Wilson Tree Co.

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 883 (N.L.R.B. 1993)

883
312 NLRB No. 134
WILSON TREE CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
Additionally, the Respondent’s exceptions implicitly allege that the
judge’s findings are a result of bias. After a careful examination of
the entire record, we are satisfied that this allegation is without
merit.
The judge states in sec. I,B,4 of his decision that Brian Messer
resigned from the Union ‘‘only after [general foreman] Spry spoke
to him a second time and Adams told him that it could cost him
his job if he did not do so.’’ In fact, Messer testified that it was
General Foreman Lando Adkins who told him failure to resign could
cost him his job. The judge’s inadvertent error does not affect his
finding that the conduct violates Sec. 8(a)(1).
2 The judge found that the Respondent violated Sec. 8(a)(1) by the
November and December 1991 conduct of its agent, Asplundh Gen-
eral Foreman Michael Bolen. Although there is ample evidence to
establish Bolen’s agency status during December, as found by the
judge, the record fails to establish that he was the Respondent’s
agent in November. However, as the November conduct was re-
peated or referred to by Bolen during conversations in December
which were also found unlawful, we find it unnecessary to rely sepa-
rately on or to further consider the November incidents or to modify
the judge’s recommended Order.
3 Chairman Stephens would deny the Union’s motion to withdraw
the 8(a)(5) charge in the instant matter. The memorandum in support
of the motion states that it is submitted because of ‘‘the untenable
position’’ in which the Union has been placed due to the length of
time that has elapsed since the Respondent refused to recognize and
bargain with it and the time that will elapse before the matter is ulti-
mately resolved. The memorandum also notes that ‘‘[t]he employees
in the unit have become disillusioned with the [Union] and the
progress it is making in representing them.’’ It is apparent from
these references that the motion to withdraw is not in furtherance of
any mutual resolution of the instant labor dispute. Inasmuch as the
Chairman agrees with the judge’s findings that the Respondent vio-
lated Sec. 8(a)(5) by refusing to recognize and bargain with the
Union and by soliciting employees to resign from the Union, and in-
asmuch as employee disillusionment is the direct and foreseeable re-
sult of such unlawful conduct, the Chairman finds that the policies
of the Act would best be served by putting the employees on notice,
through the instant Decision and Order, that their right to representa-
tion by the Union was unlawfully abridged by the Respondent.
Thereafter, if the Union desires to disclaim its interest in represent-
ing the employees, the Chairman would entertain an appropriate mo-
tion. Wells Fargo Armored Service Corp., 290 NLRB 936 fn. 1
(1988) (new evidence of union’s disclaimer of interest admitted and
order to bargain modified appropriately, but employer’s motion to
dismiss complaint as moot denied; union’s disclaimer did not negate
judge’s finding that employer violated the Act and employees enti-
tled to an order and notice ‘‘for without such their Sec. 7 rights will
have been chilled’’). The Chairman further notes that the General
Counsel has not acted in support of the Union’s motion.
Wilson Tree Company, Inc. and International
Union of Electronic, Electrical, Salaried, Ma-
chine and Furniture Workers, AFL–CIO–CLC,
and its Local 732. Cases 9–CA–29270 and 9–
CA–29511
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On December 2, 1992, Administrative Law Judge
Walter H. Maloney issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions,2 as modified below,
and to adopt the recommended Order as modified.
1. The judge found, among other things, that the Re-
spondent is a successor employer to Asplundh Tree
Expert Co. (Asplundh) and that it violated Section
8(a)(5) of the Act by failing to recognize and bargain
with the Union on January 10, 1992, the date on which
the Respondent employed a representative complement
of employees, the majority of whom were previously
employed by Asplundh and represented by the Union.
On February 16, 1993, the Union filed a motion seek-
ing to withdraw the 8(a)(5) portion of the charge in
Case 9–CA–29270, which alleges that the Respondent
is a successor employer and that it refused to recognize
and bargain with the Union. As the motion is not op-
posed, we shall grant it and dismiss the corresponding
allegations of the complaint and modify the rec-
ommended Order and notice to employees accord-
ingly.3
In granting the motion to withdraw part of the
charge, we note that the motion was filed by the Union
and that it was confined to 8(a)(5) allegations which
sought to seat the Union as the bargaining representa-
tive. In essence, the Union does not now seek rep-
resentation. We also note that the Respondent’s unfair
labor practices under Section 8(a)(1) and (3) are being
effectively remedied. Finally, the situation in Wells
Fargo, 290 NLRB 936 fn. 1 (1988), cited by our dis-
senting colleague, is clearly distinguishable in two crit-
ical respects. In that case, the respondent filed the mo-
tion to dismiss, and the General Counsel affirmatively
opposed it.
2. The judge found that the Respondent violated
Section 8(a)(3) by discriminatorily refusing to hire
Union Vice President Galen Clay in 1992, when it
began right-of-way maintenance operations previously
performed by Asplundh pursuant to a contract with
Appalachian Power Company (APCO). As explained
below, however, we find that the Respondent would
not have hired Clay even absent his union activism and
leadership, and therefore, that it did not violate the Act
with respect to him.
The Respondent trims, cuts, and removes trees and
brush growing near power lines in three ‘‘divisions’’
884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 APCO has partitioned the State into five administrative divisions
and awards line clearance contracts on a division-by-division basis.
5 The record indicates that it is a common practice in the industry
for contractors to hire their predecessors’ employees.
6 Most tree-trimming crews are composed of four individuals, in-
cluding the crew leader.
7 We disagree that such justification was ‘‘thin’’ and we note that
on a four-person crew, if the groundperson is learning to climb or
does little climbing, then it is even more imperative that the other
members of the crew be adept at climbing in the event of an emer-
gency.
8 Nothing in our comparison of Mendez’ situation with Clay’s is
meant to invalidate the judge’s finding that the Respondent unlaw-
fully discriminated against Mendez by delaying hiring him until Feb-
ruary. For all of the reasons stated by the judge, we agree that the
Respondent hired inexperienced individuals before offering employ-
ment to 10-year veteran Mendez and certain other employees be-
cause they were or had been union stewards and trustees.
in West Virginia pursuant to a contract with APCO.4
In mid-December 1991, after being awarded the con-
tract, the Respondent conducted a series of interviews
with Asplundh employees who were then performing
the line clearance work.5 Clay, an Asplundh crew lead-
er in the Beckley division, was among the many
Asplundh employees who applied for employment with
the Respondent. His application indicates that he ap-
plied for a position as a crew leader. Clay had approxi-
mately 20 years of experience in the industry and had
previously worked for Wilson from 1984 through 1987
when it held the APCO contract prior to the time it
was awarded to Asplundh. It was well known among
Asplundh’s and the Respondent’s personnel that Clay
would not climb trees because heights made him dizzy.
He testified that he refused to climb trees for this rea-
son and related that he once got dizzy while working
in a ‘‘bucket’’ (i.e., a lift). The Respondent asserts that
Clay was denied employment because of his refusal or
inability to climb and not because of his union activity.
The Respondent’s division manager, Johnny Griffin,
and Area Manager Paul Chamblis testified that the
qualifications considered for employment were a good
driving record, years of experience, and residence in or
near the division. Additionally, although the Respond-
ent apparently had not insisted that all employees be
able to climb when it held the line clearance contract
previously, by 1992 it had imposed a requirement, set
forth in its standard employment application, that all
employees be able to climb at least 50 feet as a condi-
tion of employment. Chamblis explained that the re-
quirement was implemented primarily for safety rea-
sons in that the crews work around dangerous elec-
trical lines and it was necessary to have people who
were able to climb trees in case somebody got ‘‘in
trouble’’ and had to be helped down from a tree. Grif-
fin testified similarly. In addition, the Respondent cited
a provision in its contract with APCO as a reason for
implementing the requirement. The provision, which
sets forth the responsibilities for the crew classifica-
tions of groundperson, trimmer, and working crew
leader, states that a groundperson shall be able to,
among other things, trim trees under direction. It fur-
ther states that trimmers must be able to perform all
the duties of a groundperson and ‘‘climb a tree and
trim it using a rope and saddle and/or three climbers
[and] operate an aerial lift device and associated tools
if working on a bucket crew,’’ and that working crew
leaders must be able to perform all the duties of a
trimmer and a groundperson.
The judge tacitly credited Griffin’s and Chamblis’
testimony regarding the existence of the climbing re-
quirement, although he described the asserted safety
basis for it as a ‘‘thin justification’’ since crews are
composed of ‘‘several individuals, most of whom are
able to climb.’’6 The judge rejected as pretextual the
Respondent’s defense that Clay was not hired because
he would not climb and found that he was denied em-
ployment because he was a union activist and a lead-
ing union official. In concluding that Clay was
discriminatorily denied employment, the judge noted
that Clay could have been offered a position on the
Respondent’s summer brush spraying crews, where it
had employed individuals who do no climbing and are
never asked to climb, and found that the climbing re-
quirement was disparately applied to Clay.
The judge’s analysis, however, disregards not only
the fact that Clay applied for a position as a crew lead-
er, but also his own finding that the climbing require-
ment had at least some justification.7 Additionally, we
find that the judge erred in concluding that the require-
ment was disparately applied to Clay. Ray Mendez,
who had worked for Asplundh for 10 years as a
groundperson, testified that when General Foreman
Roy Spry telephoned him about employment with the
Respondent in the Logan division in February 1992,
Spry told him that the only way he could go to work
was to say that he was willing to climb. Mendez told
Spry that he would rather not climb, and Spry reiter-
ated that he had to be willing to do so in order to be
hired. Mendez not only told Spry that he would climb
if he had to, he also subsequently climbed two small
trees, trimming one and ‘‘[tying] one off.’’ Thus, the
only other evidence concerning an employee’s known
or avowed aversion to climbing trees establishes that
the employee expressed a willingness to climb, albeit
reluctantly, as a condition of employment and that he
actually demonstrated his willingness to do so. Clay,
by his own admission, consistently indicated that he
would not climb. The General Counsel has failed to
establish that the Respondent’s imposition of a uniform
requirement that its employees be required to climb
was disparately applied to Clay because of his activism
or leadership role in the Union.8 On the basis of the
foregoing, we find that the Respondent would not have
hired Clay regardless of his union activities and not-
885WILSON TREE CO.
9 The status of crew leaders impacts on alleged 8(a)(1) activity di-
rected at crew leaders, the failure to hire Ray Reed as crew leader,
and the obligation of the Respondent to recognize the Union as the
representative of employees in a unit including crew leaders.
Although we find that crew chiefs, as a class, are employees rather
than supervisors, we find that one crew chief, Jeffrey Donathan, is
a supervisor. The judge found that Donathan hired two employees
without consultation with higher authority and, therefore, he ‘‘might
well be a supervisor.’’ We conclude that, on this evidence, Donathan
is a Sec. 2(11) supervisor. Thus, the term ‘‘crew chief,’’ as used
below, does not include Donathan.
On one occasion, Donathan solicited his crew to resign their union
membership. We do not pass on whether Donathan’s conduct in this
regard violated Sec. 8(a)(1) since it was not so alleged by the Gen-
eral Counsel and would be cumulative of other findings of unlawful
solicitations, by the Respondent’s representatives, that employees re-
sign their union membership.
10 As the party seeking to establish the crew leaders’ purported su-
pervisory status, the Respondent bears the burden of proving that
they possessed the requisite indicia of supervisory status. See, e.g.,
Commercial Movers, 240 NLRB 288, 290 (1979).
