Hays Corp.

National Labor Relations Board - Board Decisions

May 22, 2001

334 N.L.R.B. 48 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 48
The Hays Corporation and Jeff Wesley and Billy Ray
Spencley. Cases 10–CA–30759, 10–CA–30759–2,
and 10–CA–30759–3
May 22, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On July 22, 1998, Administrative Law Judge Keltner
W. Locke issued the attached bench decision. The
Respondent filed exceptions and a supporting brief and
the General Counsel filed an answering brief to the
Respondent’s exceptions. The Respondent filed a brief
in reply to the General Counsel’s brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
set forth below and to adopt the recommended Order as
modified.2
The Respondent has excepted to the judge’s findings
that it violated Section 8(a)(3) and (1) of the Act by
unlawfully discharging employees Jeff Wesley and Billy
Ray Spencley because of their union and protected con-
certed activities.3 As discussed below, we agree with the
judge’s conclusion.
On December 16, 1997,4 the Respondent, a construc-
tion contractor, hired Jeff Wesley and Billy Ray Spen-
cley to work at an industrial jobsite in Decatur, Alabama,
known as the Bunge Project. On January 7, 1998,5 Un-
ion Organizer Bobby Drane visited the jobsite during a
torrential rain. Drane submitted an application for em-
ployment and spoke to employees about the benefits of
unionizing, including guaranteed onsite hand washing
facilities and the right to “rain out,” or take the day off
when weather threatened the safety of the work area.
Drane suggested employees visit the union hall and apply
for membership. Shortly after Drane left the jobsite, the
Respondent offered the employees the right to rain out
for the day. Wesley and Spencley accepted the opportu-
nity and went straight to the union hall. They applied for
membership and were given various items such as hats
and stickers embossed with the union logo.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolution unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
2 We shall modify the judge’s recommended Order to conform to his
findings.
3 There are no exceptions to the judge’s findings that the Respondent
violated Sec. 8(a)(1) of the Act by threatening Wesley with discharge at
the January 8, 1998 safety meeting; by threatening Spencley with dis-
charge on or about January 17, 1998; by creating the impression of
surveillance; by telling employees that it would be futile to select a
bargaining representative; by telling employees that discussing the
Union would violate a company rule; and by telling employees at the
January 12, 1998 safety meeting that the company was nonunion and
didn’t want “to hear any Union bullshit” on the job. There are also no
exceptions to the judge’s findings that the Respondent violated Sec.
8(a)(3) of the Act by issuing a verbal warning and a first written warn-
ing to Spencley on January 16, 1998, and by issuing a second written
warning to Spencley on January 20, 1998.
4 The judge’s decision incorrectly states that Wesley and Spencley
were hired in 1998.
On January 8, the Respondent held a safety meeting at
the jobsite at which General Foreman Richard Morris
and Foreman James Keys were present.6 Wesley and
Spencley complained about working conditions, includ-
ing the lack of hand washing facilities and drinking wa-
ter. Morris responded that he had worked at a lot of jobs
where there was no place to eat or wash hands and that if
Wesley did not like it he could “go somewhere else to
work” or “hit the road.” Spencley then stated that OSHA
required that the Respondent provide drinking water, a
hand washing station, and a clean sanitary eating spot.
The following day, January 9, Wesley “brassed out”7
and went to lunch. When he returned from lunch, Keys
told Wesley to report to Project Superintendent Pass-
more. Passmore told Wesley that it did not appear that he
wanted to abide by the Company’s policies and that he
was discharged. The Respondent’s stated reasons for the
discharge included Wesley’s poor attendance and his
5 All dates are in 1998 unless otherwise indicated.
6 It is undisputed that Morris and Keys as well as Corporate Safety
Director Jeffrey Bordreaux and Project Superintendent Wayne Pass-
more are supervisors within the meaning of Sec. 2(11) and agents
within the meaning of Sec. 2 (13) of the Act.
7 Under the Respondent’s “brassing” policy, which was put in place
in December 1997, at the beginning of the project, each employee was
issued a numbered brass tag when he arrived at the jobsite in the morn-
ing. This “brass” identified the employee’s whereabouts throughout the
day. If the employee left the jobsite for any reason, he would return the
brass to the check-in area, or brass area, where the brass would be hung
on the brass board. If the employee were onsite, his brass would not be
on the brass board. Thus, contractors could look at the brass board and
know immediately which employees were onsite. In the event of an
explosion or fire, safety personnel could quickly ascertain if all em-
ployees were accounted for.
Starting on or about January 5, the Respondent instituted a practice
requiring employees to write down the times they left for lunch and
returned on a sign-in sheet. Although the Respondent contends that
employees were required to complete an “early out” form when leaving
for lunch, it produced no documentary evidence to support this conten-
tion.
334 NLRB No. 4
HAYS CORP. 49
failure to get a supervisor’s permission before leaving the
jobsite at lunchtime.
On January 12, Morris and Passmore held a safety
meeting with the employees. During the meeting, Morris
stated that he understood that some of the employees had
been to the union hall, that “this is a non-union com-
pany” and that he did not want “to hear anymore union
bullshit on this job.”8
On January 16, Spencley was instructed by Keys to go
to other job trailers on the Bunge project in search of a
particular type of bolt needed to secure an agitator. After
Spencley returned, Keys told him that Morris had issued
him a written warning for being out of his work area.
When Spencley reminded Keys that he had directed
Spencley to leave his work area, Keys responded, “I
know, I know . . . this ain’t me, . . . I didn’t write it.”
Spencley met with Morris and attempted to explain, but
Morris responded “I don’t care. I’m writing you up.”
Sometime around January 17 or 18, Keys called Spen-
cley away from his work area and told him “You know
they’re gunning for you,” and that they finally “got rid of
Jeff [Wesley].” Keys stated that Morris was “gunning”
for Spencley more than Passmore was gunning for him,
that Spencley was a troublemaker and that the Respon-
dent wanted him off the job. Keys also stated that man-
agement was “mad about the thing with the Union.”
On January 20, Jerry Boudreaux, the Respondent’s
corporate safety director, visited the worksite and asked
Spencley some questions about the job. Boudreaux initi-
ated the conversation, which took place in plain view of
Passmore. After the conversation ended, Morris issued
Spencley a second written warning for “Leaving Work-
place Without Supervisor’s Authorization, out of work
area talking.”
On January 23, Spencley and employees Tony Tippett
and Spencer Cary violated the Respondent’s hardhat pol-
icy9 by writing the words “HA HA” over the Respon-
dent’s name “HAYS” on the hardhat. Passmore issued
Cary a verbal warning and Tippett quit the job before any
disciplinary action could be taken against him. Spencley,
however, was discharged.
Applying Wright Line,10 the judge found, and we
agree, that Wesley’s and Spencley’s union and protected
activities were the motivating factors in the Respondent’s
decision to discharge them. Under Wright Line the Gen-
eral Counsel must show by a preponderance of the evi-
dence that the protected conduct was a substantial or
motivating factor in the employer’s decision. The Gen-
eral Counsel must show that the employees engaged in
union activity, that the Respondent had knowledge of
that activity, and that the Respondent demonstrated anti-
union animus. If this initial burden is met, the burden of
persuasion shifts to the employer to prove, as an affirma-
tive defense, that it would have taken the same action
even if the employee had not engaged in protected activ-
ity. NLRB v. Transportation Management Corp., 462
U.S. 393, 399 (1983).

