Roger D. Hughes Drywall

National Labor Relations Board - Board Decisions

Mar 31, 2005

344 N.L.R.B. 413 (N.L.R.B. 2005)

ROGER D. HUGHES DRYWALL
344 NLRB No. 49
413
Roger D. Hughes d/b/a Roger D. Hughes Drywall and
Carpenters Local 751, United Brotherhood of
Carpenters & Joiners of America. Cases 20–CA–
30729, 20–CA–30729–2, and 20–CA–30999
March 31, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On June 13, 2003, Administrative Law Judge Burton
Litvack issued the attached decision. The General Coun-
sel filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
brief and has decided to affirm the judge’s rulings, find-
ings, and conclusions only to the extent consistent with
this Decision and Order.
The complaint alleged that the Respondent violated
Section 8(a)(1) by: (a) physically assaulting two pickets;
(b) threatening to cause the arrest of a picket; and (c)
subsequently causing the arrest of that picket. We con-
clude that, because the Union was engaged in lawful area
standards picketing on public property, the Respondent,
by assaulting one picket and by threatening and causing
the arrest of another, interfered with employees’ Section
7 rights, thus violating Section 8(a)(1).
1. Facts
The Respondent, a sole proprietorship owned by Roger
D. Hughes, performs drywall work in California.
Roger’s son, Ryan, is employed as the Respondent’s es-
timator. The Respondent’s office, once a residence, is
located on a quiet cul-de-sac.
In November 2001, two union field representatives,
Joe Hart and Aaron Hadzess, began area standards pick-
eting on the sidewalks in front of, and on the side of, the
Respondent’s office. Five to 10 picketers generally pick-
eted the Respondent’s office 5 days per week. The pick-
ets were paid by the Union; none were the Respondent’s
employees. The complaint alleged four deliberate acts of
misconduct, committed by Roger and Ryan Hughes,
against individual pickets on three separate dates.
The first alleged act was a deliberate assault on picket
Eric Torguson by Roger Hughes on June 13, 2002. The
judge found that “some sort of collision” occurred be-
tween Hughes and Torguson, but discredited Torguson’s,
Hadzess’ and picket Sean Yellig’s accounts that Hughes
deliberately charged after and struck Torguson.1

1 The General Counsel does not except to the judge’s finding that
this act did not occur as alleged. Accordingly, we adopt the judge’s
recommendation to dismiss complaint par. 6(a).
The second and third alleged acts occurred on June 21,
2002. Ryan Hughes testified that, when he drove up to
the office, he observed a picket, Yellig, near the wheel
well of his father’s truck. According to Ryan, he ran
around the side of the truck, and saw Yellig zip up his
pants and a pool of urine on the ground. Yellig testified
that Ryan asked him what he was doing and that he (Yel-
lig) did not respond. Ryan testified that he then went
into the office, told his father what he had observed, and
called his attorney and the police. According to Yellig, a
few minutes later, Roger Hughes stepped outside of the
office and yelled at the picketers to stay away from his
truck. According to Hadzess, Roger Hughes came out-
side again about 10 minutes later and said he was going
to call “the cops.” At least 1-½ hours later, a police offi-
cer arrived to investigate. Yellig denied that he had uri-
nated in that spot, stating that he had earlier been granted
permission to leave the picket line to ride his bicycle to a
nearby restaurant to use the restroom. Yellig explained
to the officer that he had just returned from the restaurant
and was locking his bicycle to the guardrail when Ryan
drove up. The officer smelled the spot, and told Ryan
that he did not smell any urine. Nonetheless, Ryan in-
sisted that Yellig be arrested, and the officer accepted the
citizen’s arrest. The city attorney declined to issue a
complaint.
The judge credited Yellig’s denial that he had urinated
in the area. The judge further found that Ryan Hughes
instigated the arrest and citation of Yellig without cause.
The judge also noted that Roger Hughes did not deny
Hadzess’ testimony that he (Roger) had threatened to
have Yellig arrested. Because the judge found that Yel-
lig had not engaged in public urination, he further found
that Roger Hughes’ threat to call the police was both
without cause and a condonation of his son’s act.
The fourth alleged act occurred on November 5, 2002.2
The judge credited Hadzess’ testimony that, as he was
picketing on the sidewalk alongside William Reed, Ryan
Hughes approached Hadzess, put out his right shoulder
so as to strike Hadzess’ right shoulder, and thereby
caused Hadzess to stumble. The judge discredited
Ryan’s testimony that Hadzess and Reed had cut off his
path. The judge found that Ryan Hughes’ act was delib-
erate, unprovoked, and “nothing less than a battery
against Hadzess.”

2 The judge refers to this as the “third” act (it is the third date of al-
leged misconduct). However, it is clear from the complaint (and from
the judge’s discussion elsewhere) that the four alleged acts of miscon-
duct are: (1) Roger Hughes’ physical attack on Torguson on June 13,
(2) Roger Hughes’ threat to have Yellig arrested on June 21, (3) Ryan
Hughes’ insistence that Yellig be arrested, also on June 21, and (4)
Roger Hughes’ physical attack on Hadzess on November 5.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD414
Finally, the judge noted the backdrop against which
these acts occurred. Thus, the judge cited Hadzess’ un-
contradicted testimony that Roger Hughes swore or
cursed at the pickets while they picketed and engaged in
an “act of lewd and lascivious conduct” in full view of
the pickets in March.
2. Judge’s decision
While finding that Ryan Hughes engaged in miscon-
duct as alleged,3 the judge concluded that the Respondent
did not violate Section 8(a)(1). The judge found that the
Union’s signs demonstrated that it was engaged in “area
standards picketing,” and that “‘properly conducted area
standards picketing’ constitutes activity protected by
Section 7 of the Act.” Nevertheless, the judge explicitly
rejected the General Counsel’s theory that, because the
Union’s area standards picketing was protected, the pick-
ets were engaged in protected activity, thereby conferring
upon them a right not to be subjected to the chilling ef-
fect of witnessing, or being the object of, coercive con-
duct.
In finding no violation, the judge reasoned that none of
the precedent relied upon by the General Counsel in-
volved “employer actions, not specifically related to the
protected concerted activity, perpetrated against individ-
ual pickets or handbillers; rather, each concerns em-
ployer action directly against a labor organization con-
cerning a protected concerted activity in which the labor
organization had been involved.” In this connection, the
judge found that there was no record evidence that the
Respondent’s actions were related to, or in retaliation for,
the Union’s area standards picketing. The judge further
found that the nonemployee union representatives were
not “employees” under the Act, stating they were more
“akin to agents.” The judge stated that the Section 7
right to engage in lawful area standards picketing be-
longed to the Union, and that the pickets’ protection de-
rived from the labor organization’s right. Thus, accord-
ing to the judge, unlike an attack upon a labor organiza-
tion itself, deliberate acts of misconduct directed against
a picket, for reasons not clearly related to the protected
activity itself, do not necessarily detrimentally impact
upon the Section 7 rights of employees generally. The
judge acknowledged that misconduct directed against a
nonemployee representative could violate Section 8(a)(1)
if witnessed by employees, but found no violation here
because no employee witnessed the misconduct. Ac-

