M.J. Mechanical Services

National Labor Relations Board - Board Decisions

Oct 24, 1997

324 N.L.R.B. 812 (N.L.R.B. 1997)

812
324 NLRB No. 130
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On October 16, 1995, Associated Builders & Contractors, Inc.
filed a motion for leave to file a brief as amicus curiae. Its amicus
brief was attached to its motion. The Board’s Executive Secretary’s
office accepted the brief along with the motion. Subsequently, the
General Counsel opposed the motion claiming the brief was un-
timely filed. Because the Executive Secretary’s office has already ac-
cepted the amicus brief, we find the General Counsel’s opposition
moot.
2 The General Counsel, the Charging Party, 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. Thus, we shall not disturb the judge’s
finding that the Respondent did not refuse to hire Don Litolff. We
do, however, disavow his speculation about why Litolff declined em-
ployment. Further, we shall not disturb the judge’s finding that the
Respondent issued a warning to employee Diak for a serious safety
violation. In adopting the finding, we also note that the general con-
tractor had one of its employees on site to make sure that employees
wore their safety equipment on the job.
3 We shall modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144
(1996).
4 All subsequent dates are in 1994 unless indicated otherwise.
5 As set forth in his separate opinion, Member Higgins dissents on
this issue.
M. J. Mechanical Services, Inc. and Sheet Metal
Workers Local Union 46
M. J. Mechanical Services, Inc. and J.D.M. Serv-
ices, Inc., d/b/a Career Temporaries and Tech-
nical Service Group, Joint Employers and
Sheet Metal Workers Local Union 46. Cases 3–
CA–18626, 3–CA–18750, 3–CA–18760–1, 3–CA–
18774, and 3–CA–18760–2
October 24, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On July 27, 1995, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Gen-
eral Counsel and the Charging Party filed exceptions
and supporting briefs, the Respondent filed cross-ex-
ceptions and a supporting brief, and the General Coun-
sel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs,1 and has decided to affirm the judge’s rul-
ings, findings,2 and conclusions only to the extent con-
sistent herewith.3
The issues in this case arise from the Respondent’s
response to the Union’s attempt to organize its em-
ployees by placing union members on the job to en-
gage in ‘‘salting’’ activities. Contrary to the judge, we
find that the Union’s activities were protected by Sec-
tion 7 of the Act and that the Respondent violated the
Act by, inter alia, interrogating, threatening, discharg-
ing, and refusing to hire union members.
1. Background. At all relevant times, the Respond-
ent, a sheet metal contractor with offices in Rochester
and Buffalo, New York, was engaged in the construc-
tion of a building in Rochester, within the jurisdiction
of Local 46. In early 1994, the Respondent learned that
Local 46 was interested in supplying its members for
the job. The Respondent, however, was determined to
remain a nonunion contractor.
The Respondent hired Richard Wagner, formerly a
member of Local 46, as its job manager. In the spring
of 1994,4 Wagner hired the initial crew of sheet metal
workers, among them Foreman Jim Johnson and As-
sistant Foreman Mark Werner, both former members
of Local 46. Wagner also eventually hired Paul Colon
and Steven Derleth, union members who had received
the Union’s permission to work for the Respondent, a
nonunion contractor, under the Union’s ‘‘salting’’ pro-
gram.
According to Donald Miller, the Union’s business
agent, the purpose of the ‘‘salting’’ program is to orga-
nize the employees of a nonunion company and even-
tually to bring that company into a contractual rela-
tionship with the Union. Colon and Derleth each
signed a ‘‘salt agreement’’ with the Union. Their
‘‘salting’’ activities included talking to the Respond-
ent’s nonunion employees, comparing union benefits to
those offered by the Respondent, offering to answer
employees’ questions, describing the Union’s appren-
ticeship program, and in general discussing the pros
and cons of belonging to the Union. They also re-
ported to the Union about the job, i.e., the number of
employees, types of material used, and how the work
was progressing. A few weeks after they began work,
Miller granted Colon’s and Derleth’s requests that the
Union ‘‘subsidize’’ their wages by $300 a week to
make up the difference between the hourly rate the Re-
spondent paid them and the rate they would have been
paid had they worked for a union contractor.
2. Colon and Derleth: Interrogations and threat.
During separate interviews with Wagner and Johnson,
Colon and Derleth were asked how they felt about the
Union and whether they were afraid of being caught
by the Union for working at a nonunion contractor.
Johnson also asked Colon if he was prepared to leave
the Union and stay with the Respondent.
The judge declined to find the interrogations unlaw-
ful because he believed the inquiries were designed
‘‘to protect [Colon and Derleth] from being fined or
otherwise disciplined by the Union.’’ We disagree.5
It is well settled that questioning a job applicant
about his union preferences during a job interview is
inherently coercive and unlawful even when the appli-
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00812 Fmt 0610 Sfmt 0610 D:\NLRB\324.101 APPS10 PsN: APPS10
813M. J. MECHANICAL SERVICES
6 Electro-Tec, Inc., 310 NLRB 131, 134 (1993).
7 In reaching the opposite conclusion, Member Higgins asserts that
Colon and Derleth ‘‘were known adherents of the Union.’’ As the
Fifth Circuit has stated, however, the mere fact that an employee
‘‘was a widely-known union adherent does not validate otherwise
coercive interrogation.’’ NLRB v. Brookwood Furniture, 701 F.2d
452, 463 fn. 35 (5th Cir. 1983). In this case, the interrogations were
clearly ‘‘otherwise coercive,’’ because they took place in the context
of employment interviews, and because the questions concerned mat-
ters related to the applicants’ union affiliation which were not the
Respondent’s concern.
Chairman Gould further notes that he would reverse Rossmore
House, 269 NLRB 1176 (1984), cited by our dissenting colleague,
in which the Board found that an employer’s questioning of open
and active union adherents about their union sentiments, in the ab-
sence of threats or promises, does not necessarily violate the Act.
See Beverly Enterprises, 322 NLRB 334 fn. 1 (1996) (Chairman
Gould’s dissent).
8 116 S.Ct. 450 (1995).
9 See Sunland Construction Co., 309 NLRB 1224 (1992).
10 See also Bat-Jac Contracting, 320 NLRB 891 fn. 3 (1996), and
Godsell Contracting, 320 NLRB 871 fn. 4 (1996).
11 See Tualatin Electric, 312 NLRB 129, 130 fn. 3 (1993).
12 It is clear that the judge’s personal opinion of union ‘‘salting’’
rather than a close review of the record informed his conclusions.
We disavow as irrelevant both the judge’s personal views about
‘‘salting’’ and the conclusions he reached based upon those views.
See Iplli, Inc., 321 NLRB 463 fn. 1 (1996), in which the Board
similarly disavowed Judge Green’s discussion of the goals of the
union’s ‘‘salting’’ program.
cant is hired.6 Furthermore, we do not believe that
questioning an applicant about his attitude toward a
union and whether he is prepared to leave a union is
simply a reminder that the applicant could be fined or
disciplined because he was employed by a nonunion
employer. As the judge recognized in his discussion of
the Respondent’s interview of another applicant, facing
union discipline ‘‘would have been [the applicant’s]
problem and not something that the company needed
to be concerned about.’’
In sum, we reject the judge’s reasoning as illogical
and unsupported by the record, and we find that the
Respondent coercively interrogated Colon and Derleth
about their union sympathies in violation of Section
8(a)(1).7
Shortly after starting work, Colon and Derleth told
Werner they were on the job to organize the Respond-
ent’s employees. As soon as Johnson got this informa-
tion, he questioned Derleth about his union affiliation.
When Derleth responded that he was being subsidized
by the Union and was on the job to organize, Johnson
stated that if he heard Derleth ‘‘or anyone else talking
about the [U]nion on company time,’’ they would be
off the job.
The judge neglected to make any findings about this
alleged threat. As the judge recognized elsewhere in
his decision, a rule prohibiting union solicitation on
‘‘company time’’ is overbroad and presumptively in-
valid because it is subject to the reasonable construc-
tion that solicitation at any time, including break times
or other nonwork periods, is prohibited. See, e.g.,
Gemco, 271 NLRB 1190 (1984). Accordingly, we find
that Johnson’s statement to Derleth was unlawful be-
cause it constituted a threat to discharge employees for
violating an invalid no-solicitation rule.
3. Colon and Derleth: ‘‘Salting’’ activities and their
discharges. It is undisputed that on June 3, Colon and
Derleth announced that they were union organizers and
that the Respondent fired them.
The judge found that Colon and Derleth’s ‘‘salting’’
activities were not protected, but that their discharges
violated Section 8(a)(3) because the Respondent ‘‘be-
lieved that Colon and Derleth were going to try to or-
ganize the employees.’’ We find that their activities
were protected by Section 7 and that they were unlaw-
fully discharged in retaliation for engaging in such ac-
tivities.
As the judge recognized, the fact that Colon and
Derleth were ‘‘salts’’ does not deprive them of their
status as statutory employees. In NLRB v. Town &
Country Electric,8 the Supreme Court approved the
Board’s long-held view9 that individuals sent to obtain
jobs from an employer pursuant to a union’s ‘‘salting’’
program are statutory employees entitled to protection
under the Act.10
At the time of their discharges, Colon and Derleth
were engaging in the ‘‘salting’’ activities described in
section 1, above. The judge found that the Union’s
‘‘salting’’ program was not designed to organize the
Respondent, but was, instead, designed to ‘‘entrap’’
the Respondent into committing unfair labor practices,
interfere with its business, lure its employees away to
union signatory contractors, engage in acts of sabotage,
and drive it out of the Rochester area. The judge de-
scribed these activities as ‘‘tortious interference with
business relations.’’ ‘‘Salting’’ is one method a union
utilizes to organize employees.11 We find nothing in
the record to support the judge’s conclusions about the
‘‘salting’’ in this case.12 For example, the judge relied
on the fact that an employee left the Respondent’s em-
ploy to enter the Union’s apprenticeship program as
support for his finding that the Union sought to drive
the Respondent out of business. The record shows,
however, nothing more than employees discussing the
benefits of unionizing, which, in the industry involved
in this case, include apprenticeship programs. That an
employee decided to take advantage of such a program
can hardly be called ‘‘luring’’ employees away from
the Respondent and in no way translates into attempt-
ing to put the Respondent out of business. Further, the
judge found that the ‘‘salting’’ program was designed
to entrap the Respondent into committing unfair labor
practices. Like most of the judge’s other observations
about the Union’s ‘‘salting’’ program, this finding was
based on little more than pure speculation. Assuming
arguendo that the judge’s speculation has any basis, we
have nonethless held that even if ‘‘salting’’ is intended
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00813 Fmt 0610 Sfmt 0610 D:\NLRB\324.101 APPS10 PsN: APPS10
814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 As set forth in his separate opinion, Member Higgins does not
pass on the issue of whether activities designed in part to provoke
an unfair labor practice are protected by Sec. 7 of the Act.
14 Nor does the fact that the Union did not file a representation
petition or demand bargaining have any bearing on whether the em-
ployees’ activity was protected.
15 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982); Tualatin Electric,
supra, 312 NLRB at 134–135.
16 We agree with the judge that the rule announced by DelaFuente
was overly broad and, therefore, unlawful because it prohibited em-
ployees from engaging in union solicitation during their breaktimes.
17 The record does not explain why Colon and Derleth did not re-
turn to work until June 13. We disavow the judge’s speculation
about the timing of their return.
18 As set forth in his separate opinion, Member Higgins does not
pass on the issue of whether the strike by Colon and Derleth was
an unfair labor practice strike.
19 Williamette Industries, 306 NLRB 1010 fn. 2, 1017 (1992).
in part to provoke an employer to commit unfair labor
practices, that would not deprive employees of protec-
tion of the Act.13 Godsell Contracting, supra, 320
NLRB at 874. Finally, we find absolutely no evidence
that the Union or employees engaged in or intended to
engage in sabotage. In short, there is nothing in the
record to support a finding that the ‘‘salting’’ in this
case was a subterfuge used to further any purpose un-
related to organizing.
Nor do we accept the Respondent’s claim that the
Union was not engaged in organizing activities be-
cause Colon and Derleth did not pass out union author-
ization cards. Colon’s and Derleth’s discussions with
the Respondent’s employees constitute traditional, law-
ful organizing activity and are clearly protected by the
Act.14 See Tualatin Electric, supra, 312 NLRB at 131,
135. Thus, contrary to the judge, we find that the ac-
tivities in which Colon and Derleth engaged, and for
which the Respondent fired them, constituted protected
organizational activity.
The Respondent does not dispute that Colon and
Derleth were fired because they engaged in the activi-
ties discussed above. Rather, the Respondent claims
that because they were not engaged in protected activ-
ity, their terminations did not violate the Act.
We have found that the activities in which Colon
and Derleth engaged were protected under Section 7.
Thus, the General Counsel has proved that they en-
gaged in union organizational activity and were dis-
charged when they announced that they were union or-
ganizers. Further, because we have rejected the Re-
spondent’s asserted reason for claiming that the dis-
charges did not violate the Act, it follows that the Re-
spondent has not shown that it would have terminated
Colon and Derleth in the absence of their protected
union activities.15
Accordingly, we conclude that the Respondent dis-
charged Colon and Derleth because of their protected
activities in violation of Section 8(a)(3).
4. Colon and Derleth: Postdischarge incidents. On
June 6, Colon, Derleth, and Union Business Agent
Miller met with Luis DelaFuente, the Respondent’s
sheet metal department manager, to discuss the em-
ployees’ discharges. DelaFuente indicated that the Re-
spondent had erred in firing Colon and Derleth and of-
fered to reinstate them. DelaFuente advised Colon and
Derleth, however, that although they could engage in
union activities on their own time, they could not do
so during their breaks or on company time.16
On their return to work on June 13,17 Colon and
Derleth resumed their prounion discussions with em-
ployees. They carried on these conversations while
they worked. Werner reported their activities to John-
son, who issued them written disciplinary warnings for
soliciting employees on company time. Colon and
Derleth immediately left the job and began picketing
at the jobsite with signs asserting that they were en-
gaged in an unfair labor practice strike. On June 28,
Colon asked to return to work. The Respondent re-
fused to reinstate him.
The judge dismissed the allegations that the warn-
ings to Colon and Derleth violated the Act and that
they engaged in an unfair labor practice strike to pro-
test the warnings, because he believed their discussions
with employees were a tortious interference with the
Respondent’s business. The judge also found that
Colon and Derleth left their work areas to engage in
discussions with other employees. Finally, because he
found that their strike was economic in nature, the
judge treated Colon as an economic rather than an un-
fair labor practice striker. We find that the warnings18
violated the Act, that Colon and Derleth engaged in an
unfair labor practice strike to protest the warnings, and
that Colon is entitled to reinstatement.
The judge erred in finding that Colon and Derleth
ceased work to engage in discussions with other em-
ployees. The record shows that in the performance of
their jobs, employees made frequent trips between the
area in which they were working and the gang box,
where their tools are kept. Colon’s and Derleth’s con-
versations with other employees occurred while they
worked, which included making trips to the gang box.