11 See fn. 9, above. Although there is evidence that the Respondent
solicited crew leaders to resign their union membership on dates
subsequent to January, the judge declined to rule that each such so-
licitation was a separate violation, so that the crew leaders’ status
at these subsequent times has no affect on the judge’s overall finding
of unlawful solicitation to resign union membership.
12 See fn. 12 of the judge’s decision.
13 We further note that almost all of these reporting slips were in-
troduced without the supporting testimony of the 29 crew leaders
who had filled them out, that many are patently not disciplinary in
nature, and that those that do appear to bear on discipline do not
provide any indication whether the crew leaders exercised independ-
ent discretion in filling them out.
withstanding the Respondent’s union animus. Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981).
3. In affirming the judge’s findings as they relate to
crew leaders, we note our agreement with the judge’s
preliminary finding that the Respondent’s crew leaders
(whom the Respondent also termed crew chiefs or
crew foremen) are not supervisors within the meaning
of Section 2(11) of the Act.9 In agreeing with his find-
ing, we affirm his analysis except for that part which
states that ‘‘there must be actual exercise of super-
visory authority to invest an individual with statutory
supervisory status.’’ It is well settled that ‘‘it is the au-
thority to act independently that is determinative [of
supervisory status] rather than the exercise of that au-
thority.’’ Groves Truck & Trailer, 281 NLRB 1194 fn.
1 (1986). Notwithstanding the judge’s misstatement,
the record fails to establish that crew leaders at the rel-
evant times possessed the requisite authority to exer-
cise independent judgment in the course of performing
their duties or make effective recommendations.10
In examining the status of crew leaders, we empha-
size initially that we need only resolve their status as
of the end of January, by which time the Respondent
had hired a representative complement of employees,
begun operations, and had engaged in the types of con-
duct here in issue.11 Concededly, the Respondent’s
personnel manual ostensibly gives crew chiefs the au-
thority to hire, discharge, and direct employees.12
However, the record affirmatively establishes that crew
chiefs did not have authority to act independently in
these matters. During the relevant time period, as dis-
cussed infra, all hiring was done by persons other than
the crew chiefs. Regarding discharge, the only evi-
dence of such an occurrence involved James Arnett
and it is clear that the decision to discharge him was
made by someone other than his crew leader, Teddy
Lester. On the day that Arnett was dismissed, Lester
informed him: ‘‘I was told to let you go. It ain’t got
nothing to do with your work or anything like that. I
was just told to let you go.’’
Although the crew leaders do direct the work of
their crew, there is no evidence that, in connection
with these duties, they use independent judgment as re-
quired by Section 2(11). Tree trimming and brush cut-
ting are routine tasks, the work is relatively unskilled,
and most of the employees have many years of experi-
ence in this line of work. Regarding discipline, the Re-
spondent presented a large number of ‘‘Status-Warn-
ing-Termination Notice’’ reporting slips completed by
crew leaders and the general foremen. These forms,
however, are not relevant to the crew leaders’ status in
January, because the earliest one was completed on
February 24, after the 8(a)(5) and (3) charges were
filed in this case.13
The credited testimony establishes that general fore-
men spend a considerable amount of time with the
crews—up to 2 hours 2 to 5 days a week. Addition-
ally, we note that although APCO requires that super-
visors be issued pagers, crew leaders were not issued
them. Lastly, crew leaders are hourly paid, as are the
rest of the crew members. On the basis of all of the
foregoing and the judge’s analysis, we find that the
Respondent’s crew leaders were not supervisors within
the meaning of Section 2(11) during the relevant pe-
riod.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Wil-
son Tree Company, Inc., Beckley, Bluefield, and
Logan, West Virginia, its officers, agents, successors,
and assigns, shall take the action set forth in the Order
as modified.
1. Delete paragraph 1(g) and reletter the subsequent
paragraph.
2. Substitute the following for paragraph 2(a).
‘‘(a) Offer to Ray Reed and James L. Arnett, respec-
tively, full and immediate employment and reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent employment, without
prejudice to their seniority or any other rights they
886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Charge filed herein by International Union of Electronic, Elec-
trical, Salaried, Machine, and Furniture Workers, AFL–CIO–CLC,
and its Local 732 (the Union) against the Respondent in Case 9–
CA–29270, on January 29, 1992; complaint issued by the Acting Di-
rector, Region 9, against the Respondent in that case on March 9,
1992; Respondent’s answer filed on March 19, 1992; charge filed by
the Union against the Respondent in Case 9–CA–29511 on April 15,
1992; consolidated complaint issued in that case with the earlier case
on April 16, 1992; Respondent’s answer filed on June 15, 1992;
Hearing held in Beckley, West Virginia, on August 17, 18, and 19,
1992; briefs filed with me by the General Counsel and the Respond-
ent on or before October 5, 1992.
2 The Respondent admits, and I find, it is a corporation which
maintains its corporate office and place of business in Shelby, North
Carolina, and is engaged in the tree trimming business as a contrac-
tor for electric power companies and municipalities. In the course
and conduct of this business its annually performs services valued
in excess of $50,000 in states other than an North Carolina. Accord-
ingly, the Respondent is an employer engaged in commerce within
the meaning of Sec. 2(2), (6), and (7) of the Act.
have previously enjoyed, and make them and Ray
Mendez, Daniel Harris, Bill Dean Collins, Bruce Col-
lins, and Charles Simmons whole for any loss of pay
or benefits suffered by reason of the discrimination
found in the manner described in the remedy section
of the decision.
3. Delete paragraph 2(b) and reletter the subsequent
paragraphs.
4. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT coercively interrogate employees con-
cerning their union activities or the union activities of
other employees.
WE WILL NOT solicit employees to resign from a
labor organization.
WE WILL NOT tell employees that they or other em-
ployees will not be hired because they have engaged
in union activities or protected concerted activities.
WE WILL NOT tell employees that we will not bar-
gain with the Union under any circumstances.
WE WILL NOT engage in the surveillance of the
union activities of our employees.
WE WILL NOT discharge, refuse to hire, or delay the
hiring of employees or otherwise discriminate against
them in their hire or tenure in order to discourage their
membership in and activities on behalf of International
Union of Electronic, Electrical, Salaried, Machine and
Furniture Workers, AFL–CIO–CLC, and its Local 732
or any other labor organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 the Act. These rights in-
clude the right to form, join, or assist labor organiza-
tion, to bargain collectively through representatives of
their own choosing, and to engage in other concerted
activities for their mutual aid and protection.
WE WILL offer employment and full and immediate
reinstatement, respectively, to Ray Reed and James L.
Arnett, to their former jobs or, if those jobs no longer
exist, to substantially equivalent employment, without
prejudice to their seniority or any other tights or privi-
leges previously enjoyed, and WE WILL make them and
Ray Mendez, Bill Dean Collins, Bruce Collins, and
Charles Simmons whole for any loss of earnings and
other benefits suffered by reason of the discrimination
practiced against them, with interest.
WILSON TREE COMPANY, INC.
Deborah Jacobson and Ursula McDonnell, Esqs., for the
General Counsel.
John C. Wright Jr., of Philadelphia, Pennsylvania, for the
Respondent.
Richard F. Rice, Esq., of Kettering, Ohio, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY, Administrative Law Judge. This
case came on for hearing before me at Beckley, West Vir-
ginia, on a consolidated unfair labor practice complaint,1
issued by the Acting Director of the Board’s Ninth Region,
which alleges that Respondent Wilson Tree Company, Inc.,2
violated Section 8(a)(1), (3), and (5) of the Act. More par-
ticularly, the complaint alleges that the Respondent coer-
cively interrogated employees concerning their union activi-
ties, threatened to deny employment to individuals who had
filed grievances or had engaged in other union acivities, re-
peatedly solicited employees to resign from the Union, de-
nied employment to Ray Reed and Gaylen Clay because of
their union activities, delayed hiring Ray Mendez, Daniel
Harris, Bill Collins, Bruce Collins, and Charles Simmons be-
cause of their union activities and discharged James L.
Arnett because of his union sentiments. The consolidated
complaint further alleges that the Respondent herein was suc-
cessor to the Asplundh Tree Expert Co. (Asplundh), that it
was obligated to recognize and bargain with the Charging
Party as the representative of its employees since the Charg-
ing Party was the certified representative of the employees
of Asplundh in the same bargaining unit, and that, when it
refused to do so, it was guilty of an unlawful refusal to bar-
gain. The Respondent denies the commission of any inde-
pendent violations of Section 8(a)(1) and claims that it was
privileged to inform its employees of their right to withdraw
from the Union. It further maintains that it refused to hire
887WILSON TREE CO.
3 During the summer months these contractors are also assigned
brush-spraying tasks. To fulfill this responsibility they normally hire
extra employees who are usually laid off in the fall.
4 The contracts for the other two divisions were won by Trees, Inc.
5 According to the APCO contract, each crew had to have a crew
chief, a trimmer, and a groundsman. This requirement was in accord
with the past practice of all maintenance contractors.
6 In this respect, Wright asserted that its contract with APCO was
confidential.
Reed and Clay for cause, discharged Arnett for cause, and
that its delay in hiring the other individuals was merely inci-
dental to the difficulty it experienced in starting up a new
operation after taking over the responsibility for tree trim-
ming for the Appalachian Power Company (APCO) from
Asplundh. The Respondent denies that it is a successor to
Asplundh and that it had any obligation to recognize the bar-
gaining agent of the employees of its alleged predecessor. It
denies the Union’s majority status and claims that any such
status on the part of the Union which might have been de-
rived from its contract with Asplundh has been eroded by
virtue of resignations by many employees who had worked
for Asplundh. On these contentions, the issues herein were
drawn.
FINDINGS OF FACT
A. The Unfair Labor Practices Alleged
1. Background
APCO, a regulated public utility, employs contractors to
trim trees and clear brush along its rights of way in West
Virginia and elsewhere.3 In letting these contracts, APCO
has divided the State of West Virginia into five divisions.
Events taking place in its Beckley, Bluefield, and Logan di-
visions are at issue in this case. APCO awards these con-
tracts on a 3- or 4-year basis after solicitation of bids. It is
not unusual for a right-of-way maintenance company to re-
ceive a contract from APCO for a 3-year period of time, lose
a bid at the end of its contract period, and then regain a con-
tract during a subsequent contract period. This is what hap-
pened in the instant case. The Respondent was APCO’s tree-
trimming contractor in the mid-1980s. It lost the contract in
1987 to Asplundh, who had contracts covering all five of
APCO’s West Virginia divisions, and regained the contract
at the end of 1991.
When contracts were subject to renewal in the fall of
1991, the Respondent submitted bids and won a contract
with APCO covering three of the five West Virginia divi-
sions. It is also an APCO contractor in various parts of Vir-
ginia.4 It has been the custom of maintenance contractors to
take over the labor force of its predecessor upon accepting
a new contract. This is what happened in this instance, with
some exceptions discussed hereafter. Many of the former
Asplundh employees who are now working for the Respond-
ent were also employed by the Respondent during a previous
contract period.
APCO micromanages the operations of its tree-trimming
contractors. Its maintenance contracts define the size of
crews, the number of crews, the composition of the employ-
ees on crews,5 the degree of supervision, the type of equip-
ment used by contractors, and degree of communication
which must be maintained between the contractor’s manage-
ment, APCO, and its crews. By setting contract specifica-
tions, APCO can virtually dictate wage rates and benefits
paid by its contractors. During the course of a contract,
APCO can bring about the enlargement or contraction of a
tree-trimming operation simply by making more or less
money available for that purpose at any given time. APCO
also performs periodic inspections to determine the efficiency
of the tree trimming operation and whether the detailed re-
ports it receives from its contractor are correct or have been
‘‘fudged.’’
