Rainbow Painting & Decorating

National Labor Relations Board - Board Decisions

Mar 21, 2000

330 N.L.R.B. 972 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 972
John Forbes, a sole proprietorship, d/b/a Rainbow
Painting and Decorating and Building Trades
Organizing Project (BTOP). Cases 28–CA–
14772, 28–CA–15061, and 28–CA–15342
March 21, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND
HURTGEN
On March 25, 1999, Administrative Law Judge Gerald
A. Wacknov issued the attached decision. The General
Counsel filed exceptions and a supporting brief. The
Respondent filed an answering brief.1
The National Labor Relations Board has delegated its
authority in this matter to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions,3
except as modified here, and to adopt the recommended
Order as modified.
1. The complaint alleged several violations of Section
8(a)(1) of the Act by leadman Stephen Graybeal on Janu-
ary 12, 1998. Employee Steve Jensen had a jobsite con-
versation with union organizer Brad Larsen on that date.
Soon thereafter, according to Jensen’s credited testi-
mony, Graybeal asked Jensen what Larsen had said to
him. Jensen reported that Larsen had asked him to wear
a union T-shirt. Graybeal then asked Jensen, “[Y]ou’re
not going for that union stuff, are you?” Jensen re-
sponded, “Yes.” Graybeal then said that “you know, if
the company goes union we’ll never have any work.”
There are no exceptions to the judge’s finding that
Graybeal acted as the Respondent’s agent during this
encounter and that he unlawfully interrogated Jensen and
engaged in surveillance of employees’ union activity.
The General Counsel, however, excepts to the judge’s
finding that Graybeal’s concluding comment was
“merely a [lawful] statement of opinion by Graybeal that
he believed the Respondent’s customers would go else-
where if the Respondent became unionized.”

1 The Respondent failed to file timely exceptions to the judge’s
findings and conclusions that it committed several unfair labor prac-
tices.
2 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 In light of the judge’s uncontested finding that leadmen who
committed unfair labor practices were the Respondent’s agents, we find
no need to reach the issue of whether they were also supervisors under
the Act. We further find it unnecessary to pass on the General Coun-
sel’s exception to the judge’s failure to rule on allegations of unlawful
interrogation by Supervisor Armando Montoya. Any additional finding
of unlawful interrogation would be cumulative and would not affect the
remedy. Finally, we do not rely on the judge’s comments in fn. 31 of
his decision regarding the absence of certain individuals from the com-
plaint.
We find merit in the General Counsel’s exception. In
the context of unlawful interrogation and surveillance,
and in the absence of any objective evidence supporting
Graybeal’s unqualified assertion that unionization would
result in the loss of all work, we find that employees
would reasonably view Graybeal’s statement as a coer-
cive threat of loss of work, in violation of Section
8(a)(1). See NLRB v. Gissel Packing Co., 395 U.S. 575,
618–620 (1969).
2. We also find merit in the General Counsel’s excep-
tion to the judge’s failure to rule on complaint allegations
of unlawful threats made by leadman Rick Bennett dur-
ing a lunchtime conversation with two employees on
December 4, 1997. David Valdovinos, one of those em-
ployees, testified that Bennett said, “Rainbow should
close the company for a week and then reopen with peo-
ple that are loyal to the company, and open it with a dif-
ferent name.” Bennett also said that “everyone wearing
t-shirts with the union name should be fired.” Valdovi-
nos testified that he had heard Bennett make similar
statements on at least two occasions in the 2 weeks prior
to this incident. Although the Respondent called Bennett
as a witness, Bennett did not testify about this incident.
Based on Valdovinos’ uncontroverted testimony, we
find that Bennett made threats of reprisals for union ac-
tivity, including threats of discharge, company closure,
and the creation of an alter ego, which would reasonably
tend to coerce employees.4 These threats therefore vio-
lated Section 8(a)(1), as alleged in the complaint.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified below, and orders that the Respondent, John
Forbes, a sole proprietorship, d/b/a Rainbow Painting
and Decorating, Las Vegas, Nevada, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Interfering with, restraining, and coercing its em-
ployees in violation of Section 8(a)(1) of the Act by in-
terrogating them regarding their union affiliation or un-
ion activities, by engaging in surveillance of their union
activities, by telling employees that other employees
have been laid off because of their union activities, by
implying that employees’ union activities are considered
in the hiring process, by implying that the work of em-
ployees will be more closely monitored because they are
active on behalf of the Union, by telling employees man-
agers are upset with them for failing to reveal their union
affiliation during the hiring process, by changing work
rules to forbid all on-the-job talking because of employ-
4 As noted above, no exceptions were filed to the judge’s finding
that the leadmen acted as Respondent’s agents.
330 NLRB No. 142
RAINBOW PAINTING 973
ees’ union activities, by implying employees will lose
work if the company goes union, and by threatening em-
ployees with discharge, company closure, and the crea-
tion of an alter ego because of union activity.”
2. Substitute the attached notice for that of the
administrative 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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

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

WE WILL NOT interrogate applicants or employees re-
garding your union activities.
WE WILL NOT engage in surveillance of employees’ un-
ion activities.
WE WILL NOT tell employees that other employees have
been laid off because of their union activities.
WE WILL NOT imply that applicants’ union activities are
considered in the hiring process.
WE WILL NOT imply that the work of employees will be
more closely monitored because they are active on behalf
of the Union.
WE WILL NOT tell employees that we are upset with
them for failing to reveal their union affiliation during
the hiring process.
WE WILL NOT change work rules to forbid all on-the-
job talking because of employees’ union activities.
WE WILL NOT imply that employees will lose work if
the company goes union.
WE WILL NOT threaten you with discharge, company
closure, or the creation of an alter ego because of your
union activities.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce you in the exercise of the rights
guaranteed you under Section 7 of the National Labor
Relations Act.
JOHN FORBES, A SOLE PROPRIETORSHIP, D/B/A
RAINBOW PAINTING AND DECORATING

Nathan Albright, Esq. and Keith H. Ebenholtz, Esq., for the
General Counsel.
Gary Branton, Esq. (Kirshman, Harris & Cooper), of Las Ve-
gas, Nevada, for the Respondent.
Chris Sylvester, union representative, of Las Vegas, Nevada,
for the Union.
Richard G. McCracken, Esq. (Davis, Cowell & Bowe), of San
Francisco, California, for the Union.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursuant
to notice a hearing in this matter was held before me in Las
Vegas, Nevada, on July 21, 22, 23, 24, and September 16, 17,
18, 22, 23, and 24, 1998. The charge in Case 28–CA–14722
was filed on October 30, 1997, by Building Trades Organizing
Project (BTOP or the Union). Thereafter, on January 9, 1998,
the Regional Director for Region 28 of the National Labor Re-
lations Board (the Board), issued a complaint and notice of
hearing alleging violations by John Forbes, a sole proprietor-
ship, d/b/a Rainbow Painting and Decorating (the Respondent)
of Section 8(a)(1) and (3) of the National Labor Relations Act
(the Act) as amended. On March 12, 1998, the Union filed the
charge in Case 28–CA–15061. Thereafter, on April 30, 1998,
the Regional Director for Region 28 of the Board issued an
order consolidating cases, consolidated complaint and notice of
hearing alleging violations by the Respondent of Section
8(a)(1) and (3) of the Act.1 On July 29, 1998, during a recess in
the hearing the Union filed the Charge in Case 28–CA–15342.
Thereafter, on August 19, 1998, the Regional Director for Re-
gion 28 of the Board issued a complaint and notice of hearing
in that case alleging that the Respondent had engaged in addi-
tional conduct violative of Section 8(a)(1), (3), and (4) of the
Act. On August 19, 1998, the General Counsel filed a motion
to consolidate Case 28–CA–15342 with the other cases previ-
ously consolidated. This motion was granted. The Respondent,
in its various answers to the complaint and consolidated com-
plaint, denies that it has violated the Act as alleged.
The parties were afforded a full opportunity to be heard, to
call, examine and cross-examine witnesses, and to introduce
relevant evidence. Since the close of the hearing, briefs have
been received from counsel for the General Counsel, and coun-
sel for the Respondent. Upon the entire record, and based upon
my observation of the witnesses and consideration of the briefs
submitted, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent maintains its office and principal place of
business in Las Vegas, Nevada, and is engaged in business as a

1 The consolidated complaint was further amended at the hearing to
include additional allegations of Sec. 8(a)(1) of the Act as a result of
the Respondent’s admitted failure to give certain individuals a
Johnnie’s Poultry warning during its interviews of such individuals in
preparation for litigation of this matter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 974
painting and drywall contractor performing commercial con-
struction. In the course and conduct of its business operations
the Respondent annually purchases and receives products,
goods, and materials valued in excess of $50,000 from other
enterprises located within the State of Nevada, each of which
other enterprises receives these products, goods, and materials
directly from points outside the State of Nevada; and, during
times material, the Respondent has performed services valued
in excess of $50,000 for enterprises within the State of Nevada
which are directly engaged in interstate commerce. It is admit-
ted and I find that the Respondent is engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The record evidence shows and I find that at all material
times the Union (BTOP), which is comprised of International
Brotherhood of Painters and Allied Trades Local Union #159,
AFL–CIO, and Southern California-Nevada Regional Council
of Carpenters, affiliated with United Brotherhood of Carpenters
& Joiners of America, AFL–CIO, has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the aforementioned pleadings
are whether the Respondent has violated Section 8(a)(1), (3),
and (4) of the Act, as alleged.
B. The Facts
1. Background; status of leadmen
The Respondent is a commercial contractor engaged in the
business of painting, and the installation of drywall and acous-
tical ceilings. Its owner is John Forbes. Kirk Metz is in charge
of the Respondent’s day-to-day operations, and is also person-
nel manager and safety officer. Reporting to Metz are the divi-
sional managers of the Respondent’s various divisions: Jeff
Nelson (painting), Lee Mullis (framing), Armando Montoya
(drywall), Billy Joe English (drywall taping), Robert Curry
(wall covering),2 and the acoustical ceiling tile (ACT) division.3
Forbes testified that the Respondent currently had an em-
ployee complement of about 65 employees, but this apparently
varies according to the workload, and that sometimes as many
as 20 or 25 employees may be designated as leadmen. Usually
a person is made a leadman when he has been with the Respon-
dent for a period of time and has demonstrated his abilities,
and, in addition, is a responsible individual with a good atten-
dance record. It happens quite frequently that a leadman may
be placed in charge of a particular job, but thereafter may be
assigned to another job where he is simply a worker who works
under another leadman.4

