Kelly Construction of Indiana

National Labor Relations Board - Board Decisions

May 2, 2001

333 N.L.R.B. 1272 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1272
Kelly Construction of Indiana, Inc. and Sheet Metal
Workers’ International Association Local Union
No. 20, a/w Sheet Metal Workers’ International
Association, AFL–CIO and Indiana State Pipe
Trades Association and UA Local No. 157, a/w
United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of
the United States and Canada, AFL–CIO. Cases
25–CA–24005, 25–CA–24244, 25–CA–24611, 25–
CA–24693, 25–CA–25916, and 25–RC–9751
May 2, 2001
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On May 11, 1999, Administrative Law Judge Irwin H.
Socoloff issued the attached decision. The Respondent
and General Counsel filed exceptions, supporting briefs,
and answering briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified.3
We adopt the judge’s conclusion that the General
Counsel met the initial burden of proving discriminatory
motivation for the Respondent’s refusal to hire 27 union
applicants, but that the Respondent has proved that it
would not have hired them, for legitimate reasons, even
in the absence of their union affiliation. The judge’s
analysis of the refusal-to-hire allegations is consistent
with the Board’s decision in FES, 331 NLRB 9 (2000),
which issued subsequent to the judge’s decision. There-
fore, contrary to our dissenting colleague, we find that no
useful purpose would be served by remanding the re-
fusal-to-hire allegations to the judge.

1 The General Counsel and the Respondent have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
2 In adopting the judge’s decision, Member Hurtgen finds it unnec-
essary to pass on the judge’s discussion of Objection 9, his findings that
Mike Daugherty is a supervisor, and that the Indiana State Pipe Trades
Association is a labor organization.
3 We shall modify the judge’s recommended Order to provide nar-
row cease-and-desist language, as the Respondent’s unfair labor prac-
tices do not warrant imposition of a broad order. See Hickmott Foods,
242 NLRB 1357 (1979).
In this connection, we note that the judge found, inter
alia, that the Respondent made its hiring decisions based
on the neutral application of legitimate and nondiscrimi-
natory policies, one of which was a preference for hiring
applicants who were accustomed to earning wages within
the range the Respondent would pay.4 See Wireways,
Inc., 309 NLRB 245 (1992).5 Our review of the record
convinces us that the judge’s finding is correct.6 Indeed,
as noted by our dissenting colleague, the record shows
only one deviation from this policy, i.e., that applicant
Koel Gaylord was hired at $8 per hour despite a prior
wage rate of $9.50 per hour. This isolated and marginal
deviation from the Respondent’s policy fails to show that
the policy was not applied in a neutral manner with re-
spect to the alleged discriminatees and consequently is
insufficient to defeat the Respondent’s Wright Line de-
fense.7 Thus, the preponderance of the record evidence
supports the judge’s key finding that the Respondent
would have made the same hiring decisions regardless of
the salts’ union affiliation, because the salts did not sat-
isfy the Respondent’s lawful hiring criteria, at least with
respect to the wage the applicants were accustomed to
4 The policy is tied to the Respondent’s desire to retain satisfactory
employees as long as possible. The dissent asserts that the Respondent
knew that the salts could have remained for 6 months under the Union’s
salting program. However, this is not to say that they would have re-
mained. Further, the Respondent’s policy is premised on the concern
that traditional high wage earners will not remain with Respondent for
very long. The work prospects of salts are irrelevant to this policy.
5 Chairman Truesdale notes that the Board has held that a policy of
not hiring applicants with current high wage histories is a legitimate
justification for a refusal to hire, in the absence of evidence that it has
been applied in a disparate manner to avoid hiring union applicants.
See Wireways, Inc., supra. The General Counsel did not allege, nor
does he argue, that the Respondent’s policy was itself discriminatorily
motivated and inherently destructive of employees’ Sec. 7 rights.
Chairman Truesdale therefore declines to address these theories in this
case. See Northside Electrical Contractors, 331 NLRB 1564 fn. 2
(2000).
6 Contrary to our dissenting colleague’s contention, the judge’s
analysis is consistent with Sunland Construction Co., 309 NLRB 1224
(1992), because the finding quoted above establishes that the refusals to
hire were “based on neutral hiring policies, uniformly applied.” Id. at
fn. 33.
In agreement with Sunland, supra, Member Hurtgen agrees that a
hiring policy is lawful if it is neutral and uniformly applied. Contrary
to the dissent, that policy need not be “openly promulgated” or “widely
disseminated.” In addition, the policy herein is not alleged to be dis-
criminatorily motivated.
7 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982). See also Merillat Industries,
307 NLRB 1301, 1303 (1992). (“[I]t is to be remembered that Respon-
dent is required to establish its Wright Line defense only by a prepon-
derance of the evidence. The Respondent’s defense does not fail sim-
ply because not all the evidence supports it, or even because some
evidence tends to negate it.”)
333 NLRB No. 148
KELLY CONSTRUCTION OF INDIANA 1273
earning.8 In view of the absence of significant record
evidence to undermine the Respondent’s contention with
respect to this hiring policy, we find no merit to the dis-
sent’s contention that a remand is necessary.9 Accord-
ingly, we affirm the judge’s conclusion that the Respon-
dent’s refusal to hire the salts did not violate the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Kelly
Construction of Indiana, Inc., Lafayette, Indiana, its offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order, as modified.
1. Substitute the following for paragraph 1(c).
“(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
IT IS FURTHER ORDERED that the election held in
Case 25–RC–9751 is set aside and that the case is re-
manded to the Regional Director for Region 25 to con-
duct a new election when he deems the circumstances
permit the free choice of a bargaining representative.
[Direction of Second Election omitted from publica-
tion.]

MEMBER LIEBMAN, dissenting in part.
I dissent from the dismissal of the complaint allegation
that the Respondent unlawfully refused to hire the 27
overt union salts.1
My colleagues do not disturb the judge’s findings that
the record is “replete with evidence” of the Respondent’s
willingness to resort to unlawful means “to keep the un-
ion out,” that the Respondent knew that the salts were all

8 In view of our finding that the record supports the Respondent’s
argument concerning its consideration of the applicants’ wage histories,
Chairman Truesdale finds it unnecessary to pass on whether the Re-
spondent has shown that its other purported hiring policies were legiti-
mate and neutrally applied.
9 Contrary to our dissenting colleague’s suggestion, a different result
would not be warranted by a finding on remand that certain other hiring
policies were not uniformly applied by the Respondent. While such a
finding might bolster the General Counsel’s case in meeting his initial
burden, it would not be sufficient to overcome the record evidence of a
practice of only hiring applicants with a wage history similar to what
the Respondent would pay. That evidence shows that the Respondent
would not have hired the applicants even in the absence of their union
affiliation, and thus any further findings suggesting unlawful motiva-
tion would not warrant a different result. Further, as to the Respon-
dent’s Wright Line defense, it is sufficient that the Respondent has
shown a valid reason that demonstrates the applicants would not have
been hired in the absence of their union affiliation. It is immaterial that
the Respondent has not shown multiple valid reasons for its actions.
1 In all other respects, I agree with my colleagues’ decision.
union activists, and that, accordingly, the General Coun-
sel established that antiunion animus was a motivating
factor in the Respondent’s decision not to hire the salts. I
agree with the General Counsel that, in light of the
strength of his case of unlawful discrimination, “any and
all defenses proffered by the Employer . . . must be care-
fully scrutinized and not merely accepted at face value.”
For the Respondent to meet its Wright Line defense,2 it
must establish that the refusals to hire were “based on
neutral hiring policies, uniformly applied.” Sunland
Construction Co., 309 NLRB 1224, 1229 fn. 33 (1992).
In my view, that would include showing that the policies
were not merely an ad hoc response to the union cam-
paign but were: (1) in existence before the organizational
effort; (2) openly promulgated; and (3) widely dissemi-
nated among the personnel involved in the hiring proc-
ess. Here, however, the judge failed to specifically ad-
dress whether the Respondent met its burden with respect
to these three elements of its affirmative defense.
Further, while Chairman Truesdale is correct that the
General Counsel is not contending that the Respondent’s
hiring policies are per se unlawful,3 the General Counsel
does argue that those policies were not uniformly ap-
plied. Although the Respondent presented testimony that
it preferred to hire applicants with wage expectations in
line with its payscale, applicants referred by employees
and customers, applicants likely to be permanent, and
applicants with skills to match its needs, the record
shows deviations from these supposed preferences.
Thus, for example, the record shows that the Respondent
hired applicant Koel Gaylord at a wage rate of $8 per
hour notwithstanding the fact that he requested a wage
rate of $11 per hour and his prior wage rate was $9.50
per hour. Similarly, the record shows that on three occa-
sions during the time period in which the salts applied
the Respondent deviated from its policy of hiring appli-
cants referred by its employees and customers. Lastly,
while the Respondent claimed to prefer applicants likely
to be permanent, its safety director testified that, in prac-
tice, a 6-or 7-month period of employment was consid-
ered acceptable. Significantly, the Respondent knew that
the salts could have remained employed for 6 months
under the Union’s salting program, but nevertheless re-
2 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
3 I have previously stated my view that Wireways, Inc., 309 NLRB
245 (1992), could be undermining the enforcement of the Act in the
construction industry. See Benfield Electric Co., 331 NLRB 590, 592
fn. 6 (2000). Nevertheless, because neither the General Counsel nor the
Charging Party has argued in this case that Wireways should be reex-
amined, I agree with the Chairman that that issue should be left for
another day.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1274
jected them in part because they allegedly failed to sat-
isfy the “permanency preference.”
Apparently recognizing the weakness in the judge’s
analysis, my colleagues attempt to construct a “fix” of
their own. Emphasizing that the record shows only one
deviation from the supposed policy of hiring applicants
with wage expectations in line with the Respondent’s
payscale, the majority reasons that the Respondent has
shown that that policy was neutrally applied. Because
the salts earned wages in excess of what the Respondent
was offering, my colleagues conclude that the Respon-
dent has established a meritorious Wright Line defense
“at least” with respect to the wage policy.
In a case turning on employer motivation, however,
the Board should not pick and choose among the reasons
offered by the employer to justify its actions. The major-
ity, by focusing only on one reason offered by the Re-
spondent, neglects to scrutinize the record evidence sug-
gesting that other so-called policies were not uniformly
applied but, rather, were asserted in this case as conven-
ient pretexts to justify not hiring the salts.
I believe the case should be remanded to the judge to
analyze the refusal-to-hire allegations under the FES4
framework, to decide whether the Respondent’s hiring
policies were truly neutral and uniform, and to address
the evidence relied on by the General Counsel that un-
dermines the Respondent’s affirmative defense. Should
the judge find that some or all of the various asserted
reasons were false, the judge could infer that the true
reason was an unlawful one which the Respondent en-
deavored to conceal.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.

