Sundance Construction Co.

National Labor Relations Board - Board Decisions

Jun 30, 1998

325 N.L.R.B. 1013 (N.L.R.B. 1998)

1013
325 NLRB No. 188
SUNDANCE CONSTRUCTION MANAGEMENT
1 The Respondent’s three motions all relate to complaint allega-
tions that we find, in agreement with the judge, should be dismissed.
Accordingly, we deny the Respondent’s motions as moot.
2 In his motion to strike, the General Counsel contends that, under
Sec. 102.46 (d)(1) and (2) of the Board’s Rules, the Respondent
should have filed a single answering brief. Instead, the Respondent
filed both a ‘‘response’’ to the General Counsel’s exceptions and a
‘‘brief in support of response.’’ Therefore, the General Counsel
moves to strike the ‘‘response.’’
Although the Respondent’s submissions do not strictly conform to
the requirements of the Board’s Rules, they are not so deficient as
to warrant striking. Accordingly, we deny the General Counsel’s mo-
tion.
3 The General Counsel has excepted to some of the judge’s credi-
bility 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.
4 Although the judge dismissed all of the General Counsel’s alle-
gations of unlawful interrogations, he made no specific findings con-
cerning the allegation that supervisor Pearce unlawfully interrogated
employee Maxwell on November 4, 1994. No exceptions were filed
to the failure to find this interrogation.
In adopting the judge’s dismissal of Sec. 8(a)(1) allegations con-
cerning threatening picketing employees with arrest and issuing a
warning to and threatening employee George Maxwell with layoff,
we do not rely on the judge’s analysis of Operating Engineers Local
49 v. NLRB (Struksnes Construction Co.), 353 F.2d 852 (D.C. Cir.
1965), on remand 165 NLRB 1062 (1967). Struksnes does not apply
in this case inasmuch as the Respondent did not conduct a poll of
its employees’ union sentiments. 5 All dates are in 1994, unless otherwise specified.
Sundance Construction Management, Inc. and Boise
Carpenters. Case 27–CA–13549
June 30, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX
AND LIEBMAN
On April 18, 1997, Administrative Law Judge Fred-
erick C. Herzog issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief, in
which the Charging Party joined, and the Respondent
filed a response and supporting brief, and a Motion to
Reopen Record to Admit Additional Evidence, Motion
to Extend Time to Reopen and Motion to Strike.1 The
General Counsel filed, and the Charging Party joined,
a motion to strike the Respondent’s response, an oppo-
sition to the Respondent’s motions, and a brief in reply
to the Respondent’s responding brief.2
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,3 and con-
clusions4 only to the extent consistent with this Deci-
sion and Order.
1. On July 18, 1994,5 the day after employee
George Maxwell took a day off for his daughter’s sur-
gery, Supervisor Dan Jafek asked Maxwell whether he
had attended the union-sponsored ‘‘Solidarity Picnic’’
held the day before. Maxwell replied that he did not,
but that he would have if he had known about it. The
judge found that Jafek’s question contained no express
or implied threat of reprisal and concluded that the
conversation was nothing more than ‘‘polite small talk
between work colleagues.’’ Accordingly, he concluded
that the Respondent did not unlawfully interrogate
Maxwell in violation of Section 8(a)(1). The General
Counsel and Charging Party except to the judge’s dis-
missal of this allegation.
We disagree with the judge and find that the interro-
gation violated Section 8(a)(1). Maxwell was not a
known union adherent at the time of the interrogation.
By asking whether Maxwell attended the Solidarity
Picnic, Jafek was obviously attempting to find out if
Maxwell was sympathetic to the organizational cam-
paign then in progress. Further, it was the supervisor,
not the employee, who initiated the union discussion.
Under these circumstances, we find that Jafek’s inquiry
into Maxwell’s union sympathies had a reasonable
tendency to interfere with, restrain, and coerce him in
the exercise of his Section 7 rights, and thus violated
Section 8(a)(1).
2. On October 30, Supervisor Dan Weatherbie asked
employee Maxwell how many of the Respondent’s em-
ployees supported the Union; Maxwell responded that
approximately 80 percent supported the Union.
Weatherbie advised him to be careful because, when
he had been involved with a union, ‘‘3,000 would vote
to go on strike and only 3 would show up.’’ The judge
found that Weatherbie’s statement was not a violation
of Section 8(a)(1). The General Counsel and Charging
Party except to the judge’s dismissal.
We disagree with the judge and find that Weatherbie
unlawfully interrogated Maxwell. Maxwell was still
not known as an open and active union adherent at the
time Weatherbie questioned him. Weatherbie’s ques-
tion and remark were not prompted by anything that
Maxwell had said; rather, the exchange was initiated
by the supervisor. Further, as in Cumberland Farms,
307 NLRB 1479 (1992), the fact that Weatherbie
asked for information about the union activity of the
entire unit, not just Maxwell’s own union activity, is
a factor militating in favor of finding the interrogation
to be unlawful. Considering all the circumstances, we
find that the Respondent’s second interrogation of
Maxwell had a reasonable tendency to interfere with,
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1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The judge dismissed the allegations that the Respondent interro-
gated Maxwell in this manner ‘‘in June and again in October,’’ but
he made no specific findings concerning the alleged June interroga-
tion. We find it unnecessary to pass on the judge’s dismissal of the
allegation concerning the June 1994 questioning of Maxwell, be-
cause the finding of such an additional violation would be cumu-
lative and would not affect the Order.
7 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.’’
restrain, and coerce him in the exercise of his Section
7 rights, and thus violated Section 8(a)(1).6
3. On November 7, when Maxwell was on the pick-
et line at the Albertson’s Meridian store with other em-
ployees, Weatherbie told Maxwell that he was ‘‘dis-
appointed’’ in Maxwell and that he thought Maxwell
‘‘knew better.’’ The judge found that, rather than dis-
couraging Maxwell’s union activities, Weatherbie ex-
pressed his disappointment that Maxwell was not at the
Burley jobsite, as promised, keeping an eye on a prob-
lem supervisor. The General Counsel and Charging
Party except to the judge’s dismissal.