8 The judge found that Morris made a similar comment to job appli-
cant Brown Shearer on the telephone. Although that statement was not
alleged as a violation in the complaint the judge found it to be evidence
of the Respondent’s animus.
9 The Respondent’s written policy as to hardhats stated that “Hays
employees shall wear hardhats issued by Hays with the Hays logo” and
“Hardhats and suspension systems are not allowed to be altered or
painted.”
10 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
Here, the judge found, and we agree, that the motivat-
ing factor for Wesley and Spencley’s discharges was
directly related to their engaging in protected activity and
their involvement with the Union. Thus, the credited tes-
timony establishes that Wesley and Spencley went to the
union hall because of their concern over poor working
conditions, they filled out applications for membership,
and they raised their concerns about the lack of drinking
water and hand washing facilities to the Respondent at
the January 8th safety meeting. The credited testimony
also establishes that the Respondent knew of their union
or protected activity. Wesley and Spencley complained
about working conditions to Morris. Morris told em-
ployees that he knew that some of them had been to the
union hall. Wesley placed a union sticker on his
lunchbox, which he carried at work.11 To the extent that
the Respondent contends that only Passmore had the au-
thority to discharge Wesley and Spencley, and he did not
know of their protected activities, this claim has no
merit. Thus, Passmore was at the January 8 meeting at
which Wesley and Spencley complained about working
conditions. Further, Passmore consulted with Morris and
Keys before taking any disciplinary action.12 Morris’
union animus and hostility towards anyone who com-
plained about working conditions was patent. Thus,
while Passmore had the final discharge decision, in these
circumstances, Morris’ unlawful motivation would be
imputed to Passmore.13
With regard to the Respondent’s antiunion animus, the
judge found that the Respondent threatened employees
11 The judge found that Wesley placed a union sticker on his lunch
box and that in all likelihood the Respondent knew about it. The Re-
spondent did not except to this finding.
12 Passmore testified that he spoke to Morris and Keys approxi-
mately 30 to 40 times a day. Passmore also testified that he had known
Morris for 18 years, had “raised Morris from “bottom helper” to super-
visor, that he brought him in as general foreman on the Bunge Project
and had frequently brought him in on jobs in the past.
13 Springfield Air Center, 311 NLRB 1151 (1993).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 50

