ment by the new October 29 expiration date and the Re-
spondent again continued to perform welding work using
Boilermakers members. Once again our dissenting col-
league attempts to diminish the significance of this peri-
od by asserting that Valentine believed that a new
agreement had been reached before November 1. As
evidence, he points to an exchange of emails between the
Boilermakers and Valentine on November 1, in which
the Boilermakers sent Valentine a document outlining
the “new Hawaii Wage/Benefits Rates” and Valentine
responded that certain benefits included in the document
had not been discussed or agreed to. From these limited
communications, the dissent infers an acknowledgment
between the parties that they had reached a complete
agreement. We are not prepared to make that leap. He
also relies on Valentine’s uncorroborated testimony that
he was informed that the agreement had been ratified by
the Boilermakers’ membership sometime prior to the
November 1 exchange. In addition to the lack of any
evidence that ratification occurred, the dissent’s position
is directly contradicted by the judge, who found that
“[c]ontract negotiations continued into November[.]” As
noted by the judge, the earliest indication of Valentine’s
belief that the parties had reached a successor agreement
is contained in a November 12 letter.
In short, from October 1 through 7, and then again
from October 30 until November 12, the Respondent
continued its operations using Boilermakers-represented
employees, despite not having a collective-bargaining
agreement in place.
We recognize that, during these periods, the Respond-
ent had not yet repudiated its 8(f) relationship with the
Boilermakers and, we presume, expected to negotiate a
successor agreement with that union. This, however, is
of little significance because the Respondent contends
that it was the lack of an agreement with the Boilermak-
ers—not the lack of a bargaining relationship—that led
to its decision to discharge the alleged discriminatees.
The Respondent has not come forward with any expla-
nation for its inconsistent adherence to its asserted busi-
ness model. Nor does it offer any basis for the proposi-
tion that the discharges furthered its interest in maintain-
ing operational stability. The Respondent cites the legis-
lative history of Section 8(f), but makes no showing that
the policy considerations there discussed—including
predictability of labor costs and labor supply—were fac-
tors in its decision to discharge the discriminatees. It is
undisputed that there was welding work to be performed
and, although we understand that the repudiation of the
8(f) relationship prevented the Respondent from seeking
new referrals from the Boilermakers, it has not indicated
that it needed additional labor beyond the number of
Boilermakers members who had already been dispatched
and were working for the Respondent. As to those em-
ployees, the Respondent does not contend, let alone
show, that it doubted their willingness to continue to
perform work after February 17. Simply put, the evi-
dence offered by the Respondent does not overcome the
inference of discriminatory intent. Accordingly, we find
that the Respondent has not carried its burden of estab-
lishing that it would have discharged the discriminatees
even in the absence of their union affiliation. The dis-
charges therefore violated Section 8(a)(3) and (1).8

8 We do not dispute that the three “black-letter principles” cited by
the dissent are “clear and well accepted.” But, as we have discussed,
the first two principles–an employer’s right to repudiate an 8(f) rela-
tionship with one union after the agreement expires and to enter into a
new 8(f) agreement with a different union–do not answer or even ad-
dress the question presented here: whether the employer may then
discharge its employees who were members of the first union.
The third principle–an employer’s right to permanently shut down
its business–was enunciated by the Supreme Court in Textile Workers
v. Darlington Mfg. Co., 380 U.S. 263 (1965). That case stands for the
proposition that an employer’s decision to go out of business is a matter
of management prerogative and does not violate the Act, even if moti-
vated by antiunion considerations. But this case involves a temporary
shutdown, not a permanent closure, and Darlington is therefore irrele-
vant.
In Darlington, where the employer closed its plant following the un-
ion’s election, the Court held that an employer has an absolute right to
completely terminate its entire business for any reason, even antiunion
animus, and that such action will not constitute an unfair labor practice.
The Court observed that the Act prohibits the discriminatory use of
economic weapons for the purposes of obtaining future benefits. Thus,
because an employer who undertakes a “bona fide” complete liquida-
tion of a business in response to collective activity does not stand to
gain any benefit from the resulting discouragement of such activity,
that action is not the type of discrimination prohibited by the Act. Id. at
272. The Court was careful to distinguish other employer actions
aimed at obtaining some future benefit – for example, “runaway shop”
and “temporary closing” cases. Id. at 272–273, 275. The Court ob-
served that a permanent partial closing would be unlawful if intended
HAWAIIAN DREDGING CONSTRUCTION CO. 5
B. Alternatively, as argued by the General Counsel,
the Respondent’s discharge of all of its Boilermakers-
represented employees was unlawful under NLRB v.
Great Dane Trailers, supra, 388 U.S. 26. As previously
stated, if an employer’s conduct is “inherently destruc-
tive” of important employee rights, no proof of discrimi-
natory motive is needed and the Board can find a viola-
tion even if the employer introduces evidence of a busi-
ness justification.9 Id. at 34. Conduct is deemed to be
“inherently destructive” if it “would inevitably hinder
future bargaining or create visible and continuing obsta-
cles to the future exercise of employee rights.” D & S
Leasing, 299 NLRB 658, 661 (1990), enfd. sub nom.
NLRB v. Centra, Inc., 954 F.2d 366 (6th Cir. 1994), cert.
denied 513 U.S. 983 (1994) (internal quotations omitted).
The Board has applied the “inherently destructive”
standard to similar situations where an employer dis-
charges all employees of a particular craft because of
their affiliation with and referral from a union. For ex-
ample, in Catalytic Industrial Maintenance (CIMCO),
301 NLRB 342 (1991), enfd. 964 F.2d 513 (5th Cir.
1992), the Board found that the employer violated Sec-
tion 8(a)(3) by discharging all of its electricians after the
union that had referred them ended its 8(f) relationship
with the employer. Similarly, in Jack Welsh Co., 284
NLRB 378 (1987), the Board found a violation where the
employer discharged employees after the expiration of its
8(f) contract and replaced them with unrepresented em-
ployees. Both decisions found that specific evidence of
antiunion motivation was unnecessary because the dis-
charges were inherently destructive of employee rights.
CIMCO, 301 NLRB at 347 fn. 17; Jack Welsh, 284
NLRB at 383 fn. 10.
Applying those principles, we find that the Respond-
ent’s discharge of its Boilermakers-represented employ-
ees was inherently destructive of their right to member-
ship in the union of their choosing, unencumbered by the
threat of adverse employment action. As discussed
above, it is clear from the facts that the Respondent, as in
CIMCO and Jack Welsh, discharged the alleged

to discourage union activity among employees in the employer’s re-
maining operations. Id. at 274–275.
The Board and courts have consistently recognized that the Court’s
logic is limited to permanent closings and has no applicability to sus-
pensions of operations that are merely temporary. See, e.g., Plaza
Properties of Michigan, Inc., 340 NLRB 983, 987 (2003); Bruce Dun-
can Co. v. NLRB, 590 F.2d 1304, 1307 (4th Cir. 1979); NLRB v. South-
ern Plasma Corp., 626 F.2d 1287, 1292 (5th Cir. 1980); see also Flat
Dog Productions, 347 NLRB 1180, 1196 (2006). We are aware of no
decision applying Darlington to facts like those presented here.
9 For the reasons already discussed regarding the inapplicability of
Darlington to the Respondent’s temporary partial shutdown, we reject
the dissent’s argument that the “inherently destructive” theory is fore-
closed by Darlington.
discriminatees because of their affiliation with the Boil-
ermakers.
In declining to find the Respondent’s conduct inherent-
ly destructive, the judge distinguished CIMCO and Jack
Welsh as involving employers that sought to replace their
employees with a nonunion work force. Here, the judge
reasoned, the Respondent never intended to become a
nonunion shop and, in fact, ultimately informed the al-
leged discriminatees that they could return to work
through a referral from the Pipefitters. The judge’s rea-
soning is flawed in two respects. First, discrimination on
the basis of affiliation with one union instead of another
is no less violative of Section 8(a)(3), than discrimination
on the basis of union membership in general . The cases
are legion that both forms of discrimination have the
tendency to discourage or encourage union membership,
and are therefore unlawful.10
Second, the judge’s reliance on the Respondent’s sub-
sequent offer to allow the alleged discriminatees to return
to work if they obtained a referral from the Pipefitters is
misplaced. As in CIMCO, where the employer offered
reemployment to its former union-represented employees
after it hired a “core complement” of nonunion employ-
ees, the Respondent’s offer does not undo the impact of
the discriminatory discharges. CIMCO, supra, 301
NLRB at 346. Although the judge found that the Re-
spondent “acted quickly” and “prioritized the continued
employment” of the alleged discriminatees once it re-
sumed operations on March 1, when the Pipefitters made
its first dispatch under the new agreement, not one of the
alleged discriminatees was among the employees initially
dispatched by the Pipefitters. In fact, although six of the
alleged discriminatees had registered with the Pipefitters
as soon as February 25, it was not until March 22 that the
first was actually dispatched to the Respondent—3
weeks after operations resumed and the first Pipefitters
members were dispatched. Accordingly, the Respond-
ent’s conduct harmed the alleged discriminatees by de-
laying their ability to promptly return to work once the
Respondent resumed its operations.11

10 See, e.g., Matros Automated Electrical Construction Corp., 353
NLRB 569, 572–573 (2008) (discrimination against employees because
of their support of one union over another violated Sec. 8(a)(1) and
(3)), enfd. 366 Fed. Appx. 184 (2d Cir. 2010); APF Carting, Inc., 336
NLRB 73 (2001) (same), enfd. 60 Fed. Appx. 832 (D.C. Cir. 2003).
11 Similarly, we are not persuaded by the dissent’s attempt to distin-
guish CIMCO on the basis that the Boilermakers never informed the
Respondent that it would permit its members to continue working with-
out a collective-bargaining agreement. In CIMCO, the fact that the
union told the employer that it would permit its members to continue
working after termination of the bargaining relationship was significant
because it undercut the employer’s defense that it believed hiring non-
union employees was necessary to ensure a continuous work force.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
We also reject the dissent’s assertion that the
discriminatees would have been in a similar position
even if they had been continuously employed or laid off
during the temporary shutdown rather than terminated. It
reasons that after the Respondent reached a new agree-
ment with the Pipefitters, the discriminatees would have
had to withdraw from the Boilermakers and seek referral
from the Pipefitters in order to “return” to work. To the
contrary, under Section 8(f)(2), when an employer termi-
nates its 8(f) relationship with one union and enters into
an 8(f) relationship with another union, the employees
who were referred by the first union are entitled to a 7-
day grace period to decide whether to join the new union
in order to retain their jobs. See George C. Foss Co.,
270 NLRB 232, 232 (1984), enfd. 752 F.2d 1407 (9th
Cir. 1985). Meanwhile, the new union cannot require
that the employees be terminated and be put through its
own referral process. Austin & Wolfe Refrigeration, 202
NLRB 135, 135 (1973). In other words, if, instead of
discharging them, the Respondent had continuously em-
ployed the discriminatees when it temporarily ceased
operations, they would have been able to promptly return
to work once operations resumed rather than seek referral
anew and await dispatch through the Pipefitters.12
Further, the fact that the discriminatees would have
had to choose between membership in either the Boiler-
makers or the Pipefitters at the end of the statutory grace
period regardless of whether they were discharged does
not undercut our finding that the discharges were inher-
ently destructive. The dissent’s view that the Respond-
ent’s actions were “inherently neutral” with regard to the
discriminatees’ right to membership in a union of their
choosing ignores the signal fact that they were dis-
charged and lost several weeks of employment merely
because they were members of the Boilermakers.
Having concluded that the Respondent engaged in
conduct that was “inherently destructive” of the alleged
discriminatees’ Section 7 rights, we turn to the next step
in the Great Dane analysis and examine whether the Re-
spondent’s asserted business justification is sufficient to

Here, by contrast, the Respondent asserted no basis for doubting the
discriminatees’ willingness to continue working.
12 The dissent quotes the Pipefitters agreement, which requires the
Respondent to “secure all employees covered by this agreement
through the employment office of the union.” It contends that if “se-
cure all employees” includes recalling them from layoff, then even if
the Respondent had laid off the welders rather than terminating them, it
could not have recalled any Boilermakers-represented welders—even
within the 7-day grace period—without breaching the Pipefitters
agreement. This argument is at odds with the Respondent’s own inter-
pretation of the agreement; the Respondent denies that the Pipefitters
required the discharged employees to cease being Boilermakers mem-
bers or to join the Pipefitters before expiration of the 7-day grace peri-
od. (See R. Ans. Br. at 33–34.)
outweigh the destructive impact of the discharges.13 We
find that it is not. As we have already noted, the record
does not support the Respondent’s contention that it re-
quires that all of its craft work be performed under col-
lective-bargaining agreements. Even assuming, however,
that the Respondent discharged the alleged
discriminatees because there was no collective-
bargaining agreement in place, we would still find that
this justification did not outweigh the harm done to the
employees on account of their union affiliation.
As the dissent correctly notes, the Respondent’s termi-
nation of its relationship with the Boilermakers freed it
of any “contractual obligation regarding the appropriate
treatment of [its] employees” (emphasis supplied). It did
not, however, extinguish the Respondent’s statutory ob-
ligation to refrain from engaging in discriminatory treat-
ment of its employees. To be clear, we do not dispute
the importance of an employer’s interest in operational
stability and predictability, and the Respondent’s lawful
repudiation of its 8(f) relationship with the Boilermakers
freed the Respondent of its commitment to continue to
seek referrals from that union. We also recognize the
Respondent’s right to exercise its managerial prerogative
to cease operations temporarily. We disagree, however,
that these interests justified the summary discharge of the
employees who had already been referred from the Boil-
ermakers and who were working for the Respondent
when the 8(f) relationship ended. Put otherwise, after the
Respondent ended its relationship with the Boilermakers
on February 17, it was free to temporarily halt its opera-
tions while it negotiated a new 8(f) agreement with an-
other union. And, the Respondent was free to lay off the
alleged discriminatees during this period, so long as they
remained employees with an expectation of recall, there-
by allowing them to return once operations resumed.
Thereafter, at the end of the statutory 7-day grace period,
the Respondent and the Pipefitters were free to require
the alleged discriminatees, as a condition of continued
employment, to meet the Pipefitters’ criteria for referral
and become dues-paying members. What the Respond-
ent could not do, however, was sever its employment
relationship with the alleged discriminatees on account
of their Boilermakers’ membership.
For the reasons discussed, we conclude that the Re-
spondent’s discharge of its 13 Boilermakers-represented