2 Prior to August 1998, there was no wall covering division and wall
covering and painting were assigned to the painting divisional manager.
Robert Curry, currently the divisional manager for wall covering, was
formerly a leadman.
3 It appears that one of the other divisional managers is also in
charge of the acoustical ceiling tile division.
4 Michael Kiss, a leadman called as a witness by the General Coun-
sel, testified that he has been a leadman for 14 months, and that on
occasion he will work on jobs under another leadman; thus, sometimes
he acts as a leadman and sometimes he does not, depending upon the
situation.
Leadmen have the authority to direct the workers according
to the directions they receive from the divisional managers.
While they work with the tools alongside the other employees
most of the time, there is a period of time when the leadman
tells employees where to work, or what to do on the job, after
conferring with the general contractor’s superintendent on the
job. Leadmen have no authority to hire employees, transfer
employees from one job site to another, suspend employees, or
lay off or recall employees. These decisions are made by the
divisional managers, and are relayed to the leadmen either face
to face or by radio/telephone, which all the leadmen carry.
Leadmen have no authority to promote employees, discipline
employees, reward employees, or grant wage increases. In-
deed, according to Forbes, it is possible for a leadman to be
making less than a journeyman who is working alongside the
leadman. The leadman is considered to be the main worker on
the job, and is to ensure that the policies and rules of the em-
ployer are followed; if a worker fails or refuses to follow in-
structions or to work competently, then the leadman is to report
this to his divisional manager, who will come to the jobsite and
deal with the situation.
Divisional managers usually visit each job on a daily basis to
insure that the job is progressing according to schedule and to
handle any problems. In addition, divisional managers are in
touch with the leadmen by radio/telephone during the workday,
and give them instructions and directions. Generally, each craft
on the job will have a leadman in charge. Employees fill out
their own timecards and the divisional manager collects them at
the end of each pay period. The general contractors know who
the divisional managers and leads are on a particular job, and
may directly contact the divisional managers when they have
matters to discuss. Decisions about recalling workers, laying
off workers, and assigning workers to other jobs are made by
the various divisional managers, in consultation with the job
coordinator and estimator. Leadmen do not participate in such
decisions.
Divisional Manager Nelson testified that the leadmen do not
discipline employees and do not recommend discipline; rather,
they merely relate the concerns they may have about an em-
ployee. Sometimes the leadman may be present during such
discussions with the employee, so that Nelson and Personnel
Manager Metz, Nelson’s superior, may hear both sides of the
story. Regarding recommendations for wage increases, the
leadman, after observing the work of a newly hired employee,
may tell Nelson that the worker seems to be doing well, and
may suggest that the worker be given a raise. Nelson testified
that on such occasions he will himself assess the worker’s abil-
ity and performance, and, if warranted (perhaps 60 percent of
the time), will grant the increase.
Nelson testified that on one occasion leadman Stephen
Graybeal exceeded his authority by attempting to discharge
employee William Shop for repeatedly reporting to work late.
Graybeal, in fact, told Shop he was fired. Thereupon, both
Shop and Graybeal notified Nelson about the matter. As a
result, Shop was warned by Nelson and Metz for his tardiness
but was not discharged. Further, Graybeal was given an imme-
diate verbal warning by Forbes, Nelson, and Metz, who told
Graybeal that he had exceeded his authority and was not au-
thorized to discharge or discipline anyone. Graybeal confirmed
this and testified that he was indeed so reprimanded for his
conduct.
RAINBOW PAINTING 975
Forbes also testified that he instructed Metz to discipline
Graybeal for exceeding his authority. According to Forbes,
Graybeal was very apologetic and said that he had merely lost
his temper; and further, Graybeal apologized to Shop. Finally,
Metz confirmed the foregoing discipline of Graybeal, and testi-
fied that Graybeal was told that that he was completely out of
line, that he had a serious problem with his anger and with ex-
ceeding his authority, and that if he did it again he “would not
be working for us any more.”
Nelson, as divisional manager over painting and, until Au-
gust 1998, wall covering, has between 3 and 5 leadmen in his
division, and some additional 8 to 16 employees depending
upon the workload. Nelson testified that the leadmen run the
jobs, make assignment to the workers, oversee anything that
happens on the job, make sure that the materials are available,
and discuss matters with the general contractor’s superinten-
dent. And the leadmen let Nelson know if more men are
needed on the job.
While no leadman has any more authority than any other,
and the responsibilities of all the leadmen are identical, some
leadmen have been given certain perquisites because of special
circumstances: One individual is given a monthly stipend to
enable him to pay for medical insurance, and apparently two
others, who were formerly divisional managers and had a
monthly car allowance or company vehicle furnished by the
Respondent, have retained the car allowance or vehicle after
becoming leadmen. In addition to the leadmen, some regular
workers may also carry radio/telephones when they are work-
ing alone.
Robert Curry, currently a divisional manager for wall cover-
ing, was a leadman at all times material herein. Curry testified
that as a leadman in the painting division he worked with the
tools of his trade 95 percent of the time, and during the other 5
percent he “walked the job” to make sure that everything was
ready for the workers and that that they had the necessary mate-
rials. On occasion he may have been called upon to pick up
paint or tools for the men.
Rick Bennett, currently a leadman, has worked for the Re-
spondent 1 year and 6 months. He works with the tools of the
trade 90 percent of the time. The other 10 percent of the time
he does paperwork (compiling a daily log of what is accom-
plished), and lays out the work and tells the men what to do.
Stephen Graybeal, a leadman, has been employed by the Re-
spondent for 11 years. He described his position as paint fore-
man, or supervisor, or leadman. He works with the tools of his
trade approximately 80 to 85 percent of the time, and spends
the rest of the time lining out the work for the men on the job.
It is clear from abundant record evidence that Graybeal is an
outspoken individual who freely expresses, often in emphatic
language, what is on his mind, infra. Leadman Michael Kiss
testified that he and Graybeal were working at a jobsite where
there was some union picketing activity, and Graybeal said to
Kiss, “It’s all [employee] Larry Cline’s fault that they’re here
. . . if Larry Cline don’t quit, we’re gonna find a reason to get
rid of him.” On another occasion, after Cline began wearing a
union T-shirt on the job, Graybeal said to Kiss, “That Union . . .
mother fucker . . . I’m gonna make him spray oil until he gets
sick of it.” And in May or early June 1998, Grayybeal told
Kiss that, “[w]e’re gonna fuck with [Brad Larson, a union ac-
tivist] until he gets laid off.” A week or so later after Larson
was, in fact, laid off, Graybeal told Kiss, “We finally got rid of
that union mother fucker . . . yeah, I seen his face when he
came in and got his last paycheck.”5
2. Forbes’ talk to the employees
John Forbes testified that he held an employee meeting on
July 29, 1997, and for the most part read from a prepared
statement entitled “A Short Note from John R. Forbes.” It is
alleged in the complaint that Forbes’ remarks unlawfully em-
phasized the futility of union organizational activity. Insofar as
the records shows, Forbes, during the course of his short, one-
page, speech to the employees stated, inter alia, as follows:

May it be crystal clear, the owner and management of
Rainbow Painting Drywall has absolutely no intentions of
ever becoming a union operation.
With 20 years of experience and 20 years of develop-
ing open shop clients, we see the option of a union affilia-
tion as almost wasting those last 20 years. In our opinion,
it would be the equivalent of starting over.
. . . .
Rainbow Painting has every intention of obeying Na-
tional Labor Relation and Federal Government Regula-
tions.
I recognize the right of employees to be involved in
union organizing activities. I simply do not believe this is
good for the company or for the employees. Other peo-
ple’s agendas are involved here, not employees.
. . . .
We need to work at maintaining the unity this com-
pany has developed over these last few years. Strife and
fear are enemies to what we are trying to do here at Rain-
bow painting. However, fellow employees are free to ex-
press their own opinions concerning this matter one to an-
other.

Employee Larry Cline testified that about 20 to 30 employ-
ees were in attendance at the meeting. Personnel Manager
Metz said something about some change in insurance benefits.
Then, according to Cline, Forbes read from a paper and quoted
something from the Bible and said something to the effect that
everyone was aware that there was union activity being con-
ducted on the job and that the Company was not going to go
union. Then there was a question and answer session appar-
ently conducted by a representative of Associated General Con-
tractors, an employer organization.
Employee William Power testified that Forbes said that he
had been in business for 20 years and had established business
relationships with customers on a nonunion basis, and that his
customers didn’t want the Union; however, it was okay for the
employees to talk amongst themselves about what was going on
with the Union.
Employee Brad Larson testified that at the meeting, which
lasted close to an hour, there was some discussion about insur-
ance for the employees, and how the Company was changing.
Forbes, according to Larson, gave a rather lengthy speech, and
said that he had been in business for 20 years and was not union
“and he really didn’t see any reason that he should deal with the
unions or sign a contract.”

5 As leadmen are considered to be supervisors, there are no specific
complaint allegations regarding these statements by Graybeal to Kiss;
they are proffered as evidence of Graybeal’s animus toward union
adherents.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 976
3. Complaint allegations regarding Larry Cline
Larry Cline was hired as a painter by the Respondent on
April 23, 1997. He was interviewed by Kirk Metz. Cline testi-
fied that during the interview he was asked about his commer-
cial painting experience, and as they were “just sitting there
kind of chatting,” Metz asked him if he was in the union or had
ever been in the union. Cline said no. Metz said, according to
Cline, that “it was okay that he [Metz] had past . . . employees
that was in the union and that they had union painters on their
jobs.” Then he told Cline that he was hired.
In June 1997, Cline was working at the LaQuinta Inn jobsite.
He considered his supervisor to be Steve Graybeal. There were
about four other painters on the job during that period of time,
and about six additional Rainbow employees were engaged in
work other than painting. Cline testified that Graybeal lined
out the work for the men6 and told the employees where they
were going to work and what they were going to do for the day.
Each employee wrote out his own timecard. On Mondays they
would give the timecards to Graybeal and Graybeal would give
them to Divisional Manager Jeff Nelson. Graybeal, according
to Cline, worked with his tools, but not very often, maybe an
hour a day.
On June 24, 1997, Cline and Graybeal were working in a
room at the LaQuinta Inn jobsite, and Graybeal asked Cline if
he had ever been in the union before. Cline asked him if the
Company was going union, and Graybeal said no, that they
weren’t interested in becoming union. Then, explaining, Gray-
beal asked whether Cline would want to pay $22.50 per hour to
someone such as, for example, John Smith, a painter who was
generally known to be a marginal worker. Cline answered no,
but asked why the Respondent wouldn’t be willing to pay Cline
$22.50 per hour. Graybeal said that that would come in time.
According to Cline, Graybeal did a lot of “yelling and scream-
ing” on the job the whole time Cline was there. On one occa-
sion Graybeal directed Cline to report to a different job.
On July 3, 1997, Graybeal told Cline that the Union was go-
ing to picket the LaQuinta job. Cline asked how he knew and
Graybeal answered that there was a snitch in the Union. Cline
asked who it was and Graybeal said it was Bill Power. A few
days later, according to Cline, the two had a similar conversa-
tion.
By letter dated July 23, 1997, the Union advised the Respon-
dent that its “employees are engaged in protected concerted
activity in the form of organizing their co-workers at Rainbow
Painting and Drywall.” The letter goes on to identify three
employees as part of the Union’s organizing committee;
namely, William Power, lead committee member, Larry Cline,
and Kevin Reidebach, and states that “we will pursue all legal
means to ensure that these workers rights are protected and that
they are not discriminated against in any way for exercising
those rights.”
Cline had taken time off on July 16, 17, and 18, and returned
to work on July 21 or 22. On July 22, he was told by Graybeal
that there was no work for him the following day, and to call
Divisional Manager Nelson to find out when work would be
available. Cline phoned Nelson on July 23, 24, and 25, and on
July 25 was told to report for work on Monday, July 28. He did
so and was sent back to the LaQuinta jobsite. On that day, at
about 1:30 p.m., apparently while Cline was working, Reide-