with discharge for engaging in protected activities, cre-
ated an impression of surveillance, promulgated a work
rule prohibiting discussion of the Union on the jobsite,
and told employees that their efforts to organize would
be futile. The judge also credited Spencley’s testimony
that Keys told him that the Respondent was “gunning”
for him because of his union activities and that Wesley
had been discharged for being a “troublemaker.” As
noted, supra, no exceptions were filed to these findings.
Thus, we find that the General Counsel has met his
Wright Line burden by showing that the Respondent had
union animus and was hostile towards anyone who com-
plained about working conditions; that the Respondent
was clearly aware that Wesley and Spencley engaged in
protected concerted and union activity; and that the tim-
ing of the discharges was proximate to those activities.
We further find that the judge properly rejected the
Respondent’s defenses that Wesley and Spencley were
discharged because of their poor attendance and work
records and their failure to adhere to company policies,
and not because of their protected or union activities.
As to Wesley, the termination form issued to him on
January 9 does not refer to Wesley’s absentee record.
Rather, it states that the reason for the discharge was that
Wesley left the jobsite without proper authorization and
was “given instructions as to proper procedure for leav-
ing the job site at any time. Complete disregard for job
policy’s (sic).” The judge found that the Respondent
failed to establish that the early out policy was uniformly
enforced at the relevant time. Although Passmore testi-
fied that the seven other employees who left the worksite
during the scheduled lunchbreak on January 9 signed
early out forms, the Respondent failed to introduce these
forms into evidence. We find that the Respondent’s fail-
ure to produce these early out forms and the absence of
evidence to corroborate Passmore’s testimony as to the
“early out” requirement during scheduled lunchbreaks
undermines the Respondent’s claim that Wesley was
discharged for failing to complete an “early out/late arri-
val” form during his January 9 lunchbreak. Further,
Spencley credibly testified that at his January 17 or 18
meeting with Keys, Keys commented that “[t]hey finally
got rid of [Wesley].” Keys’ comment was made in the
context of his warning that Morris was “gunning for”
Spencley because Spencley was a union supporter.
With regard to Spencley, the Respondent contends that
it discharged him not only because he defaced company
property in violation of its rules and showed no remorse
for this, but also because of his poor work habits and past
absences. While Spencley did deface his hardhat, a sec-
ond employee, Cary, who committed the same conduct,
received only mild disciplinary action.14 As for Spen-
cley’s asserted absentee problem, the Respondent neither
issued warnings to Spencley for absenteeism nor in-
formed him that it was a serious problem. Further,
Passmore claimed he discharged Spencley instead of
using a less severe form of discipline because of Spen-
cley’s prior disciplines; however, three of these warnings
have been found unlawful. It is well settled that, where a
respondent disciplines an employee based on prior disci-
pline that was unlawful, any further and progressive dis-
cipline based in whole or in part thereon must itself be
unlawful.15 Finally, in referring to the unlawful warning
of January 20, Passmore stated that he had observed the
conversation between Spencley and Boudreaux and that
he initiated the process that resulted in Spencley’s writ-
ten warning. We agree with the judge that it was
unlikely that Passmore would discipline Spencley for
leaving his job to talk to one of the Respondent’s manag-
ers unless the Respondent was looking for a way of get-
ting rid of Spencley because of his protected activity.
Accordingly, we find that the Respondent has failed to
rebut the General Counsel’s evidence that the Wesley
and Spencley discharges were motivated by their pro-
tected activities. Spencley’s disparate treatment, the
unlawful warnings, and the timing of the discharge, to-
gether with the Respondent’s demonstrated union animus
and Wesley’s discharge, all lead us to conclude that
Spencley was discharged because of his support for the
Union and his other protected activities.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, The
Hays Corporation, Decatur, Alabama, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified below.
1. Substitute the following for paragraph 1(c).
“(c) Informing employees that management did not
‘want to hear any Union bullshit on the this job’ or oth-
erwise promulgating rules prohibiting them from discuss-
ing the Union at the jobsite.”
2. Add the following as paragraphs 2(c) and (d), and
reletter the remaining paragraphs.
“(c) Make Billy Ray Spencley and William Jeffrey
Wesley whole for any loss of earnings and other benefits
14 The third employee, Tippett, abandoned the job before any action
could be taken against him, but there is no evidence he would have
been discharged had he remained on the job.
15 Jennie-O-Foods, Inc., 301 NLRB 305,318 (1991); Asociacion
Hospital del Maestro, 283 NLRB 419, 425 (1987), enfd. 842 F.2d 575
(1st Cir. 1988).

HAYS CORP. 51
resulting from their discharges, less any net interim earn-
ings, plus interest.
“(d) Within 14 days from the date of the Board’s Or-
der, remove from our files any references to the dis-
charges of Spencley and Wesley, and, within 3 days
thereafter, notify each of them in writing that this has
been done and that the discharges will not be used
against them in any way.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

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

Section 7 of the Act gives employees these rights.