We disagree with the judge, who apparently over-
looked the fact that Maxwell’s absence from the Bur-
ley jobsite was due to his participation in an activity
protected by Section 7 and Section 13 of the National
Labor Relations Act. We find that Weatherbie’s ex-
pression of disappointment in Maxwell’s participation
in protected activity, and the suggestion that Maxwell
should have been at work instead, reasonably could be
understood as a threat of reprisal for supporting the
strike. See NLRB v. McCullough Environmental Serv-
ices, 5 F.3d 923, 930 (5th Cir. 1993) (supervisor un-
lawfully threatened employee with reprisals by telling
him that the company would ‘‘look down’’ on him and
everyone else that ‘‘went union.’’). Accordingly, we
find that Weatherbie’s statement at the picket line vio-
lated Section 8(a)(1).
ORDER
The National Labor Relations Board orders that the
Respondent, Sundance Construction Management, Inc.,
Boise, Idaho, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Coercively interrogating any employee about
union support or union activity.
(b) Threatening any employee with reprisal for en-
gaging in protected concerted activities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post
at its Boise, Idaho facility, copies of the attached no-
tice marked ‘‘Appendix.’’7 Copies of the notice, on
forms provided by the Regional Director for Region
27, 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. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since July 18, 1994.
(b) 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 the Respondent has taken to com-
ply with this Order.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT coercively interrogate you about sup-
port for or activities on behalf of Boise Carpenters, or
any other labor organization.
WE WILL NOT threaten you with reprisal for engag-
ing in protected concerted activities.
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.
SUNDANCE CONSTRUCTION MANAGE-
MENT, INC.
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1015SUNDANCE CONSTRUCTION MANAGEMENT
1 Subsequently amended July 12, 1996.
2 Unless otherwise indicated, all dates refer to the year 1994.
3 Also subsequently amended on July 12, 1996.
Michael W. Josserand, Esq., for the General Counsel.
Merrily Munther, Esq. (Penland Munther Boardman, Char-
tered), of Boise, Idaho, for the Respondent.
Alan Herzfeld, Esq. (Nevin, Kofoed & Herzfeld), of Boise,
Idaho, for the Charging Party.
DECISION
STATEMENT OF THE CASE
FREDERICK C. HERZOG, Administrative Law Judge. This
case was heard by me in Boise, Idaho, on August 6, 7, 8,
and 9, 1996, and is based on charges filed by Boise Car-
penters (the Union) on January 9, 1995,1 alleging generally
that Sundance Construction Management, Inc. (Respondent),
committed certain violations of Sections 8(a)(1), (3), and (4)
of the National Labor Relations Act (the Act).2 On February
28, 1995, the Regional Director for Region 27 of the Na-
tional Labor Relations Board (the Board) issued a complaint
and notice of hearing3 alleging violations of Section 8(a)(1),
(3), and (4) of the Act. Respondent thereafter filed a timely
answer to the allegations contained within the complaint, de-
nying all wrongdoing.
All parties appeared at the hearing, and were given full
opportunity to participate, to introduce relevant evidence, to
examine and cross-examine witnesses, to argue orally and
file briefs. Based upon the record, my consideration of the
briefs filed by counsel for the General Counsel and counsel
for Respondent, and my observation of the demeanor of the
witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, carries on its commercial
and industrial construction business at its facility in Boise,
Idaho, where it admittedly annually derives gross revenues in
excess of $50,000 from the sale and shipment of goods to
points outside the State of Idaho.
Accordingly, I find and conclude that Respondent is now,
and at all times material has been, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that
the Union is now, and at all times material has been, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The amended complaint alleges that on or about October
30, Respondent interrogated employees regarding their sup-
port for the Union and other protected activities, and threat-
ened employees with reprisal for supporting the Union and
engaging in protected concerted activities. It is further al-
leged that Respondent laid off two of its employees, George
Maxwell and Mike Fuls, for engaging in a strike that took
place the week of November 6, 1994, and has since failed
and refused to reinstate the two. Respondent denies that these
events ever occurred.
B. Facts
Respondent is a commercial building contractor, employ-
ing an average of between 40 to 50 hourly employees. Its
construction business sends its employees to jobsites all
around the Boise area, doing many different types of work.
The work can range from a simple addition to a structure,
to construction of a new office building, to interior renova-
tion of a building. To accommodate its needs, Respondent
employs people with a wide range of skills. At the end of
a project, if Respondent has no further need for an employee,
he or she is laid off, perhaps to be recalled later when more
work is available. This is typical of the construction industry,
which is project-oriented in nature.
The average workers employed by Respondent tend to be
either carpenters or general laborers. Carpenters have general
skills in carpentry and are expected to provide some of their
own tools. The general laborers do concrete work, such as
pouring and forming. Over these employees are the foremen.
Foremen open up the project trailers and the jobsites in the
mornings, set the employees into different work crews and
direct them in the performance of their particular task. In
charge of the entire project is the superintendent, the person
responsible for a project. The supervisors contact the various
subcontractors with a schedule of the project, and then dis-
cuss how the project will be completed and the time frame
in which the project will be completed. The supervisors also
schedule materials and manpower. Most projects will also
have various subcontractors who have bid for portions of the
project onsite.
Respondent, like the other construction companies in the
Boise area, is not unionized. Karl Klokke, the president and
CEO of the Company, testified that he runs the Company on
a merit basis, with each employee negotiating individually
for his or her wages. While seniority is a consideration in
determining layoffs when they occur, it is not the only factor.
Job performance and ability also rank fairly high in the deci-
sion. Because there is no union, employees with issues may
take them to their foreman or superintendent, and if not re-
solved there, occasionally the superintendent may approach
Klokke about an issue. Klokke testified that he thought em-
ployees should be able to come and see him if they had
problems, and not be forced to go through third persons, i.e.,
a union representative.
Because none of Respondent’s competitors were union-
ized, Klokke felt it would be at a harsh disadvantage were
it [the Company] to become unionized before the rest of the
companies in the Boise valley. Klokke expressed doubt that
the Company could survive.
Prior to the summer, these concerns were nonexistent.