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

4 FES, 331 NLRB 9 (2000).
WE WILL NOT discharge, lay off, or issue written dis-
ciplines to employees because of their union activities or
sympathies.
WE WILL NOT coercively interrogate applicants and
employees about their union activities and the union ac-
tivities of others, threaten employees with discharge and
other reprisals if they engage in union activities, promul-
gate and maintain a no-solicitation policy for discrimina-
tory reasons, promulgate and enforce an overly broad no-
solicitation and no-distribution rule, inform employees
that we will not hire or consider for hire applicants for
employment who are union members, keep employees’
union activities under surveillance, and create the im-
pression among employees that their union activities are
under surveillance.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer David Brown, Stephen Crabb Sr., Jay
Struthers, and Chad Emmons full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed.
WE WILL make whole the above-listed employees for
any loss of earnings and other benefits resulting from
their discharges, less any net interim earnings, plus inter-
est.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges or layoffs of Brown, Crabb, Struthers, and
Emmons, and WE WILL rescind and remove from our
files any reference to the unlawful disciplines issued to
Crabb, and WE WILL, within 3 days thereafter, notify
each of the effected employees, in writing, that this has
been done and that the discharges, layoffs, and disci-
plines will not be used against them in any way.

KELLY CONSTRUCTION OF INDIANA,
INC.

Walter Steele, Esq. and Joseph B. Sbuttoni, Esq., for the Gen-
eral Counsel.
William W. Cody, Esq., of St. Louis, Missouri, for the Respon-
dent-Employer.
William R. Groth, Esq., of Indianapolis, Indiana, for UA Local
No. 157.
DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOLOFF, Administrative Law Judge. Upon
charges filed on June 7, 1995, October 2, 1995 and April 9,
1996, as thereafter amended, by Sheet Metal Workers’ Interna-
KELLY CONSTRUCTION OF INDIANA 1275
tional Association Local Union No. 20, a/w Sheet Metal Work-
ers’ International Association, AFL–CIO, herein referred to as
Local 20 and, or, the Sheet Metal Workers’ Union, and upon
charges filed on May 9, 1996, and March 19, 1998, as thereaf-
ter amended, by Indiana State Pipe Trades Association and UA
Local No. 157, a/w United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL–CIO, herein referred to, re-
spectively, as the Pipe Trades Association and Local 157 and,
or, the Pipefitters’ Union, against Kelly Construction of Indi-
ana, Inc., herein called the Respondent, the General Counsel of
the National Labor Relations Board, by the Regional Director
for Region 25, issued a Consolidated Complaint dated May 30,
1997, as amended at trial, alleging violations by Respondent of
Section 8(a)(3) and (1) and Section 2(6) and (7) of the National
Labor Relations Act, as amended, herein called the Act. Re-
spondent, by its Answers, denied the commission of any unfair
labor practices.
Pursuant to notice, trial was held before me in Lafayette,
Indiana, on February 3, 4 and 5, March 9, 10, 11 and 12, and
April 27, 28, 29 and 30, 1998, at which the General Counsel
and the Respondent were represented by counsel and were af-
forded full opportunity to be heard, to examine and cross-
examine witnesses and to introduce evidence. Thereafter, the
parties filed briefs which have been duly considered.
On July 14, 1998, pursuant to the Board’s Order dated July
9, 1998, I issued an Order consolidating Case 25–RC–9751
with the unfair labor practice cases for purposes of hearing,
ruling and decision concerning the representation case issues
raised by duly filed objections to an election conducted on
April 16, 1998, and by certain challenged ballots. Thereafter,
further hearing, with respect to those matters, was conducted on
October 5 and 6, 1998, after which the parties filed supplemen-
tary briefs limited in scope to the representation case matters.
Upon the entire record in these cases, and from my observa-
tions of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, operates a facility located in La-
fayette, Indiana, and is engaged in the business of performing,
inter alia, specialty industrial sheet metal fabrication work.
During the year preceding issuance of the Consolidated Com-
plaint, a representative period, Respondent, in conducting its
business operations, purchased and received at the Lafayette,
facility, goods valued in excess of $50,000, which were sent
directly from points outside the State of Indiana. I find that
Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act.
II. LABOR ORGANIZATION
Local 20, Local 157 and the Pipe Trades Association are,
each, labor organizations within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Kelly Construction of Indiana commenced operations in
May, 1994, under the direction of its president, Dean Benson,
formerly the general superintendent of Kelly Construction of
Decatur, Illinois, an unrelated company. As an industrial gen-
eral contractor, Respondent performs carpentry, iron work,
cement work, masonry and metal fabrication, indeed, every-
thing in the industrial field except electrical work. Kelly does
90 percent of its work for its industrial customers, some 10
percent for small manufacturing companies (commercial work)
and does not engage in any residential work. The Company
employs some 8 office workers, and 25 to 27 shop employees,
at its Lafayette, locale, and, in addition, has workers at its cus-
tomers’ sites, including 40 to 45 employees at two AE Staley
cornmilling plants in Lafayette (the Staley North and South
plants), the principal field worksites.
The shop employees fabricate and assemble, for use in cus-
tomer factories, large vessels and tanks as well as generating
systems, scrubbers, cyclones, electrical panels and duct work
for industrial ventilation systems (such as dust collection sys-
tems), using heavy gauge metal. These employees also paint
the equipment they make and perform general labor work in
and around the shop. While certain individuals are hired as
welders, the shop employees are not otherwise broken down
into specific job classifications, and they perform a variety of
tasks. In fact, even the welders do many different types of
work. Thus, the Company looks to staff its shop, primarily,
with “jacks of all trades.” At the field sites, Respondent em-
ploys iron workers, millwrights, carpenters, concrete finishers,
laborers, pipefitters and pipewelders, most of whom work at
various tasks. At least at the Staley plants, Kelly does not em-
ploy sheet metal workers. Rather, sheet metal work is per-
formed by the iron workers and the millwrights.
The Company president, Benson, reports directly to the
owner, Dave Rathje. One Frank Bradshaw worked for Kelly
Construction for 2 years, beginning in the Fall of 1994, as shop
superintendent. As of November, 1994, the shop was still un-
der construction and Bradshaw’s job included the hiring of a
shop crew and setting up the shop for fabrication work. Pro-
duction began late in December of that year. An individual
named Bob Phillips was employed by Kelly from January,
1995, until June, 1996, as the safety director, in charge of set-
ting up a safety program inside the shop and for the outside
locations. Phillips also performed personnel duties.
The current shop manager, Dave Daugherty, and the general
superintendents in the field, Kent Grotjan and Andy Leithliter,
report directly to Benson. Under Dave Daugherty are the shop
foremen, Mike Daugherty and Jeff Marsh. Among the field
foremen are Deon Ramsey and, until recently, Rick Fortin.
It is undisputed that Benson, Bradshaw, Phillips, Grotjan,
Ramsey and Fortin were, at relevant times, statutory supervi-
sors. The supervisory status of Mike Daugherty, while denied
by Respondent, is amply established by the record evidence.
Local 20 employs Michael Van Gordon as an organizer. In
that capacity, Van Gordon supervises the Union’s “youth to
youth” or apprentice “salt” program under which third-year
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1276
apprentices are, temporarily, for a period of about 6 months,
removed from their regular jobs, and hired by Local 20, to work
as organizers and to seek employment with non-union employ-
ers. Van Gordon instructs the apprentice “salts” when to leave
non-union jobs they may have obtained and to return to their
former employers.
In the instant case, the General Counsel contends that Re-
spondent violated Section 8(a)(3) of the Act by refusing to hire,
and failing to consider for hire, some 27 Local 20 “salts” who
applied for positions on various dates during 1995, and thereaf-
ter. The General Counsel also argues that Kelly engaged in
further Section 8(a)(3) violations by its early 1995 discharges
of employees Anthony Elliot and Alberto Rodriguez, because
of their membership in the Sheet Metal Workers’ Union, and by
its 1996 discharge of David Brown, and layoffs of Stephen
Crabb, Sr., Jay Struthers and Chad Emmons, because of their
support of the Pipefitters’ Union. Respondent asserts that the
“salts” were considered for jobs, but not offered positions, for
lawful nondiscriminatory reasons,1 and that Elliot and Brown
were discharged for misconduct, Crabb, Struthers and Emmons
were properly selected for layoff for economic reasons and,
finally, that Rodriguez abandoned his employment and was not
discharged. Also at issue is whether the Company violated the
Act by requiring employees to update their employment appli-
cations, interrogating applicants and employees about their
union activities and sympathies, requiring applicants to remove
and conceal union insignia, promulgating and enforcing a no-
solicitation policy, threatening employees with discharge and
other reprisals because of their union activities, informing em-
ployees that Respondent would not hire applicants who had
engaged in union activities and that it had laid off employees
for engaging in such activities, changing its hiring procedures
so as to require job applicants to submit applications through
the Indiana Workforce Development (INET), engaging in sur-
veillance of employees’ union activities and creating the im-
pression among employees that their union activities were un-
der surveillance.