Thus, Colon and Derleth were constantly in a work
area while they were talking to others and there is no
evidence that they stopped work at any time to talk.
We find that Colon and Derleth were disciplined for
talking about the Union while working. It is undis-
puted, however, that employees were permitted to talk
about a variety of nonwork subjects—cars, family,
sports, etc.—while they worked, without being dis-
ciplined for doing so. The Respondent may not pro-
hibit discussions about a union during worktime while
permitting discussions about other nonwork subjects.19
We find, therefore, that the written disciplinary warn-
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00814 Fmt 0610 Sfmt 0610 D:\NLRB\324.101 APPS10 PsN: APPS10
815M. J. MECHANICAL SERVICES
20 Because Chairman Gould and Member Fox have reversed the
judge’s finding that the strike engaged in by Colon and Derleth was
not an unfair labor practice strike, they find it unnecessary to pass
on the remainder of the judge’s discussion in sec. II,h of his decision
concerning the issue of whether their strike was otherwise protected.
21 Caterair International, 309 NLRB 869, 880 (1992). See also
Decker Coal Co., 301 NLRB 729, 746–748 (1991).
22 Caterair International, supra, fn. 17 and Decker Coal Co.,
supra, fn. 17. Derleth eventually abandoned the strike and obtained
other employment. The General Counsel did not allege that the Re-
spondent unlawfully refused to reinstate him.
23 As set forth in her dissent in part, Member Fox would find that
the Respondent violated Sec. 8(a)(3) by refusing to hire the six ap-
plicants who did not report to Buffalo for interviews.
Chairman Gould and Member Higgins believe that the evidence
their dissenting colleague relies on is too speculative to support a
finding that the six additional applicants received a message from
the Respondent to travel to Buffalo for an interview. Consequently,
they conclude that the General Counsel has not proven an element
necessary to find the additional violations.
In his separate opinion, Member Higgins adds to the majority’s ra-
tionale for not finding violations regarding the six alleged
discriminatees.
24 Poole stated ‘‘it seemed to [him] that there was something going
on, because all these applications have a statement at the bottom,’’
referring to the ‘‘I am a voluntary Union Organizer’’ statement on
each job application.
25 See Casey Electric, 313 NLRB 774, 775 (1994), in which the
employer disparately treated job applicants with a union background
by changing its previous hiring practices.
26 We find it significant that during the interview, immediately be-
fore Poole’s interrogation of Roberge, another of the Respondent’s
agents referred to his experiences with the Union and said that, ‘‘you
have to watch out for these union halls, they’ll stab you in the back
every chance they get.’’
ings issued to Colon and Derleth for engaging in union
activities violated Section 8(a)(3) of the Act.
For the reasons explained in section 3, above, we re-
ject the judge’s finding that Colon and Derleth were
engaged in tortious acts when discussing the Union
with other employees. Instead, we find that their activ-
ity was protected by Section 7 of the Act. We empha-
size that we can find nothing in the record to support
a finding that Colon’s and Derleth’s ‘‘salting’’ activity
was anything other than designed to inform employees
about the benefits of unionization.
Thus, when Colon and Derleth left the job to protest
their unlawful warnings, they were engaged in an un-
fair labor practice strike which was, contrary to the
judge’s findings, protected by the Act.20 As an unfair
labor practice striker, Colon was entitled to be rein-
stated on his unconditional offer to return to work.21
When the Respondent refused to reinstate him on his
offer to return to work on June 28, the Respondent
violated Section 8(a)(3) of the Act.22
5. Group applicants. On June 13, eight union mem-
bers applied for work with the Respondent. All submit-
ted a form supplied by the Union which stated that the
applicant was a ‘‘voluntary Union Organizer who
would, if hired, perform all duties to the best of [his]
ability,’’ and who would ‘‘also attempt, during non-
work time and in non-work areas, to organize [the Re-
spondent’s] employees into a Union.’’
The Respondent’s president, Michael Poole, asked
his secretary to get in touch with the applicants to set
up interviews at the Respondent’s headquarters in Buf-
falo with Poole. Only Mark Roberge and Dean Weiss
responded.23 Roberge and Weiss drove from Rochester
to Buffalo, about 75 miles, for an interview with
Poole, who ordinarily did not participate in personnel
interviews, but who decided to do so with Roberge and
Weiss because of the ‘‘Union situation.’’
Poole asked both Roberge and Weiss, who he knew
to be union members and whom he knew would be on
the job to organize the Respondent’s employees,
whether they would leave the Respondent if the Union
did not succeed in organizing the Respondent’s em-
ployees after a period of time. Although Poole told
them the Respondent would contact them, neither
Roberge nor Weiss was contacted again.
The judge dismissed allegations that the Respondent
violated the Act by requiring Roberge and Weiss to go
to Buffalo for their interviews, interrogating them, and
failing to hire them. We do not agree.
Requiring Roberge and Weiss to go to Buffalo for
a job interview was a departure from the Respondent’s
normal hiring practice. The Respondent had inter-
viewed all other applicants for jobs at the Rochester
site in Rochester. Further, Poole admitted that had the
applicants not been Local 46 members, he would not
have conducted the interview. Poole explained that he
decided to interview these applicants in Buffalo be-
cause of problems the Respondent was having with
Local 46 in Rochester.24
Poole’s testimony is an admission that Roberge’s
and Weiss’ union membership motivated Poole’s deci-
sion to require them to come to Buffalo for interviews.
The imposition of a significant travel requirement for
applicants to obtain an interview, if directed only at
union-associated applicants, is discriminatory and
therefore violates Section 8(a)(3).25
In addition, we find that Poole’s questioning of
Roberge and Weiss about their attitude toward the
Union constituted coercive interrogations in violation
of Section 8(a)(1).26 The interrogations occurred at the
Respondent’s headquarters during job interviews con-
ducted by the Respondent’s president. We have found
that the Respondent openly demonstrated its hostility
to the Union on numerous occasions and violated the
Act when it asked Colon the same question during his
job interview and when it disparately imposed a travel
requirement on Roberge and Weiss. Notwithstanding
that Roberge and Weiss openly demonstrated their sup-
port for the Union, we find that, considering all the
circumstances—i.e., the questioning was by the Re-
spondent’s president, and the Respondent had dem-
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00815 Fmt 0610 Sfmt 0610 D:\NLRB\324.101 APPS10 PsN: APPS10
816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 See Reno Hilton, 319 NLRB 1154, 1167 (1995), Grimmway
Farms, 314 NLRB 73, 93 (1994), and Electro-Tec, supra.
28 Chairman Gould and Member Higgins agree with the judge that
the Respondent did not violate the Act by failing to hire the other
applicants.
We disavow the judge’s comments that the group applications
were designed to provoke an unfair labor practice and that the appli-
cants were never interested in working for the Respondent. There is
no evidence to support the judge’s speculation.
29 Big E’s Foodland, 242 NLRB 963, 968 (1979).
30 DelaFuente conceded that experience with Local 46 ‘‘means a
lot to [him] . . . a lot to our company.’’
31 No union member was knowingly hired, thus demonstrating the
success of the Respondent’s screening process.
32 In fact, the record shows otherwise. Roberge and Weiss testified
that they needed the work and would have accepted a job had the
Respondent offered one, and Roberge testified that the Rochester job
was an impressive project and offered long-time employment.
As explained elsewhere in our decision, we reject any argument
that Roberge and Weiss were not serious because they committed
themselves to the Union’s ‘‘salting’’ program. See also Casey Elec-
tric, supra, 313 NLRB at 786 (1994).
33 Wright Line, supra.
34 Even the judge admitted it was unlikely that Diak would have
been hired if he admitted he was a union member.
35 We do not pass on the judge’s suggestion that interrogation of
an applicant about his union affiliation because of concern about un-
protected union activity would be lawful.
36 Electro-Tec, supra, 310 NLRB at 134.
onstrated antiunion hostility including the unlawful
travel requirement imposed on Colon and Derleth—
Poole’s interrogation of them was coercive.27
Furthermore, we find that the Respondent violated
Section 8(a)(3) when it failed to hire Roberge and
Weiss.28 The elements of a disciminatory refusal-to-
hire case include
the employment application by each alleged
discriminatee, the refusal to hire each, a showing
that each was or might be expected to be a union
supporter or sympathizer, and further showings
that the employer knew or suspected such sym-
pathy or support, maintained an animus against it,
and refused to hire the applicant because of such
animus.29
Obviously, the Respondent knew that Roberge and
Weiss were union members. Furthermore, the Re-
spondent does not claim that either applicant was un-
qualified for the jobs for which they applied.30 The
record is replete with evidence of the Respondent’s
hostility to the Union and discriminatory treatment of
its members. Finally, we note that the Respondent
hired at least seven sheet metal workers after its June
17 interviews with Roberge and Weiss.31 In sum, we
find that this evidence establishes a strong prima facie
case that the Respondent refused to hire Roberge and
Weiss because of their union membership.
The Respondent claims that neither applicant was an
impressive job candidate based on their conduct and
their responses to questions posed during their job
interviews and, alternatively, that the applicants were
not really seeking employment. We find neither claim
convincing.
Poole testified that he did not think Roberge and
Weiss were serious about being ‘‘long-term’’ or
‘‘loyal’’ employees and that he thought the Union was
up to ‘‘some kind of trick’’ in sending applicants to
go through the interview process. Yet, the Respondent
failed to produce any evidence indicating that the ap-
plicants were not seriously interested in employment.32
Further, the Respondent’s testimony undermines the
alternative claim that the Respondent did not hire
Roberge and Weiss because of the impressions the ap-
plicants made during their interviews. It is clear from
Poole’s suspicion of the Union and his concern about
‘‘loyal employees’’ that their union membership, rather
than the impression they made during their interviews,
was the Respondent’s reason for failing to hire them.
Thus, the Respondent failed to show that it would
not have hired Roberge and Weiss absent their union
membership.33 Accordingly, we find that the Respond-
ent violated Section 8(a)(3) by refusing to hire them.
6. Christopher Diak. Christopher Diak applied for a
job with the Respondent at the urging of Colon and
Miller and agreed to abide by the Union’s ‘‘salting’’
resolution. He did not list his union background on his
job application, fearing he would not be hired if he did
so.34 Johnson and DelaFuente, who both interviewed
Diak, asked him if he had anything to do with the
Union. Johnson referred to prior problems with the
Union and stated that Local 46 had driven his brother
out of business. Diak denied that he was a union mem-
ber. The Respondent hired Diak to begin work on Au-
gust 1.
By August 4, on learning that Diak was a ‘‘salt’’
and that he had falsified his application form, the Re-
spondent decided to discharge him. On August 5, Diak
told Johnson that he was an organizer for Local 46 and
asked if Johnson had any problem with that. Johnson
responded that he did not. Later that day, however, a
representative of the employment agency through
which Diak had been hired told him that his job was
over but gave no reason for the discharge.
The judge found that the Respondent’s interrogation
of Diak was not unlawful, because the Respondent had
a legitimate business reason for interrogating him
about the Union’s ‘‘salting’’ program, which the judge
found was unprotected. We have found elsewhere in
this decision that the ‘‘salting’’ activity was protected
conduct. Thus, we do not agree with the judge that
concern about the ‘‘salting’’ activity was a legitimate
reason for interrogating Diak.35
Questioning a job applicant about his union affili-
ation is coercive interrogation prohibited by the Act.36
We find that the Respondent’s interrogation of Diak
violated Section 8(a)(1).
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00816 Fmt 0610 Sfmt 0610 D:\NLRB\324.101 APPS10 PsN: APPS10
817M. J. MECHANICAL SERVICES
37 See NLRB v. Griggs Equipment, Inc., 307 F.2d 275, 278 (5th
Cir. 1962) (An employer’s failure to give the employee a reason for
his discharge ‘‘alone would be enough to support an inference that
the [termination] was discriminatory.’’)
38 The personnel policy manual containing the rule allegedly relied
on by the Respondent was introduced as evidence at the hearing for
reasons unrelated to Diak’s discharge.
39 Hicks Oil & Hicksgas, 293 NLRB 84, 85 (1989).
40 We find no support in the record for the judge’s gratuitous com-
ments about Diak’s capabilities, or the lack thereof, as a sheet metal
worker.
The judge also relied on his finding that the ‘‘salt-
ing’’ activity engaged in by union members was un-
protected to dismiss the allegation that Diak’s dis-
charge violated Section 8(a)(3).
The judge found that ‘‘a reason’’ the Respondent
discharged Diak was because it believed he would en-
gage in ‘‘salting’’ activity. We have found the ‘‘salt-
ing’’ activity employees engaged in is protected con-
duct. Thus, the General Counsel presented a strong
case that union animus was a motivating factor in the
discharge.
Accordingly, under Wright Line, the burden shifts to
the Respondent to show that it would have discharged
Diak even absent his protected activity. We find that
the Respondent failed to satisfy its burden.
For the first time, in its posthearing brief, the Re-
spondent defended the discharge on the ground that
Diak’s falsification of his job application violated a
personnel rule calling for an employee’s discharge for
‘‘falsification of time or any other company records.’’
At the time of the discharge, however, the Respondent
did not tell Diak this or give him any other reason why
he was discharged.37 Furthermore, at the evidentiary
hearing in this proceeding, the Respondent failed to
draw any connection between Diak’s discharge and its
rule.38 The Respondent’s tardy reliance on Diak’s al-
leged violation of its personnel rule strongly suggests
that the Respondent was searching for a convenient
pretext to justify the discharge.
The Board has held that:
Under Wright Line an employer cannot carry its
burden of persuasion by merely showing that it
had a legitimate reason for imposing discipline
against an employee, but must show by a prepon-
derance of the evidence that the action would
have taken place even without the protected con-
duct. . . . If an employer fails to satisfy its bur-
den of persuasion, the General Counsel’s prima
facie case stands unrebutted and a violation of the
Act may be found.39
We find that the Respondent has failed to carry its
burden by persuading, by a preponderance of the evi-
dence, that it would have discharged Diak absent its
belief that he would engage in protected conduct. Ac-
cordingly, we find that the Respondent violated Sec-
tion 8(a)(3) by discharging Diak.40
CONCLUSIONS OF LAW
1. By coercively interrogating job applicants or em-
ployees concerning their union membership, activities,
and sympathies, the Respondent violated Section
8(a)(1) of the Act.
2. By threatening employees with discharge if they
engage in union activities, the Respondent violated
Section 8(a)(1) of the Act.
3. By promulgating an overly broad no-solicitation
rule prohibiting employees from engaging in union so-
licitation during their breaktimes, the Respondent vio-
lated Section 8(a)(1) of the Act.
4. By issuing written disciplinary warnings to Paul
Colon and Stephen Derleth for engaging in union ac-
tivities, the Respondent violated Section 8(a)(3) and
(1) of the Act.