13 “[E]ven if the employer does come forward with counter explana-
tions for his conduct in this situation, the Board may nevertheless draw
an inference of improper motive from the conduct itself and exercise its
duty to strike the proper balance between the asserted business justifi-
cations and the invasion of employee rights in light of the Act and its
policy.” NLRB v. Great Dane Trailers, supra, 388 U.S. at 33.
HAWAIIAN DREDGING CONSTRUCTION CO. 7
employees upon the repudiation of its 8(f) relationship
with that union violated Section 8(a)(3) and (1).14
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers and Helpers, Local
627 is a labor organization within the meaning of Section
2(5) of the Act.
3. The Respondent Employer has violated Section
8(a)(3) and (1) by discharging the following employees:
Kona Akuna, Paul Aona, Crispin Bantoy, Domingo De-
los Reyes, Jeffery Esmeralda, Joseph Galzote, Manuel
Gaoiran, Daniel Marzo Jr., Henry Merrill, Peter
Pagaduan, Joselito Peji, Rolando Tirso, and Kenneth
Valdez.
4. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Specifically, having found that the Respondent violat-
ed Section 8(a)(3) and (1) by discriminatorily discharg-
ing 13 employees, we shall order that each of the affected
employees be offered immediate and full reinstatement to
their former positions, or, if those positions no longer
exist, to substantially equivalent positions without preju-
dice to their seniority or other rights and privileges pre-
viously enjoyed, and make them whole, with interest, for
any loss of earnings and other benefits they may have
suffered as a result of the discrimination against them.
Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest at
the rate prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB No. 8

14 Although we conclude that the Respondent’s conduct was “inher-
ently destructive,” we note that there are no exceptions to the judge’s
finding that the discharges had at least a “comparatively slight” adverse
impact. Indeed, it is clear that the discharge of all employees associat-
ed with a particular union is discriminatory on its face and that this
discrimination has the potential to discourage union membership within
the meaning of Sec. 8(a)(3). We would also find a violation applying
this standard of Great Dane, under which the burden still rests with the
Respondent to establish a “legitimate and substantial business justifica-
tion” for the discharges. Great Dane Trailers, supra, 388 U.S. at 34.
For the reasons discussed above, we find that the Respondent did not
sustain this burden because it has not shown that it was necessary to
discharge, rather than simply lay off, the alleged discriminatees when it
temporarily ceased its welding operations.
(2010). In addition, we shall order the Respondent to
compensate the employees for the adverse tax conse-
quences, if any, of receiving lump-sum backpay awards
and to file a report with the Social Security Administra-
tion allocating the backpay awards to the appropriate
calendar quarters for each employee. Don Chavas, LLC
d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014).
The Respondent additionally shall be ordered to re-
move from its files any references to the unlawful dis-
charges of these employees and to notify them in writing
that this has been done and that the unlawful actions will
not be used against them in any way.
ORDER
The Respondent, Hawaiian Dredging Construction
Company, Inc., Honolulu, Hawaii, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees because of their membership in, activities on
behalf of, or referral from, International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers
and Helpers, Local 627, or any other labor organization.
(b) 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 of this Order, offer Kona Akuna,
Paul Aona, Crispin Bantoy, Domingo Delos Reyes, Jef-
fery Esmeralda, Joseph Galzote, Manuel Gaoiran, Daniel
Marzo, Jr., Henry Merrill, Peter Pagaduan, Joselito Peji,
Rolando Tirso, and Kenneth Valdez immediate and full
reinstatement to their former jobs, or, if their jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or priv-
ileges previously enjoyed.
(b) Make the affected employees whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them in the manner set forth in the
remedy section of this decision.
(c) Compensate the affected employees for the adverse
tax consequences, if any, of receiving lump-sum backpay
awards, and file a report with the Social Security Admin-
istration allocating the backpay awards to the appropriate
calendar quarters.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges,
and within 3 days thereafter, notify the employees in
writing this has been done and that these actions will not
be used against them in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
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
(f) Within 14 days after service by the Subregion, post
at its Honolulu, Hawaii facility copies of the attached
notice marked “Appendix.” Copies of the notice, on
forms provided by the Regional Director for Subregion
37, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es 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, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent 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 Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time during the period beginning on
February 17, 2011.
(g) Within 21 days after service by the Subregion, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Subregion
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. February 9, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting.
I believe this case turns on three black-letter principles
that are clear and well accepted.
 When a “prehire” agreement exists be-
tween a construction industry employer
and a union, the employer has the right,
on or after the agreement’s expiration, to
repudiate the agreement and abandon any
relationship with the union.1
 The same employer, absent a conflicting
agreement, has the right to enter into a
different “pre-hire” agreement with a dif-
ferent union.2
 The Act does not require any employer
to remain in business or to continue any
particular type of work. Every employer
has the right, regardless of motivation
towards the affected employees, to cease
operations and to discharge employees,
provided the same work is not performed
by other employees and there is no pur-
pose to “chill” union activity elsewhere.3
These three principles relate to what the employer did
here. The Respondent, Hawaiian Dredging Construction
Company, had a prehire agreement governing welding
work. After the agreement expired, the Company en-

1 John Deklewa & Sons, Inc., 282 NLRB 1375, 1377–1378 (1987)
(“[U]pon the expiration of [prehire] agreements, the signatory union
will enjoy no presumption of majority status, and either party may
repudiate the 8(f) bargaining relationship.”), enfd. sub nom. Iron Work-
ers Local 3 v. NLRB, 843 F.2d 770 (3d Cir.1988). Prehire agreements
are expressly permitted under Sec. 8(f) of the Act, and they are gov-
erned by special rules—including those established in part by
Deklewa–based on considerations that uniquely pertain to the construc-
tion industry.
2 Sec. 8(f) expressly permits construction industry employers “to
make an agreement” with a construction union regardless of whether
the union has “majority” support among the employees and regardless
of whether the new agreement requires employees to become members
of the new union (subject to certain requirements and qualifications that
have no relevance here). Congress enacted 8(f) in recognition of the
fact that construction industry employers have a unique need to enter
into labor agreements–even before they have employees and regardless
of whether employees support the union–because (i) construction in-
dustry unions, through their hiring halls, are often the source of labor
for those employers, and (ii) prehire agreements enable employers to
have enough information regarding labor costs to formulate bids for
construction work. See Deklewa, 282 NLRB at 1380 (citation omitted).
3 Textile Workers Union v. Darlington Mfg. Co., 380 U.S. 263, 268–
276 (1965) (employer has the “absolute right” to terminate its business
or to implement a “partial closing,” even if motivated by antiunion
animus, provided there is no “purpose to chill unionism” among other
employees). Unlike a complete or partial discontinuation of operations,
a relocation or subcontracting based on antiunion considerations vio-
lates Sec. 8(a)(3), id. at 272–273 and fn. 16, and Federal law also pro-
hibits employers from circumventing obligations under the Act by
transferring work to an alter ego or “disguised continuance” of the
employer, id. at 270 (citing Southport Petroleum Co. v. NLRB, 315 U.S.
100, 106 (1942)). None of the latter types of changes are at issue here.
HAWAIIAN DREDGING CONSTRUCTION CO. 9
tered into a new prehire agreement with a different un-
ion. During the hiatus between the agreements, the em-
ployer discontinued all welding operations, which meant
(no surprise) there was no work for welders. Therefore,
the existing welders were discharged. At the time, no
union agreement was in effect and, accordingly, there
were no applicable contract provisions that imposed any
requirements on the Company concerning permanent or
temporary closings, employment terminations, layoffs, or
recalls. However, there is good news: the welding work
resumed, and the Company contacted its former welders
about obtaining potential employment pursuant to the
new union agreement.4 As to the welding work–the only
work relevant here—no former employees were discrim-
inated against in favor of other employees.
On these facts, the judge found the Respondent en-
gaged in no violation, and she dismissed the complaint.
My colleagues disagree, however, and find that the Re-
spondent violated Section 8(a)(3) by terminating the
former welders during the hiatus between contracts.
I respectfully dissent because the judge’s disposition,
in my view, was correct, and I disagree with my col-
leagues’ finding of a violation, which is irreconcilable
with the three black-letter principles stated above. As
explained below, I believe my colleagues are incorrect in
the following respects.
First, under the Supreme Court decision in Darlington,
the Respondent’s cessation of welding work was lawful
without regard to its motivation, and it had no legal obli-
gation—in the absence of work being performed—to
refrain from employment terminations or layoffs, or to
do one versus the other.
Second, even if motivation is relevant, I believe the
record does not reasonably support any finding of unlaw-
ful motivation. To the extent this case involves dual mo-
tives—which I believe is not established by the record
evidence—Respondent has satisfied its Wright Line bur-
den to prove it would have taken the same actions with-
out regard to any unlawful motivation.5
Third, I believe there is no reasonable justification for
finding a violation on the basis that the Respondent’s
actions were “inherently destructive.” This phrase, most
often associated with the Supreme Court’s Great Dane
decision,6 refers to conduct that—by its nature—carries
with it a necessary inference of unlawful motivation. I

4 Respondent employed 13 welders under its initial prehire agree-
ment who were discharged. It contacted 10 of the welders about poten-
tial reemployment under the Pipefitters’ agreement, 8 of whom regis-
tered with the Pipefitters. There is no allegation that the Respondent
engaged in unlawful discrimination with respect to these arrangements.
5 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
6 NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967).
believe any “inherently destructive” finding is foreclosed
by Darlington. Moreover, as one can gather from the
facts described above, Respondent here did not do any-
thing unlawful, and nothing in the record reasonably
proves that Respondent’s actions were “inherently de-
structive” of protected employee rights.
Facts
Hawaiian Dredging Construction Company, Inc. (“Re-
spondent” or “HDCC”) is the largest general contractor
in the State of Hawaii and the principal power and indus-
trial (“P&I”) contractor in the state. P&I work includes,
for example, building and maintaining electric power
plants and performing industrial mechanical work in wa-
ter treatment plants. The Respondent performs P&I
work through its P&I Division.
The Respondent is not a likely candidate to be en-
meshed in unfair labor practice proceedings before the
Board. For at least 20 years, the Respondent has per-
formed all work requiring craft labor under collective-
bargaining agreements. Consistent with that decades-
long practice, for many years the Respondent’s P&I Di-
vision performed welding work using welders supplied
by the Charging Party, International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers
and Helpers, Local 627 (“Union,” “Boilermakers,” or
“Local 627”), under 8(f) collective-bargaining agree-
ments between the Union and the Association of Boiler-
makers Employers of Hawaii (“Association”), of which
the Respondent was a member. The most recent of these
agreements was effective October 1, 2005 to September
30, 2010 (the “2005–2010 CBA”). The Company’s dec-
ades-old practice of performing craft work only under
collective-bargaining agreements with trade unions is
certainly consistent with the Act, which was enacted in
part to “encourag[e] the practice and procedure of collec-
tive bargaining.”7
The Association and the Union began meeting on Sep-
tember 20, 2010, to negotiate a successor agreement. On
September 30, the Union’s members rejected the Associ-
ation’s offer for a new agreement. In the past, when the
Respondent and one of the unions with which it partners
were unable to conclude a successor agreement by the
expiration date of their current agreement, the Respond-
ent and the union treated the just-expired agreement as
extended until a new agreement was reached. Based on
that practice, the Respondent believed that the 2005–
2010 CBA would be extended by mutual, tacit agreement
while bargaining continued.8 On October 1, the Union

