Topside Construction, Inc.

National Labor Relations Board - Board Decisions

Oct 22, 1999

329 N.L.R.B. 886 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 886
Topside Construction, Inc. and Operating Engineers
Local 3, International Union of Operating Engi-
neers, AFL–CIO. Cases 20–CA–27725, 20–CA–
27777, 20–CA–27839, and 20–RC–17245
October 22, 1999
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On March 10, 1998, Administrative Law Judge Clif-
ford H. Anderson issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed a brief in opposition to the Re-
spondent’s exceptions, and the Charging Party joined this
brief and filed a brief in support of the judge’s report on
challenges and objections.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified and set
forth in full below.3
ORDER
The National Labor Relations Board orders that the
Respondent, Topside Construction, Inc., Sacramento,
California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Interrogating employees about their union activi-
ties.
(b) Threatening employees with unspecified reprisals
for exercising their protected right to file unfair labor
practice charges.
(c) Threatening employees with more rigid treatment,
discharge, and future job loss because of their union ac-
tivities.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 In the absence of exceptions, we adopt, pro forma, the judge’s rec-
ommendations that the Employer’s Objections 3, 4, 6, and 7 be over-
ruled, and the judge’s conclusion that the absence of union objections is
no bar to setting aside the election in the event the revised tally of bal-
lots shows that the Union did not receive a majority of the valid ballots
cast.
3 The judge inadvertently omitted from his recommended Order and
notice his finding that the Respondent threatened employees with more
rigid treatment. We shall modify the judge’s recommended Order and
notice to reflect this correction.
We shall also modify the judge’s recommended Order to conform to
Indian Hills Care Center, 321 NLRB 144 (1996).
(d) Threatening employees with closure of the Re-
spondent’s operations if the employees selected a union
to represent them.
(e) Failing to recall the following employees because
they were engaged in union activities:

Mike Buttacavoli Mike Munoz
Chris McBride

(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Mike Buttacavoli, Chris McBride, and Mike Munoz full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
(b) Make each of them whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against them, in the manner provided in the remedy
section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful failure to re-
call these employees, and within 3 days thereafter notify
these employees, in writing, that this has been done and
that this conduct will not be used against them in any
way.
(d) Within 14 days after service by the Region, post at
its Carmichael, California facility, and all jobsites where
employees in the bargaining unit involved herein are
employed, copies of the attached notice marked “Appen-
dix.”4 Copies of the notice, on forms provided by the
Regional Director for Region 20, in English and such
other languages as the Regional Director determines are
necessary to fully communicate with employees, after
being signed by the Respondent’s authorized representa-
tive, shall be posted for 60 consecutive days in conspicu-
ous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure the notices are not
altered, defaced, or covered by other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current and former employees employed by the
Respondent at any time since March 14, 1997.
4 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.”

329 NLRB No. 75
TOPSIDE CONSTRUCTION, INC. 887
(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(f) 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.
DIRECTION
IT IS DIRECTED that, within 14 days from the date of
this Decision, Order, and Direction, the challenged bal-
lots of Steve Peterson, Matt Haser, Doug Young, Don
Young, Mike Buttacavoli, Michael Drury, Stan Thrall,
Michael Munoz, and Chris McBride be opened and
counted by the Regional Director and that a revised tally
of ballots be issued.
IT IS FURTHER DIRECTED that if the revised tally of bal-
lots reveals that Operating Engineers Local 3, Interna-
tional Union of Operating Engineers, AFL–CIO (the Pe-
titioner) has received a majority of the valid ballots cast,
the Regional Director shall issue a certification of repre-
sentative. If, however, the revised tally shows that the
Petitioner has not received a majority of the valid ballots
cast, the Regional Director shall set aside the election
and conduct a new election when he deems the circum-
stances permit the free choice of a bargaining representa-
tive.

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 the National Labor Relations Act and has ordered us to
post and abide by this notice.

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

WE WILL NOT interrogate our employees about their un-
ion activities and sentiments.
WE WILL NOT threaten employees with more rigid
treatment, discharge, loss of future job opportunities, and
the closure of our operation because they support the
Union or engage in union activities.
WE WILL NOT threaten employees with adverse conse-
quences if they assert their right or intention to file
charges against us with the National Labor Relations
Board.
WE WILL NOT fail to recall our employees because they
engage in union 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.
WE WILL, within 14 days from the date of the Board’s
Order, offer Mike Buttacavoli, Chris McBride, and Mike
Munoz full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed, and WE WILL make the
above-listed employees whole, with interest, for any loss
of earnings and other benefits suffered as a result of our
discrimination against them.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to our unlaw-
ful failure to recall the above-listed employees, and WE
WILL, within 3 days thereafter, notify each of them in
writing that this has been done and that this conduct will
not be used against them in any way.

TOPSIDE CONSTRUCTION, INC.

William A. Baudler & Patrick Kavanagh, Esqs., for the General
Counsel.
Dennis B. Cook & Jessavel Y. Delumen, Esqs. (Cook, Brown,
Rediger & Prager), of Sacramento, California, for the Re-
spondent/Employer.
Timothy Sears, Esq., of Alameda, California, for the Charging
Party/Petitioner.
DECISION AND REPORT ON CHALLENGES AND
OBJECTIONS
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I heard
the above-captioned cases in trial in Sacramento, California, on
August 20– 22, 1997. The matter arose as follows.
I. THE UNFAIR LABOR PRACTICE CASES
On March 21, 1997, the Operating Engineers Local 3, Inter-
national Union of Operating Engineers, AFL–CIO (the Charg-
ing Party, the Petitioner, or the Union) filed a charge, docketed
as Case 20–CA–27725, with Region 20 of the National Labor
Relations Board against Topside Construction, Inc. (the Re-
spondent or the Employer) amending that charge on June 27,
1997. The Charging Party filed a second charge against the
Respondent, docketed as Case 20–CA–27777, on April 23,
1997, and a third charge against the Respondent, docketed as
Case 20–CA–27839, on June 2, 1997, amending the latter
charge on July 2, 1997.
The Regional Director for Region 20 issued an order con-
solidating cases, consolidated complaint and notice of hearing
involving the first two charges on June 27, 1997, and an order
consolidating cases, amended consolidated complaint and no-
tice of hearing on July 2, 1997, consolidating all three of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 888
above-captioned unfair labor practice cases. An order consoli-
dating cases, second amended consolidated complaint and no-
tice of hearing respecting the three cases issued on July 11,
1997. The Respondent filed timely answers to the complaints.
The complaint alleges and the answer denies that the Re-
spondent’s agents made various threats to employees in the
months of March and April 1997 in violation of Section 8(a)(1)
of the National Labor Relations Act (the Act). The complaint
further alleges and the answer denies that the Respondent failed
to recall employees Chris McBride, Mike Munoz, Mike Butta-
cavoli, and Troy Pair, on or about March 26, 1997, because of
their actual or suspected union activities in violation of Section
8(a)(3) and (1) of the Act.
II. THE REPRESENTATION CASE
On March 14, 1997, the Union filed a petition, docketed as
Case 20–RC–17245, seeking to represent the Employer’s heavy
equipment operators. Pursuant to a Stipulated Election Agree-
ment approved by the Regional Director on April 4, 1997, an
election was conducted on April 25, 1997. The tally of ballots
shows that 6 votes were cast for the Union, 1 vote cast against
the Union and 13 ballots were challenged. The challenged bal-
lots were sufficient in number to affect the results of the elec-
tion. On May 2, 1997, the Employer filed timely objections to
the election and on May 5, 1997, an amendment to the objec-
tions each of which were served on the Petitioner.
On July 11, 1997, the Regional Director issued a report on
objection and challenged ballots, order consolidating cases and
notice of hearing. The report held that the objections and chal-
lenges raised substantial and material issues of fact which could
best be resolved by a hearing. The report further held that the
allegations of the complaint should be considered with the ob-
jections to the extent they bear on the validity of the election.
The report ordered that the challenges and objections be con-
solidated with the complaint for a common hearing and deter-
mination and requested that the designated judge prepare and
serve on the parties a report containing resolutions of credibil-
ity, findings of fact, and recommendations to the Board respect-
ing the challenged ballots and the disposition of the objections
and other conduct bearing on the validity of the election.
On the entire record, including oral argument by the Re-
spondent and helpful briefs from each of the parties, I make the
following
FINDINGS OF FACT1
I. JURISDICTION
At all times material the Respondent has been a corporation
with a place of business in Carmichael, California, where it has
been engaged in the construction industry providing site prepa-
ration services. During the year ending April 4, 1997, the Re-
spondent during its business activities provided services valued
in excess of $50,000 to other business entities each meets one
or more of the Board’s standards for assertion of jurisdiction on
a direct basis.
Based on the above, the complaint alleges, the answer ad-
mits, and I find the Respondent at all relevant times has been an

1 As a result of the pleadings and the stipulations of counsel at the
trial, there were few disputes of fact regarding collateral matters. Where
not otherwise noted, the findings here are based on the pleadings, the
stipulations of counsel, or unchallenged credible evidence.
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
At all material times the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent is a construction site preparation contractor
in the Greater Sacramento, California area. Its president is
Larry Nizzoli and its superintendent is Frank Haser. The Re-
spondent has employed approximately a dozen or more2 em-
ployees as heavy equipment operators and in related functions.
At relevant times it operated two crews, one under the direction
of Michael Drury and the other under the direction of Stan
Thrall. Within the Greater Sacramento area, the Respondent
was a relatively small, unorganized construction site prepara-
tion contractor with two much larger competitors in the area
who were signatory to contracts with the Union.
On the morning of March 14, 1997, the Union hand deliv-
ered to the Respondent’s president, Nizzoli, a letter on the Un-
ion’s letterhead asserting, in part:

This is to inform you that a majority of your produc-
tion and maintenance employees in your Sacramento area
operation have designated Operating Engineers Local Un-
ion No. 3 of the International Union of Operating Engi-
neers, AFL-CIO, as their exclusive bargaining representa-
tive. Therefore we hereby request recognition as the exclu-
sive bargaining agent for the employees described above.
We tender immediate proof of our majority status
through a card check conducted by any impartial, mutually
agreed upon their party, such as the State Conciliation
Service.

B. The Complaint Allegations
1. Conduct alleged to violate Section 8(a)(1) of the Act
a. Complaint paragraph 6(a): The Respondent’s agent, Larry
Nizzoli, about April 2, 1997, threatened employees with un-
specified reprisals for exercise of the Section 7 right to file
charges with the Board
Former employee Troy Pair testified that, becoming frus-
trated with the fact that he had not been recalled to work, he
went to the Prairie Oaks jobsite on April 1, 1997, to determine
which of the Respondent’s employees were at work. He walked
the jobsite taking notes on the individuals at work. Pair testified
that during this process he was summoned by horn and hail to
Haser’s truck in which Superintendent Haser and President
Nizzoli were sitting. He approached the truck and was asked by
Haser what he was doing on the job. Pair testified:

I said I was taking notes on who was working. I asked
him if he thought it was fair for some of these people who
were out there to work before I was. I used the names
Craig Scott, Kevin Weatherington and John Cooke. And
he said yes, he thought that was fair.
Q. Did you say anything in response?
2 The construction industry and the site preparation aspect of the
construction trade are both seasonal and site preparation is especially
subject to interruption and delay because of adverse weather conditions.
TOPSIDE CONSTRUCTION, INC. 889
A. I just let him know I didn't think that was fair and
that I was going to file an unfair labor practice.
Q. What, if anything, did Haser say in response to
that?
A. Do what you got to do?
Q. Was anything else said at that time?
A. No.