6 It is not clear whether Graybeal lined out the work of only the
painters.
bach, who had worked with Cline at the LaQuinta job, came out
to the site and told Cline that he had been fired.7 Graybeal,
who was nearby, warned them that there would be no talking.
However, after Reidebach had left, Cline did speak with other
employees on the job that day, testifying that “[b]ut, yeah, if
there was somebody there to talk to, I did.”
The following morning, July 29, 1997, Cline, who was wear-
ing a union T-shirt for the first time, apparently gave a copy of
the Union’s foregoing July 23, 1997 letter directly to Graybeal,
and then went back to his truck to pick up his tools. Graybeal
approached him and said that there would be absolutely no
talking like he did the day before, and that if he did any talking
Graybeal was going to fire him. He asked Cline if that was fair
and if Cline understood. Cline said yes. Graybeal screamed
down the hallway to all the workers that “[t]here’d be no talk-
ing. There’s no talking.” So, according to Cline, nobody
talked for 2 days because Graybeal was “a screaming and a
hollering about no talking for those 2 days.” Prior to this time,
during Cline’s approximately 3 months of employment, there
had never been any prohibition of talking on the job while
working. Thereafter, Cline wore a union T-shirt on a daily
basis.
Cline was working at the LaQuinta Inn job on about August
14, 1997, and, at 9:30 a.m., during his 15-minute morning
break, participated in picketing the Respondent at that site.
When he went back to work after his break, Graybeal asked
him “exactly what it was that I wanted.” Cline said that he
wanted benefits and more pay. Graybeal responded, “Well,
you heard Forbes say that he wasn’t going to go union.” Cline
replied that it wasn’t anything personal, and that he was just
there trying to organize the Company.
Later that day, just before lunch, Graybeal and Nelson ap-
proached him in a stairwell as he was painting. There ensued a
20 or 25 minute conversation. Nelson wanted to know what
Cline wanted. Cline again said that he wanted better insurance
benefits and more pay, and Nelson replied that to his knowl-
edge no insurance company would provide insurance benefits
for employees who had been with an employer for less than 6
months. Cline replied that a union plan would provide benefits
after 300 hours, and Nelson said that Cline would be lucky to
get 300 hours on union jobs. Nelson went on to tell Cline that
Nelson’s brother had been in the union for 20 years and that
Nelson wasn’t sure whether he was working all the time or
getting benefits. Nelson said that Rainbow would always have
work for him, and that Rainbow had an employee who was 63
years old and was doing just fine. Cline could not recall any-
thing more that was said except for “idle chatter.” Graybeal,
according to Cline, didn’t say anything during this conversa-
tion.
Nelson testified that Larry Cline was a painter, and began
wearing a union T-shirt at the LaQuinta job sometime in 1997.
Cline talked to Nelson about union matters. Cline asked about
the policies at Rainbow regarding insurance and raises and
things like that, and told Nelson about what he believed the
Union could do for him. Nelson answered Cline’s questions
and explained the Respondent’s policies and benefits, and fur-
ther told Cline that union affiliation was his decision to make
and that he could make whatever decision he wanted.
7 At this time Reidebach was no longer an employee of the Respon-
dent. There is no allegation that Reidebach’s discharge was discrimina-
torily motivated.
RAINBOW PAINTING 977
Cline was moved around to various jobs under different lead
men, including Graybeal, Bob Curry, Rick Bennett, and Tom
Beasley8 Cline testified that he worked steadily and his em-
ployment ended on about December 3, 1997, when a union
organizer came on the jobsite and offered him a job with a un-
ion contractor.
Nelson testified that Cline terminated his employment on
December 3, 1997, when some union members showed up on
the job one afternoon and Cline just walked off the job with
them in the middle of the workday. Because Cline quit without
notice he was designated in Respondent’s records as ineligible
for rehire; this is the Respondent’s customary practice. Cline
never sought reemployment with the Respondent.
4. Complaint allegations regarding William (Bill) Power
Bill Power was interviewed and hired by Metz on March 31,
1997. During the interview, according to Power, he was not
asked any questions that referenced the union. He was told to
report to a jobsite where, according to Power, Graybeal was the
“supervisor or leadman or foreman.” Thereafter, Power
worked with various leadmen, including Tom Beesley. Beesley
told Power that his brushes and other tools would be provided
by the Respondent after Power had been there for a few weeks.
On May 6, 1977, during a breaktime conversation, Beesley told
Power that his “buddy, Kevin [Reidebach]” was from the Un-
ion, and that from time to time the Union would send people
out to the Company and that “we know how to deal with that.”
Power asked him why the Union would do that, and Beesley
explained that these people would be paid both by the Union
and by the employer and therefore would work for nonunion
wages because the difference was made up by the Union.
Power told him that that sounded pretty good, and joked that he
would like to sign up to do that. Beesley asked him if he had
ever been union, and Power said no. Beesley said that most of
the guys in their age group had been in the union at one time or
another, and that he had been in the union earlier when he was
in Alabama. He told Power that Jeff Nelson’s brother had been
in the union for 20 years and currently had a maintenance job in
a casino and didn’t think he made much money.
On July 11, 1997, Power wore a union T-shirt to work, and
gave a letter to his leadman, Rick Bennett, announcing that he
was organizing on behalf of the Union. Also, as noted above,
the Union sent a letter to the Respondent dated July 23, 1997,
stating that Power was the Union’s “Lead Committee Mem-
ber.” During his tenure with the Respondent, Power had been
moved around from job to job quite a bit. He testified that
during the 3-1/2-month period prior to the end of June he had
worked 68 hours of overtime; this would occur when he was
asked to stay late or sometimes work on Saturdays.9 From
about the end of June until July 11, 1997, when he identified
himself as a union adherent, and up until the time he was laid
off on September 5, 1997, according to Power, he only worked
1-1/2 hours of overtime. As far as he knew, other employees
were not working overtime during this period; further, he was
on “a couple of jobs that I closed up for sure,” and there proba-
bly was not any need for overtime on those jobs.
Power testified that about 2 weeks after he identified himself
as the Union’s lead committee member, he was invited by Divi-
8 Tom Beasley is deceased.
9 However, a summary of Power’s overtime hours introduced by the
General Counsel shows that from April 4 until June 4, 1997, Power
worked only a total of 29.5 hours of overtime.
sional Manager Nelson to join Nelson and another leadman for
lunch; there is no indication in the record that anything was said
about the Union on this occasion, or that the three individuals
engaged in anything other than a friendly luncheon conversa-
tion.
Power testified that sometime during the week of July 21,
1997, leadman Bennett criticized him for not painting the tops
of exposed pipes attached to the ceiling, and for leaving light
areas or “holidays” that had to be resprayed. He explained to
Bennett that he didn’t know he was supposed to paint the tops
of the pipes, “cause to me it’s like, usually, when you paint
something up, you paint what you can see.” Further, according
to Power, the lighting wasn’t real good inside the building and,
in addition he was not provided with the correct size of paint tip
nozzle; therefore, he left some light areas on the rafters or air-
conditioning ducts that later had to be repainted or touched up.
Bennett told him that “we can’t continue to have this quality of
work.” Then at lunchtime, Jeff Nelson and Bob Curry came
out to the site and inspected the work. Curry said, “I know what
you’re doing to those ceilings up there.”
Regarding the paint tip nozzle, Nelson testified that leadman
Bennett said he could “make do” with the tips he had until Nel-
son got out there with some smaller tips. Nelson brought out
the correct tips the next day. According to Nelson, a competent
journeyman painter should have been able to properly utilize
the tips that were available even though they may have not been
the best tips for the job. Nelson further testified that Power was
admonished, infra, for his work performance generally, and not
specifically because of problems that resulted from his not be-
ing provided the most appropriate paint tips for the work he
was assigned.
Power testified that shortly thereafter, on July 25, 1997, he
was called to a meeting at the Respondent’s office. Metz and
Nelson were present, and Metz did most of the talking. Metz
told Power that there had been “numerous complaints” about
the quality of his work including complaints by his leadman.
Power asked him to be specific as the only problem he knew of
was the aforementioned criticism by Bennett. Metz asked
Power if he had problems in his personal life. Power replied
that he didn’t have any personal problems, that he didn’t drink,
didn’t smoke, and led a very boring life. Power also stated that
he felt he was being “set up.” Metz then told him that the rea-
son he had been brought to the office was to have a “reorienta-
tion.” Metz said that he wasn’t being singled out and that all
the employees were going through such a reorientation. Then
Power was asked to review and sign a list of field employees’
duties.10
Metz testified that during the foregoing interview Power ap-
peared very anxious and defensive. Metz told him to relax and
assured him that he was not going to be fired, and then stated
that he and Nelson wanted to find out if there was anything that
could be done to help him improve his performance level as
they had received unfavorable reports about his work. And,
according to Metz, Nelson told Power that at one point he was
very happy with what Power was doing out there, but that his
work seemed to be going down hill and Power needed to turn it
around. Metz testified that although Power wanted specifics,
Metz spoke in generalities, as it was his experience that to get
10 The record shows that at this time all the field employees were be-
ing called to the office for a “reorientation” discussion; there are no
complaint allegations relating to this reorientation process.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 978
into a situation of accusations and denials was not advanta-
geous and was, in fact, counterproductive; all Metz was trying
to do was to get Power to improve his work performance. Then
they discussed the “reorientation” matters that were discussed
with each employee. Metz testified that as Power was leaving
the room he happened to drop a tape recorder that he had with
him. Metz prepared a memorandum to the file to document
that meeting with Power. The memo, dated July 25, 1997,
states that “William [Power] was given a final warning on the
listed concerns, quality of work, and poor production, not being
responsible for his job duties.”
Rick Vay is a superintendent for L. F. Harris & Associates, a
general contractor. Vay testified that at the Beverages and
More job, he observed an employee of Rainbow standing
around and not doing his job. Vay observed that during periods
of from 10 to 30 minutes, at times when Respondent’s divi-
sional manager, Nelson, or Respondent’s leadman, Bennett,
was not present, the individual would just “slack off.” Vay
explained that as the jobsite encompassed a 16,000 square foot
building, it was not possible for leadman Bennett to be oversee-
ing that individual’s work all the time. Vay testified that he
reported this to Forbes
Forbes testified that he received a phone call from Superin-
tendent Rick Vay, of L. F. Harris & Associates, who com-
plained that someone was just standing around when the fore-
man would leave. Forbes called Jeff Nelson and told him to
find out what was happening. Forbes said that he let Nelson
know he was “severely upset” as a phone call like that “breaks
down the confidence the client has in my company.”
Nelson corroborated this testimony of Forbes. Nelson testi-
fied that Forbes contacted him regarding a complaint from a
customer. Nelson went to the jobsite and spoke with Rick Vay,
superintendent for the general contractor. Vay said that he
didn’t seem to think Rainbow was getting enough work done
out there, and pointed out Power as the painter who was doing
nothing when he was not being watched. Nelson talked with
Power and he and Metz brought him to the office. They told
Power that there had been a complaint and that they needed him
to get to work and quit standing around. Power, according to
Nelson, was a little upset and defensive and didn’t think he had
been standing around. At some point prior to that time Power
began wearing a union T-shirt.
Power testified that near the end of August 1997, his lead-
man, Bob Curry, happened to mention the union T-shirt that
Power was wearing. Power asked him if he wanted one, and
stated that he had given one to Divisional Manager Nelson
sometime earlier. As they were leaving work that day, Curry
noticed Power’s union bumper sticker on his vehicle, and again
started talking about the Union. Curry said he didn’t think the
Union’s organizing efforts were going to work, and asked what
those 3000 union painters were going to do when all the scaf-
folding came down in Las Vegas. Curry asked if the Union
was paying him to organize. Power did not respond to the ques-
tion, and just replied that he could get Curry a union bumper
sticker and T-shirt if he wanted one.
Power was laid off on September 5, 1997. That morning
Curry made the statement to him that “he had never seen work
so slow at Rainbow and that if they didn’t have all this wallpa-
per to hang, he didn’t know what he’d be doing.” Power ac-
knowledged that work was coming to an end on that job.
Power worked the entire day, and at the end of the day Nelson
brought him his paycheck and said that work might be slow for
a little while—from a day or two to 2 weeks, but that he should
keep calling in. Power called five to seven times during a 2-
week period. On the last occasion, during the latter part of
September, Nelson told him to call back in the morning and
indicated that he had work for him. However, Power immedi-
ately got another job and did not call back.
Nelson testified that Power was laid off on September 5,
1997. He advised Power that he was being laid off due to lack
of work as that particular job was just being completed. He also
laid off another painter, Jamie Weston, at the same time. About
2 weeks later Nelson tried to call Power back to work by phon-
ing his home and leaving a message on his answering machine
that he should report for work the following Tuesday morning.
Power didn’t show up; rather, he called in on Tuesday morning
and said he was busy doing a little job and wanted to know if
he could come in on the following day, Wednesday. Nelson
said okay, and told him to report to leadman Tory Sheman at
the U.S. Foods jobsite on Wednesday morning. Again, Power
didn’t show up, and the Respondent hired another employee,
David Baldovinos, in his place. Weston, who had been laid off
at the same time as Power, was also recalled at that time and
did report to work on Tuedsay morning.
Nelson testified that, apparently on July 16, 1997, there was
a problem with the color of paint that the architect had desig-
nated on a particular job and that therefore no painting could be
done. Power and Weston were painters on that job. As there
was nothing else for them to do, Nelson sent Power and Weston
home. However, leadman Bennett remained on the job to try to
get the color straightened out.
5. Complaint allegations regarding Brad Larson and
Shaun Bennett
Brad Larson, a current employee, began working for the Re-
spondent on July 15, 1997, and has been continuously em-
ployed since that date. He has worked on 30 or 40 jobs for the
Respondent. He first made his union affiliation known on
about October 31, 1997, when the Union notified the Respon-
dent in writing that Larson was a member of the Union’s orga-
nizing committee. During his safety interview the day after he
was hired, Metz asked whether he had ever worked with any
union safety officers at Disney World, his previous employer.
And then Metz asked if Larson was union or had ever worked
with any union people. Larson answered no to all these ques-
tions about the union.
On August 26, 1997, Larson overheard a radio conversation
between Metz and Bob Curry, the leadman on the job. Metz
said the he had been interviewing somebody in the office and
asked if Curry knew the individual. Curry said, “Wait till I get
to the office, I think he’s a union plant.” Then Curry turned to
Larson and told him that the Union had been trying to get into
Rainbow.
On September 2, 1997, Larson was with Curry at the back of
Curry’s truck in the parking lot. They had been talking about
Bill Power. Curry mentioned that as soon as Power had put his
union shirt on he had “been sort of laying down on the job.”
Larson said that he really didn’t think so, and that he didn’t see
any difference in Power’s work.
On September 5, 1997, the day Power was laid off, Larson
and Curry walked over to the Pizza Hut for lunch. During
lunch, in the restaurant, Curry told Larson that “they had gotten
rid of Bill [Power] in order to get rid of the union.”
On November 3, 1997, Larson was working at the LaQuinta
Inn jobsite. He wore a brand new union T-shirt on that day,
RAINBOW PAINTING 979
and presented a letter to his leadman, Graybeal, announcing his
affiliation with the Union. Graybeal remarked, “[O]h, you’re
one of them . . . that’s why it takes so long to hang the wall
covering.” Later that morning, Curry had arrived with a ma-
chine for applying the wallpaper. Larson was helping him
unload it. Curry said that Jeff Nelson was really upset that
Larson had lied and had said that he was nonunion when he
was hired.
After November 3, 1997, when he announced his union af-
filiation, Larson went to visit employees at their homes, and he
talked to employees about the Union every day at work. He
also wore a union T-shirt to work every day, and distributed
union literature from time to time. His various leadmen saw
him engaged in these activities on many occasions.
Nelson testified that Brad Larson was hired to hang wall
covering, but that he was also used as a painter. Larson indi-
cated that he supported the Union, and he and Nelson talked
about this in a free exchange of ideas. According to Nelson,
they discussed the way unions sometimes “come in to busi-
nesses and try to stir everything up.” During one conversation
in September 1997, at the Las Vegas Health Care job, he did
tell Larson that as soon as employees put on union shirts they
became less productive. Larson agreed and replied, according
to Nelson, “[Y]es . . . he’s seen some of that and he was going
to take care of it.”11
Larson testified that on November 13, 1997, Nelson was at
the jobsite where Larson was working. Two union organizers,
John McCafferty and Jaime Contreras, came to the jobsite and
Larson introduced them to Nelson. Shortly thereafter, Curry
joined the group. Nelson said to Larson that he wanted this
conversation to be “off the record” and that he shouldn’t be
talking to Larson at all. They all shook hands, and proceeded
to engage in a lengthy conversation. McCafferty told Nelson
that he would like Forbes to sign a union contract. Nelson,
while looking at Larson, said that “all those union people are
liars,” and that “we couldn’t trust those union people.” He said
that a former employee and union organizer, “Jaime Thompson
3 years previously had come to Rainbow lying also” about
being nonunion when he was hired. Then Nelson repeated,
some 2 hours into the conversation, that union people couldn’t
be trusted. Larson testified that the conversation lasted “for
quite a few hours . . . it was just a long debate,” and that Nelson
was presenting the negative points and Union Representative
McCafferty was presenting the positive points of the Union.
Larson just got tired and left while the others were still talk-
ing.12
Nelson testified as follows regarding the foregoing conversa-
tion. At a jobsite, Larson introduced Nelson to Union Organiz-
ers Jamie Contraras and John McCafferty. The four of them
talked mostly about “union stuff,” and the union representatives
attempted to recruit Nelson. They told him that if he signed up
with the Union they would make sure that he would get union
pension credit for the 10 years he had been with Rainbow.
Nelson told them that he was not interested, as he was happy
working for Rainbow. Nelson testified that during this conver-