There had been no talk of an organizational drive. But then
rumors began to circulate that the Boise Carpenters were
going to attempt to organize approximately 26 construction
companies in the Boise area, including Respondent. A ‘‘Soli-
darity’’ picnic was held on or about July 18, presumably to
garner support for the Union, and make employees aware of
their options. At this point, there was still no large-scale ef-
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1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fort being made to organize Respondent. Around the first of
October, however, Respondent was contacted by Tom
Hazzard, of the Idaho Employers’ Council. Hazzard had vis-
ited a union meeting and apparently seen employees of Re-
spondent in attendance. Hazzard indicated that, should Re-
spondent choose to enlist his services, he could provide in-
formation and guidance on how to deal with the situation of
possible organization of the Company: how management was
to handle any confrontations, what the Company could and
could not do according to the law, and what each party’s
rights were under the law. By this time, Respondent was
aware that the possibility of unionization was more than just
a rumor, and hired Hazzard as a consultant. Hazzard contin-
ued to advise management of its options with regard to its
actions. This continued for a little more than a month.
On November 6, three employees, Mike Fuls, Chaney
Stotts, and John McMenemy, apparently acting as spokesmen
for other employees of Respondent, approached Klokke and
handed him a sealed envelope. Although the men did not say
what the envelope contained, it was clear that demands from
employees were being presented. Fuls testified that they had
delivered a petition signed by carpenters in the Boise valley
(of Respondent and other companies), and that it had called
for an increase in wages and benefits. He also testified that
they told Klokke the same petition was being delivered to all
26 companies, and that Respondent had not been singled out.
The meeting among the four men was cordial, Klokke testi-
fying that he told the men it was their right to go on strike,
and the men saying it was not personal and that they appre-
ciated working for Respondent. Klokke went back to his of-
fice and the three men left. There was apparently no verbal-
ized discussion of demands. Rather, the men simply deliv-
ered the envelope to Respondent. Klokke turned the un-
opened envelope over to Hazzard, who also did not open it.
Klokke testified that he never received any formal demands
from the Union.
That day, those three employees and four other employees
of Respondent, including George Maxwell, went on strike.
They, and employees from other companies, struck several
jobsites, including one of Respondent’s, the Albertson’s in
Meridian. They remained on strike the entirety of the work
week. The following Monday, the seven men presented
themselves back at Respondent’s office, and announced they
were unconditionally returning to work. Respondent had not
hired outside labor during their absence, but had moved its
remaining employees around the various ongoing jobs to
compensate for the shortage of the seven workers. Respond-
ent shuffled the company replacements back to their prestrike
locations, the seven men returned to work and the Company
resumed normal operation.
On December 12, Respondent terminated Fuls and laid off
Maxwell. Neither was ever recalled to work for Respondent.
C. Discussion
Initially, Respondent’s employees must have been engaged
in the exercise of Section 7 rights, or the remainder of the
charges must fail. Here, the Section 7 activity in question oc-
curred when the seven men walked off their various jobsites
and joined the strikers from other companies at picketing
sites at Hewlett Packard, Albertson’s in Meridian, and other
targeted locations.
Next, it is established that Respondent had knowledge of
those activities. While Respondent stated that it had not been
presented with any formal demands from the men, that is ir-
relevant. However, it had been given the sealed envelope the
day the strike began, but did not choose to open it. Respond-
ent deliberately chose to blind itself to the demands. Re-
spondent had also managed to come into possession of a
handbill from one of the union support meetings. The hand-
bill indicated that the Union wanted a salary and benefits
package totaling $22.50 an hour. There was therefore an un-
derstanding on Respondent’s part as to the general nature of
the Union’s demands. These demands and the striker’s con-
certed activity for ‘‘mutual aid or protection’’ put the strikers
squarely within their Section 7 rights. It therefor appears
clear from the facts, and indeed is not disputed, that the
seven men who engaged in the strike were covered by Sec-
tion 7.
Fuls was terminated, and Maxwell was laid off, within 1
month of a strike in which both had participated.
The General Counsel alleges that Respondent discharged
them because of its antiunion animus, their participation in
the strike, and their prounion stance, thus raising the 8(a)(3)
claim. Respondent denies any wrongdoing on its part in let-
ting the two discriminatees go and asserts that the men’s’
prounion sentiment was not a factor in its decision. Respond-
ent further claims both men would have been fired anyway
based on their record of mistakes on the job, and that the de-
cision to let them go was made months in advance of the
strike.
Thus, it is clear that the governing law in this case is
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982). There, the
Board announced the following causation test in all cases al-
leging violations of Section 8(a)(3) or violations of Section
8(a)(1) turning on employer motivation.
––First, the General Counsel must make a prima facie
showing sufficient to support the inference that pro-
tected conduct was a ‘‘motivating factor’’ in the em-
ployer’s decision.
––Second, upon such a showing, the burden shifts to
the employer to demonstrate that the same action would
have taken place even in the absence of the protected
conduct.
The United States Supreme Court approved and adopted
the Board’s Wright Line test in NLRB v. Transportation
Management Corp., 462 U.S. 393, 399–403 (1983).
In this case I conclude that the General Counsel has made
a prima facie case that both men were discharged because of
their participation in protected activities, including the strike
of a few weeks preceding their terminations. That timing,
taken together with Klokke’s statements of the harm that
would befall Respondent if the men succeeded in their pro-
tected efforts to unionize his Company, are sufficient unto
themselves to make out the elements of such a case.
Thus, I find that this case is one to which Wright Line has
application.
Accordingly, I now turn to the issue of whether or not Re-
spondent has succeeded in its efforts to prove that the two
men would have been discharged in any event, even absent
their engagement in protected activities.
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1017SUNDANCE CONSTRUCTION MANAGEMENT
The issues of the case are essentially factual. The credibil-
ity of both the General Counsel’s and Respondent’s wit-
nesses and the facts they have testified to are of paramount
importance, especially as major conflict between the testi-
monies exists. The demeanor of the witnesses that I observed
during the hearing, as well as the facts they attested to, deter-
mine my findings of fact on the disputed events of this case.