Later that day, Pair received a telephone call from Haser ask-
ing him to return to work the following day, April 2, 1997. He
did so. Working that first morning, Pair testified that Nizzoli
approached him on the job appearing upset, shaking and grit-
ting his teeth and, as Pair recalled, “told me that I needed to
keep my mouth shut and to control my temper until this was all
over.” Pair testified: “I asked what was all over, and he says
this union thing.” At lunch that day Pair made a written note of
the event. He wrote: “Larry approached me. You have to con-
trol your temper and shut your mouth. Trembling and shaking.”
His note contained no reference to statements by Nizzoli about
the Union or “until this was all over.”
Frank Haser recalled meeting Pair at the jobsite on April 1,
1997. He testified that he and Nizzoli were approached by Pair
in an agitated state and that Pair wanted to know why he was
not working. When Haser told him that he had not been needed
up to that point, Pair “said he was going to file an unfair labor
practice report and stomped off.”
Nizzoli testified:

Q. And on this same day, April 1st, at the Prairie Oaks
jobsite, did you see Troy Pair at the jobsite?
A. Yes. Frank [Haser] and I were standing there talk-
ing. He was in his truck and I was standing alongside and
we saw Troy walking on the job and making a loop around
the circle. And I said, “I wonder what Troys doing.” And
he said, “I don't know.” And I think we waved him over as
he was within 100 yards of us, as he was making his cir-
cle.
Q. So on that day was he scheduled to work at Prairie
Oaks?
A. No, we had decided that we were going to call him
that day to come to work the next day.
Q. So you called Troy Pair over and then what hap-
pened?
A. Troy came over and I—I don't remember—Frank
might have said, “How are you doing,” or something, or,
“What are you doing,” or something, in a friendly manner.
And Troy was quite upset and quite angry and loud, and
he proceeded to yell at us that this was all a bunch of balo-
ney, this was not right, that he should be out here working
before Craig Scott or before Kevin Weatherington, and
this was not—you know, acceptable, and he was going to
file a ULP, and I was in total shock.

Nizzoli also recalled his comments to Pair the following day.

The next morning, I was on the jobsite before we
started and I—I guess I shouldn't have, but, again it was
such a shocking thing to me, that what he did—you know,
how someone could yell at their boss and certainly the
owner of the company like that—so I went down to Troy
with the idea of fatherly advice. And I said, “Troy”—I
said, “You know that—you know, we were just getting
ready—we were going to call you to come to work the
next day, and when we waved you over, we were going to
save the phone call and just tell you.” “But, I said, “you
just totally shocked us, the way you acted.” And I said,
“Your hot temper is going to get you in trouble some day.
And you've got to learn to control it.”

Nizzoli specifically denied telling Pair the “problem” was with
the Union or that Pair had better keep his temper in check “until
this thing is over.” He further denied even knowing until after
these conversations what a “ULP” or unfair labor practice was.
There is essentially no dispute respecting what was said on
April 1 save that Pair recalled threatening to file an “unfair
labor practice,” Haser recalled Pair’s reference was to an “un-
fair labor practice report,” and Nizzoli recalled it simply as a
“ULP.” I credit Haser and Pair that Pair used the term “unfair
labor practice” rather than simply the initials “ULP.” It is un-
likely that Pair was a cognoscente of Agency nomenclature at
that time and Haser corroborates his recollection.
As to the April 2 Nizzoli-Pair conversation, I credit Nizzoli’s
version of events over Pair primarily because Pair’s notes re-
cording the conversation shortly after its occurrence failed to
attribute to Nizzoli the references to the Union or “till this thing
is over” which Nizzoli denied making. Had Nizzoli made a
remark about the Union, it is very likely that Pair would have
recalled it the short time later when he made his note and, re-
calling such a reference, would have been likely to have re-
corded it. His failure to do so undermines his version of events.
I do not believe that Pair was dishonest in his testimony.
Rather, I believe that he connected Nizzoli’s remarks to this
threat to file a charge with the Board the previous day and this
colored his recollection.
Even given this credibility resolution, I find that Nizzoli’s
statement to Pair violates Section 8(a)(1) of the Act. Pair had
angrily threatened to file an unfair labor practice charge and
Nizzoli’s warning the next day to Pair that his conduct was
going to get him “in trouble some day,” I find, would reasona-
bly have chilled an employee’s contemplation of filing charges
with the Board, an activity protected by the Act. From the Re-
spondent’s perspective, at the very least, Nizzoli should have
realized3 that Pair’s threat to file unfair labor practice charges
involved Pair considering taking the matter to the Board. Tell-
ing Pair that his conduct on that day, i.e., his threat to go to the
NLRB, was likely to get him in trouble could not help—as
Nizzoli either realized or reasonably should have realized—but
convey the message to Pair that making such threats about go-
ing to the Labor Board was going to cause him trouble in his
employment with the Respondent. The word “trouble” as used
in this context clearly is a threat—however nonspecific—to
adversely effect Pair in his employment. I therefore sustain this
allegation of the complaint.

3 Nizzoli denied understanding Pair’s threat to file a “ULP.” Were it
necessary to do so, I would discredit his assertion. Both a representa-
tion petition and an unfair labor practice charge against the Respondent
had been filed by the Union and served on Nizzoli well before April
when the events in controversy occurred. While Nizzoli may not have
had an attorney’s understanding of the nuances of the term, I specifi-
cally find he was aware that Pair in the April 1 conversation was threat-
ening to complain to the National Labor Relations Board that he had
not yet been recalled to work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 890
b. Complaint paragraph 6(b): The Respondent’s agent, Larry
Nizzoli, about April 22, 1997, threatened not to bid on new
projects and to close its operations because of employees’
support for the Union
Former employee Stan Thrall testified that he had a personal
conversation with Larry Nizzoli at the Prairie Oaks job on April
21, 1997, regarding the Union and related matters. Thrall ex-
pressed his unhappiness respecting Superintendent Haser who,
he felt, was “pushing his responsibilities” on Thrall. Thrall told
Nizzoli “that I was probably going to go union, and that I was
unhappy; and that many of the other crew members felt the
same way.” Thrall testified that Nizzoli responded that the Re-
spondent would be unable to compete with its larger more inte-
grated competitors as a union company and would have to
“close their doors.” Nizzoli also said, in Thrall’s recollection,
that he had been anticipating making an aggressive bid—he had
“sharpened his pencil so to speak”—that week on a significant
new job, but that as a result of Thrall’s remarks, Nizzoli was
not going to submit the bid. Thrall recalled that about an hour
or two after the conversation, Nizzoli telephoned him:

He told me not to say anything to anyone about the conversa-
tion that we had because even in the context of a personal
conversation, if I said anything to anyone I could be subpoe-
naed to testify on that information.

Nizzoli testified to two separate events. He recalled having
had a conversation with Haser which could have been over-
heard by Thrall who was nearby in which Nizzoli lamented that
a main client of the Respondent had entered into a joint venture
with another developer combining what might have been ideal
separate work for the Respondent into a larger job which, in
Nizzoli’s expressed estimation, would make the Respondent’s
possible bid on the joint project noncompetitive. Nizzoli testi-
fied he told Haser that this was unfortunate and that even
though the client had solicited a bid from the Respondent on the
work, Nizzoli did not intend to bid since he was convinced any
bid would be unsuccessful.
Nizzoli also recalled a “personal” conversation with Thrall in
late April.4 The conversation dealt primarily with Thrall’s per-
sonal difficulties and his desire to be just a grade setter who did
not have to deal with the problems that a foreman has to deal
with. Nizzoli testified that Thrall asserted:

he realized that as long as he stayed at Topside he'd always be
considered by the crew as the foreman. So he decided that his
only choice of action is to make a clean break, go some place
else to work, and just be a grade setter.
And so he said, “If I’m going to do that, I’m also going
to go back to the union.”

Finally Nizzoli recalled that in this conversation Thrall asked:

[H]e asked me, he says, “What’s going to happen to Topside,
you know, with this?” And I said, “Stan, I don't know.” But I
said, “I do know that if—you know, if we are forced to be-

4 Nizzoli testified:
I said, “You know, as much as we’ve been through together and as
long as we’ve been together”—because Stan [Thrall] was our first
employee after Frank [Haser]–I said, “This is really awful that you—
we can’t talk.” And Stan says, “Yes, we can.”
And I said, “Privately, just between us?” And he says, “Yes,
privately just between us. It won’t ever go any further.”

come union, that we will obviously—our labor costs will in-
crease because of the union benefits, and we'll be less com-
petitive. And so what will happen, I don't know.”

Nizzoli testified he later called Thrall and reminded him the
conversation should remain confidential.
I found Thrall to be an honest witness with a convincing de-
meanor who was testifying from his recollection of events
without a filtering agenda. Nizzoli on the other hand convinced
me that he was tempering his recollections with a strong desire
to avoid testifying to any matter or personal remark which he
felt might undermine the Respondent’s defense to the unfair
labor practice allegations. Indeed his overt attempt to have
Thrall keep the conversation in confidence supports my belief
that Nizzoli was aware his conduct should not be made known
to others. Accordingly, based on all the above, I credit Thrall’s
account of events over Nizzoli’s where the two differed.
Given this factual resolution, I find the Respondent through
Nizzoli violated Section 8(a)(1) of the Act: (1) by threatening
to close the Respondent’s operations if the Union came to rep-
resent its employees and, (2) by telling Thrall that he had aban-
doned a bid for work because of the employees’ actions in
seeking union representation. The General Counsel’s cited
cases are on point. Thermal Master, Inc., 318 NLRB 43, 45
(1995), and MBC Headwear, Inc., 315 NLRB 424, 428 (1994).
I therefore sustain this allegation of the complaint.
c. Complaint paragraph 7(a): The Respondent’s agent, Frank
Haser, about March 14, 1997, at the Respondent’s Laguna,
California jobsite, interrogated employees about their union
activities
There is no dispute that having learned on the morning of
March 14, 1997, that the Union had demanded recognition of
the Respondent, Frank Haser went to the jobsite and met with
Drury and his crew members. Haser testified: “I asked [the
assembled employees] if the union had approached them and
they said, no, they had approached the union.” Following this
initial exchange Haser recalled the employees asked him his
view of “the pros and cons of the union” and he made further
remarks.
The General Counsel argues on brief at 2:

Haser’s questioning of employees with previously undis-
closed union sympathies who had been summoned to a hastily
called hostile meeting with their superintendent [footnote
omitted], with no legitimate reason offered, and without as-
surances against retaliation, violated Section 8(a)(1) of the
Act. See NLRB v. Loredo Cocoa-Cola Bottling Co., 613 F.2d
1338, cert. denied 449 U.S. 889 (1980); Kona 60 Minute
Photo, 277 NLRB 867, 867 (1985).

The General Counsel’s cited cases are persuasive and on point.
I agree Haser’s conduct as described above violated Section
8(a)(1) of the Act as alleged in the complaint.
d. Complaint paragraph 7(b): The Respondent’s agent, Frank
Haser, about March 17, 1997, during a telephone conversation,
threatened employees with discharge and future job loss be-
cause of their union activities
Stan Thrall testified that on March 17, 1997, he called Frank
Haser to inquire about returning to work. Thrall testified:

I asked [Haser] what was going to happen with the un-
ion. He said that he didn't know. I volunteered that I had
signed a union card. He asked my why I had done it. I told
TOPSIDE CONSTRUCTION, INC. 891
him that I kind of saw a ship sailing away and I jumped on
it. That I wasn't sure why I had done it. He asked me how I
would vote. I said that if the vote were that day, I would
more than likely vote no.
Then, he asked me if I didn't realize that if we did go
union, that there was nothing in the union contract that
would state that he had to take any of us to the next pro-
ject. That once that project was over, he would send us
back to the union hall.
He then told me that if we so much as went to a break
truck, that he would fire our butts on the spot. He told me
at that time that Topside would not be union and that he
would be in contact with me the rest of the week.
Q. Was there any discussion about crew members dur-
ing this conversation?
A. Yes.
Q. Can you tell me what that was?
A. He stated that he felt the unionization efforts had
come from the other crew. He named Mike Drury and
Chris McBride. And that he could see that Chris McBride
was stacking the deck against them in bringing Mike But-
tacavoli over because he had worked with Chris McBride
on another job for a different company.