3 The judge imputed responsibility for Ryan’s acts to the Respondent
on the bases that: (1) Ryan Hughes was the Respondent’s agent, and
(2) Roger Hughes, by his threat to have Yellig arrested, condoned
Ryan’s actions as to the arrest and citation of Yellig. The Respondent
filed no exceptions.
cordingly, the judge recommended dismissal of the com-
plaint.
3. The General Counsel’s exceptions
The General Counsel excepts to the judge’s failure to
find that the Respondent violated Section 8(a)(1) by in-
terfering with the Union’s Section 7 right to engage in
area standards picketing. The General Counsel argues
that the judge failed to consider the harm a union itself
suffers when its picketers are wrongfully subjected to
threats of arrest, actual arrest, and physical assault. Ac-
cording to the General Counsel, there is no basis for the
distinction made by the judge: if, as the Board has
found, an employer’s interference with protected area
standards picketing violates a union’s Section 7 rights, it
follows that an employer also violates the Act when it
takes other actions that interfere with the picketers while
they picket. Because the picketers here were engaged in
protected area standards picketing, the picketers had a
right not to be attacked for engaging in picketing. That
protection applied despite the fact that the picketers were
nonemployee union representatives, rather than the Re-
spondent’s own employees.
The General Counsel also excepts to the judge’s fail-
ure to find that Roger Hughes’ threat to call the police
was unlawful. Citing Winco Foods, 337 NLRB 289, 293
(2001), question certified by Waremart Foods v. NLRB,
333 F.3d 223 (D.C. Cir. 2003), opinion after certified
question declined Waremart Foods v. NLRB, 354 F.3d
870 (D.C. Cir. 2004), the General Counsel argues that
the threat to call the police was tantamount to a threat of
arrest.
Finally, the General Counsel excepts to the judge’s
failure to find that Ryan Hughes’ instigation of Yellig’s
arrest and Hughes’ assault of Hadzess were not related to
the Union’s protected activity. The General Counsel
maintains that the record is replete with evidence that
both Roger and Ryan Hughes shared an “antiunion viru-
lence” that led to their acts of misconduct in retaliation
for the picketing.
4. Analysis
We find merit in the General Counsel’s exceptions.
The judge found that the picketing occurred “on the
public sidewalk outside Respondent’s office facility on
behalf of the Union” (emphasis added). The judge also
found that the picketing was area standards picketing and
was protected, concerted activity. The Respondent has
filed no exceptions and thus we treat these findings as
conclusively established. Where public property is con-
cerned, “[I]t is beyond question that an employer’s ex-
clusion of union representatives . . . violates Section
8(a)(1), so long as the union representatives are engaged
ROGER D. HUGHES DRYWALL 415
in activity protected by Section 7. . . .” Bristol Farms,
311 NLRB 437 (1993), citing Gainesville Mfg. Co., 271
NLRB 1186 (1984). Here, because the pickets were on
public property, and because they were engaged in pro-
tected, concerted activity, it follows that the Respondent
violated Section 8(a)(1) if it threatened to have, and/or
had, the pickets arrested for that activity.
Nevertheless, the judge found no violation. He relied
upon two erroneous determinations: 1) the pickets were
not employees, and (2) as to one of the pickets (Yellig),
the action taken against him was not in response to the
picketing.
As to the first point, the Union was picketing to protect
the area standards of employees whom it represented.
This is clearly activity protected by Section 7. Hadzess
and Yellig were acting as the Union’s agents in carrying
out this activity on behalf of employees represented by
the Union. The Board has found 8(a)(1) violations based
on employer’s actions such as calls to police, threats and
attempted arrests, and harassment with water sprinklers
directed against area standards picketers and union
agents without reference to whether these actions were
witnessed by any of the employer’s statutory employees.
See Corporate Interiors, 340 NLRB 732, 745–747
(2003), citing, inter alia, Bristol Farms, above. See also
Petrochem Insulation, Inc., 330 NLRB 47, 49 (1999),
enfd. 240 F.3d 26, 29 (D.C. Cir. 2001) (union’s area
standards activity on behalf of employees whom it repre-
sents is protected activity). Therefore, the Respondent’s
actions attempting to and interfering with Hadzess’ and
Yellig’s area standards picketing, by, respectively, com-
mitting battery and threatening and causing arrest, vio-
lated Section 8(a)(1) without regard to whether these
actions were witnessed by any of the Respondent’s em-
ployees.
With respect to Yellig, we note that the judge: (1)
credited Yellig’s testimony that he did not urinate; (2)
found that Roger Hughes “fabricated” the incident to
instigate Yellig’s arrest; and (3) found that Roger
Hughes’ threat to arrest Yellig and Ryan Hughes’ insis-
tence that Yellig be arrested were “without cause.”
Those findings are tantamount to a finding that the Re-
spondent’s reason for seeking Yellig’s arrest was base-
less and pretextual. Thus, we believe, a fair inference
can be drawn that the Respondent was actually attempt-
ing to interfere with the Union’s lawful picketing. See
Petrochem Insulation, Inc., 330 NLRB 47 (1999), enfd.
240 F.3d 26 (D.C. Cir. 2001), cert. denied 534 U.S. 992
(2001) (finding violation of Sec. 8(a)(1) by inferring,
based on circumstantial evidence, a retaliatory motive
behind respondent’s filing of lawsuit). Moreover, we
believe that inference is buttressed by the evidence of
both Roger and Ryan Hughes’ animosity towards the
Union’s picketing, including Roger Hughes’ swearing at
and engaging in lewd conduct in front of the pickets.
Thus, contrary to the judge, we find that the evidence
clearly establishes a causal relationship between the Re-
spondent’s conduct and the Union’s protected area stan-
dards picketing. Viewed in that context, both Roger
Hughes’ threat to call the police and Ryan Hughes’ de-
mand that Yellig be arrested violated Section 8(a)(1).4
5. Remedy
Having found that the Respondent violated the Act, the
Board must determine the appropriate remedy. Consis-
tent with our precedent and with the General Counsel’s
request here, we will order the Respondent to post a no-
tice in the Respondent’s place of business and to provide
the Union with signed and dated copies of the notice for
posting. See Winco Foods, above, 337 NLRB at 294
(approving a posting remedy even when no indication
that respondent’s employees were directly affected). In
addition, we will order the Respondent to make the Un-
ion whole with respect to the litigation costs arising out
of Yellig’s arrest, and to notify the appropriate law en-
forcement and court authorities of the illegality of the
arrest and to seek the expungement of associated records.
Schear’s Food Center, 318 NLRB 261, 267 (1995) (or-
dering that the respondent make the union representative
“whole with interest for all reasonable legal fees and
expenses incurred as a result of the arrest,” and that it
also notify the sheriff’s office and court authorities that
the Board had determined that the arrest violated the Act,
and request that the department and the court expunge
any and all records of that unlawful arrest); K Mart
Corp., 313 NLRB 50, 58 (1993); Baptist Memorial Hos-
pital, 229 NLRB 45, 46 (1977), affd. 568 F.2d 1 (6th Cir.
1977). See also Petrochem Insulation, Inc., 240 F.3d 26,
35 (D.C. Cir. 2001) (holding that the Board did not abuse
its discretion in ordering the respondent to reimburse the
unions for all legal and other expenses incurred in de-
fending against lawsuits because the award related not to
the respondent’s loss of its suit, but to the fact that the
suit itself was an illegal act).

4 Corporate Interiors, above.
An employer may, of course, seek police assistance in response to
reasonable, good faith concerns regarding picketer misconduct. Great
American, 322 NLRB 17, 21 (1996). However, in the instant case,
Ryan Hughes “fabricated” the incident to instigate Yellig’s arrest, as
distinguished from acting on a good faith, albeit erroneous, belief that
the incident occurred.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD416
ORDER
The Respondent, Roger D. Hughes d/b/a Roger D.
Hughes Drywall, Santa Rosa, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed by Section 7 of
the Act by physically assaulting, threatening to cause the
arrest of, and causing the arrest of picketers lawfully en-
gaged in area standards picketing as employees or repre-
sentatives of Carpenters Local 751, United Brotherhood
of Carpenters & Joiners of America.
(b) In any like or related matter interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Notify the Santa Rosa City Attorney’s Office and
appropriate court authorities in writing, with a copy to
the Union, that the Board has determined that Yellig's
arrest on June 21, 2002, violated the Act; request in writ-
ing, with a copy to the Union, that the City Attorney’s
Office and the court remove any and all records of that
unlawful arrest; and make Carpenters Local 751, United
Brotherhood of Carpenters & Joiners of America whole,
with interest, for all reasonable legal fees and expenses
incurred as a result of the arrest.
(b) Within 14 days after service by the Region, post at
its Santa Rosa, California, office, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 20,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted.
(c) Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respon-
dent at any time since June 21, 2002.
(d) Sign and return to the Regional Director sufficient
copies of the notice for posting by the Union, if it so

