Irwin Industries

National Labor Relations Board - Board Decisions

May 19, 1998

325 N.L.R.B. 796 (N.L.R.B. 1998)

796
325 NLRB No. 149
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Charging Party’s motion to strike the Respondent’s cross-ex-
ceptions is denied. The Respondent has a right to file cross-excep-
tions and a supporting brief under Sec. 102.46(e) of the Board’s
Rules because it is a ‘‘party who has not previously filed excep-
tions.’’
2 The Charging Party has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
3 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
4 Specifically, Materials Safety Data Sheets (MSDS), which con-
tain information regarding possible hazardous materials in the work
environment.
5 Among the witnesses credited by the judge was Omar Shair-Ali,
the Respondent’s day superintendent. In fn. 13 of his decision, the
judge expressed concern that the Charging Party may have engaged
in retaliation against Shair-Ali for testifying adversely to the Charg-
ing Party in the instant case. We do not rely on the judge’s state-
ments in fn. 13 of his decision. The matter discussed in that footnote
was neither alleged nor litigated during the hearing. In addition, the
matter raised in fn. 13 of the judge’s decision does not involve a
material issue in this case. Accordingly, we deny the Charging Par-
ty’s motion to reopen the record, which sought to introduce evidence
concerning this matter.
6 See ABF Freight System, Inc. v. NLRB, 510 U.S. 317 (1994) (the
Board is within its discretion in awarding reinstatement with back-
pay to discriminatee who falsely testified at administrative hearing);
Owens Illinois, 290 NLRB 1193 (1988) (the Board reinstated
discriminatee with full backpay despite five ‘‘examples of untruth-
fulness’’ in her testimony).
Irwin Industries, Inc. and International Brother-
hood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers, AFL–CIO.
Cases 31–CA–20526, 31–CA–20774, 31–CA–
20776, and 31–CA–20806
May 19, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
LIEBMAN
On September 18, 1996, Administrative Law Judge
Gerald A. Wacknov issued the attached decision. The
Charging Party filed exceptions and a supporting brief,
answering briefs and reply briefs. The Respondent
filed cross-exceptions and a supporting brief, a brief in
opposition to the Charging Party’s exceptions, a brief
in support of the administrative law judge’s decision,
and 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 exceptions1 and briefs and has
decided to affirm the judge’s rulings, findings,2 and
conclusions and to adopt the recommended Order as
modified and set forth in full below.
1. The judge found, and we agree, that the Respond-
ent did not violate Section 8(a)(3) and (1) of the Act
by discharging employees Kyle Evenson, Roger
Womack, and Robert Youngblood from its Ultrapower
job at Blue Lake, California. In adopting the judge’s
finding, we rely on his crediting of the Respondent’s
witnesses, who testified that the three employees were
discharged as a result of complaints by the contractor,
Ultrapower, that they had not performed a sufficient
number of welds during their shift on the evening of
November 2, 1993. Thus, we conclude that the Re-
spondent has carried its burden under Wright Line3 of
proving that it would have discharged the three em-
ployees even in the absence of their protected activity.
2. We do not agree, however, with the judge’s rec-
ommendation that the Charging Party Union be re-
quired to reimburse both the Respondent and the
Board for reasonable counsel fees and expenses in-
curred in the investigation and litigation of the charges
and complaint allegations pertaining to the Respond-
ent’s discharges of the three employees. The judge rec-
ommended this extraordinary reimbursement remedy
because he found (1) that the unfair labor practice
charges filed by the Charging Party were ‘‘frivolous,’’
‘‘bogus,’’ and ‘‘knowingly false’’ and (2) that the col-
lective participation of employees Evenson, Womack,
and Youngblood in endeavoring to obtain certain safe-
ty data4 ‘‘was contrived for the purpose of intentional
delay and was not undertaken in good faith,’’ but in-
stead was part of the Charging Party’s organizing cam-
paign strategy. We do not agree with the judge’s char-
acterization of the Charging Party’s charges, nor do we
agree that the record supports the finding that the three
above-named employees acted in bad faith on request-
ing the safety data in question.
Initially, we note that the judge’s conclusion that the
Respondent did not unlawfully discharge Evenson,
Womack, and Youngblood was based largely on his
credibility determinations regarding conflicting testi-
mony concerning the events at issue. Specifically, the
judge noted that the testimony of the Respondent’s
witnesses ‘‘is diametrically opposed’’ to the testimony
of the employees, and he decided to credit ‘‘the testi-
mony of each of the Respondent’s witnesses,’’ stating
that they were ‘‘forthright.’’ Thus, the complaint alle-
gations regarding the discharges at the Ultrapower job
essentially presented the judge with the commonplace
situation in which conflicts in testimony are resolved
by the crediting of certain witnesses5 and the discredit-
ing of others. Moreover, even untruthful testimony, al-
though never to be condoned, does not alone justify
the kind of extreme sanction imposed by the judge.6
In addition, testimony by the Respondent’s own wit-
nesses undercuts any notion that the unfair labor prac-
tice charges filed by the Charging Party were
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797IRWIN INDUSTRIES
7 The General Counsel contends that the Charging Party has en-
gaged in misconduct in this case which warrants referral of the mat-
ter to the Department of Justice for ‘‘possible prosecution for viola-
tion of criminal statutes protecting the Board’s processes.’’ Specifi-
cally, the General Counsel argues that employees Evenson, Womack,
and Youngblood ‘‘literally manufactured an unfair labor practice
. . . and then provided knowingly false testimony to give it sup-
port.’’ As discussed above, we do not agree with the judge that the
unfair labor practice charges related to the discharge of these three
employees were frivolous and knowingly false. Nor do we agree
with the General Counsel that there is evidence of abuse of the
Board’s processes with respect to these three employees’ testimony.
This case does not present a situation like that presented in
Multimatic Products, 288 NLRB 1279, 1335–1337 (1988), where
credited testimony by two former employees established that a union
fraudulently backdated their authorization cards in order to present
a majority showing when it demanded recognition from an employer.
The union in Multimatic thereafter lied about its conduct to Board
personnel during the investigation and litigation of the case. Under
these circumstances, the Board determined that the union’s conduct
warranted referral to the Department of Justice for possible criminal
prosecution. In contrast, here, at the end of the extensive hearing in
this case, the General Counsel delivered a closing argument asserting
the veracity of his witnesses and questioning the credibility of sev-
eral of the Respondent’s witnesses. There was no showing here that
the Charging Party created any fraudulent evidence. Rather, as men-
tioned above, the judge here simply credited one party’s testimony
over the other. Accordingly, in these circumstances, we decline to
refer the aforementioned matter to the Department of Justice.
8 Sec. 10(c) of the Act reads, in pertinent part:
If upon the preponderance of the testimony taken the Board
shall be of the opinion that any person named in the complaint
has engaged or is engaging in any such unfair labor practice,
then the Board shall state its findings of fact and shall issue or
cause to be served on such person an order requiring such per-
son to cease and desist from such unfair labor practice, and to
take such affirmative action . . . as will effectuate the policies
of this Act.
9 The judge cited Davis Supermarkets, 306 NLRB 426, 428
(1992); Heck’s, Inc., 215 NLRB 765 (1974); and Tidee Products,
196 NLRB 158 (1972), as authority for imposition of an affirmative
remedy against the Charging Party in this case. None of those cases,
however, stands for the proposition that the Board has the authority
to impose remedies against persons other than those named as re-
spondents in the complaint.
‘‘bogus.’’ Neil Harris, Ultrapower’s maintenance su-
pervisor at the Blue Lake site, testified that despite the
fact that two Ultrapower control room operators kept
logs of any ‘‘significant’’ events at the plant such as
a crew not working, sabotage or slowdowns, there
were no such notes in the logs for the periods of time
when Evenson, Womack, and Youngblood were work-
ing. Further, the record shows that during the events
in question, the crew consisting of these three employ-
ees offered to go to a different area of the plant and
perform other work during a period when they could
not perform their assigned work because of a ‘‘fan bal-
ancing.’’ Thus, the Charging Party had a reasonable
basis for believing that the discharges of Evenson,
Womack, and Youngblood were in retaliation for their
union activity. The fact that the Charging Party did not
ultimately prevail does not mean that its unfair labor
practice charges were frivolous.
Further, it is undisputed that employees had a right
to request Materials Safety Data Sheets (MSDS) and
that the Respondent was legally obligated to supply
them. It is further undisputed that a safety meeting
called by Ultrapower’s plant engineer, George
Nowland, not the employees’ request for the MSDS,
caused some of the delay in performing the employees’
welding on the evening in question. Further, even if
the employees had requested the meeting, Nowland
testified that it was not unusual for workers to ask for
safety meetings. At the meeting the three employees
told Neil Harris that they did not believe their work
area was safe. No one contradicted their claim and no
one present asked to see their work area. Rather, in re-
sponse to the employees’ expressed concern Harris
told them to ‘‘make it safe before you work.’’ In sum,
the record does not support the judge’s finding that the
employees’ request for the MSDS information was
frivolous and in bad faith. Accordingly, we find that
the Charging Party’s conduct here does not dem-
onstrate fraud and does not rise to the level of mis-
conduct that would warrant the remedy recommended
by the judge.7
We also find, in agreement with the General Coun-
sel, that the Board lacks the statutory authority to order
the reimbursement remedy recommended by the judge.
Section 10(c) of the Act empowers the Board to im-
pose remedies only upon persons ‘‘named in the com-
plaint,’’8 i.e., a respondent. Here, of course, the Charg-
ing Party is not a respondent and has not been found
to have violated the Act.9 See Teamsters Local 291
(Kaiser Industries), 236 NLRB 1100, 1106 fn. 20
(1978).
3. The judge also found that the Respondent did not
violate Section 8(a)(3) and (1) of the Act by refusing
to hire 30 job applicants who, with the Charging Par-
ty’s assistance, applied for work en masse and des-
ignated themselves as ‘‘volunteer union organizers’’ on
their applications. We agree with this finding, but we
do not rely on all of the rationale set forth by the
judge on this matter. Specifically, we do not adopt the
judge’s finding that the ‘‘Respondent was under no ob-
ligation to hire as employees any of the applicants who
announced they were volunteer union organizers’’ be-
cause of the Charging Party’s alleged prior misconduct
at the Ultrapower job, discussed above. The judge’s
finding is contrary to established Board precedent that
where an employer refuses to hire an individual or in-
dividuals who have written ‘‘volunteer union orga-
nizer’’ on their applications, it cannot use such des-
ignation to disqualify applicants for hire unless ‘‘any
of the applicants, in fact, engaged in disqualifying mis-
conduct.’’ Brown & Root U.S.A., 319 NLRB 1009,
1009 (1995). Here, there is no evidence that any of the
applicants engaged in any misconduct.
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798 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Accordingly, in agreeing with the judge’s dismissal
of the complaint allegations regarding the Respond-
ent’s failure to hire any of the aforementioned 30 ap-
plicants, we rely on the judge’s finding that at the time
of the mass application, the Respondent ‘‘was not in
a hiring mode,’’ ‘‘there was no work immediately
available for [the applicants],’’ and the Respondent’s
established practice was not to hire employees simply
on the basis of the submission of applications with no
followup contacts with the Respondent. The record
supports the judge’s finding that historically, employ-
ees of the Respondent were hired on the basis of refer-
rals, prior work experience with the Respondent, or
continued and persistent efforts to obtain work after
the submission of an application. Here, the evidence
shows that none of the 30 applicants who applied on
February 3, 1994, actively sought employment with the
Respondent after submitting their initial applications.
Thus, we agree with the judge that the record fails to
establish that the Respondent refused to hire any of the
30 applicants because of their union affiliation or ac-
tivity.
ORDER
The complaint is dismissed in its entirety.
Ann Cronin-Oizumi, Esq., for the General Counsel.
James T. Winkler, Esq., and Steven D. Atkinson, Esq. (Atkin-
son, Andelson, Loya, Ruud & Romo), of Cerritos, Califor-
nia, for the Respondent.
Michael J. Stapp, Esq. (Blake & Uhlig, P.A.), of Kansas
City, Kansas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursu-
ant to notice, a hearing in this matter was held before me
in Los Angeles, California, on July 17, 18, 19, 20, and No-
vember 6, 7, 8 and 9, 1995, and on January 23, 24, 25, 26,
and April 15 and 16, 1996. The charges in the captioned
cases were filed between the dates of April 19 and Septem-
ber 14, 1994, by International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL–
CIO (the Boilermakers or the Union). On February 16, 1995,
following the issuance of an initial complaint and a subse-
quent consolidated complaint, the Regional Director for Re-
gion 31 of the National Labor Relations Board (the Board)
issued a second consolidated complaint and notice of hearing
alleging violations by Irwin Industries, Inc. (the Respondent)
of Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended (the Act). The Respondent’s answer to the
second consolidated complaint, duly filed, denies that it has
engaged in the unfair labor practices as alleged.