7 Sec. 1 of the Act.
8 William Wilson, the Respondent’s president, relevantly testified as
follows: “I expected, as on several other occasions in recent years and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
gave the Association notice that “[b]ecause recognition is
under Section 8(f), either party is free to . . . take eco-
nomic action or to cease bargaining,” and that its mem-
bers were free to “cease working without any further
notice.” The same day, five Boilermakers-represented
employees showed up at one of the Respondent’s P&I
projects and walked off the job.
On October 8, the Association and the Union formally
agreed to extend the 2005–2010 CBA until October 29,
with any new agreement retroactive to October 1. The
parties continued bargaining and reached an agreement
on or about October 27. The Union’s members ratified
the new contract, and Association Chairman Tom Valen-
tine was informed of that fact.
On November 1, Union Business Representative Gary
Aycock sent an email to Valentine. Aycock attached to
the email “the new Hawaii Wage/Benefit Rates that are
effective October 1, 2010.” The attached document in-
cluded two terms that Valentine believed had not been
discussed or agreed to during the just-concluded negotia-
tions: a “maintenance of benefits” provision adding 50
cents an hour to the Respondent’s Health & Welfare con-
tribution “in the event additional contributions are neces-
sary to maintain the existing level of benefits,” and 29
cents an hour for “MOST” (mobilization optimization
stabilization and training) instead of the 24 cents an hour
Valentine believed had been agreed to. The same day—
November 1—Valentine replied to Aycock’s email, stat-
ing that the parties “did not negotiate these [two] items”
and asking Aycock to “[p]lease remove these items from
the wage schedule.” Aycock did not respond.
Subsequently, Valentine sent Local 627 Business
Manager Meyers a letter dated November 12, enclosing
four copies of a document that Valentine believed accu-
rately reflected the parties’ new collective-bargaining
agreement, which in his view did not include mainte-
nance of benefits and the additional 5-cent contribution
for MOST. Valentine’s letter stated that these items
were “not included in the recently concluded negotia-
tions.” At the hearing, Valentine testified that notwith-

the time I'm familiar with it where agreement was not reached between
the [e]mployer and the [u]nion, that the conditions of the current
agreement continued to be enforced, workers continued to show up to
work and management continued to do that while the bargaining con-
tinued” (Tr. 95–96). Tom Valentine, at the time the Respondent’s
senior project manager and chairman of the Association, operated under
the same expectation. When the Union’s membership rejected the
Respondent’s contract offer on September 30, Valentine spoke by
telephone with Local 627 Business Manager B. Allen Meyers. Meyers
told Valentine that he wanted to return to bargaining immediately, but
Valentine saw no need, since (in his view) the terms and conditions of
the 2005–2010 CBA continued to apply. As Wilson testified, the Re-
spondent’s relationship with the trade unions “[has] been very much a
partnership, a very cooperative arrangement” (Tr. 92).
standing the back-and-forth over maintenance of benefits
and MOST, he believed the parties had an agreement.
Meyers replied to Valentine by letter dated November
17, insisting that the two disputed terms be included, and
setting a deadline of November 30 for Valentine to sign
an agreement that included the disputed terms. The Un-
ion subsequently extended this deadline to December 6.
Meanwhile, the Respondent contracted with Hawaiian
Electric Company (HECO) to perform welding work at
HECO’s Kahe 4 Power Plant during a planned mainte-
nance outage. At its peak, the Kahe 4 project would re-
quire the Respondent to employ approximately 20 weld-
ers assigned to that project. Under the recently conclud-
ed agreement (as under the 2005–2010 CBA), the Re-
spondent was required to obtain welders by referral from
the Union (unless the Union was unable to fulfill a re-
quest within 48 hours, in which case the Respondent was
entitled to “employ applicants from any other available
source”). On Friday, December 3, the Respondent asked
the Union to dispatch a welder to the Kahe 4 project on
Monday, December 6. No welder showed up on Decem-
ber 6, and Valentine learned that Aycock was directing
Boilermakers welders not to report to the Respondent’s
projects.
That same day (December 6), Valentine emailed
Aycock. “I do not understand the reason for this failure
to honor the dispatch,” Valentine wrote. “We have a
disputed contract and our position has always been that
upon resolution the contract would be retroactive to Oc-
tober 1, 2010.” Valentine also reiterated that the Union’s
version of the contract “does not reflect the agreement
from recently concluded contract negotiations.” Valen-
tine informed Aycock that the Respondent intended to
file an unfair labor practice charge. That charge, also
dated December 6, alleged that the Union, on or about
November 17 (the date of Business Manager Meyers’
letter to Valentine), violated Section 8(b)(3) by “refusing
to sign a negotiated agreement and attempting to include
terms in the . . . agreement that were neither discussed
nor negotiated.”
On December 7, the Union failed to honor a dispatch
request for three welders for the Kahe 4 project. On De-
cember 9, the Union dispatched one welder to the Kahe 4
project, but without giving the Respondent advance no-
tice who was coming or when he would arrive, contrary
to the Union’s usual practice.
On December 12, Valentine emailed a status update to
the Respondent’s management team. Valentine informed
the team that the Respondent had submitted 13 dispatch
requests for journeymen welders for the Kahe 4 project,
and that with one exception the Union had failed to hon-
or the dispatch on the date requested. “These delays,”
HAWAIIAN DREDGING CONSTRUCTION CO. 11
Valentine wrote, “have been for at least two days, some
have been for 3 to 4 days and some have not been an-
swered at all.” Valentine stated that the Respondent had
contacted some Boilermakers welders “directly (as per-
mitted by contract if the [U]nion fails to respond to our
dispatch within 48 hours),” and had learned that the Un-
ion had told those individuals “not to report to any
HDCC job or suffer the sanctions from the [U]nion.”9
Valentine expressed concern that HECO “could termi-
nate [the Respondent’s] contract” for the Kahe 4 project
“[i]f the [U]nion continues this practice.”
Meanwhile, welds performed by welders the Union
had dispatched failed HECO’s quality-control testing,
and HECO directed the Respondent to terminate four
Boilermakers welders. In an effort to retain the Kahe 4
project work, the Respondent transferred eight welders
from other projects to the Kahe 4 project and shut down
those other projects. The transfers were insufficient to
offset the manpower shortages caused by the Union’s
sporadic and untimely referrals, and HECO reassigned
the Kahe 4 project work to another contractor. On De-
cember 20, Valentine reported these developments to
Aycock, reminding Aycock that for the past several years
HECO had provided “the overwhelming majority of
[B]oilermaker work in Hawaii,” and expressing concern
that the Union’s untimely dispatches and the poor per-
formance of the welders it referred “are causing HECO
to reevaluate its . . . relationship with HDCC and the
[B]oilermakers.” Valentine asked the Union to explain
“how [it] will correct these immediate problems.” The
Union did not respond.
On February 14, 2011, the Region dismissed the Re-
spondent’s 8(b)(3) charge, finding that the parties “did
not reach a complete agreement on terms and conditions
of employment.” By letter dated February 17, Valentine
notified the Union that the Respondent was terminating
their relationship. The same day, the Respondent dis-
charged its 13 remaining welders and ceased performing
all welding work.10

9 I take administrative notice that art. 17.1.20 of the Constitution of
the International Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers provides that “[n]o member shall
accept employment with a nonunion contractor without prior written
approval by the Business Manager or where there is no Business Man-
ager, by the President of the Local Lodge having the jurisdiction over
the territory.” Under art. 17.5.1, the penalties for violating art. 17.1.20
include reprimand, fine, suspension, and expulsion. I infer that these
are the “sanctions” Valentine referred to in his December 12 email.See
https://www.boilermakers.org/files/leadership/2011_IBB_Constitution.
pdf (last visited June 30, 2014).
10 The judge characterized these as layoffs. I agree with my col-
leagues that the employees were discharged.
On or about February 19,11 Valentine, Respondent’s
vice president, Dan Guinaugh, and its in-house counsel
Gary Yokoyama met with representatives of the Plumb-
ers and Pipefitters Union, Local 675 (Pipefitters) to dis-
cuss a possible agreement. Guinaugh asked the Pipefit-
ters if they “would take our former Boilermaker employ-
ees as Pipefitters” (Tr. 223)—i.e., if the Pipefitters would
dispense with their usual requirements and refer the for-
mer employees back to the Respondent. The Pipefitters
refused to do so for two reasons. First, the parties were
contemplating that HDCC would become signatory to
the Pipefitters multiemployer agreement covering ap-
proximately 60 contractors, and that contract contained a
“most favored nations” clause. Under that clause, the
Pipefitters would have to extend to all signatory employ-
ers any special consideration in referrals given to the
Respondent, and it was unwilling to do so. Second, the
Pipefitters wanted to ensure that HDCC’s former em-
ployees possessed the necessary skills to work for any of
their signatory employers, and therefore they were un-
willing to waive the welding test required of all prospec-
tive registrants in its hiring hall. Guinaugh offered to
give the Pipefitters a list of names of the former employ-
ees. The Pipefitters declined, saying that they could not
solicit membership of another union’s members.
On February 23, the Respondent and the Pipefitters
met again. Bill Wilson, HDCC’s president, attended this
meeting, and he repeated Guinaugh’s request from the
first meeting, asking the Pipefitters to take HDCC’s for-
mer employees unconditionally. The Pipefitters again
declined to do so. During this meeting, the Respondent
became signatory to the Pipefitters multiemployer
agreement. That agreement contained an exclusive refer-
ral provision, which required the Respondent to “secure
all employees covered by this agreement” by referral
from the Pipefitters’ hiring hall (unless the Pipefitters
could not supply the Respondent’s needs within three
working days of the request).12 The Pipefitters agree-

11 The precise date of the first meeting between the Respondent and
the Pipefitters is uncertain. Valentine testified as follows: “Q. And
how much before this February 23rd meeting was the previous
meeting? A. Just a few days. It was after we had sent the termi-
nation letter to the Boilermakers and it was in that time frame. I
know it was a couple days after that and a few days before this. I
don't remember precisely the date. Q. So it was sometime be-
tween February 17th and February 23rd? A. Yes.” (Tr. 222.)
12 Pipefitters Agreement, Exh. “A”: Referral Procedure, sec. 3 (R.
Exh. 22 at Bates No. HDCC 000517): “The individual employer must
secure all employees covered by this agreement through the employ-
ment office of the union except as provided in Section 11 herein be-
low.” Sec. 11 (R. Exh. 22 at Bates No. HDCC 000518) provides that
“[i]n the event that the Union does not dispatch any applicants within
three (3) working days following the day of the request of the individu-
al employer . . . , the individual employer may employ any person . . . .”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
ment also contained a union-security provision.13 The
Respondent promptly notified its former employees that
they could return to the Respondent through the Pipefit-
ters if they chose to14 and if they met the Pipefitters’ re-
ferral requirements. The Respondent provided its former
employees a warehouse where they could practice in
preparation for the Pipefitters’ welding test. The Re-
spondent furnished the necessary tools, equipment, raw
materials, and welding rods, and also provided coaching.
Several former employees took advantage of the Re-
spondent’s offer. At the time, the Pipefitters’ “bench”
was empty: anyone who met the Pipefitters’ qualifica-
tions and signed the out-of-work list would have been
dispatched. By February 25, 6 of the Respondent’s 13
former employees had registered with the Pipefitters; by
May 12, 8 had registered.
On March 1, the Pipefitters dispatched the first welder
to the Respondent under the parties’ newly concluded
agreement, and the Respondent resumed performing
welding work. Between February 17, when it terminated
its 8(f) bargaining relationship with the Boilermakers,
and March 1, when it obtained its first welder referred
under the Pipefitters agreement, the Respondent per-
formed no welding work.
Discussion
The General Counsel alleged that the Respondent vio-
lated Section 8(a)(3) when it discharged its Boilermak-
ers-represented welders. The judge dismissed the com-
plaint. Analyzing the allegation under Great Dane
Trailers,15 the judge found that (i) the discharges were
not “inherently destructive” of employee rights; and (ii)
the discharges had a “comparatively slight” adverse ef-
fect on employee rights, the Respondent established a
legitimate and substantial business justification for the
discharges—the absence of an agreement with the Boil-
ermakers and HDCC’s decades-long practice of perform-
ing all craft work solely under collective-bargaining
agreements—and the General Counsel did not prove an

13 Pipefitters Agreement, art. III, sec. 7 (R. Exh. 22 at Bates No.
HDCC 000492): “The employer shall require each employee covered
by this agreement to become and remain a member of the union as a
condition of employment from and after the 8th day following the date
of his/her employment or the effective date of this agreement, whichev-
er is later.”
14 Valentine testified that he told former employees that “this was a
decision you need to make, you know, what you believe is best for you,
but these are the options available” (Tr. 226). Most of the former em-
ployees were contacted by Valentine’s subordinate, Superintendent
Forrest Ramey (Tr. 274–276). Ramey told them that he “didn’t know
exactly what the process was or what hurdles they would have to
cross, but that there was a path and that if they were interested in
returning, they needed to start down it” (Tr. 275).
15 388 U.S. at 26.
antiunion motive.16 Alternatively, under Wright Line, the
judge assumed the General Counsel met his initial bur-
den and found that the Respondent would have dis-
charged the Boilermakers-represented welders regardless
of any antiunion motive based on that same longstanding
practice.
My colleagues reverse the judge’s decision. They find
that the Respondent violated Section 8(a)(3) under both
Wright Line and Great Dane Trailers. I would find
Wright Line inapplicable for two reasons. First, this case
involves a cessation of work that was lawful under Dar-
lington and similar cases without regard to the Respond-
ent’s motivation towards the alleged discriminatees, and
Respondent’s employees were not discriminated against
in favor of any other individuals. Second, Wright Line
articulates a burden-shifting approach that applies in du-
al-motive (sometimes called “mixed motive”) situations,
and the record here reasonably supports no motive other
than what the Respondent articulated: it wanted to have
an applicable prehire agreement before proceeding with
welding work, and the cessation of welding work–absent
such an agreement–resulted in the disputed employment
terminations.
Even assuming Wright Line applies, and further as-
suming (as did the judge) that the General Counsel met
his initial burden under Wright Line, I would find that the
record establishes that Respondent satisfied its burden
under Wright Line—i.e., to prove it would have taken the
same actions in the absence of any antiunion motivation.
Finally, I would find no violation notwithstanding my
colleagues “inherently destructive” characterization in
reliance on Great Dane. My reasons follow.
A. Respondent’s Actions Were Lawful Under the Su-
preme Court’s Darlington Decision
In Darlington, the Supreme Court considered two
types of employer actions. First, the Court held that
“when an employer closes his entire business, even if the
liquidation is motivated by vindictiveness toward the
union, such action is not an unfair labor practice.”17 Se-
cond, the Court held that a “partial closing”—where oth-
er parts of the business continue operating—was also
lawful, even if caused by antiunion considerations, un-
less the record shows (a) the partial closing was “moti-
vated by a purpose to chill unionism” among other em-
ployees, and (b) “the employer may reasonably have
foreseen that such closing would likely have that ef-
fect.”18