5. By requiring job applicants to appear for inter-
views at its Buffalo, New York office rather than at its
Rochester, New York office because they are union
members, the Respondent violated Section 8(a)(3) and
(1) of the Act.
6. By refusing to hire Dean Weiss and Mark
Roberge because of their union membership, the Re-
spondent violated Section 8(a)(3) and (1) of the Act.
7. By discharging Paul Colon, Stephen Derleth, and
Christopher Diak because they engaged in union ac-
tivities, the Respondent violated Section 8(a)(3) and
(1) of the Act.
8. By refusing to reinstate Paul Colon on his uncon-
ditional offer to return to work after engaging in an
unfair labor practice strike, the Respondent violated
Section 8(a)(3) and (1) of the Act.
THE REMEDY
Having found that the Respondent violated Section
8(a)(1) and (3) of the Act, we shall order it to cease
and desist, and to take certain affirmative action nec-
essary to effectuate the policies of the Act.
Having found that the Respondent unlawfully pro-
mulgated an overly broad no-solicitation rule, we shall
order the Respondent to rescind and cease giving effect
to this rule. Having found that the Respondent unlaw-
fully issued written disciplinary warnings to Colon and
Derleth, we shall order the Respondent to remove from
their personnel files all warnings and reports that have
been given to them pursuant to this rule, and to inform
them, in writing, that such references have been re-
moved and that these warnings and reports will not be
used as a basis for further personnel actions against
them in the future.
Having found that the Respondent unlawfully re-
fused to hire Dean Weiss and Mark Roberge because
of their union membership, we shall order that the Re-
spondent offer Weiss and Roberge immediate and full
employment in positions for which they applied or, if
such positions no longer exist, to substantially equiva-
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00817 Fmt 0610 Sfmt 0610 D:\NLRB\324.101 APPS10 PsN: APPS10
818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
41 Reichhold Chemicals, 301 NLRB 1228, 1233 (1991). As pre-
viously noted, Derleth did not return to the Respondent because he
found other employment.
lent positions, without prejudice to their seniority or
other rights and privileges. We shall further order the
Respondent to make Roberge and Weiss whole for any
loss of earnings and other benefits suffered as a result
of the discrimination against them, with backpay ex-
tending from June 17, 1994, the date of the unlawful
refusal to hire them, until the Respondent offers them
employment. Backpay shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
Having found that the Respondent unlawfully dis-
charged Christopher Diak because of his union activi-
ties, we shall order the Respondent to offer Diak im-
mediate and full reinstatment to his former job or, if
that position no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or other
rights and privileges, and make him whole for any loss
of earnings and other benefits suffered as a result of
the Respondent’s discrimination against him. Backpay
shall be computed in accordance with F. W. Wool-
worth Co., supra, with interest as prescribed in New
Horizons for the Retarded, supra.
Having found that the Respondent unlawfully dis-
charged Paul Colon and Stephen Derleth because of
their union activities, we shall order the Respondent to
make them whole for any loss of earnings and other
benefits they may have suffered from the date of their
discharges on June 3, 1994, to the date on which they
returned to work, June 13, 1994. The Respondent
claims that its June 6, 1994 offer of reinstatement was
a valid offer which tolled its backpay obligation. We
agree with the judge that the Respondent’s offer was
not valid because it was conditioned on the
discriminatees’ agreement to abide by an unlawful no-
solicitation rule. To be valid and to toll the backpay
period, an offer of reinstatment must be ‘‘specific, un-
equivocal and unconditional.’’ Jones Plumbing Co.,
277 NLRB 437, 449 (1985).
Having found that the Respondent unlawfully re-
fused to reinstate unfair labor practice striker Colon on
his unconditional offer to return to work on June 28,
1994,41 we shall order the Respondent to offer him im-
mediate and full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, discharging, if necessary, any replacement,
together with backpay from June 28, 1994, the date of
his request to return to work. Backpay shall be com-
puted in accordance with F. W. Woolworth Co., supra,
with interest as prescribed in New Horizons for the Re-
tarded, supra.
The Respondent shall also be ordered to expunge
from its files any and all references to the unlawful
employment actions, and to notify the discriminatees,
in writing, that this has been done.
ORDER
The National Labor Relations Board orders that the
Respondent, M. J. Mechanical Services, Inc., Tona-
wanda and Buffalo, New York, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating job applicants or em-
ployees concerning their union membership, activities,
and sympathies.
(b) Threatening employees with discharge if they
engage in union activities.
(c) Promulgating or enforcing any rule which pro-
hibits employees from engaging in union solicitation
during their breaktimes.
(d) Requiring job applicants to appear for job inter-
views at the Respondent’s Buffalo, New York facility
rather than its Rochester, New York facility, because
they are union members.
(e) Issuing written disciplinary warnings to employ-
ees for engaging in union activities.
(f) Refusing to hire, discharging, or otherwise dis-
criminating against employees because of their union
activities.
(g) Refusing to reinstate employees on their uncon-
ditional offer to return to work after engaging in an
unfair labor practice strike.
(h) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind its unlawful no-solicitation rule.
(b) Within 14 days from the date of this Order, offer
Paul Colon and Christopher Diak 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 pre-
viously enjoyed, in the manner described in the rem-
edy section of this decision.
(c) Within 14 days from the date of this Order, offer
Dean Weiss and Mark Roberge full employment in po-
sitions for which they applied or, if such positions no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights and
privileges.
(d) Make Paul Colon, Stephen Derleth, Christopher
Diak, Dean Weiss, and Mark Roberge whole for any
loss of earnings and other benefits suffered as a result
of the discrimination against them in the manner de-
scribed in the remedy section of this decision.
(e) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful em-
ployment actions against Paul Colon, Stephen Derleth,
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00818 Fmt 0610 Sfmt 0610 D:\NLRB\324.101 APPS10 PsN: APPS10
819M. J. MECHANICAL SERVICES
42 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
1 Michael Poole’s secretary testified that over a 3- to 4-day period,
she kept calling the applicants to see if she could reach them. She
left messages on answering machines and with family members for
the applicants to report to Buffalo on June 17 for an interview.
There is no evidence that any applicant failed to receive the mes-
sage.
2 As with Weiss and Roberge, the Respondent only characterizes
the information on their applications as ‘‘minimal conclusory asser-
tions about ‘experience.’’’ It does not contend that it asked for addi-
tional information or that the applicants refused to provide it.
Christopher Diak, Dean Weiss, and Mark Roberge, and
within 3 days thereafter notify them in writing that this
has been done and that these actions will not be used
against them in any way.
(f) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
ciplinary warnings given to Paul Colon and Stephen
Derleth, and within 3 days thereafter notify them in
writing that this has been done and that the warnings
will not be used against them in any way.
(g) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(h) Within 14 days after service by the Region, post
at its Tonawanda and Rochester, New York facilities,
copies of the attached notice marked ‘‘Appendix B.’’42
Copies of the notice, on forms provided by the Re-
gional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pend-
ency 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 Re-
spondent at any time since June 6, 1994.
(i) 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.
MEMBER FOX, dissenting in part.
I agree with my colleagues in all respects, except
that I would also find that the Respondent violated
Section 8(a)(3) by refusing to hire Todd Babicz, Rob-
ert Copie, Mark Golding, William Roeger, Douglas
Stein, and John Suhr. Those six individuals appeared
with Roberge and Weiss on June 13 and applied for
employment with the Respondent. Unlike Roberge and
Weiss, however, they did not report to Buffalo for
interviews and were never hired.
The judge, having found that the Respondent did not
violate the Act by requiring the union applicants to
travel to Buffalo for job interviews, further found that
the six applicants who failed to comply with the travel
requirement had abandoned interest in working with
the Respondent. My colleagues and I have found, how-
ever, that the Respondent violated Section 8(a)(3) and
(1) by imposing the travel requirement. Given this
finding, I would further find that the Respondent vio-
lated Section 8(a)(3) and (1) by refusing to hire these
six applicants because of their failure to comply with
the travel requirement.
As we have found, the Respondent was not entitled
to require those applicants to travel to Buffalo for
interviews in the first place, because it is unlawful to
require union adherents to comply with a significant
travel requirement that is not imposed on nonunion ap-
plicants. And because it is unlawful to impose such a
requirement, it is also unlawful to deny employment to
applicants because they fail to comply with it.1 Thus,
when the Respondent argues that Babicz, Copies,
Golding, Roeger, Stein, and Suhr were not serious ap-
plicants for employment because they did not go to
Buffalo for interviews, it is attempting to justify its re-
fusal to hire them for available jobs on the basis of
their failure to comply with an unlawful employment
requirement. That is not a defense; it is an admission
of an unfair labor practice. Taken together with the
Respondent’s amply demonstrated union animus,
knowledge that the six applicants were union activists,
and failure to show that those applicants were not
qualified for the available jobs,2 it establishes that
union animus was a motivating factor in the denials of
employment. As the Respondent has not attempted to
demonstrate that it would have refused to hire those
applicants even if they had not been union members,
I would find that its refusal to hire them violated Sec-
tion 8(a)(3).
MEMBER HIGGINS, concurring in part and dissenting in
part.
I concur with most of the results reached by my col-
leagues. However, as to certain matters, I do not fully
adopt their rationale. I also wish to add to the major-
ity’s rationale for not finding violations regarding six
alleged discriminatees. As to another matter, I dissent
from the result.
With respect to the concurrence, I agree that the
salting activities engaged in by Colon and Derleth
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00819 Fmt 0610 Sfmt 0610 D:\NLRB\324.101 APPS10 PsN: APPS10
820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
were protected. However, I do not pass on the issue
of whether activities designed in part to provoke an
unfair labor practice are protected by Section 7 of the
Act. In this regard, I note that the evidence does not
establish that there was such a design in this case.
Also, although I agree that the Respondent violated
Section 8(a)(3) by refusing to reinstate Colon, I do not
pass on the issue of whether the strike by Colon and
Derleth was an unfair labor practice strike. In this re-
gard, I note that the allegation concerning a denial of
reinstatement pertains only to Colon. There is no evi-
dence or claim that Colon was permanently replaced.
Thus, even as an economic striker, he was entitled to
reinstatement on request.
In addition, I agree that the Respondent unlawfully
imposed on Roberge and Weiss a requirement that
they go to Buffalo to be interviewed for jobs. How-
ever, as to the six other alleged discriminatees (Babicz,
Copies, Golding, Roeger, Stein, and Suhr), the General
Counsel has not shown that they even learned of this
requirement. Thus, without reference to this require-
ment, they ‘‘abandoned whatever interest they might
have had in working for [Respondent]’’ (ALJD 14).
As to Colon and Derleth, I do not agree that the
questions directed to them were coercive. Board law is
clear that a question is not coercive simply because it
delves into a Section 7 area. The Board looks at the
particular circumstances of each case. Rossmore
House, 269 NLRB 1176 (1984). Further, as Rossmore
House makes clear, one such circumstance is whether
the employees are known adherents of the union. In
the instant case, Colon and Derleth were known adher-
ents of the Union. In addition, based on the questions
directed to them, there is nothing to suggest that they
reasonably would be coerced. The questions, as reason-
ably perceived, were aimed at ascertaining how Colon
and Derleth, as union members, would protect them-
selves from union discipline, not whether they were, in
fact, union members.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT coercively interrogate job applicants
or employees about their union membership, activities,
and sympathies.
WE WILL NOT threaten employees with discharge for
engaging in union activities.
WE WILL NOT promulgate or enforce any rule which
prohibits employees from engaging in union solicita-
tion during their breaktimes.
WE WILL NOT issue written disciplinary warnings to
employees for engaging in union activities.
WE WILL NOT require job applicants to appear for
job interviews at our Buffalo, New York facility rather
than our Rochester facility because they are union
members.
WE WILL NOT refuse to hire, discharge, or otherwise
discriminate against any of you for engaging in pro-
tected concerted activities.
WE WILL NOT refuse to reinstate any employees who
make an unconditional offer to return to work after
participating in an unfair labor practice strike.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL rescind our unlawful no-solicitation rule
which prohibits employees from engaging in union so-
licitation during their breaktimes.
WE WILL, within 14 days from the date of the
Board’s Order, remove from the personnel records of
Paul Colon and Stephen Derleth the written warnings
they received for engaging in union activities and WE
WILL, within 3 days thereafter, notify them that this
has been done and that the warnings will not be used
against them in any way.
WE WILL, within 14 days from the date of the
Board’s Order, offer Paul Colon and Christopher Diak
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
and privileges previously enjoyed.
WE WILL, within 14 days from the date of the
Board’s Order, offer Dean Weiss and Mark Roberge
full employment in positions for which they applied or,
if such positions no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority or
any other rights and privileges.
WE WILL make Paul Colon, Stephen Derleth, Chris-
topher Diak, Dean Weiss, and Mark Roberge whole for
any loss of earnings and other benefits resulting from
the discrimination against them, less any net interim
earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00820 Fmt 0610 Sfmt 0610 D:\NLRB\324.101 APPS10 PsN: APPS10
821M. J. MECHANICAL SERVICES
the unlawful employment actions against Paul Colon,
Stephen Derleth, Christopher Diak, Dean Weiss, and
Mark Roberge, and WE WILL, within 3 days thereafter,
notify them in writing that this has been done and that
these actions will not be used against them in any way.
M. J. MECHANICAL SERVICES, INC.
Michael Israel, Esq., for the General Counsel.
Thomas S. Gill, Esq., for the Respondent.
Donald Miller, for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in Rochester, New York, from March 6 through 10,
and on April 17, 1995. The charge in Case 3–CA–18626 was
filed on June 6, 1994. The charge and amended charge in
Case 3–CA–18750 were filed on August 2 and September
19, 1994. The charge and amended charge in Case 3–CA–
18760–1 were filed on August 8 and September 19, 1994.
The charge and amended charge in Case 3–CA–18760–2
were filed on August 8 and September 19, 1994. The charge
and amended charge in Case 3–CA–18774 were filed on Au-
gust 15 and September 19, 1994.
An amended consolidated complaint was issued on No-
vember 10, 1994, and alleged:
1. That M. J. Mechanical Services (M. J.), a mechanical
contractor in the building and construction industry, entered
into a contract with J.D.M. to refer qualified employees to
M. J. at its Rochester jobsite.
2. That J.D.M. Services, Inc. (J.D.M.) was an agent of
M. J. and that both Companies, having administered a com-
mon labor policy, were joint employers vis-a-vis the employ-
ees at the Rochester jobsite who were referred by J.D.M.. As
a practical matter the General Counsel only contended that
J.D.M. was jointly and severally liable for the refusal by
M. J. to hire Mark Golding.
3. That on or about May 3, 1994, J.D.M. by Christine
DeHond told an unsuccessful job applicant (Golding), that
M. J. had complained that he had refused to relinquish his
membership in the Union as a condition of employment and
would not assure that he would not quit M. J. for employ-
ment at other union jobs.
4. That on May 3, 1994, Respondent M. J. refused to
offer employment to Mark Golding.