The parties were afforded a full opportunity to be heard,
to call, examine and cross-examine witnesses, and to intro-
duce relevant evidence. In addition to the presentation of oral
final argument at the conclusion of the hearing by counsel
for the General Counsel and counsel for the Respondent,
briefs have been received from counsel for the Respondent
and counsel for the Union. Upon the entire record, and based
upon my observation of the witnesses and consideration of
the briefs submitted, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation with an office and place
of business in Long Beach, California, and with jobsites lo-
cated in California, Arizona, and elsewhere, and is engaged
in the business of performing maintenance, repair, and con-
struction work for oil refineries and utility companies. In the
course and conduct of its business operations the Respondent
annually sells and ships from its California locations goods
or services valued in excess of $50,000 directly to points lo-
cated outside the State of California, and annually derives
gross revenues in excess of $500,000. It is admitted, and I
find that at all times material herein the Employer has been
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that the Union is, and at all times
material, has been a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues in this proceeding are whether the Re-
spondent violated Section 8(a)(3) and (1) of the Act by dis-
charging certain employees at two separate jobsites, by refus-
ing to hire or reinstate employees at two other jobsites, and
by refusing to hire some 30 job applicants because of their
union membership and/or union organizing activities on be-
half of the Union.
B. The Facts
1. Background
The Respondent is engaged in the business of performing
maintenance, repair, and construction work for oil refineries
and utility companies. Its employees are represented by a
labor organization, the International Union of Petroleum and
Industrial Workers, SIUNA, AFL–CIO (the Petroleum Work-
ers), in a single over-all unit. At all times material herein,
the Respondent has had a collective-bargaining agreement
with the Petroleum Workers effective from June 1, 1993,
through May 31, 1996.
The Boilermakers Union does not regard the Petroleum
Workers as a legitimate labor organization, and considers the
Respondent to be a nonunion employer. Since about Novem-
ber 2, 1993, it has targeted the Respondent for inclusion in
its organizing program, named ‘‘Fight Back,’’ as a nonunion
employer, and has commenced certain covert and overt ac-
tivities in this regard, as described below. The allegations of
the consolidated complaint herein involve the alleged dis-
criminatory discharge of certain employees and the discrimi-
natory failure or refusal to hire other employees at certain
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799IRWIN INDUSTRIES
specified jobsites because of the Respondents’ desire to
thwart the Union’s organizing attempts.
2. The Ultrapower Job (Blue Lake, CA)
Prior to November 1993, the Respondent was engaged by
a utility company, Ultrapower, which operates a powerplant
for the production of electricity, to perform routine repair
and maintenance work during a scheduled semiannual shut-
down of the facility which is located at Blue Lake, Califor-
nia, about 60 miles from the Oregon border. This job (the
Blue Lake or Ultrapower job). At that point in time the Re-
spondent, which maintains its headquarters and main offices
in Long Beach, California, had a divisional office in Van-
couver, Washington, and its divisional manager, Vic
Allinger, staffed the Ultrapower job.
The Respondent customarily hires individuals, including
superintendents, foremen and crews for such work on an as
needed, job-by-job basis, and attempts to employ individuals
who have developed a favorable past employment history
with it. Thus, a week or two prior to November 1, 1993, Vic
Allinger, the Vancouver, Washington divisional manager of
the Respondent, contacted Gary Evenson who had performed
work for the Respondent on some 12 past occasions, and
asked Evenson if he would act as night superintendent on the
Blue Lake job. He also asked Evenson to bring his welding
crew with him, which consisted of his brother, Kyle
Evenson, Robert Youngblood, and Youngblood’s brother-in-
law, Roger Womack. Each of these individuals, who lived in
or around Tucson, Arizona, had worked on at least several
projects for the Respondent in the past, and were apparently
known to Allinger to be good workers. Allinger gave Gary
Evenson the option of flying to the jobsite or of renting a
van and driving with his crew to the site, and agreed that the
Respondent would pay the transportation costs. Gary
Evenson elected to rent a van and drive to the site, a distance
of over a thousand miles, and arrived with his crew at the
Blue Lake facility on the evening of November 1, 1993.
The Respondent’s total crew at the Blue Lake site con-
sisted of some 20 individuals, all apparently hired directly or
indirectly by Allinger. The crew included a day superintend-
ent, Omar Shair-Ali, who, because of his designation as day
superintendent, was considered to be the lead superintendent
over Night Superintendent Gary Evenson and therefore was
the highest ranking representative of the Respondent on the
job. In addition to the aforementioned superintendents, the
crew consisted of a day foreman, a night foreman, and ap-
proximately 16 employees, most of whom, apparently, were
welders. The record shows that the employment of Shair-Ali
for this job was also initiated by a phone call from Allinger
and, similarly, Shair-Ali was asked to bring a welding crew
with him. Further, the record shows that the designated fore-
men were similarly hired by Allinger, and were also asked
to bring additional crew members with them. It is clear that
the superintendents and foremen who bring crews with them
are, in effect, vouching for the competence of the men they
select.
The repair work ‘‘cost and materials’’ contract between
Ultrapower and the Respondent was scheduled to be per-
formed on a round-the-clock basis in some 5 or 6 days, and
sooner if possible, as in shutdown situations the powerplant
is off-line and time is of the essence. The day shift was
scheduled to commence work at 7 a.m. and work until 7 p.m.
each day, at which time the night shift would continue where
the day shift had left off and would work from 7 p.m. until
7 a.m. the following morning. Each superintendent had one
foreman and about eight other workers on the shift. Thus,
each was not only responsible for the work of the men he
personally brought to the site, but was also responsible for
the work of the entire shift.
Ultrapower personnel were also present during the shut-
down and, in addition to other work which they performed,
they had the responsibility of overseeing the work of the Re-
spondent’s crew in order to insure that the
maintenance/repair work was proceeding according to sched-
ule.
Gary Evenson and his brother, Kyle Evenson, in addition
to belonging to a local of the Union herein and working as
welders, have been employed by the Union for several years
prior to the incidents involved herein as paid international
representatives with the title of ‘‘Fight Back’’ organizers;
they earn substantial annual salaries for such efforts, in addi-
tion to the wages they receive from performing welding and
related work. According to the testimony of Gary Evenson,
the Fight Back campaign was initiated because of the erosion
of union membership, wages, benefits, and jobs, due to the
proliferation of nonunion employers; the purpose of the cam-
paign is to bring in more union members and obtain more
work for union members, and to organize employers with the
expectation that they will become signatory to union con-
tracts. In furtherance of these ends, the Fight Back campaign
strategy involves the process of obtaining employment with
nonunion contractors for the express purpose of organizing
their employees from the inside, as other methods of organiz-
ing had not proven to be successful. As Gary Evenson testi-
fied:
Our fight back program gives us a chance to showcase
the skill and training that our members receive . . . We
get a chance to go out and showcase these skills to
some of the non-union contractors and show them that
we’re the best, the most cost productive labor work
force available.
Gary Evenson testified that although he and other Boiler-
maker union members have been employed on a great num-
ber of the Respondent’s jobs in the past, the Union had not
yet commenced to apply its Fight Back tactics to the Re-
spondent as the jobs were for short durations and/or there
were not a sufficient number of employees on the jobs to
warrant the initiation of an overt organizing campaign. The
Blue Lake job fell into this category, and initially there was
no intention to engage in organizing activities at the Blue
Lake job.
However, when Gary Evenson and his crew arrived at the
Blue Lake site on November 1, 1993, for the start of the
evening shift, lead superintendent Shair-Ali, in addition to
outlining the work that Gary Evenson and the entire night
crew would be performing, presented Gary Evenson with the
following document, dated November 1, 1993, and asked
him to sign it:
I, Gary Evenson, hereby sign that I’m here for the best
interest of IRWIN INDUSTRIES INC. AND NOT for
the benefit of the International Brotherhood of Boiler-
makers as a ‘‘Union Organizer.’’
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800 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Apparently other members of the crew bring the platens to the
economizer and set them on the catwalk so that they are available
for the welding crew to bring them into the economizer and set them
in place prior to welding.
2 This is not to say that their testimony was entirely consistent; it
was not.
Evenson signed the document.
Shair-Ali testified that, as a precautionary measure, it was
his idea to have Gary Evenson sign the document as he was
well aware of Evenson’s activities as a union organizer.
Thus, Shair-Ali was also a member of a different local of the
Union and was familiar with Evenson’s organizing activities,
including Evenson’s conducting of Fight Back seminars be-
fore various groups of union members. Shair-Ali testified
that he had previously spoken to Allinger about the matter,
and Allinger agreed that Evenson’s signature on the fore-
going document would be appropriate under the cir-
cumstances, as Evenson was hired in a supervisory position
and the Respondent had a right to the allegiance of its super-
visors. Moreover, according to Shair-Ali, Allinger too was
well aware of Evenson’s activities as an organizer, as this
was rather common knowledge in the industry; however al-
though Evenson had worked for the Respondent many times
in the past, and had done an excellent job, the Union had
not overtly targeted the Respondent as an object of its orga-
nizing activities.
The following morning at the end of the night shift, Gary
Evenson phoned the Union’s director of organizing in Kan-
sas City and explained that when he and his crew had arrived
at work he had been asked to sign and did sign the afore-
mentioned letter. He explained to the director of organizing
that he, and by association, his crew, were no longer ‘‘under
cover’’ and had obviously been found out by the Respondent
and told him that, ‘‘Personally, I think it’s about time to kick
the campaign off now, because they found out about us I
thought it was time to go public with our campaign.’’ The
director of organizing granted this request.
Back at the motel where Gary Evenson and his crew were
staying, he explained the situation to his brother, Kyle
Evenson, who wrote out the following document addressed
to the Vancouver, Washington offices of the Respondent:
To all officers, supervisors, and/or agents of Irwin
Industries, Inc.Be advised.
The International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers, and Helpers and
your Construction, Maintenance, and Repair employees,
employed at the Ultra power facility in Blue Lake, Ca.
are currently engaged in organizing activities that are
protected under section 7 of the National Labor Rela-
tions Act.
The below listed employees wish to be identified as
the organizing committee.
The document is signed by employees Kyle Evenson, Wil-
lard Youngblood, and Roger Womak, and is again executed
by Kyle Evenson as ‘‘International Representative Organizer,
International Brotherhood of Boilermakers.’’
At the beginning of the night shift on November 2, 1993,
Kyle Evenson, accompanied by Youngblood, Womak, and a
local union representative, handed the document to Super-
intendent Shair-Ali. While Shair-Ali was reading it the three
employees conspicuously ‘‘badged up’’ by placing various
union buttons and stickers on their hardhats and clothing.
Also, at some point that evening, Gary Evenson placed a
union sticker on his hardhat.
Kyle Evensen, Youngblood, and Womak were then told to
go to work by the night-shift foreman, Rocky Waltman, and
were assigned by Waltman to start welding on tubes in a sec-
tion of the powerplant boiler called an economizer (some-
times also referred to in the transcript as the boiler). It is lo-
cated about seven stories up from ground level and is acces-
sible by stairs and catwalks. The economizer is a large, steel-
walled, insulated box-type room, several stories high, that
contains a series of tubes in which water is preheated prior
to entering the boiler; beneath the lower section of tubes in
the economizer is a hopper about 6 feet deep, in which resi-
due from the boiler is collected. Immediately above the hop-
per are 12 platens (also called tube bundles or tube assem-
blies) each consisting of nine long lengths of two-inch pipe
connected by ‘‘U’’ tubes in a serpentine configuration, which
are welded to tube ends (headers and risers) protruding from
the sides of the economizer.
On the first night shift Kyle Evensen, Youngblood, and
Womack were assigned to perform certain welding work on
new replacement platens in the fabrication shop on the
ground floor of the facility; these new platens were to be in-
stalled in the economizer. On the second night, these men
were assigned to install these new platens in the economizer.
Once the platens were brought up to the economizer from the
ground floor and set in place prior to welding,1 the welding
work essentially consists of making a total of 24 welds, one
lower weld and one upper weld for each platen.
It is admitted that the three employees only performed
three welds during the course of the entire 12-hour night
shift, and that they were capable of performing from 6 to ap-
proximately 10 or 12 welds under proper conditions.
The General Counsel and the Union attempt to justify this
apparent deficient productivity by contending that several
factors hampered the productivity of the crew: namely, that
the crew had to spend some 3 or more hours making the area
safe to work in; and that there was considerable ‘‘down
time’’ during the shift due to an intervening safety meeting
which consumed about an hour of worktime and, further, due
to a 3-hour delay during which the welding crew was in-
structed to come down from the economizer and wait until
other work (the balancing of a large fan) had been com-
pleted.
The Respondent, on the other hand, maintains that the
work area was in a clean and safe condition at the very start
of the shift and that no clean up time was necessary prior
to the commencement of welding, and, moreover, that the
down time was minimal. It is the Respondent’s further con-
tention that the evidence overwhelmingly shows that the four
individuals, namely, the three employees and Superintendent
Gary Evenson, were engaged in an intentional slowdown in
order to attempt to ‘‘manufacture’’ a bogus unfair labor prac-
tice scenario and/or to cause the Respondent to lose a cus-
tomer, Ultrapower, due to insufficient production.