During calendar year 1991, Asplundh employed between
126 and 132 employees in the three divisions involved in
this case, with slightly larger crews working during the sum-
mer months when it was engaged in brush spraying. The em-
ployees were covered by a collective-bargaining agreement
between Asplundh and the Charging Party which became ef-
fective on May 14, 1990, and expired on December 31,
1991. This contract contained inter alia a union-security
clause. That contract covered a bargaining unit of ‘‘employ-
ees engaged in line clearance work in the Huntington,
Charleston, Logan, Beckley, and Bluefield Divisions of Ap-
palachian Power Company in the State of West Virginia,’’
a unit for which the Charging Party had been certified on
October 9, 1987, following a Board-conducted election.
2. Initial correspondence between the Union and
the Respondent
When it learned that the Respondent had received a con-
tract for tree trimming in the Logan, Beckley, and Bluefield
divisions, beginning January 1, 1992, the Charging Party,
through its counsel, Richard F. Rice, wrote to the Respond-
ent, informing it of the existence of a union contract with
Asplundh and asking the Respondent what its intentions were
concerning the unionized employees then employed by
Asplundh. In this letter, the Union claimed to be the majority
representative of the Asplundh employees. On December 12,
1991, Respondent’s attorney, John C. Wright Jr., wrote Rice
a lengthy reply in which the Company refused to bargain
with the Union unless it won a representation election.
Wright claimed that the Union’s contract with Asplundh had
no bearing on the Respondent’s obligation toward employees
or applicants, denied that the Respondent was successor to
Asplundh, claimed that the work it was performing for
APCO was different from that performed by Asplundh,6 and
insisted that new employees would be selected by the Re-
spondent on the basis of their qualifications. His letter went
further than a simple refusal. Wright stated:
Finally, for all the reasons stated above, Wilson be-
lieves it would be both illegal, as well as unfair to our
employees both present and newly hired, to recognize
our union or any union, or to apply the terms of your
Asplundh contract. Wilson intends to take every legal
step to avoid this. [Emphasis in the original.]
The Asplundh contract ended on December 31, and the Re-
spondent began the performance of its contract during the
first week of January. On January 10, Rice again wrote the
Respondent on behalf of the Union, renewed his earlier re-
quest for bargaining, claimed that the Respondent was a suc-
cessor to Asplundh, and that the Union represented a major-
888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Both during the Asplundh contract and at present, these individ-
uals have been salaried supervisors whose supervisory status has
never been questioned by any party.
8 There is a sharply disputed episode recited in the testimony that,
at one of the interview sessions, one interviewer spoke up loudly
and, with reference to an applicant who was before him, stated that
‘‘here’s one who wants to resign from the union,’’ whereupon an-
other interviewer said, ‘‘Sign him up.’’ It is not necessary to resolve
the credibility conflict regarding this asserted event.
ity of the employees in the Respondent’s newly hired bar-
gaining unit. The Respondent’s reply, dated January 17, was
again made by Wright. Again he denied successorship, de-
nied the Union’s majority status, and claimed that a number
of Asplundh employees who had just been hired by the Re-
spondent had signed written renunciations of the Union, thus
eroding any claim by the Union of majority status based
upon membership during the Asplundh contract. Wright sub-
mitted to Rice 18 statements purporting to be resignations
from the Union on the part of former Asplundh employees.
He also submitted a list of employees who had been hired
to that date by the Respondent in the three West Virginia di-
visions it was servicing for APCO. Of this number, the Re-
spondent listed 19 foremen who were hired to hold jobs for-
merly regarded as bargaining unit crew chief positions. Of
the total number of 67 individuals (exclusive of salaried gen-
eral foremen) whose names were on the list, some 50 were
former Asplundh employees, 13 were new hires, and 5 were
individuals who had been transferred to West Virginia from
other operations maintained by the Respondent, presumably
in Virginia. The Respondent’s contract with APCO required
it to have 60 percent of its total work force available for
work on January 1 and 100 percent of its required com-
plement of employees on the job by April.
3. The recruitment of employees
While it was corresponding with the Union, as indicated
above, the Respondent was laying plans for hiring a work
force to begin its contract on January 1. Early in December,
Johnny Griffin, Respondent’s division manager from its Shel-
by, North Carolina headquarters, came to West Virginia and
met with Asplundh General Foremen Len Lucas, Denzil
Cadle, Michael Bolen, and Roy Spry7 to discuss possible fu-
ture employment. All insist that no final commitment was
made by the Respondent at that time to hire any of them,
but in fact they were all hired and began working for the Re-
spondent at the outset of the Respondent’s contract. On De-
cember 11, these individuals, along with several of the Re-
spondent’s management personnel, met at the Hylton [sic]
Hotel in Beckley with Wright, who came in from Philadel-
phia to discuss with them what could legally be done to keep
the Respondent’s operation nonunion. The following day,
which coincidentally was the date of Wright’s first cor-
respondence with Rice, Wright prepared and faxed to all who
had attended the Beckley meeting, including the four
Asplundh general foremen, a summary of the legal advice he
had given orally the previous evening. He told those who
were going to undertake the interviewing of Asplundh em-
ployees that they could tell applicants that the Respondent
was a nonunion company and that it intended to take all
legal steps to stay that way. He gave them additional advice
as to what they could and could not lawfully say to employ-
ees concerning the unionization of the Company. Wright’s
advice also included a statement to the effect that interview-
ers could tell applicants that the Respondent did not intend
to recognize the Union or to abide by the Asplundh collec-
tive-bargaining agreement. The advice memo cautioned inter-
viewers not to ask applicants about their union preference or
to pressure them into responding to statements relating to the
Respondent’s union policies. However, should any applicant
disclose that he was unhappy about the Union, an interviewer
could then inform him of his right to resign and could help
him write a letter of resignation. Wright went on to state that
any applicant who was being considered for a position as
crew foremen could be informed that the position was a su-
pervisory position and those hired to fill those jobs would be
outside the bargaining unit and beyond the protection of the
Act.
Interviews of Asplundh employees who were applying for
work with the Respondent took place at the Hylton Hotel in
Beckley, the Friendship Inn at Chapmanville near Logan, and
the Holiday Inn in Bluefield. These interviews occurred in
mid-December. The format on each occasion was the same.
Job applicants filled out forms which were made available by
the Respondent. Many of these applicants were either illit-
erate or semiliterate and required assistance in filling out ap-
plication forms. Individual interviews then followed. Four
interviewers from company headquarters sat at a table and
spoke individually with applicants as they presented them-
selves. After looking over the application forms and discuss-
ing company wages and benefits, a standard statement made
to each applicant by an interviewer was that Wilson Tree is
a nonunion company and intends to stay that way. Some wit-
nesses credibly testified that interviewers put their own per-
sonal spin on this message and were quite emphatic on the
point.8
General Foreman Michael Bolen was present at the Blue-
field interview wearing a Wilson Tree T-shirt. He spoke with
applicants who attended this meeting, provided them with the
Respondent’s application form, and assisted several in filling
out the form. The three other general foremen—Len Lucas,
Denzil Cadle, and Roy Spry—attended one or more of these
interview sessions. While not wearing a company T-shirt,
they performed the same service for applicants that Bolen did
in Bluefield, notwithstanding the fact that they were not yet
paid employees of the Respondent. Following the interviews
these Asplundh general foremen met with Griffin and gave
their opinions, based upon their experience as Asplundh su-
pervisors, as to the abilities of individual Asplundh employ-
ees who were seeking jobs with the Respondent. Bolen testi-
fied that, immediately following the Bluefield interviews, he
discussed job applications with Griffin. It was on this occa-
sion that a decision was made not to hire Ray Reed, an
Asplundh crew leader who was president of Local 732. Reed
was one of six crew chiefs who had worked for Bolen under
the Asplundh contract.
During the transition period before December 31, several
Asplundh general foremen who were later hired for similar
positions by the Respondent spoke with Asplundh employees
concerning the future of the bargaining unit. I credit Reed’s
statement that, in late November l991, Bolen told him that
he himself had already been hired by Wilson, that he already
had been assigned a Wilson pickup truck, and stated further
that Wilson was not going to accept the Union and that not
889WILSON TREE CO.
9 In the summer, the Respondent employs spray crews which are
normally two-man operations.
everyone then working for Asplundh was going to be hired
by Wilson. Bolen went on to tell Reed that Wilson was not
going to hire people without drivers’ licenses, people who
had filed grievances, people who were on workmen’s com-
pensation, and whiners and crybabies. Bolen later repeated
the same statement to Reed’s crew that he had made person-
ally to Reed.
Before the takeover by the Respondent, Asplundh (and
later Wilson) General Foreman Len Lucas spoke with Galen
Clay, the Union’s secretary-treasurer and a shop steward,
concerning the future of the bargaining unit. Lucas, in the
process of announcing that Wilson was going to take over
the APCO contract, said that the Company would be non-
union. At his job interview in Beckley, the interviewer said
nothing to Clay about the Union but Clay overheard Griffin
say, on this occasion, to other job applicants that the Com-
pany was nonunion and it intended to stay that way. Some
time in December, Bolen spoke with an Asplundh crew be-
fore they went to work as they gathered at Woody’s Quick
Stop, a convenience store and gas station in Pineville. He re-
peated to them most of what he had said to Reed—that he
had already been hired, that the new Company would not
hire crybabies, persons on workmen’s compensation, people
who filed grievances, anyone without a driver’s license, or
anyone over 40 years of age.
Toward the end of the Asplundh contract, Jess Thompson
and General Foreman Denzil Cadle were assigned to drive
Asplundh trucks to Charleston, where they were being re-
turned to Asplundh officials. While standing in a parking lot,
Cadle asked Thompson to sign a resignation from the Union.
Cadle dictated to Thompson the language of a resignation
letter. Thompson wrote it down, signed it, and turned it in
to Cadle.
Shortly before the changeover, Bolen spoke wtih James L.
Arnett and Gene Osborne at an Exxon Station in Welch. He
asked them where they were going. They said that they were
looking for a job. Bolen contradicted them, accusing them of
going to a union meeting. A week later, Bolen saw the same
two individuals in Atwell Hollow and spoke with them in an
Asplundh truck. He asked them why they had gone to a
union meeting. They replied that they attended in order to
find out what was going on. Arnett added that he had a fam-
ily to support and that he was not going to cross a picket
line. Bolen replied that both men were guaranteed a job with
the Respondent and that they did not need a union because
Wilson offered good enough benefits without any union
intervention.
4. The beginning of the new operation
Respondent began its operations in the Logan and Blue-
field divisions on January 2, 1992, and in the Beckley divi-
sion on January 6. As noted previously, the total complement
of employees, other than general foremen, who were in place
as of January 10 was 70 or 71, about 60 percent of its con-
tract requirement. Lucas and Cadle were employed as general
foremen in the Beckley Division, Bolen in the Bluefield Di-
vision, and Roy Spry in the Logan Division. Their immediate
supervisor was Paul Chamblis, the Respondent’s area man-
ager, who had previously been safety director for the Re-
spondent. Chamblis has continued to supervise the three divi-
sions from his home in Beckley.
The Logan division began with five or six four-man crews;
approximately seven crews began work in Bluefield, most of
which were four-member crews; in Beckley, operations
began with five crews, although not all of them were full
four-member crews.9 By April, the Respondent had 120 em-
ployees—100 percent of its contract requirement—in place.
One of the Respondent’s hiring criteria for its initial group
of employees was to select as trimmers (the second-rated em-
ployee on a regular four-member crew) individuals who
could be promoted to crew chiefs or crew foremen, as the
Respondent designated the position, after additional employ-
ees were hired and additional crews were formed. In some
instances, this progression is what actually took place.