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

WE WILL NOT threaten to discharge employees for
engaging in union activities or other concerted activities
for their mutual aid and protection.
WE WILL NOT create an impression among our em-
ployees that their union activities are under surveillance.
WE WILL NOT issue any rule prohibiting or discour-
aging our employees from discussing the Union at the
jobsite.
WE WILL NOT inform our employees that it would
be futile for them to select the Union as their bargaining
representative.
WE WILL NOT convey to our employees that we in-
tend to discharge employees for engaging in union activi-
ties.
WE WILL NOT issue oral or written warning to em-
ployees because they engaged in union activities and/or
to discourage employees from engaging in union activi-
ties.
WE WILL NOT discharge employees because they
engaged in union activities or other protected, concerted
activities and/or to discourage employees from engaging
in such activities or becoming members of a labor or-
ganization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise the
rights guaranteed them by Section 7 of the Act.
WE WILL rescind the oral and written warnings we is-
sued on January 16 and 20, 1998, to our employee Billy
Ray Spencley and remove all references to them from
our files.
WE WILL, within 14 days from the date of the
Board’s Order, offer Billy Ray Spencley and William
Jeffrey Wesley full reinstatement to their former posi-
tions, or to substantially equivalent positions if their for-
mer position are no longer available, without prejudice to
their seniority or any other rights or privileges previously
enjoyed.
WE WILL make Billy Ray Spencley and William Jef-
frey Wesley whole for any loss of earnings and other
benefits resulting from their discharges, less any net in-
terim earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any references to
the discharges of Spencley and Wesley, and WE WILL,
within 3 days thereafter, notify each of them in writing
that this has been done and that the discharges will not be
used against them in any way.

THE HAYS CORPORATION

John Doyle Jr., Esq., for the General Counsel.
Michael P. Davis, Esq. (Shapiro, Fussell, Wedge, Smotherman,
& Martin), of Atlanta, Georgia, for the Respondent.
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. I heard
this case on June 8, 1998, in Birmingham, Alabama. After the
parties rested, I heard oral argument, and on the same date,
issued a Bench Decision pursuant to Section 102.35(a)(1) of the
Board’s Rules and Regulations, setting forth findings of fact
and conclusions of law. In accordance with Section 102.45 of
the Rules and Regulations, I certify the accuracy of, and attach
hereto as “Appendix A,” the portion of the transcript containing
this decision. The remedy, Order, and notice provisions are set
forth 1below.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-

1 The complaint identifies the Charging Party in Case 10–CA–
30759–1 as Jeff Wesley. His complete name is William Jeffrey
Wesley.
References in the transcript to “Bobby Drain” are to Bobby Ray
Drane. I order the transcript corrected to reflect the proper spelling of
his name, and further order it corrected in accordance with app. C
(omitted from publication) to this Certification.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 52

ate the policies of the Act, including posting the notice to em-
ployees attached hereto as “Appendix B.”
The complaint alleges that Respondent promulgated two
rules which interfered with, restrained, and coerced employees
in the exercise of their Section 7 rights. Complaint paragraph 9
alleges, and I have found, that on about January 12, 1998, the
Respondent, by General Foreman Richard Morris, promulgated
the following work rule: “I don’t want to hear any Union bull-
shit on this job.” As stated in the attached Bench Decision, I
find that this rule violates Section 8(a)(1) of the Act.
Complaint paragraph 12 alleges that on or about January 23,
1998, Respondent promulgated and maintained a rule that em-
ployees may not wear hardhats bearing stickers or writing
placed on such hardhats after the hardhats had been distributed
to the employees. The record does not establish that Respon-
dent maintained any rule which selectively prohibited employ-
ees from displaying union stickers or insignia on the hardhats
issued to them by the Respondent.
Respondent had a longstanding rule requiring its employees
to wear hardhats bearing its logo. The record also indicates that
Respondent required an employee’s hardhat to display a sticker
showing that the employee had completed a safety orientation.
However, the credited evidence does not establish that Respon-
dent announced or enforced any rule which precluded employ-
ees from wearing union stickers on other parts of their hard-
hats.2 Because the record does not prove the violation alleged
in complaint paragraph 12, it will not be included in the Re-
medy.
The Respondent unlawfully issued a verbal and written
warning to Spencley on January 16 and 20, 1998, and unlaw-
fully discharged him on January 23, 1998. To remedy these
violations, Respondent must rescind the warnings and expunge
all references to them from its files. Additionally, Respondent
unlawfully discharged Wesley. Therefore, it must offer Spen-
cley and Wesley immediate and full reinstatement to their for-
mer jobs, or if these positions are not available, to substantially
equivalent positions, and make them whole, with interest, for
all losses which they suffered because of the Respondent’s
unlawful discrimination against them.3