Respondent has pointed to a series of mistakes and prob-
lems with both discriminatees to account for its actions. In
the cases of both men, Respondent’s complaints refer to ac-
tions both recent and months old. That Respondent would,
within 1 month of a strike in which both discriminatees par-
ticipated, finally decide to let them both go from the Com-
pany bears a closer look. The timing of Respondent’s deci-
sion certainly seems suspiciously questionable, in light of the
fact that it had tolerated the two’s actions for quite some
time, until their sympathy for and involvement with the
Union’s organizing efforts became known. For when dis-
charges involve ‘‘key’’ employees in an organizational drive,
such discharges may take on the substance of an 8(a)(3) vio-
lation. NLRB v. Davidson Rubber Co., 305 F.2d 166 (1st Cir.
1962).
In response to this, Respondent asserts the decision to get
rid of Fuls and Maxwell was made prior to the two men
walking the picket line at Albertson’s. Respondent points to
numerous complaints from both supervisors and fellow work-
ers of the two men as forming the basis for its decision.
Only if substantiated, will Respondent have successfully car-
ried its affirmative defense under Wright Line that the two
men would have been terminated anyway, regardless of their
protected activity.
D. Discharge of Fuls
Fuls was terminated on December 12. Reasons given for
his termination ranged from a ‘‘poor attitude,’’ to a bad work
ethic, to a general inability to function smoothly with others
in a work setting. Of course, an employee’s ‘‘bad attitude’’
has been taken as being synonymous with a prounion atti-
tude. Marion Steel Co., 278 NLRB 897 (1986). To overcome
the inference that Fuls and his ‘‘attitude’’ were targeted be-
cause of his union sympathies, Respondent must present very
convincing evidence to the contrary, especially with regard
to its peculiar timing in deciding when to finally take action
on Fuls.
To meet this challenge, Respondent presented a veritable
parade of its supervisors who testified as to their problems
both with Fuls and the quality of his work.
Fuls, a carpenter in the Boise valley since 1986, began
working for Respondent in June 1993. During the time of his
employment with Respondent, Fuls worked at a number of
jobsites as a journeyman carpenter. The jobs included the
Nampa Housing Authority project, Idaho City project,
Shari’s Restaurant in Meridian, Reel to Reel Theater, the
Albertson’s at Overland and Five Mile, Country Club job,
the 911 job, the Albertson’s in Meridian, the Envirosafe job,
and the VA lunchroom kitchen remodel job. Fuls primarily
worked with concrete and rebar. The concrete work involved
pouring slabs, sidewalks, stemwalls, and footings. Respond-
ent’s supervisors testified they found fault with almost each
of Fuls’ performances of these various skills. In addition to
work-related mistakes made on the job, were accounts of in-
subordination and disruption of work crews.
Jon Anderson, a supervisor, credibly testified to several in-
cidents involving Fuls. Around August 1993, Anderson testi-
fied to problems with Fuls and his attitude with respect to
getting along with other employees. Fuls was abrasive to
other members of the work crews, creating friction with his
rude comments and sarcasm. This behavior continued, and in
January, Anderson was forced to give Fuls a written rep-
rimand to the effect that Fuls’ ability to work with others
was ‘‘less than adequate,’’ which Fuls signed. Fuls acknowl-
edged the need to be more cooperative with his fellow work-
ers in order to facilitate a smooth working relationship.
Dan Jafek, also a supervisor, credibly testified that he had
problems with Fuls’ work on the Nampa Housing Authority
project. He testified that Fuls improperly set up a concrete
slab pour, such that the resulting grade was too high. Fuls
used the wrong stakes to prepare the pour, and the setup had
to be redone. Further, Fuls was instructed how to set some
steel posts for a trash enclosure, yet the final job was incor-
rect, according to Jafek.
Details on these mistakes were provided by two stipula-
tions concerning Rick Winn, entered by the parties.
The first stipulation set out that Winn would testify that
Fuls was left with instructions to set up the forms for a
keyway, part of an addition onto a garage. When Winn re-
turned, the slab was set up so that it was completely back-
wards. The forms had to be reset, as did the metal strip,
which took an extra one and a half hours. Winn did it him-
self as soon as he saw the error, as the concrete trucks were
on the way to do the pour. Fuls admitted that the keyway
was not correct, but testified that Winn had fixed his error
in 10 or 15 minutes.
The second stipulation on Nampa and Winn concerned a
problem with footings for the trash enclosure, the steel posts
Jafek referred to. Winn found that all the trash enclosure
footings had been installed eight inches too high. An adjust-
ment to the block and caps had to be made for appearance’s
sake, and 16 man-hours were spent correcting that error.
Winn would also have testified that Fuls was an ‘‘abrasive
person, loud, obnoxious and arrogant,’’ and that he asked
Weatherbie not to send Fuls out to any more of his jobs.
Fuls said he was not aware of any problems about the trash
enclosure, which is different than testifying that there were
no problems.
In reference to the Envirosafe job, Weatherbie credibly
testified that Maxwell said Fuls had the crews upset and that
he was being disruptive to their work procedures. There was
also a stipulation that should Doug Zamzow testify, he would
testify that Maxwell came to him on the Envirosafe job and
detailed problems with Fuls. Fuls’ attitude and work habits
were causing ‘‘resentment and hard feelings in the other
crew members.’’ Maxwell wanted the office to know so that
‘‘corrective action could be taken.’’ Fuls testified that he was
not aware of any problems on the job except for his attitude,
and that after the discussion with Anderson, the rest of the
job was without incident. Weatherbie also testified that Max-
well said he did not want Fuls on his work crews on the 911
job, which started in June, because he was ‘‘disruptive.’’
Craig Hisaw, a fellow worker, credibly testified that he ex-
perienced difficulty with Fuls’ attitude and willingness to
work in the early part of November. The two had traveled
to Marsing to correct some work on a concrete slab at the
Citizens Utility Project. Hisaw testified that upon reaching
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1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 At several points in his testimony, Hickam was unable to restrain
vociferous outbursts of animosity directed at Respondent.
the work site, they poured the concrete. Then they went to
lunch. Upon returning to the site, Hisaw began trowelling the
concrete to finish the job. Fuls would not get out of the van
to help complete the concrete work. Fuls stayed in the van
until Hisaw was approximately three quarters of the way fin-
ished. Then Fuls alighted from the van, fixed a fence, helped
do some edging of the slab, and asked to leave early. Hisaw
related the incident to Weatherbie, and told him that Fuls
would not be welcomed at any more of Hisaw’s jobsites.