It appears unnecessary to recount the specific testimony of
each of the four individuals regarding the condition of the
economizer work area at the start of the work shift on the
second night of work. Generally, each of them testified that
the work area was a hazard and a mess:2 there was insuffi-
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801IRWIN INDUSTRIES
3 The testimony of Kyle Evenson differs from the testimony of
Youngblood. Youngblood testified that he and Womack did not ac-
company Kyle Evenson to the first floor to seek MSDS information;
rather, Youngblood testified that he and Womack remained in the
economizer area ‘‘and kept removing debris from around the area
and getting boards together.’’ However, the record evidence is clear
that, in fact, the three of them went to the first floor together, and
that Youngblood and Womack did not remain in their assigned work
area and did not continue working during this time period.
cient lighting; the day shift had left welding hoses strewn
about rather than coiling them up; there was no proper scaf-
folding to provide a floor or platform above the hopper upon
which to work; the few planks set across some of the cross
members and used as scaffolding were not wired down and
there was an open drop of some 6 or 8 feet into the hopper
beneath the scant and insufficient scaffolding that was there;
the wool insulation batting removed from the steel skin or
wall of the economizer was strewn about and was not
bagged; and the steel skin of the economizer wall which had
been removed by the day shift was awkwardly hanging there
in a manner that hindered the work and was not properly
placed out of the way. All of these things, according to the
four individuals, impacted their safety and had to be rectified
prior to the commencement of welding and it took the crew
some 3 to 4 hours to accomplish this cleanup and preparatory
work before welding could begin.
The testimony of the Respondent’s witnesses is diamet-
rically opposed to the foregoing assertions of Gary Evenson
and his crew. Thus, each of the Respondent’s witnesses,
infra, testified that they observed the economizer area prior
to the arrival of the night shift, and that it was safe and in
excellent condition: there was sufficient lighting, the nec-
essary welding hoses were in place for the night-shift crew,
the insulation had been bagged up and was not in the way,
the steel skin of the economizer was set aside out of the
way, and a solid plywood scaffolding had been constructed
so that there was no danger of the men accidentally falling
into the hopper below the scaffolding.
In addition, the Respondent’s day superintendent, Omar
Shair-Ali, was responsible for the progress of the work, and
took photographs of the economizer area prior to the arrival
of the night crew on the night in question in order to docu-
ment the condition of the economizer at that point in time.
Each of the Respondent’s witnesses, upon looking at the
photographs, unequivocally confirmed that the photographs
were of the economizer in question and that they depicted
the condition of the economizer just prior to the arrival of
the night shift. Further, it is admitted by Kyle Evenson that
the photographs in question portray a work area that is safe
and hazard free and ready for the performance of welding
work. Thus, on rebuttal, upon looking at one of the photo-
graphs of the economizer area, Kyle Evenson testified that
he and the crew ‘‘would not have had to do a darn thing if
it had looked like that . . . I mean, that’s pretty nice. That’s
beautiful there. That’s nice scaffolding there.’’
Given the state of the record as set forth above, there
seems to be no ‘‘middle ground’’ or basis for honest dis-
agreement as to the condition of the economizer at the begin-
ning of the night shift on the evening of November 2, 1993.
Thus, if the photographs depict what Respondent’s witnesses
say they depict, then the testimony of the Evenson brothers,
and Youngblood and Womack is a total fabrication. Con-
versely, if the photographs are of some different economizer
at some different powerplant, or were perhaps taken at a dif-
ferent time, as contended by the Union, then the testimony
of the Respondent’s witnesses is intentionally false.
Kyle Evenson’s prior jobs with the Respondent were ob-
tained through Bub Williamson, a project superintendent for
the Respondent. Kyle Evenson testified that his brother Gary
hired him to work on the Blue Lake job as a welder. He
worked with a partner, Youngblood, and a mechanic or help-
er, Womack. A mechanic, according to Kyle Evenson, is
someone who preps the tubes, cleans them and does the lay-
out work on them ‘‘he might help you build a scaffold or
string leads, welding leads, hoses and stuff like that you
need.’’
Kyle Evenson testified that when the November 1, 1993
shift ended at 7 a.m., after discussing the matter with Gary
Evenson, he spoke to Youngblood and Womack ‘‘about
starting to attempt to organize the company because I was
afraid there was some people out on the job that recognized
who I was and we wanted to protect ourselves so we
wouldn’t . . . be laid off early or something like that without
having a chance to attempt to organize it.’’
According to Kyle Evenson, when the crew arrived at the
economizer on the evening of November 2, 1993, shortly
after 7 p.m., ‘‘it was pretty much of a mess up there,’’ and
Evenson proceeded to describe the condition of the econo-
mizer as set forth summarily above. Evenson then testified
that he and his crew started straightening things up a little
bit, and observed that on the inside of the economizer ‘‘there
was a bunch of ash in there and dust and stuff.’’ This obser-
vation caused them concern over the possibility of unknown
health hazards, and they decided that they should inquire
about the safety of the interior of the economizer.
Accordingly, at about 7:30 p.m., the three of them went
down to the ground floor to look for Superintendent Shair-
Ali. They handed him a written paper, signed by each of
them, asking for implementation of the hazardous commu-
nications program, and requested the Materials Safety Data
Sheets (MSDS) which contain information regarding possible
hazardous materials in the work environment. According to
Evenson, they sought to obtain this information prior to the
time they commenced to clean up the area, as the MSDS re-
ports would contain a written list of hazards to which the
men could possibly be exposed. The paper, according to
Evenson, said something to the effect that ‘‘the below-listed
employees request to see the written hazardous communica-
tions program.’’ Seeking out Shair-Ali consumed, according
to Evensen, approximately a half-hour, as the crew had to
walk some seven stories down to the first floor to find Shair-
Ali, and then return to the economizer. Shair-Ali told them
that he would look into their request, and they then went
back to the economizer and began cleaning up the work area
‘‘a little bit more.’’3 At about 8 p.m., Superintendent Gary
Evensen came up and instructed them to attend a safety
meeting for the entire crew that was being held as a result
of their safety related request. George Nowland, the plant
safety man for Ultrapower, conducted the meeting and an-
swered all their safety questions to their satisfaction. In addi-
tion, the Material Data Safety Sheets were made available to
them, and they were assured that there were no hazardous
wastes in the economizer as the boiler in that plant burned
only wood chips. This meeting lasted about 45 minutes or
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802 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 However, Youngblood testified that they ‘‘probably never started
welding until the second half of the shift at some point.’’
so. Then, according to Kyle Evenson, at about 9 p.m. every-
one went back to work.
Kyle Evenson testified that he and his crew continued
cleaning up the economizer area and bringing in scaffolding
for about 3 hours, and then began welding tubes for a short
time4 when, at about 12:30 a.m., a half hour before the cus-
tomary lunchtime, Gary Evenson came back up to the econo-
mizer and told them to stop work and go to lunch a little
early because a large fan was about to be ‘‘balanced.’’ Bal-
ancing the fan, an operation performed by a different con-
tractor, involved starting the fan and testing its performance
with specialized sensing equipment; because of this, the work
in the economizer had to be halted as the breeze from the
fan could effect the welding process. Thus, according to Kyle
Evenson, the crew left the economizer around 12 midnight
or so, had lunch, and then sat in their van which was parked
about 20 feet from the tool room where the rest of the night
crew had congregated. It took 3 to 4 hours to balance the
fan, during which time the entire night shift remained idle.
Kyle Evenson testified that Gary Evenson directed Kyle and
his crew to go back to work just before clean up time, which
was about 20 minutes to 7 a.m.
During the entire shift Kyle Evenson and his crew com-
pleted only three welds: Evenson welded one tube by himself
and he and Youngblood welded two tubes as partners (appar-
ently Womack assisted them); they actually spent only about
2 or 3 hours performing welding work during the 12-hour
shift, as the safety meeting, the cleaning up of the econo-
mizer and erecting of scaffolding, lunch, and the shut down
time for the fan balancing consumed the remaining nine or
so hours.
The next evening when they arrived at work they went
into the tool room to sign in and Kyle Evenson heard Vic
Allinger, who had traveled to the jobsite from Vancouver,
Washington, ask Gary Evenson to step outside the van.
Allinger said that the Ultrapower people had complained that
production was really down the night before and that they
wanted the whole night shift fired. Then Gary Evenson told
the entire night shift that they had been laid off, and they
were all given layoff slips either by Allinger or by Shair-Ali.
The next day, November 4, 1994, Kyle Evenson, Young-
blood, and Womack established a picket line at the site. They
carried picket signs for 2 days with the following legend:
Irwin Industries, Inc., Unfair Labor Practices, International
Brotherhood of Boilermakers, AFL–CIO–CFL. Gary Evenson
did not participate in the picketing. Then they were told that
the day shift had worked all through the night of November
3, 1994, and all through the next day, and had completed the
job at about 4 p.m. on November 4, 1994. At this point the
picketing was discontinued, and Gary Evenson and his crew
left the area.
Kyle Evenson described his work as an organizer: He was
to hire in with nonunion contractors and attempt to organize
them because its easier to organize from the inside; and he
was to solicit authorization cards from the workers, solicit
union membership, and seek an election.
Neil Harris is the maintenance supervisor for Ultrapower.
Harris testified that he contacted the Respondent to perform
some of the maintenance during the semiannual scheduled
maintenance shutdown of the plant. During the shutdown the
maintenance work was ongoing around the clock, and Harris
was on the 7 a.m. to 7 p.m. shift; his counterpart, George
Nowland, was the nighttime supervisor from 7 p.m. until 7
a.m. The purpose for this 24-hour schedule was to finish the
job in the least amount of time so the plant could be placed
back online as soon as possible, as downtime, when elec-
tricity was not being sold to the consumer, was nonproduc-
tive and therefore deprived the company of revenue.
Harris testified that on November 2, 1993, the afternoon
of the second day of the shutdown, he made his usual rounds
to make safety checks and to insure that the maintenance
work was progressing. At about 4 p.m. that afternoon he
went up to the economizer and observed that the day shift
had removed the economizer skin and had bagged up the
wool insulation that had been inside the wall and had placed
it in plastic bags that Harris had furnished the day shift for
this purpose. At the most, according to Harris, there may
have been a few isolated fragments of insulation on the floor,
as it falls apart pretty easily. He also observed that a hole
had been cut in the skin of the boiler for the purpose of per-
mitting the welders to have access to a particular weld on
one of the platens that was positioned against the side wall
of the boiler.
Harris testified that the following morning, when he re-
turned to the plant, he received a report from the night super-
visor, Nowland, who advised him that the night shift econo-
mizer crew wasn’t getting any work done, that there was
very little production, and that they had only performed three
welds all night. Nowland expressed his concern with this
lack of production and the fact that the maintenance work
was falling behind schedule. He reported to Harris that it
seemed that the Respondent’s night welding superintendent
and his ‘‘buddies’’ seemed to be slowing things down, but
that the remainder of night crew seemed to be trying to get
the job done. At that point Harris and Nowland spoke with
Respondent’s day shift superintendent, Omar Shair-Ali, about
the matter, and asked him what was going on. Shair-Ali said
that there was ‘‘some union thing going on,’’ but he did not
elaborate. Harris told him that he and Nowland were very
dissatisfied with the amount of production done on the night
shift by the Respondent’s employees.
Shortly thereafter, Harris phoned Respondent’s manager,
Vic Allinger, at the Respondent’s Vancouver, Washington
office. He told Allinger the following:
I told him that the night crew wasn’t getting any-
thing done. The supervisor and some of his buddies
seemed to be slowing things down. I told him there
were portions of the night crew that wanted to work but
it didn’t seem like they were able to and there was just
no production that night or very little production. I told
him I don’t care what you do, come down here and
make sure . . . that this job finishes on schedule.
As a result, Allinger came to the jobsite that afternoon.
Upon the completion of the job, Harris demanded that the
Respondent adjust the billing as a result of the unproductive
night shift. The billing invoice specifically states that the
billing amount was being decreased to reflect the unproduc-
tive night shift and, in addition, the fact that the day shift
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803IRWIN INDUSTRIES
5 Kyle Evenson and Youngblood testified that the welds they did
make that night were particularly difficult and time consuming, in
part, because they had to cut a hole in the wall of the economizer
in order to make a particular weld.
6 Shair-Ali was unfamiliar with what was happening and feared
that the Union was attempting to take over the job by demanding
that all the nonunion employees would have to leave, in effect creat-
ing a ‘‘hostile takeover’’ situation.
7 Shair-Ali testified that on a former job he showed Gary Evenson
his union card and told him that he was a member of the Boiler-
makers. On another job, about a month and a half prior to the Blue
Lake job, he and Evenson got fairly well acquainted, and Evenson
told him that his job with the Union was to infiltrate companies and
organize them, and that one tactic, according to Evenson, was to re-
quest the MSDSs and cause some delay, as the employer has an ob-
ligation to furnish such documents and employees have a right to
take as long as necessary to read and comprehend the safety mate-
rial.
had been given premium pay for the overtime needed to
complete the work.
On November 4, 1993, the Ultrapower plant manager sent
a letter to Allinger at the Respondent’s Vancouver, Washing-
ton office setting forth Ultrapower’s dissatisfaction with the
work performed by the night-shift crew, which caused the
boiler repairs to fall behind schedule. The letter goes on to
state that the number of welds in the economizer during a
12-hour shift were unacceptable, and continues as follows:
I felt that this night crew did not work in a profes-
sional and timely manner and was not up to your usual
standards.
Please be advised that this non-professional work
performance will not be tolerated on the UP-3 plant
site. I appreciated you quick action in taking care of
this condition to ensure that the work was performed as
per contracted.