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals enforcing an Order of the
National Labor Relations Board.”
chooses, at places where it customarily posts notices to
its members and employees it represents.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT interfere with, restrain, or coerce em-
ployees in the exercise of the rights guaranteed by Sec-
tion 7 of the Act by physically assaulting, threatening to
cause the arrest of, and causing the arrest of picketers
lawfully engaged in area standards picketing as employ-
ees or representatives of Carpenters Local 751, United
Brotherhood of Carpenters & Joiners of America.
WE WILL NOT in any like or related matter interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL notify the Santa Rosa City Attorney’s Office
and appropriate court authorities in writing, with a copy
to the Union, that the Board has determined that Yellig's
arrest on June 21, 2002, violated the Act; WE WILL re-
quest in writing, with a copy to the Union, that the City
Attorney’s Office and the court remove any and all re-
cords of that unlawful arrest; and WE WILL make Carpen-
ters Local 751, United Brotherhood of Carpenters &
Joiners of America whole, with interest, for all reason-
able legal fees and expenses incurred as a result of the
arrest.
ROGER D. HUGHES DRYWALL
ROGER D. HUGHES DRYWALL 417
Michael L. Smith, Esq., for the General Counsel.
Mark D. Jordan, Esq. (Jordan, Dexter & Leonard), of Santa-
Rosa, California, for the Respondent.
Aaron Hadzess, of Santa Rosa, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. The unfair
labor practice charge in Case 20–CA–30729–1 was filed by
Carpenters Local 751, United Brotherhood of Carpenters &
Joiners of America (the Union) on June 18, 2002;1 the unfair
labor practice charge in Case 20–CA–30729–2 was filed by the
Union on June 24, 2002; and the original and amended unfair
labor practice charges in Case 20–CA–30999 were filed by the
Union on December 19, 2002, and January 17, 2003, respec-
tively. After an investigation of each of the above unfair labor
practice charges, on January 30, 2003, the Regional Director
for Region 20 of the National Labor Relations Board (the
Board) issued an amended consolidated complaint, alleging that
Roger D. Hughes d/b/a Roger D. Hughes Drywall (Respondent)
engaged in, and continues to engage in, unfair labor practices
within the meaning of Section 8(a)(1) of the National Labor
Relations Act (the Act). Respondent timely filed an answer,
denying the commission of the alleged unfair labor practices.
As scheduled by a notice of hearing, the above-stated matters
came to trial before the above-named administrative law judge
on February 18 and 19, 2003, in Santa Rosa, California. At the
trial, all parties were afforded the opportunity to call witnesses
in their behalf, to examine and to cross-examine witnesses, to
offer into the record all relevant documentary evidence, to ar-
gue their legal positions orally, and to file posthearing briefs.
Counsel for the General Counsel and counsel for Respondent
filed posthearing briefs, and documents have been carefully
considered. Accordingly, based upon the entire record herein,
including the posthearing briefs and my observation of the tes-
timonial demeanor of each of the several witnesses, I issue the
following
FINDINGS OF FACT
I. JURISDICTION
At all times material Respondent, a sole proprietorship
owned by Roger D. Hughes, has maintained an office and place
of business in Santa Rosa, California, and has been engaged in
business in the building and construction industry as a drywall
contractor. During the 12-month period ending July 31, 2002,
Respondent, in conducting its business operations described
above, performed services, valued in excess of $50,000, for
entities in the State of California, including Christopherson
Homes and Riverside Homes, which meet a Board standard for
the assertion of jurisdiction on a direct basis. Respondent ad-
mits that, at all times material, it has been an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.

1 Unless otherwise stated, all dates herein occurred during calendar
year 2002.
II. LABOR ORGANIZATION
Respondent admits that, at all times material, the Union has
been a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ISSUES
The amended consolidated complaint alleges that Respon-
dent engaged in four separate acts, violative of Section 8(a)(1)
of the Act. Thus, the General Counsel contends that Respon-
dent unlawfully interfered with, restrained, and coerced em-
ployees in the exercise of the rights guaranteed in Section 7 of
the Act by physically assaulting pickets outside of its office
facility on two occasions, by unlawfully threatening to cause
the arrest of a picket, and by unlawfully causing the arrest of a
picket. Respondent denied the commission of the alleged un-
fair labor practices, asserting that the physical contacts with
pickets were accidental in nature and that the arrest of a picket
was for cause.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A The Facts
Respondent is a sole proprietorship owned by Roger D.
Hughes and is engaged in business in the building and con-
struction industry as a drywall contractor, performing only
interior drywall, taping, texturing, and cleanup work primarily
in the north San Francisco Bay area of California. The record
establishes that Hughes is responsible for all hiring and firing,
payroll, and supervising the work of his employees2 and that,
besides Respondent’s craft employees and an office secretary,
the only other employee is Hughes’ son Ryan, who works as
Respondent’s estimator.3 In this regard, Ryan Hughes, who
maintains a personal office and desk in Respondent’s office
facility, finds available jobs, determines the amount and cost of
the materials and labor for the jobs, and prepares bids, which he
signs on behalf of Respondent, for the work.4 In addition, Ryan
is in charge of the materials inventory for Respondent and does
customer service work. While Ryan denied ever giving work
instructions to employees while his father is away on vacation
or for any other reason,5 his father contradicted him. Thus,
asked if he would swear his son never assigns work, Roger
Hughes responded, “No, I’m not saying that. He might have at
one time by me telling him or me being out of town, me telling
him to send this certain person to go do this job. He does in-
struct them on these things, but I’m the one that makes all the

2 Respondent admits Roger Hughes is a supervisor within the mean-
ing of Sec. 2(11) of the Act.
3 The amended consolidated complaint alleges, but Respondent de-
nies, that Ryan Hughes has been Respondent’s agent at all times mate-
rial herein.
4 Ryan Hughes stated that his father has altered bid proposals. Ac-
cording to Roger Hughes, his son “. . . is nothing but an estimator,”
and, if a bid is accepted by a contractor, Roger Hughes is the only
individual authorized to sign a contract for the work on behalf of Re-
spondent.
5 According to Ryan, “I don’t deal with . . . employees. I deal with
customers.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD418
decisions.”6 The record further establishes that Respondent’s
office facility is located at 100 Ridgeway Avenue in Santa
Rosa, California; that Ridgeway Avenue ends in a cul-de-sac
bordered on the east by the 101 Freeway7 and on the west by
Cleveland Avenue; that Respondent’s property is at the corner
of Ridgeway and Cleveland Avenues with one other building
between Respondent’s office facility and the end of the cul-de-
sac;8 that the latter building is separated from both streets by an
8 ft. sidewalk; that on the east side of Respondent’s office facil-
ity on Ridgeway Avenue is a driveway, which runs from the
street back to the rear of the building; that a grass lawn, which
begins at the edge of the driveway, covers the area between the
sidewalks on Ridgeway and Cleveland Avenues and the build-
ing itself; and that a paved walkway, which bisects the front
lawn, runs from the sidewalk on Ridgeway Avenue to the front
door of the office facility.
The record reveals that Union field representatives, Joe
Hart and Aaron Hadzess, commenced an area standards inves-
tigation of Respondent after encountering it on a model homes
construction project in Santa Rosa in early November 2001 and
that the Union’s area standards investigation consisted of
speaking to Respondent’s employees, obtaining pay stubs from
them, and comparing their rates of pay and benefits with those
set forth in the Union’s master labor agreement for drywall
work performed in Northern California and with the rates of
pay and benefits of employees employed by the only union
signatory drywall contractor in Sonoma County. After the
Union’s agents convinced themselves that the rates of pay and
the benefits paid to Respondent’s employees were beneath the
Union’s area standards, those set forth in the above master la-
bor agreement, representatives of the Union commenced pick-
eting on the sidewalks in front and on the side of Respondent’s
office facility later in November 2001. The record further re-
veals that said picketing is on-going and is usually conducted 5
days a week from 7 or 8 in the morning until 1 or 2 in the after-
noon and that the pickets, who usually number between 5 and
10,9 carry identical signs, reading “R.D. Hughes [does] not pay
standard wages established by Local 571 . . . in this area.”10