This, incidentally, was prior to the strike.
Jafek, a supervisor for the Idaho City project, credibly tes-
tified that he asked Fuls to go to the jobsite and do a con-
crete pour. According to Jafek, Fuls laughed and said he
would not go, and that Jafek could get someone else to do
the work. Jafek testified that at this point, he ‘‘had no use’’
for Fuls anymore, due to this type of disobedience. Fuls de-
nied the entire incident, claiming he had never refused to
work for anyone.
A stipulation regarding the Boise City Housing Authority
and testimony by Coates was entered. Coates would have
testified that one entire section of the sidewalk Fuls poured
had to be demolished and redone. Fuls testified he was never
reprimanded in connection with this job.
There was a stipulation that should Joel Hartman testify,
he would detail problems with Fuls in the summer of 1994.
Hartman was in charge of the concrete work being done on
the VA lunchroom kitchen remodel job. Fuls apparently
‘‘would not accept direction from him.’’ Hartman then spoke
to Anderson and told him that if Fuls would not accept direc-
tion from him, Hartman wanted him gone from the job. Fuls
testified that Hartman never told him of any problems.
One final stipulation with respect to Fuls and the quality
of his work was entered. Dale Frazell was a supervisor on
the Reel to Reel Theaters, the last job that Fuls worked on
while employed by Respondent. Frazell would have testified
that the work assigned to Fuls was performed in an average
manner, except for two jobs. First, Fuls apparently set an in-
correct concrete slope for drainage, which resulted in water
flooding the theater. Second, the fire doors were installed up-
side down, which voided their warranties. Fuls denied having
installed the doors upside down, claiming that the labels
were put at the bottom of the door instead of at the top, so
that it was not his fault.
The foregoing stipulations were entered into by the parties,
to stipulate that had the various witnesses been called, they
would have testified to the events as detailed. These stipula-
tions are not necessarily binding upon me. Rather, the trier
of fact is free to consider the weight and credibility of such
evidence the same as any other evidence adduced on the
hearing in the case. That said, I do find the stipulations pre-
sented by Respondent and agreed to by the General Counsel
to be binding, and make the findings of fact in Respondent’s
favor, in light of my previous findings regarding the credibil-
ity of the various witnesses.
The overwhelming preponderance of the testimony regard-
ing Fuls describes him as a difficult person to work with, in-
subordinate at times, and quite rude. Respondent had ignored
this behavior for most of Fuls’ employment, with the excep-
tion of the written warning issued by Anderson, and a verbal
warning from Anderson and Zamzow on the Envirosafe job
that Fuls needed to ‘‘play nice with the other kids.’’ Re-
spondent had been taking notice, however, of Fuls’ job per-
formance.
I find that the evidence of detailed and numerous instances
of mistakes made on the job, when combined with the ob-
noxious nature of Fuls’ attitude, lends credence to Klokke’s
and Weatherbie’s credible testimonies that they had already
planned to terminate Fuls prior to his participation in the
strike. I find that the precision of Respondent’s testimony
with respect to Fuls and his problems defeats the inference
that he was terminated 1 month after the strike simply be-
cause of his participation in it.
One remaining issue raised by both the complaint and the
testimony revolves around the exact nature of Fuls’ departure
from the Company. Specifically, Fuls testified that he was
laid off on December 12. Fuls then attempted to get from
Weatherbie a ‘‘pink slip’’ stating he had been laid off due
to lack of work. According to Fuls’ testimony, Weatherbie
said he did not have to give Fuls a pink slip. This prompted
Fuls to state to Weatherbie that he felt he was being dis-
criminated against because of his union activity, and was
going to file a charge to that effect. Fuls testified that at this
point, Weatherbie told Fuls he was terminated and not laid
off.
At this juncture, it is important to note where Fuls re-
ceived his initial information on his separation. When Fuls
showed up to work on December 13, it was Dwayne Hickam
who told Fuls he had been laid off, not Weatherbie. All
Hickam knew was that Fuls was ‘‘not supposed to be at
work that morning,’’ Hickam, however, was not involved in
the making of the decision, and had no actual knowledge of
the facts actually surrounding the nature of Fuls’ separation.
Fuls, therefore, got this information from someone not ap-
prised of all the facts, as opposed to hearing directly from
his supervisor. Additionally, by the time of this hearing, Re-
spondent had already let Hickam go because he had been in-
volved in an altercation on the job. Hickam testified he felt
his own separation from Respondent was not justified. Thus,
Hickam still quite evidently harbored resentment towards Re-
spondent at having been ‘‘wronged’’ by his previous em-
ployer. Hickam, as demonstrated by the testimony presented
to me, was not the most credible of witnesses.4
The testimony on this issue was in direct contradiction,
with Fuls claiming he had been told he was to be laid off
and Weatherbie claiming Fuls had been terminated. While
both testimonies were motivated by the self-interest of the re-
spective witnesses, I found Weatherbie to be the more credi-
ble of the two, and hence adopt his testimony for my finding
of fact on this issue. Further, the stream of evidence pre-
sented by Respondent pointed to the fact that a decision to
terminate Fuls had in fact been reached before the strike, as
both Klokke and Weatherbie testified. That decision to get
rid of Fuls permanently, by termination, as opposed to a tem-
porary layoff, was based on the repeated mistakes he made
while on the job, his poor attitude, and the difficulties he
presented to others attempting to work with him. Instructive
on this point is Frosty Morn Meats, Inc. v. NLRB, 296 F.2d
617, 621 (5th Cir. 1961):
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1019SUNDANCE CONSTRUCTION MANAGEMENT
When an employee gives his employer as much reason
to fire him as Judkins did, by refusing to follow in-
structions and by giving not only his supervisors but
also his fellow employees the impression that he was
uncooperative, there is no basis for the conclusion that
the employer has treated him differently than he would
have treated a nonunion employee.