Day Superintendent Omar Shair-Ali testified that he has
been a member of several locals of the Union herein for ap-
proximately 11 years. He had initially met Gary Evenson on
a project in Arizona, where Shair-Ali was in charge of docu-
mentation of the progress of the work, and, in this regard,
took photos and made weld maps to indicate the identity of
welders who made individual welds. He had also worked
with Gary Evenson in Pocatello, Idaho. Shair-Ali had ob-
tained all of his jobs with the Respondent, including the Blue
Lake job, through Vic Allinger. He brought one employee
with him to the Blue Lake job, and testified that he has
worked at the Blue Lake site on a number of occasions,
maybe six times, for other employers, performing similar
maintenance work on this very economizer; however, this
was the only time that all of the platens in the economizer
had been removed at one time. Apparently unbeknownst to
the General Counsel’s witnesses, Shair-Ali took photographs
of the progress of the Blue Lake job for inclusion in his re-
port to the Respondent’s management documenting the
progress of the job. While not required to take photographs,
he testified that he has a practice of doing this on all the jobs
on which he is the lead superintendent.
Shair-Ali testified that he took photos of the economizer
at the end of the day shift on November 2, 1994, the second
day of work, prior to the start of the night shift. This series
of photographs was introduced into evidence herein and
Shair-Ali explained that they show that the day crew had re-
moved all the old assemblies or platens, and had placed 2
of the 12 new assemblies in the economizer, the far left as-
sembly and the far right assembly. The photos also show a
hole cut in the wall of the economizer in order to gain access
to the back side of the far right assembly for welding pur-
poses.5 This had all been done during the day shift on No-
vember 2, 1994, by about 3 p.m. The photos also depict that
the inside of the economizer had been cleaned up so that the
welding work could be commenced immediately by the night
shift: the insulation from the walls had been placed in plastic
bags, and plywood scaffolding had been laid over the steel
beams in the economizer in order to make a solid floor to
support the day shift workers during the removal of the old
platens and the installation of the new platens. As noted
above, two new platens had been set in place preparatory to
being welded, but had not yet been welded to the headers
(on the bottom) and the risers (on the opposite end at the
top).
Shair-Ali testified that at the beginning of the night shift
on November 2, 1994, the night-shift welding crew, appar-
ently accompanied by a business agent from a nearby Boiler-
makers local, began placing organizing stickers and buttons
on their hat and clothing and announced to Shair-Ali that
they were organizing the job. He told them that that was
fine. Shair-Ali asked Gary Evenson what was going on, and
Gary Evenson said that he had nothing to do with the orga-
nizing and that Shair-Ali would have to talk to Kyle Evenson
about it. Shair-Ali walked over to Kyle Evenson and told
him that whatever happened, he wanted it to be a ‘‘peaceful
takeover.’’6 After going to their assigned work area in the
economizer, Kyle Evenson and his crew came back and
handed Shair-Ali a written request to see the Material Data
Safety Sheets for the job.7 Thereupon, Shair-Ali sent them
back to work and went to see Ultrapower Maintenance Su-
pervisor Harris and told him that the night shift wanted to
see the MSDSs. As a result, Harris called a safety meeting
of the entire night shift. Shair-Ali did not attend the meeting.
Shair-Ali was not immediately able to contact Allinger,
but did contact him later that night. He explained that Kyle
Evenson, Womack, and Youngblood had handed him the or-
ganizing letter and said they were going to organize the job.
Allinger said that he would come to the jobsite to see what
was going on.
On the next morning when Shair-Ali arrived at work Har-
ris approached him and reported to him that he was very
concerned about the lack of productivity by the night shift,
and that the welding crew seemed to be delaying the job.
Apparently, Allinger was already en route to the jobsite.
Allinger arrived later that day and said that he would have
a talk with the night shift when they came in that evening.
Shair-Ali testified that Allinger told him that he had to get
rid of the entire night shift, not just the organizers, in order
to protect the Respondent from an unfair labor practice law-
suit.
Shair-Ali testified that in his opinion the crew had prob-
ably delayed the job by not performing enough welds, but
he did not specifically tell Allinger this as he knew that
Allinger had already been advised of this by Harris. At the
time of the hearing herein, Shair-Ali was not employed by
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804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Regarding the time involved in balancing the fan, the control
room operator’s log, a record kept in the normal course of
Ultrapower’s business, shows that the fan was balanced from 2:20
a.m. until 3:58 a.m., a period of 1 hour and 38 minutes.
the Respondent. His last job with the Respondent had been
in June 1994.
George Nowland is the plant engineer at the Ultrapower
plant. He worked the night shift during the shutdown, and
had the responsibility of overseeing the work of outside
crews, ‘‘with a critical eye to check up on contractors that
are doing any type of work.’’ Nowland testified that he was
not entirely satisfied with Gary Evenson and his crew on
their first night of work, as they had recently arrived at the
site after driving a long distance, and were taking turns
sleeping in the van during the time they were supposed to
be working. Nowland testified that even on the first night
they could have gotten more work done than they did, and
that their progress was ‘‘painstakingly slow.’’
At the beginning of the night shift on the second night of
work Nowland went up to the economizer to do his inspec-
tion and did not see anything there that would require 3
hours of preparation or cleanup time. Nowland testified that
the scaffolding had been constructed; insulation had been
bagged and stuffed into large plastic trash bags; the air hoses
and argon hoses were on the floor, but it was customary and
appropriate for the first shift crew to leave them, as the
night-shift welders needed the same equipment to continue
the work; there was sufficient lighting in the economizer; and
there was nothing in or around the economizer that should
have delayed the commencement of welding. Rather, welding
work should have commenced immediately as there were
two assemblies set in place but not yet welded by the day
crew, as depicted in one of the photos, one assembly on one
wall of the economizer and one on the opposite wall; further,
a third assembly was setting just outside the economizer and
had not been brought in yet because the day crew did not
want it to be in the way.
Nowland testified that at the beginning of their second
night of work, at the safety meeting, he believed that the
questions asked by the welding crew about the safety of the
work in the economizer were rather time consuming and un-
necessarily prolonged the meeting; and further, that experi-
enced journeymen boilermakers should have been able to
readily discern that the plant was a wood burning powerplant
and was as nonhazardous as a powerplant could possibly be
as exhibited by the acres of wood chips piled many feet high
out in the yard.
Nowland testified that Ultrapower is obligated by law to
answer all the safety questions of all employees on the job-
site, and to satisfy their inquiries regarding the work environ-
ment. He also testified that at the safety meeting when Kyle
Evenson and his crew said that they did not believe their
work area was safe, Harris told them to make it safe. Usu-
ally, according to Nowland, safety questions, if any, come up
on the first shift that the men work after they arrive at the
jobsite, as they want to know everything on the site that is
hazardous in the event they will be assigned work in those
areas.
Nowland testified that on the second night the balancing
of the fan took about 1 hour and 35 minutes, as confirmed
by the control room operator’s log,8 and that after the fan
balancing had been completed Nowland walked to the tool
trailer where most of the night crew had congregated during
the down time. Gary Evenson and his crew, however, were
not with the group in the trailer; rather, they were in the van
parked about 20 feet from the tool trailer. Nowland told both
the men in the tool trailer and Gary Evenson’s crew in the
van that the fan balancing had been completed and that they
should get back to work. Foreman Rocky Waltman and the
people in the tool room immediately went back to work but,
according to Nowland, the people in the van either remained
in the van or moved around and went to the bathroom, and
did not return to the economizer for probably an hour or
more beyond the time they had been told to return to work.
During this period Nowland told them a second time that the
balancing was done and requested that they should get back
to work. He asked Rocky Waltman, the night-shift foreman,
what was going on with the Evenson crew and, according to
Nowland, Waltman replied that he didn’t have any control
over the people in the van and that Gary Evenson was not
permitting him to do his job as foreman and get the people
back to work. Then, according to Nowland, he spoke to the
people in the van a third time and told them to return to
work, and this time they complied.
Nowland testified that at the end of the shift, he told Har-
ris that ‘‘we had a real problem on the night shift.’’ Only
three welds had been performed in the economizer, and at
that rate the work would not be completed on time. He told
Harris that something need to be done about this, as it ap-
peared that the crew was trying to slow things down, and
‘‘we need to get rid of these guys or whatever we need to
do to make sure that we get the job done.’’ He further told
Harris that the rest of the nigh-shift crew was staying busy,
but these ‘‘guys with the buttons on’’ are not. Then Nowland
and Harris reported the matter to Shair-Ali, and told him that
the crew had hardly gotten anything done in the economizer
and they were very concerned that the job would not be
completed on time. Nowland testified that he specifically told
Shair-Ali that it was Kyle Evenson, Youngblood, and
Womack who were not performing, and that Gary Evenson
was part of the group and was also hindering the job by not
letting the foreman, Rocky Waltman, push his crew.
Nowland testified that there was no reason for Gary
Evenson to tell his crew to take lunch early that day at 12:30
a.m. instead of the usual 1 a.m., as he had earlier told Gary
Evenson that they were going to try to balance the fan at
lunchtime but that the individuals who were to do this work
had not arrived and so the balancing might not be able to
be started until later.
Rocky Waltman was hired by Allinger as night-shift fore-
man for the Blue Lake job. He had worked at the Ultrapower
site on many occasions before that. His job was to line out
the work for the night crew. Superintendent Gary Evenson
was his boss. Waltman testified that at the beginning of the
night shift on the second night the economizer welding crew
should have started welding after 30-minutes preparation
time as there was no clean up work to do: The insulation
was in bags, there was one welding lead inside the econo-
mizer and one air hose that the welders would be using; the
two pieces of skin on the economizer, made of carbon steel
plate, were set to one side; perhaps another light bulb was
needed; the floor or scaffolding had been set in place and
was constructed of plywood laid on top of planks; two panels
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805IRWIN INDUSTRIES
or assemblies had been placed in the economizer by the day
shift for the night shift to weld; and there was a hole cut in
the skin of the economizer by the day crew to make it easier
for the night crew to weld one of the panels that had been
set in place. Waltman testified that only three welds were
done that night, and that it should have taken the crew only
about an hour and a half to make these three welds.
Regarding the safety meeting, Waltman testified that it is
a legal obligation to have a safety meeting upon request.
However, Kyle Evenson did not specifically ask for a safety
meeting; rather, he requested the MSDSs on the boiler.
Waltman told him that it was only a chip burning boiler, and
there were no toxic materials that that could affect anybody.
According to Waltman, the boiler (including the economizer)
was ‘‘one of the cleanest boilers you could ever work in.’’
During the fan balancing, according to Waltman, Gary
Evenson and his crew remained in their van while the re-
mainder of the crew congregated in the tool trailer nearby.
Upon completion of the balancing, Nowland told them all to
go back to work. Waltman testified that he told everyone to
go back to work, including the crew in the van, but Kyle
Evenson only looked at him. Nowland then asked Waltman
when the men were going to get out of the van and go back
to work, and Waltman testified as follows:
The superintendent [Gary Evenson] was sitting in the
truck with them and he had explained to me that those
were his hands, I didn’t have no control of it, that they
knew we was going back to work when we walked out
of the trailer. And Nowland said he would take care of
it.
According to Waltman, the crew should have installed at
least six panels during that shift, which would have required
a total of 12 welds. Instead, they only did three welds. Dur-
ing the shift he did ask Gary Evenson why it was taking so
long for the men to install the platens, and Gary Evenson re-
plied that they would ‘‘get it, that’s two of the best welders
around.’’
The next day Waltman and the entire night crew got laid
off. Allinger told him that he was laid off because of the
lack of production on the night shift, and explained that the
Ultrapower people had told him that only some of the night
shift crew were nonproductive and these few were trying to
drag the job out and it was hurting him on the deadline of
the job. Waltman, and apparently the other members of the
night-shift crew, had been previously hired by the Respond-
ent for other jobs, so they lost very little, if any, employ-
ment.
Waltman’s last job for Irwin was in June 1994. He has
been a member of the Petroleum Worker’s Union since 1990.
Roosevelt Fontenot was the Respondent’s day shift fore-
man on the Blue Lake job. He had worked at the Ultrapower
site on other outages. Fontenot testified that his crew on the
first shift erected the scaffolding or floor in the economizer
prior to removing the old panels. The floor was made of two
by six boards and plywood placed over steel braces. Fontenot
testified that his day shift crew had cut holes in the skin
prior to positioning the two outside panels in place for the
night shift, and that the panels were ready for welding at the
beginning of the night shift. He identified a photograph of
himself that was taken during the Blue Lake job. Fontenot
believes that the last time he worked for the Respondent was
in 1994.
Regarding their organizing activities, the testimony of
Kyle Evenson, Youngblood, and Womack shows that they,
along with Gary Evenson, remained together in the van when
they were not working, and did not attempt to mingle with
the other members of the crew for the purpose of either so-
cializing or organizing. Nor did they attempt to talk to the
other day shift or night-shift employees of the Respondent ei-
ther at the jobsite or outside the jobsite, at the motel where
they knew that other employees were staying. Youngblood
testified that the other members of the crew ‘‘pretty much
avoided me. Nobody wanted to come over and talk to me
about anything. They stood back. They stayed away from me
. . . we stayed apart.’’