2 Based on the credited testimony of Wayne Passmore (Tr. 303), I
find that Respondent did not prohibit its employees from placing stick-
ers on their hardhats so long as the stickers did not cover the logo or
other emblems which needed to be seen for safety or accounting pur-
poses. The record does not establish any instance of an employee plac-
ing a union sticker on a hardhat and receiving a warning or other disci-
pline because of it.
The Respondent did discipline employees who defaced the logo by
changing the name “Hays“ to “HaHa“ and, as stated in the Bench Deci-
sion, the Respondent disciplined a union adherent more severely. Sin-
gling out the union adherent for more stringent discipline clearly vio-
lated Sec. 8(a)(1) and (3), but it does not follow either that defacing the
logo constituted protected activity or that the Respondent could not
apply discipline in a lawful and evenhanded manner to employees who
defaced the logo. Clearly, Respondent has a legitimate business inter-
est in maintaining the appearance of its logo and in assuring that certain
other emblems on the hardhat remain visible.
3 Backpay shall be computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as set forth in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
On the findings of fact and conclusions of law here, and on
the entire record in this case, I issue the following recom-
mended4
ORDER
The Respondent, The Hays Corporation, Decatur, Alabama,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to discharge employees for engaging in un-
ion activities or other protected concerted activities for their
mutual aid and protection.
(b) Creating an impression among its employees that their
union activities were under surveillance.
(c) Informing employees that management did not “want to
hear any Union bullshit on this job” or otherwise promulgating
rules prohibiting them from discussing the Union at the job site
or from displaying union insignia on their hardhats.
(d) Informing employees that it would be futile for them to
select the Union as their bargaining representative.
(e) Conveying to employees that it intended to discharge cer-
tain employees for engaging in union activities.
(f) Issuing oral or written warnings to employees because
they engaged in union activities and/or to discourage employ-
ees from engaging in union activities.
(g) Discharging employees because they engaged in union
activities or other protected, concerted activities and/or to dis-
courage employees from engaging in such activities or becom-
ing members of a labor organization.
(h) In any like or related manner, interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the oral and written warnings it issued on Janu-
ary 16 and 20, 1998, to its employee, Billy Ray Spencley, and
expunge all references to them from its files.
(b) Offer Billy Ray Spencley and William Jeffrey Wesley
immediate and full reinstatement to their former positions, or to
substantially equivalent positions of their former positions are
no longer available, and make them whole, with interest, for all
losses they suffered because of Respondent’s unlawful
discrimination against them.
(c) Preserve and, on request, make available to the Board or
its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Within 14 days after service by the Region,5 post at its
facility in Decatur, Alabama, and at all other places where no-
tices customarily are posted, copies of the attached notice
4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
5 See Indian Hills Care Center, 321 NLRB 144 (1996).

HAYS CORP. 53
marked “Appendix B.”6 Copies of the notice, on forms pro-
vided by the Regional Director for Region 10, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately on receipt and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees customarily are posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since July 12, 1995. See Excel Con-
tainer, Inc., 325 NLRB 17 (1997), modifying Indian Hills Care
Center, 321 NLRB 144 (1996).
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has taken
to comply.

APPENDIX A

BENCH DECISION

[Errors in the transcript have been noted and corrected.]

375
1998 the so-called I don’t want to hear any more of this Union
bullshit on the job by Mr. Morris, you heard Mr. Passmore
testify that he heard no such comment. You also heard Mr.
Passmore testify that never once on the job did he see people
wearing any kind of Union insignias, logos and so forth, nor did
he hear any statements by anyone, whether it be supervisors or
line employees, that there was any type of an issue or an inter-
est over Union involvement on the Bungie project.
In conclusion, Your Honor, what we have here is volumi-
nous documentation that this Company, Hays, implemented
neutral rules and applied them fairly, consistently across the
board and showed no anti-Union animus in the discharge of
Messrs. Wesley and Spencley. What we do leave is evidence
of greed, the interest of obtaining money for nothing, and that’s
what this case is about.

Thank you, Your Honor.

JUDGE LOCKE: Thank you both very much. It is now 8:49,
and so to make a realistic estimate it’s going to take me about
an hour, so we will resume at 9:45 and I will issue a bench
decision at that time. So, we’ll be off the record until 9:45.

(OFF THE RECORD)

D E C I S I O N

JUDGE LOCKE: This is a bench decision in the case of The
Hays Corporation, Respondent, and Jeff Wesley, an individual,
and Billy Ray Spencley, an individual, Cases 10–CA–30759–1,
10–

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
376
CA–30759–2, and 10–CA–30759–3. It is issued pursuant to
Section 102.35, subparagraph 10, and Section 102.45 of the
Board’s Rules and Regulations. These cases were consolidated
for hearing. On May 5th, 1998, the Regional Director for Re-
gion 10 of the National Labor Relations Board issued an Order
Consolidating Cases, Consolidated Complaint and Notice of
Hearing which I will refer to as the Complaint. I conducted the
hearing on June 8, 1998 in Birmingham, Alabama.
Respondent has admitted in its Answer the allegations raised
in paragraphs 1, 2, 3 and 4 of the General Counsel’s Complaint.
Based upon those admissions and the record as a whole, I make
the following findings of fact:
The charging case 10-CA-3075--1 was filed by Charging
Party Wesley on January 22, 1998, and a copy was served by
regular mail upon the Respondent upon the same date. The
charging case 10-CA-30759-2 was filed by Charging Party
Spencley on February 26, 1998, and a copy was served by regu-
lar mail upon Respondent on March 6, 1998. The charging case
10-CA-30759-3 was filed by Charging Party Spencley on April
13, 1998, and a copy was served by regular mail upon Respon-
dent on the same date. At all times material to this case, Re-
spondent has been a Georgia corporation with an office and
place of business in Decatur, Georgia. During the 12 months
before the Complaint issued, the Respondent provided me-
chanical contractor services on commercial and industrial con-
struction projects valued in
377
excess of $50,000.00 directly to customers located outside the
State of Alabama. Respondent has admitted, and I find, that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Respondent has also admitted, and I find, that the following
individuals are supervisors within the meaning of Section 2(11)
of the Act and its agents within the meaning of Section 2(13) of
the Act: Corporate Safety Director, Jerry Bordreaux; Project
Superintendent, Wayne Passmore; General Foreman, Richard
Morris; and Foreman, James Keys.
Respondent has admitted the allegations in paragraph 14 of
the Complaint that on or about January 9, 1998 it discharged its
employee, Jeff Wesley. I find that it did terminate the em-
ployment of William Jeffrey Wesley on that date.
Respondent has admitted the allegations in paragraphs 15 (a)
thru 15 (d) of the Complaint. I find that on January 16, 1998,
Respondent issued a second verbal warning and a first written
warning to its employee, Billy Ray Spencley. Additionally, in
accordance with the Respondent’s admissions, I find that on
January 20, 1998, it issued a second warning – second written
warning to Spencley and discharged him on January 23, 1998.
Respondent’s Answer did not admit the allegations in Para-
graph 5 of the Act that Plumbers and Steamfitters Local Union
377 has been at all—times herein a labor organization