This description matches Fuls. Based upon the foregoing
analysis, regardless of Fuls’ involvement with the Union, I
find and conclude that Respondent would have terminated
him anyway. Therefore, the issue of Respondent’s timing in
terminating Fuls is resolved. Fuls was not terminated earlier
because of the ‘‘crunch’’ Respondent was under in trying to
complete two jobs before the Christmas season. When Fuls
was finally dismissed from Respondent’s employ, he was
part of a general lay off that Respondent was conducting
anyway, a downsizing that continued for several months.
Fuls’ termination was not a single, atypical event. Rather,
Respondent was following its usual practice of letting people
go once it had no further need for them, beginning with the
people Respondent had no desire to keep due to performance
or skill issues. Respondent would have terminated Fuls any-
way, regardless of his protected activity. Thus, I conclude
that Respondent has carried its burden of persuasion under
Wright Line and is absolved of any 8(a)(3) violation with re-
spect to Fuls.
E. Layoff of Maxwell
The same day that Fuls was terminated, Maxwell learned
that he had been laid off, supposedly for lack of work. He
was not told the layoff was because of any performance
issues. In testimony, however, a range of problems were enu-
merated by Maxwell’s supervisors. These included a defi-
ciency in blueprint reading skills, problems with layouts, and
general mistakes that occurred while he was acting as a fore-
man. Interestingly enough, in spite of the plethora of mis-
takes Maxwell allegedly committed, Maxwell testified that
Weatherbie told him to check back after the first of the year,
meaning 1995, and that Respondent might have work for
him. Weatherbie agreed that he had probably given Maxwell
some encouragement to that effect.
Again, to prevail, Respondent must successfully rebut the
implication that Maxwell was laid off because of his union
affiliation. Further, the evidence presented must convincingly
show Respondent would have terminated Maxwell anyway,
regardless of Maxwell’s involvement with the Union. As
with Fuls, the timing of Respondent’s election to lay off
Maxwell seems suspicious, and bears close scrutiny.
Maxwell’s history with Respondent was more extensive
than that of Fuls’. He began working for Respondent in 1991
on the Chief Joseph Elementary School project, making $13
an hour. He was then laid off for 9 months, worked with an-
other company, then came back to Respondent in the begin-
ning of 1992 and continued on until December of 1994.
Maxwell’s primary job seems to have been that of a night
foreman.
Upon returning to work for Respondent, Maxwell worked
at a number of jobsites, including Boise City Housing, the
MK depot, the LDS Church, the BSU geology building, Na-
tional Interagency Fire Center (NIFC), the Envirosafe
project, Shari’s Restaurant in Garden City, the Albertson’s
remodel on Overland and Five Mile, the Albertson’s remodel
in Burley, and the Idaho City School project.
Respondent presented the testimony of a number of Max-
well’s supervisors indicating his various shortcomings, nota-
bly his poor mathematical and blueprint reading skills, which
tended to result in work having to be done a second time.
One frequent complaint revolved around Maxwell’s print
reading abilities. This apparently was noticed for the first
time at the MK Depot and BSU Math/Geology projects,
started sometime in 1992. Oliver Steiger, the project super-
intendent, credibly testified that Maxwell’s blueprint skills
were ‘‘on the shaky side.’’ According to Steiger, Maxwell
frequently spent a lot of time reviewing drawings with him.
Steiger further noted that he would have to doublecheck lay-
outs Maxwell had done to make sure they were correct.
Maxwell worked for a time as a foreman on the
Envirosafe project, which ran the winter of 1993/1994.
Klokke testified that Anderson later requested Maxwell not
return to work on any of his projects. Evidently, this was in
response to problems with the placement of columns and
some problems with layouts. Some columns were of an in-
correct height by approximately two inches, as their elevation
had been improperly shot. While Weatherbie noted that this
could have been a blueprint reading error on Maxwell’s part,
he said it was attributed to poor management of the work
force, mainly a mistake.
The NIFC job ran from April of 1993 to April of 1994.
Maxwell was a foreman on the concrete crew for a portion
of the job. A stipulation was entered by the parties that
should Hartman testify, he would relate how Maxwell set up
forms for trenches incorrectly, and that they were 21 feet off
from the layout. Hartman and another worker tore out Max-
well’s work and redid it, taking an extra one and a half days
to do so.
The Albertson’s remodel at Overland and Five Mile start-
ed in March and was completed in June. At the start of the
job, Lee Coates acted as night foreman, and Maxwell took
that job once Coates left. Night foremen on Albertson’s re-
models primarily do fixture work. As such, Maxwell directed
the work crew to erect shelving the food would eventually
go on, install the check stands, and install the equipment in
the meat department. The fixture part of the contract was
overbudget by about $5000 which Klokke attributed to poor
management of the work force, a portion of which was Max-
well’s fault.
As the night foreman for the Albertson’s in Burley, Max-
well was on site overseeing the wood trim work performed
by the carpenters. Maxwell apparently encountered problems
interpreting the blueprints’ directions for installation of the
trim. Dresser noted that the plans were very specific in terms
of the trim installation, and that the crews were off in their
work, which came back to Maxwell’s direction. Maxwell
also oversaw work on the Marlite planking, a type of panel-
ing glued to the walls. Maxwell had the blueprints for the
work and was supposed to direct the crews accordingly.
However, the Marlite was installed incorrectly and had to be
significantly reworked. Dresser ascribed the rework to failure
on Maxwell’s part to read the blueprints properly. This re-
work occasioned a higher cost in labor, which resulted in
cost overruns on that portion of the contract.
The 911 Center project in Jerome, begun over the summer,
saw Maxwell acting again as a foreman, involved with steel
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1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
erection. There was conflicting testimony on this issue.
Weatherbie testified that Maxwell installed the steel incor-
rectly, by burning a hole in the steel with a torch. The prob-
lem ballooned from there, because the burned hole was too
big, which caused the engineer to reject the structure, result-
ing in redesign and changed finishes. According to
Weatherbie, no holes were to be cut in the steel unless au-
thorized by the engineer or himself, and Maxwell did not get
this authorization. There was some evidence, however, that
the steel had initially arrived in an unusable fashion, and
therefor had to be cut for proper use. Maxwell did not appear
to be at fault for the steel needing to be cut.