1 Kelly also argues that, in light of the substantial record evidence
showing that applicants in the “youth to youth” program were available
to work for it for a temporary period, only, before returning to their
former employers, and evidence that they sought employment with
Kelly not to organize it, but in order to close it down, these applicants
were not bona fide employees within the meaning of the Act. In view
of my disposition of the matter, supra, I need not pass upon these pre-
cise contentions.
B. Facts and Conclusions2
1. Allegations of interrogations, threats, changes in application
and hiring procedures, rule changes, requiring applicants to
remove union insignia, surveillance and creating the impression
of surveillance
Anthony Elliot participated in Local 20’s “salt” program for
third-year apprentices from September, 1994, until March,
1995, on leave of absence, he testified, from his employer, the
A to Z Sheet Metal Company. A to Z allowed Elliot to take
leave pursuant to an understanding that he would return in
about 6 months. Like others in the program, Elliot, while
working as a “salt,” was paid as an employee of the Sheet
Metal Workers’ Union, at the wage rate specified in its contract
with A to Z for apprentices of his experience level, plus bene-
fits as mandated in that contract. When, later, Elliot obtained
employment with Kelly, he was, pursuant to the “salt” program
arrangement, paid by the Union the difference between the
contract rate and the wage rate he earned at Kelly, plus benefits
and, also, an additional $2 per hour for “salting.” Such em-
ployment, for “salting” purposes, falls outside the strictures of
the indenture agreement signed, annually, by all apprentices,
requiring repayment by the apprentice to the Union’s appren-
tice committee, for the cost of training, if the apprentice should
accept employment with an employer not signatory to a collec-
tive-bargaining agreement with the Union.
Elliot applied for work with Respondent in mid-November,
1994, in response to a newspaper advertisement seeking indi-
viduals able to perform shop layout work, welders, laborers,
pipefitters and steamfitters. He was hired by Bradshaw in early
December, at $13.50 per hour, to do sheet metal layout work,
the most highly skilled and highest paid position in the shop.
Elliot did not reveal his union affiliation. Shortly after he was
hired, Bradshaw told Elliot that he was being groomed for a
supervisory position. Also in December, 1994, Respondent
hired another apprentice participant in the Local 20 “salt” pro-
gram, Alberto Rodriguez, without knowledge of his union af-
filiation.3 Rodriguez, on leave of absence from Brite Sheet
Metal Company, was hired by Kelly at $7.00 per hour, as a
helper, to assist with sheet metal work in the shop and perform
general laborer tasks. Both Elliot and Rodriguez were in-
formed when interviewed and hired by Bradshaw, as were all
other applicants and employees, that Respondent was seeking
to build a permanent work force and wanted, only, employees
interested in permanent positions.
Bradshaw testified that, on or about January 10, 1995, he in-
terviewed a job applicant, not further identified in the record,
2 The fact-findings contained herein are based upon a composite of
the documentary and testimonial evidence introduced at trial. Where
necessary to do so, in order to resolve significant testimonial conflict,
credibility resolutions have been set forth, infra. In general, I have
relied upon the testimony of Respondent’s former shop superintendent,
Bradshaw, who impressed me as a thoroughly honest and forthright
witness in possession of a good recollection of significant occurrences.
3 Like Elliott, Rodriguez, on instructions from Van Gordon, falsified
his job application so as not to reveal prior employment by a signatory
to a collective-bargaining contract with the Sheet Metal Workers’ Un-
ion.
KELLY CONSTRUCTION OF INDIANA 1277
who told him that he was a member of Local 20 and was seek-
ing a temporary position with Kelly as, under the Union’s rules,
he could only work for a non-signatory employer, such as
Kelly, while he was “between jobs.” According to Bradshaw, it
occurred to him that Elliot, who, as noted, was being trained to
assume supervisory responsibilities, might be similarly situated
and might not be a permanent employee. It is undisputed that
Bradshaw then approached Elliot on the shop floor, in the pres-
ence of Rodriguez and other employees, and asked him if he
was a member of the Sheet Metal Workers’ Union. When El-
liot said, yes, Bradshaw asked the employee what his intentions
were, and Elliot said, “to organize.” Bradshaw asked if that
meant that Elliot was not a permanent employee but, rather,
was there for a temporary period, only. Elliot responded, stat-
ing that that was so, and that he could not remain permanently
in Kelly’s employ. Prior to this conversation, neither Elliot nor
Rodriguez had revealed their union membership. According to
both Elliot and Rodriguez, one week later, about January 17,
after Rodriguez, too, had made plain his union sympathies, they
were approached by Bradshaw who told them that they were to
do their jobs and, if they “played dirty,” he, Bradshaw, would
“play dirty,” too. Bradshaw, in his testimony, denied that the
latter conversation occurred.
Based on the undisputed testimony, I find that the interroga-
tion of Elliot, who had not, theretofore, openly engaged in un-
ion activities or revealed his union sentiments, by a high level
supervisor and in the presence of other employees, concerning
his union membership, was coercive. Respondent thereby vio-
lated Section 8(a)(1) of the Act. For the reasons noted at foot-
note 2 concerning my favorable impressions of Bradshaw as a
witness, and because both Elliot and Rodriguez appeared to me
to testify in a manner calculated to advance the position of Lo-
cal 20, rather than in an honest effort to report events, I credit
Bradshaw’s testimony denying that he threatened to “play
dirty.” This allegation of the complaint must be dismissed.
Shortly after the January 10, conversation, Benson posted a
no-solicitation policy in the shop, prohibiting solicitation by
employees during working time, and distribution of literature
on working time and in working areas. Concurrently, Benson
and Bradshaw conducted meetings of employees in the shop’s
conference room at which they spoke against unionization and
showed an anti-union film. According to the testimony of the
safety director, Phillips, the rule was posted in response to the
activities of 6 or 7 employees who were selling candy in the
shop, which was disruptive. On the other hand, Benson testi-
fied that he posted the rule after learning that an employee had
solicited another employee to leave Kelly and accept a job with
a different employer. Yet, Benson, in his testimony, could not
explain the relationship between that type of conduct, not even
referenced in the new rule, and the rule’s broad prohibitions
upon solicitation and distribution which, theretofore, was per-
mitted in the shop.
In light of the timing of the promulgation, the concurrent
anti-union animus displayed by Respondent, and the inconsis-
tent and unpersuasive reasons offered by Kelly to explain the
rule’s inception, I am persuaded that the no-solicitation policy
was instituted and maintained for anti-union reasons, only, to
discourage organizational efforts by the employees. Nontheless,
Respondent argues, the Compliant allegations concerning this
matter should be dismissed as untimely under Section 10(b) of
the Act as the offending conduct, although necessarily known
to the Sheet Metal Workers’ Union since the time it occurred,
was first raised by it in its amended charge in Case 25–CA–
24005, dated October 30, 1996. Nor, Respondent further as-
serts, is the subject conduct at all related to the matters raised in
the original charge filed in that case on June 7, 1995, dealing
with refusals to hire, refusals to re-employ and interrogation. I
reject this argument since the evidence shows that the rule was
promulgated on the heels of the unlawful interrogation of Elliot
by Bradshaw, and in response thereto, and, thus, arose from the
same factual circumstances or sequence of events as the allega-
tions contained in the timely filed June 7, 1995 charge.4 By
promulgating and maintaining the no-solicitation policy, Re-
spondent violated Section 8(a)(1) of the Act.
On January 11, 1995, William Smith, a journeyman sheet
metal worker and a member of Local 20, applied for a job with
Kelly at the request of a union official. That very day, Smith
had accepted employment with another company. He was in-
terviewed by Phillips and, according to Smith, Phillips asked
Smith to take off the union hat he was wearing as Phillips’ boss
“didn’t like unions.” Smith refused to do so, he testified, and
the interview proceeded. On the contrary, Phillips testified that
he never made a request of an applicant to remove union insig-
nia. As will appear further, infra, I found Smith’s testimony,
overall, concerning the job interview, improbable and lacking
the ring of truth. Accordingly, I am unwilling to base an unfair
labor practice finding solely upon his uncorroborated testi-
mony, and in the face of Phillips’ believable denial of the mat-
ter asserted. I conclude that the incident complained of did not,
in fact, occur, and that the Complaint allegation in this regard
must be dismissed.
The Complaint alleges that in January, 1995, Respondent
discriminatorily changed its employment application proce-
dures by requiring applicants to update their applications,5 and,
in November of that year, discriminatorily changed its hiring
procedures by requiring applicants to submit their applications
through Indiana Workforce Development (INET), all in viola-
tion of Section 8(a)(3) of the Act. Phillips credibly testified
that the first action was taken on his recommendation, shortly
after he started with Kelly in January, because, as a new com-
pany, Respondent had hired people both from resumes and
hastily filled out applications, and the personnel files lacked
accurate information concerning such items as addresses (used
to calculate per diem payments) and telephone numbers. Ben-
son credibly testified that Respondent took the second action, in
the Fall, so as to take advantage of a free service to Indiana
businesses offered by a state agency, an unemployment office,
thereby saving a lot of time for Phillips which he previously
spent screening applications and, also, reducing office disrup-
tion. In its post-hearing brief, the General Counsel advanced
no arguments in support of the allegation concerning updated