11 I credit Nelson’s account of this conversation.
12 On November 14, 1997, the Union notified the Respondent in
writing that Brad Larson was designated as the chairman of the Union’s
organizing committtee, and that the following employees were mem-
bers of the organizing committee: Brad Larson; Federico Arenas, Noe
Cervantes, Larry Cline, Daniel Escamilla, Francisco Esparza, Daniel
Gonzales, and Eliseo Rodriguez.
sation he did not tell either Larson or the union representatives
that people had lied to get jobs with Rainbow. Rather, he testi-
fied that, “I told them that they lied to get places, to get to peo-
ple. They lied to non Union members to try to coerce them
to—to try to get them in to joining.” Larson testified that he
was referring to the fact that the Union would lie to the workers
by misrepresenting the Union’s pension program, and by telling
the workers that they would always be provided work through
the union hiring hall.
Union Organizer McCafferty also testified regarding this
conversation. He testified that he offered, on behalf of the Un-
ion, to furnish the Respondent with skilled union labor to get
the job done for them, as the Union had a lot of people looking
for work. After a period of discussion, according to McCaf-
ferty, Nelson “started hinting to me that all union guys were
liars. That when James Thompson and others that applied there,
they had not told the company that they were union,” and had
lied to gain employment with the Company. During the course
of this 3-hour conversation Nelson said that “Rainbow would
not trust the union because they had been lied to. That Rain-
bow would never go union.” Then, Nelson said that Larson,
who was standing there, and Bill Power and Larry Cline “had
more or less laid down on the job and were worthless and
didn’t want to work anymore.”
Nelson testified that he was continually transferring employ-
ees “all over the place,” and that he transferred Larson off of
the Steinberg job in January 1998, as it was shut down due to
cold weather. Larson, who had been hanging wall covering at
the Steinberg job for 2 or 3 days, was transferred to the Tom
Siatta Dodge job, where he was assigned painting duties. There
was some overtime on the Tom Siatta job, and Nelson, who
approves overtime, was asked by the leadman on that job,
Graybeal, whether his crew could work overtime on a Saturday
to catch up with the work. Neslon said okay, and instructed
Graybeal to “work the main guys who had been out there.”
Neslon testified that he just needed a couple guys to work over-
time who were familiar with the job. Further, according to
Nelson, Larson had never asked to work overtime.
On Friday, January 16, 1998, Larson observed that Graybeal
was going around to all the other painters on the job asking
them to work on Saturday, January 17, 1998. Larson, who had
never turned down overtime, was not asked to work on Satur-
day. On Monday, January 19, 1998, Graybeal “sternly” sum-
moned him from across the room, and Larson came over. Lar-
son sarcastically said that he “apreciated” that Graybeal had not
asked him to work the preceding Saturday. Graybeal, who was
upset with Larson, said that overtime was voluntary. Larson
responded that Graybeal had never asked him if he wanted to
volunteer. Graybeal said that he was going to get rid of Larson
and that he “left too many holidays in the ceiling of the bay . . .
and said that it took four guys nine hours to completely respray
that area.” Larson retorted that that didn’t make much sense.
Graybeal, according to Larson, “continued to rant at me for
about 10 minutes.” Graybeal said, “Well, if you don’t like it
just complain to the union,” and Larson retorted that he was
going to file charges with the NLRB. Later that afternoon,
Nelson showed up and came over to talk with Larson. Larson
complained that he was having problems with Graybeal, and
told Nelson that the Union was not out to hurt the Company
and that his work was competent. Nelson, alluding to some
other employee, mentioned that as soon as that individual had
put his union shirt on “he just doesn’t produce anything.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 980
In early June 1998, there was an extensive layoff of painters.
Larson testified that he believed some 15 painters were laid
off. On June 9, 1998, Larson, Shaun Bennett, who, according
to Larson, “had been wearing a union shirt off and on,” and
leadman Curry were the only workers on a job that was about
to be completed. Apparently all three workers were laid off on
that date. Larson testified, however, that he was off work for
several weeks and was not recalled until about June 29, 1998,
and that Shaun Bennett, leadman Rick Bennett’s son, had not
been recalled at all. Moreover, Larson testified that he later
learned that a recent hire, whom Larson identified as Gene
Harrison,13 had been laid off for only 4 days, and Mike Kiss, a
leadman, was off for only about 5 hours.
Larson testified that in early July1997, his leadman, Bennett,
asked him to work overtime one Sunday. Larson testified that
almost all the jobs on which he has worked have been under
leadman Bob Curry, and that Curry has criticized his work on
occasion by calling his attention to “stupid mistakes” that he
may have made. He has worked with Graybeal only on two
jobs during his employment with the Respondent.
Larson first testified in this proceeding on July 22, 1998. He
worked on Thursday, July 23, and Friday, July 24, 1998. On
that particular job, according to Larson, there was enough work
remaining for “a couple of people” for only about 1 or 2 days.
On Sunday, July 26, 1998, he was told by Nelson not to report
to work on Monday, as work was slow. However, on Monday,
Larson observed that leadmen Bob Curry and Rick Bennett
were completing that same job. Then, on Tuesday, July 28,
1998, Larson received what he characterized as a “weird” call
from Nelson, who began the conversation by asking, “Why
aren’t you out looking for work?” He was told to report to
work the next morning.
Nelson testified that he laid off Larson on two or three dif-
ferent occasions. The longest of these occasions was in June
1998. There were only a few jobs in progress and they all were
in the process of wrapping up; there was simply a lack of work
and he had no place to send Larson. Jamie Weston got laid off
at the same time, and other workers voluntarily took time off;
otherwise, according to Nelson, they too would have been laid
off. Larson was recalled about a week and a half or 2 weeks
later. Then he was laid off again for a few days, as work was
getting slow and two leadmen, Rick Bennett and Bob Curry
completed the job on which Larson had been working, after
only 1 more day. Then Larson was recalled again. On this
occasion, Nelson called Larson’s home and Larson happened to
answer the phone. Nelson was surprised and said, “I thought
you’d be out working.” Nelson said that he made this offhand
comment because usually he will get an answering machine, as
most laid-off employees will go out and attempt to find small
jobs until they are recalled. Larson replied that he was sitting
there waiting for Nelson to call him back to work.
Nelson testified that he hired various employees who later
identified themselves as union adherents and wore union T-
shirts: Larry Cline, Eric Keyes, Fred Larson, William Power,
and Kevin Ridebach. The fact that they favored the Union did
not influence his decision to either lay them off or rehire them,
as such matters were dictated by the workload rather than by
their union activity.