6 Roger Hughes conceded he passes on instructions to employees
through his son—“That could happen,” but “I don’t know a specific
time what you are talking about.”
7 A 4 or 5 ft. high guardrail separates the cul-de-sac from the free-
way, which is a heavily traveled north/south highway.
8 The other building is a private residence, owned by Jack Tilton, a
self-described semiretired shoe repair worker. From the street, Re-
spondent’s office facility resembles a private residence.
9 Aaron Hadzess and Joe Hart have been in charge of the picketing,
and one or both is always present. None of the pickets are employees
of Respondent, and the, individuals, who are engaing in the picketing,
are paid for their services by the Union.
10 While the Union engaged in picketing in front of Respondent’s of-
fice facility, it also engaged in handbilling at several jobsites on which
employees of Respondent were working. In this regard, at the hearing,
union agents termed this informational handbilling and identified four
handbills, which were distributed. One mentions the instant amended
consolidated complaint against Respondent, two contain the Union’s
assertion that Respondent is paying its employees wages and benefits
below the area standard, and one discusses the filing of an allegation of
The instant matters concern four alleged deliberate acts of
misconduct, committed by Roger Hughes and Ryan Hughes
against individual pickets. At the outset, while conceding that
there have been verbal exchanges between Roger Hughes and
the pickets, including himself, “on a fairly regular basis,”
Aaron Hadzess testified that, on occasion, he has heard Roger
Hughes “swearing or cursing” at the pickets while they have
marched in front of Respondent’s office facility. Hadzess fur-
ther testified regarding an alleged act of lewd and lascivious
conduct, committed by Roger Hughes in full view of the pick-
ets, one day in March. According to him, while standing in the
driveway of his office facility, Hughes reached into his pickup
truck and pulled out a black jacket with “Local 571” printed on
the back, and “then, while holding the jacket in his right hand,
he [exposed his penis] and he rubbed the jacket all over it.”
Hughes failed to deny the occurrence of such an incident. In
any event, the first alleged unlawful incident herein occurred on
June 13. Eric Torguson, an individual who has engaged in
picketing on behalf of the Union for many years, testified that
he was picketing in front of Respondent’s office facility that
day along with Hadzess, Hart, Sean Yellig, and Valerie
Vasquez and that, at approximately 9 a.m., he became aware of
a verbal confrontation between Hart and Roger Hughes. Ac-
cording to Torguson, at the time he became aware of the con-
frontation, Hughes was on Respondent’s front lawn, turning off
the sprinkler system, the control valves for which are located in
the corner of the lawn and close to the driveway, and Hart, who
had been marching in front of Torguson toward the driveway,
had stopped walking and was standing near the walkway to the
front door. Both men were cursing at each other, and “. . .
Hughes was saying that he would like to see more good-
looking women come to the line and then I said ‘Don’t say that.
[It] would be considered sexual harassment of some kind.’”
Hughes replied with an expletive, and Torguson retorted, say-
ing Hughes was now harassing him and asking him to stop
cursing at him. Apparently paying no attention to Torguson’s
request, Hughes continued cursing at him, and, after calling
Torguson “a pansy,” began running diagonally across the grass
toward the picket. With Hughes 15 to 20 feet from him, Torgu-
son11 noticed Hughes moving toward him, turned toward
Cleveland Avenue, and, “because I was afraid he was coming
after me,” began “moving fast” in that direction. Without look-
ing behind him and after taking no more than “half a dozen”
steps,12 Torguson suddenly felt his picket sign being knocked
from his shoulder and “. . . some kind of a karate chop or slap
. . . from behind.” He stumbled but recovered his balance
without falling and observed Hughes walking in the street to-
ward his truck after striking him.

“indecent exposure” against Roger D. Hughes and a police report on
such an incident.
11 Torguson had his hands in his sweater pockets. He held his picket
sign in his left hand, with the handle in his left sweater pocket and the
sign across his left shoulder.
12 Torguson was contradictory on this point, stating during direct ex-
amination, he had not yet taken a step toward Cleveland when the bat-
tery occurred and stating, during cross-examination, he had taken at
least six steps.
ROGER D. HUGHES DRYWALL 419
Two other witnesses assertedly corroborated Torguson's ac-
count of the alleged intentional assault and battery against him
by Hughes. Aaron Hadzess testified that, at approximately 9 or
10 in the morning, the pickets13 were all marching in front of
Respondent’s office when Roger Hughes walked outside and
onto the paved walkway and called to Joe Hart, saying he
should get more “good-looking bimbos” to picket. He added
that he meant to say “women” and wouldn’t mind the picketing
then. Hart replied, accusing Hughes of engaging in sexual
harassment, and Hughes responded, saying “fuck you, Joe” and
there was nothing Hart could do about it. Then, according to
Hadzess, Hughes began walking toward the sidewalk, turned
right, and continued walking toward the driveway where his
truck was parked. He turned into the driveway, “and I believe
he either got something out of the cab of the truck or he opened
up the back of his truck which has a . . . solid cover on the
back.” Torguson, who was waking in front of Hadzess, sud-
denly yelled to Hughes that he should stop using such language
because it could be considered sexual harassment, and Hughes
replied, “Fuck you, punk.” At this point, Hughes “. . . turned
around and started walking along the sidewalk . . . towards the
pathway. And, at that time, Eric Torguson was probably 7 or 8
ft. in front of Mr. Hughes,” moving in the same direction with
his back to Hughes. Variously describing Hughes either as
“moving quickly” or “running” toward Torguson and with “his
fists clenched . . . and his arms . . . swinging a bit,” Hadzess
asserted he was forced to move out of his way or be “run into”
by Hughes. Then, catching up to Torguson, who was unaware
of the onrushing Hughes, the latter “. . . swung [his right hand]
at Eric . . . in an attempt to move him out of the way. Mr.
Hughes with his closed fist [struck Torguson’s] left shoulder,
hitting the picket sign into Torguson’s head and his fist went
off his right shoulder and hit Torguson in the back of the neck.
Eric stumbled and Mr. Hughes . . . had reached his pathway and
into the office and, swearing and cursing, went into the of-
fice.”14 During cross-examination, Hadzess embellished his
account, now describing Hughes as walking quickly in pursuit
of Torguson with “. . . his head down like a charging bull.”
Also, Sean Yellig, who has picketed in front of Respondent’s
office facility for the Union since January, testified that he wit-
nessed the incident, stating that he was picketing that morning
along with Joe Hart, Torguson, Hadzess, and Valerie Vasquez.
At approximately 8 a.m., according to Yellig, Hughes appeared
on the front steps of his office facility and yelled to Hart, who,
along with the other pickets, was on the sidewalk in front of the
building, “. . . that we should hire more good-looking women to
do the picketing.” Hart replied, asking Hughes to stop sexually
harassing the pickets. Hughes replied with “fuck you” and
“things to that effect,” and then “Roger Hughes waked down
. . . the passage way leading from his office, which crosses the
sidewalk where we were picketing, through the driveway and

13 Besides himself, Hadzess recalled Torguson, Hart, Dave O’Reilly,
Martha DeLeon, Valerie Vasquez, and others picketing that morning.
14 According to Hadzess, he was just 2 or 3 feet away from Torguson
when Hughes struck him. He added that, as a result of Hughes’ impact,
Torguson was “spun around” and, almost falling, he had to be caught
by another picket.
out into the street.” However, in his diagram of the incident,
Yellig depicted Hughes as going down the front steps, moving
diagonally across the front grass, and crossing the sidewalk into
the street. Whatever direction in which he moved, upon return-
ing to the sidewalk, Hughes cut in front of Yellig, who was
facing him, and approached Torguson, who was facing Cleve-
land Avenue, from behind.15 Hughes pushed Torguson’s picket
sign aside and “. . . sort of hit him, pushed him in the neck. . . .
It was not the hardest punch I have ever seen, but it was cer-
tainly a violent thrust” and “forceful.”
While conceding an incident did occur, Roger D. Hughes
portrayed it as an accidental event. As to what occurred,
Hughes testified that, on the day of the incident, he drove his
truck down Cleveland, turned into Ridgeway, and parked it
against the guardrail at the end of the cul-de-sac, “which I do
quite often.” Then, “I got out of my truck, walked from there
over to the driveway” and “went up the approach of my drive-
way.” He then turned right onto the sidewalk, and “I started
down the sidewalk to walk down to my office.” As he did so,
Joe Hart was “maybe 10 feet” from him, and “I said to Joe if
had more pickets like this lady here . . . that I wouldn’t mind.”
At this point, Sean ______, who was walking in front of
Hughes in the same direction and carrying a picket sign, said
“That’s sexual harassment. Don’t talk to the lady like that.
And I told him `to get fucked.’” Sean then suddenly turned
around to the right to face Hughes, and, as he did so, “he had
his picket sign in his left hand” and “. . . he hit me in the head
with the sign.”16 Upon being struck, Hughes “. . . pushed him
and said, `. . . watch . . . what you’re doing here. . . .’ Then I
walked up and went into my office.” According to Hughes, “I
don’t think that he knew he was as close as he was when he hit
me when he turned around. I don’t think he deliberately did it,
but he hit me with the sign and I was annoyed. There was no
blows . . . that was the end of it.” Hughes specifically denied
quickening his pace as he moved towards Torguson—“I sure
don’t get in a hurry to go after a Union guy.” However, during
cross-examination, Hughes contradicted himself when asked
why Torguson hit him, “It looked to me like he was frustrated
with the yelling and cussing at him . . . . and I was walking
behind him.”
The second alleged unlawful incident occurred 8 days later
on June 21, and involved the arrest and citation of a picket,
Sean Yellig, for a misdemeanor offense, urinating in public, at
the instigation of Ryan Hughes. The latter testified that, on the
morning of the day of the incident, which, he believed, oc-
curred in July or August, he drove his own red Chevrolet truck
into the Ridgeway Avenue cul-de-sac and parked directly be-
hind his father’s truck, which was parked at the end of the road
and facing the 101 Freeway.17 “[A picket] was standing at the
wheel well and I was wondering what he was doing and I
jumped out real quick and he turned around and saw me and he