Not long after the Respondent’s operation began, Chamblis
visited each crew at its jobsite and spoke to them in the pres-
ence of their general foreman and crew chief. He informed
each crew that they had a right to resign from the Union and
that he would furnish them paper, pen or pencil, and appro-
priate language for inclusion in a letter of resignation. There-
after, on another occasion, each general foreman spoke to the
crews under his supervision and repeated these statements,
also furnishing paper, pen or pencil, and appropriate lan-
guage for a letter of resignation. The Company collected
these letters and forwarded them to the Union. About 130
such letters were collected over a period of several months.
Dennis Norman testified credibly that he signed a letter of
resignation in Beckley on January 6, his first day of work
for the Respondent. The Respondent began the operation of
each crew with an orientation session which, at Beckley,
took place at the Hylton Hotel. While still at the hotel, Lucas
asked Norman, in the presence of other employees, to resign
from the Union. He supplied Norman with sample language,
as well as the paper to be used for the resignation. Norman
wrote out the resignation in his own handwriting and handed
it to Lucas.
Donald Wood, who was not hired until the end of Feb-
ruary, credibly testified that Bolen spoke to him in the pres-
ence of three crew members and asked all of these employ-
ees if they wanted to sign out of the Union. Wood refused.
He also testified that Bolen was angry when he departed.
Some 2 or 3 weeks later, Wood was riding in a vehicle with
his crew chief, William Stacey, when the subject of resigna-
tion was brought up by Stacey. Stacey told Wood that he
might as well resign from the Union since nobody else in the
Company was for it. He offered to provide Wood with the
paper to do so. The document in question already contained
resignation language. Wood testified that he said that he had
family and needed to work and his refusal might cause some
problems so he told Stacey he would resign and he did so.
About February 1, Gregory S. Crook signed a letter of res-
ignation from the Union at his jobsite on North Sandbranch
Road. Both Cadle and Lucas drove up to where Crook was
working and handed him a piece of paper with resignation
language already written on it. He copied the text of the doc-
ument on to another piece of paper and returned it to them.
Sometime in February, at the jobsite, Bolen asked Daniel
Harris if he wanted to resign from the Union. Harris replied
that he did not. He asked Bolen if resigning was a condition
890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Bolen denies most of the conversation as recounted by Reed. I
discredit Bolen, who was a biased and thoroughly unreliable witness.
of continued employment. Bolen said it was not, to which
Harris replied that he guessed he would stay with the Union.
On two or three occasions, Bolen asked Eugene Osborne
if he would resign from the Union. Osborne declined, telling
Bolen only that he ‘‘would think about it.’’ Bolen persisted,
telling Osborne that, if he did want to resign, he should sim-
ply write on a piece of paper ‘‘I, Eugene Osborne, resign out
of Local 732,’’ and place his signature on the paper. Later,
his crew chief, Jeff Donathan, in Bolen’s presence, asked
Donathan’s entire crew to resign. No one did so.
Leonard F. Goode Jr. and members of the crew to which
he was assigned were approached by Bolen to resign from
the Union sometime after Goode was employed. The con-
versation took place at a jobsite on Herndon Mountain.
Goode replied that he did not care to resign and the other
members of the crew gave the same reply. On his first day
of employment, Lonnie Shrewsbury and other employees had
a conversation with General Foreman John Baker concerning
various items relating to their job, including company insur-
ance and drug testing. Baker asked him and others if they
wanted to resign from the Union. Shrewsbury replied no,
whereupon Baker simply said he just thought he would ask.
Sometime in January, Spry asked Richard White and other
crew members if they wanted to resign from the Union. They
declined. A day or so later, Spry told crew leader Marvin
Dalton, in Shrewsbury’s presence, that if any of his foremen
went union they would not have a job. In February,
Chamblis, in the presence of Spry and General Foreman
Lando Adkins, asked members of the crew to which White
had been assigned if they wanted to resign from the Union.
He said he had resignation papers with him and anyone who
wanted to sign one could fill it out and resign. White again
refused.
On February 10, Bruce Collins’ first day on the job,
Chamblis asked him, as well as the crew to which he was
assigned, if they wanted to resign from the Union. The whole
crew refused. At a jobsite at Workman’s Fork, Spry asked
the crew to which Brian K. Messer had been assigned if they
wanted to resign from the Union. Spry suggested that they
write out their resignations on a piece of paper and sign it.
Messer replied that he would ‘‘think about it.’’ Several
weeks later, Chamblis, Adkins, and Spry again spoke to the
same crew about resigning. These foremen all insisted that
nothing would change if they resigned and asked employees
to copy down the text of a proposed resignation on a piece
of paper and sign their names to it. Messer and one other
employee did so, but only after Spry spoke to him a second
time and Adams told him that it could cost him his job if
he did not do so.
When Chamblis interviewed Carl Adams for a job,
Chamblis told him that the Company never had a union, did
not expect to have one, and did not need one. Adams eventu-
ally became crew chief. On one occasion, Chamblis came
out to the site where his crew was working, accompanied by
Spry and Adkins. After discussing certain safety questions,
Chamblis told the crew that he had a piece of paper with him
containing resignation language. He asked employees to copy
the language and sign it. He explained that he was going
around to other crews asking them to resign and that the men
he had talked with said that the Union had never done any-
thing for them. Adams signed a resignation slip.
5. The refusal to hire Ray Reed
Ray Reed has worked in the tree-trimming business since
1966, both in West Virginia and elsewhere. Between 1979
and 1981, he was a crew foreman when Asplundh held the
maintenance contract with APCO. Reed then worked in the
coal mining industry for the next 3 years. In December 1984,
the Respondent hired him as crew foreman when it regained
the APCO maintenance contract from Asplundh. Later, Reed
went to work as a crew chief for Asplundh when it once
again became APCO’s maintenance contractor in 1987. He
remained in that position until the Asplundh contract expired
on December 31, 1991. During the final months of his em-
ployment, Reed worked under the supervision of Bolen in
the latter’s capacity as an Asplundh general foreman.
The Union organized Asplundh employees in 1987 and, as
noted previously, was certified in October of that year as
bargaining agent following a Board-conducted election. Reed
was active in that campaign on behalf of the Union and
served as union observer at the representation election. He
held various positions in Local 732, first as vice president,
later as president, as well as a member of the union negotiat-
ing team that negotiated two contracts with Asplundh. He
was reelected president of the Local in 1991.
On December 16, 1991, Reed applied for a job with the
Respondent along with other applicants who appeared at the
Holiday Inn in Bluefield. He was interviewed by Jeff Nicely,
the Respondent’s claims manager. I credit Reed’s testimony
to the effect that, during the interview, Bolen was sitting im-
mediately behind Nicely in the interview room. Based at
least in part on Bolen’s recommendation, Reed’s application
was turned down by Griffin on the night of the interview.
After hiring by the Respondent had begun, Reed phoned
Bolen10 and asked him when the Respondent was going to
hire everyone back. Bolen replied that the Company had al-
ready done so. Reed objected, insisting that a lot of
Asplundh employees had not been hired. Bolen then told him
that Wilson was doing the hiring and that he—Bolen—had
nothing to do with it. Bolen suggested to Reed that he con-
tact Johnny Griffin. Reed asked Bolen how he could get in
contact with Griffin. Bolen replied that he did not know.
Bolen went on to say that Wilson would be on the job for
the next 4 years and, during that time, Reed would not be
hired because Wilson was only going to hire people with
good work records who keep production up. Reed then asked
Bolen if the Company had any problem with his work
record. Bolen replied in the negative, saying that Reed had
an excellent work record. He told Reed bluntly that ‘‘you
and I know’’ the reason Reed would not be called back to
work. Reed said he understood but asked Bolen to do what
he could to get the other Asplundh employees back to work.
6. The refusal to hire Galen Clay
Galen Clay had worked for Wilson between 1982 and
1986 as a crew chief or foreman when Wilson was the
APCO maintenance contractor. He went to work for
Asplundh in 1987 when Asplundh took over the contract and
was employed by Asplundh as either a crew foreman or a
891WILSON TREE CO.
11 Before working for either Asplundh or for Wilson, Clay had
worked 11 years for Bartlett, another tree company, as a
groundsman.
groundsman.11 Clay suffers from dizziness when working at
heights so he never climbed trees during his employment
with either Wilson or Asplundh, a problem well known to
both Asplundh and Wilson. During his tenure with Asplundh,
Clay worked in both the Beckley and Bluefield Divisions.
During the 1987 representation election campaign, Clay
energetically supported the Union. After it was selected, Clay
served as both secretary-treasurer and one of the Union’s
stewards. In the latter capacity, he filed approximately nine
grievances on behalf of unit employees and attempted to ad-
just these grievances with Asplundh Supervisors Lucas,
Cadle, and Jesse Furry.
In December 1991, Clay appeared at the hiring interview
in Beckley and applied for a job with the Respondent along
with several other Asplundh employees. He was never of-
fered a job. Shortly after the Respondent’s operation began,
Clay called Cadle and asked if Cadle knew when Clay might
be called back to work. Cadle’s reply was that all the crews
were full. He placed a second call a few weeks later and
again asked Cadle when he might be coming back to work.
Again Cadle replied that all the crews were full. Clay then
called Lucas and posed the same question to Lucas. Lucas
replied that he did not know when Clay might be recalled.
In none of these conversations was any mention made of
Clay’s inability to climb or was any reason given to Clay for
the Respondent’s refusal to recall him.
Respondent points out that its contract with APCO pro-
vides that any groundsman hired by the Respondent should
be able to ‘‘trim trees under direction.’’ The contract require-
ment relating to a ‘‘working crew leader’’ requires a crew
leader to ‘‘instruct and supervise trimmers or groundspersons
under his responsibility; prepare time sheets and other re-
ports.’’ The job application form presented by the Respond-
ent to all applicants stated that any employee ‘‘must be able
to work at heights more than 50’ above ground.’’
7. The discharge of James L. Arnett
Arnett worked for Asplundh as a climber in the Bluefield
Division. He applied for a job in mid-December during the
mass interviews which took place at the Holiday Inn in Blue-
field. He was not hired until the last week in February and
was assigned to a crew headed by Teddy Lester. The other
members of the crew were Jackie Lester, the brother of
Teddy Lester, and Anthony A. Pruitt. Shortly after being
hired, Arnett asked his crew chief about letters of resignation
from the Union, asking T. Lester whether the latter had
signed such a letter. T. Lester gave no reply.
Arnett rode to work with T. Lester in T. Lester’s pickup
truck. I credit Arnett’s testimony that on a Monday morning,
about 2 or 3 weeks after he had been hired, he appeared at
the pickup point, as usual, and started to get into T. Lester’s
truck. T. Lester told Arnett not to get in, informing Arnett
that he had to let him go. Arnett questioned the statement
so T. Lester said, ‘‘I was told to let you go. I ain’t got noth-
ing to do with your work or anything like that. I was just
told to let you go.’’ And with that statement he drove away.
Later on in the day, Arnett drove to Welch, West Virginia,
where Lester’s crew was working, in order to retrieve his
raincoat and some other personal property. He saw Lester in
a truck and told him, ‘‘I’d like to know what is going on.
Are you firing me or laying me off?’’ Lester replied, ‘‘We’re
firing you for taking your hardhat off and looking up in a
tree and putting it back on.’’ Arnett then asked, ‘‘Is that the
only reason?’’ At this point, Lester said, ‘‘No, I’ve got a
bunch of them and that’s all I’m going to tell you.’’ Arnett
then threatened to go to the unemployment office and to the
Labor Board. Lester’s only comment was, ‘‘I don’t care. Go
ahead.’’