16 As my colleagues note, the judge misstated the Great Dane
framework. I agree with their correction.
17 380 U.S. at 273–274.
18 Id. at 275.
HAWAIIAN DREDGING CONSTRUCTION CO. 13
The Darlington decision was applied by the Board in
A. C. Rochat Co.,19 where the employer shut down its
sheet metal installation operations for antiunion reasons,
resulting in the layoff of 17 employees, but continued the
sale of air-conditioning and refrigeration equip-
ment.20The Board indicated that the discontinued instal-
lation services “were unquestionably important to its
sales activities, and vice versa,” and the evidence also
showed that, following the antiunion curtailment of sheet
metal installation, the employer “restricted its sales to
transactions that would not require [sheet metal] installa-
tion.”21 The Board held that Darlington compelled a
finding that these actions by the Respondent were lawful.
The Board found the record did not support a conclusion
that the employer had a purpose of discouraging union
activity among remaining employees.
The Board also applied Darlington in Purolator Ar-
mored, Inc.,22 where the employer was engaged in ar-
mored car and related services, including a “coin room
operation” where change bags were prepared in response
to customer orders.23 After the coin room employees
voted to be union-represented (by a near-unanimous
vote), the employer shut down the coin room for anti-
union reasons while continuing its other operations.24
Significantly, the judge analyzed the cessation of “coin
room” operations under Wright Line (the judge reasoned
that the case presented “dual-motive considerations”)25
and under Darlington.26 The judge found that the cessa-
tion of “coin room” operations violated Section 8(a)(3)
under both types of analysis.
Significantly, the judge in Purolator concluded that
each analysis was “valid and independent of the other,”
and he stated: “The Wright Line theory is, in my view, an

19 163 NLRB 421 (1967).
20 Although the displaced employees in A. C. Rochat were described
as being “laid off,” the Board did not differentiate between layoffs and
employment terminations. However, the Board’s decision makes clear
that the employees were not regarded as having any expectation of
recall because the discontinuation of sheet metal operations was de-
scribed as “permanent,” and the employer went so far as to restrict its
remaining operations so they would not require sheet metal installation.
Id. at 422.
21 Id.
22 268 NLRB 1268 (1984), enfd. 764 F.2d 1423 (11th Cir. 1985).
23 Id. at 1271.
24 Id. at 1273–1275.
25 Id. at 1280.
26 The judge rendered an initial decision based exclusively on a
Wright Line “dual motive” analysis, and the Board remanded the case
for further consideration as to the applicability of Darlington. The
Board’s remand in Purolator was unpublished, but it is referenced in
the Board’s subsequent opinion, 268 NLRB at 1268 fn. 3, and in the
judge’s “supplemental decision on remand,” id. at 1287–1291, which
appears following his initial opinion, id. at 1270–1287.
alternative theory of violation to Darlington.”27 This
position was squarely rejected by the Board, which held
that the cessation of “coin room” operations—while the
remainder of the business remained ongoing—could be
held unlawful only pursuant to Darlington. Thus, the
Board stated:
The judge determined that the two analyses of the case
[under Wright Line and Darlington] stood independent
of each other, and either view of the case was valid.
We do not agree. Thus, to be a violation under Dar-
lington, a partial closing must not only be discriminato-
ry, but must be motivated by a desire to chill unionism
of an employer's other employees, and it must be rea-
sonably foreseeable that the closing will have that
chilling effect.28
It is undisputed here that the Respondent entirely
ceased its welding operations at a time when there was
no applicable prehire agreement: the Boilermakers’
agreement had expired, and Respondent had not yet en-
tered into its new Pipefitters’ agreement. The welding
work was not relocated, contracted out, or performed by
someone employed by a different entity. There is no
evidence that Respondent benefited from the temporary
nature of its cessation of welding operations.29 Nor is
there any doubt that the terminated Boilermakers were
displaced because of the cessation of welding operations.
During the posttermination period (until Respondent re-
sumed welding operations under the Pipefitters’ agree-
ment), there was no work for welders to do.
In these circumstances, the Supreme Court’s decision
in Darlington requires a conclusion that Respondent had
the right to cease welding operations, regardless of moti-
vation, while the remainder of its business remained on-
going, absent evidence that Respondent had the “pur-
pose” of chilling union activity among other employees.
Because the record provides no support for such a pur-
pose, I believe this precludes a finding that Respondent’s
actions violated the Act.

27 Id. at 1290 fn. 1.
28 Id. at 1268 fn. 3 (emphasis added).
29 Thus, there is no evidence that Respondent temporarily ceased op-
erations so that “employees, by renouncing the union, could cause the
plant to reopen.” Darlington, 380 U.S. at 273. Indeed, as noted in the
introduction, the Respondent as a construction employer had the abso-
lute right, under Deklewa, to abandon its Boilermakers’ relationship
and to enter into a new prehire agreement with the Pipefitters, without
regard to employee sentiments regarding either union. Respondent’s
prior employees were not employed when Respondent resumed weld-
ing operations, but these arrangements are not alleged to be unlawful.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
B. Respondent’s Conduct Does Not Involve Dual Motives
Subject to Scrutiny Under Wright Line
Even if Wright Line were otherwise applicable here, it
applies only in dual-motive cases, and this is not a dual-
motive case.30 The record establishes that Respondent
discharged the Boilermakers-represented welders for one
reason and one reason only: it performs craft work, such
as welding, solely under collective-bargaining agree-
ments. Thus, when the Region determined that the Re-
spondent and the Boilermakers had failed to reach
agreement on a successor 8(f) contract, the Respondent
repudiated its bargaining relationship with the Boiler-
makers (as it was entitled to do under Deklewa31), ceased
performing all work requiring craft labor supplied by the
Boilermakers (in keeping with its longstanding practice),
and terminated the employment of its Boilermakers-
represented employees (who had no work to do). The
Respondent’s decades-old practice of performing craft
work with employees referred by its trade-union partners
under collective-bargaining agreements was the one and
only reason for the discharges, and a dual-motive analy-
sis does not apply.
C. Respondent’s Conduct Was Not Unlawful Even if
Wright Line Applies
But even assuming Wright Line applies, and further as-
suming that the General Counsel met his initial burden,32
the Respondent established its affirmative defense—
again, by showing that it discharged its Boilermakers-
represented employees based on its longstanding practice
of performing craft work under collective-bargaining
agreements. My colleagues find that the Respondent
failed to establish this defense because they believe it did
not adhere to this practice with perfect consistency.

30 That explains why, as the judge noted, “[n]either the Acting Gen-
eral Counsel nor the Union argued that this case should be decided
under . . . Wright Line.”
31 282 NLRB at 1377–1378 (holding that upon the expiration of an
8(f) agreement, “the signatory union will enjoy no presumption of
majority status, and either party may repudiate the 8(f) bargaining
relationship”).
32 In assuming for argument’s sake that the General Counsel met his
initial burden under Wright Line, I note that the Respondent’s actions
clearly show that it did not harbor animus towards its welders because
of their affiliation with the Boilermakers. The Respondent twice re-
quested that the Pipefitters accept those individuals without requiring
them to meet the Pipefitters’ referral requirements. When the Pipefit-
ters refused to do so, the Respondent contacted the former employees,
told them what they would have to do to register with the Pipefitters,
and provided a facility and materials so that they could practice for the
Pipefitters’ welding test. In short, the Respondent made every effort to
enable its former employees to be referred back to its employ if they so
chose. At the same time, by discharging them, it left them free to
choose to remain Boilermakers, which they could not have done had
they remained employed by the Respondent. See infra.
They cite two instances of nonadherence. They are in-
correct on both counts.
First, my colleagues contend that the Respondent
failed to adhere to its policy between October 30 and
November 12. To the contrary, Tom Valentine, Re-
spondent’s senior project manager and Association
chairman, reasonably believed that a new collective-
bargaining agreement had been concluded prior to No-
vember 1. On a date the record fails to pin down with
exactitude, but sometime before November 1, Valentine
was informed that the parties had reached an agreement
and that the Union’s membership had ratified it. Moreo-
ver, the record shows that as of November 1, the Union
also believed that a new agreement had been reached.
On November 1, Boilermakers Business Representative
Gary Aycock sent Valentine an email attaching what
Aycock called “the new Hawaii Wage/Benefit Rates that
are effective October 1, 2010.” Since the parties’ Octo-
ber 8 agreement formally extending the 2005–2010 CBA
until October 29 provided that any successor agreement
“[would] be paid retroactive to the expiration (September
30, 2010) of the current Hawaii Articles of Agreement”
(GC Exh. 3), the only basis for Aycock to assert that new
wage and benefit rates were in effect retroactive to Octo-
ber 1 was his belief that a successor agreement had been
reached and ratified. Valentine’s reply to Aycock’s
email, also dated November 1, reaffirms his reciprocal
belief that the parties had reached an agreement. In that
reply, Valentine disputed two items Aycock included in
the “Wage/Benefit Rates” on the ground that they “were
not discussed and are not included in the agreement.”
Although the parties continued to disagree whether those
two terms were or were not part of the agreement, Valen-
tine testified that he believed the parties had an agree-
ment. As shown, that belief was formed prior to No-
vember 1.
Second, my colleagues point to the period from Octo-
ber 1 to October 7—i.e., from the day after the 2005–
2010 CBA expired to the day before the parties formally
agreed to extend the 2005–2010 CBA through October
29—as another period during which the Respondent
failed to adhere to its practice of performing craft work
only with a collective-bargaining agreement in place.
Here, I believe my colleagues fail to appreciate the na-
ture of the Respondent’s collective-bargaining relation-
ships, which historically had been “very cooperative,” in
the words of HDCC President Wilson. The evidence
shows that in practice, the Respondent and the unions
with which it partners have treated hiatus periods be-
tween 8(f) contracts as contract extensions. Thus, Wil-
son testified that when September 30, 2010, arrived and a
successor agreement had not yet been reached,
HAWAIIAN DREDGING CONSTRUCTION CO. 15
I expected, as on several other occasions in recent
years and the time I’m familiar with it where agree-
ment was not reached between the [e]mployer and the
[u]nion, that the conditions of the current agreement
continued to be enforced, workers continued to show
up to work and management continued to do that while
the bargaining continued. And so my expectation was
that bargaining would continue, but the idea that they
would not work or potentially not work as subsequently
occurred, I did not expect.
(Tr. 95–96 (emphasis added).) Wilson refers to just-expired
agreements as “current” agreements, with which both par-
ties continued to comply while bargaining progressed. Val-
entine’s response to Local 627 Business Manager Meyers
on September 30 reflects the same expectation. That even-
ing, Meyers telephoned Valentine to inform him that the
membership had rejected the Respondent’s latest offer.
Meyers wanted to resume bargaining immediately, but Val-
entine told him that he did not think that was necessary
since (in his view) the terms and conditions of the
2005–2010 CBA continued to apply (Tr. 193–194).
Thus, from the Respondent’s perspective, during hiatus
periods (such as the period from October 1 to October 7), it
was adhering to its practice of performing craft work only
under collective-bargaining agreements because it deemed
those agreements extended during such periods by tacit
agreement.33
In sum, the Respondent’s practice, to which it consist-
ently adhered, was to perform all craft work under col-
lective-bargaining agreements. Between October 1, 2010
and February 14, 2011, the Respondent continued to per-
form welding work using Boilermakers-represented
welders (when it could get them), believing that (a) the
2005–2010 CBA continued to apply in keeping with past