13 The Respondent’s records show that the only Harrison working for
the Respondent at the time was “Francis” Harrison, and that the Re-
spondent as a painter had hired him on February 9, 1998.
Nelson testified that Shaun Bennett was an apprentice
painter and apprentice wallpaper employee. Bennett was laid
off in about June 1998, together with Larson, and was not im-
mediately recalled because of some disciplinary problems, and,
in addition, because he had no driver’s license and therefore no
transportation; also, his drug test turned out positive. Both
Nelson and Metz talked to him about his problems, and at some
point tried to call him, but he had moved to two or three differ-
ent places in succession. Nelson then talked to his father,
leadman Rick Bennett, and finally was able to obtain Shaun
Bennett’s phone number. Nelson called him and asked whether
he had obtained a driver’s license. Bennett said no, and went
on to relate that he had taken another job in a plastics factory,
that he was able to walk to work, and that he was happy with
the job. Nelson offered him a job with the Respondent on the
condition that he have a valid driver’s license and transporta-
tion, and Bennett replied that he was happy where he was and
didn’t want to return to work for the Respondent. Shaun Ben-
nett did not testify in this proceeding.
6. Complaint allegations regarding Steve Jensen, Jose Zepeda,
and Marcos Zepeda
Since about January 3, 1997, Steve Jensen has been an em-
ployee of Contractors and Builders, a manpower firm utilized
by the Respondent for temporary employees. He was first sent
out to one of the Respondent’s jobs on December 12, 1997. He
worked at this first job for only 2 days, under Larry Wood, a
leadman, when he became ill. He was told to come back when
he felt better. He returned to work for the Respondent on Janu-
ary 2, 1998. On about January 12, 1998, Brad Larson, a union
organizer asked him, whether he would be willing to wear a
union T-shirt beginning Monday, January 19, 1998. Jensen
agreed to do so. Shortly after this conversation, according to
Jensen, Steve Graybeal, his leadman, approached him on that
particular job, whom, according to Jensen, “Always painted
100 percent” of the time. Graybeal asked him what Larson was
talking to him about. Jensen replied that Larson had asked him
to wear a union T-shirt the following Monday. Graybeal pro-
ceeded to say, according to Jensen, “[Y]ou’re not going to go
for that union stuff, are you?” Jensen said yes, and Graybeal
said, “. . . fuck all that, you know, if the company goes union
we’ll never have any work.” Jensen, with a “profound” look on
his face, said, “[O]h.” Graybeal rolled his eyes, frowned, and
walked away.
On January 17, 1998, according to Jensen, his leadman,
Wood, and some other employees were discussing the work-
load. Wood proceeded to say that the employees would not
have to worry about layoffs, as they had more work than they
could handle, and that, if anything, the Respondent would have
to hire more men. Jensen came to work on Monday, January
19, 1998, wearing his union T-shirt, and testified that about six
or seven other employees were wearing union T-shirts that day.
Also on that day, the Union sent a letter to the Respondent an-
nouncing that nine more employees were members of the Un-
ion’s organizing committee:14 Steve Jensen, Mike Campbell,
Brad Larson, Norm Ogden, Jose Jesus Zepeda, Marcos Zepeda,
Don Dufur, Floyd Dobson, and Ricardo Blanque.
14 Earlier, by letter dated November 14, 1997, the Union notified the
Respondent that the following eight employees were a part of the Un-
ion’s organizing committee: Brad Larson, chairman, Federico Arenas,
Noe Cervantes, Larry Cline, Daniel Escamilla, Francisco Esparza,
Daniel Gonzales, and Eliseo Rodriguez.
RAINBOW PAINTING 981
Jensen testified that at the end of the workday on January 19,
1998, Divisional Manager B. J. English approached him and
told him he was being laid off because they ran out of work.
English told him, “We’re sorry man, and hey, I like your work.
You’re a great finisher and I’m going to request you back in
two to three weeks.” Jensen said to English that he had been
told there was a lot of work, and English replied that this was
not correct and that Metz had told him to lay Jensen off. Jose
Zepeda, who also wore a union T-shirt that day, was laid off at
the same time, and was told that the Respondent just didn’t
have any work and that work was slow. Jensen called the Re-
spondent on several occasions, but was not called to work by
Rainbow until May 1998; however, during the interim period
he continued working fairly steadily for Contractors and Build-
ers. In May 1998, English phoned him and left a message with
his roommate that he was being offered a job. However, Jensen
was unable to accept the job as he was leaving for Florida.
Jose Zepeda was interviewed by Metz and hired on about
November 6, 1997. On January 19, 1998, at about noon, he
was approached by two union organizers who showed him a
letter listing his name as a union adherent, and told him that
they were going to send the letter to the Respondent’s office.
Zepeda testified that he didn’t know what this was about.
When he went back to work after lunch Divisional Manager
English told him that work was slow and that he and others
were being laid off. Zepeda testified that the job he was on,
Tom Siatta Dodge, appeared to be coming to an end and that he
was not aware of any other jobs that were going on at the time.
Zepeda did not wear a union T-shirt on that day, and, the record
does not show that prior to that day he was a union adherent.
He was recalled on April 2, 1998, and was given a pay increase
from $17 to $18 per hour. He worked for the Respondent for 2
weeks, and then he left voluntarily to go to a prevailing wage
job.
Marcos Zepeda, Jose Zepeda’s brother, worked for the Re-
spondent from November 19, 1997, through January 19, 1998.
His leadman was B. J. English. On January 19, 1998, he appar-
ently began wearing a union T-shirt, but it was not visible as he
wore it under his sweatshirt. Also, as noted above, on that date
the Union sent a letter to the Respondent listing Marcos
Zepeda’s name as being on the organizing committee. At about
12:45 p.m. on that day, English handed him a layoff slip, and
said he was sorry, but that there was no more work for him, and
that English was bringing in somebody else to finish the job he
had been doing. He gave Zepeda two checks: one for the last
week of work, and one for the day of January 19, 1998. Eng-
lish told Zepeda that they were only going to be keeping the
three most senior people, one of who was Norm Ogden, who
also was listed as a union committee member in the Union’s
January 19, 1998 organizing letter. Zepeda’s brother, Jose
Zepeda, was also laid off at the same time. English said there
would probably be some work in 2 weeks, and that he would
call Zepeda. Zepeda testified that, in fact, he was not called
back and that his brother, who was called back, supra, never
advised him that the Respondent had attempted to recall him to
work.
English testified that in early January 1998, there were as
many as 15 tapers on various jobs, but that all of the major jobs
were at the completion stage. He began a series of layoffs be-
ginning on January 12, 1998, when he laid off three employ-
ees.15 The next week, on January 19, 1998, he laid off three
more employees, namely, Jensen, Jose Zepeda, and Marcos
Zepeda. And on January 27, 1998, he laid off Donald Dufur
and Floyd Dodson.
English testified that layoffs are necessary when the Respon-
dent runs out of sufficient work to keep the employees busy,
and that the persons with the most skills stay the longest. This
would be his core group. Thus, he would be most likely to
retain an individual with a variety of skills, for example, some-
one who was good at patchwork, matching textures, and paint-
ing, so that the individual could handle any work that might
become available. And when a job is winding down, he at-
tempts to leave the leadmen on the job until completion, as they
are most familiar with the work. Further, he calls people back
from layoff according to their versatility. English testified that
at about the end of January 1998, he was left with only his core
group of drywall tapers, namely, Norm Ogden, Jim Tolley,
Larry Woods, and Bill Keene. According to English, Ogden
and Keene clearly identified themselves as union adherents.
There was a down period thereafter, before he began recalling
tapers.
English testified that after Jose Zepeda and his brother, Mar-
cos Zepeda, were laid off he recalled Jose Zapata and advised
told him to notify his brother, Marcos, that he too was being
recalled. However, Jose Zepeda told him that his brother was
working. It is English’s practice not to call back someone who
is currently employed because English cannot insure them work
for any length of time. Jose Zepeda did come back to work, but
worked for only a few days and then left to take a prevailing
wage job with another employer. English told him to call back
when he was available to again work for the Respondent.
7. Complaint allegations regarding Noe Cervantes and Daniel
Escamilla
Noe Cervantes and Daniel Escamilla were hired on Novem-
ber 1, 1997, as drywall hangers. At the time they submitted
their employment applications they told Metz and Divisional
Manager Montoya, who interviewed them, that they would be
late to work each Monday as they had to sign in at the union
hiring hall for work on that day. This was apparently acceptable
with Montoya and Metz, and they were hired. They attended a
union meeting at Freedom Park on November 13, 1997, and
began wearing union T-shirts at work. They were listed as
members of the Union’s organizing committee in the Union’s
November 14, 1997 letter to the Respondent. Both were laid
off on November 21, 1997. According to the testimony of
Cervantes,16 Montoya told both him and Escamilla that they
were good workers but that work was slow and that he could
not keep them on. Further, Montoya told them that he would
call them back to work in 15 days. Cervantes believes that
although the job they were then working on was completed,
there was a lot of work to be done at other jobsites at the time
they were laid off.
Armondo Montoya is divisional manager for the drywall
hanging division. Montoya testified that three employees, Noe
Cervantes, Daniel Escamilla, and Daniel Gonzalez were inter-
viewed and hired at the same time. Each of the three was wear-
ing a union T-shirt at the time of the interview and one was also