The following Thursday, Arnett went to a meeting place
where employees gather to receive their paychecks. Lester
presented Arnett with a termination slip and asked him to
sign it. The form was a company termination notice which
stated that James L. Arnett was being discharged on March
9, 1992, for a safe practice violation. The form also con-
tained a written description outlining the violations:
3/4/92 Drop starts chain saws
2/25/92 Don’t want to wear hard hat
3/4/92 Makes poor use of time
2/26/92 Doesn’t want to wear safety glasses
3/5/92 Don’t want to follow orders
The form was signed by Lester. Written on the form were
places for Pruitt and Jackie Lester to sign as witnesses. They
did so, dating their signatures 3/9/92. Arnett told Lester the
form was all lies and refused to sign it.
8. The Respondent’s delay in hiring Ray Mendez,
Daniel Harris, Bill Dean Collins, Bruce Collins,
and Charles Simmons
Discriminatees Mendez, Harris, Bill Collins, Bruce Col-
lins, and Charles Simmons were former Asplundh employees
who had applied for jobs with the Respondent. During the
Asplundh years they all held positions in the Union. At the
time of the changeover, Mendez was a shop steward in the
Logan Division; Harris was a trustee and member of the
Union’s executive board; Bruce Collins was a shop steward
in the Mingo area, a part of the Logan Division; Charles
Simmons was a shop steward in the Bluefield Division; and
Bill Dean Collins had been a shop steward in the Mingo area
during 1991 before Bruce Collins assumed that responsibil-
ity. In that capacity B. D. Collins had filed grievances on be-
half of fellow employees. As noted before, the Respondent
began its operations in early January and, by January 10, had
hired 70 or 71 individuals. Of that number, approximately 20
were either new hires or were transferees from the Respond-
ent’s Virginia operation. The above-named discriminatees
were employed or offered employment on the following
dates:
Mendez—February 7
Harris—February 10
Bruce Collins—February 10
Bill D. Collins—February 10
Simmons—February 24
In terms of service in the industry or with Asplundh before
coming to the Respondent, Simmons worked 2 years as a
groundsman and as a climber in the Bluefield Division. Har-
ris worked nearly 5 years for Asplundh as a climber, a trim-
892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 The company manual states:
You as foreman are directly responsible for hiring new em-
ployees. This part of your job is one of the most important parts
for the continued success of our company. You should select
men who are neat; and seem to have the personal drive to suc-
ceed, and who are interested in a job with a future. Be choosey,
select the best men. . . . You should continually be alert to the
possibility of needing another employee and should hire depend-
able men who will work when you need them, and who will
carry their fair share of the work.
. . . .
You should plan your work for the day and inform your crew
so that they know what to do as soon as you arrive at the job
site. . . . Proper planning and careful supervision of your crew
will also eliminate some of the hazards of your job.
. . . .
You should watch your men while they work and correct them
if they make a mistake or do something in an unsafe manner.
In order to maintain the highest production you must be aware
of what each of the men are doing, inspect the work as it is
completed, and never leave a job half done. . . . You should
make your instructions clear and to the point, so that your men
will not have any trouble carrying them out.
. . . .
Training involves developing men to be fully effective in their
present jobs and preparing them for advancement to greater re-
sponsibilities. . . . Care in selecting a new man can save you
a lot of trouble later.
. . . .
No one likes to be criticized before fellow employees. Always
be constructive in your criticism.
From time to time disputes are likely to occur on your crew.
These should be settled immediately with those involved. DO
NOT let disputes get out of hand. Be FIRM and FAIR to both
parties. Trouble makers should be dismissed immediately.
mer, and a trim lift foreman in the Bluefield Division. Bruce
Collins, who is now a foreman or crew leader with the Re-
spondent on a split dump truck crew, worked for Asplundh,
although the record is silent as to the timing and extent of
his employment. Bill Dean Collins worked off and on for
Asplundh in the Mingo or Logan Division for about 7 years
as a groundsman and as a trimmer. Mendez worked for
Asplundh during its various contract terms for nearly 10
years as a groundsman in the Logan Division.
B. Analysis and Conclusions
1. The agency status of Teddy R. Lester
The Respondent insists that Teddy R. Lester and all other
crew chiefs are foremen and have one or more indicia of su-
pervisory authority which makes them supervisors within the
meaning of the Act. This assertion is vigorously contested by
the General Counsel. However, the General Counsel con-
tends that Lester was a nonsupervisory agent of the Respond-
ent whose statements should be attributed to the Respondent
despite his asserted status as a rank-and-file employee. There
is little doubt, both from Arnett’s testimony and from
Lester’s own testimony as well as from the termination no-
tice which was placed by the Respondent in Arnett’s file,
that the Respondent utilized the services of Lester to effec-
tuate Arnett’s discharge. Whether or not Lester used inde-
pendent judgment in actually determining Arnett’s fate—thus
acting as a supervisor—will be discussed later. Because Les-
ter was utilized by the Respondent to effectuate Arnett’s dis-
charge, he was its agent for that purpose, so any remarks or
statements made by him in that activity are attributable to the
Respondent, irrespective of any broader considerations relat-
ing to Lester’s status.
2. The supervisory status of crew chiefs
A pivotal question in this case—and one of the most dif-
ficult to resolve—is the status of the crew chiefs, whom the
Respondent refers to as foremen. They directly oversee the
trimming and clearing crews employed by the Respondent on
the APCO properties and are, at the very least, leadmen in
crews made up of two or three other individuals. Historically,
they were included in the Asplundh bargaining unit and were
covered by the terms and conditions of the Asplundh contract
with the Union. In fact, some crew chiefs held union offices.
Respondent claims that, upon taking over the maintenance
responsibilities in three APCO divisions, it assigned to crew
chiefs sufficient additional responsibilities to enable it to
treat them as supervisors within the meaning of Section 2(11)
of the Act.
The burden of proving that any individual is a supervisor
within the meaning of the Act falls upon the party making
the contention, in this instance the Respondent. Bowne of
Houston, 280 NLRB 1222 (1986); Chicago Metallic Corp.,
273 NLRB 1677 (1985); Opelika Foundry, 281 NLRB 897
(1986). The statutory criteria for supervisory status are set
forth in Section 2(11) of the Act and have been the subject
of extensive litigation since they were included in the 1947
amendments. It has long been held that the various criteria
therein are set forth in the disjunctive and that the actual ex-
ercise of any one of those functions is sufficient to constitute
the individual supervisor, even if he does not exercise all of
the functions which define supervisory status. However, there
must be actual exercise of supervisory authority to invest an
individual with statutory supervisory status. Respondent
points out that its personnel manual, available to all employ-
ees including crew leaders, contains instructions to crew
leaders (referred to therein as foremen) which invest crew
leaders with supervisory status.12 However, abstract, theoreti-
cal, or rule book authority does not transform an employee
into a supervisor. Advanced Mining Group, 260 NLRB 486
(1982). To put it another way, job descriptions are not deter-
minative of the question. NLRB v. Security Guard Service,
384 F.2d. 134, 147 (5th Cir. 1967). What is determinative is
whether, in the exercise of one or more of the indicia of su-
pervisory authority, the individual in question actually exer-
cises independent judgment on behalf of his employer. Chi-
cago Metallic Corp., supra. In making these determinations,
the Board recognizes that it has a duty not to construe super-
visory status too broadly because any person who is deemed
to be a supervisor is denied the rights accorded to employees
under the Act. Matheson Fast Freight, 297 NLRB 71 (1989).
In this case, if crew leaders were deemed to be supervisors,
the Union would be deprived of much of its in-house leader-
ship.
Certain factors have often been employed by the Board to
assist it in determining true supervisory status. While not de-
terminative of the issue in and of themselves, these factors
are often illuminating as to whether or not the individual in
question truly falls within the definition contained in Section
2(11). One such factor is whether or not the individual in
dispute receives a salary and/or company bonuses or is hour-
ly rated. Likewise, whether individuals working under the
893WILSON TREE CO.
supervison of a purported supervisor perform routine duties
throughout the day without being told repeatedly what to do
has a bearing on the question. Memphis Furniture Mfg., 232
NLRB 1018 (1977). The Board has often considered the ratio
of supervisors to employees in a particular bargaining unit in
evaluating whether a claimed supervisor actually is entitled
to such status. An inordinately small ratio has often been
deemed to be strong evidence that supervisory authority real-
ly does not exist while an inordinately large ratio has been
deemed to be strong evidence that others beside admitted su-
pervisors have actually been invested with the authority re-
cited in Section 2(11). Welch Farms Ice Cream, 161 NLRB
748 (1966); Memphis Furniture, supra; United Electrical &
Mechanical, 279 NLRB 208 (1986); Golden Fan Inn, 281
NLRB 226 (1986). One problem presented in this case which
sets it apart from most supervisory determination cases is
that the Respondent is asserting, on the basis of the testi-
mony of a few individuals and the statements in its personnel
handbook, that an entire class of employees are supervisors
in the face of testimony of several members of that class that
they do not in fact exercise the authority claimed for them.
In most instances, a Board determination is limited to a par-
ticular individual based upon a record developed to reveal
his particular duties and responsibilities. Recently, the Fifth
Circuit stated:
[The employer] first argues that because the Board
found that three of the individuals in the bargaining
unit classification of foreman were supervisors, all in
the classification of foreman must be treated as super-
visors because all generally occupy the same hierarchial
position in the organization. [The employer] has not
persuaded us with any authority that this postulation
represents the law on the subject. An employee’s spe-
cific job title and station in the organization is not auto-
matically controlling. The employee’s actual authority
and responsibility determine whether he is a supervisor.
[Emphasis in the original.] [NLRB v. Dickerson-Chap-
man, Inc., 140 LRRM 2854, at 2857 (1992).]
Lastly, bargaining history is a factor to be considered in any
unit determination, including a unit placement determination,
even though the history of the continuing unit embraces
more than just the employer who is a party to the dispute.
In this case the Respondent, upon taking over the mainte-
nance contract for the three APCO divisions in West Vir-
ginia, hired 19 employees, all but one of whom had been
Asplundh employees, titled them foremen, gave them manu-
als which outlined various supervisory duties they were to
perform, and told them they could hire or fire. They filled
the role of bargaining unit crew leaders in the previous em-
ployer’s operation and continued to be working leaders of
crews which ranged from a total of three to a total of four
individuals. They were hourly rated, paid at a rate substan-
tially above the amounts paid to groundsmen and climbers
on their crew. They were placed under the supervision of sal-
aried general foremen, who were admitted supervisors, and
an operations manager who controlled them through their
salaried supervisors. At the same time, the Respondent hired
a total of 50 other employees who were admittedly rank-and-
file bargaining unit members. If these 19 individuals (and
others with a similar designation) are found to be super-
visors, the Respondent would have an inordinately low su-
pervisory ratio (including general supervisors and the man-
ager) of less than 4 to 1. If not, the Respondent would have
a supervisory ratio about 14 to 1, which is a little high but
not beyond perameters found in cited Board cases.
A number of employees, including some present crew
leader-foremen summoned by the General Counsel, credibly
testified that the job performed by the Respondent’s crew
leaders was no different, or only slightly different, from the
job performed by Asplundh crew leaders. Two of the Re-
spondent’s leaders insisted that they could hire employees al-
though no one testified credibly that they could fire or had
fired anyone without first clearing it with at least a general
foreman. Any participation on their part in the firing process
was simply to carry out an instruction given to them by ei-
ther the operations manager or a general foreman. As for hir-
ing, most of those who indicated that they hired individuals,
when pressed, admitted that they had only recommended an
individual for hire who, in some instances, might be hired or
might not be. I discredit Teddy Lester’s testimony relating to
his authority to perform supervisory functions. As for Jeffrey
Donathan, he testified that he had hired four individuals but,
upon further examination, admitted in two of those instances
he merely recommended the individuals in question and
someone else actually did the hiring. As for the two individ-
uals he claims to have hired without consultation with supe-
riors, such testimony may establish that Donathan himself
might well be a supervisor but it is far from establishing than
any other crew leader has actually exercised such authority.