Haser recalled speaking on the telephone with Thrall on March
17:

And we had a lengthy conversation about the situation.
Q. What do you mean by “the situation?”
A. About them choosing to go union and the way it
was done and what I thought. Again, it was all based on a
personal friendship-type thing.
I told Stan [Thrall] at that time that the biggest thing
that bothered me about the whole thing was that none of
them bothered to talk to me before they did it, or involve
me in it.
Q. Do you recall what else was said during the conver-
sation?
A. No, not enough to give testimony on, no.
Q. Do you recall whether Buttacavoli’s name came up
during the conversation?
A. It may have, yeah. It very well may have.
Q. Do you recall what context it may have come up?
A. There was some question that Stan had that he ex-
pressed that I had drawn some conclusions on Buttacavoli
and I told him that I hadn't, because I had no idea what the
man was doing or where he stood on anything, having not
talked to him.
Q. What did Stan say?
A. Stan told me that they all had signed, and that was
it.
Q. Did you respond to his statement?
A. That it surprised me. I told him that much.

Haser’s recollection of the conversation is not as detailed as
Thrall’s and is not entirely inconsistent. More importantly
Haser’s demeanor during this testimony was simply unpersua-
sive. I formed the belief that Haser was willing to deny or fail
to recall actions and statements attributed to him based on the
Respondent’s general denials of wrongdoing rather than con-
sulting his recollection and basing his answers thereon. Thrall,
however, seemingly testified from a memory of events without
elaboration. Based on the relative demeanor of the two wit-
nesses and on the basis of the record as a whole, I credit Thrall
over Haser where the two differ.
Given the factual resolution, I further find that the statements
violate Section 8(a)(1) of the Act. As correctly argued by the
General Counsel on brief, the threat to tighten working condi-
tions, treat the employees more rigidly and generally less well
if the Union represents employees, violates the Act. Lafayette
Radio Electronics Corp., 216 NLRB 1135, 1140–1141 (1975);
Penn Color, Inc., 261 NLRB 395, 396, 403 (1982).
e. Complaint paragraph 7(c): The Respondent’s agent Frank
Haser, about April 1997, on two different dates, at the Respon-
dent’s jobsite, threatened employees with closure of its opera-
tions if the employees voted for union representation
Thrall testified that he had two conversations with Haser in
late March and early April. In the first conversation, at the Prai-
rie Oaks project, Thrall told Haser of his dissatisfaction with
the Respondent and his desire to look into unionization. The
conversation included a discussion of a union pension plan
which Thrall found enticing. Thrall recalled Haser told him that
a part owner of the Respondent, Joe Lucidge, “would not allow
Topside to be union.” In a second conversation about a week
later on the same job, Thrall testified that Haser told him:
“Larry [Nizzoli] could not afford to go union and that Larry
was looking into some sort of pension plan.” Haser generally
denied threatening employees in violation of the Act.
As noted, supra, I found Thrall to be a persuasive and believ-
able witness concerning other matters in dispute. I found him
equally so with respect to this testimony. Haser’s testimony
was far less convincing and caused me to believe he was testi-
fying with an aim to avoid recollecting events which he imag-
ined would embarrass his employer. Based on these strong
impressions I credit Thrall over Haser where the two differed.
As discussed, supra, both threats of adverse consequences
for those who support the Union and more threats to close op-
erations are a violation of Section 8(a)(1) of the Act. I find
therefore that the Respondent, through Haser, violated Section
8(a)(1) as alleged in the complaint by threatening an employee
with closure of operations. I therefore sustain this allegation of
the complaint.
2. Conduct alleged to violate Section 8(a)(3) of the Act, com-
plaint paragraph 8: beginning on or about March 26, 1997, the
Respondent failed to recall employees Chris McBride, Mike
Munoz, Mike Buttacavoli, and Troy Pair
a. The Respondent’s actions at relevant times
On March 14, Drury’s crew of employees: Chris McBride,
Mike Munoz, Steve Hulse, and Troy Pair told Haser, who was
inquiring about the basis of the Union’s demand for recognition
earlier that day, that they had on their own initiative contacted
the Union. At the end of the day, as had been expected because
of the progress of work, Drury and his crew were laid off.
Drury and his crew members expected to be recalled to work in
the near future.
Mike Buttacavoli had begun work for the Respondent on
Thrall’s crew earlier that week on the recommendation of
McBride. On March 14, Thrall and his crew were also laid off
because of unsuitable ground conditions. Thrall and his crew
also expected to return to work in a few days when it was de-
termined which job could proceed.
No employees worked between March 14 and 26. On
Wednesday, March 26, the Respondent began to recall employ-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 892
ees to its Prairie Oaks job which was in its initial stage of
preparation. Haser testified that he intended Thrall to be the
foreman on this job. Thrall and returning former employee
John Cooke were the first employees on the job on March 26.
They were joined by Thrall’s crew member Harryman the next
day, and laid-off employees Young and Peterson the day fol-
lowing.
On March 27 the Respondent began 2 days’ work at its Sun
City project which was now in its undergrounding phase utiliz-
ing Drury and Thrall’s crew member, Moises Vasquez. The
following workday Drury worked at a small job, Crocker, with
a day laborer for part of the day and with several employees for
at least a day the following week. He filled out timesheets for
these short jobs as the foreman. Drury was primarily involved
at Prairie Oaks that week and thereafter working under Haser
and Thrall.
As the needs of the Prairie Oaks job increased, Haser sought
additional staff. He testified he started trying to contact laid-off
employee Munoz on March 28 and after several attempts spoke
to him on April 1. In that conversation Haser asked what
Munoz was doing and Munoz said he was working for a differ-
ent employer—Mallory. Haser did not mention recall, nor did
Munoz, and the conversation soon ended without reference to
Munoz’ employment or return to work with the Respondent.
The Respondent’s agents and Munoz did not communicate
further respecting his return to work and Munoz had not re-
turned as of the hearing.
Haser testified he also attempted to reach McBride. He at-
tempted to do so by telephone on March 28, but got no answer.
He called again on March 31: “A young lady answered the
phone and I left a message to have Chris call me.” No return
call was forthcoming. Haser testified he tried to call McBride
again on April 1 and again got no answer. Having heard there-
after that McBride was working for another contractor, Haser
testified, he ceased trying to reach him. McBride testified he
never received a message that Haser had called or to call Haser
from anyone in his household. He also testified his household
telephone is connected to a working answering machine which
he checks for messages and at no relevant time had a caller left
a message that he was to call Haser. McBride never was per-
sonally contacted to return to work and never did so to the time
of the hearing.
As described supra, Pair spoke to Haser and Nizzoli on
Tuesday, April 1, on the Prairie Oaks jobsite and was tele-
phonically offered recall by Haser that evening to begin work
the following day, which offer he accepted. Both Pair and Steve
Hulse started at the Prairie Oaks job April 2.
Mike Buttacavoli was never recalled. He regularly contacted
Thrall seeking information on recall dates until early April
when Thrall reported to Buttacavoli on Haser’s instruction that
he had been earlier hired on a trial basis and that he had not
worked out.
b. The argument of the parties
The General Counsel and the Union argue that the Respon-
dent—primarily Superintendent Haser—believed that Thrall’s
crew was behind the Union’s demand for recognition and the
Union’s filing of the representation petition and harbored re-
sentment against them for that reason. This is evident, argues
the General Counsel, from the improper interrogation of the
crew by Haser on March 14, from Haser’s statement to Thrall
on March 17, i.e., that he believed that Drury’s crew members
were responsible for the “unionization efforts,” specifically
naming Drury5 and McBride as prounion, and suggesting that
McBride was “stacking the deck against them in bringing Mike
Buttacavoli over because he had worked with Chris McBride
on another job for a different company,” and from the other
improper statements of the Respondent’s agents, Haser and
Nizzoli alleged in the complaint.
The General Counsel and the Union argue that the actual cir-
cumstances of the recall process further establish the violation.
Thus, they argue that the Respondent maintained a consistent
pattern of recalling skilled grade setters and finish blade opera-
tors before other less skilled employees until March 1997 and
the failure to recall Thrall’s crew members before the other less
skilled employees was a breech of that long-standing tradition.
Second, they argue that, beyond simple delay, the complete
failure to recall Buttacavoli, McBride, or Munoz further sup-
port their claim.
The Respondent denies union animus was a factor in the
March–April 1997 recalls and argues that the initial startup
days at the Prairie Oaks job were too few and circumstances too
unusual to support a claim that the recall was inconsistent with
an established pattern. Thus the Respondent noted the job was
to be Thrall’s as foreman, that it involved rough or rocky
ground and rented equipment requiring, because of the owner’s
restrictions, particular operators, and that the return of former
employee Cooke was an intervening factor in the recall. Further
the Respondent argues that Haser attempted to recall both
McBride and Munoz and was dissuaded only on learning that
each had obtained employment elsewhere which was evidence
that they had quit.
c. Analysis and conclusions—the standard to be applied
The Board in Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), established a test for approaching discrimination allega-
tions which was recently restated in Manno Electric, 321
NLRB 278, 280 fn. 12 (1996):

Under [the Wright Line] test, the Board has always first re-
quired the General Counsel to persuade that antiunion senti-
ment was a substantial or motivating factor in the challenged
employer decision. The burden of persuasion then shifts to the
employer to prove its affirmative defense that it would have
taken the same action even if the employees had not engaged
in protected activity. Office of Workers Compensation Pro-
grams v. Greenwich Collieries [512 U.S. 267, 278 (1994)].

Under this test it is first appropriate to determine if the Gen-
eral Counsel has met his burden of proof that antiunion senti-
ment was a substantial or motivating factor in the Respondent’s
timing of the recall of Pair, the initial attempt and subsequent
abandonment of attempts to recall employees Chris McBride
and Mike Munoz, and its decision not to recall Mike Buttaca-
voli. Should the General Counsel meet that burden as to some
or all of these allegations, the analysis will then turn to the
question of whether or not the Respondent with respect to such
allegations has met its burden of persuasion to prove its af-
firmative defense that it would have taken the same action or
inaction even if the employees had not engaged in protected
activity.