Manfred Kiesser has been the director of human resources
for the Respondent for 4 years. After the Blue Lake job in
November 1993, there were grievances filed with the Petro-
leum Workers Union by Kyle Evenson, Youngblood and
Womack, and this prompted Kiesser to phone Allinger about
the substance of the grievances. Kiesser testified that
Allinger related to him he only had problems with the crew
from Tucson, namely, Gary Evenson, Kyle Evenson, Young-
blood and Womack, and that these four individuals were
slowing the job down; but he felt that under the cir-
cumstances he needed to eliminate the entire night crew.
Kiesser asked him to confirm this in writing, as Kiesser was
investigating the grievances that had been filed. Allinger then
sent Kiesser the following letter dated December 13, 1993:
The above referenced customer called during this
outage complaining that night shift was unproductive. I
flew down to the jobsite after two consecutive nights of
productivity problems.
Rather than terminate certain individuals, I decided
to R.O.F. the entire night shift crew. Day shift was held
over to work a long shift and completed the scheduled
outage work.
3. Applications submitted on February 3, 1994
On February 3, Union Organizer and Business Representa-
tive Gary Evenson brought a busload of 30 union members,
including himself, to the Respondent’s Long Beach office for
the purpose of filling out applications for employment. The
group was given the applications, and they were completed
and submitted to the office personnel. At the top of each ap-
plication the applicant wrote ‘‘Volunteer Union Organizer’’
or similar language. None of the applicants have been hired,
and it is alleged herein that the failure to hire the applicants
is violative of Section 8(a)(3) of the Act.
4. The Edison Powerplant Job (El Segundo, CA)
Gerald Waite has been a member of the Union since 1968.
On February 12, 1994, Waite, who was then out of work, at-
tended a union meeting where it was announced that the
Union needed volunteers to organize the Respondent, that the
Respondent needed welders, and that the Union had already
taken a busload of men to the Respondent’s personnel office
to apply for jobs. Waite volunteered, and was told by his as-
sistant business manager, Ed Marquez, that the way to obtain
employment with the Respondent was to use the name of
Allan Thomas, then an employee of the Respondent, and that
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806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Waite estimated that the Respondent employed a total of about
80 employees on the day shift and about 50 employees on the night
shift; about 30 of the night-shift employees were welders.
Thomas ‘‘would put in a name for us . . . Allan Thomas
would drop names . . . Allan would drop our names in
. . .’’
Waite went to the Respondent’s personnel office in Long
Beach, California, on February 15, 1994, and filled out an
employment application. His application indicates that for the
past 3 years he was self employed in a ‘‘Las Vegas Scraping
Business.’’ He was one of a group of apparently several ap-
plicants who spoke with Angel Colon, one of the individuals
in the personnel office; he became acquainted with Colon
and other individuals working in the office after several vis-
its. During his initial visit he filled out the application and
was given a form requiring him to become a member of the
Petroleum Workers Union within 31 calendar days after be-
ginning employment. Angel told the group about the union
membership requirements and about the need to pass a drug
screening test, a welding test, a physical examination, and a
4-hour safety orientation.
Waite testified that he may have to take a drug test that
very day, at a different location. On February 18, 1994, he
took a welding test that lasted about 3 hours, and was told
to call back about the results of the test. He called back sev-
eral times and after several days he was advised that he had
passed the test and would need to take a physical. He took
a full physical with X-rays, and after the physical he was
told that he would be hired and would be given safety ori-
entation training on March 1, 1994. On the day of the safety
orientation he was offered a job at a site in Moapa, Califor-
nia, but he declined it apparently because of the location, and
he was told that he could go to work at the Edison steam
plant at El Segundo, California, the following morning,
March 2, 1994. He was allegedly told the job would last
about 5 months.
On March 2, 1994, Waite began working on the day shift
and worked approximately 2-1/2 weeks before getting an
emergency 1-day assignment at Edison’s Huntington Beach
steam plant. Then he returned to the El Segundo site. Shortly
thereafter, another covert union volunteer organizer, Sam
Magana, was hired by the Respondent, and began working
at the El Segundo site on the night shift. Waite asked his su-
pervisor if he and Magana, who had previously worked to-
gether on other jobs, could team up as welding partners. As
a result, he and Magana became welding partners on the
night shift.9 Their supervisor was Homer Clark.
Waite was absent from work 3 days in succession, from
April 11-13, 1994. He testified that this absence was due to
car problems he experienced in or around Las Vegas, Ne-
vada. He phoned the Respondent’s long Beach office, not the
El Segundo jobsite, on April 11, and told ‘‘Paul’’ that he
was having car trouble and expected to be back the following
day. He called again on April 12, and left a message on the
answering machine to the effect that he was having trouble
getting parts for his car. He again called the Long Beach of-
fice on April 13, and talked to Angel Colon, and asked
whether his messages had been relayed to the El Segundo
job and whether he had been laid off or fired because of his
absences. Angel said that he had relayed the messages to the
jobsite, and that as far as he knew Waite had not been fired.
Waite testified that he arrived back home from Las Vegas
on the evening of April 13, 1994, at about 8 p.m. The next
morning, according to Waite, he phoned the union hall to
‘‘to let them know that I had been gone and find out when
they wanted to kick off the campaign for organizing.’’ He
spoke with Gary Evenson who, by mere coincidence, just
happened to be there as this was not Evenson’s home local.
Evenson asked him to come down to the union hall, and he
met with Evenson and Assistant Business Manager Ed
Marquez. They discussed organizing strategy, and Evenson
handed him a document for his signature, infra, announcing
that Waite, Magana and another covert employee, Mike
Ross, were union organizers on the Union’s organizing com-
mittee, and intended to organize the Respondent’s El
Segundo ‘‘construction, maintenance and repair employees.’’
The document is also signed by ‘‘Gary G. Evenson, Inter-
national Representative, Organizer.’’ Waite testified that
Evenson instructed him to give the organizing letter to Su-
perintendent Homer Clark ‘‘if he was being put back to
work’’ after his absence.
Later that afternoon Waite phoned the Long Beach person-
nel office and asked Colon if he had heard whether he
(Waite) had been terminated. Angel said ‘‘no,’’ apparently
indicating that he had not heard anything, and gave Waite
the number at the jobsite. Waite called the jobsite and spoke
to an Edison employee and told the employee to relay the
message to the Homer Clark that he would be at work that
evening. That evening Magana picked him up, as they cus-
tomarily rode to work together. Waite informed Magana that
the organizing campaign was to begin that night, and that
Magana needed to sign the organizing letter which was to be
given to Clark. They arrived at the jobsite at about 4:30 p.m.
Waite met Ross, who was getting off work, and also told
him to sign the letter. Then Waite proceeded to locate Clark,
and asked him whether he had gotten Waite’s various mes-
sages. Clark said no, not until that day. Waite said that he
had called in every day to the personnel office, and ex-
plained to Clark about the circumstances of his 3-day ab-
sence; he asked whether Clark was going to let him go back
to work. According to Waite, ‘‘everybody was real happy
and [Clark] said, yes go on back to work.’’
Waite testified that he got in line at the tool room to pick
up his tools for the beginning of the shift, and handed the
organizing letter to Magana to give to Clark. He saw Magana
hand the letter to Clark, and then he observed that Clark read
the letter and apparently told Magana to go to work as
Magana, then went up on the elevator to go to work. Simul-
taneously, Waite placed a union button on his clothing. Then,
as Waite was standing in line for his tools, he saw Clark
walk to the office, which was about 300 yards away. About
20 minutes later, ‘‘after time to go to work,’’ while Waite
was still apparently in line waiting to get his tools, he was
told by a supervisor to go to the office. Clark was in the of-
fice filling out a personnel action form and, in the presence
of Project Manager Frank Clinton, Clark told him that ‘‘he
was sorry that he had to let me go but that Frank Clinton
said that he had to fire me because I missed three days in
a row.’’ Clark handed him the personnel action form which
states that he was being discharged for missing 3 days in a
row; the form also contains a ‘‘Skill and Performance Eval-
uation’’ showing that on a five point scale, Clark rated Waite
only as a two, meaning a ‘‘fair’’ employee. Then Clark said
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807IRWIN INDUSTRIES
that he had been instructed by Clinton to escort Waite off
the premises to his car in the parking lot.
On May 10, 1994, Waite received a call from the Re-
spondent about a possible job at the El Segundo site, and
was requested to come in the next morning to work. Waite
appeared at work, but was not rehired. He asked if he was
not being rehired because of his organizing activity, and was
told that he was not eligible for rehire because he had missed
3 days in a row.
Sam Magana has been a member of the Union since 1973.
Magana testified that Waite told him about the possibility of
a job with the Respondent, and Magana asked his union rep-
resentatives, Gary Evenson and Ed Marquez, for permission
to work there. Magana agreed that he would become a vol-
unteer union organizer. He applied to work for the Respond-
ent on February 18, 1994, at the Long Beach office, and
spoke with Angel Colon. Colon said that they needed some
tube welders, and gave him an application. He filled out the
application and ‘‘fabricated’’ his past employment informa-
tion because ‘‘if I put the amount of money that I’m really
making, they would have found that I was a union member,
they wouldn’t hire me.’’ He was given a drug test and a
physical on the same day, and took a welding test the next
day. He asked when he could go to work, and Colon told
him to keep calling and they would let him know in due
time. He called several times thereafter, and called again on
March 15, 1994, when he was told that he had passed the
welding test and should come to the office. He was told to
report to work the next day, March 16, 1994, at the El
Segundo job. He was assigned to the night shift, and after
about a week he and Waite became welding partners on the
night shift.
Magana testified that during the 3-day absence of Waite,
Superintendent Clark asked him about Waite and wanted to
know what had happened to him. Magana said that he didn’t
know.
On April 14, 1994, Magana went by Waite’s residence, as
was his practice, and noticed that his car was there. On the
way to work Waite told Magana that he had to sign an orga-
nizing letter, and that the letter was to be given to Super-
intendent Clark that day. When they got to work they found
Clark and, according to Magana, Clark told Waite to go to
work. He and Waite then went to the tool room to get their
tools, at which time Magana reminded Waite about the orga-
nizing letter. Waite handed the letter to Magana and asked
Magana to give Clark the letter. According to Magana, as
Waite was waiting to ‘‘get the tools for us,’’ Magana ap-
proached Clark, who was in the process of making his cus-
tomary work assignments for the night shift, and handed him
the letter. Clark appeared to read the letter and told Magana
to go to work. Thereupon, Magana got his tools and took the
elevator up to his work area, while Waite was still in the
process of getting his tools. Magana arrived at his work area,
waited for awhile, and then came back down and found
Waite, who advised him that he had been fired. During the
remainder of that day and the following day Magana wore
a large union button, about two and a half inches in diame-
ter, and from that point, according to Magana, Clark and the
foreman, J.D. Dixon, didn’t smile at him anymore, or com-
pliment his work.
Another supervisor, Rick Wimble, approached Magana,
who was wearing his organizing buttons and badges, and
said that the wanted to ask him something. He then asked,
‘‘What is it about the union? What can you tell me about
the union? What are you campaigning about?’’ Magana re-
plied that if they didn’t organize now they would lose bene-
fits and representation, and Wimble said something about the
right-to-work law. At that point, after more conversation,
Wimble ‘‘kind of agreed with’’ Magama’s position, and
Magana handed him the business card of his business agent,
Marquez.
On the night of April 15, Clark and Wimble came up to
where Magana was working and advised him that there was
a layoff and he was on the layoff list. Then Clark handed
him a layoff slip indicating that his ‘‘Skill and Performance
Evaluation’’ was a three, meaning ‘‘good,’’ and that he was
being laid off because of a reduction in force.
Michael Ross has been a member of the Union since 1981.
In February, 1994, his business agent, Ed Marquez, solicited
him to go to work for the Respondent as a volunteer orga-
nizer in order to organize the Respondent’s employees. Ross
applied at the Respondent’s Long Beach office on March 14,
1994. He spoke with Angel Colon, and Colon said that they
had welding work coming up and would be hiring soon.
Ross submitted an application which indicted, according to
Ross, that he had worked for union employers; Ross testified
that persons reviewing his application could have deduced
that he was a union member. Apparently Ross did not hear
from the Respondent about his application and he phoned the
Respondent about 10 days later and asked if they were hiring
welders yet. Colon told him to come in and take a welding
test. Then he was introduced to Paul, who said they would
have the results of the test the next day. Following that, Ross
was required to take a drug test and a physical, at two dif-
ferent locations, and he began working for the Respondent
at the El Segundo site on March 26, 1994. He was assigned
to the day shift. His foreman was Ray Knight.
On April 10, 1994, Ross approached the General Foreman
Frank Clinton, who was in charge of the project, and showed
him papers that required Ross to appear in court on April 11
and 13, 1994. As a result, Ross missed work on those days,
but did work on April 12. On or about April 14, 1994, Ross
signed the foregoing organizing letter advising the Respond-
ent of his being a member of the Union’s organizing com-
mittee. Beginning on April 15, 1994, Ross wore a large
Union organizing committee button on his shirt, and one or
two union stickers on his hard hat. He believes that he was
definitely being watched as there seemed to be a lot of su-
pervisors around him all that day. At the end of the shift he
was called to the office by his foreman, Knight, and, in the
presence of Project Manager Clinton, Knight told him that ‘‘I
have to let you go.’’ Ross asked why, and Knight said,
‘‘You’re laid off. I’m staying out of it, but you did me a
good job.’’ Clinton did not say anything. Ross was given a
layoff notice stating that his layoff was due to a reduction
in force; his ‘‘Skill and Performance Evaluation’’ form indi-
cates a rating of two, meaning ‘‘fair.’’