5. That on May 23, 1994, M. J. by its project superintend-
ent, James Johnson, told a successful job applicant that he
could not begin work unless he relinquished his membership
in the Union.
6. That on May 23 and June 3, 1994, James Johnson
threatened employees with discharge if they engaged in
union organizing activities.
7. That M. J. engaged in interrogation on the following
dates:
(a) Early April 1994 by Richard Wagner.
(b) Late April 1994 by James Johnson in a telephone con-
versation.
(c) Late April 1994 by James Johnson at the worksite.
(d) May 3, 1994, by James Johnson at the worksite.
(e) May 23, 1994, by James Johnson at the worksite.
(f) June 17, 1994, by Michael D. Poole at M. J.’s Buffalo,
New York facility.
(g) July 19, 1994, by James Johnson at the worksite.
(h) July 22, 1994, by Luis DelaFuente at the worksite.
8. That on June 6, 1994, M. J. orally promulgated the fol-
lowing rule:
Employees are prohibited from engaging in union orga-
nizing activities during their break periods.
9. That on June 13, 1994, M. J. refused to offer employ-
ment to Rodd Babicz, Robert Copie, Mark Golding, Dean
Weiss, William Roeger, Douglas Stein, John Suhr, and Mark
Roberge.
10. That on June 17, 1994, the Respondent issued discipli-
nary warnings to Colon and Derleth.
11. That on June 17, 1994, the Respondent required
Roberge and Weiss to apply for jobs by going to its office
in Tonawanda, New York.
12. That on June 28, 1994, Colon made an unconditional
offer to return to work which was rejected by M. J.
13. That on August 1, 1994, M. J. by Mark Werner re-
ferred to a striking employee as a troublemaker.
14. That on August 3, 1994, M. J. by James Johnson in
the presence of employees (a) threatened to cancel a work
order because of union activity; and (b) told employees that
M. J. would close its shop before signing a contract with the
Union.
15. That on August 4, 1994, M. J. issued a written dis-
ciplinary warning to Chris Diak.
16. That on August 4, 1994, M. J. isolated Diak from the
other employees on the Rochester jobsite.
17. That on August 5, 1994, M. J. discharged Diak for
discriminatory reasons.
At the opening of the hearing, J.D.M.’s counsel expressed
a desire to settle that portion of the case which related to it;
namely, the allegations involving the refusal to hire Mark
Golding. As a consequence of discussion between the parties
and myself, J.D.M. offered a settlement that provided for one
half of the backpay owed to Golding with the provision that
J.D.M. would pay the remainder if a violation was found and
if M. J. could not pay its portion of the backpay. As J.D.M.
obviously was not in a position to reinstate Golding to a po-
sition at M. J., it agreed to give Golding a one time first
preference to any job that became available and which he
was qualified to do. It also agreed to refer him to future jobs
on a nondiscriminatory basis. Finally, J.D.M. agreed to post
a notice at its facility.
The terms of the settlement offer were opposed by the
General Counsel but were not opposed by the Union or by
Golding. As it seemed to me that the settlement proffered by
J.D.M. would fully remedy any violation of the Act that
could conceivably be found against J.D.M., I approved the
settlement agreement on which J.D.M. tendered a check to
Golding in the amount agreed on. Accordingly, I severed
these cases and removed J.D.M. as a Respondent. Thus, pro-
vided that J.D.M. complies with the terms of the settlement
agreement, it no longer should be considered a party to this
proceeding.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the of parties, I make the following
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00821 Fmt 0610 Sfmt 0610 D:\NLRB\324.101 APPS10 PsN: APPS10
822 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The IBEW’s training program is called the COMET program.
2 This type of resolution was the basis of the Eighth Circuit’s opin-
ion in Town & Country Electric v. NLRB, 34 F.3d 625 (8th Cir.
1994), cert. granted 115 S.Ct 933 (1995), that employee-members of
a union who were sent to apply for work at a nonunion contractor
were not employees within the meaning of the Act and therefore
could be refused employment.
FINDINGS OF FACT
I. JURISDICTION
M. J. Mechanical Service, Inc. is a New York corporation
engaged in the construction industry. It has a sheetmetal divi-
sion which is involved in the present proceeding. It has its
principle office and place of business in Tonawanda, New
York, which is a suburb of Buffalo. The Company admits,
and I find, that it is an employer engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
In its answer, M. J. denied that the Union was a labor or-
ganization. Donald Miller, the Union’s business manager,
testified that Local 46 is an affiliate of the Sheet Metal
Workers’ International Association and that it has about 400
members who participate in its activities by attending meet-
ings, voting for officers and ratifying collective-bargaining
agreements. The Union maintains collective-bargaining
agreements covering terms and conditions of employment on
behalf of its members with various contractors in the Roch-
ester area. Accordingly, I conclude that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company is a mechanical contractor engaged in the
construction industry, mainly in the Buffalo, New York area.
It has a sheetmetal department which is headed up by Louis
DelaFuente. In November 1993, the Company was awarded
the bid for sheetmetal work in relation to the construction of
a building for Bausch & Lomb in Rochester, New York. Ac-
cording to DelaFuente, the Company’s successful bid for this
job was intended as the beginning of a plan to enter the
Rochester market and bid for more work in this locality.
(Within the jurisdiction of the Charging Party, Local 46.)
According to Michael Poole, the Company’s president, he
received a phone call in early 1994, from Pesce, an agent of
the International Brotherhood of Sheet Metal Workers, who
congratulated the Company on getting the Bausch & Lomb
project and stated that he wanted to be part of it. Poole re-
sponded that he was not interested, whereupon Pesce asked
how the Company intended to man the project. Poole said
that the Company had some people in Rochester, that it
could bring some people in from Buffalo and expected to get
a couple of other people. Some time later, Pesce sent a copy
of a contract with Local 71 of the Sheet Metal Workers to
Poole. Poole also testified that he had a subsequent conversa-
tion with Pesce wherein Pesce said that Local 46 was the
local union in the Rochester area and that he wanted Local
46 to be part of the Bausch & Lomb project from a man-
power point of view. According to Poole, he had no contact
with anyone from Local 46 and no further contacts from the
International Union or any other local thereof regarding rec-
ognition.
DelaFuente hired Richard Wagner to be the manager of
the Bausch & Lomb job. Wagner, who was a Rochester resi-
dent and who had been a member of Local 46, in turn hired
the initial crew of sheetmetal workers. These workers, who
were hired in the winter and spring of 1994, included Jim
Johnson, Richard Amico, Paul Colon, Steven Derleth, Mark
Werner, David Crowel, McDermot, and Charley Wilson.
Some of these people, like Jim Johnson and Mark Werner,
who were respectively the foreman and assistant foreman at
the jobsite, had previously been members of Local 46. Oth-
ers, such as Crowel, McDermot, and Wilson had never been
members of the Union. Finally, some like Colon, Derleth,
and Amico were ‘‘salts’’ in that they were given permission
by Union President Donald Miller to work for the Company
despite union rules prohibiting members from working for
nonunion companies, so long as they carried out union in-
structions. At the time of their hire, Wagner and Johnson
were aware that Colon, Derleth, and Amico were union
members. What they did not know was that the Union was
going to pay ‘‘salts’’ $300 per week to engage in salting ac-
tivities once they were on the jobsite.
B. The Salting Program
The General Counsel asserts that the Union’s salting pro-
gram was designed to place union members into the employ
of nonunion companies so that they could, while performing
their work as employees, organize the other employees and
eventually bring those companies into contractual relation-
ships with the Union. The Respondent asserts that as applied
by Local 46 to this particular employer (MJ), the salting pro-
gram was not intended to organize M. J.’s employees, but
rather to engage in various acts, including acts of sabotage,
with the object of driving it out of the Rochester area and
maintaining a cartel of unionized companies that would be
the only ones allowed to bid for electrical work on construc-
tion sites within this locality. The Respondent asserts that the
Union’s plan included efforts to entrap the Company into
committing violations of the National Labor Relations Act
(NLRA) and other laws, and to also to induce the Compa-
ny’s nonunion employees to quit their employment and
therefore to deny the Company access to a viable work force
in the Rochester area.
Donald Miller testified that his Union adopted the salting
program of the International Brotherhood of Electrical Work-
ers and that he received training from their agents.1 He testi-
fied that he was in possession of the IBEW’s manual and
used it as the basis of Local 46’s salting program. The IBEW
salting program was described to me in five previous cases,
Falcone Electric Corp., 308 NLRB 1042 (1992); Sullivan
Electric Co., JD–(NY)–94–95; Consolidated Electrical Serv-
ice, JD–(NY)–11–95; Belfance Electric, JD–(NY)–555–95;
and Iplli, Inc, JD–(NY)–60–95. Like the IBEW’s program,
Local 46 also passed a resolution, which requires its mem-
bers who are placed as salts, to leave the employer on notifi-
cation by the Union.2 As previously indicated in Sullivan
Electric Co., Consolidated Electrical Service, Belfance Elec-
tric, and Iplli, Inc., I stated that I thought the goals of the
IBEW’s salting program included the following objectives
which could be separate or overlapping.
1. To put union members on a jobsite so as to enable the
Union to organize the Company’s employees in order to gain
recognition either voluntarily or through a Board election.
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00822 Fmt 0610 Sfmt 0610 D:\NLRB\324.101 APPS10 PsN: APPS10
823M. J. MECHANICAL SERVICES
3 The Respondent subpoenaed a reporter from the Rochester Busi-
ness Journal and sought to have him produce his notes and materials
regarding the preparation of story concerning ‘‘salting’’ in the Roch-
ester area. This newspaper story, among other things, quoted Donald
Miller in relation to facts that are part of the record in the present
case. The newspaper’s counsel filed a motion to revoke the subpoena
contending that the reporter had a privilege under the First Amend-
ment. I granted that motion and my order was not appealed. Because
of the issues raised by the subpoena, I have attached my order as
App. A.
2. To get union people on the job and create enough trou-
ble by way of strikes, lawsuits, unfair labor practice charges,
and general tumult, so that the nonunion contractor walks
away from the job.
3. If number 2 does not work, to create enough problems
for the Employer by way of unfair labor practice charges,
Davis Bacon, OSHA, or legal allegations requiring legal
services so that even if the Employer does not walk away
from the job, he will be reluctant to bid for similar work in
the local area ever again.
I note that Donald Miller gave an interview to the Roch-
ester Business Journal which reported his remarks on July
22, 1994. Miller acknowledged that the quoted remarks were
statements he made to the reporter.3 In pertinent part, the ar-
ticle reads as follows:
Three men salted the site about 1-1/2 months ago,
said Donald Miller, business agent for Local 46. As is
the practice in COMET efforts, they agreed to work for
wages and benefits that fall substantially below the
union rates of $24.42 an hour . . . .
The workers went in ‘‘half under cover,’’ saying
they were disaffected union members, Miller said.
. . . .
One M. J. Mechanical employee has left the firm to
become a union apprentice, and a second is considering
a similar move, he said.
Such defections ultimately will bring the company
into the union fold, Miller predicted.
‘‘If they don’t have the manpower, they can’t do the
job,’’ he said.
Meanwhile, his first taste of salting has whetted Mil-
ler’s appetite.
‘‘This is the way to go,’’ he said. ‘‘We plan to do
more.’’
C. The Hiring of Paul Colon, Steven Derleth, and
Alleged Interrogations During Their Job Interviews
Paul Colon applied for work at M. J. in early April 1994,
with permission from the Union under its salting program.
Colon was a union member and had been a journeyman
sheetmetal worker since 1988. He states that he was inter-
viewed by Richard Wagner, who among other things, asked
if Colon was afraid of being caught by the Union for work-
ing at a nonunion contractor. Colon states that he replied that
he would cross that bridge when he had to and that this was
his own decision to make. Colon testified that Wagner asked
him how he felt about the Union and that he told Wagner
that he had to feed his family.
With respect to this conversation, it is noted that Colon
and Wagner had worked together for a union contractor
named Poestler & Joeckle. As Wagner had been a member
of Local 46, he presumably was well aware that the Union
prohibited its members from working for nonunion contrac-
tors and that by accepting a job with M. J., Colon was sub-
jecting himself to union sanctions. Under these particular cir-
cumstances, Wagner’s inquiries of Colon are understandable
and in my view were not, in fact, designed to coerce Colon,
but rather to protect him from being fined or otherwise dis-
ciplined by the Union. In my view, this type of interrogation
is not coercive under Section 8(a)(1) of the Act. Bourne v.
NLRB, 332 F.2d 47 (2d Cir. 1964); Rossmore House, 269
NLRB 1176 (1984), enfd. sub nom. Hotel & Restaurant Em-
ployees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985);
and FMC Corp., 290 NLRB 483 (1988).
According to Colon, in late April 1994, he had a couple
of conversations with Jim Johnson about money and that
they ultimately agreed that Colon would go to work on the
Bausch & Lomb job at $12 per hour. Colon also states that
during one of these conversations Johnson (who had been a
member of Local 46 and who has a brother who still is a
member), asked if Colon was prepared to leave Local 46 and
stay with M. J.
Colon began to work for M. J. on May 2. But before he
did, he spoke to Donald Miller who instructed him not to en-
gage in any organizing at the beginning. Miller agreed to pay
Colon $300 per week while he worked for M. J. and Colon
signed a ‘‘salt agreement.’’ This agreement, which is M. J.’s
Exhibit 1, required Colon to ‘‘report to the business man-
ager’s office for the purpose of assisting as needed in the or-
ganizing program,’’ to ‘‘maintain his position on the Union’s
out of work list’’ and to ‘‘leave the employer or job imme-
diately upon notification.’’
According to Colon, once on the job, he talked to other
workers about the Union and told people who asked about
the advantages and disadvantages of the Union. He states
that the nonunion people were mainly interested in the
Union’s pay scales and the amount of time union members
worked during the year. Neither Colon, Derleth, nor Amico,
solicited employees to sign union authorization cards or
talked to the nonunion employees about obtaining union rec-
ognition from the Employer.
Steven Derleth testified that he contacted Wagner about
working for M. J. after being told of the job by union mem-
ber Amico (who already was on the job as a ‘‘salt’’), and
after getting permission from Miller to apply for work there
under the salting program. Derleth states that after speaking
to Wagner on April 24, he met with Wagner, Jim Johnson,
and Mark Werner at the construction site on April 25. He
states that Johnson (who no doubt was aware that Derleth
was a member of Local 46), asked what Derleth’s feelings
were about the local union. Derleth states that he responded
that he was a little unhappy because he had been out of work
for a while. In any event, Derleth was hired and began to
work on that date. For the same reasons discussed above, I
conclude that the Employer did not engage in any illegal in-
terrogation during this interview.
According to Derleth, on April 25, he reported back to
Donald Miller that he had been hired and Miller agreed to
subsidize Derleth’s wages by giving him $300 per week. He
too signed the salting agreement described above.