15 Yellig was certain that Torguson was carrying his picket sign
across his right shoulder.
16 During cross-examination, Hughes recalled that Sean turned
“quickly” to the right.
17 In his diagram of the scene, Hughes placed the company van as
parked just to the right of his father’s truck and also facing the freeway.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD420
zipped his pants up. And I ran around the other side of the
vehicle and I walked up there and there was a big [puddle] of
urine on the floor . . . and it stunk.” Ryan added that he ob-
served the picket standing at the left front of his father’s truck,
which was parked 6 to 8 feet from the guardrail and that, when
the picket observed him park and open his door, “he zipped up
his pants and walked around [the front of his father’s truck] and
went . . . in between the two vehicles . . . and back over to
where everybody was walking.” After examining the urine
puddle, which he described as bubbly and 16 to 20 inches in
diameter,18 Ryan Hughes walked inside Respondent’s office
and informed his father of what he had just observed, tele-
phoned Respondent’s attorney, and telephoned the Santa Rosa
police. During cross-examination, Ryan contradicted himself
with regard to what he witnessed when he parked, confirming
that he observed a urine stream coming from the picket but that
“I didn’t see his penis or anything.” Ostensibly offering cor-
roboration for Ryan Hughes’ account of Sean Yellig’s misfea-
sance was Jack Tilton, the owner of the house next to Respon-
dent’s office facility. Tilton, who spends most of his time in
his front room, which has a picture window with a unobstructed
view of Ridgeway, reading the newspaper, watching television,
and tending his three cats, testified that he has observed the
Union’s picketing and that, one morning in March at approxi-
mately 10 or 11 in the morning, he saw a picket urinating “over
there by the [guardrail] . . . facing the highway.”19 Tilton added
that cars and trucks were parked facing the guardrail, and the
picket standing “in front of one of the [vehicles] . . . .” Later,
according to him, police arrived, and “I went out and talked to
them just out of curiosity;” however, he just said hello, did not
ask any questions, and failed to volunteer any information re-
garding what he had witnessed.20 Finally, Tilton described the
picket as being a male, tall, wearing “bedraggled” clothing, and
having long hair.21 During cross-examination, asked when his
attention was drawn to the picket, Tilton explained that “. . .
nobody’s ever at [the end of the cul-de-sac]. And when any-
body moves out there, I notice it because I have an old cat that
goes out and lays on a chair and strangers scare the cat. . . . She
runs and I can’t get her to come in, so I’m always watching
because I’m watching for her.”
Responding to the call, Santa Rosa police officer, Kenneth
Johnson, arrived at 100 Ridgeway at 10:18 that morning. As he
turned into the cul-de-sac, he observed approximately seven
pickets on the sidewalk in front of the building at the above
address. Johnson went up to the door of the building, asked for
Ryan Hughes, and the latter came outside. According to John-

18 According to Hughes, the urine puddle was next to but not touch-
ing the left front tire of his father’s truck.
19 Tilton stated that the picket was directly in front of the guardrail
when he urinated.
20 Tilton believed the police officer seemed bored by the investiga-
tion. Also, while Tilton stated that a police officer went to the location
of the alleged urinating, he denied that the officer kneeled down in an
effort to test for the smell of urine.
21 Tilton stated that the picket has since altered his appearance in
“the last few months,” and that the man now “. . . was all cleaned up.
His hair was . . . combed nicely.” Tilton also stated that the picket had
a bicycle.
son, Hughes “. . . explained to me that he came back and as he
parked his truck he saw one of the picketers over next to his
other vehicle which is parked . . . right at the guardrail . . . .
And he saw the picketer . . . zipping up his pants. He showed
me what he thought was a puddle of urine in the pavement in
front of the truck.”22 In order to ascertain the nature of the
“spot,”23 Johnson “. . . kneeled down to smell . . . to see what it
smelled like,” but “. . . it was a pretty hot day, so the most all I
could really smell was hot pavement.”24 Arising, Johnson “. . .
explained to Mr. Hughes that I didn’t see any or didn’t smell
any urine,” Hughes said he wanted the picket arrested, and, as
such was Hughes’ right, Johnson agreed to do so on that basis.
The person, whom Hughes pointed to as the perpetrator, was
Sean Yelling, and Johnson walked over to where he was picket-
ing. Yellig denied the allegation, saying that he had no need to
do what he was accused of doing as he had just gone to a
nearby restaurant in order to use its bathroom. Nevertheless,
inasmuch as Hughes insisted, Johnson issued a citation for
public urination to Yellig.
As he did to police officer Johnson, while testifying, Sean
Yellig specifically denied urinating anywhere on Ridgeway
Avenue that morning. He testified that he rode his bicycle to
the location of the picketing, parked it at the end of the Ridge-
way Avenue cul-de-sac on the far side of the guardrail, and
began picketing at approximately 7 a.m. Approximately 45
minutes later, feeling the urge to urinate, he requested permis-
sion to leave the picket line, rode his bicycle to Adell’s Restau-
rant, which is located a half-mile from the cul-de-sac, relieved
himself, and returned to Ridgeway Avenue. As he had done
earlier, he parked his bicycle by lifting it over the guardrail at
the end of the cul-de-sac and locking it. According to Yellig,
this was in plain view of anyone in the area.25 He added that
there were several vehicles parked at the end of the cul-de-sac
with the closest being Roger Hughes’ black Chevrolet pickup,
which was 10 ft. from the guardrail, and that “after I finally
finished locking up my bike . . . Roger Hughes’ son drove up
and parked his . . . red truck . . . behind the other parked cars.”
Hughes’ son climbed out of his truck and asked, “‘[W]hat are
you doing near my father’s truck?”’ Yellig testified that he did
not respond and merely returned to his picketing duties. A few
minutes later, he added, Roger Hughes stepped out of his office
building and yelled, ‘“[S]tay the fuck away from my truck. . . .
if I find anything wrong with [it], you’re going to pay.” He