5 The complaint does not allege that the failure to recall Drury vio-
lated the Act. Drury at relevant times was on salary and was paid irre-
spective of his actual working hours.
TOPSIDE CONSTRUCTION, INC. 893
The General Counsel has established direct knowledge by
the Respondent Superintendent Haser that Drury’s crew had
gone to the Union. Based on the findings earlier made, it is
clear the Haser was hostile to Drury’s crew members for that
reason. Further, although Buttacavoli was not on Drury’s crew,
I specifically find, as detailed supra, that Haser also expressed
hostility respecting Buttacavoli who he believed to be a union
shill or salt brought into the Respondent’s employ for the pur-
pose of bringing the Union in. This is important evidence of the
Respondent’s knowledge of its employees’ union activities and
animus respecting those activities. Further, in the context of an
organizing drive and during the pendency of a Board represen-
tation election, employees who are active in support of the Un-
ion are also likely favorable votes for the Union if they are
eligible to vote.
Turning initially to the timing of the Respondent’s recall ef-
forts, there is no dispute that Pair was offered recall the evening
of April 1. Haser testified he first tried, albeit unsuccessfully, to
reach McBride and Munoz on Friday, March 28. The General
Counsel argues that the out of order recall of the employees—
before Drury’s former crew members named in the complaint
were contacted—was punishment for their actual or suspected
union activities. I reject the argument as insufficiently estab-
lished by the facts.
Quite simply, the distinctions the General Counsel wishes to
draw in the timing of the recalls are simply based on too short a
period of time to sustain the allegation. Thus, for example, I am
unable to conclude that Munoz and McBride should have been
contacted a day or two earlier than March 28 when the job was
in the very threshold stage of development. As discussed in
greater detail infra, there is insufficient evidence to challenge
the Respondent’s rehiring of Cooke who was brought to work
on Wednesday, March 26. Perhaps Munoz and McBride should
have been brought on the job on March 27, but they were not
on Thrall’s crew and it was Thrall who was to run the job. It is
clear that Pair was exercised at not having been recalled by
Tuesday, April 1. Again given the slowly developing job and
the fact that Pair was not, like McBride and Munoz, one of the
most skilled operators, there is insufficient evidence to meet the
government’s burden of proof. Accordingly, I do not find the
timing of the Respondent’s initial recall efforts improper.
McBride, Munoz, and Buttacavoli were not recalled at all.
There is no contention that the work quality or performance of
these individuals was lacking or that there was no work for
them. Each individual, however, presents a somewhat different
set of circumstances which merit separate discussion below.
There is little dispute respecting the events as to Munoz.
Haser and Munoz spoke on April 1. Haser testified: “The extent
of the conversation was pretty much that he was working for
Mallory. He was doing fine and that was it. There was no other
exchange of conversation.” Based on this exchange, and with-
out offering or discussing his recall, Haser testified he con-
cluded Munoz had quit and did not deal further with him. Mu-
noz testified that Haser asked him what he was “up to” and he
said he was working for another contractor. The conversation
then ended without Haser mentioning a recall and Munoz was
not contacted by the Respondent again.
There was substantial, essentially unchallenged testimony
that the Respondent’s employees regularly sought and obtained
other work during periods of layoff and that the Respondent
well knew this. Indeed, further unchallenged testimony indi-
cated that Haser would directly contact or pass the word along
to such laid-off employees who were working for other contrac-
tors that they were being recalled to the Respondent’s employ
and that the employees in such circumstances in fact did so.
Given this evidence, I find it incredible that Haser could so
blithely conclude that Munoz—a valued employee—had quit
his employment based on the scant information he received in
his telephone call with Munoz and that he then could end the
call without telling Munoz there was work and inquiring if
Munoz would accept recall.
This being so, and given the credited evidence of Haser’s
knowledge of and animus concerning the union activities of
Drury’s March 14 crew members including Munoz, I find that
the General Counsel has met his burden of persuasion that the
Respondent failed to recall Munoz because of his protected
union activities or because the Respondent believed Munoz was
engaging in such activities. Turning then to the Respondent’s
affirmative defense, again I do not credit Haser’s testimony that
he concluded Munoz had quit. Further, as noted supra, I have
discredited Haser where his testimony was inconsistent with the
testimony of employees and have little confidence in his testi-
mony here. Rather based upon the noted evidence and the re-
cord as a whole, I find and conclude that Haser omitted to recall
Munoz because of this union activities and would have recalled
him had there been no union activities underway.
Haser testified he tried on at least three occasions to contact
McBride by telephone, twice obtaining no answer and once
leaving a message with an individual he concluded was a young
person. On learning indirectly that McBride was employed by
another contractor, Haser testified he simply abandoned further
attempts to contact McBride in order to offer him recall. The
General Counsel and the Union challenged Haser’s version of
events and McBride testified he had an answering machine
which should have answered the phone and record any mes-
sages left but which did not have messages from Haser at rele-
vant times. I find it unnecessary to address this challenge to
Haser’s testimony respecting the mechanics of his attempting to
contact McBride. I reach this conclusion because I find, as with
Munoz above, that Haser could not have fairly concluded from
what took place that McBride had abandoned work for the Re-
spondent. McBride was a highly skilled employee who would
not have been lightly abandoned by the Respondent. Rather,
consistent with Haser’s specific statements of hostility respect-
ing McBride and union activities, I easily find the General
Counsel has met his burden of persuasion to show that McBride
was not recalled because of Haser’s hostility to him based on
his union activities and possible favorable vote for the Union.
Turning to the Respondent’s affirmative defense I find it fails
for want of credible evidence. I am unable to conclude on this
record that, had there been no union activities afoot, the Re-
spondent through Haser would have abandoned further attempts
to inform McBride there was again work at the Respondent.
Buttacavoli presents a slightly different picture because he
was a new employee and because John Cooke returned to the
Respondent’s employ.6 While Buttacavoli was not a member of
Drury’s crew, the General Counsel relies on the credited asser-
tion of Thrall that Haser believed Buttacavoli had been brought

6 The General Counsel and the Union challenged the Respondent’s
evidence that Cooke communicated a desire to return to the Respon-
dent’s employ and that the Respondent was glad to have him back.
There is no substantial contrary evidence save general suspicion offered
in opposition. Therefore, I credit the Respondent’s version of events as
to Cooke.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 894
to the Respondent by McBride to aid in the union organizing to
show that Haser especially resented Buttacavoli because of his
suspected union activities. This view is further supported and
augmented by Haser’s instruction to Thrall that Buttacavoli was
simply to be told, falsely, that he had not worked out. This evi-
dence in the context of the larger picture of the Respondent’s
unfair labor practices, including the failure to recall McBride
and Munoz as described above, sustain the General Counsel’s
burden of persuasion.
The Respondent argues that Buttacavoli was simply replaced
by Cooke, a former employee with a long track record with the
Respondent who had asked to return to work. I have found,
supra, that the evidence as to Cooke’s return has not been effec-
tively challenged. The issue then is, as the parties argued in the
alternative, whether or not, Cooke having been properly rehired
and no union activity having occurred or been suspected of
having occurred, Buttacavoli would have been retained as an
additional skilled employee or let go as replaced by Cooke.
The General Counsel presented unchallenged evidence that
workers with the degree of skill and experience to be “finish
blade operators” were a rare and prized commodity to be culti-
vated and retained whenever possible by an excavation contrac-
tor. Thus, the General Counsel argues, even if Cooke were
properly returned to employment, Buttacavoli would also have
been recalled and kept working on the job as a highly skilled all
purpose employee. The Respondent did not rebut this evidence
nor suggest persuasively that the jobs in prospect in April 1997
could not use the skills of Buttacavoli. This being so, I find the
Respondent has not sustained its affirmative defense that Butta-
cavoli would not have been recalled even had the Respondent
not known or suspected him of union activities and a future
vote for the Union.
In summary respecting this portion of the complaint, I find
that the General Counsel has not sustained his allegation that
the Respondent wrongfully delayed the recall of employees
Chris McBride, Mike Munoz, Mike Buttacavoli, and Troy Pair.
This element of the complaint allegation shall be dismissed.
The General Counsel has prevailed, however, in the allegation
that the Respondent failed to recall employees Chris McBride,
Mike Munoz, and Mike Buttacavoli because of their actual or
suspected union activities in violation of Section 8(a)(3) and (1)
of the Act.
IV. THE REPRESENTATION CASE
A. The Challenged Ballots
1. Narrowing of issues respecting challenged ballots
The Petitioner challenged the ballots of Steve Peterson, Matt
Haser, Doug Young, and Don Young. The Employer chal-
lenged the ballots of Michael Drury, Stan Thrall, Michael
Munoz, and Chris McBride. The Board agent challenged the
ballots of Mike Buttacavoli, Rodney Mosier, George Kellison,
Jess Saylor, and Kevin Uffelman.
At trial the parties stipulated that four of the five voters chal-
lenged by the Board agent—Rodney Mosier, George Kellison,
Jess Saylor, and Kevin Uffelman were not eligible to vote.
Based on the stipulation of the parties, I sustain the challenges
to the ballots of each of these individuals. The Union, at trial,
withdrew its challenges to the ballots of Steve Peterson, Doug
Young, and Don Young without opposition by the Employer.
On brief it withdrew its challenge to the ballot of Matt Haser. I
accept the withdrawal of the challenges to the ballots of these
individuals and find each of them eligible voters.
The challenges remaining for resolution concern Mike But-
tacavoli, Michael Drury, Stan Thrall, Michael Munoz, and
Chris McBride. The Employer contends that Drury and Thrall
were supervisors at relevant times and thus ineligible to vote.
The Petitioner contends that Buttacavoli, Munoz, and McBride
were employees who were wrongfully not recalled by the Re-
spondent as alleged by the General Counsel in its complaint at
paragraph 8 and in consequence eligible to vote.
2. The Employer’s challenges to the ballots of Drury and
Thrall—alleged supervisory status
As discussed, supra, the Respondent’s president is Larry
Nizzoli and its superintendent is Frank Haser. Frank Haser, as
superintendent, is in charge of all field operations. Depending
on business circumstances, the Respondent would undertake
multiple jobs at different sites. The crews at those sites would
be visited each day by Haser, but would have either a foreman
or leadman on each job. At relevant times the Respondent had
generally worked two crews, each headed by a foreman: Mike
Drury and Stan Thrall.7 The parties disputed the supervisory
status of these two individuals in two contexts: first, the parties
argued respecting their general duties and responsibilities upon
assuming the positions of foremen and, second, the dispute
focused on the narrow period between the filing of the petition
and the election
Both Drury and Thrall had been paid hourly wages when
working as grade checkers and skilled equipment operators
prior to their promotion to foremen. On assuming the position
of foreman they were each given a salary and thereafter at all
times was salaried and each received his salary irrespective of
hours worked or not worked, including periods of layoff. Other
employees at relevant times were hourly paid for time actually
worked. Each foreman received certain employer paid fringe
benefits not employer paid for other employees. Each had a
company truck, telephone, and pager. The two men conducted
regular jobsite safety meetings and filled out and submitted
time sheets on crew employees.
Michael Drury testified that on a jobsite he functioned both
as a leadman or working foreman and as a grade checker direct-
ing grading operations. Thus, he gave his crew directions re-
specting what work needed to be done based on his technical
knowledge as a grade setter and skilled machine operator and
from his reading of the grading plans and instructions from
Haser. The crew was experienced in the normal day-to-day
tasks of grading and site preparation and did not need more
than general direction and grade specification respecting how to
accomplish the work. He also was the primary source of infor-
mation and contact person for employees respecting recall
while on layoff, and made on-site job assignments between
machines depending on the needs of the job. Drury testified that
he had no power to grant wage increases or to hire, fire, layoff,
recall, or discipline employees. He testified that he reported
regularly to Haser respecting work matters and then did as
Haser instructed.
Haser agreed that he generally retained the authority to take
such personnel actions as hire, fire, discipline, or layoff, but
testified that Drury regularly made recommendations to him
respecting the layoff and recall of crew members as well as the

7 Thrall’s title was clearly foreman at least the events in controversy
as discussed infra.
TOPSIDE CONSTRUCTION, INC. 895
hire and discharge of employees, which recommendations he
would generally accept. Haser named several employees he had
either hired or fired based on Drury’s recommendation. Haser
also testified that Drury was authorized to and in fact gave em-
ployees time off on his own and reprimanded employees both
with Haser’s authorization and on his own.
Drury testified that at least until the March 14, 1997 layoff
he made recommendations respecting the layoff or recall of
crew employees to Haser and further testified that Haser at least
sometimes followed his recommendation.8 He testified that he
had recommended a wage increase for employee Munoz to
Haser, but that he did not know if an increase had been ever in
fact been granted Munoz. Haser testified that Munoz received a
wage increase based on Drury’s recommendation.
Thrall testified that at least until January 1997, he would dis-
cuss the layoff and recall of his crew members with Haser and
the two would come to an agreement on which employees
would be retained or laid off or, if the job was resuming, who
would be recalled.9 During this period he also was the employ-
ees’ primary contact respecting grievances and would deal
directly with the employees by first attempting to resolve the
grievances and, failing that, contacting Haser on the matter.
Section 2(11) of the Act defines the term supervisor:

The term “supervisor'' means any individual having authority,
in the interest of the employer, to hire, transfer, suspend, lay
off, recall, promote, discharge, assign, reward, or discipline
other employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such author-
ity is not of a merely routine or clerical nature, but requires
the use of independent judgment.