One major incident involving Maxwell took place at the
Shari’s at Garden City. Winn had prefabricated the forms
that were to be used as guides for the concrete pouring.
Maxwell did not follow the forms as constructed for the job.
He did not ask how they were to be put together, and in-
stead, proceeded to cut them up, drilling new holes and ren-
dering them unusable for future work. The cost of replacing
the forms was around $2000 and required 40 man-hours of
work. Granted, the new forms could be used at the next
Shari’s that Respondent contracted to work on, but the origi-
nal forms were satisfactory for this job and did not need to
be altered. Maxwell testified that it was not apparent from
looking at the forms how they were supposed to be put to-
gether. It seems, however, that the forms would have had a
form oil residue on one side, from the last time they were
used. The oil is used to coat the forms on the side that the
concrete is poured against, to keep the concrete from adher-
ing to the forms. Thus from the outset it would have been
apparent which side faced in and would have the concrete
molding to it. This, in addition to the unique shape of the
Shari’s Restaurants, should have made it apparent how the
forms combined, as there could be only one correct way.
The Idaho City job saw several incidents relating to Max-
well take place. Jafek was again a supervisor. In July, Max-
well did not follow Jafek’s instructions regarding removal of
playground equipment, and it was subsequently ‘‘exten-
sively’’ damaged. On November 16, Jafek issued Maxwell a
written warning regarding the improper setup of a chop saw,
a dangerous piece of equipment. Jafek did so because the
way in which Maxwell was using the saw was a safety viola-
tion, with the potential for grave injury. In addition, Maxwell
laid out some footings incorrectly, which had to be corrected
before the excavator began digging. Jafek also found fault
with some saw horses Maxwell built. Jafek testified that a
good saw horse could normally last for up to a couple of
years, whereas these were unusable in a week or two.
Perhaps the most significant occurrence at the Idaho City
job related to the written warning Maxwell received on No-
vember 16 for tardiness. He was late to the jobsite, and had
not called in advance. Jafek issued him a warning. Maxwell
testified that he asked around, and that three other men were
late that morning but that none of them received a warning.
However, Maxwell was unable to remember any of the
men’s names. Jafek, who kept notations of events that oc-
curred during the day in a notebook, credibly testified that
if anyone else had been late, it would have been so noted.
According to Jafek, no one else was late that day, and Max-
well had not been singled out. Another employee named Jeff
Dunham was also issued a written warning for tardiness 2
days later. Dunham had not participated in the strike. The
General Counsel attempted to show by this incident that
Jafek was ‘‘making book’’ on Maxwell because of his par-
ticipation in the strike. This attempt fails for two reasons.
First, Jafek had had problems with Maxwell before Novem-
ber, as the playground incident in July evidenced; indeed, as
early as 1992 at the Chief Joseph School project Jafek had
witnessed problems with Maxwell’s performance. Second,
Maxwell was not targeted exclusively for some sort of dis-
parate treatment by Jafek. When Dunham, who was never a
striker, was late to the job, he was also issued a warning.
Maxwell simply made many mistakes on the Idaho City job.
Small complaints from various other jobs were also noted.
Steiger testified that on the BSU job, Maxwell was too ‘‘hot
headed.’’ The Chief Joseph School project, of which Jafek
was the supervisor in 1992, saw Maxwell predrill holes in
the floor in the wrong place, such that they had to be re-
drilled. In February of 1994, Maxwell put a concrete mow
strip in the wrong place at the LDS Church. Jafek had Hart-
man redo the strip.
Interestingly enough, in spite of Maxwell’s various short-
comings, Klokke gave him a raise some 8 months before he
was laid off. Maxwell had come to him and ‘‘demanded’’ a
raise and an increase in responsibility. Because of a pro-
fessed shortage of qualified supervisors, Klokke raised his
wage from $13.50 to $14.50 an hour to entice him to stay
on, but did not make him a supervisor. Klokke felt they
could not afford to let Maxwell go, but that he was not ready
to act as a supervisor. Klokke was asked why, after receiving
reports of Maxwell’s deficiencies, Klokke did not simply de-
mote him. Klokke noted that it had been his experience that
once an employee had been promoted (as Maxwell had been
to foreman), it was almost impossible to later demote and
still retain a profitable employee. There would simply be too
much hostility on the employee’s part to be able to maintain
any semblance of a working relationship. Klokke said a de-
motion and subsequent retention had only worked for him
once in the last 10 years, and he was not willing to try it
with Maxwell. A demotion from foreman to general car-
penter was therefor not workable in Klokke’s opinion. In the
absence of an attempt by an employer to circumvent the Act,
the Court will not substitute its judgment for that of the em-
ployer, especially when it appears that a sound business deci-
sion was being implemented.
The evidence appears clear that Respondent observed nu-
merous job-related shortcomings on Maxwell’s part, inclusive
of blueprint reading difficulties and math skill deficiencies.
Many of these problems were noted prior to Maxwell’s going
on strike. Respondent had good reason to lay off Maxwell.
In conclusion of the 8(a)(3) issue, the mere fact that a spe-
cific employee not only breaks a company rule but also
evinces a prounion sentiment is alone not sufficient to de-
stroy the just cause for his discharge. NLRB v. Mueller Brass
Co., 509 F.2d at 711 (5th Cir. 1975).
As such, Respondent’s legitimate, business-related reasons
for discharging both Fuls and Maxwell, reasons that were
independent of the two’s affiliation with the Union, with-
stand scrutiny. The two men, as indicated by multitudinous
evidence, had performance problems that occurred over a
long period of time and were well-documented by Respond-
ent. Although Respondent could have legitimately terminated
the two men months before, because of a need for experi-
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1021SUNDANCE CONSTRUCTION MANAGEMENT
enced manpower Respondent kept the two men on and put
up with the problems.