4 See Nickles Bakery of Indiana, 296 NLRB 927 (1989).
5 Despite the allegation’s reference to “applicants,” the evidence
shows that it was “employees” who were required to update their appli-
cations, that is, fill out new ones.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1278
applications, and made scant argument dealing with the change
in hiring procedures, perhaps in tacit recognition that the record
evidence simply won’t support those allegations. The subject
Complaint paragraphs must be dismissed.
Dominick Cora, as part of his participation in the Local 20
“salt” program, applied for work at Kelly on March 27, 1995.
Cora did not reveal his union membership, and he falsified both
his employment and his wage history on the Kelly application
form. Cora, whose permanent employer is New Jac Metal Fab,
was hired by Kelly early in April, as a “field measurer” and a
shop employee, at a wage rate of $10 per hour. He revealed his
union affiliation to Respondent’s officials in August, 1995, and
told them that his participation in the “salt” program would end
about September 1, and he would return to New Jac. Benson
asked Cora to remain with Kelly, but Cora declined, explaining
that, in order to do so, he would have to re-pay the union’s
apprenticeship committee for the cost of his training, since
Kelly was a non-signatory employer.
According to Cora’s uncontradicted testimony, which I
credit, as such, and note for background purposes, on his first
day of employment, in April, supervisor Mike Daugherty told
him that Kelly “had bitter feelings towards” Local 20, and
would close before it would let the Union take over. Cora fur-
ther testified that, following a safety meeting held on May 16,
he overheard Phillips tell shop employees Kyle Minnear, Bob
Hanes and two others, that the Company had to “be careful
right now who we hire because of the . . . two union members
that were on economic strike” (Elliot and Rodriguez). Cora’s
testimony in this regard was not corroborated, and was denied
by Phillips. Cora also testified that, in the same time period, he
overheard Phillips state on the telephone that he was nervous
about having hired two “union boilermakers out of Oklahoma.”
Later that same day, Cora testified, he overheard Phillips tell
Benson, in the shop, that he had “fired the two union boiler-
makers that day.” Again, Cora’s testimony was uncorrobo-
rated, and was denied by Phillips. Further, Phillips testified
that the Company did not have boilermakers working for it.
The General Counsel urges that findings are warranted,
based upon Cora’s above-referenced testimony concerning
alleged overheard conversations, that Respondent, by Phillips,
violated Section 8(a)(1) of the Act by informing employees that
it would not hire applicants who supported the Union, and that
it had fired employees because of their union activities. As I
found Cora’s testimony concerning the overheard conversations
unpersuasive, and as his testimony in those regards was not
corroborated, and was credibly denied, I am unwilling to rely
upon it and, based solely thereon, to make the unfair labor prac-
tice findings sought by the General Counsel. These allegations
stand unproven, and must be dismissed.
Benson testified that he developed a document entitled “In-
terview Questions Shop Applicants” sometime in 1995, after he
learned that Elliot had solicited employees to leave Kelly and
take other jobs, and after Elliot’s and Rodriguez’ separation
from employment at Kelly, described, infra, at which time he,
Benson, concluded that they had never had any intention of
remaining with Kelly as permanent employees. The reason for
the questionnaire, Benson further testified, was to aid the Com-
pany in its efforts to hire people with an interest in long-term
employment with the Company. However, Phillips, who did
much if not most of the interviewing of applicants in 1995,
credibly testified that he passed out the document in question,
only, during orientation, after the individual receiving it already
had been hired, and not to applicants. In November and De-
cember, 1995, new hires David Brown, Chad Emmons and
Cory Van Meter were required to respond to the questionnaire.
Among the questions contained in that document are the fol-
lowing:

17. Have you recently been employed or are
you currently employed by anyone else, or
currently receive compensation from any
other employer or organization?

18. If you do receive such other compensation
or hold other employment, are you to continue
that during your employment with our company—
or do you expect to return to that employer or
organization?

19. If employed by this company, do you intend
to be in the employment or receive compensation
from any other employer or organization?

While, as hereafter found, Respondent had a legitimate inter-
est in building a permanent work force staffed by individuals
desirous of long-term employment, it had no rule against dual
employment,6 arguably justifying the type inquiries contained
in the questionnaire. The questions set forth above were, in the
circumstances, thinly veiled inquiries about union affiliation,
asked of those already hired, and were coercive. Also, Brown,
Emmons and Van Meter all credibly testified that, in addition to
the matters covered by the questionnaire, they were directly
questioned, during their respective meetings with Phillips,
about union membership. Based upon the above, I find that, as
alleged in the Complaint, late in 1995, Respondent, by Phillips,
violated Section 8(a)(1) of the Act by interrogating applicants
and, or, new hires concerning their union membership and ac-
tivities.
At a principal customer site, the Staley North plant, Kelly’s
highest ranking official, at all relevant times, was Kent Grotjan,
the general superintendent. Under him were a foreman, Deon
Ramsey, who later was promoted to the position of superinten-
dent, and another foreman, Rick Fortin. It is undisputed that, in
mid-March, 1996, a pipefitter under Fortin’s supervision,
Stephen Crabb, accompanied by his fellow employee, David
Brown, and in the presence of other members of the piping
crew, told Fortin that he, Crabb, “was there to help organize”
for Local 157. Fortin told him “not to do it on company time.”
Cory Van Meter, a laborer assigned to the crew, testified
that, later that same morning, Fortin asked him if he, Van Me-
ter, had been approached at any time about the Union by Crabb.
Fortin also asked the employee just who it was that Crabb had
been talking to. Thereafter, Van Meter further testified, Fortin,
from time-to-time, would ask Van Meter if he was “going un-
ion,” and to reveal what he had been told by Crabb and em-
ployee David Brown. At the times he was allegedly ques-

6 Cf. Little Rock Electrical Contractors, 327 NLRB 932 (1999).
KELLY CONSTRUCTION OF INDIANA 1279
tioned, Van Meter was not a “known” union supporter, and, in
fact, was not even a member of Local 157. Fortin, in his testi-
mony, stated that “I don’t recall interrogating anybody.”
Based upon my impressions of his demeanor as he testified, I
did not find Fortin a reliable witness. On the other hand, Van
Meter appeared to me to be testifying truthfully and I credit his
account of his encounters with Fortin, and reject Fortin’s very
general denial. By questioning Van Meter, in March, 1996,
about his union activities and sympathies, and those of his fel-
low employees, Respondent, by Fortin, violated Section 8(a)(1)
of the Act.
At the end of March, 1996, employee Crabb engaged in
handbilling on behalf of the Pipefitters’ Union outside the
clock-in gate at the Staley North plant, before working hours.
Although outside the plant, and in or by the parking lot, the
area occupied by Crabb was, apparently, a part of the Staley
premises. Later that day, he was summoned to appear in the
office trailer where Grotjan, Ramsey and Fortin met with him.
Grotjan told Crabb that it was against Staley policy to solicit
anywhere on their property. Crabb asked where the Staley
property line was, and Grotjan said that he, Grotjan, did not
know, and that Crabb was not to solicit on Staley property
again. Thereafter, Crabb handbilled on a city street, adjacent to
the Staley lot, without interference.
Respondent argues that the rule applied to Crabb was a Sta-
ley rule, and not a Kelly rule. Nonetheless, Kelly, by promul-
gating and enforcing such an overly broad rule at the plant,
whether in its name or in Staley’s, prohibiting all solicitation
and distribution on non-work time and in non-work areas, vio-
lated Section 8(a)(1) of the Act.7
Two other employees assigned to the piping crew at the Sta-
ley North plant, Jay Struthers and Chad Emmons, testified
about separate incidents when statements were made by super-
visors about the screening of applicants, allegedly in the Febru-
ary to March, 1996, period. Thus, Struthers, in his testimony,
stated that, prior to a safety meeting held in February or March,
Phillips told the employee that Benson had instructed him,
Phillips, “to start screening applicants because of trying to keep
the Union out.” Emmons testified that, in March, shortly after
Crabb revealed his membership in the Pipefitters’ Union, Fortin
told him that Respondent was “going to have to screen the ap-
plicants a little better to try and keep the union guys out.” Phil-
lips, in his testimony, generally denied ever telling a Kelly
employee that the Company would not hire applicants who
engaged in union activities. Fortin testified that he did not, in
March, 1996, tell any employees that Respondent would not
hire, or consider for hire, applicants who are union members.
Struthers and Emmons impressed me as truthful witnesses,
and I credit their testimony. As earlier noted, I did not find
Fortin a reliable witness and I discredit his above-referenced
denial of wrong doing. I found Phillips’ general denial of