Longstanding Board law, with court approval, makes it clear
that any one of the indicia of supervisory authority set forth in
the definition is sufficient to make an employee with such au-
thority a supervisor.
The two contested foremen did not have direct, independent
authority to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, or reward employees. There are evidentiary
conflicts respecting their ability to effectively recommend such
action or to independently discipline employees or adjust their
grievances. The two clearly directed employees, but the Gen-
eral Counsel and the Charging Party contend that such direction
was merely of a routine nature and did not require the use of
independent judgment.
The General Counsel and the Union argue that the duties and
responsibilities of the foremen in giving their crews direction in
their grading work devolved primarily from their technical
qualifications as grade setters and experienced equipment op-
erators. Counsel for the General Counsel argue at page 7 of
their brief:

their authority in coordinating the assignments of their crews
flowed from their technical knowledge of the jobs’ needs and
their assessment of the crew members’ qualifications, based
on their own training and experience, not independent judg-
ment.

8 Drury testified: “Sometimes; sometimes not. It really depended.”
9 Thrall testified: “It would be a mutual agreement in that we would
discuss those things as to maybe we should bring back this guy. He
hasn’t worked in a little while. So and so has been calling me a lot,
maybe we should put him. It was more of a discussion.”
Supporting their argument, the counsel for General Counsel
cites the recent Board case of S.D.I. Operating Partners, L.P.,
321 NLRB 111 (1996). In that case, overturning the findings of
a hearing officer, the Board found a challenged voter, Decamp,
was an employee and not a supervisor. Similar to the instant
case, the employee in contention in S.D I. was the primary on
site representative of his employer and provided direction and
guidance to other employees based on his experience and skill
and the demonstrated skills of the employees. He also consulted
with his employer’s supervisors to determine the staffing needs
of particular projects. The Board found such duties and respon-
sibilities were not necessarily supervisory and did not demon-
strate the exercise of independent judgment. The Board found
that such actions involved the routine decisions typical of
leadman positions not found to be supervisory by the Board.
The Board further asserted, 321 NLRB at 112 fn. 2:

We find it unnecessary to consider the secondary indicia re-
lied on by the hearing officer, such as Decamp’s pay differen-
tial, his not being required to punch a time clock, his status as
the most senior employee at the project site, and the lack of an
on-site statutory supervisor, if Decamp were not found to be
one. In the absence of primary indicia as enumerated in Sec-
tion 2(11) of the Act, these secondary indicia are insufficient
to establish supervisory status. [Citations omitted.]

S.D I. is a recent, on-point case which I find is determinative
on these issues. The directions of the foremen here, given to
their experienced colleagues in the specifications and elevations
of grading, the equipment to be used by individual operators
and related job assignments devolved from Thrall and Drury’s
experience as graders and grade checkers and not from any
supervisory role or authority. Thus, I reject the Respondent’s
argument that the direction of the site crews herein conferred
supervisory status on either of the two foremen.
The Respondent also claims that the two individuals had the
power to independently discipline or adjust the grievances of
crew members or at least effectively recommend the hire, fire,
layoff, and recall of crew employees. Haser testified credibly
that, at least in earlier periods, while he had the final authority
in questions of hire, layoff, pay, and discipline, he discussed
these matters regularly with his foremen and took their advice
regarding the needs of the job and the skills of the employee
members of the crews. More importantly he testified he relied
on the recommendation of his foremen respecting layoff and
recall of specific individuals. Indeed Drury and Thrall—at least
for Thrall until January 1997 and Drury till March 14, 1997,
testified that they had a recommendatory role in the recall and
layoff process and that Haser, at least some of the time, took
their advice. Such a consultative process—which results in
agreements between the foreman and the superintendent re-
specting the recall and/or layoff of employees or which results
in the hire or fire of an employee—is more than simply a report
on the needed skills of the job. I find these consultations rise to
the level of effective recommendations concerning recall and
layoff of employees within the meaning of Section 2(11) of the
Act. Thus, on this basis I find that the two men were statutory
supervisors during the periods that they made such effective
recommendations.
Having found both Thrall and Drury to have been supervi-
sors of the Respondent, a further question remains: Were they
supervisors during the critical period March 14 through April
25, 1997? Stanley Thrall testified that he met with Haser and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 896
Nizzoli in January 1997 and told them: “I was unhappy with
that position, that I did not want to be a foreman. I wanted to
check grade and run equipment. That’s what I was happiest at
doing.” He testified that his superiors agreed to lighten his load:

[Larry Nizzoli] told me that Frank Haser would start
doing the time sheets. He would take that responsibility
back and he would start being on the project more; that he
would deal with the employees directly; that I would no
longer be responsible for changing diapers, dealing di-
rectly with the employees on complaints and grievances
that they had.

Haser testified that at the January meeting with Thrall:

[H]e wanted to give up his foreman’s position at that time. It
was pointed out to him that is almost an impossibility just on
the way he does his work. I and Larry [Nizzoli] agreed that
we would take some of the burden off of him for various tasks
to make the job easier for him and less involved.

Nizzoli also recalled that Thrall wanted to give up his foreman
position at this meeting and that in an attempt to satisfy Thrall
it was decided to reassign to Haser Thrall’s time recordation
duties and his obligation to make calls to the employees on his
crew.
Thrall testified that after the January 1997 meeting, he did
not maintain employee time records and generally deferred to
Haser who now spent substantially more time on the jobsite.
Thrall testified that by March and April 1997, he no longer had
any role—even one limited to making recommendations to
Haser—respecting the hire or fire, layoff or recall of employ-
ees. Thrall testified that during the March and April period until
the election he worked at the Respondent’s Prairie Oaks Phase
2 job.
Thrall described Haser’s role in the Prairie Oaks jobsite in
March and April 1997 after the March 14, 1997 layoff as that of
both superintendent and forman “calling all the shots.” Thrall
testified that his own job position at that time had been reduced
to that of leadman working under Superintendent/Forman
Haser. He testified he had no role in selecting the employees
recalled to that job and was in fact surprised at the identity of
the specific employees recalled and not recalled. While Thrall
continued to deal with employee arguments respecting operat-
ing particular equipment on that job, he testified that he dealt
with these problems by relaying the employee’s questions and
arguments to Haser without making recommendations respect-
ing them. He specifically testified that he held the view during
this time that he no longer had the authority to “order a worker
to perform a different assignment.” At all relevant times, Thrall
retained his job title, salary, and other perquisites however.10
The Respondent’s agents did not concede that Thrall’s su-
pervisory duties had been eliminated in January so much as
temporarily reduced. Thus Haser testified that he telephoned
Thrall after the March 14 layoff in contemplation of starting the
Project Oaks job and asked Thrall if he wanted to bring back
John Cook or Mike Buttacavoli. Thrall however testified that
he was never asked about Cooke, but rather was simply told by
Haser that Cooke would be hired for the job. As to Buttacavoli,

10 Thrall testified to a conversation with Nizzoli after the representa-
tion petition had been filed in which, after Thrall asked if he was still
being paid his salary, Nizzoli replied that he would have to consult his
attorney. It is also clear however, that Thrall’s salary was in fact un-
changed through the events in question.
Thrall testified that in the week of March 10, 1997,—
Buttacavoli’s first week with the Respondent—he told Haser
that Buttacavoli was doing a great job. Later in March Thrall
questioned Haser as to why Buttacavoli was not being recalled.
Thrall testified that Haser told him that Buttacavoli was not
needed and that he should tell Buttacavoli that he had not
worked out. Nizzoli testified to a conversation with Thrall just
before the election in which Thrall told him: “He had to quit,
because he just didn't want to be foreman any more.”
After the layoff of March 14, Drury testified had essentially
no role in recalling or laying off crew members. Thus, he testi-
fied that while he regularly talked to Haser about such matters
until March 14, he was not consulted at all thereafter. Drury
suggested, in effect, that once Haser learned of his own and his
crew’s role in contacting the Union and precipitating the orga-
nizing campaign and representation petition, Haser simply
ceased consulting with Drury respecting any aspect of work
supervision and treated him as an employee thereafter. Thus,
for example, he was not asked about staffing of jobs after the
March 14 layoff, his recommendations were ignored, he was
not told who was to be hired or recalled until after the event,
and he was not the individual who contacted employees for
recall to the Prairie Oaks job. Thrall testified that Haser was the
superintendent/foreman on the Prairie Oaks job, with Thrall the
leadman and Drury simply a grade checker.
Haser testified that Drury’s job duties and responsibilities
were unchanged through March and April 1997. More particu-
larly, Haser testified he consulted with Drury respecting which
employees should be utilized at the Respondent’s Crocker
worksite which work commenced on April 4, 1997, and was
Drury’s first job—i.e., a “job that was his”—after the March 14
layoff.11 Nizzoli however described that job as simply a
“housepad” job for a friend of Nizzoli that was of no conse-
quence. Drury in turn testified that even as that job started,
Haser overruled his suggestion respecting bringing in a particu-
lar employee to help him. The record timesheets suggest that
the job was a minor one and the Prairie Oaks involved the
greater payroll.
Given the record as a whole, and having found that Thrall
was a supervisor within the meaning of the Act up to January
1997, I further find that he did not have sufficient authority
after that time, and in particular during the pendency of the
representation petition to the election, to qualify as a statutory
supervisor. Thus, I find that Thrall ceased to be a supervisor
well before the petition herein was filed and thereafter became
and remained a statutory employee at all times relevant to re-
solving his ballot eligibility.
I make this finding because, as discussed above, the critical
element of Thrall’s foreman duties and responsibilities render-
ing him a supervisor in and before January 1997 was the reli-
ance Haser placed on his recommendations respecting hiring,
layoff, and recall of employees in his crew. There is a testamen-
tary conflict between Haser, Nizzoli, and Thrall respecting the
continuation of Thrall’s supervisory activities after January
1997, I credit Thrall over Haser and Nizzoli where the testi-
mony is in conflict. As discussed supra, Thrall seemed to me to
answer the questions presented him directly and forthrightly,
11 Thrall testified that he had asked Haser why Drury was not re-
called to the Prairie Oaks job consistent with his experience that the
two foremen were first to return to work. Haser told him that Drury was
not needed.
TOPSIDE CONSTRUCTION, INC. 897
with a clear recollection of what duties and actions he took
during the period. I had far less confidence in Haser’s recollec-
tion of events and actions taken in this period. I believe that
Haser testified more from a desire to sustain his employer’s
position on matters in dispute, including the issue of the super-
visory status of the Respondent’s foremen, than from a simple
memory of events. My analysis is essentially similar as to Niz-
zoli as discussed supra. Thus, for example I credit Thrall over
Haser that Thrall did not recommend that former employee
Cooke be favored over Buttacavoli for recall to the Prairie Oaks
job and find that Haser told Thrall that Cook would be used and
that Buttacavoli would not be recalled. I further find that Thrall
made no recommendations and was not consulted by Haser
respecting staffing the Prairie Oaks job. I also credit Thrall over
Haser, and Nizzoli to the extent his testimony addresses this
issue, that Haser was the active director on the Project Oaks job
and that Thrall has dropped back to a nonsupervisory leadman
role at the site.
Michael Drury like Thrall was found to be supervisor for the
Respondent prior to March 15, based on his effective recom-
mendations to Haser respecting hire, layoff, and recall of his
crew members. Unlike Thrall, Drury never communicated a
desire to the Respondent to relinquish his supervisory authority
nor did either Haser or Nizzoli, as in Thrall’s case, affirma-
tively inform him his duties and responsibilities would be re-
duced. Nonetheless, on this record, I find that at all times after
March 14, 1997, Drury as the Respondent’s employee was not
a statutory supervisor. I do so for the following reasons.
Employees who make recommendations respecting hire and
fire, layoff, and recall of other employees to the Respondent’s
agents are supervisors under Section 2(11) of the Act only if
they are effective in doing so. It is not the making of the rec-
ommendations, but the reliance on them by the agents who
have the authority to take the action involved that renders the
individual a supervisor. Thus, under this portion of the statutory
definition, it is not the authority specifically given the recom-
mending employee nor the belief of the recommending em-
ployee respecting his authority which establishes the effective-
ness of the recommendation and the actual finding of supervi-
sory status. The actions of the superior upon the recommenda-
tions determine the outcome. Thus, it was not Drury’s recom-
mendations to Haser respecting his crew which made him a
supervisor, but rather Haser’s effective reliance on those rec-
ommendations. I found Drury made such effective recommen-
dations as a foreman which were relied on by Haser and there-
fore found Drury a supervisor at least until the events in con-
troversy.
Addressing the critical later period, I specifically find on this
record that at all times after March 14, 1997, Drury was either
not consulted respecting issues of hire, fire, recall, or layoff, or
his recommendations respecting such actions to Haser were not
effective. Rather I find, as discussed, supra, under the unfair
labor practice portion of this decision, that Haser believed that
Drury and his crew were behind the Union’s organizing drive
and, in consequence, lost confidence in Drury and ceased to
have the earlier faith in Drury’s judgment or reliance on his
opinions which made Drury’s recommendation effective. Sim-
ply put, I find that Haser after March 14 did not consult with
and did not accept or rely on Drury’s recommendations to the
extent he made them.12 To the extent Haser and Nizzoli’s testi-
mony is inconstant with these findings, I discredit each on the
same basis as discussed supra respecting their testimony
regarding Thrall’s duties and responsibilities after January
1997, and credit Drury, importantly corroborated by the
previously credited testimony of Thrall respecting the post-
March 14, 1997 events.
Given all the above, I find that neither Thrall nor Drury were
supervisors of the Respondent during relevant times and there-
fore the challenges to their ballots based on their supervisory
status should be overruled.
3. Challenges to the ballots of Buttacavoli, Munoz, and
McBride—complaint paragraph 8
Having found that the Respondent’s failure to recall employ-
ees Buttacavoli, Munoz, and McBride violated Section 8(a)(3)
and (1) of the Act, supra, it follows that they should properly be
regarded as employees at all relevant times. Accordingly, I find
they were each13 eligible to vote in the election, the challenges
to their ballots should be overruled, and their ballots should be
opened and counted. I shall so recommend.
4. Summary and conclusions respecting challenged ballots
a. Agreed-on resolutions
Consistent with the agreement of the parties, I sustain the
challenges to the ballots of Rodney Mosier, George Kellison,
Jess Saylor, and Kevin Uffelman. Based on the Petitioner’s
unopposed withdrawal of the challenges to their votes, I grant
the motion to withdraw the challenges. Based on that with-
drawal I find the following voters properly cast their ballots in
the election and those ballots should be opened and counted:
Matt Haser, Steve Peterson, Doug Young, and Don Young.
b. Disputed resolutions
Respecting the challenges which remained in contest after
submission of briefs, I have found the challenges to the votes of
the following employees to be without merit and will recom-
mend their being overruled: Stan Thrall, Michael Drury, Mike
Buttacavoli, Michael Munoz, and Chris McBride
B. The Objections and Other Conduct Bearing on the Validity
of the Election
1. The objections