33 Even assuming there was a brief gap of less than a week in Re-
spondent’s decades-long practice of performing all craft work under
collective-bargaining agreements, I believe this cannot reasonably be
regarded as defeating Respondent’s Wright Line defense. Under the
majority’s view, the only way the Respondent could establish a valid
Wright Line defense would have been to immediately cease all welding
work the very moment the 2005–2010 CBA expired, but this would
have been contrary to Respondent’s long history of bridging such hiatus
periods cooperatively. In this respect, not only does my colleagues’
position sacrifice common sense on the altar of the law, it would clearly
undermine labor relations stability–one of the core principles the Board
is charged with preserving under the Act–to suggest that the Respond-
ent here could have acted lawfully only by (i) immediately discontinu-
ing all welding work based on a CBA hiatus of less than one week, and
(ii) disregarding Respondent’s long history of informal cooperation in
dealings with the Boilermakers and multiple other trade unions. Col-
gate-Palmolive-Peet Co. v. NLRB, 338 U.S. 355, 362–363 (1949) (“To
achieve stability of labor relations was the primary objective of Con-
gress in enacting the National Labor Relations Act”); NLRB v. Appleton
Electric Co., 296 F.2d 202, 206 (7th Cir. 1961) (a “basic policy of the
Act [is] to achieve stability of labor relations”).
practice during hiatus periods (October 1–7), or (b) the
2005–2010 CBA continued to apply under the parties’
October 8 extension agreement (October 8–29), or (c) a
successor agreement was in place, notwithstanding dif-
ferences of opinion concerning two items (on or about
October 30 forward). On February 14, 2011, the Region
found that the parties had not reached a successor agree-
ment. On February 17, in keeping with its consistent
practice of performing craft work solely under collective-
bargaining agreements, the Respondent ceased perform-
ing all Boilermakers-craft work and discharged its re-
maining Boilermakers-represented employees, who had
no work to do. Even assuming, as my colleagues find,
that the General Counsel met his initial burden under
Wright Line with respect to the discharges, the Respond-
ent has established its affirmative defense under Wright
Line by showing that those employees would have been
discharged in any event based on the Respondent’s dec-
ades-long practice of performing all craft work under
collective-bargaining agreements.
D. Respondent’s Conduct Was Not “Inherently Destruc-
tive” Under Great Dane
I also disagree with my colleagues’ alternative finding
that the discharge of the Boilermakers-represented weld-
ers was “inherently destructive” of employee rights.
Specifically, they find that the discharge was “inherently
destructive of their right to membership in the union of
their choosing.” They acknowledge, however, that the
Respondent would have acted lawfully had it laid off
those employees instead. But the truth is, a lay off would
have impacted their union-membership choice just the
same as the discharge did.
Section 8(a)(3) does not prohibit all types of “discrim-
ination.” Rather, it only prohibits “discrimination . . . to
encourage or discourage membership in any labor or-
ganization.” See also NLRB v. Radio Officers (A.H. Bull
S.S. Co.), 347 U.S. 17, 43 (1954) (Sec. 8(a)(3) does not
“outlaw discrimination in employment as such; only such
discrimination as encourages or discourages member-
ship in a labor organization is proscribed” (emphasis
added).). Although a motive to discourage membership
in a labor organization must be proven in every case—
usually based on evidence of subjective intent—the Su-
preme Court has held that “[s]ome conduct may by its
very nature contain the implications of the required in-
tent; the natural foreseeable consequences of certain ac-
tion warrant the inference.” NLRB v. Erie Resistor
Corp., 373 U.S. 221, 227 (1963) (quoting NLRB v. Radio
Officers, 347 U.S. at 44) (emphasis added; internal quo-
tation marks omitted). “That is, some conduct carries
with it ‘unavoidable consequences which the employer
not only foresaw but which he must have intended’ and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
thus bears ‘its own indicia of intent.’” NLRB v. Great
Dane Trailers, 388 U.S. at 33 (quoting NLRB v. Erie
Resistor, 373 U.S. at 231) (emphasis added).34
My colleagues acknowledge that the Respondent was
free to suspend welding work on February 17 until it had
reached a new 8(f) agreement with another union, and to
lay off its remaining welders with an expectation of re-
call. The sole remaining question, therefore, is whether
discharging the Boilermakers-represented employees
carried “unavoidable consequences” to the exercise of
the welders’ right to membership in the union of their
choosing that a lay off would have avoided. Only if that
question is answered in the affirmative would it be rea-
sonable to find that the discharge “bears its own indicia
of [an] intent” to discourage union membership.
Against this backdrop, I believe there are two prob-
lems with my colleagues’ finding that Respondent’s con-
duct was “inherently destructive” within the meaning of
Great Dane and the other cases, referenced above, where
the employer’s conduct “by its very nature” violated Sec-
tion 8(a)(3) by encouraging or discouraging membership
in a labor organization.
First, the Supreme Court in Darlington foreclosed reli-
ance on the “inherently destructive” theory in a case such
as this one, where the employer exercised its lawful right
to cease operations. In Darlington, regarding a partial
cessation of operations (where the employer’s actions
would be unlawful only if motivated by discrimination
aimed at “chilling” union activity among remaining em-
ployees), the Supreme Court stated that even the “closing
[of] a plant following the election of a union is not, ab-
sent an inquiry into the employer’s motive, inherently
discriminatory. We are thus not confronted with a situa-
tion where the employer ‘must be held to intend the very
consequences which foreseeably and inescapably flow
from his actions,’ . . . in which the Board could find a
violation of § 8(a)(3) without an examination into mo-
tive.”35 The Supreme Court in Darlington elaborated:

34 The facts of Great Dane Trailers illustrate what the Court meant
by conduct that bears its own indicia of an intent to discourage mem-
bership in a labor organization. There, the employer “refused to pay
striking employees vacation benefits accrued under a terminated collec-
tive bargaining agreement while it announced an intention to pay such
benefits to striker replacements, returning strikers, and nonstrikers who
had been at work on a certain date during the strike.” 388 U.S. at 27.
As the Court observed, “[t]he act of paying accrued benefits to one
group of employees while announcing the extinction of the same bene-
fits for another group of employees who are distinguishable only by
their participation in protected concerted activity surely may have a
discouraging effect on either present or future concerted activity.” Id.
at 32.
35 380 U.S. at 269 fn. 10 (quoting Erie Resistor, 373 U.S. at 228)
(other citations omitted).
It does not suffice to establish the unfair labor practice
charged here to argue that the Darlington closing nec-
essarily had an adverse impact upon unionization in
such other plants. We have heretofore observed that
employer action which has a foreseeable consequence
of discouraging concerted activities generally does not
amount to a violation of §8(a)(3) in the absence of a
showing of motivation which is aimed at achieving the
prohibited effect. . . . In an area which trenches so
closely upon otherwise legitimate employer preroga-
tives, we consider the absence of Board findings on this
score a fatal defect in its decision.36
Second, even if such an inquiry were not precluded
under Darlington, the hallmark characteristic of “inher-
ently destructive” actions—that their “very nature con-
tain the implications of the required intent” because of
their “natural foreseeable consequences”37—cannot be
reasonably associated with Respondent’s conduct. Here,
the potential union sentiments and union affiliation of
Respondent’s welders predictably would have been the
same regardless of whether Respondent laid off the em-
ployees when it ceased welding work subject to recall
(the action my colleagues find the Act required) or ter-
minated those employees (the action that Respondent
actually took).
If employees had been laid off after the Respondent
ceased welding work without a union contract, and after
Respondent abandoned its relationship with the Boiler-
makers, the employees would have had the option of
remaining Boilermakers and accepting referrals from the
Boilermakers’ hiring hall to other employers. Had those
employees been recalled by Respondent when it resumed
doing welding work under its new Pipefitters’ agreement,
the recalled employees would have had to withdraw from
the Boilermakers Union and become members of the
Pipefitters (no later than their eighth day of work). Un-
der article 17.1.20 of the Boilermakers’ constitution,
members are prohibited from working for a nonunion
contractor.38

36 Id. at 276.
37 Erie Resistor, 373 U.S. at 227 (emphasis added; internal quota-
tion omitted).
38 The business manager of the member’s local has authority to
make exceptions, but there is no evidence that Business Manager Mey-
ers would have exercised that authority here, and there is evidence that
he would not have. Union members had already been threatened with
sanctions if they worked for HDCC. As Senior Project Manager Valen-
tine reported to the Respondent’s management team on December 12,
Boilermakers contacted directly by the Respondent—once the contrac-
tual 48-hour waiting period had elapsed—reported that the Union had
ordered them “not to report to any HDCC job or suffer the sanctions
from the [U]nion.” Art. 17.5.1 of the Boilermakers’ constitution spells
out those sanctions, which include fines, suspension, and expulsion.
HAWAIIAN DREDGING CONSTRUCTION CO. 17
Conversely, under the scenario that actually oc-
curred—i.e., after the February 17 discharges of Re-
spondent’s welders—the welders were in precisely the
same position regarding their choice of union affiliation.
Before Respondent resumed doing welding work, the
discharged employees were free to remain members of
the Boilermakers and to accept referrals to other employ-
ers from the Boilermakers’ hiring hall. After Respondent
resumed welding work under its new pre-hire agreement
with the Pipefitters, the former welders could seek work
from Respondent under the Pipefitters’ agreement. Simi-
lar to the options available had they been laid off, accept-
ing Respondent’s work under the Pipefitters’ agreement
would have required the employees to withdraw from the
Boilermakers (to avoid the risk of being fined, suspend-
ed, or expelled under the Boilermakers’ constitution,
described above), register with the Pipefitters so they
could be referred to the Respondent or another signatory
Pipefitters’ contractor from the Pipefitters’ hiring hall
(the record reveals the Pipefitters’ hiring hall “bench”
was empty), and join the Pipefitters no later than the
eighth day of work on their new job.
Either way—whether the employees were laid off or
terminated—they had the same basic choice, which was
either (i) accept a referral to Respondent (under its new
agreement with the Pipefitters) or another signatory Pipe-
fitters’ contractor and join the Pipefitters (no later than
their eighth day of work), or (ii) remain a member of the
Boilermakers and decline such work in favor of potential
referrals to other employers using the Boilermakers’ hir-
ing hall (since Respondent was no longer party to a Boil-
ermakers’ agreement). The “natural foreseeable conse-
quences” that resulted from discharging the welders, in
comparison to the “natural foreseeable consequences”

Moreover, the subsequent Pipefitters agreement, and the resulting
requirement that the welders join the Pipefitters (no later than their
eighth day of work), would have created yet another obstacle to their
continued membership in the Boilermakers. Art. 17.1.4 of the Boiler-
makers’ constitution prohibits members from “[m]aintaining member-
ship in another labor organization that adversely affects the interest of
this International Brotherhood”—and unlike art. 17.1.20, art. 17.1.4
does not authorize the business manager to make exceptions. Given the
overlapping work jurisdictions of the Boilermakers and the Pipefit-
ters—both supply welders to contractors—it is unlikely that member-
ship in the Pipefitters would not be found to adversely affect the inter-
est of the Boilermakers. Moreover, to sign the Pipefitters’ out-of-work
list, the Pipefitters required HDCC’s former employees to withdraw
from the Boilermakers. Tom Caughman, one of the employees HDCC
discharged on February 17, testified that “[p]reviously, back in the
‘90s, to get on the [Pipefitters’] out-of-work list you would give them
$50 and sign a piece or two of papers and then they would dispatch
you. This time things were different. One of the forms you sign, at the
bottom of the form it asks you if you’re a member of another [u]nion,
and then it said words to the effect that you had to get a withdrawal
from the other [u]nion” (Tr. 175).
that would have resulted from laying them off, are iden-
tical.
In my view, only one reasonable conclusion can be
drawn from the foregoing analysis. The discharge of the
welders was not “inherently destructive of their right to
membership in the union of their choosing,” as my col-
leagues would have it. If it was inherently anything, it
was inherently neutral in that regard because under either
option—discharge or layoff—the employees would have
faced the same choice.
It is true that, had the Respondent merely “laid off” the
employees when it ceased performing welding work, it
might have attempted to recall them from layoff without
the need for a referral from the Pipefitters’ hiring hall.
Yet, I believe it is clear that nothing in the Act imposed
such a legal obligation on Respondent. These actions
undisputedly commenced during Respondent’s hiatus
between contracts. During that period, Respondent had
no contractual obligation regarding the appropriate
treatment of employees for whom there was no work
(i.e., whether to implement discharges or layoffs), nor
was there any contractual obligation to recall anyone if
and when welding operations resumed. Certainly, the
Act did not require one course rather than the other. This
is because (i) Respondent had exercised the lawful right
to abandon its Boilermakers’ relationship; and (ii) Sec-
tion 8(d) of the Act prohibits the Board from imposing
substantive contract terms on an employer.39 Moreover,
had the Respondent attempted to “recall” welders repre-
sented by the Boilermakers—when Respondent was par-
ty to its new agreement with the Pipefitters–this would
clearly have breached the Pipefitters agreement. 40 In