Ross testified that to his knowledge about four welders
had been laid off during the 2 weeks prior to his layoff, but
he was told by the welding quality control person that these
people were laid off due to poor work performance, as they
were making bad welds.
Homer Clark began working for the Respondent at the
Edison power plant in El Segundo, California, after first
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808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 This testimony is confusing as it conflicts with Thomas’ very
specific testimony, on both direct and cross-examination, that he did
not inform the Respondent that he was an organizer during the first
month of his employment, and that he advised the Respondent of
this by letter dated April 14, 1994, infra. I conclude that it is more
probable that, in fact, Thomas did not wear the union organizing
committee button until April 14, 1994.
11 Clearly, Thomas is again somewhat confused, as his testimony
does not comport with the facts: Waite was not discharged and
Magana was not laid off until the following day, April 14, 1994.
working there for PSI. Due to insolvency, PSI was removed
from the job and Irwin was awarded the contract. Clark, who
was night-shift boiler superintendent, continued doing the
same work with almost all the same employees. Frank Clin-
ton was his immediate supervisor with both PSI and the Re-
spondent. Clark testified that, ‘‘Most of the people that were
hired for the job we hired over the phone from our site office
there at the trailer,’’ and that in addition, Respondent’s em-
ployees from other jobs that were winding down were trans-
ferred to the El Segundo site.
Clark, who no longer works for the Respondent, remem-
bers Gerald Waite and Sam Magana. Clark, who during his
testimony utilized a log book he kept on the job, testified
that he discharged Waite, a tube welder, for absenteeism:
‘‘He missed three days and I let him go.’’
Clark testified that he had about 35 employees under his
supervision on the night shift, although there were apparently
additional employees on the night shift who were not super-
vised by Clark, and that near the middle of April 1994 the
tube welding work was 90 percent complete. In May 1994,
a large part of the day shift and the entire night shift, includ-
ing Clark, was laid off.
Clark laid off Sam Magana on April 15, 1994. About 2
weeks before that time, according to Clark, he advised
Project Manager Frank Clinton about an excessive number of
tube welders in relation to the remaining work, and sug-
gested that they begin to lay people off. At first Clinton
wanted to wait, and later authorized Clark to initiate layoffs.
Clark testified that he discharged Waite, who was a mar-
ginal employee at best, after missing 3 days of work. His
welding partner was Sam Magana. Waite’s performance, ac-
cording to Clark, ‘‘was slow, poor at best.’’ He was prepar-
ing to terminate Waite earlier for threatening to ‘‘kick the
ass’’ of one of the helpers, but Magana intervened and pre-
vailed upon Clark to give Waite another chance. Clark
agreed to give Waite another chance, and Magana agreed
that he would be responsible for controlling Waite.
On April 14, 1994, after missing 3 days of work, Waite
came in and said he wanted to talk to Clark and explained
that his car had broken down in Las Vegas. Clark, who had
already decided to terminate Waite, did not tell Waite to go
to work. Rather, he told him to wait until Clark finished get-
ting the job lined out and the work assigned for the night
shift. Then, while Waite was waiting, Magana handed Clark
the organizing letter and proceeded to go to work up on the
boiler. Clark took the letter to Clinton, and Clinton told him
that it presented no problem and not to worry about it. While
in the office, Clark picked up a termination slip and took it
back to Waite and signed him off the job. According to
Clark, ‘‘When he didn’t show up three days in a row, he was
not coming back to work.’’
The next day, when he laid off Magana, two other people
were also laid off: Jim Dixon and Jerome Washington.
Magana and Washington were laid off at the same time dur-
ing the same conversation. Clark told them that he appre-
ciated their work and that he would see them on the next
job. Other people had left by quitting or by termination prior
to that date. Clark, who had the authority to terminate em-
ployees without prior authorization, testified that the organiz-
ing letter had no bearing on whether to terminate Waite or
lay off Magana. Moreover, it was customary procedure to
walk people off the property upon their termination.
5. The Grayson Powerplant Site (Glendale, CA)
Allan Thomas has been a member of the Union since
1973, and has worked for the Respondent on at least three
different jobs. In 1994 he was looking for a job and phoned
Vic Allinger, who said he would try to find him a job with
the Respondent. Later, Allinger told him to report to the Re-
spondent’s Long Beach office and meet with Human
Respurces Manger Manny Kiesser, and that Kiesser would
send him to work. Kiesser told him to report to work at the
Greyson power plant in Glendale, California, on February 14,
1994. Prior to this date Thomas had become a volunteer
union organizer. Thomas testified that from about the first
week of his employment at the Glendale site he wore union
stickers on his hard hat as well as a large button with the
Boilermakers logo and the words ‘‘Boilermakers Organizing
Committee.’’10
On April 14, 1994, Thomas presented an organizing letter
to the Respondent, signed by Thomas and ‘‘Gary G.
Evenson, International Representative, Organizer,’’ advising
that the Union was engaged in organizing activities at the
Grayson Power Plant and identifying Thomas as a member
of the organizing committee. According to Thomas, Evenson
had given the letter to him on April 13, 1994, and had in-
structed Thomas to give the letter to his supervisor, Tom
Boyles; he further told Thomas that the Union was going to
establish a picket line outside the Glendale plant in protest
of the firing of Waite and Magana at the El Segundo site
and, in addition, in protest of the firing of union members
at the Blue Lake project in November 1993.11 The picketing
began on April 25, 1994, and as a result Thomas ceased
work, went on strike, and carried a picket sign protesting
‘‘unfair labor practices’’ by the Respondent. Thomas advised
his supervisor, Boyles, that he would be honoring the picket
line.
On May 3, 1994, when the picketing was discontinued,
Thomas told Boyles that he was ready to return to work and
handed Boyles a letter to this effect. Boyles directed him to
the Long Beach office to speak with Human Relations Man-
ager Kiesser. Thomas asked Kiesser for reinstatement to his
job, and Kiesser said that Thomas had been replaced, that the
lawyers had advised him that the picketing was informational
and not in protest of unfair labor practices, and that the Re-
spondent had not been able to keep the position open for
Thomas’ return as there was an obligation to complete the
job on schedule. He told Thomas that he could work at the
El Segundo job, but he believed that there was picketing at
that site. Thomas declined this offer, saying that he could not
cross any picket line. Kiesser then said that if there was an-
other job opening, he would send Thomas to it. As a result
of the unfair labor practice charge filed by the Union on be-
half of Thomas, the the Respondent sent Thomas a letter on
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809IRWIN INDUSTRIES
November 7, 1994, regarding further employment. At Thom-
as’ request, a weld test was scheduled for December 7, 1994;
however, Thomas failed to appear for the test.
6. Testimony of Manfred Kiesser and John Donaldson
On February 3, 1994, Human Resources Director Manfred
Kiesser was in the office when the aforementioned busload
of 30 applicants entered to fill out applications. Although he
had never met Gary Evenson, he knew who he was as a re-
sult of the problems on the Blue Lake project, and someone
in the office pointed out to him that Gary Evenson was head-
ing the group of applicants. When they left, he gathered up
all of the applications, counted them, and flipped through
them in a cursory fashion. Kiesser then put the applications
in his office and went down the hall to talk to his boss, John
Donaldson, about the matter.
Kiesser testified that the Respondent had not been offi-
cially awarded the El Segundo job on February 3; rather it
took over the El Segundo project on about February 8, 1994.
Initially, the job was manned by rolling over employees from
PSI, and Kiesser was instructed by Donaldson not to hire
employees for the job as the job would be staffed by PSI
rollovers. Thus, the Respondent took over the PSI workforce,
including the total supervisory hierarchy, and hired whom-
ever those managers or supervisors sent to the office, a total
of well over 100 employees, provided that they passed the
required tests. There was no break in the work performed by
PSI: The former PSI employees filtered into the Long Beach
office in groups and they were processed and sent right back
out to the jobsite to continue the same work they had been
doing while for PSI.
Kiesser’s Long Beach office staff, at that time, consisted
of four individuals: Kiesser, a full-time personnel manager,
and two dispatchers. Kiesser and his staff made special ac-
commodations for the groups of PSI people in order to proc-
ess them more expeditiously. They were required to fill out
the full application package, and were told to complete the
drug test paperwork. Then they were sent back to work. In
some cases a number of safety orientation meetings were
held at the Long Beach office location; in other cases it was
arranged to do the safety orientation at the jobsite. Similarly,
some weld tests were given at the office, where there is a
weld test facility with limited capacity; and other weld tests
were given at the jobsite because the new employees were
already at the site working, and this would be quicker and
more efficient. The customary preplacement physicals were
waived due to time constraints. Optimally, Kiesser would
prefer to have everything done at the Long Beach office lo-
cation when he is hiring locally, but this was not possible
under the unusual circumstances.
Kiesser testified that the Respondent had been given a
crew list from PSI listing all of PSI’s employees, and ini-
tially checked it as the employees entered the office to be
sure that they had indeed worked for PSI. However, because
of the large number of people and the resulting confusion,
it was simply assumed that the employees were in fact
former PSI employees if they so indicated.
Kiesser testified that the Respondent customarily attempts
to draw from its existing labor pool to man new jobs. Thus,
the Respondent first attempts to hire and/or transfer people
from its existing labor pool who are already processed and
ready to go to work. On many projects the project manager
is given the responsibility of hiring or bringing employees to
the job. In the usual situation, employees transfer from one
project to another with little or no down time in between,
and these transfers are coordinated between the supervisors
at the jobsite. Kiesser’s office may or may not be involved
in this process. Thus, there is ongoing communication within
the company in the form of a companywide informal net-
work as to the status of jobs: the superintendents are inter-
ested in keeping their better hands working, and may attempt
to find work for them by calling another superintendent on
a job about to begin. Or, people in Kiesser’s office, who
have knowledge of such information, would advise project
mangers in the field of jobs about to begin or end so that
they can do their own recruiting. According to Kiesser, the
process is ‘‘very fluid and it’s very situationally defined.’’ In
particular this is the way most skilled workers are placed on
jobs.
If Kiesser is advised that a jobsite needs personnel and
that management is going to rely upon the Long Beach office
to furnish the necessary employees, his office personnel will
access the computer database to recruit people for the
project. Names will be drawn from the database or dispatch-
ers will utilize their personal knowledge of available employ-
ees for dispatching to jobs. This database contains sub-cat-
egories of employees who belong to a particular group. A
large part of the labor force consists of Navajo Nation em-
ployees who live on a reservation in Arizona and who work
almost exclusively on energy division jobs as welders and
mechanics and helpers. Other groupings of employees work
almost exclusively on refinery jobs. Kiesser testified that it
has always been the Respondent’s practice to refrain from as-
signing energy division journeyman employees to refinery
work, and vice versa, as the work is considered to be special-
ized and Kiesser had been instructed that the work forces
were not to be mixed. For this reason Kiesser never consid-
ered the 30 applicants for refinery positions, but just re-
garded them as applicants for powerplant work, and only for
the position of welder.
In 1994, applicants who had not previously worked for the
Respondent were not put into the database until they had
commenced the employment process. The employment proc-
ess does not begin with the mere submission of an applica-
tion. Rather, something in addition to the submission of an
application was necessary to begin the process: scheduling
for a drug test, safety training, or weld test. Such information
has to be retained, and at the time it is placed in the database
the applicant is assigned an employee number, even though,
ultimately, the applicant may not be hired.
Thus, the database in February 1994 included anybody that
was a current or prior employee, or individuals who had
commenced the hiring process so they could be placed in the
database as eligible for hire; but it did not include individuals
who merely filled out and dropped off applications at the of-
fice such as the 30 applicants involved herein. Normally, if
time permits, such applications would get ‘‘filed’’ by craft
in one of several rolling filing cabinets, but no one in the
office would go back to them to recruit employees. Kiesser
testified that this was not a good system, as sometimes appli-
cants put more than one craft or area of expertise on their
application, and the applications just get tossed in the filing
cabinets and are ignored.
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810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
This system was changed after 1994 because, according to
Kiesser, ‘‘all the applications in a bin were useless to us . . .
the effort it would take to go back to those and try to find
people and have some idea of how long it had been since
they applied, et cetera, was just too cumbersome. Plus there
was this whole business of how are you going to file them
. . . and I knew I was probably losing a lot of people that
I may at least want to keep in touch with.’’ Currently, com-
mencing about the beginning of 1995, each applications is
assigned a control number, and names and skills of appli-
cants are entered into a separate part of the database and can
be readily accessed. However, as noted above, this was not
the case on February 3, 1994.
Thus, it was not until about the beginning of 1995 that the
applications of over a thousand applicants had been entered
into this new database system. However, according to
Kiesser, not very many of the people in this category have
been hired because, ‘‘Even with the database, we very rarely
draw from that applicant database to solicit people to come
to work.’’