The Employer’s amended objections assert:

1. Operating Engineers Local No. 3 violated the laboratory
conditions of the election by promising selected employee-
voters jobs with other companies at higher wages and
fringe benefits; guaranteeing the waiver of initiation fees
for selected employee-voters; and bypassing the Union’s

12 On the same basis, crediting Drury and Thrall over Haser and Niz-
zoli, I find that Drury had no role as a foreman or supervisory authority
on the Prairie Oaks job after March 14 and that his work on the other
much less significant jobs during that period, if it could be argued to be
the work of a foreman, did not involve any of the indicia of supervisory
status set forth in Sec. 2(11) of the Act.
13 McBride and Munoz, long time employees, easily meet the for-
mula for voter eligibility set forth in Daniel Construction, 133 NLRB
264 (1961), restored to application in the construction industry in Steiny
& Co., 308 NLRB 1323 (1992), and applicable here. Buttacavoli, con-
structively employed at all relevant times also meets the standard for-
mula for voter eligibility incorporated in Daniel and Steiny.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 898
standard job referral practices, providing preferred registra-
tion in the Union’s Job Placement Center, dispatching only
selected employee-voters to higher paying jobs as a condi-
tion of and to induce and encourage their support for the
Union.
2. Michael Drury, Steve Peterson, and Troy Pair were allowed
to vote before the polls were scheduled to open, in contra-
vention of the parties’ Stipulation to the Election and the
Board’s [R]ules and [R]egulations governing the conduct
of elections.
3. Several Union representatives engaged in electioneering
and other union activity including the use of cellular tele-
phones within 5 to 10 feet from the entrance to the polling
place after the voting began and within minutes after three
employees voted in the election.
4. Union representatives violated the parties’ preelection con-
ference agreement which clearly designated no-
electioneering areas during the election.
5. The Employer objects to the Union’s use of Michael Drury,
a supervisory employee, as the Union’s election observer.
6. Voters Stan Thrall, Michael Drury, Troy Pair, Kevin
Weatherington, Scott Cook, and Craig Scott had already
accepted offers of employment from the Union before they
voted in the election and were, therefore, no longer em-
ployees of the employer at the time of the election.
7. Voters Stan Thrall, Michael Drury, Troy Pair, Kevin
Weatherington, Scott Cook, and Craig Scott had already
accepted offers of employment from the Union before they
voted in the election and had, therefore, quit their employ-
ment with the Employer before they voted in the election.

The Regional Director’s report in charging the judge with the
duty to consider and make recommendations respecting the
disposition of the objections asserted in part at page 4:

In addition the allegations of the complaint shall also be con-
sidered to the extent they bear on the validity of the election.
White Plains Lincoln Mercury, 288 NLRB 1133 (1988).

These objections are best grouped and discussed as follows.

2. Objection 1
The Operating Engineers Local No. 3 violated the laboratory
conditions of the election by promising selected employee-
voters jobs with other companies at higher wages and fringe
benefits; guaranteeing the waiver of initiation fees for selected
employee-voters; and bypassing the Union’s standard job re-
ferral practices, providing preferred registration in the Union’s
Job Placement Center, dispatching only selected employee-
voters to higher paying jobs as a condition of and to induce
and encourage their support for the Union.14

While the Employer’s objection has multiple parts, for the
reasons set forth below, find that with respect to each part of
objection 1 the Employer has failed to meet its burden of proof
that the conduct alleged occurred.
The Employer conducted extensive examination of numer-
ous witnesses concerning the representations of the Union’s
agents to employees about the availability of other work. It is
clear that the union representatives were very cautious in their
representations. The Union informed employees, as the Em-

14 The discussion of Objections 6 and 7, infra, are related to the in-
stant objection.
ployer advances on brief at 3–4, that, if the Employer
“fold[ed],” refused to sign a union contract or discharged the
employees, there was work for experienced employees in the
industry. There is no evidence that the Union made promises to
obtain for the employees work or priority in employment which
they were not otherwise entitled to receive from the Union
simply as employment applicants to the hiring hall.
It is clear that at least some of the Employer’s employees in
the preelection period were anticipating superior employment
working under a “union contract” which would have been eco-
nomically superior to that then on offer from the Respondent.
The Employer points to statements of certain employees among
themselves in the preelection period that the employees were,
in essence, assured of union wages and benefits. Many of the
employees, however, made it clear in their testimony that, in
the employees’ view at that time, working under a union con-
tract was a state of affairs which could have occurred under
several alternative scenarios, one of which was being employed
by the Employer after it had recognized the Union, before or
after the election, and negotiated and signed a union contract.15
The alternative mechanism to come to work under a union con-
tract in the employees view at that time, were the Employer to
close in the face of union organization—as had been threat-
ened, were the Employer to terminate the employees—as had
been threatened, or were the Employer to raise other problems,
was for the employees to then seek “union” employment else-
where in the favorable conditions then pertaining in the local
area economy and the trade. I simply do not find this evidence
sufficient to support the Employer’s claim that the employees
preelection aspirations and musings were evidence of improper
union promises.
There was no evidence offered sufficient to support a finding
that the Union guaranteed to waive initiation fees for selected
employee-voters. Nor was there evidence that the Union prom-
ised or actually acted to skip or bypass union referral practices
in order to benefit any or all employees of the Employer. The
Employer introduced evidence that various of its former em-
ployees received referrals through the union hiring hall and
came to acquire journeyman positions when the referred em-
ployees had neither completed apprenticeship programs or had
sufficient experience with qualifying employers to receive such
status. This evidence was not entirely unchallenged by the Un-
ion,16 but the Petitioner argued primarily on brief at 2 that the
Respondent’s evidence did not connect the Union with any
irregular conduct and “offered only speculation and innuendo,
but no evidence, that the Union gave anyone any special treat-
ment with respect to hiring hall referrals.” I have considered the
record evidence of the Union’s treatment of the Respondent’s
employees in light of the Employer’s arguments regarding spe-
cial treatment. I do not find the evidence respecting how the
employees were treated after having received referrals from the
Union to persuasively suggest the Union acted improperly. I do
not find the evidence offered by the Employer as suggesting the
Union favored these individuals over others of like standing
15 Drury testified he did not decide to end his employment with the
Respondent until he learned after the election and ballot count that the
Employer would not recognize the Union, but would rather “fight it.”
16 The Union adduced evidence that the employees who received re-
ferrals in short order did so because they accepted employment referrals
to work that did not pay the full journeyman rate and which, in conse-
quence, were not sought after by other hiring hall registrants. The Em-
ployer did not successfully challenge this evidence.
TOPSIDE CONSTRUCTION, INC. 899
under the hiring hall practices supports the claim asserted. I
find there its simply insufficient evidence to support a finding
of union improprieties in the operation of its hiring hall referral
process with respect to any employee of the Respondent. Ab-
sent such a finding there may be no finding that the Union im-
properly favored these individuals.
Given all the above, I find each of the subparts of the Em-
ployer’s Objection 1 lacks a factual foundation and therefore
the objection lacks merit. That being so, and on the basis of the
record as a whole and the credibility resolutions made above, I
shall recommend the objection be overruled in its entirety.
3. Objection 2
Michael Drury, Steve Peterson, and Troy Pair were allowed to
vote before the polls were scheduled to open, in contravention
of the parties’ Stipulation to the Election and the Board’s
[R]ules and [R]egulations governing the conduct of elections

There is no dispute that, on request and with the approval of
the Board agent conducting the election, the two election ob-
servers cast their ballots under the challenged ballot procedure
and a third employee cast his ballots out of sight of all other
employees a few minutes before the scheduled polling period
commenced.17 Early voting is not permitted by the Board’s
guiding rules and regulations or procedures.18 It was not per-
mitted under the terms of the parties’ election agreement. No
discussion of the “early vote” procedure occurred at the pree-
lection conference or any other time nor was permission of the
parties solicited nor given at any time. In giving the two ob-
servers and the third employee permission to vote early, the
Board agent acted inconsistent with the Board’s procedural
requirements—he clearly goofed. Three voters cast ballots—
two challenged on other grounds and a third voting without
challenge.19 The Respondent argues this conduct is objection-
able and requires the election results be set aside and a new
election conducted.
The Petitioner emphasizes: (1) that the early ballots would
have been cast by the three voters in all events, i.e., had permis-
sion to vote early been denied them and, (2) that no other voters
during the polling period were ever aware of, and hence could
not have been affected by, the early voting. The Petitioner also
cites Rosewood Care Center, 315 NLRB 746 (1994). In that