39 Sec. 8(d) states that the duty to bargain collectively does not re-
quire a party “to agree to a proposal or require the making of a conces-
sion.” See also H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970), where
the Supreme Court stated: “It is implicit in the entire structure of the
Act that the Board acts to oversee and referee the process of collective
bargaining, leaving the results of the contest to the bargaining strengths
of the parties. . . . The Board's remedial powers under § 10 of the Act
are broad, but they are limited to carrying out the policies of the Act
itself. One of these fundamental policies is freedom of contract. While
the parties' freedom of contract is not absolute under the Act, allowing
the Board to compel agreement when the parties themselves are unable
to agree would violate the fundamental premise on which the Act is
based–private bargaining under governmental supervision of the pro-
cedure alone, without any official compulsion over the actual terms of
the contract.” Id. at 107–108 (footnotes omitted) (emphasis added).
The constraint associated with Sec. 8(d) prevents the Board from im-
posing contract terms regardless of whether, as was the case here, no
agreement is presently in effect.
40 The Pipefitters’ agreement requires the Respondent to “secure all
employees covered by this agreement through the employment office of
the union.” R. Exh. 22 at Bates No. HDCC 000517. As an exception
to this requirement, the Respondent may employ any person “[i]n the
event that the Union does not dispatch any applicants within three (3)
working days following the day of the request of the individual em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
short, the path pursued by Respondent was the only one
in which its former employees could be reemployed by
the Respondent without making Respondent liable for
breaching the Pipefitters’ agreement (which it lawfully
entered into) and without exposing Respondent’s former
employees to the risk of being fined by the Boilermakers
(whose constitution prohibits working for nonsignatory
contractors).
If one examines the situation from a wider perspective,
it is equally apparent that the Respondent’s discharge of
its Boilermakers-represented welders was not inherently
destructive of their rights under the Act. First, the Re-
spondent did not discharge the employees and continue
performing welding work. It ceased performing all such
work, in keeping with its longstanding business practice
of performing craft work only under collective-
bargaining agreements. With no work to perform, the
Respondent had to choose between discharging its weld-
ers and laying them off with an expectation of recall, as
my colleagues acknowledge. Nothing in the Act re-
quired the Respondent to choose one option over the
other. Second, as explained above, the effect on employ-
ees’ exercise of their right to membership in the union of
their choice would have been the same under either op-
tion, layoff or discharge. Thus, it cannot be said that
discharging them carried “unavoidable consequences” to
the exercise of the welders’ right to membership in the
union of their choosing that a lay off would have avoid-
ed, such that the discharge bore “its own indicia of [an]
intent” to discourage union membership. Third, having
lost the Boilermakers as a labor source, the Respondent
needed to secure a new source, and it had already identi-
fied the Pipefitters as an alternative well before February
17, 2011, the discharge date.41 Fourth, the Respondent,
long accustomed to dealing with trade unions, would
naturally assume—as proved true—that the Pipefitters
would insist on an exclusive referral system and union
security, precluding the possibility that the former em-
ployees could have remained in HDCC’s employ as
members of the Boilermakers. Fifth, at its initial meeting

ployer.” Id. at Bates No. HDCC 000518. That is the sole exception.
As my colleagues observe, under Sec. 8(f)(2) the Pipefitters would not
have been able to enforce the union-security clause of the Pipefitters’
agreement against employees recalled from layoff until the eighth day
following their recall. But Sec. 8(f)(2) would not prevent those recalls
from constituting a contract.
41 In a December 12, 2010 e-mail to the Respondent’s management
team, Valentine wrote: “With the current situation and the ongoing
contract problems with the boilermakers I believe it’s time for HDCC
to seriously consider evaluate [sic] if our relationship with the boiler-
makers is the best option moving forward. For the past few years
we’ve noticed that the skill level and professionalism of the boilermak-
ers has been eroding at an alarming rate. With the new contract their
compensation will be on par with pipefitters . . . .” (R. Exh. 15.)
with the Pipefitters on February 18 or 19 and again on
February 23 when it signed an agreement, the Respond-
ent tried to persuade the Pipefitters to accept its former
employees without their having to meet the Pipefitters’
registration requirements. Sixth, when the Pipefitters
refused this request, the Respondent did everything it
reasonably could to help its former employees return to
its employ if they so chose—informing them what they
had to do to register with the Pipefitters, and furnishing a
shop, tools, equipment, and materials necessary for those
workers to prepare for the Pipefitters’ welding test. In
my opinion, one cannot reasonably infer from this course
of conduct an intent to discourage membership in any
labor organization.
To support their finding of a violation under Great
Dane, my colleagues principally rely on two cases:
CIMCO, 301 NLRB 342 (1991), enfd. 964 F.2d 513 (5th
Cir. 1992), and Jack Welsh, 284 NLRB 378 (1987).
Both are clearly distinguishable from the circumstances
presented here.
In CIMCO, the union told the employer that the union
would not object if its members continued to work for
CIMCO after the IBEW withdrew from the GPA agree-
ment, and CIMCO discharged them anyway.42 Here,

42 In CIMCO, the respondent employer, which performed mainte-
nance work at chemical facilities nationwide, was party to a General
Presidents’ Project Maintenance Agreement (the “GPA agreement”)
involving a number of international unions, including the IBEW. The
GPA agreement covered all CIMCO’s maintenance work. Although
the union parties to the GPA agreement were internationals, employees
were referred to CIMCO under the GPA agreement by local unions.
One of CIMCO’s projects involved maintenance work at a Sterling
Chemical plant in Texas. IBEW Local 527 referred electricians to
CIMCO at the Sterling site.
Midway through the Sterling project, the president of the IBEW—
the International—announced that it was withdrawing from the GPA
agreement effective December 31, 1989. Bruce Uffelman, CIMCO’s
labor relations manager, was concerned that as a result, Local 527
would stop referring workers to the Sterling site. The International
assured Uffelman that it was leaving that decision entirely up to the
Local, but Uffelman never asked Local 527 what it intended to do.
Meanwhile, one of CIMCO’s site superintendents asked Local 527’s
business manager whether Local 527 would object to its members
working at the Sterling site after December 31. The business manager
replied that he would not object. The site superintendent reported that
response to CIMCO’s site manager, and the site manager reported it to
Uffelman. Notwithstanding the business manager’s assurances, of
which Uffelman was aware, on the last workday of 1989 CIMCO’s site
manager (at Uffelman’s instructions) assembled the electricians and
told them that because the IBEW was withdrawing from the GPA
agreement, CIMCO would consider them all to have voluntarily quit
effective December 31 (eliciting vocal protests to the contrary).
Uffelman testified that the electricians were deemed to have voluntarily
quit because they had been referred by Local 527. CIMCO advertised
for electricians in local newspapers, and many of the discharged elec-
tricians applied. However, CIMCO instructed its site manager to hire a
“core complement” of nonunion applicants before hiring any applicants
who had “voluntarily quit.” CIMCO hired a “core complement” of
HAWAIIAN DREDGING CONSTRUCTION CO. 19
there is no evidence the Respondent was ever informed
that Business Manager Meyers would permit Boilermak-
ers to be employed by the Respondent absent a collec-
tive-bargaining agreement. I also believe the record con-
tradicts my colleagues’ contention that the Respondent
had no basis for doubting the discriminatees’ willingness
to work in the absence of a CBA. Valentine was ex-
pressly told by Boilermakers welders he contacted in
December 2010—when the Boilermakers were failing to
honor the Respondent’s dispatch requests—that the Un-
ion had ordered them “not to report to any HDCC job or
suffer the sanctions from the [U]nion.” Additionally,
even if Meyers would have permitted Boilermakers-
represented employees to work after HDCC contracted
with the Pipefitters, the Pipefitters would have required
those individuals to withdraw from the Boilermakers
before permitting them to sign its out-of-work list. See
supra fn. 37. Furthermore, in CIMCO, the employer re-
fused to hire or consider its former employees until it had
hired a “core complement” of nonunion employees.
Here, the Respondent went to considerable lengths to
help its former employees return to its employ. It asked
the Pipefitters, twice, to accept the former employees for
referral without having to meet the Pipefitters’ usual re-
quirements, including a welding test—and when the
Pipefitters declined to do so, the Respondent immediate-
ly notified its former employees of the Pipefitters’ re-
quirements, provided a facility for them to practice for
the test, furnished the necessary tools, equipment, and
materials, and even provided coaching. CIMCO does not
support my colleagues’ 8(a)(3) finding.
The other case cited by my colleagues—Jack Welsh
Co., 284 NLRB 378 (1987)—is no more convincing. In
Jack Welsh, the employer decided not to renew its 8(f)
contract with Carpenters Local 690 and repudiated the
bargaining relationship. The owner told his nephew,
who was an employee, that he was “going open shop.”
The nephew replied that he would have to quit because
he belonged to a union. The owner then discharged the
rest of the union carpenters, based on the assumption that
they would also have to quit. The Board found that those
discharges violated Section 8(a)(3) under Great Dane,
reasoning that it was incumbent on the employer to give
those employees an opportunity to decide for themselves
whether to quit and remain union members, or continue
working for the respondent after it went “open shop” and
withdraw from the union.
The key difference between Jack Welsh and the instant
case is that here, employees were not denied the right to

roughly 20 nonunion electricians before considering and hiring any
electricians formerly referred by Local 527.
decide for themselves whether to quit and remain mem-
bers of the Union or continue working and withdraw
from the Union, for the simple reason that there was no
“continue working” option. When the Region decided
that HDCC and the Boilermakers did not have an agree-
ment, HDCC stopped performing welding work alto-
gether, in keeping with its practice of performing such
work only under collective-bargaining agreements. With
welding work at a standstill, there was no work for the
employees to do, and no choice for employees to make
between quitting or working. The only choice was for
the Respondent to make between discharging its employ-
ees or laying them off and recalling them once it had a
contract with the Pipefitters. And, as explained above,
that choice was neutral with respect to employees’ exer-
cise of their right to membership in the union of their
choice, since either way (layoff/recall or discharge), the
employees would have to choose between the Boiler-
makers and the Pipefitters. As also explained above, the
Respondent’s choice was not neutral with respect to risk-
ing a contract breach with the Pipefitters. Recalling its
employees from layoff would have exposed the Re-
spondent to a claim of having breached the exclusive
referral article of the Pipefitters agreement. Discharging
them and facilitating their transition to the Pipefitters for
dispatch under that article was the risk-free alternative in
that regard.
Conclusion
In sum, I believe Respondent’s actions here were per-
missible under Deklewa, which governs prehire agree-
ments, and under Darlington, which establishes that em-
ployers can cease operations regardless of their motiva-
tion (subject to limited exceptions that have no applica-
tion in the instant case). Moreover, if this case is ana-
lyzed under Wright Line or Great Dane, the record estab-
lishes that the Respondent did not violate the Act. As a
final matter, my colleagues find that Respondent had
available only a single lawful course of action, which
was to place employees on “layoff” subject to “recall”
when it lawfully ceased its welding operations. Howev-
er, this conclusion improperly disregards the fact that
Respondent was in a hiatus between contracts and there-
fore had no contractual obligations regarding employees
displaced by a lack of work; Respondent had no obliga-
tion to engage in bargaining regarding this issue because
it had lawfully abandoned its relationship with the Boil-
ermakers following expiration of the Boilermakers’
agreement; and the Board is prohibited from imposing
these types of substantive contractual terms on employ-
ers or unions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
For these reasons, I respectfully dissent.
Dated, Washington, D.C. February 9, 2015
______________________________________
Philip A. Miscimarra, Member
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against you because of your membership in, activities on
behalf of, or referral from, International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers
and Helpers, Local 627, or any other labor organization.
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 from the date of the Board’s
Order, offer Kona Akuna, Paul Aona, Crispin Bantoy,
Domingo Delos Reyes, Jeffery Esmeralda, Joseph
Galzote, Manuel Gaoiran, Daniel Marzo, Jr., Henry Mer-
rill, Peter Pagaduan, Joselito Peji, Rolando Tirso, and
Kenneth Valdez full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make Kona Akuna, Paul Aona, Crispin
Bantoy, Domingo Delos Reyes, Jeffery Esmeralda, Jo-
seph Galzote, Manuel Gaoiran, Daniel Marzo, Jr., Henry
Merrill, Peter Pagaduan, Joselito Peji, Rolando Tirso,
and Kenneth Valdez whole for any loss of earnings and
other benefits resulting from their discharge, less any net
interim earnings, plus interest.
WE WILL compensate the affected employees for any
adverse tax consequences of receiving lump-sum
backpay awards, and WE WILL file a report with the So-
cial Security Administration allocating the backpay
awards to the appropriate calendar quarters.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to our unlaw-
ful discharges of the above named employees, and WE
WILL, within 3 days thereafter, notify each of them that
this has been done and that the discharges will not be
used against them in any way.
HAWAIIAN DREDGING CONSTRUCTION
COMPANY, INC.
The Board’s decision can be found at
www.nlrb.gov/case/37-CA-008316 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.
Meredith A. Burns and Trent K. Kakuda, for the Acting General
Counsel.
Barry W. Marr and Megumi Sakae (Marr, Jones & Wang), for
the Respondent.
Caren Sencer and David Rosenfeld (Weinberg, Roger & Rosen-
feld), for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was
tried in Honolulu, Hawaii, on November 6–7, 2012. The Inter-
national Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers, Local 627 (the Boilermakers
or the Union) filed the charge on May 12, 2011. The Acting
General Counsel issued the original complaint on Novem-
ber 30, 2011, and issued an amended complaint on January 13,
2012. Hawaiian Dredging Construction Company, Inc. (the
Respondent or Hawaiian Dredging) filed a timely answer deny-
ing all material complaint allegations. The Respondent filed a
Motion for Summary Judgment on March 31, 2012, which the
National Labor Relations Board (the Board) denied on Febru-
ary 28, 2012.
HAWAIIAN DREDGING CONSTRUCTION CO. 21
The Acting General Counsel issued a compliance specifica-
tion and order consolidating the compliance specification with
the amended complaint on September 10, 2012. The Respond-
ent filed a timely answer. At the hearing, I severed the compli-
ance specification from the amended complaint and took evi-
dence on the unfair labor practices complaint only.
The issue before me is whether Respondent’s layoffs of Ko-
na Akuna, Paul Aona, Crispin Bantoy, Domingo Delos Reyes,
Jeffery Esmeralda, Joseph Galzote, Manuel Gaoiran, Daniel
Marzo, Jr., Henry Merrill, Peter Pagaduan, Joselito Peji, Rolan-
do Tirso, and Kenneth Valdez (the alleged discriminatees) vio-
lated Section 8(a)(1) and (3) of the National Labor Relations
Act (the Act).
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the Acting General Counsel, the Respondent, and the Union,
I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Hawaii corporation with an office and a
place of business in Honolulu, Hawaii, is a general contractor
in the construction industry. During the past 12 months and at
all material times, it derived gross revenues in excess of
$500,000 and purchased and received goods valued in excess of
$50,000 directly from points outside the State of Hawaii. The
parties admit, and I find, that the Respondent is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Hawaiian Dredging is the largest general contractor in the
State of Hawaii with roughly 230 salaried employees and 375
craft labor employees. Its building projects include hotels,
houses, highways and roads, and piers. The Respondent also
does renovation and foundation work both for their own and
other contractors’ projects. In addition, the Respondent is the
state’s principal power and industrial contractor, and its em-
ployees perform industrial work at sewage and wastewater
treatment plants. The Respondent’s industrial operations con-
sist of five divisions: heavy, waterfront, power and industrial,
and two building oriented groups. For more than 20 years,
Hawaiian Dredging has performed all craft work pursuant to
collective-bargaining agreements (CBAs). (Tr. 90–91, 106,
253, 256.)1
William Wilson is the Respondent’s longtime president.
Tom Valentine manages the Respondent’s power and industrial
(P&I) division. The work he oversees is industrial mechanical