22 In his police report, Johnson states that he only observed Yellig
zipping up his pants. Contrary to Ryan Hughes, as Johnson diagramed
the scene, two trucks were parked head-in to the guardrail and next to
each other. He identified the one closest to the sidewalk as Ryan’s and
the one to its left as a van. The spot of the alleged urine puddle was
between the van and the guardrail and on the right side of the van.
23 Johnson described the spot as being one-half to 2 inches in diame-
ter—”a discoloration in the pavement; a little bit darker than the rest of
the pavement.”
24 From his job duties as a police officer, Johnson was familiar with
the smell of urine. Also, I note that Johnson noted in his police report
that Ryan Hughes reported the incident as occurring at approximately 9
a.m. and that he (Johnson) investigated the alleged residue of the urine
puddle at least 1-1/2 hours later.
25 Yellig stated that it takes “three minutes” to dismount from the
bike, lift it over the guardrail, and lock it, which is a two-step process.
ROGER D. HUGHES DRYWALL 421
then went back inside, immediately stepped outside again, and
shouted to Yellig “. . . that his son had videotaped me urinating
in the street.” Joe Hart then pulled him aside and asked if what
Hughes said was true, and Yellig denied it.
Union Agent Hadzess corroborated Yellig’s version of what
occurred. According to him, Yellig did ask permission to leave
the picket line that morning in order to use the bathroom at
Adell’s Restaurant and did ride his bicycle there. He returned
15 minutes later and parked his bicycle across the guardrail at
the end of the cul-de-sac. Hadzess testified that he clearly ob-
served Yellig lifting his bike and placing it on the other side of
the guardrail and that he was paying attention because Ryan
Hughes had just turned into the cul-de-sac from Cleveland at
the same time and parked behind another vehicle 10 to 12 feet
from where Yellig was locking his bicycle. Hadzess further
testified that Hughes “. . . exited his vehicle and for . . . just a
moment looked in the direction of Sean Yellig, turned . . . and
walked quickly . . . directly into [Respondent’s] office.” Then,
a half an hour later, Roger Hughes came outside and yelled to
Joe Hart, ‘“You can’t have your guys pissing on the bushes
over there.’” Both union agents denied that any of the pickets
had engaged in such conduct, and Hughes went back into his
office. Ten minutes later, he again came outside and “. . . he
said that he was going to call the cops. And we said okay. He
also said that “I have it on camera I had cameras on you guys
24 hours a day, seven days a week . . . .’” Hughes failed to
deny what Hadzess attributed to him. With regard to the cita-
tion for public urination, which was issued toYellig, there is no
dispute that the Santa Rosa City Attorney declined to issue a
complaint or prosecute the charge against Yellig. Further, there
is record evidence that the Union incurred legal expenses, con-
sisting of billing from its attorneys for defending Yellig.
The third incident of alleged unlawful conduct, which in-
volved Aaron Hadzess and Ryan Hughes, occurred on Novem-
ber 5. According to Hadzess, he was picketing outside of Re-
spondent’s office facility that day along with William Reed,26
Randy Stewart, Martha DeLeon, and one or two others, and, at
approximately 8:30 in the morning, he observed Ryan Hughes
turn into Ridgeway in his “red Chevy” pickup truck and turn
again into Respondent’s driveway. Hadzess testified that he
looked at Hughes long enough to notice he had “jumped” out of
his truck but then turned his head to say something to Reed.
“All of a sudden I noticed sort of in peripheral vision a move-
ment and I sort of hunched or anticipated in surprise, and . . . I
was struck on the right shoulder and spun around and I regained
my footing and saw Ryan Hughes . . . about halfway up the
walkway . . . moving relatively quickly” toward the office front
door. Hedzess added that, at the time of contact, he was walk-
ing several feet from the edge of the grass in front of the office
and that he did not know which part of Hughes’ body struck
him. William Reed, who has picketed on behalf of the Union
in front of Respondent’s office facility since October, testified
that he witnessed physical contact between Hadzess and an
individual, later identified for him as Ryan Hughes, in the first
week of November. According to him, at the time of the inci-
dent he had been walking with Hadzess toward Respondent’s

26 Reed was picketing alongside him.
driveway—“We had just passed the walk to [Respondent’s]
office when [Roger Hughes’] son drove into the driveway. We
were talking about something that we have in common . . . .
when [the son] got out of the truck. We wasn’t really paying
any attention to him until he come around from his truck . . . .
And he was walking . . . like he was going to a fire.” Reed
further testified that he and Hadzess were walking on the part
of the sidewalk closest to the grass lawn with the latter on his
right and that he really began paying attention to Hughes when
“. . . he was coming on our side of the walk” 6 or 7 feet away
from them. “At the time I realized he was going to hit Aaron,
he could have went on the grass, but when he got up to
Hadzess, he just put out his shoulder . . . and hit . . . Aaron with
his shoulder, the right shoulder against Hadzess’ right shoulder
and knocked Aaron back.” Further, Reed described the contact
as “a fairly hard hit” and intentional as Hughes might have
avoided the contact by stepping onto the grass or by walking
around the pickets on the sidewalk. During cross-examination,
Reed stated that he has often noticed Hughes walking hurriedly
and that, on this occasion, he seemed to be in an “exceptional
hurry,” walking faster than on most days. Further, asked
whether he and Hadzess could have avoided the contact, Reed
replied, “Well, I suppose I could have done that . . . . if we
would have jumped to the side, we could have avoided con-
tact,” but “. . . we didn’t know [Hughes] was going to hit
[Hadzess].”
Ryan Hughes conceded that such an incident occurred but
portrayed it as being, at least, an accident and, at most, the fault
of the pickets. According to him, at approximately noon that
day, he pulled into the Ridgeway cul-de-sac and, as no vehicles
were in the driveway, he turned into it and parked his truck.
Carrying a binder in which he had a set of plans in one hand,
“. . . I got out and I walked around my truck and I came to the
sidewalk and I started heading on the far sidewalk to go up the
path.”27 As Ryan walked on the sidewalk, Aaron Hadzess and
another picket, an “older man,” were in front of him, walking
towards him, and they “. . . were walking at an angle and came
on this side of the walk. And as we walked . . . . I kind of
looked down and it was kind of like a shoulder bump. So I
kind of slowed down. I didn’t like really understand why that
happened but I decided not to cause a scene. And I just walked
up the path . . . .” Hughes added that Hadzess and the other
picket had been at the street side of the sidewalk and were
walking on an angle, moving toward the grass side, and “I just
kind of glanced off for a minute and then I looked up and
someone was right there with an arm kind of up.” According to
Hughes, the two pickets “. . . came right at me and cut off my
path.”28
B. Legal Analysis
As set forth above, the General Counsel alleges Roger
Hughes’ assault and battery against Eric Torguson, Ryan

27 He meant the side of the sidewalk closest to the grass. He added
that he did not cut across the lawn as “there are bushes” and, if one
desires to cross the lawn, “you have to climb over the bushes.”
28 There is no record evidence that any employees of Respondent or
any other employer were present and witnessed any of the four inci-
dents, alleged as unfair labor practices herein.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD422
Hughes’ battery against Aaron Hadzess, Roger Hughes’ threat
to call the police regarding his assertion that Sean Yellig had
engaged in public urination, and Ryan Hughes’ act of causing
the arrest of Yellig for urinating in public were each violative
of Section 8(a)(1) of the Act. Clearly, whether any of the
above alleged acts and conduct were violative of the Act de-
pends, in great part, upon my resolution of the credibility of the
respective witnesses. In this regard, I initially turn to the
Hughes/Torguson incident and note that, while Roger D.
Hughes failed to impress me as being an entirely veracious
witness and was inconsistent in his version of the incident, the
witnesses, on behalf of the General Counsel (Torguson,
Hadzess, and Yellig) were equally unpersuasive, contradicted
each other, and were internally inconsistent in their versions of
what occurred. Thus, while Torguson and Hadzess described a
verbal exchange between the former and Hughes prior to the
latter’s alleged assault and battery against Torguson, Yellig
mentioned only the words between Joe Hart and Hughes;
Hadzess failed to corroborate Torguson that Hughes denomi-
nated him “a pansy;” and, while Torguson described Hughes as
moving toward him by “running diagonally across the grass,”
Hadzess diagramed Hughes as coming from his truck, which
was parked in the driveway, and on the sidewalk as he “moved
quickly” toward Torguson and Yellig pictured Hughes as either
walking down the walkway from the front steps or down the
front lawn, crossing the sidewalk and going into the street,
turning and again stepping back onto the sidewalk, and ap-
proaching Torguson. Also, contradicting Torguson, who stated
he was aware Hughes was coming toward him and, as a result,
turned and started walking in the opposite direction away from
the latter, Hadzess testified that Torguson was unaware Hughes
was coming after him, and, while Torguson and Hadzess de-
scribe the former as holding his picket sign with his left hand
and carrying it across his left shoulder, Yellig was certain
Torguson was carrying the sign across his right shoulder. Fur-
ther, Torguson was internally inconsistent in his version of the
incident, stating, during direct examination, after seeding
Hughes coming toward him and turning toward Cleveland
Avenue, he had yet to take a step before being struck by
Hughes, and, during cross-examination, he stated he had taken
at least half a dozen steps before being struck. Likewise,
Hadzess testified inconsistently as to the pace at which Hughes
moved after Torguson—describing him variously as walking,
walking quickly, moving quickly, running, and, finally, moving
like a “charging bull.” Based upon the foregoing, while I am
certain that, after a verbal exchange between them, some sort of
collision between Roger Hughes and Eric Torguson occurred in
the morning of June 13, I am unable to credit either Torguson,
Hadzess, or Yellig and find that Hughes deliberately charged
after and struck Torguson. Accordingly, inasmuch as the es-
sence of the allegation of paragraph 6(a) of the amended con-
solidated complaint is a deliberate physical attack upon Torgu-
son by Hughes and as I do not believe the credible record evi-
dence supports such a finding, I shall recommend dismissal of
said allegation.
With regard to Santa Rosa police officer Johnson’s June 21
arrest and citation of Sean Yellig, for public urination, at the
behest of Ryan Hughes, I did not find the demeanor of the lat-
ter, while testifying, to be that of a candid and forthright wit-
ness. In particular, I note the glaring inconsistency between his
direct and cross-examination testimony as to what he assertedly
observed with regard to Yellig as he parked his truck behind his
father’s truck on that morning. Thus, according to his direct
examination testimony, Hughes observed Yellig by the left
front wheel of his father’s car with his (Yellig’s) back turned
but had no idea what he was doing and became aware of the
picket’s actions only when Yellig “. . . turned around and saw
me and he zipped his pants up.”29 However, during cross-
examination, Hughes patently embellished his story, stating
that, while he could not see the Yellig’s penis, he did observe a
urine stream pouring from the picket’s body. Moreover, while
Hughes asserted that the puddle of urine, which he discovered,
was rather large, 16 to 20 inches in diameter, the dark “spot” on
the pavement, which he pointed out to police officer Johnson as
the remnant of the puddle, was no more than a half inch to 2
inches in diameter, and the Santa Rosa police officer failed to
detect any odor of urine. Further, while Jack Tilton ostensibly
corroborated Hughes, the former, in fact, contradicted him,
stating that what he observed was a picket urinating over the
guardrail at the end of the Ridgeway cul-de-sac. Also, assum-
ing what Hughes observed occurred at the left front wheel of
the truck, owned by Roger D. Hughes, given the fact that two
vehicles obscured and essentially blocked his view of Yellig’s
alleged misconduct, Tilton could not possibly have seen what
occurred from inside his house with his attention disrupted by
his omnipresent three cats.30 In the foregoing circumstances, I
believe Ryan Hughes dissembled in both his statement to the
Santa Rosa police and in his testimony during the instant hear-
ing and is not worthy of credence herein. In contrast to the
disingenuous Hughes, Sean Yellig impressed me as being a
more candid witness, and I credit his denial of having urinated
in the Ridgeway Avenue cul-de-sac on June 21. Therefore, I
find merit to the General Counsel’s contention that Ryan
Hughes instigated the arrest and citation of Yellig by the Santa
Rosa police without cause. Finally, in the above regard, Roger
D. Hughes failed to deny Aaron Hadzess’ testimony that, prior
to the arrival of police officer Johnson later that morning, he
came out of the office facility and threatened to have Yellig
arrested for urinating near his truck. Inasmuch as I do not be-
lieve that Yellig engaged in such misconduct, Hughes’ threat
was without cause.
Regarding the Ryan Hughes/Aaron Hadzess incident on No-
vember 5, the demeanor, while testifying, of the latter appeared
to be that of the more frank and straightforward witness.
Moreover, William Reed, who impressed me as being an honest
witness, corroborated Hadzess. Accordingly, I find that, during
the morning on the above date, Hughes drove his pick-up truck
into the driveway of Respondent’s office facility, exited his car,
walked hurriedly down the driveway, turned left onto the side-