7 Contrary to Respondent, I am of the view that the Complaint alle-
gation dealing with the promulgation and enforcement of this unlawful
rule, in response to Crabb’s solicitation and handbilling activities, is
closely related to the May 9, 1996, charges, timely filed by Local 157,
concerning “harassing union supporters,” and other unlawful activities,
in the same time frame and at the same locale.
Struthers’ testimonial assertions less persuasive than the em-
ployee’s testimony. Accordingly, I conclude that, in February
and, or, March, 1996, Respondent, by Phillips and Fortin, vio-
lated Section 8(a)(1) of the Act by informing employees that
Respondent would not hire, or consider for hire, applicants for
employment who are union members.
Jeff Dyer and John Crayz are pipefitters who work for Kelly
at Staley North under Grotjan and Ramsey. Dyer testified that,
on March 12, 1998, some 5 weeks before the election con-
ducted by the Board among the fitters and welders, he drove,
after work, to a union meeting at the Radisson Hotel in Lafay-
ette, off Highway 26. As Dyer turned off the highway, and into
the hotel area, he saw Grotjan, in a Kelly vehicle, stopped at a
red light nearby the hotel. Dyer waived at the general superin-
tendent and, then, proceeded on to the hotel parking lot, while
Grotjan continued on the highway.
Crayz testified that he, too, drove to the meeting on March
12, and that fellow employee Darrell Wiser was his passenger.
Crayz parked his car in the hotel lot, some 350 to 400 yards
from Highway 26, and as he and Wiser got out of the car, Wiser
set an empty beer bottle on the parking lot, next to Crayz’ car.
On the next day, March 13, at work, Grotjan approached
Crayz at 8:00 a.m., threw his hands up in the air and said, “I
can’t believe you guys are fucking me like this.” Grotjan then
proceeded to thank Crayz for Darrell Wiser, the “new union
organizer.”8 When Crayz protested, Grotjan asked him “well
what were you doing at the union meeting?” Crayz then denied
he was at the meeting, to which Grotjan responded, “yes you
was, I seen Darrell put a Michelob bottle next to your car.” At
that point, Crayz admitted that he had attended the meeting.
Grotjan then asked him why he wanted a union and, then, told
Crayz “if you want to go union why don’t you just go.”
Grotjan testified that he drives on Highway 26, by the Radis-
son, daily, to and from work. On March 12, when he and Dyer
saw each other, and waived to each other, Grotjan testified, he
was on his way home. After arriving home, and showering,
Grotjan, about 40 minutes later, used Highway 26 again, and
returned to the Radisson. He did so, he testified, looking for
Benson and Company Attorney Cody, who was staying at the
Radisson during that week, a trial week in the instant case.
Grotjan drove about the Radisson parking lot, looking for Ben-
son’s vehicle or Cody’s vehicle, did not see either, and, so, left
the hotel lot. Grotjan never got out of his own vehicle to enter
the hotel and see if Benson and, or, Cody was there. In the
course of searching the parking lot, he testified, he spotted
Crayz and Wiser departing Crayz’ car. According to Grotjan,
he was there, looking for Benson and Cody, so as to discuss the
day’s trial events. Grotjan, in further testimony, did not dispute
Crayz’ account of their conversation on the next day, March 13,
explaining that he and Crayz were friends and that Crayz had
previously expressed to him a disinterest in the Union.
I found Grotjan’s explanation of his actions in driving about
the Radisson parking lot, at the start of a union meeting for the
employees he supervised, illogical and entirely lacking the ring
8 That morning, Grotjan had received a written communication from
the Pipefitters’ Union, describing Wiser as a “volunteer union organ-
izer.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1280
of truth. It is rejected in favor of the obvious inference to be
drawn from the circumstances, that Grotjan was there to keep
watch upon the employees’ union activities, and find out who
was attending the meeting. On the next day, according to
Crayz’ highly credible and, essentially, uncontradicted testi-
mony, Grotjan made full use of what he learned from the sur-
veillance, for further unlawful purposes. General Counsel’s
case is a very strong one that Respondent, by Grotjan, engaged
in unlawful surveillance of the employees’ union activities on
March 12, and, on March 13, created the impression that the
employees’ union activities were under surveillance, interro-
gated employees about their union activities and threatened
employees with discharge and other reprisals if they continued
to engage in union activities, all in violation of Section 8(a)(1)
of the Act. I so find and conclude.
2. Elliot’s discharge and Rodriguez’ termination
of employment
It is undisputed that Bradshaw, the shop superintendent, was
pleased, initially, with Elliot’s job performance. The record
contains no evidence of any dissatisfaction with Rodriguez’
work. As earlier noted, they, like the Company’s other em-
ployees, were required to complete new job applications on or
about January 16, 1995. While Elliot, in his second applica-
tion, continued falsely to claim that J & R Sheet Metal Com-
pany was his last employer, Rodriguez, in his second applica-
tion, put down information at variance with that contained in
his first application. Thus, in his application dated December 7,
1994, Rodriguez falsely claimed to have worked for Ace Sheet
Metal Co., Inc., in Patterson, New Jersey, from August, 1991,
until November, 1994. In the second document, dated January
16, 1995, Rodriguez truthfully listed Brite Sheet Metal Com-
pany as his employer from August, 1991, until September,
1994, and Local 20 as his employer thereafter.
By January 16, 1995, the employees in Respondent’s shop
had begun to work 12-hour days. On that date, Elliot told
Bradshaw that he would not, or could not, work the overtime
hours and, Bradshaw testified, he told Elliot that he needed
everyone in the shop to work the longer days. Thereafter, Elliot
continually left work, without permission, after working an 8-
hour shift and, in some cases, after working less than the 8
straight-time hours. On February 3, Benson and Bradshaw met
with Elliot about the matter, and the employee admitted that he
had been leaving work early and, in response to inquiry from
the Company executives, Elliot categorically refused to work
12 hours per day, as Respondent was requiring of all shop em-
ployees. Benson and Bradshaw then suspended Elliot, without
pay, for 2 days. Upon his return, he and Rodriguez met with
Bradshaw, on February 6, demanded a pay increase for all shop
employees and, when Bradshaw turned them down, they an-
nounced that they were going on an economic strike. They so
informed the shop employees, and left.
In this time period, Benson and Bradshaw learned that, in
January, Elliot had induced an experienced welder in the shop,
A. J. Wilson, to quit his job at Kelly and accept other employ-
ment. Elliot had told Wilson that he, Elliot, was a member of
Local 20, and that the Union had placed him with the Company
to “get the good people out of Kelly Construction so we can
close it down.”9 They also learned that, later in the month,
Elliot had told the shop foreman, Mike Daugherty, that Kelly
“wasn’t going to be around 90 more days,” and had offered to
help Daugherty find another job. In this same time frame, the
Company discovered, by comparing Rodriguez’ first and sec-
ond applications, that one or both of them contained falsehoods
concerning the employee’s past work experience. Under Com-
pany rules, as set forth on its applications, misrepresentation or
omission of facts on the document is cause for dismissal.
Late in February, some 3 weeks after their strike began, El-
liot and Rodriguez returned to Kelly and told Bradshaw that
they were making unconditional offers to return to work. Brad-
shaw told them that their jobs had been filled and that they
were under investigation, and should complete new job applica-
tions, which they did. Subsequently, Benson and Bradshaw
met with Elliot to discuss his “stripping” Wilson from the
Company’s employ. Elliot falsely denied having done so, but
Benson told him that Respondent’s investigation revealed that
he had, and that he was fired. At trial, Benson testified that he
discharged Elliot for inducing one of Kelly’s better employees
to seek other employment, for lying to Benson about having
done so and for refusing to work overtime and repeatedly leav-
ing work in the middle of the day.
Respondent informed Rodriguez, when he met with Brad-
shaw in late February, that he was under investigation for falsi-
fying information on his application. Then, upon inquiry, Ben-
son learned that past employers listed by Rodriguez did not
exist. Benson instructed Bradshaw to meet with the employee
and find out if there was an explanation. Bradshaw attempted to
set up a meeting with the employee, at its Lafayette, locale, but
Rodriguez repeatedly refused to report unless it was for the
express purpose of returning to work. He would not come in
for purposes of a meeting. On March 3, 1995, Benson sent a
letter to Rodriguez stating that “I regard you not reporting as an
indication of lack of interest, and intentional failure to report,
and your abandoning employment with this company.” At trial,
Benson testified that Rodriguez was never discharged, but,
rather, he failed to “show back up.”
In light of the blatant hostility toward employee union activi-
ties displayed by Respondent throughout 1995, and, thereafter,
and the Company’s knowledge of the union affiliation and or-
ganizational activities of both Elliot and Rodriguez, the dis-
charges of those employees, within weeks after Respondent
learned of their union membership, warrants the inference that
Respondent took those actions for reasons proscribed by the
statute. However, in my view, the Company has shown that it
would have terminated these employees even absent their pro-
tected conduct and, so, shown that they were not discharged in
violation of Section 8(a)(3) of the Act. Regarding Elliot, it is
preposterous to argue that any employer, under any circum-
stances, would retain an employee engaged in an avowed and
systematic effort to lure away the employer’s best workers in
order “to close it down.” On that basis alone, and without even
considering the evidence that Elliot refused to work the same
hours as the other shop employees, I conclude that Respondent

9 Wilson subsequently returned to Respondent’s employ, several
weeks later, and revealed these facts to Respondent’s officials.
KELLY CONSTRUCTION OF INDIANA 1281
has demonstrated that the discharge of Elliot was for lawful
reasons. As to Rodriguez, his outright refusal to report to Re-
spondent’s facility to discuss the material discrepancies con-
tained in his job applications, and at a time when his dismissal
was not a foregone conclusion, was, also, ample grounds for
dismissal, and an action which nearly any employer would have
taken under the circumstances. I therefore find and conclude
that the discharges of these employees were not violative of the
Act.
3. The applicants
Throughout 1995, and thereafter, Kelly Construction main-
tained a policy under which employment applications it re-
ceived were kept “active” for 15 days and, then, placed in an
inactive status. During the course of 1995, and into 1996, some
27 Local 20 “salts” applied for work with Kelly, “overtly,” that
is, fully revealing their union affiliation, and none of them were
hired. In the January 9, to 11, 1995, period, Brian Stout, a par-
ticipant in the Local 20 “salt” program for third year appren-
tices, applied, as did journeymen William Smith and Ricky
Underwood. On May 23, 1995, Gabriel Brooking, Aaron
Dailey, Jason McKinney, Donald McQueen, Jr., Jim Santac-
roce, Ronnie Sims, Peter Williams and Bobby Wright, partici-
pants in the apprentice “salt” program, appeared at the Kelly
office as a group and filed applications. On October 9, 1995,
apprentice “salt” program participants Anthony Abel, Douglas
Barkdull, Greg Burke, Ronald Cornwall, Theodore DeFronzo,
Jr., Thomas Gray, James Hail, Lonnie Hegg, Stephen Hill,
Todd Huyghe, Brady Piercefield, Stephen Rogers, George
Sears and Ken Walden, along with Union officials John Reese
and Michael Van Gordon, went to the Kelly office, together,
and completed employment applications. Many of them re-
applied on October 25, 1995, and a few of them submitted third
applications on January 16, 1996. During the periods that at
least some of the foregoing applications were active, January 9,
1995, to January 26, 1995, May 23, 1995, to June 7, 1995, Oc-
tober 9, 1995, to November 9, 1995, and January 16, 1996, to
February 1, 1996, and immediately adjacent to those time peri-
ods, Respondent hired a truckdriver, two welders and five la-
borers or helpers. In its brief, the General Counsel urges that at
least the laborer or helper positions, which “required little, if
any, prior job experience,” would have been offered to the
“salt” applicants if lawful hiring criteria had been employed.
Benson credibly testified that the Kelly shop employees, in
their fabrication, cutting and assembling work, use a heavy
gauge metal. They do not perform heating and air-conditioning
work,10 and do not handle the light gauge metal used to fabri-
cate the duct work for light commercial and residential heating
and air-conditioning systems (HVAC work), the type work
principally performed by the Local 20 apprentices. By design,
the vast majority of the workers Kelly hires, as shown by the
record evidence, are referred to it by Kelly employees or Kelly
customers. While Respondent hires certain employees profi-
cient at doing specialized work, such as Elliot, who was hired
to do layout work, it has a preference for hiring, to staff its
shop, inexperienced laborers who are trained on the job to do