Applicants are hired ‘‘through the door’’ at the Long
Beach office if they have been referred by someone who is
known to the Respondent to be trustworthy to send qualified
applicants to the office, such as an employee or supervisor.
In addition, walk-in applicants without such a reference may
be hired if the applicant happens to come to the office at the
right time when the Respondent is in the process of staffing
a job or when the office people are not terribly busy. Some-
times, when a safety class has been scheduled for other ap-
plicants, a walk-in may be permitted to take the class simply
because he or she happens to be in the office when the class
is being given, and this commences the hiring process. Ac-
cording to Kiesser, there is no set rule regarding the hiring
of walk-ins, but it is really a matter of timing: If an applicant
walks through the door at an opportune time, he or she
stands a better chance of getting a job.
Kiesser testified that there are numerous people who come
in, fill out an application, come back, call, check on job
availability, ask about the availability of safety and training
classes, and simply ‘‘push’’ or ‘‘hustle’’ for the job. In con-
trast, if somebody simply comes in, fills out an application,
and does not call back but merely waits for a response, then
his chances of getting hired are, according to Kiesser, ‘‘Close
to zero.’’ This is particularly true of skilled employees, such
as journeyman welders and electricians, as they are cus-
tomarily recruited by the various means outlined above.
However, it is not as unusual for nonskilled, entry level em-
ployees, such as helpers, laborers, and safety watchpersons to
be hired as a result of applying at the Long Beach office,
as such personnel are less likely to be hired or retained
through the companywide informal network. The Respond-
ent’s records appear to corroborate Kiesser’s testimony on
this point, and show that of all the employees hired between
January 1 and April 30, 1994, the great majority of employ-
ees who could have possibly been walk-ins, that is, for
whom the records did not contain some indication that the
employee had been a former employee, or had been trans-
ferred from another job, or had been referred by someone
known to the Respondent, were nonskilled employees and
were not hired for positions sought by the 30 applicants.
Normally, there would have been no effort made to con-
tact any of the 30 applicants who came in on the bus; there
was no need to. However, in this particular circumstance
some effort was made to hire some of them, as Kiesser was
instructed by the Respondent’s attorney to try to do so. On
about February 24, 1994, Kiesser attempted to hire people
from this group, and instructed his staff that if any of the 30
applicants came in to the office, or initiated a call to the of-
fice, he wanted to know about it. He phoned between 8 and
11 applicants on February 24, then tried again a few days
later, and then made a third effort in early March. He had
never made such phone calls before, and to hire people in
this manner was ‘‘absolutely unusual.’’ Then he discontinued
this process as he wasn’t getting much response, and it just
kind of fell through the cracks. Of the 8 to 11 applicants
whom Kiesser contacted or attempted to contact, only one
came in to take a welding test. That person was then sent
for a drug test, and he was told to call back in a few days
to check on both the weld test and the drug test; further, he
was told he would have to complete safety training. Even
though he did not call back as instructed, Kiesser attempted
to place him on one job, but discovered that he wasn’t quali-
fied for the job as he did not have a particular kind welding
certification that the work required. The employee was never
hired as he did not call back or show any further interest in
being hired. Similarly, none of the 30 applicants ‘‘hustled’’
a job with the Respondent.
Regarding the discharge of Waite and the layoffs of Ross
and Magana at the El Segundo job, Kiesser testified that no
one called him prior to these events, and that the manage-
ment of the project had made the decisions without confer-
ring with him. In fact, according to Kiesser, Waite was mis-
takenly sent out to the El Segundo job after his discharge,
but was not hired as Project Superintendent Clinton phoned
him and said that Waite had been fired for absenteeism and
would not be rehired.
Regarding the organizing letter submitted by Alan Thomas
at the Glendale job, Kiesser testified that he received a phone
call from Supervisor Tom Boyles regarding the letter on
about April 14, 1994. Kiesser had placed Thomas on the job
pursuant to a phone call from Vic Allinger, who said he had
worked with Thomas for a number of years, and that he was
a good welder. Boyles told him that Thomas was wearing
boilermaker buttons, and Boyles asked what he should do.
Kiesser told him not to worry about it, that Thomas had a
right to give him that letter, and to let Kiesser know if there
were any problems with Thomas’ productivity or whether
Thomas was attempting to engage in organizing activities
during working time. Boyles replied that things were going
fine, and that there were no problems.
Several weeks later, upon requesting reinstatement at the
end of the picketing, Thomas came to the office to see
Kiesser. Thomas explained that he knew all the people on
the picket line and he didn’t feel that he could go to work
while they were not working, but that he was ready to go
back to work now that the picketing had ended. Kiesser said
that because the Glendale job was fairly small Thomas had
been replaced and his position had been filled; however,
Kiesser said that he would look elsewhere for a job for him.
Kiesser mentioned the El Segundo job, and said that he
might be able to get him on there, but that he believed there
was a picket line established by the Union at the El Segundo
site. Thomas said that he couldn’t go to work anywhere
where there was picketing. Kiesser replied that he thought El
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811IRWIN INDUSTRIES
12 The record shows that various former supervisors of the Re-
spondent, including Allinger, who were employed during the events
encompassed within the complaint herein, are no longer working for
the Respondent and that some of them left the Respondent’s employ
under less than amicable circumstances. I do not draw any adverse
inferences from the fact that these individuals, who are equally avail-
able to the General Counsel, the Union, and the Respondent, were
not called as witnesses by any party to this proceeding; this is par-
ticularly true where the events in question occurred as much as a
year and a half prior to the commencement of the hearing.
Segundo was the only job available at the time and Thomas
left and never called back again.
Kiesser testified that from time to time the Respondent has
placed ads in various newspapers for skilled personnel. Such
ads were placed on about December 6, 1993 (Bakersfield
Californian), a year later on December 6, 1994 (various
Texas and Oklahoma newspapers), and nearly a year after
that on October 6, 1995 (Los Angeles Times). Kiesser testi-
fied that the ads were not placed for the purpose of imme-
diately filling unfilled positions, but because the Respondent
was anticipating a great deal of work and wanted to identify
and ascertain the availability of personnel for future jobs in
the event the Respondent’s projections materialized. No em-
ployees were hired as a result of the foregoing ads, in large
part because the Respondent did not get the anticipated work
or because contracts for future work were canceled by cus-
tomers.
John Donaldson is the executive vice-president of the Re-
spondent. He is the chief operating officer of the company,
and all of the divisions and departments report to him. He
leads the negotiating team in collective bargaining negotia-
tions with the Petroleum Workers Union; this union has been
the collective bargaining representative of the Respondent’s
employees for twelve or fourteen years, and the current
agreement at the time of the hearing herein extended from
June 1, 1993 through May 31, 1996. The bargaining unit
covers employees at all sites where the Respondent’s em-
ployees are employed. Donaldson testified that Vic Allinger,
who managed the Respondent’s Vancouver, Washington of-
fice, left the Respondent’s employment in the Spring of
1994. While the record does not indicate the reason for the
resignation/termination, Donaldson testified that the Respond-
ent was very anxious to have him leave.12 Allinger was a
former member of the Boilermakers Union, and he was never
told not to hire Boilermaker union members for positions
with the Respondent. As far as Donaldson knew, Allinger
had remained a member of the Boilermakers throughout his
employment with the Respondent.
In October, 1993, Donaldson became aware that Gary
Evenson and Kyle Evenson were paid union organizers with
the Boilermakers. He was informed of this by Tom Walsh,
a representative of the International Petroleum Workers
Union, who sent him a fax to this effect on February 26,
1993, listing some 100 names of union organizers. Walsh,
according to Donaldson, has a strong dislike for the Boiler-
makers, and was probably trying to influence Donaldson to
not hire these people ‘‘in order to make Walsh’s life easier.’’
Donaldson gave the fax to Kiesser and asked him if any peo-
ple on the list worked for the Respondent. Kiesser later told
Donaldson that both Gary Evenson and Kyle Evenson had
worked for the Respondent in the past, but were not em-
ployed at the moment.
Within a week or two Donaldson spoke to Vic Allinger
about this, and asked if he had ever had any problems with
either of the Evenson brothers, as they were paid union orga-
nizers. Allinger said that Gary was a friend of his, and that
Gary and Kyle had worked for him on numerous occasions,
and they had given him no problems at all.
Donaldson testified that the Respondent has had no policy
against hiring Boilermaker union members. In fact, there was
a period of time when the Respondent had an agreement with
several Boilermaker locals to hire their members when they
were out of work on the East Coast and came to California
during the Winter, on these occasions the Petroleum Workers
Union issued them permits and waived their initiation fees.
However, this arrangement ended in about 1987, as a result
of protests by a Los Angeles local of the Boilermakers.
Donaldson has not spoken with Vic Allinger since he left
the Respondent’s employ, at which time the relationship was
very acrimonious. After he left, he began working for a com-
petitor. Since the Blue Lake project with Ultrapower, the Re-
spondent has never been asked to bid on another Ultrapower
job and has never had another contract to perform work for
Ultrapower.
In early 1994, the El Segundo project was taken over by
the Respondent from Power Plant Specialties, Inc. (PSI). The
Respondent was advised that PSI was going to be removed
due to financial exigencies, and was invited to submit a bid
for the remainder of the project. There were several compo-
nents of the project and work took place at three locations,
namely, El Segundo (the major location), Huntington Beach,
and Mandalay, California.
It was a very large job and it was reluctantly decided to
hire all of PSI’s employees who had been working on the
jobsite, including their management, to provide continuity to
the job that was underway. This included Frank Clinton,
PSI’s general superintendent, the person in charge of the en-
tire project. Clinton was never again used after that, and the
record indicates that the Respondent was not satisfied with
him. All prior PSI employees were hired provided that they
passed the various tests, many of which were performed on-
site. Some had suffered some economic hardship, as they
could not get their paychecks cashed, and left town, and at
some point the Respondent had to hire some employees for
the El Segundo job through the Long Beach office. The El
Segundo part of the job was completed about the end of May
1994.
Donaldson testified that he was made aware of the 30
Boilermaker applicants who had applied for work on Feb-
ruary 3, 1994, and that they all arrived on a bus together
with Gary Evenson and wrote voluntary union organizer on
the top of their applications. He looked over the applications,
had a discussion with a number of the staff, and, after con-
ferring with his attorney, instructed the human resources de-
partment to make a diligent effort to try to hire some of
these people. His attorney suggested that he do this in order
to avoid legal liability in the event an unfair labor practice
charge was filed. After about February 4, 1994, the personnel
office was ‘‘overwhelmed’’ by the work involved in taking
over the project.
Donaldson admitted his suspicion that the busload of 30
applicants was a tactical means of involving the Respondent
in costly litigation. He is knowledgeable concerning the Boil-
ermakers’ ‘‘Fight Back’’ campaign, he reads the Boilermaker
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812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 While this has no bearing on my evaluation of credibility, I am
concerned regarding the fact that the Union has apparently taken
some recourse against Shair-Ali. Thus, the record evidence clearly
indicates that following his testimony herein, during the course of
a Local Union meeting, Shair-Ali was admonished by a union rep-
resentative for giving testimony in this proceeding adverse to the
Union and, as a result, it appears that he either withdrew or was ex-
pelled from the Union. There is no indication that charges have been
filed regarding this matter.
newspaper, and is conversant with the current tactics em-
ployed by various unions, including the Boilermakers, to pro-
tect their interests. Accordingly, he believed, upon receiving
the 30 applications, ‘‘that we were going to be a target for
legal extortion.’’ Still, Donaldson testified that he was not
concerned about legitimate organizational activity, and had
no problem with union members who did their work and at-
tempted to organize on their own time.
7. Analysis and Conclusions
The credible record evidence is overwhelming that paid
Union Representatives/Organizers Gary Evenson and Kyle
Evenson, and union volunteer organizers Youngblood and
Womak, were involved in a concerted effort to slow down
the Ultrapower job in November 1993. I credit the testimony
of each of the Respondent’s witnesses and find that they
were forthright, and that, having no continuing relationship
either with each other or with the Respondent, they had very
little reason to prevaricate or to embellish their testimony.
Moreover, their collective testimony is totally consistent in
all salient details, and is corroborated by photographs taken
by Superintendent Shair-Ali that show, according even to the
testimony of Kyle Evenson, the interior of the economizer to
be clean and safe, with appropriate scaffolding, so that weld-
ing work could begin immediately. In this regard I credit
Shair-Ali’s testimony, who at the time in question was a
member of the Union,13 that the photographs depict the work
area as of the evening of November 2, 1993, immediately
prior to the beginning of the night shift; moreover, the testi-
mony of all the Respondent’s witnesses, who testified that
their independent recollections of the work area comport
with the photographs, is mutually corroborative.
I further find that the four individuals intentionally delayed
going back to work after the fan had been balanced and wait-
ed an hour or more in their van before finally, after the third
request by supervision, returning to their work area near the
end of the shift. The credited consistent testimony of
Ultrapower Plant Engineer George Nowland, and Respond-
ent’s night shift foreman, Rocky Waltman, is entirely clear
on this point.