With respect to issuing reprimands, some crew leaders and
others testified that crew leaders have issued reprimands only
when instructed to do so. One testified that he issued a par-
ticular reprimand upon instruction from the general foreman
although he had told the general foreman that he did not
want to do so. Others said that they, or their foremen, had
issued reprimands on their own, although most of these rep-
rimands were related to attendance. This testimony at best in-
dicates that crew leaders, in fact, have issued reprimands
only on an occasional, perfunctory basis involving minor
matters and have done so without the consistent exercise of
independent judgment required of a true supervisor. For the
most part, crew leader-foremen perform manual labor and
exercise surveillance over employees only for instructional
purposes in the case of new hires. The paperwork associated
with their jobs takes only a few minutes each day. The rest
of the time they spend performing bargaining unit work.
One troubling result in a finding that crew leaders are em-
ployees and not supervisors is that these tree-trimming and
brush-cutting crews roam about APCO properties at consid-
erable distances from their general foremen and are visited
by these actual supervisors perhaps once a day or three times
a week, depending upon which witness one feels is most ac-
curate in his description. However, the work they perform is
routine, difficult but not skilled, and by and large is per-
formed by men with many years of experience who need and
receive little or no actual supervision from anyone during the
course of a normal workday. In many respects, these crews
resemble the telephone maintenance crews whose crew chiefs
or foremen were found to be unit personnel in NLRB v.
Dickerson-Chapman, Inc., supra.
This situation also resembles one which confronted the
Fourth Circuit in NLRB v. Southern Bleachery & Print
894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 The Court observed that a successor may normally set its own
wage rates and other terms and conditions of employment when re-
cruiting employees. It does not follow from this premise that a suc-
cessor may also transfer bargaining unit work out of the unit by at-
tempting to promote unit employees to the position of working su-
pervisors without bargaining with the designated bargaining rep-
resentative, or that a successor may do so for the purpose of evis-
cerating a unit and diminishing a union’s bargaining power.
Works, 257 F.2d 235 (1958). In that case, skilled printers,
called machine printers, who had been treated for many years
as nonsupervisory employees, were given a list of instruc-
tions which invested them with the responsibility of checking
on timecards of other workers, recommending hiring, firing,
and pay increases for other employees, and taking necessary
steps to report, reprimand, or recommend disciplinary actions
for violation of company rules. They were also given a pay
increase at the same time. Speaking for the court, Judge
Soper wrote:
Our attention is called to certain decisions of the courts
which point out that the definition of the term ‘‘super-
visor’’ in the Act is phrased in the disjunctive so that
an employee who has the authority in the interest of the
employer to perform any of the enumerated acts in the
exercise of independent judgment acquires the status of
a supervisor, and also that the question of status is de-
termined by the existence of the power rather than by
the frequency of its exercise. It is equally clear, how-
ever, that the employer cannot make a supervisor out
of a rank and file employee simply by giving him the
title and theoretical power to perform one or more of
the enumerated supervisory functions. The important
thing is the possession and exercise of actual super-
visory duties and authority and not the formal title. It
is a question of fact in every case as to whether the in-
dividual is merely a superior workman or lead man who
exercises the control of a skilled worker over a less ca-
pable employee or is a supervisor who shares the power
of management. In this case we have the unquestioned
fact that, after 1950 as before, the machine printers did
the actual work of operating the machine and directing
actitivies of their helpers and also that during both peri-
ods a number of supervisors, assistant supervisors, and
foremen exercised authority over the printers. If the
Board, taking these facts in consideration, accepted the
testimony of witnesses for the Board that the new au-
thorities given to the printers on June 5, 1950, were
largely of a routine or perfunctory nature, it cannot be
said that the findings were unwarranted by the evidence
or are without support in the decision of the court. [Ci-
tations omitted.] [Supra at 239.]
In light of these precedents and the facts in thls record, I
conclude that the Respondent’s crew chiefs or crew foremen
are not supervisors but bargaining unit employees who are
entitled to the protections afforded to employees by Sections
7 and 8 of the Act.
3. The Respondent as a successor to Asplundh
Respondent claims that it is not a successor to Asplundh
because it is performing maintenance chores for APCO dif-
ferently than Asplundh did, namely by investing crew chiefs
with additional supervisory functions that somehow con-
stitute the current operation as being radically different from
the one which preceded it. This contention, even if factually
supported, is frivolous and has no bearing on the question of
successorship. In light of the above findings relating to crew
chiefs, the facts in this case define a classic example of a
successorship. The key to a determination of whether a new
employer on an old scene is or is not a successor is whether
the work the new employer is performing is the same work
that its predecessor performed. In this case, the Respondent
is performing the identical work that Asplundh performed,
for the same contractor, in many of the same localities, just
as the work which Asplundh performed was the same work
that the Respondent had performed 4 years earlier when it
held the APCO maintenance contract. The size of both work
forces is about the same. The Respondent’s initial work force
carried over all four general foremen whom Asplundh em-
ployed. A vast majority of those hired to inaugurate the Re-
spondent’s operation were Asplundh employees. Indeed, the
Respondent’s principal recruiting effort prior to the outset of
its APCO contract was to solicit applications from Asplundh
employees. As found above, the slight variation in respon-
sibilities between former and present crew chiefs is incon-
sequential. Crews are still made up of crew chiefs (now
called foremen), climbers or trimmers, and groundsmen. The
situation presented here is, in every material particular, iden-
tical to the one found in NLRB v. Burns Security Services,
406 U.S. 272 (1972), in which the Supreme Court, affirming
the Board, found the existence of a successorship when one
guard contractor took over a security contract from another
guard contractor and hired a majority of its predecessor’s
employees to perform the same work at the same location.
There was, in the Beckley, Bluefield, and Logan divisions of
APCO, a substantial continuity of the employing industry
when the Respondent commenced its maintenance contract in
early January. Accordingly, the Respondent was and is
Asplundh’s successor.
When the Respondent started work in early January 1992,
some 52 of its 70 or 71 unit employees were former
Asplundh employees. All Asplundh employees were mem-
bers of the Union under the Asplundh contract and had to
be, inasmuch as the Asplundh contract contained a conven-
tional union-security clause requiring union membership after
30 days of employment. Since a majority of the Respond-
ent’s employees were union members at the time the Union
made its demand for recognition and bargaining, the Re-
spondent was under a duty to recognize the Union as their
bargaining agent and to negotiate with the Union a contract
covering the terms and conditions of employment of unit em-
ployees.13
4. When the duty to bargain arose
In Fall River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987),
the Supreme Court upheld the Board’s rule that the duty of
a successor to recognize and bargain with the Union rep-
resenting the employees of its predecessor arises at the point
in time when the new employer has hired a representative
complement of employees to carry on its own operation. In
Fall River, this duty was found to exist when the new em-
ployer had hired employees in virtually all job classifications
and had hired at least 50 percent of those whom it would
895WILSON TREE CO.
14 One string in the Respondent’s bow is the contention that it had
no duty to recognize the Union because the demands for recognition
made upon it by the Union were not for recognition in an appro-
priate bargaining unit, inasmuch as the demands purportedly at-
tempted to include crew leaders whom the Respondent insists are su-
pervisors within the meaning of the Act and not properly includable
in any bargaining unit. The certification, as well as the unit descrip-
tion contained in the Asplundh contract, was for ‘‘employees en-
gaged in line clearance work’’ in the respective APCO divisions. It
made no reference to crew leaders as such; the certification, as with
all Board certifications, excluded supervisors within the meaning of
the Act. Rice’s demands for recognition tracked the language of the
Asplundh contract and the certification. It was for ‘‘employees en-
gaged in line clearance work’’ in the affected APCO divisions and
nothing more. As such, they were demands relating to classifications
contained in the certification. If, as the Respondent contends, its
crew leaders are supervisors, then this question can be addressed ei-
ther in a unit clarification proceeding or otherwise, but it has no
bearing on the validity of the certification or the unit description in
Rice’s carefully crafted demand letters. As noted above, the nec-
essary legal premise for the Respondent’s defense in this regard is
also missing.
ultimately employ in a majority of its job classifications. In
this case, the Respondent, as well as its predecessor, had
only three permanent classifications—crew leader (foreman),
climber or trimmer, and groundsman. By January 10, it had
hired employees in all of those classifications. It had also
hired 60 percent of its total-required complement of employ-
ees. Tested by the Fall River standard, on January 10 the Re-
spondent had a representative complement of its work force
on its payroll and, accordingly, was under a duty to recog-
nize and bargain with the Union.14 By failing and refusing
to honor the Union’s demand at that time, the Respondent
violated Section 8(a)(1) and (5) of the Act.
5. The resignations from the Union by Respondent’s
employees
As part of its hiring process, Respondent’s interviewers
told all applicants from the ranks of Asplundh employees
that it was a nonunion company and intended to stay that
way. These remarks were not casual expressions of opinion.
They were emphatic announcements of company policy,
made at a critical moment in each prospective employee’s
career as a right-of-way maintenance man when he was
about to lose one job and was anxious about obtaining an-
other. These systematic announcements coincided with the
Respondent’s formal response to the Union’s demand for
recognition, namely that it was a nonunion company and was
going to take every legal means to remain as such.
These statements by interviewers were not the last words
that Respondent’s employees heard on the subject of union-
ization. Shortly after operations began, Chamblis, the area
manager, visited each jobsite not merely to reiterate the mes-
sage received by each employee during the hiring process but
to follow up with a suggestion that any employee could re-
sign his membership in the Union. He then offered to pro-
vide each employee with the physical means of doing so.
This was done notwithstanding the fact that few if any of the
Respondent’s employees had made any overtures to indicate
that they were interested in resigning; indeed, many refused
to do so. After Chamblis completed his effort, a second try
was then made by general foremen to obtain the resignations
of those whom Chamblis was unable to prevail upon. All of
this was done against a background of strong animus and
other violations of the Act, discussed infra, and was per-
formed by supervisors or managerial employees of the Re-
spondent on a widespread, systematic basis.
While an employer may, under certain circumstances, law-
fully provide an employee with information concerning the
mechanics of resigning from a union, this Respondent went
far beyond either giving advice or accommodating requests.
It pursued its employees relentlessly until many of them sim-
ply acceded to its pressure and signed resignations. The Re-
spondent did so on a wholesale basis as a matter of company
policy and practice. In so doing, it unlawfully solicited em-
ployees to resign from their union in violation of Section
8(a)(1) of the Act. Its behavior also rendered the resignations
invalid as a means of rebutting a determination of majority
status based upon union membership during the contract pe-
riod of the Respondent’s predecessor. Moreover, the Re-
spondent’s unlawful refusal to recognize and bargain with
the Union on and after January 10 and its violations of Sec-
tion 8(a)(3) of the Act, hereinafter discussed, provide addi-
tional context which renders these resignations null and void.
I so find and conclude.