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 54

378
within the meaning of Section 2(5) of the Act. Based upon the
credited testimony of Bobby Ray Drane, an organizer for Local
377, I find that it is such a labor organization and will refer to it
in this decision as the Union.
Respondent has denied the other allegations in the Com-
plaint. Based upon the evidence received at the hearing, I make
the following findings:
On or about December 16, 1998, the Respondent hired Billy
Ray Spencley and William Jeffrey Wesley to work at a con-
struction site called the Bungie Project. Although Respondent
hired Spencley as a pipefitter he did a variety of construction
work while employed on this project. Wesley is a pipe welder.
On or about January 7, 1998, Spencley and Wesley went to the
Union Hall where they met with an organizer, Bobby Drane,
and other Union officials. They applied for membership in the
Union and obtained various items such as hats and stickers
which bore the Union insignia.
At a safety meeting the next day, Wesley complained to gen-
eral foreman, Richard Morris, and foreman, James Keys, about
not having adequate facilities to wash up and to eat. Spencley
testified that Morris replied that he had worked a lot of jobs
lacking such facilities and that it Wesley didn’t like it he should
go somewhere else to work. Morris did not testify. Crediting
Spencley’s—I’m sorry, crediting Spencley’s uncontradicted
testimony, I find that Morris made this comment.
Before proceeding further, I will address Respondent’s
379
argument that no adverse inference should be drawn from the
failure of Morris and Keys to testify because these witnesses
are engaged in the construction industry, work over a wide
geographical area, and are hard to locate. It may be noted that
under the Board’s rules the Respondent is entitled to use the
Board’s subpoena process which has nationwide jurisdiction to
compel the appearance of witnesses. The record does not indi-
cate whether Respondent attempted to subpoena its former
supervisors to testify. However, a distinction may be drawn
between drawing an adverse inference from the witness’s fail-
ure to testify and simply crediting the uncontradicted testimony
of a witness who did testify. I recognize that the Board is not
bound to accept as credible testimony—to accept as credible
testimony that is uncontradicted. However, I would be reluctant
to reject uncontradicted testimony in the absence of some clear
indication that the testimony is faulty. The record does not pre-
sent any obvious reason to doubt the uncontradicted testimony
which I credit here.
Spencley also testified without contradiction that at this
meeting he then said that OSHA had certain requirements. I
find that the actions of Wesley and Spencley at this meeting
were concerted activities concerning terms and conditions of
employment and were protected by the National Labor Rela-
tions Act. I further find that the Respondent was aware of these
activities because Spencley and Wesley made these statements
in
380
the presence of Respondent’s admitted supervisors.
Wesley testified that he did contact the Occupational Safety
and Health Administration, or OSHA, about these working
conditions. His testimony is consistent with the January 13,
1998 letter from OSHA to the Respondent in evidence as Re-
spondent’s Exhibit 10. I find that Wesley did contact this Fed-
eral agency and that this action in these circumstances also
constituted protected and concerted activity. I do not find that
the Respondent knew that Wesley had made such a contact at
the time Respondent discharged Wesley. On that date, January
9, 1998, Respondent had not yet received the letter from
OSHA. However, Respondent did know of Wesley’s protected
activity speaking out at the safety meeting on January 8th,
1998. Wesley credibly testified that he had placed a Union
sticker on his lunch box. I find that in all likelihood Respondent
also was aware of this Union sticker.
At noon on January 9, 1998, Wesley went to lunch. Before
leaving the jobsite he turned in the brass coin or medallion
which had his employer—or rather had his employee number
on it. He turned it in to the secretary in the Respondent’s trailer
office. When he returned from lunch, foreman Keys told
Wesley to see project superintendent Passmore. Wesley testi-
fied that Passmore told him that it did not appear that Wesley
wanted to abide by Company policies or be part of the Com-
pany and discharged him. Although the discharge is not in
dispute, the motivation
381
for it is.
Respondent contends that it discharged Wesley for infrac-
tions which include poor attendance, which Wesley admitted,
and for failing to abide by its policy of getting a supervisor’s
permission before leaving the jobsite. Before addressing this
issue, it is necessary to consider other evidence concerning
motivation.
Spencley testified that after Wesley’s discharge he had a
conversation with foreman Keys in a building at the jobsite. No
one else was present when Keys called Spencley over. Accord-
ing to Spencley, Keys said, “You know they’re gunning for
you,” adding, “I got rid of Jeff.” By Jeff, I conclude that Keys
was referring to Wesley. Keys added that Richard Morris, the
general foreman, was “gunning for” Spencley more than
Wayne Passmore was gunning for him. Passmore was the pro-
ject superintendent, and Keys explained that Richard Morris
was gunning for him because Spencley was a trouble maker
and they wanted to take him off the job. According to Spencley,
Keys said that management was mad at Spencley because of
the Union insignia which he wore.
Keys did not testify, and I credit Spencley’s uncontradicted
testimony for the reasons I discussed above. I further find that
Keys’ statements violate Section 8(a)(1) of the Act as alleged in
paragraph 7 and 17 of the Complaint. Spencley also testified
that after Wesley’s discharge there was
382
a meeting at which Passmore and general foreman Morris
spoke. According to Spenciey, Passmore said that Wesley had
been terminated because “he did not want to be a team player.
That’s how Hays Corporation deals with people who don’t
want to be team players.” Spencley further testified that Morris