10 Indeed, any such incidental work is subcontracted.
fabrication work “the way we like things to be built.” Such
employees, typically hired at $7 or $8 per hour, are, among
other things, taught to fabricate metal, over a period of years,
and, when they become experienced fabricators, can earn up to
$14 per hour. Kelly also looks to hire employees whose wage
expectations and past hourly earnings are in line with its own
pay structure. In this connection, Benson testified that “I can’t
see that anyone would be happy making $7 or $10 an hour and
used to making $20 an hour.” Finally, Benson further testified
that, as earlier noted, and as communicated to all applicants by
Bradshaw and Phillips, Respondent, in seeking to build its
Company, was interested, only, in hiring workers who desired
permanent employment.
The shop and field laborers hired within and about the
above-referenced periods when the “salts’’ applications were
active, met the stated criteria. On January 16, 1995, Kelly hired
Karl Blichenstaff, as a laborer in the shop, at $7 an hour.
Blichenstaff had no prior experience in construction work, was
referred by Kelly employee Robert Allen and did not have a
history of earning more than Kelly paid. On May 24, 1995, it
hired Kevin Vail, as a shop laborer, at $8 per hour. Vail was
referred by Shop Foreman Mike Daugherty, and had worked in
sales, on commission, since leaving high school. On June 14,
1995, the Company hired Rene Rubalcava, as a laborer/plasma
operator in the shop, at $7 per hour. Rubalcava, referred by
Phillips, had most recently performed seasonal work as a fire-
place installer at $8.50 per hour. On October 26, 1995, Kelly
hired Koel Gaylord, as a field laborer, at $8 per hour. Gaylord
had been referred by Superintendent Grotjan, and had most
recently worked as a machinist at $9.50 an hour. On January
26, 1996, the Company hired Curtis Dalton, as a shop laborer,
at $8 per hour, on the recommendation of his brother, an exist-
ing employee. Dalton had most recently worked as a laborer at
$7 an hour. In addition to the laborers, Kelly hired Terry Baer
on October 28, 1995, as a truckdriver, at $8 per hour; Ryan
Mounts on January 9, 1995, as a shop welder, at $9 per hour
and Mike Mills in late January, 1995, as a field welder, at $14
per hour.
As noted, in the early January, 1995, period, Local 20’s Un-
derwood, Smith & Stout filed applications with Kelly. None of
them were referrals of Kelly employees or customers, and all
wore union hats when they appeared at the Kelly office. Un-
derwood, a journeyman laid off from his most recent position,
sought a job as a sheet metal welder, at a desired salary of $21
per hour. Smith, also a journeyman, with extensive experience
in HVAC installation, sought a salary of $20 an hour, in line
with his past earnings.11 Stout, a third year apprentice in the
“salt” program, sought an “HVAC installer or shop” position, at
11 Among other things, Smith testified that Phillips actually hired
him, to start work the next day, at a $14 hourly wage but, after being
briefly called out of the room, returned and recanted the offer. Accord-
ing to Smith, his employment was not conditioned upon a physical
examination and a drug test, as required of all other prospective em-
ployees of Kelly. Phillips, in his testimony, denied that he offered
Smith a position. Rather, he testified, he told Smith that Kelly was
hiring, only, “inexperienced laborers” at $7 an hour. I found Phillips’
testimony the more credible, and I rely upon it, as opposed to the less
likely version of events offered by Smith.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1282
an open salary. His application reflected current employment
by Local 20, and previous employment as a sheet metal worker,
at $11.80 an hour, as part of his training. In his testimony,
Stout stated that he knew the “salt” program would last for a 6-
month period, after which he returned to his former job at the
Apex company.
On May 23, 1995, eight members of the Local 20 “salt” pro-
gram, none of them referrals, arrived together at the Kelly of-
fices, wearing union hats, and filled out applications. Gabriel
Brooking, in his application, sought a position as a “sheetmetal
worker,” at an open salary, and he showed current employment
with Local 20, as an organizer, and past employment with
Ralph R. Reeder, as an apprentice. As he previously arranged
with that employer, Brooking returned to Reeder at the end of
his 6-month “salt” service. Aaron Dailey, in his application,
sought a position as a “sheet metal worker,” at $8.50 per hour,
and showed current employment by Local 20, as an organizer,
and past employment by Brite Sheet Metal, as a sheet metal
worker, at $14.44 per hour. Dailey testified that, while working
for Local 20, he knew that his job at Brite was waiting for him
and, in fact, at the end of the “salt” program, he returned to that
employer. Jason McKinney, in his application, sought a “sheet
metal” position, without indicating a desired salary, and
showed current employment by Local 20, as an organizer, and
past employment, as an apprentice, by Smithers Roofing at
$11.37 per hour. McKinney testified that he told the superin-
tendent at Smithers, when he entered the “salt” program, that
he, McKinney, would return in 6 months, which he did. Ac-
cording to McKinney, and other witnesses, the 6-month period
of the “salt” program may be extended if the “salt” secures
employment during the course of the program, and an organiz-
ing campaign ensues, which, at the end of the 6 months, is still
ongoing. James Santacroce, in his application, sought a “sheet
metal” position, without showing a desired salary. Santacroce
testified that he was “on leave” from his job at Apex Ventilat-
ing, where he earned $11.70 per hour, and where he returned at
the conclusion of his “salt” service. Ronnie Sims was also “on
leave” from Apex, where he returned following his participa-
tion in the “salt” program, when he filed his application with
Kelly. Sims, who earned $12.26 an hour at Apex, sought a
“sheet metal” position with Respondent, at an “open” salary,
and claimed experience as a sheet metal apprentice, and as an
organizer. Peter Williams, in his application, sought “any
available” position, at “open” salary, and showed current em-
ployment by Local 20, as an organizer, and past employment
by Sink & Edwards, as an apprentice. Williams, who earned
$13 an hour at Sink & Edwards, testified that he was “on leave”
from that company for the 6-month period of his salt service.
Bobby Wright, in his application, sought a “sheet metal work”
position, at “open” salary, and showed current employment by
Local 20, and past employment by Blackmore & Buckner.
Upon completion of his “salt” service, he returned to that com-
pany, at his wage rate of $14 per hour, as the company knew he
would. Donald McQueen, Jr., in his application, sought a
“sheet metal worker” position, at “open” salary, and showed
current employment by Local 20, as an organizer, and past
employment as an apprentice, earning $11.37 an hour, with C
& C Sheet Metal. Upon completion of his apprentice “salt”
service, McQueen, by prearrangement, returned to C & C. He
testified that some 90 percent of his experience was commer-
cial, fabricating and installing duct work.
As to the October 9, 1995, applicants, none of them referrals,
they arrived at the Kelly office together, and all wore union
insignia. All of them, Abel, Barkdull, Burke, Cornwell, De-
Fronzo, Gray, Hail, Hegg, Hill, Huyghe, Piercefield, Reese,
Rogers, Sears, Van Gordon and Walden, filled out applications
showing their current employment with Local 20, as organizers,
and experience in the sheet metal trade, principally, HVAC
work in the residential and commercial fields. Most sought
“any available” job, at virtually “any” salary, and indicated a
past wage rate of $11.70 per hour. Some of them specified in
their Kelly applications that they were “on leave,” or “trans-
ferred,” from positions with their permanent employers while
they fulfilled their third year apprenticeship “salt” obligations.
Reese, at the time he submitted his application with Kelly, was
earning $52,000 per year, plus expenses and free use of a car,
with the Union. His application showed that he last worked
with his tools in 1982. Van Gordon, as of October 9, 1995, was
earning $21.27 an hour with the Union, plus perquisites, and
had last worked with his tools in 1990. His experience, too,
was in residential and commercial work, and not in industrial
work. Indeed, of all the applicants, Rogers was the only one
who, prior to “salt” service, worked for an industrial contractor.
I note, too, that, in addition to filing second applications at the
Kelly office on October 25, 1995, along with others of the Oc-
tober 9 applicants, Rogers and Cornwell filed applications at
INET on November 27. However, it does not appear that the
Company engaged in hiring relevant to this case during the
November 27, to December 12, 1995, period.
The 27 Local 20 “salts,” journeymen and apprentice sheet
metal workers, thus filed applications with the Company during
1995, and early 1996. Many of them sought “any available”
job. While Benson credibly testified that all of them were con-
sidered for employment, none of them were hired. Rather, and
shortly after the submission of various of their applications,
Respondent hired laborers and helpers who, demonstrably,
lacked superior qualifications. The Local 20 “salts” were, of
course, all union activists, and Respondent knew it. The record
is replete with evidence that Kelly harbored anti-union animus
and was willing to oppose organization of its employees by
unlawful means, including, “screening applicants” in order to
“keep the union out.” Thus, the inference is warranted that
Respondent refused to hire the “salts” for discriminatory rea-
sons and, accordingly, the General Counsel has established a
prima facie case of unlawful refusal to hire.12
In my view, however, Respondent has shown that it made
the hiring decisions which it did on the basis of neutral applica-
tion of legitimate and nondiscriminatory policies, and that it
would have made these same choices even absent the union
affiliations of the “salts.” Thus, the record evidence shows, and
General Counsel in its brief does not appear to argue otherwise,
that, since the experience of the “salts” in HVAC sheet metal
work was of little value to Kelly, an industrial general contrac-
tor engaged in an entirely different type of work, the “salts”