15 Also, the Respondent’s records show that employee Rosalio
Valles was laid off on January 13, 1998, and that Daniel Guimond was
laid off on January 22, 1998.
16 Escamilla did not testify in this proceeding
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 982
wearing a union hat. They asked for permission to sign up for
work at the union hall on Mondays at 8 o’clock. This was ac-
ceptable. Montoya testified that it is his decision to determine
when employees should be laid off. Cervantes was laid off
because of lack of work, as the job he was working on had
ended and there were no other jobs beginning right away.
While Montoya did not specifically testify about Escamilla’s
layoff, apparently because Escamilla was not called as a wit-
ness by the General Counsel, it is clear from the testimony of
Cervantes that Escamilla was also laid off at the same time for
the same reason. Montoya testified that he did call back Daniel
Gonzales and Daniel Escamilla on March 25, 1998, and at-
tempted to recall Cervantes at about the same time, but no one
answered the phone number that Montoya was given for
Cervantes.
The November 14, 1997 letter from the Union lists eight em-
ployees as members of the union organizing committee. Six of
them are drywall tapers under the supervision of Divisional
Manager Montoya: Noe Cervantes, Daniel Escamilla, Daniel
Gonzalez, Federico Arenas, Francisco Esparza, and Eliseo Rod-
riguez. On November 21, according to the Respondent’s re-
cords, Montoya laid off Cervantes and Escamilla, and, in addi-
tion, Francisco Chavez, who was not named in the Union’s
letter and, insofar as the record evidence shows, was not known
to be a union adherent. Further, Gonzalez, an announced union
adherent who was hired along with Cervantes and Escamilla,
was not laid off until January 13, 1998, and there is no com-
plaint allegation that his layoff was discriminatory. And Eliseo
Rodriguez, an announced union adherent, has never been laid
off.
8. Complaint allegation regarding surveillance by Montoya
Union Organizer Jose Gutierrez testified that he was at Free-
dom Park on the evening of November 13, 1997, preparing for
a meeting with Rainbow employees. With him were two other
union organizers, Lori Ashton and Chris Sylvester. Guiterrez
testified that he observed two Hispanic individuals conversing
under a tree, and went to speak with them. One of them intro-
duced himself as Armondo Montoya, and said he was “Rain-
bow’s foreman.” Guiterrez asked him what he was doing there
and “if he was trying to help us organize and he was interested
in joining the union.” Montoya said, according to Gutierrez,
“No. I’m here just to observe, to see what happens and see who
comes here.” Then according to Gutierrez, Montoya noticed
two employees approaching and said, “I’d better get out of
here, if not these people are going to go back, and the others
will not come.” Gutierrez asked him “why” and whether it was
because he was a foreman, and Montoya said yes and that “he
didn’t want to scare the guys.” Then Guiterrez returned to the
two other organizers, and told them that Armando Montoya,
Rainbow’s foreman, was there. Then Lori Ashton went over
and spoke with Montoya “for about a minute.”17
Employee Noe Cervantes testified that he attended the meet-
ing in the park. The meeting was to begin at 5 p.m., and he
arrived late, at about 5:15 p.m. During the meeting he observed
that Montoya’s truck, a white truck with a rainbow on the door,
drove slowly by about 100 feet from where the group was
standing.
Union Representative Chris Sylvester testified that he has
been to Freedom Park four or five times to meet with employ-
ees. He went to such a meeting in November 1997, with two

17 Ashton did not testify in this proceeding.
other organizers, Lori Ashton and Jose Gutierrez. About 45
minutes prior to the time the meeting was to begin, he observed
two individuals standing about 60 to 70 feet away. Union Rep-
resentatives Ashton and Guiterrez went over and spoke with
them. Then one of the individuals, whom Ashton identified to
Sylvester as Montoya, left in his truck. Thereafter the three
union representatives held a meeting with some 8 or 10 indi-
viduals, and Sylvester observed that Montoya returned and
drove back through the parking lot, very slowly due to the con-
gested traffic, and passed close to where the group was assem-
bled as they were meeting alongside the curb of the parking lot.
According to Sylvester, there would only have been about one
car length separating the group from Montoya’s slowly moving
truck. Sylvester testified that after the truck left the first time,
two people who seemed reluctant to approach while Montoya
was standing there earlier, returned to the area for the meeting.
Armando Montoya, divisional manager for the drywall divi-
sion, testified that on occasion he would be present when em-
ployees would talk about the Union’s organizing efforts, but
that he did not ask any employees how they felt about the Un-
ion. On one occasion, in about November or December 1997,
employee Nicolas Martinez asked him if he wanted to attend a
union meeting at Freedom Park. Montoya said, “Sure, why
not.”18 He drove to the park in his truck, parked, and then began
talking with Martinez, who was the only Rainbow employee
present at the time; however, he noticed that there were about
four or five other people standing near an ice chest about 50
feet away. Two union organizers, a woman and a man, ap-
proached as Montoya was getting ready to leave. Nicolas Mar-
tinez introduced Montoya to them, and they said, according to
Montoya, “Why don’t you join us over here.” Montoya said
that “[w]ell, we’ll just wait here a little while,” and the two
said, “Okay, whatever you want, just join us here.”19 Then, as
it was cold, Montoya told them that he was leaving. One of the
organizers asked why he was leaving, and Montoya said be-
cause it was cold and windy and dark, and he was hungry and
tired, and there was no one else there. They spoke in Spanish.
Montoya testified that after his conversation with the union
representatives he went straight home and did not return to
Freedom Park later that evening.
Montoya testified that when the employees first told him
about the meeting he did advise his supervisor, Howard Sam-
son, that there was going to be a union meeting at the park.
However, he was not instructed to go to the meeting by anyone,
and did not tell any superiors that that he was going. Nor did
he report to anyone what happened there.
9. Complaint allegation regarding mass applicants
The Respondent’s business is subject to the customary peaks
and valleys of the construction industry, and the employee
complement needed to perform the available work is dependent
upon the Respondent’s daily and weekly schedule. This results
in frequent layoffs and transferring employees from job to job.
Customarily those retained or least likely to be laid off are the
employee’s with the greatest seniority and skills for performing
the available work. Primarily the Respondent obtains employ-
18 Union Organizer McCafferty, when asked whether the lead people
were a target of organizing, testified, “I don’t really know per say [sic],
who the lead people are, anybody at the company was a target of orga-
nizing.”
19 Gutierrez, on rebuttal, denied that he or Ashton said this to
Montoya.
RAINBOW PAINTING 983
ees through the process of rehiring laid-off or former workers.
This method of hiring is given the highest priority as the em-
ployees rehired have already demonstrated their skills, and the
Respondent is familiar with their abilities and what may be
expected from them. Next, the Respondent hires through refer-
rals, because the referred employee is, in effect, recommended
by someone who is known to the Respondent; referrals may be
made by anyone known to the Respondent, namely, Respon-
dent’s owner, managers, divisional managers, leadmen, em-
ployees, or even customers. Lastly, employees are hired
through a call-in procedure, the lowest priority, because such
employees are unknown quantities. In addition, when it is not
practical to go through the hiring process to obtain a worker
who may only be needed for a relatively brief period of time,
the Respondent utilizes the services of a temporary employ-
ment service, named Builders and Contractors.
Currently, when hiring referrals and call-ins, the Respondent
utilizes an index card system. Prior to about May 1997, when
the Union began its organizing efforts, employees would come
to the Respondent’s office and fill out an employment applica-
tion. However, this procedure was changed after the Union
began targeting the Respondent. Thus, union applicants, some
armed with video cameras, appeared at the Respondent’s office
en masse and disrupted the orderly work of the office staff.
Thereafter, the Respondent posted a notice outside its office
that required all applicants to phone in between the hours of
8:30 and 10:30 a.m., Monday through Thursday, and leave their
name, phone number, and primary job skill. Initially, the office
secretary who answered the phone entered this information in a
three-ring binder. The binder was in use until about the end of
1997, and was then discarded because the binder pages, each
containing information from about five applicants, became
confusing and unwieldy. An index card file system, with a
separate card for each applicant, was substituted. Applicants
were told that their names would be kept on file for 90 days,
after which they should phone again.
Carla Day testified that she worked for the Respondent from
December 1996 until November 1997. She was a receptionist.
Day testified that in April or May 1997, the hiring procedure
was changed from permitting walk-ins to fill out applications to
the foregoing three-ring binder telephone procedure. The
change was made, according to Day, after some 40 or 50
“screaming and hollering” union applicants entered the Re-
spondent’s lobby with video cameras. It created a chaotic
situation and disrupted the work of the office, which could not
accommodate the large group. Day testified that twice a month
union applicants would “ring the phones off the hook,” and
that, pursuant to instructions from Metz, when union applicants
would phone in and announce that they were from the Union
she did not note this information on the call-in sheets or any-
where else. Rather, she only entered the name, the phone num-
ber, the years of experience, and the trade of each applicant.
When an employee needed to be hired, Metz would ask for the
three-ring binder,20 which was utilized while Day was em-
ployed, and would call people in the order they had phoned in.
On occasion he would instruct Day to call people to come in for
an interview, and Day would begin calling employees in the
order they had phoned in. This procedure was utilized during
the time of her employment, and she followed it without excep-