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00823 Fmt 0610 Sfmt 0610 D:\NLRB\324.101 APPS10 PsN: APPS10
824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 From my observation I must say that I thought that Golding was
very tentative when he gave his testimony. Whether this could be
attributed to shyness or to other reasons, his demeanor led me to be-
lieve that in a job interview, he could easily have given the impres-
sion of ‘‘beating around the bush.’’
D. The Alleged Refusal to Hire Mark Golding
Pursuant to the suggestion of Donald Miller, Mark
Golding answered an advertisement in the local newspaper
for sheetmetal workers by J.D.M. J.D.M., a temporary em-
ployment agency, had been retained by M. J. to hire
sheetmetal workers for the Bausch & Lomb job.
On April 25 1994, Golding went to J.D.M.’s offices and
filled out an application form on which he listed that he had
received training from Local 46 and had worked at Crosby-
Brownlie, a well-known union contractor in the area. At the
office, Golding was interviewed by Christine DeHond who,
according to Golding, asked him if he would get in trouble
with the Union if he went to work at a nonunion contractor.
At the conclusion of the interview, she told Golding that she
would contract him at the end of the week.
On or about April 29, Golding received a phone call from
DeHond who said that Johnson of M. J. would interview
him and that the pay rate would be $12 per hour.
According to Golding, he had an interview with Johnson
on May 3, gave his work background, and explained that he
was out of Local 46. Golding states that Johnson said that
the Company was bidding on a lot of work and trying to ex-
pand in Rochester. Golding testified that after some discus-
sion about wages, Johnson asked if he would stay at M. J.
if union work picked up. Golding states that at the end of
the interview, Johnson said that he would have to check with
M. J.’s Buffalo office and would contact him later.
Golding testified that after the interview with Johnson, he
went back to the office of J.D.M. and spoke with DeHond
who told him that there was a problem because M. J. was
worried that if work picked up, he would go back to the
Union. Golding testified that she said that M. J. was having
a hard time with him as a union member and going back to
the Union. Subsequent to this conversation, Golding was not
contacted by anyone from J.D.M. or M. J. about the job, al-
beit Golding was one of a group of union members who later
in June, went en masse to the jobsite to make employment
applications at M. J. (That will be discussed later.)
Colon, whom Golding described as an interim organizer,
testified that in early May 1994, Johnson told him that he
had interviewed Golding and had kicked him out of the trail-
er when Golding, who first asserted that he was out of the
Union, later admitted that he was still in the Union.
Johnson testified that after interviewing Golding, he de-
cided not to put him on the job because Golding did not ap-
pear to be very knowledgeable about the sheetmetal industry
and was ‘‘beating around the bush.’’4 Johnson denied having
any conversation with Colon about Golding.
Christine DeHond acknowledged interviewing and sending
Golding over to M. J. for a job interview. DeHond denied,
however, that she either was told by M. J. or that she, in
turn, told Golding that the reason he was not hired was be-
cause of his union membership. At the time of the hearing
in this matter, DeHond was no longer employed by J.D.M.
and had no connection either with that company or with
M. J. She was subpoenaed to appear by the Respondent and,
as far as I can see, was a disinterested witness in relation to
the parties in this case. (I was also favorably impressed with
her demeanor.) Moreover, the allegation that the Company
refused to hire Golding because of his membership in Local
46 is undermined by the fact that this alleged discrimination
occurred within a very short time after the hiring of people
like Colon and Derleth who were known to be members of
Local 46. (Derleth was hired on April 25 and Colon began
work on May 2.)
In my opinion, the evidence is insufficient to establish that
Golding was refused employment because of his union mem-
bership as alleged by the General Counsel. I also conclude
that even if Johnson questioned Golding about whether he
would be willing to stay at M. J. if union work picked up,
this did not constitute coercive interrogation within the
meaning of the Act.
E. The Alleged Refusal to Hire Don Litolff
Union member Don Litolff testified that he was directed
to the M. J. job by Donald Miller under the salting program
and that he was interviewed by Jim Johnson on May 18,
1994. Litolff states that he was initially offered $7 per hour
but that Johnson subsequently agreed to pay him $10 per
hour. According to Litolff, who had been a member of Local
46 for 6 years and a journeyman for 1 year, he did not list
any prior union employers on his job application, apparently
in an effort to hide the fact that he was a union member.
Litolff states that on Monday, May 23, 1994, he went to
the jobsite with his tools and was prepared to begin work.
He testified that at about 6:55 a.m., Johnson called him into
the jobsite trailer and after beating around the bush, asked
if he was a union member. Litolff states that when he said
that he was a member, Johnson said that he could not work
unless he got a withdrawal card from the Union. According
to Litolff, he refused and Johnson told him to leave. Johnson
denied this and testified that Litolff told him that he was
turning down the job and going south. This, in turn is denied
by Litolff. No one else was present during this transaction.
In relation to the Litolff matter, the Respondent offered
into evidence Litolff’s job application which lists Ancoma, a
union sheetmetal contractor in the Rochester area. This is
contrary to Litolff’s assertion that he did not list union com-
panies on his application and also indicates that Johnson was
aware of Litolff’s union affiliation at the time that he offered
him a job. It may be that Johnson asked Litolff about obtain-
ing a withdrawal card from the Union, but it frankly makes
no sense to assume that Johnson would have conditioned
Litolff’s employment on withdrawing from the Union. As a
member would ordinarily be subject to union discipline for
working at a nonunion company, this would have been
Litolff’s problem and not something that the company need-
ed to be concerned about, assuming that it was willing to
hire a man who was a union member.
The General Counsel argues that it is highly improbable
that Litolff would have arrived with his tools at the jobsite
if he merely had come to decline the job. In ordinary cir-
cumstances I would agree. Yet an almost identical situation
occurred in Sullivan Electric, supra, where under the IBEW’s
salting program, it was obvious that the purpose of the union
in sending members to apply for jobs was not to have them
obtain employment, but rather to generate an unfair labor
practice case. (Slip op. at 11.) Thus, if this is a tactic used
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00824 Fmt 0610 Sfmt 0610 D:\NLRB\324.101 APPS10 PsN: APPS10
825M. J. MECHANICAL SERVICES
5 As noted above, Colon, Derleth, and Amico were being paid
$300 per week during their employment at M. J.
6 In fact, Colon was instructed by Miller to report back to him
about conditions at the jobsite. This however, is not such an unusual
instruction or activity and I do not think it deserves the opprobrious
description of ‘‘spying.’’
by a union under its salting program, the improbability that
is argued by the General Counsel, becomes a good deal less
improbable than what might appear on first blush.
I do not believe Litolff and I do not believe that he was
denied employment because of his union membership, a fact
that already was known to the Company at the time it of-
fered him the job. The evidence convinces me that Litolff
made an application for employment, pursuant to the Union’s
direction, with the hope and expectation that he would be de-
nied employment which would therefore give the Union
grounds for filing an unfair labor practice charge. In my
opinion, when that expectation was not met, Litolff decided
that he did not want the job and turned it down.
F. The June 3 Discharges of Derleth and Colon and the
Subsequent Offers of Reinstatement
Colon and Derleth testified that soon after they became
employed, they started to talk of the benefits of being in the
Union amongst the nonunion employees of M. J. They did
not however, solicit or pass out union authorization cards or
try to organize these employees in the sense of seeking ulti-
mately to have the Union be their representative in a contrac-
tual relationship with M. J. As explained above, the thrust
of the Union’s activity vis-a-vis the nonunion employees of
M. J. was to get them to quit M. J.’s employ and become
union members by getting them jobs at other companies hav-
ing collective-bargaining agreements with Local 46. (This
was, in fact, accomplished with respect to M. J. employee
Crowel.) Thus, it is my opinion that by late spring 1994,
when it became apparent that the Company was not going
to grant recognition, the object of the Union was no longer
to gain recognition from M. J. but rather to starve M. J. of
its permanent work force so that they would not be able to
bid for work in the Rochester area.
Colon testified that on May 23, 1994, he was told by
Johnson that ‘‘there’s a vicious rumor going around that
there’s people being subsidized by the union for working
here.’’ Colon states that he answered, ‘‘[N]o’’ when Johnson
asked if he was one of these people.5 According to Colon,
when he returned to work he spoke about this conversation
with Derleth and they both decided to tell Mark Werner that
they were in fact being subsidized by the Union. According
to Derleth, he told Werner that he was there to organize the
employees. According to Colon, Werner asked him if he was
a union spy and he replied that he was not.6 Both Johnson
and Werner denied these alleged conversations.
On June 3, 1994, Colon and Derleth were in the company
trailer during the coffeebreak when they announced that they
were union organizers. When Johnson arrived in the trailer,
Colon and Derleth repeated this announcement and Johnson
fired them. (Richard Amico, the other salt, did not say any-
thing and was not discharged.) As the motivation for the dis-
charges was because Johnson believed that Colon and
Derleth were going to try to organize the employees, the dis-
charges would violate Section 8(a)(3) of the Act unless they
should not be construed as employees under the rationale of
Town & Country Electric v. NLRB, 34 F.3d 625 (8th Cir.
1994), cert. granted 115 S.Ct 933 (1995). However, as I am
bound by Board precedent, I shall conclude that the dis-
charges were violative of the Act. In this regard, the Com-
pany argues that Colon and Derleth were not engaged in pro-
tected concerted activity because they really had no intention
of organizing the employees for union representation vis-a-
vis their employer. Nevertheless, as of June 3, 1994, the Em-
ployer did not know this and Johnson’s motivation was
based on his belief that they were going to engage in typical
union activity.
On Monday morning, June 6, 1994, Colon, Derleth, and
Union Business Manager Miller went to the company office
in Buffalo where they spoke to Luis DelaFuente and David
Nowak who are respectively, the general manager of M. J.’s
sheetmetal department, and the Company’s estimator.
DelaFuente, who had been advised of what happened and
had consulted a lawyer over the weekend said that Johnson
had overstepped his bounds and he offered Colon and
Derleth their jobs back. According to Colon and Derleth,
they were advised that they could engage in union organizing
activity as long as it was done on their own time and not
company time. They assert that they were told that they
could not engage in such activity on company time and not
during breaks, albeit they could engage in union activity be-
fore or after work.
With respect to the above, DelaFuente testified that during
this meeting, he said that Johnson had not acted in accord
with M. J. policy and that the controller had been instructed
to keep Colon and Derleth on the payroll. He states that he
told Miller that he would reinstate the two men and that the
Company would welcome any other qualified people that the
Union could furnish. DelaFuente states that he said that
Colon and Derleth would be reinstated unconditionally and
that they could do what they wanted at lunchtime, on breaks
and after hours, but that they had to work during company
time. While Nowak corroborated DelaFuente’s testimony in
the main (much of which is not in dispute), he was tentative
about whether DelaFuente said that the Company was going
to allow or prohibit union activity during breaktimes. In this
regard, Nowak testified, ‘‘I think he said they could do it on
their breaks as well.’’
Immediately after the aforementioned meeting, DelaFuente
sent a letter to Donald Miller with copies to Colon and
Derleth stating:
Thank you for taking the time to see me at our Buf-
falo Office this afternoon. As discussed, Mr. Paul
Colon and Mr. Steve Derleth have been unconditionally
reinstated by our firm.
I will be at the job site at 7 a.m., Tuesday, June 7th
to meet Paul and Steve with their paychecks.
I look forward to working with these two men in the
future.
Colon and Derleth did not show up at the jobsite on June
7, 1994, and did not communicate further with the Company
until their appearance at the site on Monday, June 13. Al-
though the General Counsel suggests that they did not imme-
diately accept the offer of reinstatement because of the al-
leged prohibition on solicitation during breaktimes, I do not
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00825 Fmt 0610 Sfmt 0610 D:\NLRB\324.101 APPS10 PsN: APPS10
826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Although it is alleged that Colon and Derleth did not return to
work immediately after being offered reinstatement because of the
limitation on their right to solicit on breaktimes, neither they nor
Miller who was with them, suggested or protested to the Company,
at the June 6 meeting or at any time thereafter, that this limitation
was improper, illegal, or unfair. While I am inclined to believe that
this limitation was expressed by DelaFuente, probably as a result of
misunderstanding the legal advice given to him, I doubt that Colon
and Derleth decided to remain out of work because of it.
8 The evidence shows that the Company had a preexisting policy
of prohibiting unauthorized solicitations and distributions. However,
this policy, which is contained in the Company’s personnel manual
(G.C Exh. 6), did not specify exactly where or when distributions
or solicitations could and could not be made.
believe this to be the case7 and I think that their return to
work was orchestrated by the Union with the other events
that occurred on June 13 which will be discussed below.
G. The Allegations Arising out of the Events Occurring
on June 13, 1994
Three events occurred simultaneously on the morning of
June 13 and these were, in my opinion, all planned by Mil-
ler, Colon, and the other union members who participated in
them. Moreover, it is my belief that they were staged with
the primary object of provoking the Employer into violating
the Act so as to justify the filing of unfair labor practice
charges, the establishment of a picket line at the construction
site and the assertion that the Union was engaged in an un-
fair labor practice strike. These events were (a) the return to
work of Colon and Derleth; (b) their actions at the site which
provoked the receipt of warnings; and (c) the parade of union
members into M. J.’s trailer ostensibly to tender applications
for employment.
1. The warnings issued to Colon and Derleth
At about 6:30 a.m. on the morning of June 13, 1994,
Colon and Derleth met with Donald Miller and eight other
union members outside the Bausch & Lomb jobsite where
they were given their instructions by Donald Miller. These
were Rodd Babicz, Robert Copie, Mark Golding, Dean
Weiss, William Roeger, Douglas Stein, John Suhr, and Mark
Roberge. In this regard, the other eight members were each
given an application form prepared by the Union which they
were instructed to tender when they went to M. J.’s trailer
office and asked for jobs. In this application, each member
wrote down his name, address, telephone number, and his
prior experience. At the bottom of the form, it stated:
NOTE: I am a voluntary Union Organizer. If hired, I
will perform all duties to the best of my ability. I will
also attempt, during non-work time and in non-work
areas, to organize M. J. Mechanical Services, Inc.’s
employees into a Union.
Colon and Derleth were the first to enter the trailer and
they asked for their jobs back. While there, they witnessed
the other eight members enter the trailer, present their job
applications, and exit. According to Colon, Johnson told the
‘‘applicants’’ that he would let them know about jobs and
turning to Colon said, ‘‘[H]ow long are these games going
to continue.’’
After the men left the office, Johnson told Colon and
Derleth to follow Werner to the basement. They did so and
assert that while waiting by a toolbox they spoke to other
employees about the Union and its apprenticeship program.
Colon and Derleth began working in the basement and they
testified that while working, they talked to employees
Crowell and Werner and encouraged them to contact the
Union and discuss job opportunities with union contractors.
Shortly thereafter, Johnson issued warnings to both men
which stated: ‘‘Soliciting M. J. Mechanical employees on
company time for Local #46. M. J. has no problem with you
doing this on your time not M. J. Mechanical’s time.’’