1 Abbreviations used in this decision are as follows: “Tr.” for
trascript; “R. Exh.” for Respondent’s exhibit; and “GC Exh.” for Act-
ing General Counsel’s exhibit. Although I have included several cita-
tions to the record to highlight particular testimony or exhibits, I em-
phasize that my findings and conclusions are based not solely on the
evidence specifically cited but rather are based on my review and con-
sideration of the entire record.
construction and generally involves welding. Prior to January
2012, Valentine was a senior project manager. In that capacity,
he oversaw power related projects. The Hawaiian Electric
Company (HECO) has been, at all relevant times, the Respond-
ent’s primary client in this area. Gordon Caughman, general
foreman over the Pipefitters since March 2011, oversees the
labor and mechanical work for the P&I division. He reports to
the P&I division managers. Caughman was previously the
Boilermakers’ general foreman.
B. The Collective-Bargaining Relationship
The Association of Boilermaker Employers of Hawaii (the
Association) represents employer-members in negotiating and
administering CBAs. From at least October 1, 2005, to Febru-
ary 17, 2011, the Respondent was a member of the Associa-
tion.2 For roughly 8 years up until February 2011, Valentine
was chairman of the Association.
For at least 20 years, up until February 17, 2011, the Boiler-
makers and the Association were parties to a collective-
bargaining relationship under Section 8(f) of the Act. Boiler-
makers worked in Hawaiian Dredging’s P&I division. In addi-
tion to welding, they did rigging, equipment setting, PVC work,
and piping. Some employees worked on the same project
through its completion, while other employees were transferred
among jobs.
The most recent CBA between the Association and the Boil-
ermakers ran from October 1, 2005, through September 30,
2010. (GC Exh. 2.) Upon expiration of the contract, having
not reached a new agreement, the parties agreed to extend its
terms through October 29, 2010, with any new agreement ret-
roactive to September 30. (GC Exh. 3.)
On Friday October 1, 2010, the Boilermakers’ attorney sent,
via email, a letter to Boilermakers’ business agent, Allen Mey-
ers, informing him that because the CBA fell under Section
8(f), either party was free to cease bargaining or take economic
action. He further noted that because the requisite 60-day no-
tice had been given, the members of the Local 627 could cease
working without further notice or bargaining. Boilermakers’
Business Representative Gary Aycock forwarded the letter to
Valentine. (R. Exh. 3.) That same day, the Boilermakers ar-
rived for work at the Sand Island wastewater facility and noti-
fied Superintendent Manny Fernandez that they did not intend
to work because their contract had expired. (Tr. 96; R. Exh. 4.)
By Monday, October 4 the Boilermakers had resumed work.
(Tr. 112.)
Contract negotiations continued into November with the par-
ties disagreeing about inclusion of maintenance of benefits
provision and an increase in the mobilization optimization sta-
bilization and training (MOST) benefit. (R. Exhs. 6, 7.) On
November 12, Valentine forwarded to Meyers four copies of a
CBA he believed the Boilermakers had ratified. (R. Exh. 7.)
On November 17, Meyers sent a letter to Valentine that, in
addition to pointing out minor corrections, instructed the Re-
spondent to add a 50-cent-per-year maintenance of benefits
provision and include an increase in the MOST contribution.

2 The other members were Arakaki Mechinical and Elayer Enterpris-
es.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
Meyers requested a response no later than November 30, but
this was extended to December 6. (R. Exh. 8; Tr. 262.)
C. The Kahe 4 Project, Continued Negotiations, and
Board Charges
In December, Hawaiian Dredging contracted with HECO to
provide about 20 Boilermaker welders for a powerplant outage
at HECO’s Kahe 4 power plant (the Kahe 4 project). On De-
cember 3, Hawaiian Dredging submitted a request to the Boil-
ermakers to dispatch a welder to the Kahe 4 plant on December
6. (R. Exh. 10; Tr. 164, 203.) Superintendent Forrest Ramey
notified management that the Boilermakers had not dispatched
a worker on December 6. Caughman contacted Aycock to
inquire, and Aycock stated that Meyers was handling dispatch-
es from Arizona. According to Caughman, when he and Mey-
ers spoke, Meyers asked, “words to the effect of” whether the
Union had gotten management’s attention. Caughman also
called Manuel “Kalani” Gaoiran, the worker who was supposed
to report to the Kahe 4 project on December 6. By Caughman’s
account, Gaoiran responded that he was told not to report and
did not want to get stuck in the middle. (Tr. 166.) Valentine
had to notify HECO about the dispatch problems, which caused
him concern because HECO is his major customer. (R. Exh. 9,
10.)
Later that same day, December 6, Aycock sent Valentine an
email inquiring as to whether he intended to respond to the
November 12 letter Meyers had sent him about the contract.
Valentine responded, copying Meyers and others. He stated
that Meyers’ letter did not accurately reflect the agreement
from the most recent negotiations. He further wrote, “I do not
understand the reason for this failure to honor the dispatch. We
have a disputed contract and our position has always been that
upon resolution the contract would be retroactive to October 1,
2010.” He concluded by informing Aycock and Meyers that
the Association had been advised to file an unfair labor practic-
es complaint and would be doing so that day. (R. Exh. 11.)
The Association filed charges with the NLRB on December
6, alleging that the Union violated Section 8(b)(3) of the Act by
attempting to add a maintenance of benefits provision and in-
crease the MOST benefit without first negotiating. (R. Exh.
12.) During the investigation of this Charge, Hawaiian Dredg-
ing requested mediation of the contract dispute through Federal
Mediation and Conciliation Services (FCMS), but the Boiler-
makers declined. (GC Exh. 1(k) Valentine Decl.)
On December 7, the Boilermakers did not dispatch three
journeymen requested for the Kahe 4 project. (R. Exh. 13.)
One worker was dispatched the evening of December 9 without
notice to the Respondent or HECO. Workers continued to
show up at the site unannounced. Valentine sent Aycock an
email on December 10, asking him to tell Hawaiian Dredging
and HECO when it was dispatching Boilermakers to the Kahe 4
project. (R. Exh., 14.) On December 12, Valentine sent an e-
mail to Wilson, then Vice President Dan Guinagh, and the Re-
spondent’s in-house counsel Gary Yokoyama, detailing the
problems with staffing for the HECO project, expressing his
concern about the Boilermakers’ failure to dispatch workers as
well as the quality of their work, and opining that Hawaiian
Dredging should consider terminating its relationship with
them. (R. Exh. 15.) To provide manpower to the Kahe 4 pro-
ject, the Respondent transferred its eight Boilermaker welders
from other ongoing projects to the Kahe 4 project, forcing the
other projects to shut down. (Tr. 263, 273–274.) According to
a spreadsheet Ramey prepared, Boilermakers had failed to
show for 24 12-hour shifts as of December 16. (R. Exh. 16.)
HECO ultimately removed some work from Hawaiian Dredg-
ing because of its inability to staff it. (Tr. 212, 273).
On December 18, HECO directed the Respondent to termi-
nate four welders because their welds failed radiographic test-
ing. Valentine directed the Boilermakers to prepare a written
response as to how the Union would correct the problem so that
he could present it to HECO. (R. Exhs. 17–18.) He did not
receive a response. (Tr. 218.)
D. Termination of the 8(f) Agreement and Layoffs
Valentine received a letter from the Board on February 17,
2011, regarding the December 6, 2010 charges.3 The Board
dismissed the charges, concluding that the parties did not reach
complete agreement on the terms and conditions of employ-
ment. (R. Exh. 21.)
Relying on the Board’s dismissal, the Association terminated
its relationship with the Boilermakers effective Monday, Feb-
ruary 17, 2012, on the basis that there was no CBA in place. At
around noon, Valentine and Ramey met with Caughman to
inform him the Boilermaker employees were being laid off
because there was no contract. The Boilermakers received
termination notices at the end of the workday. (GC Exhs. 4–
19.) At the time, the employees did not receive notice of any
plan to rehire them. The Respondent separated the employees
because there was no contract in place, not due to a lack of
work.4
E. Contract with the Pipefitters Union
On February 18, 2011, Valentine and Guinaugh met with
representatives of the Plumbers and Pipefitters Union, Local
675 (Pipefitters) to discuss the possibility of entering into a
contract. Guinagh asked the Pipefitters’ business manager and
secretary/treasurer, Reginald Castanares, if he would accept
Hawaiian Dredging’s former Boilermaker employees as Pipe-
fitters. Castanares stated that membership would be condi-
tioned on following the Pipefitters’ standard practice of apply-
ing, interviewing, and passing a welding test and a drug test.5
The Respondent and the Pipefitters became parties to a CBA on
February 23.6 (R. Exh. 22.) In a meeting earlier that day, Wil-
son informed Castanares that Hawaiian Dredging wanted the
employees who had worked under the contract with the Boil-
ermakers to continue working and asked if they could be re-
ferred through the Pipefitters. Castanares responded with the
same answer he had given to Guinaugh.

3 The letter is dated February 14 and date-stamped February 15,
which was a Tuesday.
4 The parties entered into a stipulation on this fact. (Tr. 9–10.)
5 The Pipefitters’ CBA contains a “Uniform Conditions” provision
(most favored nation clause) which would be violated by a deviation of
its hiring and referral procedures.
6 The CBA between the Pipefitters’ Union and the Respondent was
also pursuant to Sec. 8(f) of the Act.
HAWAIIAN DREDGING CONSTRUCTION CO. 23
Shortly after the contract with the Pipefitters was signed,
Caughman and Ramey informed the alleged discriminatees that
they could sign up with the Piperfitters if they wanted to con-
tinue working for Hawaiian Dredging. Wilson did not believe
the Boilermakers would have trouble passing the Pipefitters’
welding test because the work they had performed over the
years had almost always met the Respondent’s contractual ob-
ligations. The Respondent permitted them to use its warehouse
facility to practice their welding skills in preparation for the
welding test. Hawaiian Dredging performed no welding work
between February 17 and March 1, 2011, when the first worker
was dispatched under the February 23 contract with the Pipefit-
ters. (Tr. 228.)
By February 25, 2011, 6 out of the 13 alleged discriminates
had registered with the Pipefitters. By May 12, 2011, eight had
registered. (R. Exh. 23.) The additional five alleged discrimi-
nates did not register.
Wilson did not care which union referred the former Boiler-
maker-employees to work for Hawaiian Dredging, as long as
the work was performed under a contract. (Tr. 109.)
III. ANALYSIS
The issue before me is whether the Respondent laid off the
alleged discriminatees in violation of Section 8(a)(1) and (3) of
the Act.7
Both the Acting General Counsel and the Charging Party ar-
gue that the layoffs were inherently destructive of employee
rights, and therefore antiunion motivation may be inferred.
NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967).
Before jumping into analysis under Great Dane or any famil-
iar legal paradigm, it is important to point out the extremely
unique factual scenario this case presents. Much of the case
law that has developed under Great Dane and its progeny con-
cerns strikes, lockouts, and other actions where the parties have
some sort of continuing obligation to each other. This case
occurs in a very different context that derives from the unique
nature of the construction industry. Here, the Association had
lawfully terminated its 8(f) relationship with the Union, and the
parties therefore had no continuing contractual obligations to
each other. The majority of the case law also concerns replac-
ing union workers with nonunion workers and/or workers not
affiliated with the union that is a party to the case. Here, con-
sistent with its longstanding practice, the Respondent refused to
go “open shop” and would only employ craft workers who
were affiliated with a union and were operating under a CBA,
regardless of any particular union affiliation. Against this unu-
sual factual backdrop, I turn to the legal analysis.
Under Great Dane, if the employer’s conduct is “inherently
destructive” of important employee rights, no proof of an anti-
union motivation is needed and the Board can find an unfair
labor practice even if the employer introduces evidence that the
conduct was based upon important business considerations. If
the adverse effect of the discriminatory conduct on employee