20 The index card system was not utilized until after Day had left the
Respondent’s employ.
tion. When applicants would ask, she advised them that the
Respondent was a nonunion company. There was never an
occasion when she was told by Metz or anyone else that she
didn’t have to take any more names, or that she told any appli-
cant that Rainbow didn’t hire union people, or that she had
been instructed to tell applicants that business was slow and
they just were not hiring at the time.
Joanna Hammonds is Carla Day’s successor, and is a current
employee of the Respondent. She is an administrative assistant
and began working for the Respondent on November 17, 1997.
Hammonds testified that she accepts phone calls from people
calling in looking for work Monday through Thursday, between
8:30 and 10:30 a.m. She asks their name, their phone number,
their primary trade, and their years of experience, and enters
only this information on the index card. She explains that the
divisional manager will call them in the event they may be
requested to come in for an interview, and that their name will
be kept on file for 90 days, after which it is their responsibility
to call back and update the information. Hammonds testified
that in about the second or third week of December 1997, she
received a lot of phone calls from applicants who identified
themselves as union members and said they were calling from
the union hall. She told each of them the same thing, as set
forth above. She would tell the Spanish-speaking applicants
that that she couldn’t help them.
Hammonds testified that initially she used a three-ring
binder, separated into the different trades, to enter the appli-
cants’ information. She maintained the binder at her work-
station, so that if Metz or the divisional managers needed it,
they knew where it was. They would come to her and obtain
the binder when they needed to hire people in the field. The
three-ring binder is no longer in use, and was eliminated be-
cause it was very confusing, unorganized, and complicated. At
the end of the year she and Metz decided to do away with it,
and to replace it with an index card file box. And if a person’s
name was still active in the binder, she transferred that informa-
tion onto an index card, after which she discarded the three-ring
binder sheets. Hammonds testified that she strictly adhered to
the procedure of taking down and recording the foregoing in-
formation from each phone-in applicant, and that at no time did
she neglect to record such information on the index cards.21
Reuben Walker is in charge of estimating and sales for the
Respondent. Walker testified that he would take information
from some of the Spanish-speaking call-in applicants, and tell
Carla Day, in English, what to enter in the binder. According
to Walker, this happened on about five different occasions. He
is “fairly sure” that on these occasions when he assisted Day
with Spanish-speaking applicants, none of the applicants said
they were affiliated with the Union.
According to Forbes, the hiring system was devised so that
the Respondent would be hiring blind, and “we wouldn’t be
accused of all the things we’re being accused of.” There is
nothing on the index cards, nor was there ever anything on the
predecessor three-ring binder sheets, which were discarded
after the Respondent commenced its index card system, that
would indicate an applicant’s union affiliation or lack thereof.
Union Organizer John McCafferty testified that he conducted
the Respondent’s mass application program, whereby he solic-
21 Metz testified that he believed the Respondent might have de-
clined to accept calls from call-in applicants during Christmas week,
1997.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 984
ited union members who were unsuccessfully seeking employ-
ment through the Union’s hiring hall by announcing to them
over the Union’s PA system that “we will be doing mass appli-
cations today” and to meet him at the back of the union hall if
they were interested. Then he instructed those interested indi-
viduals to meet him at the Painter’s union hall, some distance
away. There he explained the mass application procedure, and
wrote a script on the grease board that they were to follow in
applying for work, and the phone number that they were to
dial.22 They were instructed to specifically state that they were
from the Union. McCafferty testified that this scenario was
repeated on four occasions: October 15, November 3 and 19,
and December 8, 1997. During each of these sessions, accord-
ing to McCafferty, there were between 6 and 15 callers, and 2
would call simultaneously, on different phone lines.
McCafferty was not asked, and did not testify, that he in-
structed the applicants to maintain a record of any phone calls
they received from employers or to so notify the Union that
they had been contacted. Rather, insofar as the record shows,
McCafferty simply told them that if they were hired they
should notify him as soon as possible and that they would be
expected to help organize the Company before or after work or
at breaktime. This is all he told them.
As an investigative tool, the Regional Office prepared ques-
tionnaires for the applicants to fill out verifying that they were
legitimately seeking work on the day they called the Respon-
dent. The questionnaires, entitled “Questionnaire Regarding
Alleged Refusal to Hire,” were apparently distributed to the
applicants in late March and early April 1998. The question-
naires state that a charge has been filed on behalf of the indi-
vidual “alleging that the Employer named above has failed to
hire you, or consider you for hire because of your membership
in a labor organization.” However, the questionnaire does not
contain the name of any so-called “Employer named above,”
but rather is blank.
McCafferty was asked how the Regional Office knew whom
to contact regarding these questionnaires, and answered that “I
think I got the list from the Board [apparently, the Regional
Office]” and that he distributed the questionnaires “to each
individual I could find.” He does not know what happened to
this list. Asked how the Board got the list of names, and
whether the Regional Office had been given the sign-in sheets
that the members had filed out at each mass calling session,
McCafferty testified, “I don’t know honestly.” Nor did McCaf-
ferty ever compare and verify the accuracy of list that had been
given to him by the Regional Office with the sign in sheets that
the members had signed. McCafferty was then asked the fol-
lowing:

Q. (By Respondent’s counsel): So, as you sit here to-
day you don’t know whether or not everyone who partici-
pated [in the mass calling sessions] completed either a
questionnaire or at your request was either sent [a ques-
tionnaire] or brought down to the Board for an affidavit?
A. No, I wouldn’t know that.

22 It is clear that the mass application procedure was not exclusively
reserved for the Respondent herein, and that applicants would phone
several employers during one mass application session. Thus, Carol
Kelly, who phoned the Respondent during the mass application of
November 3, 1997, testified that the applicants “went down to the or-
ganizing office and we made phone calls to a couple of outfits seeing if
we could get hired or get an interview or whatever.”
Q. So, it may have been people who made calls that
didn’t get [sic] affidavits or complete a questionnaire, is
that accurate?
A. Yes.

McCafferty testified that he did not assist the members in fil-
ing out their questionnaires, and that each member apparently
had an independent recollection of the date that he or she called
and of the script, written on the chalkboard at the union hall,
that he or she was to follow in applying for work with the Re-
spondent. McCafferty testified that it took him about 3 weeks
to distribute the questionnaires to everyone, and that there were
“forty to fifty” questionnaires returned to the Board. According
to McCafferty, some of the applicants may have called more
than once if they happened to be at the union hall when McCaf-
ferty was soliciting for mass applicants. Further, regarding the
sign-in sheets, McCafferty testified that he simply set out a
sign-in sheet on the end of the table in the room, and at some
early point asked everyone to sign it. However, he did not
verify that they did, in fact sign it, and did not remind people at
the end of the session that they should sign it if they had not
already done so. Further, at each of the four sessions there may
have been times when the instruction to sign in was given be-
fore some of the people “trickled in.” McCafferty testified that
he did not “endeavor to keep in touch with the individuals who
made phone calls,” but would only “see them when they came
in to pay dues and stuff, but otherwise, not really, no.” It was
conceded at the hearing that some of the mass applicants did
not sign the sign-in sheet.
Three of the mass applicants, Michael Dunham, Carol Kel-
ley, and Hector Sabino, testified that as they were calling the
Respondent on one phone line, other applicants were calling the
Respondent at the same time on different telephones;23 and they
further testified that when they reached the Respondent and
announced that they were a union member seeking employ-
ment, they were told that there was no work at the time and that
the Respondent was not accepting any phone applicants. The
affidavit of mass applicant Donald Henry McInnis states that he
phoned on about November 3, 1997, and, after being told to
call back in about 10 minutes, he did so and was told by some-
one named “Carla” that “things were slow” and that he should
call back in a couple of weeks to see if anything has changed.
Thus, he never left his name and number. Then, in late No-
vember 1997, he called and applied for work but did not state
that he was from the Union. The man who answered the phone
said that the Respondent was not hiring at this time, and, again,
he was not asked to leave his name or number.
Jeff Vaughn is a general representative/organizer for the In-
ternational Union. Vaughn conducted the fifth mass applica-
tion session on about February 25, 1998, and testified that each
applicant stated that he or she was a union member. Vaughn
testified that he conducted this mass application at the time
because one of his members, Terry McComsey, reported to him
that shortly before that date he had applied by phone to the
Respondent and had been told by his wife, who received that
call, that the Respondent had offered McComsey a job a day or
two after he had applied. Regarding McComsey’s telephone
application to the Respondent, Vaughn agreed that it was pos-
sible that McComsey identified himself as a union member
when he called. That, according to Vaughn, is how the Union
23 Numerous mass applicants acknowledged the fact that there was
simultaneous calling on different telephones.
RAINBOW PAINTING 985
assumed that the Respondent was in a hiring mode, and why
Vaughn decided to conduct a mass application on February 25,
1998.
Vaughn testified that he did not have the individuals sign a
sign-in sheet that day, but specifically recollected, after review-
ing his affidavit on various occasions prior to his testimony, the
names of the five members who were present and called the
Respondent seeking employment. While Vaughn testified that
the members filled out statements immediately after they called
the Respondent on the phone, it turns out that Vaughn was
mistaken, and that the only time these individuals documented
that they had phoned the Respondent was pursuant to the
aforementioned questionnaires later furnished to Vaughn in late
March or early April by Union Representative Chris Sylvester,
so that Vaughn could distribute them to the applicants.
Regarding certain discrepancies between the sign-in sheets
and the names listed in the complaint herein, the following
colloquy took place:

GENERAL COUNSEL: There are some names that are on
the sign in sheets that are not in our complaint. And I’m
going to represent to the Court that the reason those three
were not included is, to the best of my recollection, that
we looked at them and found there was a lack of a prima
facia [sic] case as to those three.
JUDGE WACKNOV: Can you explain what you mean by
that?
GENERAL COUNSEL: Yes, the, one of the prima facia
[sic] elements is that they were ready and willing to accept
work. And my recollection is that the reason those three
are excluded is because they represented, at some point in
the investigation, that they were not so prepared, they were
not willing.
JUDGE WACKNOV: Well, that doesn’t make a lot of
sense because they were allowed to submit their name and
then they had 90 days that they were on a list. So, they
had no idea when they were going to be called. When—
GENERAL COUNSEL: No, I’m saying is at the point that
I, and again, this is a foggy recollection, but what I’m say-
ing to the Court is that at some point in the process it was
determined that these three individuals most likely did not
warrant inclusion in the case because they represented to
us, to the Agency, or to the Union and it was related to us,
and again I’m not certain of any of the specifics of any one
person but this is my best recollection, that they did not
have the necessary elements and therefore, we did not in-
clude them.
JUDGE WACKNOV: But [the Respondent] is going to
say the reason that they’re not included in the complaint is
because they were called.
GENERAL COUNSEL: Oh, I mean, if [the Respondent]
can prove that then—
JUDGE WACKNOV: Well, I don’t know if [the Respon-
dent] needs to prove it, I mean, I think there’s a [sic] infer-
ence there that can be drawn.