6. The independent violations of Section 8(a)(1)
of the Act
a. The status of Asplundh general foremen before
January 1, 1992, as agents of the Respondent
The Respondent points out that its general foremen—
Bolen, Cadle, Spry, and Lucas—were employees of
Asplundh throughout the month of December 1991, and did
not come on the Respondent payroll until it assumed respon-
sibility for the APCO contract on January 1, 1992. From this
fact the Respondent argues that it was not vicariously respon-
sible for anything these individuals may have said or done
before January 1 because, during that period of time, they
were Asplundh’s foremen, not the Respondent’s. The argu-
ment is disingenuous.
Early in December, the Respondent contacted these indi-
viduals and discussed with them their possible employment
as its general foremen. It then invited them to a meeting with
its labor counsel on December 11, at which time they were
informed, along with all of the Respondent’s existing and ad-
mitted supervisors, what they could do and not do in carry-
ing out the Respondent’s policy of resisting unionization ‘‘by
every legal means.’’ At hiring interviews which took place
in mid-December, all of these Asplundh foremen were
present and assisted the Respondent in conducting the inter-
views by handing out the Respondent’s application forms to
Asplundh employees and, in some instances, assisting those
employees in filling out their applications. Following the
interviews, these individuals, though still Asplundh super-
visors, gave their recommendations to Respondent’s manage-
ment about who should be hired and when, where, and in
what jobs they should be hired. Since they had personal
knowledge of the past performance and capabilities of
Asplundh employees and the Respondent’s upper manage-
ment did not, it necessarily follows that the Respondent was
forced to place heavy reliance upon their evaluations and rec-
ommendations. In light of these factors, it is clear that Bolen,
Cadle, Spry, and Lucas were nonsupervisory agents of the
Respondent during December 1991, while they were still on
896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 This statement was never corroborated by any member of
Asplundh’s management. As Bolen was a consistently untruthful wit-
ness, I discredit his testimony in this regard.
the Asplundh payroll and that the Respondent is vicariously
liable for their acts and statements while acting in that capac-
ity.
b. The violations committed by these and other agents
The Respondent herein violated Section 8(a)(1) of the Act
by the following acts and conduct of its supervisors and
agents:
(1) When Bolen told Reed that the Respondent was not
going to hire everyone and that people who were crybabies
and who had filed grievances were not going to be hired, he
clearly insinuated that the Respondent would not hire indi-
viduals who had engaged in union or concerted protected ac-
tivities. Such a statement violates Section 8(a)(1) of the Act.
In light of the Respondent’s other actions and statements, I
equate the phrase ‘‘crybaby’’ with such phrases as ‘‘bad atti-
tude’’ which the Board has long held to be a pejorative de-
scription of union sympathy or union activity by an antiunion
employer.
(2) When Bolen repeated the above-quoted remarks to
Reed’s crew, he violated Section 8(a)(1) of the Act. He again
violated Section 8(a)(1) when he repeated these remarks to
a work crew at Woody’s Quick Stop.
(3) When Griffin stated to several employees at a job
interview to several employees that the Company was non-
union and was going to stay that way, he was intimidating
employees and in effect telling them that union activity on
their part would be futile. Such a statement violates Section
8(a)(1) of the Act.
(4) In the context in which they were uttered, the remarks
made to job applicants by the Respondent’s interviewers that
the Respondent was nonunion and intended to stay that way
was more than an expression of policy but a threat to refuse
to bargain with the Union regardless of circumstances. Such
a threat is a violation of Section 8(a)(1) of the Act.
(5) When Cadle personally asked Thompson to sign a let-
ter of resignation from the Union as they were standing in
a parking lot getting ready to drive Asplundh trucks to
Charleston, he was not responding to any request or sugges-
tion on Thompson’s part but was soliciting an employee to
abandon his support for a labor organization and to do so in
writing. Cadle’s act of dictating the contents of the letter and
then taking it from Thompson for the purpose of forwarding
it to the Respondent confirmed the unlawful nature of his re-
quest. Such a solicitation violates Section 8(a)(1) of the Act.
(6) When Bolen asked Arnett and Osborne at a gas station
where they were going, he was coercively interrogating em-
ployees concerning their union activities in violation of Sec-
tion 8(a)(1) of the Act. When he disputed their answer and
told them that they were in fact going to a union meeting,
he was engaging in surveillance of union activities in viola-
tion of Section 8(a)(1) of the Act. When, a few days later,
Bolen asked Arnett why he had attended a union meeting,
he was again engaging in coercive interrogation in violation
of Section 8(a)(1) of the Act.
(7) When, at the Hylton Hotel in Beckley, Lucas asked
Norman to resign from the Union and supplied him with ap-
propriate language and paper to be used in writing the res-
ignation, he unlawfully solicited an employee to resign from
the Union in violation of Section 8(a)(1) of the Act.
While various individual acts on the part of Bolen and oth-
ers in soliciting employees to resign from the Union have
been recounted in the factual analysis in this decision, sepa-
rate findings of violations by them are not necessary and will
not be made since an overall finding has been made, supra,
that both Chamblis and general foremen unlawfully solicited
employees under their supervision and control to resign from
the Union.
7. The refusal of the Respondent to hire Ray Reed
The Respondent’s announced standards for hiring new em-
ployees were experience, competence, and, to a limited ex-
tent, geography, in that the Respondent wanted to place em-
ployees in areas where they had previously worked and
which were not too distant from their homes. All applicants
had to possess a driver’s license and had to pass a drug test,
which was normally administered after the employee was on
the payroll. Reed had about 25 years’ experience in the in-
dustry and had worked several years as a crew foreman, not
only for Asplundh but for the Respondent itself. Notwith-
standing this fact, he was not hired for any position, includ-
ing that of crew chief or foreman. In fact, his application was
rejected by the Respondent on the night it was submitted.
When, after a number of employees were hired, Reed asked
his former general foreman, Bolen, why he had not been
hired, Bolen replied, ‘‘You know why.’’ On that occasion,
Bolen also told Reed that, as his superior during the
Asplundh contract, he had experienced no difficulty with
Reed’s performance as crew chief. Bolen changed his story
when he testified.
Reed was a high profile union supporter, in that he was
president of the Local. In contrast, the Respondent, to whom
he applied for employment, gave strong evidence of animus
throughout the hiring process and thereafter, violating the
Act repeatedly with little concern for the provisions of law
or the rights of its employees. It is against this background
that the Respondent’s excuse for not offering Reed a job
must be evaluated. Bolen admitted on the stand what he had
told Reed privately, namely that he had never complained
about Reed’s job performance during the period of time that
he was Reed’s supervisor under the Asplundh contract. How-
ever, Bolen attempted to explain his failure to voice any con-
cern about Reed to their former employer on the basis that
Reed was the Union’s in-house leader and he had been told
by Asplundh’s higher management to ‘‘lay off’’ Reed for
that reason.15 He justified the Respondent’s refusal to hire
Reed on the basis that, during the Asplundh contract, Reed’s
crew had ‘‘poor production.’’ This judgment was not based
on any personnel or performance records obtained from
Asplundh, but on an evaluation assertedly made by APCO,
whose superintendents periodically go out into the field and
make spot checks of maintenance crews in order to verify the
statistics contained on weekly production reports concerning
the number of trees trimmed or felled and the yardage of
brush which has been cut. APCO’s June 13 and August 29,
1991 evaluations of Reed’s crew were satisfactory. However,
the December 12 and final evaluation given to Reed’s crew
contained mixed results. Two members of a four-member
evaluating crew, including Bolen, rated the crew’s perform-
ance during that period unsatisfactory, while others disagreed
897WILSON TREE CO.
or would not comment. The evaluation in question consisted
of 20 separate ratings. Of those ratings, Reed’s crew rated
satisfactory in 17 categories while, as noted, three were un-
satisfactory in the opinion of two members of the rating
group. The General Counsel brought out on cross-examina-
tion that Asplundh Crew Chief Teddy Lester, who was hired
by the Respondent and who testified for the Respondent in
this proceeding, received on his final evaluation as an
Asplundh crew leader only 5 satisfactory ratings and some
14 unsatisfactory ratings. The disparity in treatment between
Reed and T. Lester—hiring one individual as a crew chief
who had poorer ratings while refusing to offer Reed any kind
of a position—illustrates that the excuse given by the Re-
spondent in Reed’s case was a transparent pretext and that
its real reason for keeping Reed off its payroll was its desire
to deprive its employees of the in-house union leadership
which it knew Reed could provide. Accordingly, by denying
Reed employment because of his membership in and activi-
ties on behalf of the Union, the Respondent here violated
Section 8(a)(1) and (3) of the Act.
8. The refusal of the Respondent to hire Galen Clay
Like Reed, Clay had previously worked not only for
Asplundh but for the Respondent as well. He had been em-
ployed either as a groundsman or a crew chief. The record
is silent as to any complaint about his work in either capacity
during this lengthy period of time. It was well known that
Clay would not climb trees because of dizziness he experi-
ences while working at heights. He was never called upon
to do so by either of his previous employers.
Respondent claims that its new job requirements were dic-
tated by APCO, who wanted every groundsman to be able
‘‘to trim trees under direction.’’ However, APCO specified
no similar responsibility for crew chiefs employed by its
maintenance contractors. Respondent interprets this contrac-
tual requirement as one which requires every employee to
work at great heights. This is only an argument; the APCO
requirement is not so explicit and, more to the point, there
is no suggestion in the record that APCO ever laid upon all
employees employed by its contractors the same requirement
that the Respondent did.
Upon taking over the APCO maintenance contract in Janu-
ary 1992, Wilson imposed a job requirement that all employ-
ees, regardless of classification, be able to climb 50 feet or
more. It did not insist on such a requirement during its pre-
vious tenure as maintenance contractor in West Virginia. Ad-
mittedly Clay did not and could not meet that requirement.
However, the record contains other instances in which other
employees did little or no climbing and were not required to
do so as the price of obtaining or retaining their jobs with
the Respondent. Respondent admits that the requirement that
all employees be able and willing to climb is not so much
a work-related requirement, imposed in order to permit the
Respondent to carry out its functions efficiently, but a safety-
related requirement designed to ensure that someone would
be available in case other employees became injured or dis-
abled while up in a tree and had to be removed. This is a
thin justification, since all maintenance crews are composed
of several individuals, most of whom are able to climb. The
Respondent is entitled to a thin justification for a job require-
ment but it is not entitled to apply it disparately, and this is
what the Respondent has done with respect to Clay. It did
not offer Clay a position on any of its summer brush-spray-
ing crews, where it had employed several individuals who do
no climbing at all and are never asked to climb.
Clay was a union activist and a leading union official who
had many years of creditable experience in tree-trimming and
right-of-way maintenance work. He was denied employment
by an employer who ostensibly was looking for ability and
experience in fashioning its maintenance crews but whose
overarching concern was to avoid dealing with the Union and
to eliminate unionism from its workplace, not only by any
legal means but by any available means. I conclude that the
Respondent’s refusal to hire Clay because he would not and
could not climb was a pretext and that its real reason for re-
fusing to hire him was his union leadership. Such a refusal
is a violation of Section 8(a)(1) and (3) of the Act.
9. The discharge of James L. Arnett
Arnett was an experienced climber but his length of serv-
ice in the maintenance business did not approach that of ei-
ther Reed or Clay. He was an Asplundh employee who was
hired about 7 weeks after the Respondent commenced its op-
erations. He was discharged 2 or 3 weeks later. He worked
on a crew headed by T. Lester, T. Lester’s brother, Jackie,
and Pruitt. Their testimony is no more reliable than T.
Lester’s, whose testimony I have already discredited. Arnett
was not a union officer but he was a union member who re-
fused T. Lester’s request that he execute and sign a written
letter of resignation from the Union.