On receiving the warnings, both Colon and Derleth
claimed that this was an unfair labor practice and both left
the job. They then proceeded to engage in picketing at the
jobsite with signs asserting that the Union was engaged in
an unfair labor practice strike against M. J.
The Company presented three witnesses, Jim Johnson,
Mark Werner, and John Hill who testified about the events
leading up to the warnings issued to Colon and Derleth. Es-
sentially, the testimony of Werner and Hill was that Colon
and Derleth left their work areas and went over to speak to
other employees where they solicited them on behalf of
Local 46 while they were doing their work. According to
Hill, Colon told him that he would have better pay and bene-
fits for working for the Union. Werner reported this to John-
son and he in turn decided to issue the warnings described
above.
Apart from some minor discrepancies, there is not really
that much difference between the versions presented. What
is clear from both, is that on June 13, immediately on return-
ing to work, Colon and Derleth, during working time and in
work areas, solicited employees on behalf of the Union.
Moreover, as conceded by the General Counsel, this solicita-
tion included asking M. J.’s nonunion employees to quit the
Company, join the Union, and get jobs at union contractors.
In my opinion, the warnings issued to Colon and Derleth
did not constitute violations of the Act for the following rea-
sons.
I have concluded above that DelaFuente on June 6, told
Colon and Derleth that they could not solicit during
breaktime. To the extent that this amounted to the announce-
ment of or a refinement of its preexisting no-solicitation rule,
the rule as announced is too broad and is presumptively un-
lawful to the extent that it prohibits these employees from
engaging in union solicitations during breaks.8 Essex Inter-
national, 211 NLRB 749 (1974); Keco Industries, 306 NLRB
5 (1992); Ichikoh Mfg., 312 NLRB 153 (1993); BCR Injected
Rubber Products, 311 NLRB 13 (1993); and McCullough
Environmental Services, 309 NLRB 345, 351 (1992).
Nevertheless, even assuming that the rule was overly
broad, this does not mean that employees would be abso-
lutely free to engage in any types of solicitations during
worktime and in work areas. In my opinion, the facts show
that Colon and Derleth, during their worktime, left their work
areas and deliberately walked over to other employees who
were working and engaged them in conversations about the
Union. Further, the evidence indicates that their solicitations
were not designed to result in the Union representing such
employees with respect to their employment relationship with
M. J., but rather to urge them to quit their employment alto-
gether and obtain jobs elsewhere under the aegis of the
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00826 Fmt 0610 Sfmt 0610 D:\NLRB\324.101 APPS10 PsN: APPS10
827M. J. MECHANICAL SERVICES
9 In NLRB v. Electrical Workers IBEW Local 1229 (Jefferson
Standard), supra, the Court held that employees, who during negotia-
tions, distributed handbills disparaging the quality of the product of
their employer were not engaged in protected activity.
10 In Crystal Linen, supra, the administrative law judge concluded
that four employees who obtained other permanent employment dur-
ing a strike were not engaged in protected activity when they solic-
ited their former customers to switch their business from the Re-
spondent to their new employer.
11 In Lutheran Social Service of Minnesota, supra, the administra-
tive law judge opined that in order for employee activity to be con-
certed and protected it must be related in some way to inducing or
preparing for group action for a purpose of remedying, correcting,
or improving some grievance or other term or condition of employ-
ment. The judge held that mere griping and complaining by employ-
ees about management policies or about the competency and good
faith of their managers and coworkers, even if arguably concerted
in the broadest sense of that term, would not be protected activity
within the meaning of Sec. 7 of the Act.
12 On cross-examination, Weiss conceded that Poole said that he
could organize during breaks. Although I concluded previously that
Colon and Derleth, on June 6, were told that they could not solicit
during breaks, I think that by June 13, the Company had gotten its
legal advice straight and made sure that any stated, ‘‘[N]o solicita-
tion’’ rule would be in accord with Board law.
Union. The conduct may be concerted but I do not believe
it is protected.
In my opinion, these solicitations by Colon and Derleth
were was more like a tortious interference with business rela-
tions, as they were aimed not at inducing a strike or work
stoppage designed to gain improvements in the employees’
working conditions vis-a-vis their own Employer, but rather
were aimed at permanently severing the relationship of the
Company to its employees irrespective of their terms and
conditions of employment, in an effort to eliminate M. J.’s
ability to employ a viable work force in the Rochester area.
Cf. NLRB v. Electrical Workers IBEW Local 1229 (Jefferson
Standard Broadcasting Co.), 346 U.S. 464 (1953);9 Crystal
Linen & Uniform Service, 274 NLRB 946, 948 (1985);10 and
Lutheran Social Service of Minnesota, 250 NLRB 35
(1980).11
2. The group job applications and the alleged refusals
to hire
As noted above, on the morning of June 13, 1994, a group
of union members appeared at M. J.’s trailer, without prior
notice, and tendered to Johnson, application forms that had
been prepared by the Union and had been filled out at 6:30
a.m. Johnson took the forms and looking at Colon, stated,
‘‘[H]ow long are these games going to continue.’’ Although
DelaFuente had told Donald Miller on June 6 that the Com-
pany would hire applicants sent by the Union, the evidence
does not indicate that it had immediate job openings avail-
able at the Bausch & Lomb jobsite (or any other site), for
all eight of the men who tendered these applications.
Pursuant to instructions from Poole, his secretary, Anne
Williams, telephoned all of the ‘‘applicants’’ at their listed
phone numbers, and left messages either with their answering
machines or in one case with a spouse. She testified that one
of these people (she could not recall who) called back and
he was invited to interview with the Company in Buffalo,
New York.
Two of the eight applicants, Mark Roberge and Dean
Weiss, told Donald Miller that they had been contacted by
the Company to go for interviews. Thereafter, on June 13,
1994, these two men, accompanied by Donald Miller, drove
to the Company’s main office in Buffalo. As the other six
made no effort, either individually or through Donald Miller,
to follow up on their job applications, it is clear to me that
they abandoned whatever interest they might have had in
working for M. J. (Indeed, it seems probable to me that they
were never interested in working for this Company in the
first place; their tender of applications being more in the na-
ture of a demonstration designed to provoke an unfair labor
practice than a good-faith effort to gain employment.)
I do not agree with the General Counsel’s allegation that
the Company violated the Act by making Roberge and Weiss
drive to Buffalo in order to be interviewed. What was in-
volved was a 1-hour drive to the Company’s headquarters in
order to be interviewed by Poole, the Company’s president.
I do not think that this was either such an unusual or burden-
some condition placed on people looking for jobs.
Dean Weiss was interviewed first. During the interview,
Weiss stated that if hired he would be a union organizer.
Poole said that he would have no problem with that so long
as Weiss did his job and did his organizing before and after
work and during lunchtime and breaks.12
Roberge was interviewed next and he testified that Poole
said that the Company was offering between $8 and $15 per
hour but that this did not matter because the Union was
going to subsidize Roberge’s pay. In his pretrial affidavit,
Roberge stated that he responded by saying that the Union
might possibly subsidize him for some of the difference but
that it would not be enough since ‘‘you guys aren’t going
to pay me shit.’’
Roberge testified that toward the end of his interview,
David Valasquez, the Company’s sheetmetal shop foreman,
came into the room and said that he had been in the Buffalo
sheet metal union but had dropped out after he started his
own company. He states that Valasquez said that the Buffalo
union had tried to fine him and that ‘‘you have to watch out
for these union halls, they’ll stab you in the back every
chance they get.’’ This testimony regarding Valasquez was
essentially corroborated by the Respondent’s witness, David
Nowak. Thus, Nowak testified that Valasquez, in addition to
asking Roberge if he would be fined if he worked for M. J.,
also said that Valasquez had gotten into trouble with the
Union when he opened his own business and that ‘‘some of
these unions will stab you in the back.’’ According to the
testimony of Roberge and Nowak, Poole asked Roberge if he
would leave M. J. if the Union did not succeed in organizing
the Company’s employees. Roberge replied that Poole should
ask Miller that question. (A similar question was asked of
Weiss, who states that he said that he did not know and
would have to wait.)
The General Counsel alleges that by questioning Roberge
and Weiss regarding what they would do if the Union was
not successful in organizing the Company’s employees, the
Respondent unlawfully interrogated them in violation of Sec-
tion 8(a)(1) of the Act. I disagree. In this circumstance, it
was clear to everybody that Roberge and Weiss were going
to engage in some type of union activity if they were hired.
As such their union affiliation and proposed union activism
was overt and therefore they would hardly be intimidated by
such interrogation.
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00827 Fmt 0610 Sfmt 0610 D:\NLRB\324.101 APPS10 PsN: APPS10
828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Under Sec. 8(b)(7)(C) of the Act, a union commits an unfair
labor practice by picketing an employer for a recognitional or orga-
nizational object for more than a reasonable period of time, not to
exceed 30 days, without filing a petition for an election. This section
of the Act also has two provisos which are not relevant here.
14 A different result would result if the employer had a lawful col-
lective-bargaining agreement with union A, and employees went out
on strike and picketed during the life of the contract on behalf of
union B which was seeking to gain recognition from the employer.
In such a case, the picketing might not only violate Sec. 8(b)(7)(B)
of the Act, but also the strike action of the employees might be con-
sidered to be in derogation of their lawfully selected collective-bar-
gaining representative. As such, employees engaged in such a strike
and picketing might not be engaged in protected activity, albeit their
conduct would be concerted. Teamsters Local 707 (Claremont
Polychemical Corp.), 196 NLRB 613, 627–629 (1972). Cf. Empo-
rium Capwell Co. v. Western Addition Community Organization, 420
U.S. 50 (1975), where the Court held that employees who sought to
bypass their union and engaged in a strike in derogation of their col-
lective-bargaining representative were not engaged in protected ac-
tivity. There might also be a different result if the picketing went
on for more than 30 days and Colon’s offer to return to work did
not occur until after the 30th day. See Rapid Armored Truck Corp.,
281 NLRB 371 at fn. 1 and 391–382 (1986).
Weiss and Roberge were told that they would be contacted
but they never were. Poole and Nowak testified that they sur-
mised that neither man was really serious about working for
the Company or becoming a long-term loyal employee. They
each testified that Weiss seemed to be disinterested during
his interview. Nowak testified that Weiss responded to ques-
tions by being kind of snappy and that he had a wise guy
type of attitude during the interview. Certainly the type of
response admittedly made by Roberge during his interview
about the Company’s wage scale is hardly the kind of remark
likely to get anyone hired for any job.
H. The Refusal to Reinstate Colon
As previously described, Colon and Derleth each received
a written warning on June 13, 1994, and thereupon left the
jobsite and participated in picketing that apparently com-
menced on the following day. In doing so, they announced
to the Company that they were striking in protest of the
warnings they received on that date and considered their ac-
tion to be an unfair labor practice strike.
On June 28, 1994, Colon asked Johnson for reinstatement
and was refused. Derleth in the meantime had abandoned the
strike and had obtained other employment. (Derleth never
made an offer to return to work and the General Counsel
does not allege that the Company refused to reinstate him.)
Although the Company contends that Colon quit and did
not engage in a strike, I do not think that this assertion can
stand scrutiny. The Company points out that it filed an unfair
labor practice charge against the Union in Case 3–CP–384
which, after investigation, was settled by the Union which
agreed, without admitting that it violated the Act, not to en-
gage in picketing which is violative of Section 8(b)(7)(C) of
the Act.13 Assuming arguendo that Colon engaged in picket-
ing which was for a purpose of gaining recognition but was
carried out without an election petition being filed within a
reasonable period of time, this conclusion would not con-
tradict the assertion that he was engaged in a strike.
Employees who engage in a strike or concerted work stop-
page are normally considered to be economic strikers and
are, unless they have been permanently replaced, entitled to
immediate reinstatement on their unconditional offers to re-
turn to work. Laidlaw Corp., 171 NLRB 1366 (1968), enfd.
414 F.2d 99 (7th Cir. 1969). In this case, since I have con-
cluded above, that the Company did not violate the Act by
the warnings issued to Colon and Derleth on June 13, 1994,
and that it did not unlawfully refuse to hire the ‘‘applicants’’
who appeared on that same date, the strike in which Colon
and Derleth participated, cannot be called an unfair labor
practice strike. The real question in my mind is whether the
strike, given the objectives of the Union, can be called pro-
tected.
The Union’s picketing might ultimately have been found
to be violative of Section 8(b)(7)(C) of the Act, because an
object thereof might have been found to be recognitional.
However, such a finding, would not, in my opinion, have
made the conduct of Colon unprotected vis-a-vis Section 7
of the Act.
Section 8(b)(7)(C) specifically allows a union to engage in
organizational and/or recognitional picketing for a reasonable
period of time not to exceed 30 days, without having filed
a petition with the NLRB for an election. As such, it is hard
for me to conceive of any theory which would on one hand
permit such picketing (at least for a reasonable period of
time), while also permitting an employer to discharge any of
its employees who engaged in such picketing. As Colon’s
offer to return to work was made within the 30-day period
described in Section 8(b)(7)(C), his concerted striking and
picketing activity would not be unprotected on account of
Section 8(b)(7)(C) of the Act.14
Moreover, as the Company is engaged in the construction
industry, the Respondent cannot argue that such picketing, if
it had been successful in obtaining recognition, would have
caused the Company to violate Section 8(a)(2) of the Act by
granting recognition to a minority union. This is because
under Section 8(f) of the Act unions and employers engaged
in the building and construction industry may enter into
prehire collective-bargaining agreements even though the
Union does not at the time of recognition, represent a major-
ity of the employer’s work force in an appropriate unit. John
Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub nom.
Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988).
More troublesome to me is my previous conclusion that
once it became clear that the Company was not going to
grant recognition, the Union was no longer interested in ob-
taining recognition from M. J. or in organizing its employees
so as to represent them vis-a-vis M. J. as their employer.
Having concluded that the Union’s principal object, as of the
summer of 1994, was to drive M. J. out of the Rochester
area by inducing its employees to quit, the question is wheth-
er Colon’s participation in a strike and picketing for such an
object, would be protected under Section 7 of the Act.
There is nothing inherently illegal in a union trying to mo-
nopolize the work force and the employers within a particu-
lar geographic area in an effort to protect and preserve the
wages and terms and conditions of employment that it has
been able to negotiate with those employers with whom it
has a collective-bargaining relationship. This is particularly
true in the construction industry, which in many areas, con-
sists of relatively small companies that bid for work of lim-
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00828 Fmt 0610 Sfmt 0610 D:\NLRB\324.101 APPS10 PsN: APPS10
829M. J. MECHANICAL SERVICES
15 In Giant Food, supra, the administrative law judge stated, inter
alia:
Implicit . . . is the proposition that whatever long-range ob-
jective a union may have regarding organization and bargaining
for employees in a given industry, it may at any given time de-
cide to forego its long-range objective and limit the thrust of its
immediate activity to preserving what it already has. Where a
union has in some measure organized an industry and negotiated
collective-bargaining contracts for the organized employees, it
presumably has achieved standards of employment for those
covered employees which it wishes to protect. A competing em-
ployer who is not organized, and who pays its employees on a
lesser scale will normally have lesser costs, and may thus be
able to lower its prices to an extent that may enable it to gain
a greater share of the market. This may place an organized em-
ployer who is unable to make similar price cuts and still meet
the cost of his union contract at a competitive disadvantage.