7 The Association’s termination of its 8(f) relationship with the Un-
ion is not at issue in this case. The Association is not named in the
complaint. The Union had contended that termination of the 8(f) rela-
tionship violated the Act, but this charge was investigated and dis-
missed.
rights is “comparatively slight,” and the employer has come
forward with evidence of legitimate and substantial business
justifications for its actions, antiunion motivation must be
proved to sustain the charge. Ibid. The burden is upon the
employer to establish that it was motivated by legitimate objec-
tives.
The first question to answer, then, is whether the employer’s
conduct was “inherently destructive” of important employee
rights. “Inherently destructive” conduct involves actions “that
exhibit hostility to the process of collective bargaining,” and
that have “far reaching effects which could hinder future bar-
gaining; i.e., conduct that creates visible and continuing obsta-
cles to the future exercise of employee rights.” Esmark, Inc. v.
NLRB, 887 F.2d 739 (7th Cir. 1989) (quoting Portland
Willamette Co. v. NLRB, 534 F.2d 1331, 1334 (9th Cir. 1976).
See also Roosevelt Memorial Medical Center, 348 NLRB 1016
(2006); Bud Antle, Inc., 347 NLRB 87 (2006). In addition,
“conduct which discriminates solely upon the basis of partici-
pation in strikes or union activity” may be inherently destruc-
tive. Portland Willamette Co, 534 F.2d at 1334.
In the instant case, there was no future bargaining to occur
between at the time of the layoffs, as the Association had law-
fully terminated the 8(f) agreement with the Boilermakers Un-
ion. As such, the Respondent’s actions did not hinder future
bargaining.
As to whether the layoffs distinguished among workers
based on participation in protected activity, the evidence shows
that all employees who had worked under the terminated 8(f)
agreement but no longer were covered by a CBA were laid off,
regardless of union or any other protected activity. The em-
ployees who had worked under the contract with the Boiler-
makers were afforded the same opportunity to work as any
other employee, i.e., under a contract once one was in place.
The Respondent had no obligation to treat the employees who
had worked under the former Boilermakers’ contract more
favorably than its other craft workers by permitting them to
work without the protections of a CBA. In short, the Respond-
ent laid off the alleged discriminatees because they were no
longer working under a contract, not because they were mem-
bers of the Boilermakers or any other union.8 Once a new CBA
was in place, the Respondent facilitated returning the employ-
ees to work, as detailed above, on a nondiscriminatory basis.
Accordingly, the Respondent’s actions here are not “demon-
strably so destructive . . . that the Board need not inquire into
employer motivation, as might be the case, for example, if an
employer permanently discharged his unionized staff and re-
placed them with employees known to be possessed of a violent
antiunion animus.” American Ship Building Co. v. NLRB, 380
U.S. 300, 309 (1965). See also D&S Leasing, 299 NLRB 658,
659 (1990) (terminating employees and refusing to rehire them
to escape bargaining obligations inherently destructive). Based
on the unique facts of this case, I do not find that the Respond-
ent’s conduct was inherently destructive of employee rights.
The Acting General Counsel and the Union assert that the

8 Management did not know whether the alleged discriminatees re-
mained Boilermakers union members. (GC Exh. 1(m), Valentine Dec-
laration.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
Respondent was required to continuously employ the alleged
discriminatees. This, however, assumes a right to employment
on terms inconsistent with the Respondent’s longstanding prac-
tice of having its craft work performed under CBAs rather than
a right to be free from discrimination. Though the transition
was not seamless, the Respondent acted quickly and its manag-
ers clearly prioritized the continued employment of the alleged
discriminatees without regard to whether they were still mem-
bers of the Boilermakers Union.
The Acting General Counsel and the Union further assert
that the employees were laid off simply because they were
members of the Boilermakers Union. As noted above, the dis-
tinguishing factor was not Boilermaker membership but rather
lack of a CBA. Though the two did go hand in hand under the
circumstances present, this does not imply discrimination given
the facts of this case. As the Supreme Court stated in American
Ship Building. Co., 380 U.S. at 311–313:
[W]e have consistently construed the section to leave un-
scathed a wide range of employer actions taken to serve legit-
imate business interests in some significant fashion, even
though the act committed may tend to discourage union
membership. See, e.g., National Labor Relations Board v.
Mackay Radio & Telegraph Co., 304 U.S. 333, 347, 58 S.Ct.
904, 911, 82 L.Ed. 1381.
. . .
It is true that the employees suffered economic disadvantage
because of their union's insistence on demands unacceptable to
the employer, but this is also true of many steps which an em-
ployer may take during a bargaining conflict, and the existence
of an arguable possibility that someone may feel himself dis-
couraged in his union membership or discriminated against by
reason of that membership cannot suffice to label them viola-
tions of Section 8(a) (3) absent some unlawful intention.
Though there is no bargaining conflict before me in the in-
stant case, the Court’s reasoning regarding the absence of un-
lawful intention, under the circumstances present, is nonethe-
less persuasive.
Assuming, without finding, that the conduct was inherently
destructive, the next step is to consider the degree to which the
Respondent's conduct affected important employee rights. For
the reasons that follow, I find the adverse effect on employee
rights was “comparatively slight.” No welding work was per-
formed between February 17 and March 1, 2011, when the first
employee under the new contract with the Pipefitters was sent
to work. As set forth above, the employees working under the
former contract with the Boilermakers were considered for
work under the new contract without regard to their Boilermak-
er status, and in fact the Respondent facilitated their re-
employment.
The Respondent’s burden at this juncture is to prove it had
legitimate and substantial business justifications for its actions.
The Respondent’s asserted justification, simply put, is that it
requires its craft employees to perform work under CBAs.9

9 Neither the Acting General Counsel nor the Union argued that this
case should be decided under the Board’s familiar analysis in Wright
Line, 251 NLRB 1083 (1980). Assuming such analysis governs and
More specifically, the Respondent points to the reasons Section
8(f) was enacted. As the Respondent notes, the legislative his-
tory of Section 8(f) shows it was added to the Act because of
the construction industry employer’s need to “know his labor
costs before making the estimate upon which his bid will be
based” and “to ensure the employers in the construction indus-
try would have a readily available supply of skilled craft work-
ers for quick referral.” S. REP. No. 86–187 (1959). See also
NLRB v. Bridge Workers Local 103, 434 U.S. 335, 348–349
(1978). Neither the Acting General Counsel nor the Union has
refuted the Respondent’s evidence that, for at least the past 20
years, it has exclusively relied on the union hiring halls to pro-
vide labor to it under CBAs governed by Section 8(f). I find
that such reliance, given the purpose of Section 8(f) and the
mutual safeguards 8(f) agreements provide to both parties, con-
stitutes a legitimate business justification.10
The Acting General Counsel and the Union assert that the
Board’s decision in CIMCO, 301 NLRB 342 (1991), enfd. 963
F.2d 513 (5th Cir. 1992), controls and requires me to find the
Respondent violated Section 8(a)(1) and (3). There are materi-
al distinctions, however, between CIMCO and the instant case.
In CIMCO, the union terminated its 8(f) agreement with the
company at a particular worksite that employed electricians,
and the company disputed the legitimacy of this action. There-
after, in response to unsubstantiated rumors that the union was
not going to permit its members to work at the site, the compa-
ny terminated them but stated it considered them to have volun-
tarily quit. The company then placed ads in the paper and,
although all the electricians who had been referred by the union
applied, it hired a “core group” of employees who exclusively
were not from the union. Thereafter, it hired some of the elec-
tricians who had previously been referred by the union. The
Board agreed with the administrative law judge that this course
of conduct was inherently destructive of employee rights. The
key to the judge’s finding was that the employees were termi-
nated because they had been referred by the union, and the
company took this action because the union would not agree to
reinstate its participation in the 8(f) agreement.
In the instant case, unlike in CIMCO, the Respondent did not
advertise for outside nonunion employees. The company in
CIMCO discriminated in its hiring when it initially only con-
sidered the electricians who had not previously been referred by
the union. By stark contrast, the Respondent here did not con-
sider or hire any nonunion employees to resume work without a
CBA in place, and did not at any point favor workers who were
unaffiliated with the Boilermakers. The evidence shows that
the Respondent facilitated the Boilermakers’ referral under the
new CBA and considered them for hire from the outset on a
nondiscriminatory basis. Finally, unlike in CIMCO, the Re-
spondent was not attempting to coerce the Boilermakers, as the

that the Acting General Counsel has met its initial burden, I find that
the Respondent’s requirement to have its craft work performed pursu-
ant to CBAs is a legitimate nondiscriminatory reason for its actions,
and the Acting General Counsel has not presented evidence to show
this was pretext.
10 The problems the Respondent faced after the CBA with the Boil-
ermakers expired, detailed above, underscore its rationale for requiring
work to be performed under a valid enforceable contract.
HAWAIIAN DREDGING CONSTRUCTION CO. 25
Association had already lawfully terminated the 8(f) relation-
ship. Accordingly, I find that the rationale in CIMCO does not
fit the facts of this case.
Assuming a finding that the Respondent’s conduct was in-
herently destructive, I find that, unlike in CIMCO, the Re-
spondent has met its burden to prove it had legitimate and sub-
stantial business justifications for its actions, as set forth above.
The rationale set forth in CIMCO rested on unwarranted specu-
lation that the electricians the union had referred would not
show up for work if hired as nonunion workers. The rationale
here is grounded in the fact that there was no longer a contract
governing the work at issue, and the Respondent’s legitimate
business model requires all craft work to be performed under a
CBA.11
The Board’s analysis in Jack Welsh Co., 284 NLRB 378
(1987), does not apply, and merely obfuscates the legal issue
presented in the case at hand. In Jack Welsh, upon expiration
of an 8(f) agreement between the employer and the union, the
company went “open shop” and Welsh, the owner, terminated
three union-member employees. The Board found this violated
the Act because the employees were not given the option to
continue working in the new nonunion environment. Here, the
Respondent never intended to become a nonunion shop. Ra-
ther, the Respondent took steps to get a new contract into place
promptly and facilitated the alleged discrimnatees’ continued
employment, as detailed above. There is no evidence to sup-
port a finding that the Respondent attempted to subvert unioni-
zation or the Act.
The Charging Party further asserts that the Respondent’s de-
cision to lay off the alleged discriminatees because they lacked
union representation and a union contract violates the Act to the
same degree it would to take the same action because they
were represented. The complaint contains no such allegation
on its face or by amendment, it was not litigated or defended,
and I therefore do not consider it. Likewise, the Acting General
Counsel hypothesizes that had the Respondent terminated the
alleged discriminatees at the insistence of the Pipefitters, both
Respondent and the Pipefitters Union would have violated the
Act under the Board’s reasoning in Austin & Wolfe Refrigera-
tion, 202 NLRB 135 (1973). As this was neither asserted in the
complaint nor litigated, and is argued from a speculative stance

11 The Union avers that the Respondent argued other business justifi-
cations, including work disruptions and quality issues. The Respond-
ent, however, has consistently argued that it laid off the alleged
discriminatees because of the Board’s determination that no contract
existed. While the Respondent has asserted that some of the problems
that arose after the CBA expired illustrate why it maintains a practice of
only having craft work performed under contracts, the problems them-
selves were not alleged as business justifications.
only, I do not consider it.
The Acting General Counsel notes that the Respondent could
have required the alleged discriminatees to join the Piperfitters
pursuant to a valid security clause after the 7-day grace period
Section 8(f) provides. Citing to Acme Tile & Terazzo Co., 306
NLRB 479, 480–481 (1992), reaffirmed after remand by 318
NLRB 425, enfd. 87 F.3d 558 (1st Cir. 1996), the Acting Gen-
eral counsel asserts that this is only permissible when there is
continuous employment. Acme Tile concerned pressure to join
the Bricklayers Union immediately, without the requisite grace
period, in the context of the Bricklayers’ ongoing campaign to
force the workers to join their union. There is no evidence the
Respondent attempted to subvert any required waiting period,
nor is there evidence that the Respondent was assisting the
Pipefitters in some sort of campaign to force the alleged
discriminatees to join its union. Finally, the Acting General
Counsel cites to National Fabricators, Inc., 295 NLRB 1095
(1989) (quoting Gatliff Business Products, 276 NLRB 543, 558
(1985)), for the proposition that laying off employees who are
likely to engage in protected activities “is the kind of coercive
discrimination that naturally tends to discourage unionization
and other concerted activity.” This is unpersuasive given that
there is no hint that the Respondent was discouraging union
activity or any rights protected under the Act.12
Based on the foregoing, considering the unique factual cir-
cumstances present in this case, I find the Acting General
Counsel has failed to prove that the Respondent violated the
Act as alleged.
CONCLUSION OF LAW
The Respondent’s actions of laying off the alleged
discriminatees did not violate Section 8(a)(1) and (3) of the
Act.
Accordingly, based on the foregoing findings of fact and
conclusions of law and the entire stipulated record, I issue the
following recommended13
ORDER
The complaint is dismissed.
Date, February 4, 2013.

12 The Acting General Counsel also references Steel Fabricators,
Inc., 271 NLRB 524, 532 (1984). That case, however, involved layoffs
following an unlawful refusal to bargain, whereas there was no further
duty to bargain in the instant case.
13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.