Once Respondent began to downsize in December, a proc-
ess that continued into 1995, it decided it was time to let
them go. The discharge of Fuls and Maxwell occurred 1
month after their participation in the strike, and this required
Respondent to convince me that but for their union activities,
the two would have been terminated anyway. Respondent
managed, through a comprehensive array of testimony and
other evidence presented, to do just that. Finally, inconsist-
encies in testimony and other credibility issues that were re-
solved against the two alleged discriminatees also led me to
find that Respondent did not violate Section 8(a)(3) by dis-
charging Fuls and Maxwell.
My finding that there has been no violation of Section
8(a)(4) of the Act flows from the same facts and analysis.
F. Interrogations Regarding Union Activity and
Threatened Reprisals
The second amended charge, filed July 12, 1996, adds the
allegation that Respondent, through its agents, interrogated
employees about their union activities and threatened em-
ployees with reprisals and arrest for their support of the
Union, thereby violating Section 8(a)(1).
In a case involving ‘‘interrogation,’’ the basic test used by
the Board to determine whether a violation occurred is
whether the employees’ rights were interfered with by the
employer. What constitutes interference must be determined
by looking at the record as a whole, as suggested in Blue
Flash Express, Inc., 109 NLRB 591 (1954). Unfortunately,
testimony of the various witnesses failed to elucidate exactly
how Respondent managed to interrogate its employees in the
coercive nature required by the Act. Indeed, in the hearing,
General Counsel failed to address several specific allegations
of interrogations made in the complaint.
One allegation in particular may be cleared up very quick-
ly. Both the complaint and testimony attempted to show that
one night during the strike, Weatherbie had threatened pick-
ets at the Albertson’s in Meridian with arrest for being there
on the property and exercising their right to picket. A threat
of arrest did, in fact, take place, but the facts are sorely out
of context. Weatherbie arrived one night just in time to see
a man harassing a woman, who was obviously upset.
Weatherbie testified that at the time, he did not see men
holding picket signs. The obstreperous man, not an employee
of Respondent, had apparently been drinking. Weatherbie
testified that the store manager had called the police, and that
he asked the men to stay until the police arrived. At this
time, the remainder of the pickets were making their way
around to the front of the store, drawn by the raised voices.
The man who had started the incident asked Weatherbie how
he was going to make them stay for the police, and
Weatherbie said they could consider themselves under citi-
zen’s arrest. That was the extent of the ‘‘arrest’’ incident.
Respondent quite simply did not threaten to have pickets ar-
rested because of their strike activities.
Another ‘‘interrogation’’ centered around the Solidarity
picnic held in July. Maxwell had taken the day off to take
his daughter to surgery. Upon returning to work, a super-
visor, Jafek, asked Maxwell if he had attended the picnic.
Maxwell replied that he had not, but if he had known about
it he would have. That was the extent of the conversation.
There was no overt or implied threat, or a warning of repris-
als for entertaining such sentiments. Although the picnic had
already taken place, there could have been threats not to en-
gage in those sorts of activities if they again presented them-
selves. Such comments were not made. Indeed, it is hard to
see the ‘‘incident’’ as anything other than polite small talk
between work colleagues.
Some of the alleged ‘‘interrogations’’ regarding union ac-
tivity took place, according to General Counsel, in June and
again in October. Klokke admittedly asked Weatherbie to
find out how widespread support for the Union was within
the Company. One particular time, Weatherbie asked Max-
well how many employees of Respondent he thought sup-
ported the Boise Carpenters. Maxwell replied that he thought
perhaps 80 percent of Respondent’s forces were in favor of
the Union. Weatherbie then told Maxwell to be careful, be-
cause he had been involved with a Union before and ‘‘3,000
would vote to go on strike and only 3 would show up.’’ That
was the extent of the ‘‘warning’’ Weatherbie gave to Max-
well. The statement centered on knowing one’s compatriots,
and did not purport to threaten Maxwell in any way, nor
could it realistically be taken to do so.
Again, with regard to the ‘‘interrogations,’’ there was con-
flicting testimony as to the actual nature of the events that
occurred. Maxwell testified that Weatherbie would call him
at the jobsite and ask him about ongoing union activity.
Weatherbie, in turn, testified that Maxwell was the one in
contact with him. According to Weatherbie, Maxwell said he
was only involved with the Union to find out what was
going on and that he did not support it.
Another conflict exists with respect to the comments
Weatherbie made to Maxwell while he was on the picket
line. Weatherbie told Maxwell that he was ‘‘disappointed in
him’’ and that he ‘‘thought he knew better.’’ General Coun-
sel attempted to make this appear to be a discouragement of
the union activities. In fact, Maxwell had promised
Weatherbie that he would be looking in on John Pearce, the
supervisor at the Albertson’s jobsite in Burley. Weatherbie
had been receiving reports that Pearce was not on the job as
he was supposed to be, and had requested Maxwell to look
into it. When Maxwell showed up in Meridian, Weatherbie
was understandably disappointed, as he now did not have
anyone on location at the Burley site to oversee the situation
there.
Due to the limited nature of any questions that were asked,
that fewer than three of Respondent’s employees were ever
approached with such questions, and the low-key nature of
any conversations, none of the coercive ‘‘polling’’ that the
Board so disfavors appears to have taken place. See Operat-
ing Engineers Local 49 v. NLRB (Struksnes Construction
Co.), 353 F.2d 852 (D.C. Cir. 1965), on remand 165 NLRB
1062 (1967).
The General Counsel has attempted to piece together a few
questions and offhanded comments to form a tapestry of in-
terrogation and other violations of the Act. But allegations of
8(a)(1) violations through interrogations must fail when, on
viewing the record as a whole, no coercion of employees oc-
curred by virtue of the conduct at issue.
Thus, I conclude that the General Counsel has failed to
carry its burden of persuasion by establishing by a prepon-
derance of the evidence that Respondent has committed any
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1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
unfair labor practices as covered by the Act. The complaint
should be dismissed.
Based on the foregoing findings of fact, I make the fol-
lowing
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and
in an industry affecting 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 the Act.
3. The General Counsel has failed to establish by a pre-
ponderance of the evidence that Respondent has violated
Sections 8(a)(1), (3), and (4) of the Act as alleged.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The complaint is dismissed in its entirety.
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