12 See Big E’s Foodland, Inc., 242 NLRB 963 (1979).
KELLY CONSTRUCTION OF INDIANA 1283
qualified, only, for laborer and helper positions. Benson, in his
testimony, conceded as much. However, the evidence further
shows, as Benson testified, that in filling open positions, in
accordance with its policies, the Company preferred to hire the
referrals of its employees and customers, which the “salts”
were not. It preferred to hire and train in its ways of doing
things, inexperienced laborers, which the “salts” were not. It
preferred to hire for positions paying $6 to $9 per hour, workers
who were accustomed to earning in that range, and Respondent
knew that the “salts” were accustomed to earning much more.
In attempting to build its new company, Respondent wanted
and needed employees likely to be permanent, and not tempo-
rary, and Kelly knew, because it had been so advised by Elliot
and Cora, that the “salts” would not, and could not, remain with
Kelly on a permanent, or other than temporary, basis. As Re-
spondent has, thus, articulated legitimate, nondiscriminatory
business reasons for not hiring the Local 20 “salt” applicants,13
and has shown that it would have made the same hiring deci-
sions regardless of their union affiliation, I conclude that the
Company’s failure to hire them was not in violation of the Act.
4. The discharge of Brown
David Brown, a member of Local 157, was hired by Re-
spondent as a pipefitter/welder on December 1, 1995, and was
assigned to Kelly’s piping crew at the Staley North plant under
Superintendent Grotjan and Foreman Ramsey. Brown, who did
not reveal his union affiliation to management when he was
hired, worked with some 14 or 15 members of the crew, and he
discussed organization with them. On or about February 23,
1996, Brown received a written reprimand for clocking in late
on February 21, a disciplinary action which the Complaint al-
leges was taken for discriminatory reasons. As the General
Counsel has not shown that, at the time of the discipline, Re-
spondent was aware of Brown’s union sympathies, that allega-
tion must be dismissed. As earlier noted, it was approximately
March 12, 1996, when Brown and Crabb approached Supervi-
sor Fortin, together, and Crabb stated that he was there to or-
ganize.
Brown was summarily discharged by Ramsey on April 1,
1996. On that day, after he arranged to report late for work,
Brown arrived at about 10:30 a.m., walked through the gate
onto the Staley premises and reported to Grotjan and Ramsey at
the Kelly job trailer. The employee then proceeded to his tool
box, close to his work station, where his tools, work clothes and
safety equipment were stored. Brown put on his coveralls,
work boots and hard hat, and took one load of tools up a flight
of stairs to his work area. As he was unloading the tools, where
others were working, but before he, Brown, had started to
work, Ramsey approached. According to Brown’s testimony,
Ramsey told the employee that he was being fired for failure to
wear side shields on his safety glasses. When Brown asked if
Ramsey was actually discharging him for such an offense, the
supervisor said that, indeed, he was doing so. The Company
prepared a termination slip stating that the discharge was for
“repeated warnings to wear safety side shields.” Brown credi-

13 See Windemuller Electric, 306 NLRB 664, 680 (1992).
bly testified that, in fact, he had not received prior warnings,
oral or written, concerning this.
Under Staley rules, employees must wear side shields on
their safety glasses while on Staley premises. Also, it is Kelly
safety policy that safety glasses with side shields be worn “at
all times while working.” Nontheless, the record is replete with
evidence that Brown’s practice of storing his safety equipment
in his tool box, and putting on his side shields when he started
to work, was known to the Company’s supervisors and, in fact,
was common among the employees. Brown was the first Kelly
employee to be disciplined for failure to wear side shields.
Ramsey, in his testimony, stated that Brown, and many other
employees, had been warned on numerous occasions about
wearing side shields and that, on April 1, 1996, Brown was not
wearing shields while in the work area and at a time when oth-
ers were working. Conceding that failure to wear such side
shields is not, normally, a dischargeable offense, Ramsey
claimed that it was Brown’s insubordination, in laughing at him
when he directed the employee to put on the side shields, that
led to the firing. At another point, Ramsey testified that both
Brown’s failure to wear the shields, and his insubordinate be-
havior, were the reasons for discharge. Yet, the termination
notice contains no reference to insubordinate behavior.
I found Brown a forthright and believable witness. On the
other hand, Ramsey did not so impress me and I found his tes-
timony, on this and other points, to lack the ring of truth and at
odds with the probable course of events suggested by the record
evidence as a whole. Accordingly, I find that the happenings of
April 1, 1996, occurred as described by Brown.
In light of Brown’s union support, Respondent’s knowledge
of same and its demonstrated hostility thereto, and the timing of
the discharge soon after the Company learned of Brown’s or-
ganizational stance, I conclude that the General Counsel has
established a very strong prima facie case of unlawful discharge
under the Act. Respondent has not shown that it would have
discharged Brown even absent his protected conduct. Rather,
in advancing shifting and patently pretextual reasons to explain
the discharge, it has failed to rebut the General Counsel’s case.
I find and conclude that, on April 1, 1996, Kelly discharged
Brown because of his union activities, in violation of Section
8(a)(3) of the Act.
5. The layoff of Crabb
Stephen Crabb, Sr. was hired by Kelly as a pipefitter on or
about the first of March, 1996, and was assigned to the piping
crew at the Staley North plant. Beginning March 12, he began
talking with fellow employees about the Union. Also on that
date, as found, above, Crabb and Brown approached Supervisor
Fortin, and Crabb informed Fortin that he, Crabb, was there to
organize for Local 157.
As detailed, supra, at the end of March, Crabb distributed
handbills on behalf of the Union, before work, at the gate en-
trance to the Staley, plant, and, later that day, unlawfully was
instructed by General Superintendent Grotjan to cease solicita-
tion activities on Staley property. Soon thereafter, on April 3,
and 4, Crabb received written warnings from Supervisor Fortin,
the first for leaving tools at his work station instead of returning
them to the toolroom, and the second for “not working at com-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1284
pany standards.” Regarding the first matter, the uncontradicted
record evidence reveals that other employees, on many occa-
sions, have left tools out and were not disciplined for it. As to
the second warning, Crabb testified, without contradiction, that,
when it was issued to him, Fortin was unable to point to any
examples of sub-standard work except an installation job per-
formed, not by Crabb, but by another employee. In light of
Crabb’s union activities, Respondent’s knowledge of, and
unlawful interference with, same, the Company’s hostility to-
ward employee organization and willingness to oppose it by
means prohibited by law, and the timing of the warnings imme-
diately following Crabb’s handbilling for Local 157, the infer-
ence is amply warranted that a motivating factor for the disci-
plines was the employee’s organizational activities. As Re-
spondent has entirely failed to show that it would have so disci-
plined Crabb even absent his protected conduct, I find that the
disciplines were issued in retaliation for that conduct, in viola-
tion of Section 8(a)(3) of the Act.
Crabb engaged in union handbilling, on a street adjacent to
the Staley North plant parking lot, on April 11, and, again, on
April 12, and was observed in that endeavor by Grotjan, Ram-
sey and Fortin. Later on April 12, Fortin informed him that he
was laid off, as part of a reduction in force, because “the job
was winding down.” In fact, at the time, there was a great deal
of work left to do and the members of the piping crew were
working 50 hours per week. According to Crabb’s credited and
uncontradicted further testimony, as Fortin escorted him out, he
asked Crabb why he “wanted to cause trouble with this union.”
Grotjan testified that, on April 12, he was instructed by the
customer, Staley, to reduce the Kelly work force and he, Grot-
jan, in turn, told Ramsey to select members of the piping crew
for layoff. According to Ramsey, he picked Jason Wood and
Jason Mathis, new hires who functioned, only, as helpers, J.D.
Leatherwood, III, a pipefitter who requested a layoff, and pipe-
fitters and union supporters Crabb and Jay Struthers. Ramsey
testified that he selected Crabb because he was incompetent.
I have previously found Ramsey a less than credible witness
and I am unwilling to assign weight, here, to his entirely unsub-
stantiated testimony. The General Counsel’s strong prima facie
case, that Crabb was selected for layoff for discriminatory rea-
sons, based upon Kelly’s knowledge of his union activities and
its antipathy thereto, the prior unlawful disciplines issued to
this employee, the timing of his selection for separation from
employment and the remarks made by Supervisor Fortin at the
time of that selection, is not easily overcome. Here, there is an
entire lack of credible record evidence to show that, even ab-
sent his protected conduct, Crabb would have been chosen for
layoff. I thus conclude that Respondent chose to lay off Crabb,
on April 12, 1996, because of his support for Local 157, in
violation of Section 8(a)(3) of the Act.
6. The layoffs of Struthers and Emmons
Jay Struthers was hired by Kelly in the Fall of 1995, as a
pipefitter and welder, and was assigned to the Company’s pip-
ing crew at the Staley North plant. While working there he
learned about the Union from Crabb and he, Struthers, began to
assist it in its organizational activities. In April, 1996, Struthers
joined Local 157.
During March of 1996, Struthers said to his supervisor,
Fortin, concerning the lack of a replacement for a broken tool,
that “well stuff like this wouldn’t happen if we had a union in
here.” Fortin became angry and told the employee that “a un-
ion isn’t ever going to get in here because we treat our employ-
ees too good.”
As noted, Struthers, like Crabb, was laid off on April 12,
1996. At that time, he asked Ramsey and Grotjan for the rea-
son, and was told that Kelly “needed more pipefitters than
welders.” Yet, Struthers testified, during the course of his em-
ployment with the Company, he had performed pipefitting
work some 50 percent of the time.
Ramsey, in his testimony, claimed that he selected Struthers
for layoff on April 12, primarily because “he had a bad atti-
tude” and came to Ramsey “complaining about everyone he
worked with.” Yet, while Struthers had received prior written
disciplines, mainly for clocking in late, he had not been “writ-
ten up” for attitude problems.
Chad Emmons, a pipefitter and welder, was hired by Re-
spondent at the end of 1995, and was also assigned to the pip-
ing crew at the Staley North plant. On the day he was hired,
Emmons signed an authorization card designating Local 157 as
his collective-bargaining representative. In April, 1996, he told
Fortin that he, Emmons, “was a member of the union and was
there to help organize Kelly.” Fortin shook his head and
walked away. Later, Ramsey told Emmons that he “didn’t like
it very good.” A few weeks later, on May 3, Ramsey told
Emmons that he was being laid off because “work had slowed.”
At the time, Emmons was doing welding work and was teamed
with a pipefitter, Paul Becker, who was also laid off. Both
Emmons and Becker were recalled, several days later, to re-
place other employees who unexpectedly quit.
Ramsey testified that, on May 3, Grotjan, on instruction from
the Staley Company, had directed him to lay off one pipefitter
and one welder. Ramsey chose Emmons and Becker, he further
testified, because “they were the least productive,” and not
based upon union considerations. On the other hand, Benson
testified that Emmons was a good worker, and was not selected
for layoff due to his work performance.
Struthers and Emmons engaged in activities on behalf of Lo-
cal 157, and were laid off shortly after Respondent learned of
their support for the Union. Respondent, throughout 1995, and
1996, harbored strong anti-union animus and demonstrated a
willingness to oppose organization of its employees by unlaw-
ful means, including discriminatory discharges and layoffs.
Thus, the inference is warranted that a motivating factor in the
selections of Struthers and Emmons for layoff was their support
for Local 157. Respondent has not shown, by the testimonial
explanations of Ramsey, that it would have laid off those em-
ployees even absent their protected conduct. As earlier found,
Ramsey was not a credible witness and I do not accept his tes-
timony particularly where, as here, it is at odds with other evi-
dence and the logical inferences to be drawn therefrom. I find
and conclude that Struthers and Emmons were laid off, in viola-
tion of Section 8(a)(3) of the Act, because of their union sup-
port. On the other hand, the General Counsel’s further conten-
tion, that Emmons was unlawfully disciplined for lateness on
February 23, 1996, is rejected, as this occurred prior to the time
KELLY CONSTRUCTION OF INDIANA 1285
that Emmons identified himself to Respondent as a union sup-
porter.
7. The representation Case
Upon a petition filed by Local 157 on January 30, 1998, and
after a representation case hearing concerning, essentially, a
dispute over unit placement issues, the Regional Director, on
March 10, and 17, 1998, issued a Decision and a Direction of
Election in a craft unit of pipefitters and pipewelders, described
as follows:

All full-time and regular part-time pipefitters and pipewelders
employed by the Employer BUT EXCLUDING all mill-
wrights, ironworkers, carpenters, laborers, crane operators, all
professional employees, all clerical employees, all guards, all
supervisors as defined in the Act, and all other employees.

Following the Board’s April 15, 1998, denial of the Employer’s
Request for Review of that Decision, an election was conducted
on April 16, 1998, yielding a tally of ballots showing 3 votes
cast for the Union, 6 votes against the Union and 33 challenged
ballots. At trial in the instant case, the parties resolved the
challenged ballot issues, agreeing that the challenges to the
ballots of Jeffrey Marsh, Rick Fortin and William Wood be
withdrawn, and their ballots be opened and counted, and that
the challenges to the remaining 30 ballots be sustained, and
their ballots not be opened or counted. As a result, the chal-
lenged ballots to be opened and counted are not determinative
of the results of the election.
After withdrawal, before and at trial, of most of the objec-
tions to conduct affecting the results of the election filed by
Local 157, two arguably valid objections survive. The first, set
forth in Objection 6, as supplemented by the “Additional Al-
leged Objectionable Conduct” designated by the Regional Di-
rector in his post-election report, tracks the Complaint allega-
tions of surveillance of employee union activities, creating the
impression of surveillance, interrogating employees concerning
their union activities and threatening employees with discharge
and other reprisals if they engaged in activities in support of
Local 157, by Superintendent Kent Grotjan, on March 12, and
13, 1998, during the critical period between the filing of the
petition and the conduct of the election. Having found, supra,
that Respondent engaged in violations of Section 8(a)(1) of the
Act by that conduct, I further conclude that the objections to the
election, based upon the same conduct, must be sustained, and
the election must be set aside and a new election ordered.
In view of my disposition, I need not determine the validity
of Objection 9, that:

Despite the decision rendered by the National Labor
Relations Board in a pre-election hearing that determined
the proper unit, the employer knowingly submitted an im-
proper excelsior list to the Federal Government that in-
cluded no less than 22 names of persons who had no
community of interest with the petitioned for unit.

I note, however, the circumstances giving rise to this objection.
Thus, in addition to the 10 or 11 members of the piping crew
working at the North Staley plant whom the petitioner sought to
represent,14 the Regional Director, after examining all work
sites, included in the craft unit he found appropriate “the ap-
proximately two pipefitters who work at the shop [and who]
share the same skills, utilizing the same tools and performing
substantially the same tasks as those on the piping crew. . . .”
Indeed, the two individuals referred to, Rick Fortin and Jeff
Marsh, were transferred, from the Staley North plant piping
crew, to the shop, some months before the representation case
hearing. Nontheless, and despite the Director’s unit determina-
tion which expressly rejected a broader unit sought by the Em-
ployer, and the Board’s refusal to grant review, Kelly submitted
an Excelsior list containing the names and addresses of 33 em-
ployees, nearly three times the number of employees found by
the Director to be included in the appropriate unit. In justifica-
tion for the inclusion on the list of some 20 or 21 employees
occupying classifications other than pipefitter or pipewelder,
Kelly urges that, by describing the appropriate unit to include
“all” pipefitters and pipewelders employed by Kelly, full-time
and “regular part-time,” the Director expanded the unit to in-
clude non-pipefitters and non-pipewelders who, nontheless,
perform, or assist in performing, pipefitting and, or, pipeweld-
ing work on a temporary, occasional, casual, or incidental basis.
This argument is totally at odds with the express terms of the
Director’s Decision and, in my view, is not only erroneous, but
frivolous, and not made in good faith.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth in Section III, above,
occurring in connection with its operations described in Section
I, above, have a close, intimate and substantial relation to trade,
traffic and commerce among the several states and tend to lead
to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair
labor practice conduct in violation of Section 8(a)(3) and (1) of
the Act, I shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative action designed to
effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Kelly Construction of Indiana, Inc. is an employer en-
gaged in commerce, and in operations affecting commerce,
within the meaning of Section 2(2), (6) and (7) of the Act.
2. Sheet Metal Workers’ International Association Local
Union No. 20, a/w Sheet Metal Workers’ International Associa-
tion, AFL–CIO, Indiana State Pipe Trades Association and UA
Local No. 157, a/w United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL–CIO, are, each, labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. By issuing written disciplines to its employee Stephen
Crabb, Sr., and by discharging employee David Brown, and
laying off Crabb and employees Jay Struthers, and Chad

14 This number does not include 2 laborers whom the Regional Di-
rector did not include in the unit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1286
Emmons, because of their union activities and sentiments, Re-
spondent has engaged in unfair labor practice conduct within
the meaning of Section 8(a)(3) of the Act.
4. By coercively interrogating applicants and employees
about their union activities and the union activities of others,
threatening employees with discharge and other reprisals if they
engaged in union activities, promulgating and maintaining a no-
solicitation policy for discriminatory reasons, promulgating and
enforcing an overly broad no-solicitation and no-distribution
rule, informing employees that Respondent would not hire or
consider for hire applicants for employment who are union
members, keeping employees’ union activities under surveil-
lance and creating the impression among employees that their
union activities were under surveillance, Respondent has en-
gaged in unfair labor practice conduct within the meaning of
Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent has not otherwise violated the Act, as al-
leged in the complaint.
7.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended15
ORDER
He Respondent, Kelly Construction of Indiana, Inc., Lafay-
ette, Indiana, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, laying off and issuing written disciplines to
employees because of their union activities and sympathies.
(b) Coercively interrogating applicants and employees about
their union activities and the union activities of others, threaten-
ing employees with discharge and other reprisals if they engage
in union activities, promulgating and maintaining a no-
solicitation policy for discriminatory reasons, promulgating and
enforcing an overly broad no-solicitation and no-distribution
rule, informing employees that it will not hire or consider for
hire applicants for employment who are union members, keep-
ing employees’ union activities under surveillance and creating
the impression among employees that their union activities are
under surveillance.
(c) In any other manner, interfering with, restraining or co-
ercing employees in the exercise of the rights guaranteed them
in Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Within 14 days from the date of this Order, offer David
Brown, Stephen Crabb, Sr., Jay Struthers and Chad Emmons,
full reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions without prejudice to
their seniority or any other rights or privileges previously en-
joyed.

15 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board
and become its findings, conclusions and Order, and all objections
thereto shall be deemed waived for all purposes.
(b) Make the above-listed employees whole for any loss of
earnings and other benefits suffered as a result of the discrimi-
nation against them. Backpay shall be computed as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges and layoffs
and rescind and remove from its files any reference to the
unlawful disciplines issued to Crabb, and within 3 days thereaf-
ter notify the employees, in writing, that this has been done and
that the discharges, layoffs and disciplines will not be used
against them in any way.
(d) Preserve and, within 14 days of a request, make avail-
able to the Board or its agents for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including
an electronic copy of the records if stored in electronic form,
necessary to analyze the amount of backpay due under the
terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Lafayette, Indiana, copies of the attached notice
marked “Appendix.”16 Copies of the notice, on forms provided
by the Regional Director for Region 25, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days, in
conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced or covered by any other material. In the event
that during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since January 1, 1995.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official,
on a form provided by the Region, attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the election in Case 25–
RC–9751 held on April 16, 1998, be set aside and the case
remanded to the Regional Director for Region 25 to conduct a
new election when he deems that the circumstances permit the
free choice of a bargaining representative.

16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”