Such employer may be driven out of business all together, or
at the very least may be forced to press the union to lower the
negotiated standards to that it may remain in business. A union
has an obvious interest in forestalling this sort of thin, and the
area standards doctrine permits it lawfully to picket in pursuit
of an object of this nature even though in so doing it specifically
undertakes to increase the unorganized employer’s cost.
ited duration and who perform services at different locations,
often employing a somewhat transient work force on a
project by project basis. That a union may try and succeed,
for example by picketing, in either requiring nonunion em-
ployers to meet prevailing wage and benefit standards which
are roughly equivalent to those of union contractors, or in
preventing outside nonunion contractors from successfully
obtaining work in the Union’s jurisdiction (and thereby un-
dermining its ‘‘area standards’’), is not inappropriate under
the law. Cf. Giant Food, 166 NLRB 818, 823 (1967).15
Moreover, in the construction industry, an agreement be-
tween a union and an employer prohibiting subcontracting of
jobsite work to nonunion employers is lawful under the
terms of the construction industry proviso to Section 8(e) of
the Act and is therefore not a violation of the antitrust laws.
Connell Construction Co. v. Plumbers Local 100, 421 U.S.
616 (1975). What is prohibited under the antitrust statutes are
those situations where a group of employers together with a
union, conspire and act, on behalf of the companies, to pre-
vent other employers from gaining access to a market. Allen
Bradley Co. v. Electrical Workers, 325 U.S. 797 (1945).
Also prohibited would be an agreement between a union and
a group of employers to prohibit subcontracting to nonunion
contractors, if such an agreement was ‘‘outside the context
of a collective-bargaining relationship and not restricted to a
particular jobsite.’’ Connell Construction Co. v. Plumbers
Local 100, supra at 635.
I shall assume that a union, without seeking to gain rec-
ognition as a collective-bargaining representative, neverthe-
less could have a legitimate interest in trying to maintain a
local monopoly by forcing or attempting to force a nonunion
employer out from the area of its jurisdiction, and that it may
take actions such as strikes and picketing (or entering into
agreements protected by Sec. 8(e) of the Act), which are im-
mune from legal assault either under the NLRA or the anti-
trust statutes. This does not mean, however, that a company
faced with such an assault, has no equivalent interest in self-
preservation and cannot take appropriate actions to protect its
business. Thus, while I see nothing illegal in a union engag-
ing in a primary strike to force a company to cease doing
business in a local area, I do not see that a company is re-
quired to subsidize such an effort by employing or reemploy-
ing an employee, who in concert with the Union, engages in
a strike, not for the purpose of gaining better wages and ben-
efits for himself and other employees vis-a-vis this employer,
but rather to protect the wages and benefits of fellow union
members employed elsewhere. In balancing the respective in-
terests, I shall conclude that such activity by Colon, although
not prohibited by the Act, is not protected by the Act.
I. Christopher Diak
On or about July 13, 1994, Paul Colon and Donald Miller
showed Christopher Diak a newspaper advertisement which
indicated that the Company through J.D.M., an employment
agency, was looking to hire sheetmetal workers. Diak agreed
to apply for the job and agreed to abide by the Union’s
‘‘salting resolution.’’ He was promised a subsidy of $300 per
week by the Union, if he obtained employment at the Bausch
& Lomb jobsite.
Diak applied for the job by filling out an application at
J.D.M. where he listed some nonexistent companies for his
prior work experience. This was done because he and the
Union, believed that if it was known that he worked for
union contractors and was a union member, he would not be
hired. J.D.M., not knowing that Diak was a member of Local
46 sent his application to M. J. and arranged for an inter-
view to be held on July 19, 1994.
On July 19, 1994, Diak was interviewed by Johnson who
asked him, among other things, if Diak had anything to do
with the Union. Diak said no. Johnson told Diak that the
Company was trying to come into the Rochester area; that
he had been a member of Local 46; and that the Union had
driven his brother out of business. He also told Diak that the
Union was after the Company and that they did not want us
here. Diak testified that Johnson asked him about his past ex-
perience and the companies that were listed on his applica-
tion. At the conclusion of the interview, Diak was told that
Johnson’s superior, Luis DelaFuente, would interview him on
Friday.
On July 22, 1994, Diak was interviewed by DelaFuente,
who among other things, asked if he was a member of Local
46. He states that DelaFuente said that the Company was try-
ing to expand into the Rochester area and hoped to be able
to use the people it hired for the Bausch & Lomb job as
foremen on other Rochester jobs. At the conclusion of the
interview, Diak was told that he was hired subject to a phys-
ical and a drug test. (At this point, in light of the events pre-
viously described, I have little doubt that had Diak admitted
that he was a member of Local 46, he would not have been
hired.)
On July 29, Diak was told to report to work on Monday,
August 1, 1994.
When Diak began work, the Union was engaged in picket-
ing the jobsite. In this regard, since a separate gate had been
established for M. J., the Union was therefore confined to
picketing at that entrance. Diak states that on the morning of
August 1, 1994, Mark Werner pointed to Paul Colon who
was on the picket line and called him a ‘‘trouble maker’’ and
a ‘‘low life spic.’’ He also states that Werner said that he
hated the Union because it was requiring him to pay back
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00829 Fmt 0610 Sfmt 0610 D:\NLRB\324.101 APPS10 PsN: APPS10
830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 For a discussion of the law dealing with secondary boycotts and
reserve gate picketing in the construction industry see Building
Trades Council of New Orleans (Markwell & Hartz), 155 NLRB 319
(1965), enfd. 387 F.2d 79 (5th Cir. 1967), cert. denied 391 U.S. 914
(1968). In cases where a primary employer fails to observe a re-
served gate, a union will not be limited to picketing at such an en-
trance. See Operating Engineers Local 450 (Linbeck Construction),
219 NLRB 997 (1975), affd. 550 F.2d 311 (5th Cir. 1977); and
Teamsters Local 295 (Montgomery Ward), 194 NLRB 1144 (1972).
17 In light of this testimony, one wonders whether Diak was either
an incompetent mechanic or was deliberately engaged in sabotage.
money he had received to go to the Union’s apprenticeship
school. Although conceding that the Union was seeking to
force him to pay back money, Werner credibly denied mak-
ing the remarks attributed to him by Diak and specifically
denied the remarks about Paul Colon.
An interesting event occurred on Wednesday, August 3,
which allegedly gave rise to some 8(a)(1) statements by
Johnson. As noted above, a separate gate was established for
the exclusive use of M. J. and its suppliers. One of M. J.’s
suppliers was a company called Crosby-Brownlie whose em-
ployees, including its truckdrivers, were represented by Local
46. On this occasion, Crosby-Brownlie was scheduled to de-
liver a load of sheetmetal to M. J. at the site and instead of
going to the gate reserved for M. J., its truckdriver went to
another gate. On arrival at the wrong gate, the driver was
seen talking to Donald Miller and Paul Colon was seen tak-
ing photographs of the truck and the gate. When this oc-
curred, Johnson became irate and directed the crew to reload
the truck and take it to the correct gate. Diak testified that
Johnson said that he would ‘‘fix those union assholes’’ and
that he would call up his brother at Crosby-Brownlie and
cancel M. J.’s existing orders. Diak also testified that soon
after the incident, Johnson, after getting off the phone, said
that ‘‘we’d rather close up shop than sign a contract with the
union.’’ In this latter respect, Johnson credibly denied mak-
ing such a statement, and Diak’s initial testimony was that
Johnson said that they would rather close up shop than sign
with a union contractor.
With respect to this incident, Diak testified that the truck-
driver went to the wrong gate pursuant to the directions of
Jim Johnson. This was denied by Johnson, from whose testi-
mony, and the testimony of Werner, one can draw the infer-
ence that the driver went to the wrong gate at the direction
of Miller. I do not credit Diak, and I cannot imagine that
Johnson, who seemed to be at least of average intelligence,
would have been so stupid as to jeopardize the viability of
the reserved gates by directing the driver to the wrong gate
and thereby permitting the Union to picket at all of the en-
trances to the jobsite.
The General Counsel contends that Johnson’s statements
amounted to an illegal threat of reprisal. But the question is
reprisal to whom. Assuming that he made a statement to the
effect that he would cancel a contract with the supplier and
not sign contracts with any other suppliers having agree-
ments with Local 46, it certainly was not a threat of reprisal
directed to any of the employees of M. J. At most, it was
a threat to cancel a contract that M. J. had made with a
unionized firm whose truckdriver seems to have disregarded
instructions to deliver sheetmetal to the correct gate at the
jobsite. In this context, I do not believe that the statements
were illegal given the context in which they occurred. Thus,
it seems to me that what the Union was doing in this in-
stance, was attempting, with the connivance of its truckdriver
member, to establish that M. J. was not complying with the
reserve gate so that the Union would be free to picket all of
the gates and not be limited to the single gate reserved for
the exclusive use of M. J. and its suppliers.16
On the morning of Thursday, August 4, 1994, Diak was
told by Mark Werner that the general contractor had reported
that Diak had been seen walking around the jobsite without
having his field glasses and hardhat on. Diak responded that
he had taken his glasses and hardhat off for less than a
minute to wipe off some sweat and asked for the name of
the person who reported him. Diak was given a warning
which stated: ‘‘Hard hats and Glasses must be worn at all
times.’’
Also on August 4, Diak was assigned to put in some duct
work. In this regard, Werner testified that on this occasion,
Diak installed what is called a sweet tap backwards which
meant that if there was a fire, the fire damper would not
have been able to stop the fire from spreading. Diak admits
that he made this mistake and sought to minimize it. He con-
ceded, however, that a journeyman mechanic should know
that you cannot properly install a sweet tap without first
looking at the blueprints so as to determine which direction
it must go. Nevertheless, Diak concedes that he did so with-
out looking at the blueprint, which means, by his own testi-
mony, that he had a 50-percent chance of getting it wrong.17
Later in the morning of August 4, Diak managed to hit
himself on his thumb with a hammer and the Company sent
him to the local hospital. Diak states that he returned to the
jobsite at about 9:40 a.m. and that he was moved from the
third floor to the first floor.
Before going to the hospital, Diak spoke to Luis
DelaFuente who asked him if had ever worked for a com-
pany that was a union contractor in Syracuse and also asked
what type of work he had done at Jaspar, one of the compa-
nies that Diak had listed on his application form.
According to Diak, at about 5 p.m., he spoke with Colon
near the site and Colon suggested that he disclose to the
Company that he was a Local 46 member. Diak agreed that
he would do so on Friday, August 5, which was not a sched-
uled workday.
Diak testified that on August 5, 1995, he showed up at
M. J.’s trailer, announced to Johnson that he was an orga-
nizer for Local 46, and asked if Johnson had any problem
with that. Diak testified that Johnson said no, whereupon he
joined the picket line outside of M. J.’s gate. According to
Diak, at about 2:45 p.m., he received a phone call from Ei-
leen Barry from J.D.M. who told him that his job at M. J.
was over. He was given no reason.
On Monday, August 8, Diak went to M. J.’s trailer and
was unsuccessful in getting his job back.
Luis DelaFuente testified that on or about August 2, 1994,
Johnson called him and said that he believed that Diak was
another salt from Local 46. He states that when he told John-
son that he was mistaken, Johnson replied that he found out
that Diak had recently been employed by a union contractor,
that he was an active member, and that Jaspar Mechanical
did not exist. DelaFuente testified that as a result of this con-
versation, he had his secretary check out Diak’s references
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00830 Fmt 0610 Sfmt 0610 D:\NLRB\324.101 APPS10 PsN: APPS10
831M. J. MECHANICAL SERVICES
18 The Respondent, citing Passavant Memorial Area Hospital, 237
NLRB 138 (1978), argues that even if it violated the Act in this re-
spect, it repudiated that action. I don’t agree. As noted in Passavant,
a respondent may ‘‘under certain circumstances relieve himself of li-
ability for unlawful conduct by repudiating the conduct.’’ The Board
noted that in order to be effective, the repudiation must be ‘‘time-
ly,’’ ‘‘unambiguous,’’ ‘‘specific in nature to the proscribed illegal
conduct,’’ ‘‘free from other proscribed illegal conduct,’’ that ‘‘there
must be adequate publication of the repudiation to the employees in-
volved and there must be no proscribed conduct on the employer’s
part after the publication.’’ Additionally, the Board stated that ‘‘fi-
nally . . . such repudiation or disavowal of coercive conduct should
give assurances to employees that in the future their employer will
not interfere with the exercise of their Section 7 rights.’’
and she discovered that companies listed on his application
did not exist.
According to Luis DelaFuente, at some point on August
4, 1994, he received another call from Johnson who men-
tioned the hardhat incident and also said that Diak was walk-
ing around the job soliciting the other employees. He states
that a little later, Johnson called back to say that Diak had
injured his thumb. (Johnson testified that at this point, he
recommended to DelaFuente that Diak be discharged.)
DelaFuente testified that when he spoke to Diak he told him
that he was concerned about the hardhat issue because M. J.
wanted to make a good impression with the general contrac-
tor and did not want any insurance or OSHA problems.
DelaFuente states that when Diak said it would not happen
again, he asked Diak if he was sure about the information
Diak gave on his job application and if he was affiliated with
Local 46.
DelaFuente testified that he decided to discharge Diak be-
cause he had given false information on his job application
and because he believed Diak was a ‘‘salt’’ who was en-
gaged in the same type of activity as Colon. He testified that
he knew ‘‘we were being set up for ulps.’’
The General Counsel contends that the Company violated
Section 8(a)(3) of the Act by issuing the warning to Diak on
August 4; by moving him from the third floor to the first
floor on that date; and by discharging him on August 5. He
argues that all three actions were motivated by Diak’s orga-
nizational activity on behalf of Local 46.
Insofar as the discharge is concerned, DelaFuente essen-
tially concedes that a reason for Diak’s firing was because
he discovered that Diak was a ‘‘salt’’ and that Diak was en-
gaged in the same type of union activity as Colon. (In my
opinion, the August 4 warning was clearly warranted based
on safety considerations. It is also my opinion that the Gen-
eral Counsel has not established that the 1-day transfer of
Diak from one floor to another was either an adverse action
or motivated by union considerations.)
In my opinion, the Company was correct in believing that
Diak’s union activity was the same as that engaged in by
Colon. That is, like Colon, Diak was being paid $300 per
week by the Union to work for M. J. and since he was
working at the direction and under the control of Miller, I
must assume that his activity consisted of trying to get the
nonunion employees of M. J. to quit their employment and
get jobs with companies having contracts with Local 46. Ac-
cordingly, for the same reasons cited above in relation to the
refusal of the Company to reemploy Colon, I shall conclude
that Diak, although engaged in union activity, was not en-
gaged in activity which was protected by Section 7 of the
Act. Therefore, I shall recommend that this allegation be dis-
missed.