In his brief period of service with the Respondent, Arnett
was charged with several safety violations of a trivial char-
acter which ostensibly served as the basis of discharge. None
of these violations were brought to his attention at the time
they occurred, a fact which suggests that they were dredged
up for purposes of litigation after a decision had been made
to remove him. The reasons set forth on Arnett’s discharge
slip are at a marked variance with what T. Lester told Arnett
when he informed him of the discharge—‘‘It ain’t got noth-
ing to do with your work or anything like that. I was just
told to let you go.’’
Arnett had been supplied by the Respondent with defective
safety equipment and had complained about the strap on his
hardhat and his safety glasses. He was obligated to remove
them, at least temporarily, in order to do his job. With re-
spect to drop starting chainsaws, the evidence is clear that
all employees drop start chainsaws from time to time and
that there is no evidence whatsoever that anyone who has
done so has been disciplined in any way. With respect to the
incident that supposedly sealed Arnett’s fate, I find it prepos-
terous that Arnett was discharged for removing a tree that he
was only supposed to trim when he was not directed to cease
cutting it down while he was in the process of doing so.
Such lack of oversight is certainly not in accord with the
close supervision of employees which Respondent’s hand-
book imposes on its crew foremen.
As in the cases of Clay and Reed, the discharge of Arnett
presents one more instance of a virulently antiunion em-
ployer seizing upon a pretext, or a collection of pretexts, in
order to eliminate from its ranks a known union adherent.
Accordingly, I find that the Respondent discharged Arnett
because of his union sympathies and activities and, in so
doing, violated Section 8(a)(1) and (3) of the Act.
898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Among the Respondent’s many contentions is the claim that it
did not even know who was or was not a union officer or member,
other than in the case of Reed and Clay. Its four general foremen,
who had worked for Asplundh, who assisted the Respondent in se-
lecting Asplundh employees for hire, and who were eventually em-
ployed by the Respondent as general foremen were well aware of
who had been union officers, union stewards, and union members.
The contract between the Union and the Respondent’s predecesser
required all employees to be union members after 30 days of em-
ployment. This fact was also well known to everyone involved in
the Asplundh operation. Such knowedge is legally imputable to the
Respondent. I have no doubt that it had actual knowledge as well.
10. The delay in hiring Mendez, Harris, Bill Dean,
Collins, Bruce Collins, and Simmons
As noted above, the Respondent insists that its sole criteria
for hiring both its initial crew member and others who were
employed later on were experience, ability, and, to a lesser
extent, geography. In hiring more than 70 employees in early
January, it overlooked the five employees named above, not-
withstanding their experience in the industry and the fact that
all of them had been employed by Asplundh in the areas in
which they were eventually hired. Instead, preference in
making up the initial crews was given to 13 new hires—men
who had never before worked for either Asplundh or the Re-
spondent—and to 6 individuals who were transferred into
West Virginia from the Respondent’s staff in Virginia. All
five individuals included in this portion of the consolidated
complaint were union stewards or trustees, a matter which
Respondent insists is irrelevant, immaterial, and coinciden-
tal.16
In light of the Respondent’s unyielding and militant deter-
mination to avoid bargaining with the Union, which included
an outright refusal to hire the Union’s two leading adherents,
I am unwilling to believe that any action which had the ef-
fect of discriminating against a group of union leaders as a
class was purely coincidental. Certain individual explanations
were given as to why certain less experienced individuals
were hired in preference to these employees but no expla-
nation exists as to why so many out-of-state employees and
inexperienced employees were hired in preference to the bulk
of the Union’s leadership group. In the face of Respondent’s
oft-repeated assertion concerning the hiring criteria it pur-
portedly followed, the initial employment of inexperienced
and out-of-state job applicants stands as a flat contradiction
of announced principle because so many experienced, local
individuals were available and anxious to work. By its delay
in hiring Ray Mendez, Daniel Harris, Bill Dean Collins,
Bruce Collins, and Charles Simmons because of their mem-
bership in and activities on behalf the Union, the Respondent
again violated Section 8(a)(1) and (3) of the Act.
On the foregoing findings of fact and conclusions of law,
and upon the entire record herein considered as a whole, I
make the following
CONCLUSIONS OF LAW
1. Wilson Tree Company, Inc. is now and at all times ma-
terial herein has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. International Union of Electronic, Electrical, Salaried,
Machine, and Furniture Workers, AFL–CIO–CLC, and its
Local 732, are, respectively, labor organizations within the
meaning of Section 2(5) of the Act.
3. All employees employed by the Respondent in servicing
its Appalachian Power Company contract in the Logan,
Beckley, and Bluefield, West Virginia divisions, including
crew chiefs, trimmers, groundsmen, and systems crew em-
ployees, but excluding mechanics, office clerical and profes-
sional employees, guards, and supervisors as defined in the
Act, constitute a unit appropriate for collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since on or about January 10, 1992, the Union herein
has been the exclusive collective-bargaining representative of
the Respondent’s employees employed in the unit found ap-
propriate in Conclusion of Law 3 for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of the
Act.
5. By failing and refusing to recognize and bargain collec-
tively with International Union of Electronic, Electrical, Sala-
ried, Machine, and Furniture Workers, AFL–CIO–CLC, and
its Local 32 as the exclusive collective-bargaining representa-
tives of its employees employed in the unit found appropriate
in Conclusion of Law 3, the Respondent has violated Section
8(a)(5) of the Act.
6. By failing and refusing to hire Ray Reed and Galen
Clay; by discharging James L. Arnett; and by delaying the
hiring of Ray Mendez, Daniel Harris, Bill Dean Collins,
Bruce Collins, and Charles Simmons because of their mem-
bership in and activities on behalf of the Union, the Re-
spondent violated Section 8(a)(3) of the Act.
7. By the acts and conduct set forth above in Conclusions
of Law 5 and 6; by coercively interrogating employees con-
cerning their union activities; by engaging in the surveillance
of the union activities of employees; by soliciting employees
to resign their membership in the Union; by threatening to
refrain from hiring individuals who had engaged in union ac-
tivities and concerted protected activities; and by telling em-
ployees that the Respondent would never recognize or bar-
gain with the Union under any circumstances the Respondent
violated Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices have a close, inti-
mate, and adverse effect on the free flow of commerce with-
in the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent herein has engaged in
certain unfair labor practices, I will recommend that it be re-
quired to cease and desist therefrom and to take certain af-
firmative actions designed to effectuate the purposes and po-
lices of the Act. Since the independent violations of Section
8(a)(1) of the Act found herein are repeated and pervasive
and evidence an attitude on the part of this Respondent to
behave in total disregard of its statutory obligations, I will
recommend to the Board a so-called broad 8(a)(1) remedy
designed to suppress any and all violations of that section of
the Act. Hickmott Foods, 242 NLRB 1357 (1979). The rec-
ommended Order will also recommend that the Respondent
be required to offer full and immediate employment or rein-
statement to Ray Reed, Galen Clay, and James L. Arnett, and
that it make them and Ray Mendez, Daniel Harris, Bill Dean
Collins, Bruce Collins, and Charles Simmons whole for any
loss of earnings which they may have sustained by reason of
the discriminations practiced against them, in accordance
899WILSON TREE CO.
17 F. W. Woolworth Co., 90 NLRB 289 (1950).
18 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
19 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
with the Woolworth formula,17 with interest at the rate pre-
scribed by the Tax Reform Act of 1986 for the overpayment
and underpayment of Federal income tax. New Horizons for
the Retarded, 283 NLRB 1173 (1987).
The Respondent’s standard reply to the Union’s demands
for bargaining was that it would not do so until the Union
filed a representation petition and won a representation elec-
tion. This is a particularly inappropriate requirement in a
case such as this one, where rapid turnover of maintenance
contractors means that a new employer may potentially be
servicing APCO in West Virginia every 3 or 4 years. The
whole thrust of the successorship doctrine is designed to pro-
vide some stability in labor relations by focusing on the con-
tinuity of the bargaining unit rather than the identity of a
succession of employers. Where, as here, a majority of em-
ployees have continued to work in the same unit for a series
of companies, or more accurately an alternating pair of com-
panies, requiring an election every time APCO grants a
maintenance contract to another company would not only be
seriously disruptive of labor relations but would, as in the in-
stant case, provide an employer who is bent on destroying
a union majority and ousting it from the bargaining unit a
handy ploy for accomplishing its illegal purpose. As a prac-
tical matter, procedural delays in holding elections and in
vindicating employee rights following an election would
mean, in the circumstances of this bargaining unit, that em-
ployees would never be able to organize and bargain collec-
tively because, once they had established their right to do so,
as with the Asplundh Company, they would immediately be
faced with the necessity of doing so again with another con-
tractor, thus experiencing additional delays to the effort to
obtain a new certification. For this reason, the Board and the
courts have relied on the successorship doctrine to avoid
questions concerning representation when the real question at
issue is the destruction of employee rights under the Act by
illegal employer activities.
In addition to the above recommended remedy, I will also
recommend that the Respondent be required to post the usual
notice, advising its employees of their rights and of the re-
sults in this case. In light of the unusual feature of this case,
namely that the Respondent’s office is the area manager’s
home and that employees work in separate crews in widely
dispersed locations, I will recommend that signed copies of
the notice be posted for the required period of time in each
crew chief’s truck.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended18
ORDER
The Respondent, Wilson Tree Company, Inc., and its offi-
cers, agents, supervisors, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees concerning their
union activities or the union activities of other employees.
(b) Soliciting employees to resign from a labor organiza-
tion.
(c) Telling employees that they or other employees will
not be hired because they have engaged in union or con-
certed protected aciivities.
(d) Telling employees that it will never recognize or bar-
gain with the Union under any circumstances.
(e) Engaging in the surveillance of the union activities of
any employee.
(f) Discouraging membership in or activities on behalf of
International Union of Electronic, Electrical, Salaried, Ma-
chine, and Funiture Workers, AFL–CIO–CLC, and its Local
732, or any other labor organization by discharging employ-
ees, refusing or delaying the hiring of employees, or other-
wise discriminating against them in their hire or tenure.
(g) Refusing to recognize and bargain collectively in good
faith with International Union of Electronic, Electrical, Sala-
ried, Machine, and Furniture Workers, AFL–CIO–CLC, and
its Local 732 as the exclusive collective-bargaining rep-
resentative of all of the Respondent’s employees employed in
servicing its Appalachian Power Company contract in the
Logan, Beckley, and Bluefield, West Virginia divisions, in-
cluding crew chiefs, trimmers, groundsmen, and systems
crew employees, but excluding mechanics, office clerical and
professional employees, guards, and supervisors as defined in
the Act.
(h) By any other means or in any other manner interfering
with, restraining, or coercing employees in the exercise of
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to Ray Reed, Galen Clay, and James L. Arnett
full and immediate employment or reinstatement to their
former or substantially equivalent employment, without prej-
udice to their seniority or to other rights they have previously
enjoyed, and make them and Ray Mendez, Daniel Harris,
Bill Dean Collins, Bruce Collins, and Charles Simmons
whole for any loss of pay or benefits suffered by them by
reason of the discriminations found herein, in the manner de-
scribed above in the remedy section.
(b) Recognize and, on request, bargain collectively in good
faith with International Union of Electronic, Electrical, Sala-
ried, Machine, and Furniture Workers, AFL–CIO–CLC, and
its Local 732 as the exclusive collective-bargaining rep-
resentatives of the Respondent’s employees in the unit set
forth above.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amounts of backpay due under the terms of this Order.
(d) Post at the Respondent’s Beckley, West Virginia office
and in all company trucks driven by crew chiefs copies of
the attached notice marked ‘‘Appendix.’’19 Copies of the no-
tice, on forms provided by the Regional Director for Region
9, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.