29 This is the same story Hughes told to police officer Johnson.
30 Despite his age and apparent disinterest in the outcome of these
matters, Tilton did not impress me as being a truthful witness. In par-
ticular, I am troubled by his admitted failure to inform police officer
Johnson about what he allegedly observed. His excuse for not doing so
does not ring true, and his failure to do so, in my view, speaks volumes
about his veracity.
ROGER D. HUGHES DRYWALL 423
walk at a time when Hadzess and Reed, who were picketing
alongside each other, were walking toward the driveway on the
side of the sidewalk closest to the grass. I further find that,
rather than avoiding the two pickets, Hughes moved toward
them directly in their path, lowered his right shoulder, and col-
lided with the right shoulder of Hadzess, who had been paying
no attention to the onrushing Hughes, causing the Union agent
to stumble and almost fall to the ground. Having considered
the record as a whole, I am convinced that Ryan Hughes’ act
was deliberate and unprovoked and it was nothing less than a
battery against Hadzess.
While I have concluded that Ryan Hughes falsely accused
Sean Yellig of urinating in public and thereby instigated his
arrest and citation by the Santa Rosa police without cause and
that Hughes deliberately collided with Aaron Hadzess while the
latter was picketing in front of Respondent’s office facility, the
issue remains as to whether responsibility for Hughes’ acts may
be imputed to Respondent. Put another way, did Ryan Hughes,
as alleged, act as Respondent’s agent? In this regard, counsel
for the General Counsel primarily relies upon the Board’s deci-
sion in Scotts IGA Foodliner, 223 NLRB 394 (1976). Therein,
the Board concluded that, notwithstanding that he worked for
another company, the son of the owner of a family-owned busi-
ness was an agent of the respondent within the meaning of Sec-
tion 2(13) of the Act. Id. at 400–401. However, the agent’s
relationship to the owner was not the sole factor considered by
the Board, and, among the other factors considered, were that
the son regularly performed work at one of the respondent’s
stores, that employees were aware of the familial relationship,
and that the son’s alleged unlawful acts were similar to those
committed by supervisors and committed in concert with them.
Id. Likewise, in South Shore Pontiac, 203 NLRB 928 (1973),
the Board concluded that the son of the owner of the respondent
was its agent within the meaning of Section 2(13) of the Act,
and among the other factors considered by the Board were the
son’s job as a salesman for the respondent; his job duties,
which consisted of opening mail, making bank deposits, and
answering customer complaints, and his authority to execute a
document, on behalf of the respondent, agreeing to the location
of a representation election. Herein, in addition to acting as
Respondent’s estimator, Ryan Hughes maintains an office with
a desk in Respondent’s office facility, is in charge of Respon-
dent’s materials inventory, performs customer service work,
and, according to his father, transmits work instructions to Re-
spondent’s craft employees in his father’s absence. In these
circumstances, especially noting his familial relationship to his
father, who operates Respondent as a sole proprietorship, his
actions as a conduit of information for employees, and the re-
cord as a whole, I believe that, at all times material herein,
Ryan Hughes acted as Respondent’s agent, within the meaning
of Section 2(13) of the Act. Einhorn Enterprises, 279 NLRB
576 at 576 (1986); IGA Foodliner, supra. Moreover, with re-
gard to the arrest and citation of the picket Yellig, I view Roger
Hughes’ threat to have Yellig arrested as condonation of his
son’s actions, rendering him responsible for them. East Texas
Motor Freight, 262 NLRB 868, 871 (1982). In this regard, I
note that, according to Ryan, he spoke to his father immediately
upon entering Respondent’s office after parking his car and that
Roger Hughes threat to inform the police and Ryan Hughes’
demand that Yellig be arrested and cited occurred shortly there-
after. Accordingly, in the above circumstances, I find that Re-
spondent has been, and continues to be, responsible for the
above-described acts and conduct of Ryan Hughes.
Having found that, on June 21, Roger D. Hughes threatened
the arrest of Sean Yellig without cause and a Santa Rosa police
officer issued a citation, for public urination, to Sean Yellig at
the behest of Ryan Hughes, who fabricated the incident and
that, on November 5, Ryan Hughes deliberately collided with
Aaron Hadzess at a time when the latter was picketing and
paying no attention to the onrushing Hughes, the issue, of
course, is whether Respondent’s acts and conduct were viola-
tive of Section 8(a)(1) of the Act. Initially, in this regard, I
agree with counsel for the General Counsel that a labor organi-
zation has a legitimate interest in protecting the employment
standards, which it has negotiated, from the unfair competitive
advantage, which would be enjoyed by an employer whose
labor costs are less than those of signatory employers and that
“properly conducted area standards picketing” constitutes activ-
ity protected by Section 7 of the Act. Sears, Roebuck & Co. v.
Carpenters, 436 U.S. 180 (1978); Petrochem Insulation, Inc.,
330 NLRB 47, 49 (1999); Giant Food Markets, Inc., 241
NLRB 727, 729 (1979). Herein, the signs, which have been
carried by the Union’s pickets who are marching on the side-
walk in front of Respondent’s office facility on Ridgeway Ave-
nue, protest the wage rates, which Respondent pays to its em-
ployees and which, the Union contends, are beneath its area
standard, and, thus, the Union’s picketing was clearly for the
area standards objective of “. . . protecting the economic terms
of employment, enjoyed by the employees [it represents].”
Petrochem Insulation, Inc., supra.31 Based upon the above-
described legal principle, counsel for the General Counsel prof-
fers the legal theory, for finding Respondent’s acts and conduct
violative of the Act that, inasmuch as the Union’s area stan-
dards picketing was protected by Section 7 of the Act, the indi-
viduals, who engaged in picketing on behalf of the Union and
who were themselves employees within the meaning of the Act,
likewise engaged in conduct, protected by Section 7 of the Act,
and that, therefore, they “. . . were entitled in their own right
not to be subjected, as they were, to the chilling effect of wit-