Similarly, I shall also recommend that the interrogation al-
legation be dismissed, although the evidence establishes that
Diak was asked by both Johnson and DelaFuente about his
union affiliation. In this connection, I make this recom-
mendation because, in these peculiar circumstances, I think
that the Company had a legitimate business justification in
making the inquiry and that this outweighed the rather dubi-
ous conclusion that this interrogation would have intimidated
Diak. At the time that Diak was asked these questions, both
at his interview and after being on the job, the Union was
seeking to induce the Company’s work force to quit through
the solicitations by its ‘‘salts.’’ As I have concluded above
that this type of union activity was not protected by the Act,
I also conclude that it was not impermissible for the Com-
pany to ask questions of job applicants to determine if they
were going to be engaged in this same type of salting activ-
ity.
CONCLUSIONS OF LAW
1. By discharging Paul Colon and Steven Derleth on June
3, 1994, the Respondent violated Section 8(a)(3) and (1) of
the Act.
2. By telling Colon and Derleth on June 6, 1993, that they
could not solicit during their break periods, the Respondent
violated Section 8(a)(1) of the Act.18
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7)
4. The Respondent has not violated the Act in any other
manner as alleged in the consolidated complaint.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged em-
ployees, it must make them whole for any loss of earnings
and other benefits, computed on a quarterly basis from date
of discharge to date of proper offer of reinstatement, less any
net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
As the Company made an offer of reinstatement on June
6, 1994, which offer was accepted by Paul Colon and Steven
Derleth on June 13, it need not make a new reinstatement
offer to these two people. Moreover, the backpay period can-
not exceed the date of their return which was June 13, 1994.
Although the Company would assert that the backpay pe-
riod should be cut off as of the date of the reinstatement
offer, I think that the General Counsel is correct in his argu-
ment that the June 6 offer was tainted by the concurrent
statements by DelaFuente to these two individuals that they
would not be allowed to solicit other employees during their
breaktimes. Therefore, as it is reasonable to conclude that the
offer of reinstatement was, at least to a degree, conditioned
on Colon and Derleth agreeing to abide by an invalid no-so-
licitation rule on their reemployment, I conclude that their
initial refusal to accept the offer would not cut off their
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00831 Fmt 0610 Sfmt 0610 D:\NLRB\324.101 APPS10 PsN: APPS10
832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Under the Board’s Rules, if the subpoena is served by mail, an
additional 3 days is allowed to file a petition to quash.
2 I note that the subpoena, itself, does not give notice that a peti-
tion to quash must be filed within 5 days of service. Where as here,
the subpoena is served on a nonparty witness, there is no reason to
assume that the person would be aware of the Board’s Rules and
Regulations.
backpay as of June 6, notwithstanding their subjective intent.
Consolidated Freightways, 290 NLRB 771, 772 (1988).
[Recommended Order omitted from publication.]
APPENDIX A
ORDER QUASHING SUBPOENA
Prior to the commencement of the hearing in these cases,
the Respondent, M. J. Mechanical Services Inc., issued, on
February 2, 1995, a subpoena duces tecum to Will Astor, a
reporter for the Rochester Business Journal, Inc. This called
for him to appear and testify at the hearing and to produce:
Any and all notes, records, or recordings, including tape
or other electronic recording, which you made in prepa-
ration to write an article about M. J. Mechanical Serv-
ices, Inc. and Sheet Metal workers Local Union No. 46.
The article was published on July 22, 1994 and cap-
tioned ‘‘Union Organizer Salting Spreads at Work
Sites.’’
On March 2, 1995, Terrance P. O’Grady filed a petition
to revoke the above subpoena, claiming a ‘‘reporter’s privi-
lege’’ under the First Amendment to the United States Con-
stitution. The petition to revoke was filed more than 5 days
after service of the subpoena and therefore would ordinarily
be construed as being untimely filed under Section 102.31(b)
of the Board’s Rules and Regulations. Valley Camp Coal
Co., 265 NLRB 1683 (1982).1 Astor’s counsel argues that
because of the substantial public policy issues involved, the
time limits set forth in the Board’s Rules should not preclude
consideration of the matter on the merits.2
While it is true that a petition to quash must be timely
filed, the Board has made some exceptions where important
public policy considerations are at issue. For example, in
New Britain Machine Co., 105 NLRB 646 (1953), a sub-
poena to a state conciliator was quashed even though the mo-
tion was untimely filed. In Cashman Auto, 109 NLRB 720
(1954), enfd. 223 F.2d 832 (1st. Cir. 1955), a subpoena seek-
ing the production of records from the Massachusetts Divi-
sion of Employment Security was quashed despite the fact
that no timely petition to quash had been filed. See also
Tomlison, 74 NLRB 681, 683 (1947), and International Fur-
niture Co., 106 NLRB 127 (1953) (testimony sought from
Federal conciliators). As it is my opinion that the public pol-
icy question is substantial, I do not believe that the timeli-
ness issue should be dispositive and I shall therefore consider
the matter on its merits.
On March 7, 1995 (1 day after the hearing opened),
Thomas S. Gill, on behalf of M. J. Mechanical Services Inc.
(M. J.), filed an opposition to the motion to quash. Perhaps
recognizing that his subpoena was overly broad, Gill indi-
cated that he would only seek to compel evidence regarding
statements made to the reporter by Paul J. Colon, Steven
Derleth, and Donald Miller, the latter being the business
manager of Local 46, and the former being members of
Local 46 who are alleged in the complaint to have been dis-
criminated against by M. J. in violation of Section 8(a)(1)
and (3) of the NLRA. Gill points out that requiring the re-
porter to disclose statements made by these individuals—(he
does not know if Derleth made any statements)—would not
require the disclosure of confidential sources, as Colon and
Miller were quoted by name in the article. (Assuming
arguendo that Derleth spoke to the reporter, it is highly un-
likely that he would be construed as a confidential source.)
The consolidated complaint alleges, inter alia, that M. J.
discriminated against Paul Colon and Steven Derleth and that
it also refused to hire a group of other Local 46 members
because of their union membership and because of their ex-
pressed intention to organize M. J.’s employees. M. J. con-
tends that the Union planted Colon and Derleth under its
‘‘salting program’’ and that their primary purpose was not to
perform work for M. J. but rather to cause, by ‘‘hook or by
crook,’’ M. J., a nonunion contractor, to be thrown off the
jobsite where they were working. M. J. contends that the
other union members whom it refused to hire, were not seri-
ous applicants for work and that they too were ‘‘salts.’’
M. J. contends, among other things, that pursuant to the de-
cision in Town & Country Electric v. NLRB, 34 F.3d 625
(8th Cir. 1994), cert. granted 115 S.Ct 933 (1995), all of
these individuals were not employers within the meaning of
the Act.
The newspaper article is a description of the efforts of var-
ious unions, including Local 46, to deal with nonunion con-
tractors working in the Rochester area. It describes the dis-
pute between Local 46 and M. J. at the Bausch & Lomb
construction site. The article goes on to describe the various
unfair labor practices filed by the Union and includes re-
marks made by Colon, Miller, and company officials setting
forth their respective views of the matter. The statements at-
tributed to either side are, in my opinion, not particularly
controversial and each person quoted has testified and con-
firmed almost all of the remarks attributed to him by the re-
porter. As far as I can see, there are no statements in the arti-
cle, attributed to either Colon or Miller which, if not already
admitted, would add anything to M. J.’s defense in this case.
In essence, therefore, Gill is hoping to ascertain some other
unknown statements made by Local 46 members and rep-
resentatives, which although not reported by Astor in his arti-
cle, would be damaging to the Union’s case. This can be de-
scribed as a ‘‘fishing expedition.’’
In Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme
Court, by a five-judge majority, held that a newspaper re-
porter could not rely on the First Amendment to refuse to
testify before a grand jury regarding evidence of a crime that
he had personally observed and written about. In a concur-
ring opinion, Justice Powell indicated that the Court, while
rejecting the privilege in the case at hand, did not preclude
‘‘newsmen, subpoenaed to testify before a grand jury, are
without constitutional rights with respect to the gathering of
news or in safeguarding their sources.’’ Justice Powell noted
that the Court’s majority had stated that harassment of news-
men would not be tolerated and he went on to state that ‘‘if
the newsman is called upon to give information bearing only
a remote and tenuous relationship to the subject of the inves-
tigation, or if he has some other reason to believe that his
testimony implicates confidential source relationships without
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00832 Fmt 0610 Sfmt 0610 D:\NLRB\324.101 APPS10 PsN: APPS10
833M. J. MECHANICAL SERVICES
3 It is noted that the Court in United States v. Criden, supra, con-
cluded that a qualified privilege exists even where the party issuing
the subpoena was not seeking to compel the disclosure of confiden-
tial sources. In this regard, the Court stated:
We need not develop a precise test for the peculiar cir-
cumstances presented here, although we will venture the view
that the defendants probably should be required to prove less to
obtain the reporter’s version of a conversation already volun-
tarily disclosed by the self-confessed source than to obtain the
identity of the source itself.
4 In Valley Camp Coal, supra, the petition to quash was not timely
filed. Nevertheless, the Board decided the issue on the merits rather
than relying on its 5-day rule.
a legitimate need of law enforcement he will have access to
the court on a motion to quash and an appropriate protective
order may be entered.’’
A number of Federal courts and the Board have been
faced with this type of issue after the Supreme Court’s deci-
sion in Branzburg v. Hayes, supra. In all instances, the
Courts have construed Branzburg as giving a qualified privi-
lege to newsmen and news gathering organizations; have ap-
plied that privilege in civil and criminal cases; and have, at
least in some instances, extended this limited privilege to
cases not involving confidential sources.
In NLRB v. Mortensen, 701 F.Supp. 245 (D.C. Cir. 1988),
the court enforced a subpoena issued by the General Counsel
of the Board which required a newspaper reporter
(Mortensen) to testify in an unfair labor practice trial. The
court, while construing Branzburg as giving a degree of First
Amendment protection to news gathering, cited United States
v. Criden, 633 F.2d 346 (3d Cir. 1980), cert. denied 449 U.S.
1113 (1991), as establishing the following three-part bal-
ancing test.
First, the movant [seeking to override the privilege]
must demonstrate that he has made an effort to obtain
the information from other sources. Second, he must
demonstrate that the only access to the information
sought is through the journalist and her source. Finally,
the movant must persuade the court that the information
sought is crucial to the claim.3
In enforcing the subpoena, the court in NLRB v.
Mortensen, supra, noted that during the hearing, Respond-
ent’s agents had denied statements attributed to them by the
reporter, that these statements were not attributed to con-
fidential sources; that they were critical to the General Coun-
sel’s theory of violation; and that the reporter was merely
being asked to confirm that the statements were in fact made.
The court noted that, ‘‘[a]pplying the guidelines to the facts
of this case, the court is convinced that the reporters’ quali-
fied privilege must yield to the NLRB’s need to verify the
statements.’’ The court also noted that the NLRB had ‘‘ful-
filled its obligation to exhaust possible alternative sources of
information.’’ See also Valley Camp Coal Co., 265 NLRB
1683 (1982), where the Board refused to quash a subpoena
served on a newspaper’s business editor, where the General
Counsel sought to have him verify that certain relevant state-
ments made by the Respondent were accurately reported in
the newspaper.4
In United States v. Burke, 700 F.2d 71 (2d Cir. 1983), the
court held that a reporter had a qualified privilege in both
civil and criminal cases, stating that there are ‘‘important so-
cial interests in the free flow of information’’ protected by
the reporter’s qualified privilege and that ‘‘reporters are to be
encouraged to investigate and expose, free from unnecessary
government intrusion, evidence of criminal wrong-doing.’’ In
that case, the court quashed a subpoena directed to Sports Il-
lustrated relative to notes taken in conjunction with an inter-
view with one Henry Hill who was a principal witness in a
point shaving scheme. The court noted that the defense had
produced a wealth of impeachment evidence against Hill and
that any information that might be gleaned from the maga-
zine’s work papers would merely be cumulative and would
not defeat the privilege.
In U.S. ex Rel. Vuitton et F Fils S. A. v. Karen Bags, Inc.,
600 F.Supp. 667 (1985), an indigent defendant sought to
have a subpoena issued to CBS for the out takes from ‘‘60
Minutes’’ in an attempt to show that he was entrapped by
the Government into committing the alleged crime. The court
refused to authorize the subpoena, holding that the defend-
ant’s belief that the out takes would furnish relevant informa-
tion was ‘‘pure conjecture’’ and was a ‘‘fishing expedition.’’
As such, the court concluded that the reporter’s qualified
privilege was not overcome by the defendant’s desire to sub-
poena confidential unpublished material. See also Silkwood v.
Kert McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977),
where the court held that a freelance reporter making a docu-
mentary film (who was a nonparty witness), could claim the
reporter’s qualified privilege as to questions about his
sources. The court noted, among other things, that ‘‘it has
been concluded that compulsory disclosure in the course of
a ‘fishing expedition’ is ruled out in the First Amendment
case.’’
In U.S. v. Cutler, 6 F.3d 67 (2d Cir. 1993), Cutler, an at-
torney for Hohn Gotti, was charged with criminal contempt
for allegedly violating a district court’s order prohibiting
public comment during the criminal trial of his client. In re-
lation to his own trial, Cutler subpoenaed newspaper report-
ers and television stations who moved to quash the subpoe-
nas. In splitting the baby, the court held that reporters’ notes
and television out takes were Cutler was the interviewee
were obtainable by subpoena, since the interviews with Cut-
ler and the out takes of such interviews were precisely the
type of evidence disclosable in Branzburg, supra. However,
the court also held that unpublished reporter notes of inter-
views with government officials were not disclosable and the
subpoenas to that extent were quashed.
In the present case, I suppose that the subpoena to Astor,
insofar as it seeks to disclose alleged prior statements made
to him by Local 46 officers and members in the course of
the Union’s dispute with M. J., would meet a definition of
relevancy, broadly cosntrued. On the other hand, the remarks
attributed to the persons in the newspaper account, have ei-
ther been substantially admitted by Miller and Colon in their
testimony or are not particularly relevant to this proceeding.
Indeed, it seems to me that what Gill is seeking is not con-
firmation of the reported statements, but rather an oppor-
tunity to ask if there were any other unpublished statements
which might somehow or other help in defense of his client.
To my mind, this is a fishing expedition. As it has not been
demonstrated to me that there is likely to be information ob-
tainable through this subpoena that would be important to the
outcome of this case, I conclude that the need for the sub-
poena has not overcome the qualified reporter’s privilege.
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00833 Fmt 0610 Sfmt 0610 D:\NLRB\324.101 APPS10 PsN: APPS10