HAYS CORP. 55
said, “I understand some of you have been up to the Union
Hall. This is a non-Union company and I hope there will be no
Union bullshit”. Although Morris did not testify, Passmore
denied hearing Morris make any comment about Union bull-
shit. Although I credit Passmore’s testimony that he did not
hear the “Union bullshit” comment, nonetheless I find that
Morris said it. Before I explain my reasoning hers, I wish to
discuss the credibility of Passmore as a witness.
Passmore impressed me as a reliable witness and he certainly
was a disinterested one. If anything, he might be expected to
testify adversely to the Respondent which had discharged him
from the position of project superintendent in March, 1998.
Based on his demeanor. Spencley also impressed me as being
truthful. Additionally, Spencley did not seem to exaggerate to
make his case appear stronger. Since both he and Passmore
presented as highly believable witnesses, resolving the conflicts
presented by their testimony is difficult. I do so based on the
interest which each of these witnesses had in the outcome of
this proceeding. Spencley had more to gain from the outcome
of this proceeding than did Passmore. Based upon
383
that criterion, I credit Passmore.
Additionally, I might note that Spencley further testified that
on the day Passmore discharged him, Passmore took Spencley’s
hard hat bearing the Union sticker, hit it on the floor, told
Spencley that he was fired, and made a comment about “Union
bullshit.” Those actions seem quite out of keeping with Pass-
more’s temperament as displayed on the witness stand. I real-
ize, of course, that Passmore was under a lot of stress at this
point in his career, and eventually his employment with Hays
Corporation was terminated. But even so, it seems a bit
unlikely that he would express himself so dramatically as Spen-
cley testified. So, I find that Passmore did not make the com-
ments attributed to him by Spencley at Spencley’s termination
interview.
However, returning to the earlier meeting at which Passmore
and Morris both were present, I do find that Passmore made the
comment not—I’m sorry, I do find that Morris made the com-
ment which was not heard by Passmore that he did not want to
hear any “Union bullshit” on the job.
Another witness, job applicant Brown Shearer, testified that
Morris made a comment about “Union bullshit” when Shearer
spoke with him by telephone. I credit Shearer’s uncontradicted
testimony and having found that Morris made the comment
once in his telephone call with Shearer, I believe it is likely that
Morris made it twice, namely that lie also made it during the
384
meeting at which Passmore was also present. I, therefore, find
that he made the comment at the meting described by Spencley.
Getting back for a moment to the job -to the telephone con-
versation which job applicant Shearer had with Morris, cer-
tainly as a job applicant Shearer enjoys the rights of an em-
ployee under the Act. Therefore, I would conclude that if the
comment made by Morris about Union bullshit had been al-
leged in the Complaint, it would have been found to be viola-
tive. However, the remedy for such a comment would be the
same as the remedy for the Section 8(a)(1) violations alleged in
the Complaint and established in this case. Therefore, the addi-
tion of such a violation would be cumulative. I will not add the
violation for that reason, but I will consider it, however, as
evidence of motive. And, as noted above, I also consider the
statement that Shearer testified Morris made as making it more
likely that Morris made a similar comment at the meeting with
employees and I find that Morris did make such a comment.
Turning now to the discharges of Spencley and of Wesley, I
will take up first the discharge of Spencley. Without doubt,
Spencley and several other employees modified their flays
Corporation logos on their helmets to read “HaHa” instead of
Hays. Also without doubt, this action violated the Respondent’s
promulgated rules, a copy of which Spencley had received and
which he had signed for. Passmore discharged
385
Spencley in part for this action on January 23rd, 1998. As
noted already, I do not find that Passmore expressed anti-Union
sentiments as described in Spencley’s testimony. However,
there’s other evidence of animus in the record which I have
already discussed. I will evaluate Spencley’s discharge under
the framework established by the Board in Wright Line, 251
NLRB 1083 (1980), enforced 662 F.2d 889, (1st Circuit 1981)
certiorari denied 445 U.S. 989 (1982). Under Wright Line, the
General Counsel must first make a prima facie showing “suffi-
cient to support the inference that protected conduct was a mo-
tivating factor in the employer’s decision to take the action
which allegedly violated Section 8(a)(3). Once the General
Counsel has made such a slowing, the burden then shifts to the
employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct. If the Gen-
eral Counsel does not present evidence establishing such a
prima facie case, the Respondent does not have to demonstrate
that it would have taken the adverse employment action any-
way.
The General Counsel may establish the prima facie case by
Proving the following four elements. One, the alleged dis-
criminatee engaged in Union or protected concerted activities;
two, the Respondent knew about such activities; three, the Re-
spondent took an adverse action against the alleged discrimina-
tee; and four, there is a link or nexus between the protected
activities and the adverse employment action. I find
386
that the General Counsel has established that Spencley engaged
in Union protected concerted activities and that the Respondent
knew about such activities and that the Respondent took ad-
verse employment action against Spencley. These actions are
described in Complaint paragraph 15. Earlier I have described
the protected concerted activities which included going to the
Union Hall, displaying a Union—Union insignia, speaking out
at the employee meeting about working conditions, and also
raising the possibility of an OSHA complaint, although it was
Wesley who actually filed such a complaint.
Additionally, the timing, as well as the evidence of animus
that I’ve already discussed, established the nexus or necessary
link. Therefore, I find that the General Counsel has established