31 In his posthearing brief, counsel for Respondent contends that the
Union’s agents failed to perform the “prerequisite investigation” to
determine what the true area standard was. However, the record evi-
dence is that union agents Hadzess and Hart viewed pay stubs for Re-
spondent’s employees and compared their wage rates to those set forth
in the Union’s master labor agreement for the northern California area,
and the Board has determined that such an investigation is sufficient to
establish the legitimacy of a labor organization’s assertion that an em-
ployer does not meet its area standards. Carpenters (Douglas Co.), 322
NLRB 612 fn. 2 (1996). Further, counsel asserts that the handbills,
which were distributed by the Union at jobsites on which Respondent
worked, rather than protesting area standards were designed to inflame
the employer and harm its reputation in the community. However,
contrary to counsel, at least two of the handbills did, in fact, contain an
area standards message, and Respondent presented no evidence that the
messages, set forth on the other handbills, was false. Thus, the Board
had issued a complaint against Respondent, and Roger Hughes failed to
deny the lewd conduct, attributed to him, at the hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD424
nessing or being the object of clearly coercive [conduct].” In
this regard, counsel notes that the 2(3) definition of employee
includes all employees and not just those of any particular em-
ployer. Eastex, Inc. v. NLRB, 437 U.S. 556 (1978). Having
carefully considered it, I believe counsel’s legal theory, under-
lying the alleged violations of the Act, is without merit.
At the outset, I note that none of the Board and court deci-
sions, upon which the General Counsel relies, involve employer
actions, not specifically related to the protected concerted activ-
ity, perpetrated against individual pickets or handbillers; rather,
each concerns employer action directly against a labor organi-
zation concerning a protected concerted activity in which the
labor organization had been involved. Thus, in Winco Foods,
Inc., 337 NLRB 289 (2001), Indio Grocery Outlet, 323 NLRB
1138 (1997), and Bristol Farms, 311 NLRB 437 (1993), em-
ployers attempted to exclude groups of nonemployee represen-
tatives of unions from engaging in area standards picketing or
consumer handbilling on their respective properties. Further, in
Petrochem Insulation, Inc., supra, and, in BE & K Construction
Co., 329 NLRB 717 (1999), employers filed lawsuits to enjoin
unions from engaging in area standards picketing; in Diamond
Walnut Growers, 312 NLRB 61 (1993), the employer filed a
retaliatory lawsuit for libel against a union involving the latter’s
promotion of a consumer boycott against the employer; and, in
Dahl Fish Co., the employer filed a lawsuit against a union in
retaliation for the latter’s filing of an unfair labor practice
charge against the employer. Given that labor organizations
exist for the purpose of representing employees, such coercive
employer conduct, directly against labor organizations and
related to protected activities in which the labor organizations
may be engaged, clearly and symbolically detrimentally inter-
feres with the rights of employees, who are represented by the
affected unions, and those of other employees “even if those
individuals’ interests are not congruent with, and even may be
antithetical to, the interests of the [represented employees]
. . . .” BE&K Construction Co., supra at 935. In contrast, the
instant matters concern Respondent’s acts and conduct against
individual pickets, one employee/agent of the Union and the
other a “nonemployee representative,” who was compensated
by the Union for picketing, and there is no record evidence that
any of Respondent’s acts were directly related to, or in retalia-
tion for, the Union’s area standards picketing.32 Moreover,
contrary to the General Counsel, other than Joe Hart and Aaron
Hadzess, rather than working as employees, within the meaning
of Section 2(3) of the Act, the nonemployee representatives,
who have engaged in picketing on the public sidewalk outside
Respondent’s office facility on behalf of the Union, are more
akin to agents, hired and paid for one specific purpose—
picketing. On this point, I note that, in its decisions, the Board
consistently refers to such individuals as “representatives” or

32 While there is record evidence suggesting that Respondent’s atti-
tude toward the picketing generally was rather supercilious and antipa-
thetic, there is no specific record evidence of motive underlying Re-
spondent’s alleged unlawful acts and conduct. While, of course, I
recognize that motive is irrelevant for establishing alleged violations of
Sec. 8(a)(1) of the Act, I note that counsel for the General Counsel
spent considerable time exploring Respondent’s attitude toward the
Union and its picketing.
“agents” of the picketing or handbilling union and never as its
employees or as employees in the generic sense. Winco Foods,
Inc., supra at 292; Indio Grocery Outlet, supra at 1138 and
1141–1142; Bristol Farms, supra at 437–438; Payless Drug
Stores, 311 NLRB 678, 679 (1993). Also, in this regard, I note
that the Section 7 right to engage in lawful area standards pick-
eting belongs to the Union, and that, while a labor organiza-
tion’s pickets obviously are engaged in the protected activity,
their protection, under the Act, is derivative of the labor organi-
zation’s Section 7 right. In these circumstances, unlike an at-
tack upon the labor organization itself, I can see nothing sym-
bolic about an act directly perpetrated against a picket for rea-
sons not clearly related to the protected activity itself. Accord-
ingly, contrary to the General Counsel, I do not believe that the
nonemployee union representatives, who have engaged in the
instant area standards picketing on behalf of the Union, are
employees, within the meaning of Section 2(3) of the Act, al-
ways “entitled in their own right not to be subjected . . . to the
chilling effect of witnessing or being the object of clearly coer-
cive [conduct],” or that deliberate acts of misfeasance, perpe-
trated directly against such nonemployee union representatives
necessarily detrimentally impact upon the Section 7 rights of
employees generally.33
Notwithstanding the foregoing, I do believe that, in certain
circumstances, deliberate misconduct, directed against nonem-
ployee representatives, who are engaged in protected concerted
activities on behalf of a labor organization, may constitute con-
duct violative of Section 8(a)(1) of the Act. Thus, the Board
and the courts have held that, when witnessed by one or more
employees, coercive acts directed at the above-described indi-
viduals, are violative of the Act. In this regard, in NLRB v.
Village IX, Inc., 723 F.2d 1360, 1365 (7th Cir. 1983), while
leafleting outside of a plant near employees, agents of the re-
spondent attacked a representative of a Union; in Batavia Nurs-
ing Inn, 275 NLRB 886, 889 (1985), immediately prior to the
counting of ballots after a representation election, while em-
ployees were present, the attorney for the respondent punched a
representative of the union; in Kelco Roofing, 268 NLRB 456,
463 (1983), in the presence of employees at the entrance to the
plant, the respondent’s president repeatedly bumped a union
agent, who was soliciting employees to sign authorization
cards; and, in Martin Arsham Sewing Co., 244 NLRB 918, 922
(1979), during a strike in the presence of employees, the owner
of the respondent struck a union agent in the head with his fist.
I believe that, in order for the Board to have concluded that the
above-described coercive acts and conduct were unlawful, a
necessary element of proof in each of the above cases was the
presence of the respondent’s employees at the time of each
coercive act. Thus, the gravamen of the unfair labor practices
found in the above Board decisions is that “. . . onlooker[s]
would likely infer from the [coercive acts] that the employer[s]

33 I recognize that, in Indio Grocery Outlet, supra, the respondent
demanded that police arrest a picket, who refused to leave its property,
and that the Board found this to be violative of Sec. 8(a)(1) of the Act.
However, the respondent’s demand that police arrest the individual was
directly related to its demand that the Union cease picketing on its
property.
ROGER D. HUGHES DRYWALL 425
would also retaliate in some fashion against an employee who
supported the union.” Batavia Nursing Inn, supra at 891.
Herein, no such conclusion may be drawn as, notwithstanding
the deliberate and, perhaps, coercive nature of Respondent’s
acts and conduct, none of its employees or employees of any
other employer were present and witnessed what occurred. In
these circumstances, I do not believe that Respondent’s acts,
however intentional, calculated, and reprehensible, constituted
unfair labor practices, within the meaning of Section 8(a)(1) of
the Act, and I shall, therefore, also recommend dismissal of
paragraphs 6(a), (c), and (d) of the amended consolidated com-
plaint.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent committed no unfair labor practices.
[Recommended Order for dismissal omitted from publica-
tion.]