17 Perhaps 5 minutes before the polls opened the Union’s observer,
Michael Drury, asked the Board agent if he could vote. The Board
agent gave his approval and Drury cast a challenged ballot. The Em-
ployer’s observer, Steve Peterson, made a like request and received like
permission, thereafter casting a challenged ballot. A minute or two
later, but still before the polls opened, Drury asked the Board agent if
employee Troy Pair, who was present, see further discussion, infra,
could also vote with the same permission given and vote cast—on this
occasion an unchallenged ballot.
18 The Board’s Casehandling Manual (Part Two) Representation
Proceedings, sec. 11318.5 states that early arriving voters should not be
permitted to vote prior to the scheduled polling time. The section in-
structs the Board agent not to send the votes away but rather to ask
them to line up and, if a voter states, he or she must leave, to inform the
voter of the hours available for voting.
19 Peterson’s ballot was challenged by the Charging Party, who
withdrew that challenge without objection by the Employer at the hear-
ing. In the section of this report and recommendation dealing with the
challenged ballots, I recommend that his ballot be opened and counted.
Drury’s ballot was challenged by the Employer as the vote of a supervi-
sor. In the section of this report and recommendation dealing with the
challenged ballots, I find he was not a supervisor at relevant times and
recommend that his ballot be opened and counted.
case the Board held that, if the parties agree to allow a voter to
cast a ballot before the formal opening of the polls, that ballot is
valid and a challenged ballot cast in such circumstances should
be opened and counted.
The Respondent notes that the Board has announced a bright
line rule terminating the balloting at the end of the voting pe-
riod absent the agreement of the parties or extraordinary cir-
cumstances. Thus, the Board now holds that any challenged
ballots cast after the close of the balloting, absent the agreement
of the parties or extraordinary circumstances, will not be valid
and the challenges will be sustained. Monte Vista, 307 NLRB
531 (1992). The Employer argues that the rationale for such a
rule concerning the end of the balloting period applies with
equal force to the start of the polling period and that, accord-
ingly, the election herein should be held invalid.
There does not appear to be a Board case dealing with early
voting which was not approved by the parties as per se objec-
tionable conduct. The Monte Vista and Rosewood cases cited
by the Petitioner and the Employer deal with the issue only in
the context of the validity of the challenged ballots cast in such
circumstances. Neither case addresses the question of whether
or not the casting of unchallenged ballots in such circumstances
taints the entire election process and is thus objectionable and
requires a new election. The distinction between consideration
of a given challenged ballot as valid or not and consideration of
whether or not the conduct is objectionable and requires that
the election be set aside is important and must be kept in mind
in considering the Board’s cases in this area.
In addressing objections to the conduct of an election, the
Board finds irregularities in the enforcement of polling periods
requires the election be set aside in several circumstances. First,
as part of its long-established desire to avoid even the appear-
ance of agency or Board agent partisanship, the Board tends to
view any election irregularities, including irregularities in the
controlling of the opening and closing of the polls, which might
arguably suggest to the parties or the voters that the Board per-
sonnel or its rules and procedures had played an inequitable or
partisan role in the election process as requiring a new election.
In the instant case, although the Board’s procedures were not
complied with, it is clear that there is not even the arguable
appearance of partisanship in the Board agent’s approving the
request that the two observers and a third voter cast ballots a
few minutes early. Indeed the voting requests were initiated by
both parties observers and objected to by neither. As in the
Cesarean Apothegm, the agent may be viewed in this instance
as having acted above suspicion.
The Board has also been concerned with the precise timing
of the ending the polling period because closing time disputes
or difficulties frequently involve questions of whether or not a
voter will be allowed to vote at all. Challenged ballots cast
outside the polling period may be found valid or invalid and
counted or not as appropriate. A late voter not allowed to cast a
challenged ballot is a voter whose vote will never be cast. Er-
rors that involve such thwarted ballots are not easily remedied.
So, too, voters who cast unchallenged ballots in circumstances
in which the propriety of their votes are in issue—because there
is no ballot separate from the other cast ballots to be preserved
for later consideration—present similar issues.
In these and similar situations where the difficulty is beyond
remedy by use of the challenged voter procedures, the Board
considers the arithmetic possibility of the unchallenged voters
ballots, either cast or not cast, effecting the results of the elec-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 900
tion. Thus, the Board, with court approval, found that although
a Board agent may have wrongly denied four or five voters who
arrived just after the end of the balloting period the right to
vote, the action did not affect other voters and the 4 or 5 ballots
involved could not have arithmetically effected the outcome of
the election. Bancroft Mfg. Co., 210 NLRB 1007, 1012 (1974),
516 F.2d 436, 445 (5th Cir. 1975). This is consistent with the
Board’s general standard of evaluating objections based on the
integrity of the election process, i.e., is to assess whether or not
if there is any reasonable possibility of the conduct affecting
the outcome of the election. Peoples Drug Stores, 202 NLRB
1145 (1973).
Early balloting does not pose the same problems as late bal-
loting because early voting—be it allowed or denied—will very
rarely cause a voter to change whether or not he or she actually
votes. Thus, those voters who were allowed to vote early, i.e.,
before the polls opened, would have voted later, i.e., when the
polls formally opened, if not allowed to vote early in essentially
all cases. While one might imagine a situation where, through
some rigid scheduling or other restriction a voter must vote
early or not at all, this is clearly not the case herein where the
two observers were present through the entire balloting period
and the third voter was also available throughout the period and
thus would have been able to vote during the polling period.
Given all the above, in particular the cases cited and the re-
cord as a whole, I find the Respondent’s objection lacks merit. I
reach this result for the following reasons. First, the election
irregularity—allowing three voters to vote 3–5 minutes early—
was not of evident benefit to one party or the other nor could
the Board agent’s conduct be seen as having a partisan or unfair
motivation. Thus, there is no need to set aside the election to
avoid the suspicion that the Agency, the Board agent, or the
process favored one side or another. Second, the irregularity did
not effect the votes of either the three voters involved or any of
the other voters. The voters not involved, i.e., all but the three,
were at all times unaware of the event and thus were totally
unaffected by the matter. The three voters would clearly have
cast their ballots within the actual polling period had they not
been allowed to vote early. Thus, the election outcome could
not have been affected. In such situations, the Board does not
overturn the results of an election.
Were the Board to disagree with my conclusion that the bal-
lots of the three who voted early could not have been affected
by the early vote, further analysis might be necessary. In order
to avoid the need for a remand should reviewing authority dif-
fer, I make the following further conditional analysis and con-
clusions assuming my earlier conclusion was error and that the
three early ballots must be viewed as potentially improper.
Were this so, a finding I make only for the purpose of this con-
ditional analysis, the Board test would be: could the three bal-
lots—or whatever number were found improperly included in
the election tally—affect the outcome of the election?
Initially, under such a conditional analysis, it must be noted
that, if these three ballots are considered improper and their
potential for effecting the outcome of the election is a relevant
question, two of the three ballots are currently under challenge
and have not at the time of the issuance of this report and rec-
ommendation been opened and counted. Although the chal-
lenges to the ballots of Drury and Peterson have been found
insufficient and the opening and counting of these two ballots
recommended, supra, those recommendations would not neces-
sarily be appropriate, if the Board found that one or more of the
ballots was improperly cast. The status of two of the three bal-
lots as challenged means that they may be withheld from the
final tally if they are not considered properly included. In ef-
fect, the Board need not consider the potentially objectionable
consequences to the validity of the election of these two ballots
to the outcome of the election, where they have not yet been
and need not, in such circumstances, be opened and counted as
part of the final tally of ballots.
The third ballot arguably improperly cast in this conditional
alternative analysis is therefore the only ballot unretrievably
cast and the only one which should be considered in resolving
the objection. The issue then resolves down to the question:
Does this single, assumedly improperly cast, ballot have the
potential to effect the outcome of the election? Since the chal-
lenges are currently determinative of the outcome of the elec-
tion it is possible that the single ballot could affect the result.
This single ballot may ultimately—after all other valid bal-
lots are opened and counted—be determinative of the election
results. In terms of simple mathematical probability, it would
likely not—i.e., when all the valid ballots are cast, the margin
of victory or defeat of the Union will likely be sufficient that
one more ballot either way will not change the result of the
election. The result awaits the final tally of all valid ballots. If
the Board holds that this is the proper test of the objection, then
the proper procedure would seem to be to reserve the objection
issue until the challenges are finally resolved and all valid bal-
lots are opened and counted. If the results of the election turns
on this single vote, the objection could be further addressed.
Summarizing this conditional alternative analysis, even if the
Board were to find the early ballots invalid, they could be con-
sidered objectionable only if they were sufficient in number to
effect the final outcome of the election. Since two of the three
votes are still in segregated challenged envelopes, if they were
improperly case they should not be opened. If the third vote
was improperly case, the objection would depend on whether or
not that single vote could effect the results of the election. The
only way to resolve such an issue would be to reserve final
ruling on the objection so that, in the event that after final reso-
lution and tally of the valid challenged ballots the vote is de-
terminative of the results of the election, the objection could be
further considered.

4. Objections 3 and 4
Several union representatives engaged in electioneering and
other union activity including the use of cellular telephones
within 5 to 10 feet from the entrance to the polling place after
the voting began and within minutes after three employees
voted in the election. Union representatives violated the par-
ties’ preelection conference agreement which clearly desig-
nated no-electioneering areas during the election

Two situations are at issue under these objections. The first
arose in the voting area a few minutes before the polling was to
begin. Michael Drury was selected to be the Union’s election
observer, presumably at the preelection conference held about 1
hour proceeding the 3 p.m. opening of the polls. This may have
engendered controversy, see Objection 5 and the discussion
thereof, infra. In all events, the Employer’s objection to the use
of Drury was “duly noted.” Thereafter, the union officials ap-
parently had second thoughts respecting their selection of
Drury as observer. Tony Pair was asked by the union officials
to substitute for Drury. He consented to do so and Pair went
into the polling area. A few minutes later the three union offi-
TOPSIDE CONSTRUCTION, INC. 901
cials followed into the polling a few minutes before the polls
were to open and asked the Board agent’s permission to effec-
tuate the substitution of Pair for Drury as the union observer.
The Board agent told the union officials they could make such a
substitution only with the Employer’s agreement. The union
official using a cellular phone and without leaving the area
telephoned the Respondent’s superintendent and asked for per-
mission to substitute Pair for Drury. Haser told him he could
not and the call ended. The substitution of observers was not
effected and the union officials left the area.
The timing of these events in relation to the 3 p.m. opening
time for the poll and the early voting of Drury, Peterson, and
Pair is not precise. Peterson recalled that the three had voted
and Pair was leaving the area after casting his ballot when the
union officials arrived. He recalled they arrived and spoke to
the Board agent at about 2 minutes to 3 p.m.. By the time they
had called Haser and left the area with Pair it was close to 3
p.m. Following these events Peterson recalled there was a pe-
riod of “dead quiet” in the polling area. The next voters entered
the area and voted about 15 minutes later.
The second circumstance raised by the Employer was de-
scribed by the Employer’s observer Peterson. Peterson and
Haser testified that in the preelection conference it was agreed
that agents of the parties would stay out of the building and
building parking lot during the polling period and come no
closer to the polling area than the sidewalk
Peterson testified further that during the polling period he
observed a union official come from the sidewalk on to the
parking lot where he entered his car and obtained an item and
then returned to the sidewalk. Haser observed two union offi-
cials sitting in their car in the parking lot using a cellular phone
and writing in the final minutes of the polling period at a time
when employees were still in the voting area and others were
on the outside sidewalk area. The Employer argues that the no-
electioneering rule was violated by the Union and a new elec-
tion is necessary.
The Employer, citing Milchem, Inc., 170 NLRB 362, 362–
363 (1968), argues that this conduct rises to the level of last
minute electioneering, is objectionable, and requires a new
election. Milchem asserts at 170 NLRB 362:

Careful consideration of the problem now convinces us that
the potential for distraction, last minute electioneering or pres-
sure, and unfair advantage from prolonged conversations be-
tween representatives of any party to the election and voters
waiting to cast ballots is of sufficient concern to warrant a
strict rule against such conduct, without inquiry into the na-
ture of the conversations.