Finally, it is clear that after the safety meeting, during
which the employees were given assurances that the area was
entirely safe and presented no chemical or other hazards,
Kyle Evenson and his crew did not go back to the econo-
mizer and begin welding, but rather continued to do no work
at all for about 3 or 4 hours. I therefore find that, as con-
tended by the Respondent, their collective participation in en-
deavoring to obtain the MSDS safety data was contrived for
the purpose of intentional delay and was not undertaken in
good faith.
In conclusion, I find that the four employees were indeed
discharged for their concerted activity, namely, attempting to
slow down and prolong the project, as contended by the Re-
spondent. Moreover, this does not appear to be simply a case
of a slowdown for personal monetary gain, that is, in order
to prolong the job and thereby obtain more hours of work.
Rather, this slowdown began at the very instant the Union
began its organizing ‘‘fight back’’ campaign against the Re-
spondent, and was in retaliation for the Respondent’s legiti-
mate request that Gary Evenson sign a document acknowl-
edging that he was there as a company superintendent and
not as a union organizer. I find that the slowdown was in-
deed a part of the Union’s strategy. I further find the charges
filed by the Union herein regarding this matter to be frivo-
lous, knowingly false, and an integral part of the Respond-
ents ‘‘fight back’’ strategy, and that they were contrived in
order to cause the Respondent to expend considerable re-
sources in defending itself before the Board. Accordingly, in
addition to dismissing the complaint allegations, I deem it
appropriate and necessary to recommend that the Board im-
pose an affirmative remedy designed to effectuate the pur-
poses of the Act and to preclude the filing of bogus charges
in the future. In the absence of such a remedy the Respond-
ent, even though not prevailing on the merits of the case,
will have accomplished one of its purposes and therefore will
have no incentive to discontinue such conduct.
Thus I recommend that the Board require the Union to re-
imburse both the Respondent and the Board for reasonable
counsel fees, salaries, witness fees, transcript and record
costs, printing costs, travel expenses and per diem, and other
reasonable expenses, including all costs incurred in both the
investigation and litigation of those portions of the charges
and complaint dealing with the Ultrapower job. See Tidee
Products, 196 NLRB 158 (1972); Heck’s Inc., 215 NLRB
765 (1974); Davis Supermarkets, 306 NLRB 426, 428
(1992).
The record contains abundant evidence that the Respond-
ent relies heavily upon its employees and particularly upon
its supervisors to recommend and refer competent and quali-
fied employees to its work force. Indeed, it gives its project
supervisors, in many instances, the authority to hire such em-
ployees in the field if the supervisor is willing to vouch for
their qualifications and abilities. Thus, for example, on the
Blue Lake job the supervisors ‘‘hired’’ their crews and
brought them to the jobsite. A corollary of this trust in its
supervisors seems to be that if the supervisor proves to be
untrustworthy the Respondent is entitled to take a similar
view of any of his referrals.
In the instant matter former Superintendent Gary Evenson
brought a busload of 29 other union members to the Re-
spondent’s Long Beach office on February 3, 1994, and all
applied for jobs and conspicuously indicated that they were
volunteer union organizers. This occurred only 3 months
after Evenson and his crew, as found above, had engaged in
a willful slowdown immediately upon commencing a cam-
paign to organize all of the Respondent’s employees, during
which, it is important to add, the Union engaged in no orga-
nizing activities whatsoever other than to make a conspicu-
ous point of announcing that it intended to do so. This is
precisely what the 30 applicants ‘‘announced’’ when they
placed the words ‘‘Volunteer Union Organizer’’ at the top of
their applications.
Under these circumstances, given Evenson’s history of
untrustworthiness and the Union’s initial ostensible ‘‘organiz-
ing’’ strategy, namely, a slowdown at the Blue Lake job, the
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813IRWIN INDUSTRIES
14 I also find for the reasons set forth herein that the Respondent
had no obligation to even attempt to hire any of the thirty applicants,
as the record evidence establishes that this is not consistent with the
Respondent’s ordinary and lawful hiring practices. The fact that it
did so attempt to hire some of these applicants, under the cir-
cumstances, does not constitute an implicit admission to the con-
trary.
15 Cf. Brown & Root USA, Inc., 319 NLRB 1009, fn. 4 (1995).
16 See Wireways, Inc., 309 NLRB 245 (1992), at page 252:
‘‘ giving first consideration to those applicants who check back and
show more interest in employment, is an acceptable business prac-
tice.’’
Respondent is entitled to draw the reasonable inference that
this is the method the Union had elected to use to organize
its workforce on a companywide basis. Indeed, from the time
of the Blue Lake job the Union had given the Respondent
absolutely no reason to believe that the Union’s modus ope-
randi would change and that it would, commencing on and
continuing after February 3, 1994, engage only in permis-
sible organizational activities.
Accordingly, I conclude that under these circumstances the
Respondent was under no obligation to hire as employees
any of the applicants who announced that they were volun-
teer union organizers. While these individuals may have sim-
ply wanted to engage in productive work and in lawful orga-
nizing activity, the Respondent’s recent experience with the
Union and particularly with the leader of the group, Gary
Evenson, demonstrated the contrary. Under such cir-
cumstances the burden and expense should not be placed
upon the Respondent to test the Union’s bona fides by re-
quiring the hiring of the applicants simply because, with the
exception of Evenson, they had not previously engaged in in-
dividual misconduct. By its prior conduct, the Union had
placed this burden of proof upon itself, and I find that it was
therefore incumbent upon the Union to affirmatively dem-
onstrate to the Respondent that slowdowns were no longer a
part of its organizing strategy. Cf. Brown & Root USA, Inc.,
319 NLRB 1009 (1995). On this basis alone, I conclude that
it is appropriate to dismiss this allegation of the complaint.
However, I also find that on February 3, 1994, the Re-
spondent’s Long Beach office was not in a hiring mode.
Rather, it was gearing up to process a multitude of PSI trans-
ferees who were automatically to become employees of the
Respondent at the El Segundo site. I credit Human Resources
Director Kiesser who testified at length in this proceeding on
several different occasions, and who impressed me as a
knowledgeable and forthright witness, and find that he had
been told that the Long Beach office would not be respon-
sible for staffing the El Segundo and related jobs. Thus,
when the applicants applied on February 3, 1994, there was
no immediately available work for them. Moreover, within a
short time thereafter, when the Long Beach office was appar-
ently requested to furnish some employees to the job, the Re-
spondent did attempt to contact and hire some of the appli-
cants. I credit Kiesser and find that his personal attempts to
hire some of the applicants, pursuant to instructions from Da-
vidson, were legitimate and in good faith, but proved to be
of no avail for a variety of individual reasons which Kiesser
credibly related during his testimony, and which had nothing
to do with the applicants’ union activity.
Accordingly, assuming arguendo that the Respondent had
no right to automatically deny employment opportunities to
the applicants for the reasons enunciated above, I neverthe-
less find that the Respondent acted appropriately under the
circumstances, in an overabundance of caution, pursuant to
the advice of its attorneys, by attempting to hire some of the
applicants.14 There, is no more reason for the Respondent to
contact each of the thirty applicants than there is for the Re-
spondent to contact each of the hundreds of applicants it then
had in its rolling filing cabinets or that it now has in its com-
puter database. In fact, it is certainly arguable that by at-
tempting to hire only the union applicants, the Respondent
was deviating from its customary past practice and was
thereby discriminatorily favoring union applicants over non-
union applicants in violation of the Act.15 The record evi-
dence is clear that very few employees are hired as a result
of simply walking into the office, submitting applications,
and waiting to be contacted, particularly if they are skilled
journeymen.
Rather, as the record reveals in the hiring of Thomas,
Waite, Magana and Ross, these individuals were either re-
ferred for employment (Thomas), or happened to walk in at
opportune times and/or thereafter actively sought work. Thus,
they did not apply until well after the Respondent had taken
over the El Segundo job (Waite, on February 15; Magana,
on February 18; and Ross, on March 14, 1994) at a time
when the Respondent had exhausted the supply of PSI roll-
over employees and transferees from other jobs and realized
that additional welders may be needed, and, upon being told
to call back because it appeared to the Respondent’s office
personnel that that the Respondent would soon be hiring,
they nevertheless were not immediately hired (Waite, on
March 2; Magana, on March 16; and Ross, on March 26,
1994). Their hiring is consistent with the testimony of
Kiesser regarding the Respondent’s hiring practices which, I
find, were non-discriminatory and were predicated upon the
exigencies of the Respondent’s business operations at that
time.16
Conversely, the record evidence abundantly establishes
that February 3, 1994 was not an opportune time for the
Union applicants, or any applicants, to walk through the
door. Moreover, it does not appear that, as suggested by the
Union in its brief, the Respondent had an obligation to tell
the applicants that they would have a better chance of obtain-
ing employment if they ‘‘hustled’’ for a job. In the first
place, there is no evidence that any applicants are so advised;
secondly, this would defeat the Respondent’s purposes in hir-
ing employees who exhibit a real desire to work by dem-
onstrating a degree of individual initiative; and finally, as
noted above, the thirty applicants walked through the door at
a time when Respondent was gearing up for the processing
of an unprecedented influx of PSI personnel, and this was a
particularly inopportune time for the office staff to create ad-
ditional work for itself. I shall dismiss this allegation of the
complaint.
Regarding the April 14, 1994 discharge of Waite at the El
Segundo site, I credit the testimony of Superintendent Homer
Clark, who impressed me as a candid, no-nonsense super-
visor with an excellent recollection of the events in question.
I find that Clark had made up his mind to discharge Waite
prior to the evening of April 14, 1994, when he was handed
the organizing letter. Moreover, I find that he did not tell
Waite to go to work that evening. Rather I find that he told
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814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 It should be noted that Ross was apparently the last Welder to
be hired by the Respondent at the El Segundo site, and that his ap-
plication indicated his affiliation with the Union.
18 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Section 102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
19 The Respondent has suggested other sanctions it its brief and it
may raise those before the Board.
Waite to remain in the tool room area until Clark had com-
pleted his assignments to the workers at the beginning of the
shift, after which time he discharged Waite for absenteeism.
I do not credit the inconsistent and nonsensical testimony of
Waite and Magana: If Clark had told Waite to go to work
then it follows that Waite and and Magana would have got-
ten their tools and would have gone up on the elevator to-
gether; and the fact that Magana, who arrived at work with
Waite and had gotten his tools, went to work alone, coupled
with Waite’s admission that he was waiting around in the
tool room for some 20 minutes, corroborates Clark’s testi-
mony that Clark told Waite to remain in the tool room area
and did not direct him to go to work. I shall dismiss this al-
legation of the complaint.
I further find that Magana and Ross were laid off on the
following day, April 15, 1994, because, as Clark credibly tes-
tified, the job was winding down and the Respondent was
eliminating excess welders. Several employees had been laid
off earlier on the day shift, as admitted by Ross,17 and on
the night shift Magana and another employee not involved
herein, Washington, were advised by Clark of their layoffs
during the very same conversation. It is not a mere coinci-
dence that Clark was given the organizing letter on the
evening of April 14, 1994, and I do not credit the strained
and incredulous testimony of Waite regarding the origination
and timing of the organizing letter: It is revealing that Waite,
Magana and Ross, who admittedly were recruited by the
Union to organize the Respondent’s employees, did not en-
gage in any union activity until April 14, 1994 (well over
a month following the employment of Waite and Magana,
and over two weeks following Ross’ employment), even
though the job was of relatively short duration. It is reason-
able to assume under the circumstances that the Union se-
lected this date because it was advised by Waite, Magana
and Ross, who were among the last welders hired, that lay-
offs were taking place, and that the organizing letter scenario
was contrived to cause the Respondent to either refrain from
laying them off or to set up the Respondent for an unfair
labor practice charge in the event they were among those laid
off. I shall dismiss these allegations of the complaint.
Having found that the layoffs of the four employees at the
Blue Lake job were not discriminatorily motivated, as al-
leged, and that the discharge of Waite and the layoffs of
Magna and Ross at the El Segundo job were not unlawful,
as alleged, I further find that the picketing at the Glendale
site was not in protest of any unfair labor practices commit-
ted by the Respondent, as alleged. Accordingly, Thomas was
not a ULP striker entitled to reinstatement. Therefore, I shall
dismiss the complaint allegation pertaining to the Respond-
ent’s refusal to reinstate Thomas to his position at the Glen-
dale job, as the Respondent had the right to permanently re-
place him when he discontinued work and went out on an
economic or informational strike.
The complaint alleges that on about May 5, 1994, Gary
Evenson and Youngblood were discriminatorily refused em-
ployment at the Tucson Electric Power Plant jobsite. I shall
dismiss this allegation of the complaint, as the misconduct of
Gary Evenson and Youngblood at the Blue Lake job some
7 months earlier has provided the Respondent with sufficient
lawful reason to refuse to hire them fort any job in the fu-
ture.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent has not violated the act as alleged.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended18
ORDER
The complaint is dismissed in its entirety.
The Union herein, International Brotherhood of Boiler-
makers, Iron Ship Builders, Blacksmiths, Forgers and Help-
ers, AFL–CIO, its officers, agents, and assigns, shall reim-
burse both the Respondent and the Board for reasonable
counsel fees, salaries, witness fees, transcript and record
costs, printing costs, travel expenses and per diem, and other
reasonable expenses, including all costs incurred in both the
investigation and litigation of those portions of the charges
and complaint dealing with the Ultrapower job.19
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