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 56

a prima facie case. The burden then shifts to Respondent to
show that it would have discharged Spencley regardless of his
Union activities. Respondent demonstrates that Spencley did, in
fact, violate the work rules about defacing of hard hats and that
he also had some attendance violations. However, three em-
ployees had defaced their hard hats in similar ways. The Re-
spondent discharged one of them, Spencley. Another employee
disappeared resulting in his discharge, but the evidence does
not establish that he would have been discharged necessarily
had he remained rather than disappeared. The Respondent did
not discharge the third employee. This treatment leads me to
conclude that
387
Respondent has failed to show that it would have discharged
Spencley but for his protected activity. Therefore, I find that
Respondent has not rebutted the General Counsel’s prima facie
case with respect to Spencley.
I find—reach a similar conclusion with respect to the earlier
warnings which Respondent issued to Spencley. For example,
it seems highly unlikely that local management would have
disciplined Spencley for being out of his area when it was
aware that Spencley was at the time speaking with a corporate
level official of the Respondent, safety coordinator, Jerry
Boudreaux. That is, it would have been unlikely for Respondent
to do so unless Respondent were locking for a way of getting
rid—for getting back at an employee it perceived as a trouble
maker because of his protected activity. Additionally, I do not
find convincing Respondent’s defense that part of the disap-
pointment for—part of the reason for disciplining Spencley
concerned non-compliance with the early out policy. Applying
that there is a failure to establish that such policy was uniformly
enforced at the time.
I find the Wright Line analysis to the discharge of Wesley—I
similarly find that the General Counsel has not established a
prima facie case—I’m sorry, I similarly find that the General
Counsel has established a prima facie case which the Respon-
dent has not rebutted. In this regard, Wesley’s protected activity
includes not only Union activity in meeting with the
388
Union but also in speaking out about the perceived safety viola-
tions or other problems with wash up and eating areas at the
jobsite and also his protected activity included actually filing
the OSHA, not technically a Complaint, but actually contacting
OSHA. I should qualify all of that by stating that although I
find the evidence sufficient to show that Respondent was aware
of Wesley’s protected activity in raising the OSHA and work-
ing condition issues, Respondent was not aware at the time it
discharged Wesley that Wesley had actually gone ahead and
contacted OSHA.
However, I find that Respondent’s knowledge of the pro-
tected activities that Wesley did engage in apart from contact-
ing OSHA and the evidence of animus which I’ve already dis-
cussed and the timing which I find highly suspicious in this
case were sufficient to establish the necessary link or nexus to
prove a prima facie case, and I find that counsel has proven a
prima facie case in respect to Wesley. I also find that the Re-
spondent has not rebutted the General Counsel’s prima facie
case with respect to Wesley.
In summary, I find that the discipline and discharge of Spen-
cley and the discharge of Wesley were violative in the manner
alleged in the Complaint, and I order Respondent to reinstate
them to their same positions or to substantially equivalent posi-
tions if their former positions no longer exist and to make them
whole with interest for all losses they
389
suffered because of the discrimination against them. I shall also
order Respondent to post a notice addressing unfair labor prac-
tices found herein.
Upon receipt of the transcript of this proceeding, I will issue
a certification which, together with the transcript of this bench
decision, will be served upon the parties. This certification will
also include the Order, Remedy and Notice provisions to ad-
dress the violations found herein. The time period for an appeal
to the Board will begin—upon service of this certification.
It is now 11:05 p.m., and I realize the parties wish this pro-
ceeding to conclude this evening, but I do appreciate their pa-
tience in waiting the extra amount of time it took while I pre-
pared this decision. I also greatly appreciate and sincerely ap-
preciate the true courtesy and professionalism which both at-
torneys have consistently demonstrated here.
The hearing is closed.
(Whereupon, the hearing in the above entitled matter was
closed at 11:10 p.m. Central Standard Time)