The Union counters that the conduct at issue does not involve
any conversations with voters during the polling period or
while they were waiting to vote and emphasizes a different
portion of Milchem at 170 NLRB 363:

We intend, of course, that our application of this rule will be
informed by a sense of realism. The rule contemplates that
conversations between a party and voters while the latter are
in a polling area awaiting to vote will normally, upon the fil-
ing of proper objections, be deemed prejudicial without inves-
tigation into the content of the remarks. But this does not
mean that any chance, isolated innocuous commend or in-
quiry by an employer or union official to a voter will neces-
sarily void the election. We will be guided by the maxim that
“the law does not concern itself with trifles.”

I find that neither of the incidents relied on by the Employer
supports a finding of improper union conduct under Milchem
which requires the election be set aside. The prepolling contacts
between union officials, the election observers, the Board
agent, and employee Pair took place and was concluded with
the union officials out of the area before the polling period
began. As described above, the three “early bird” voters who
were present during this event had voted before the union offi-
cials appeared in the polling area. No other voters arrived in the
polling area until 15 minutes into the polling period. Thus,
there is no evidence any voters were conversed with by union
officials while awaiting an opportunity to vote or within the
polling period in the polling area.
The second circumstance—the presence of the union offi-
cials in their car in the parking lot or going to and coming from
the vehicle, is insufficient under Board cases to require a new
election. There is no evidence that any employee was in contact
with these officials during the period under question. The fact
that the employees could see and presumably observed the
union officials in such circumstances during the polling period
is not enough without more to require a new election.20
Given all the above and on the record as a whole, I am con-
vinced that the evidence does not support a finding that the
union behavior under challenge warrants the direction of a new
election. I shall therefore recommend that the objections be
overruled.

5. Objection 5
The Union’s use of Michael Drury, an alleged supervisory
employee, as the Union’s election observer

Having found Drury at all relevant times not to be a supervi-
sor, the Employer’s objection lacks a factual foundation and I
shall recommend that it be overruled.21

6. Objections 6 and 7
Various individuals cast ballots after accepting employment
offers from other Employers

While contesting the underling factual assumptions in the
objection, see the discussion supra under Objection 1, the Un-
ion argues that these objections are simply postelection chal-
lenges in the guise of objections. Thus, argues the Petitioner,
challenges must be made prior to the actual casting of ballots,
and unchallenged ballots are given absolute finality citing
NLRB v. A. J. Tower, 329 U.S. 324 (1946).
The Union also argues that even were the employees, or any
of them, found to have quit their employ at the conclusion of
work on the day of the election, they would still be eligible to
vote in the election. The Board so holds with court approval. In
NLRB v. General Tube Co., 331 F.2d 751 (6th Cir. 1964), enfg.
141 NLRB 441 (1963), the challenged voter notified her em-

20 Further, to the extent the Employer argues these events may well
have suggested to employees that the agency was not neutral in the
representation process, I find that the facts simply do not logically
support the proposition asserted and therefore the argument fails for
want of an evidentiary predicate.
21 This being so, it is unnecessary to reach the two remaining issues
advanced by the parties respecting this objection: (1) whether or not, if
Drury was a supervisor, the objection has merit in law and (2) whether
or not the Employer is estopped from making this argument because the
Union attempted to substitute a different individual as its observer
before the polls opened, but the Employer opposed the Union’s action.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 902
ployer in the morning of the day of the election that that day
would be her last day of employment and cast a ballot chal-
lenged by her employer later that day in the election. The Board
found her an eligible voter. The Board’s position that an em-
ployee’s notification of an intention to quit is immaterial and
the voter eligibility issue is entirely one of whether or not the
voter worked on the day of the election was sustained by the
court.
Accordingly, I find the objections lack merit and I shall rec-
ommend they be overruled.22

7. Other conduct alleged in the complaint
a. Threshold issue of judicial authority to act
The Regional Director’s report in charging the judge with the
duty to consider and make recommendations respecting the
disposition of the objections asserted in part at page 4:

In addition the allegations of the complaint shall also be con-
sidered to the extent they bear on the validity of the election.
White Plains Lincoln Mercury, 288 NLRB 1133 (1988).

The allegations of the complaint are directed solely against the
Respondent/Employer; no allegations are directed against the
Charging Party/Petitioner. The only objections filed, insofar as
the record reflects, are those filed by the Employer seeking to
set the election aside if resolution of the challenges results in a
final tally of ballots in favor of the Union.23 Misconduct of an
employer is generally not a basis for setting aside an election
victory for a labor organization. Presumably, then, the Direc-
tor’s report charges the judge to consider the allegations of the
complaint in determining to set the election aside in the event
the resolution of the challenges results in a union defeat in the
election. It would be unusual to set aside a labor organization
election defeat and direct a new election in the absence of union
objections based solely on an employer’s objections to a union
election victory. This seems however to be the only possible
reading of the Regional Director’s instructions respecting the
complaint allegations.
A Regional Director may appropriately under the Board’s
Rules and Regulations Section 101.9(b) refer to an administra-
tive law judge in a consolidated matter such as the instant cases
the consideration of any objections or other conduct relevant to
the investigation of the circumstances of an election which
could be appropriately considered by the Regional Director.24
Therefore, if the Regional Director could properly set aside a

22 To the extent that this objection arguably raises issues respecting
the challenged ballots of employees Thrall and Drury, the doctrine
discussed here is also controlling and despositive as to their possible
disenfranchisement as employees who had announced an intention to
quit.
23 When unresolved determinative challenges exist, it is impossible
to know whether or not the union won or lost the election. Objections
filed during such a period therefore have a conditional aspect. The
objecting party seeks to have the election results set aside and a new
election directed only if the objecting party loses the election. So, too,
when the Board or the Regional Director finds merit in objections,
during a time that determinative challenges have not been finally
opened and counted, it directs a conditional election be held if and only
if the objecting party loses the election under challenge.
24 The proposition is limited to those matters placed before the judge
by the Regional Director in his or her report. Thus a judge may not go
beyond the issues raised by the Regional Director’s report. Precision
Products Group, 319 NLRB 640 (1995).
union defeat and direct a new election based on employer mis-
conduct considered during the investigation of the employer’s
objections, so, too, it would be appropriate—given the neces-
sary findings of fact and conclusions of law respecting the con-
duct—for me to make such a recommendation to the Board.
The question remaining then is whether or not the Regional
Director during the investigation of an employer’s objections
and in the absence of a union’s objections may set aside an
employer election victory based on employer misconduct.
As noted in the quoted portion of the Report, the Regional
Director cites White Plains Lincoln Mercury, 288 NLRB 1133
(1988), as authority for the instruction in his Report that the
complaint allegation conduct be considered. The White Plains
decision revisits and harmonizes two seemingly conflicting
lines of Board law: the first line of cases holding that a Board
election may not be set aside under any circumstances without
timely objections having been filed to it and the second line of
cases holding that the Regional Director in investigating the
circumstances of an election as part of an investigation of
timely objections may, in the Regional Director’s sole discre-
tion, broaden the investigation into areas not mentioned in the
objections.
The Regional Director implicitly assumes in his report that
during the pendency of the investigation of the Employer’s
objections, not just conduct by the Union alleged in the objec-
tions or even any and all conduct by the Union which might
form a basis for setting aside the election, but all conduct in-
cluding the Employer’s conduct may be properly considered in
determining if the election outcome—be it union or employer
victory—should be set aside and a new election conducted.
White Plains Lincoln Mercury, supra at 1137, notes that the Act
gives the Board the authority to ensure that the election process
is protected from conduct by either party that may interfere
with the employees exercise of free choice. The Board finds
that this statutory authority and the elections procedures pro-
vided in its Rules and Regulations including the objections
procedures provided therein gives the Regional Director sole
discretion, once objections are filed and the integrity of the
election is thus raised, to broaden his investigation to include
areas not mentioned in the objections. The case does not limit
the Regional Director’s investigative discretion further. Given
that this is so, the case seems to support the Regional Director’s
implicit assertion that in an investigation of an employer’s ob-
jections, evidence of misconduct by the employer may be con-
sidered in making a determination respecting the validity of the
election even though no union objections had ever been filed.25
Given all the above, I find it is appropriate to consider the
evidence offered in support of the allegations of the complaint
in determining the validity of the election.
b. The validity of the election in light of the complaint evidence
I have found, supra, that the Respondent committed numer-
ous violations of Section 8(a)(1) and (3) respecting a significant
proportion of the bargaining unit involved in the election all of
which occurred between the filing of the representation petition
25 While White Plains Lincoln Mercury, and the cases cited therein
make it clear that an election may not be set aside without objections
having been filed, there seems to be no authority asserting that an elec-
tion may only be sit aside based on the objections of the losing party to
the election. Thus the absence of union objections is no hindrance to
setting aside an employer victory in the election given the pendency of
the Employer’s objections.
TOPSIDE CONSTRUCTION, INC. 903
and the conduction of the election. Such illegal conduct, when
as serious and extensive as that found herein, constitutes con-
duct which interferes with laboratory conditions and the exer-
cise of free and untrammeled choice in the election. Hopkins
Nursing Care Center, 309 NLRB 958 (1992). It follows there-
fore that, this conduct be found objectionable.
Accordingly, I shall recommend to the Board, if on resolu-
tion of the determinative challenges in this case the Union has
lost the election,26 a new election should be directed.

8. Summary of findings respecting the Employer’s objections,
other conduct, and the election’s validity

I have found that each of the Employer’s objections is with-
out merit and should be overruled. Accordingly, I shall recom-
mend to the Board that it overrule the Employer’s objections in
their entirety and, in the event final resolution of the challenges
results in the Union receiving a majority of valid votes cast,
that the Board certify the Union as the exclusive representative
of the employees in the unit.
I have also considered the evidence of misconduct alleged in
the complaint which the Regional Director’s report directed me
to consider and concluded based on that evidence that the Em-
ployer has engaged in conduct which is objectionable and re-
quires a new election should the union lose the election. Ac-
cordingly, I shall recommend to the Board that in the event
final resolution of the challenges results in the Union receiving
less than majority of valid votes cast, that the Board set those
election results aside and direct a new election at an appropriate
time and place.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and take certain affirmative action designed to effectuate the
purposes and policies of the Act including the posting of reme-
dial notices.

26 The misconduct of the Employer is, of course, not a proper basis
for setting aside the election in the event the Union, on resolution of the
determinative challenges, prevails in the election.
In remedying the violations of Section 8(a)(3) and (1) found
herein, the Respondent will be directed to offer its employees
who were wrongfully denied offers of recall immediate rein-
statement to their former positions discharging, if necessary,
any replacements hired after the date their recalls should have
been offered or, in the event those positions no longer exist, to
substantially equivalent positions. Further, the Respondent shall
make each employee wrongfully denied recall whole for any
and all loss of earnings and benefits he may have suffered
commencing at the time the employee would have returned to
work if properly recalled, with interest. The make-whole and
interest provisions shall be calculated in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp.,
231 NLRB 651 (1977), with interest as prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987); see also Isis
Plumbing Co., 138 NLRB 716 (1962).
CONCLUSIONS OF LAW
1. The Respondent, Topside Construction, Inc., is and has
been at all relevant times an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by:
(a) Interrogating employees about their union activities.
(b) Threatening employees with unspecified reprisals for ex-
ercising their protected right to file unfair labor practice
charges.
(c) Threatening employees with discharge and future job loss
because of their union activities.
(d) Threatening employees with closure of the Respondent’s
operations if the employees selected a union to represent them.
4. The Respondent violated Section 8(a)(3) and (1) of the
Act by failing to recall the following employees because the
employees were engaged in union activities.

Mike Buttacavoli Chris McBride
Mike Munoz

5. The above-unfair labor practices constitute unfair labor
practices effecting commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]