Lee Mullis, divisional manager for the framing division, tes-
tified that between the dates of July 1, 1997, and July 31, 1998,
a 13-month period, he hired a total of 20 new employees (ex-
cluding rehires), and of this number 7 were referrals and 13
were call-ins. Mullis testified that upon hiring individuals he
would inquire about their past work experience. Some employ-
ees would volunteer that they were or had been union members,
and others would name union contractors or union jobs on
which they had worked. Mullis testified that their prior union
affiliation made no difference regarding his decision to hire
them.
Armondo Montoya, divisional manager for the drywall
hanger division, testified that between the dates of July 1, 1997,
and July 31, 1998, a 13-month period, he hired a total of eight
employees (excluding rehires), and of this number, four were
referrals and four were call-ins. Montoya testified that three of
the people he and Metz interviewed and hired in November
1997, wore union T-shirts at the interview, namely, Daniel
Escamila, Noe Cervantes, and Daniel Gonzales. Further, dur-
ing the interview they asked permission to take time off to go to
the union hall and sign up for work every Monday. They were
granted such permission, and they were hired. On occasion
they were laid off, and then rehired.
Billy Joe English, divisional manager for the taping division,
testified that between the dates of July 1, 1997, and July 31,
1998, a 13-month period, he hired a total of 15 employees (ex-
cluding rehires), and of this number 10 were referrals and 5
were call-ins. English testified that he knew that employees
Norm Ogden and Don Dufur were union when he hired them:
Ogden was a former employee, and English testified that he
knew that Ogden had gone with the union when he left the
Respondent the first time; and Dufer, during his interview, said
that he had been working in Reno for a union employer.
Jeff Nelson, divisional manager for the painting and wall-
covering division, testified that between the dates of July 1,
1997, and July 31, 1998, a 13-month period, he hired a total of
14 employees (excluding rehires), and of this number, 4 were
referrals and 10 were call-ins. Usually he phones the call-in
applicant who first phoned in, and then proceeds in chronologi-
cal order until he reaches a viable applicant who is willing to
come in for an interview.
For the acoustical ceiling division between the dates of July
1, 1997, and July 31, 1998, a 13-month period, the Respon-
dent’s records show that the Respondent hired a total of six
employees (excluding rehires), and of this number, two were
referrals and four were call-ins.
Personnel Manager Metz testified that the number of call-ins
varies from month to month, and that in January 1998, the Re-
spondent received a total of approximately 70 call-ins: about 50
from individuals seeking work as painters, and about 20 seek-
ing work in all the other divisions. One call-in painter was
hired on December 31, 1997, and only two call-in painters were
hired in January 1998. And in February 1998, about 31 paint-
ers called in and two were hired.24 Metz testified that merely
getting in touch with call-in applicants in order to get them to
come in for an interview is a process that usually involves mak-
ing a number of phone calls: thus, phones have been discon-
nected, applicants have moved or are working elsewhere, or
they simply do not call back.
Metz testified that the divisional managers would let him
know what skills they were looking for. If an employee was
needed immediately, he would call the applicant who had
called in last, as the most current applicants would most likely
be available. Otherwise, he would start from the back of the

24 The record indicates that after it initiated the index card system the
Respondent discarded the out-of-date cards (that is, the cards of appli-
cants who had applied more than 90 days prior thereto), and did not
begin retaining the out-of-date cards until March 1998; these cards have
been furnished to the General Counsel pursuant to a subpoena request.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 986
index card section for the particular skills needed, and would
work forward.
Metz testified that the Respondent began using the services
of Builders and Contractors during the summer of 1997. There
is no record evidence that the Respondent’s decision to begin
using this temporary employment service was related to the
Union’s organizational activity. Pursuant to a summary pre-
pared by the General Counsel regarding the Respondent’s use
of temporary personnel from Contractors and Builders, the
summary shows that from July 13, 1997, through February 1,
1998, a 7-month period, the Respondent has utilized some 17
different employees for a total of approximately 1660 hours.
C. Analysis and Conclusions
1. The status of leadmen
It is admitted that the divisional managers are supervisors
within the meaning of the Act. It is alleged in the complaint,
and denied by the Respondent, that the leadmen are supervisors
within the meaning of the Act and “agents of the Respondent,
acting on its behalf, within the meaning of Section 2(13) of the
Act.”
I conclude that the leadmen are not supervisors, as abundant
record evidence discloses that they neither possess nor exercise
any supervisory responsibilities. However, it seems clear that
the other employees could readily perceive that the leadmen
who directed their work also had supervisory authority over
them. Thus, upon being hired they were simply told to report to
a particular leadman in charge of the job, and were never ad-
vised of the extent of the leadmen’s authority. They were not
specifically made aware and therefore would be in no position
to know that the leadmen did not effectively recommend wage
increases for them, or that the leadmen did not determine or
recommend whether or when they should either be transferred
to other jobs or laid off, or to what extent the leadmen partici-
pated in recommending discipline for them should they not
perform satisfactorily.
Further, it was clear to the employees that during the great
part of each workday the leadmen were the sole representatives
of the Respondent at the work site, and were responsible for
insuring that the work was performed according to the Respon-
dent’s standards; and, that they possessed and exercised the
authority to criticize the employees’ work performance when
they deemed it to be unsatisfactory. Accordingly, under the
circumstances, I find that the workers could reasonably con-
clude that the leadmen were acting on behalf of and were there-
fore agents of the Respondent, and that the statements and ac-
tions of the leadmen reflected the policies of the Respondent.
See Great American Products, 312 NLRB 962, 963 (1993), and
cases cited therein.
2. Forbes’ speech to the employees
Regarding the July 29, 1997 speech by Forbes to the assem-
bled employees, it is alleged in the complaint that Forbes in-
formed the employees that it would be futile for them to select
the Union as their bargaining representative, and, in addition,
threatened the employees that the Respondent would refuse to
sign a collective-bargaining agreement if they did so.
The speech delivered by Forbes was introduced into evi-
dence, and the testimony of various witnesses for the General
Counsel corroborate that Forbes did not, in any material re-
spect, go beyond what is written in the prepared text. Forbes
simply stated that the Respondent has always been a nonunion
employer, that the customers he has established over a 20-year
period expected him to remain nonunion, and that therefore he
would not become a union employer. At the same time, he told
his employees that they were free to engage in union activity
and that he intended to obey the National Labor Relations Act
and any other pertinent labor regulations. A fair interpretation
of his remarks is that Forbes conveyed to the employees the
idea that he intended to do whatever he could to remain a non-
union employer within the lawful parameters of the Act.
Forbes’ expression of these two juxtaposed thoughts certainly
seems to be within the permissible boundaries of Section 8(c)
of the Act.
Employee Brad Larson was the only witness who testified
that Forbes mentioned anything about a union contract. Ac-
cording to Larson, Forbes stated that he had been in business
for 20 years and was not union “and he really didn’t see any
reason that he should deal with the unions or sign a contract.”
This testimony is not corroborated by any other witnesses, and,
assuming arguendo that Forbes made such a statement, this is
not tantamount to a threat that Respondent would refuse to sign
a collective-bargaining agreement if the employees selected the
Union as their collective-bargaining representative.
Nor, do I find that the Respondent’s overall conduct, set
forth below, would reasonably tend to negate Forbes’ statement
regarding the Respondent’s intention to comply with the provi-
sions of the Act. Accordingly, I shall dismiss these allegations
of the complaint.
3. Complaint allegations regarding Larry Cline
I find that on April 23, 1997, Kirk Metz, during his employ-
ment interview of Larry Cline, asked Cline if he was in the
union or had ever been in the union. Even though Metz went
on to tell Cline that “it was okay that he [Metz] had past . . .
employees that was in the union and that they had union paint-
ers on their jobs,” I find that such interrogation was coercive as
Cline was put in the position of having to respond to a question
that would tend to reveal his union sympathies. Metz did not
deny that he so questioned Cline. I find that by such conduct
the Respondent has violated Section 8(a)(1) of the Act, as al-
leged.
I find that on June 24, 1997, Graybeal, a leadman,25 asked
Cline if he had ever been in the union before, and that Cline
could have reasonably expected that Graybeal would report an
affirmative answer to management. I find that by such interro-
gation the Respondent has violated Section 8(a)(1) of the Act,
as alleged. Clearly, however, the subsequent conversation be-
tween Cline and Graybeal on that date was noncoercive in na-
ture.
I find that on July 3, 1997, Graybeal told Cline that the Un-
ion was going to picket the LaQuinta job. Cline asked how he
knew and Graybeal answered that there was a snitch in the
Union. Cline asked who the snitch was and Graybeal said it
was Bill Power. I find that by such comments Graybeal created
the impression that the Respondent, through an informant, was
obtaining information about the Union’s activities, and that this
would certainly have an inhibiting effect upon the employees’
decision to ally themselves with the Union. By such conduct
the Respondent has violated Section 8(a)(1) of the Act as al-
leged.

25 Each of the leadmen alleged to be agents or supervisors herein tes-
tified only to the limited issue of their supervisory authority, and did
not deny statements they were alleged to have made to employees.
RAINBOW PAINTING 987
I do not find that Graybeal’s statement to Cline on July 28,
1997, was impermissible. It appears that Graybeal observed
that Cline, during working time, was speaking with an em-
ployee who had earlier been discharged and should not have
been on the premises. Therefore, I find that Graybeal’s “no
talking” statement was simply an effort to discourage a conver-
sation between Cline and an unauthorized individual who had
come on the jobsite. Moreover, Cline testified that he did not
discontinue talking with other employees on the job. I shall
dismiss this allegation of the complaint.
I find that on the morning of July 29, 1997, Graybeal’s “no
talking” directive to Cline and other workers was occasioned by
Graybeal’s antipathy to the Union. Thus, Graybeal had re-
cently learned that Cline and others were on the Union’s orga-
nizing committee, and, insofar as the record shows, there was
no legitimate reason to abruptly change a work rule that, up to
that point, had permitted talking among employees during
work. By such conduct I find that the Respondent has violated
Section 8(a)(1) of the Act as alleged.
I do not find that the questions posed to Cline by Graybeal
and Nelson on or about August 14, 1997, was violative of the
Act. Cline was by that time an active and open union adherent,
and had picketed the Respondent’s jobsite that very day at
lunchtime, prior to his conversations with Graybeal and Nelson.
The questions asked by Graybeal and Nelson, who simply
wanted to know what Cline and, it may be implied, the other
union advocates wanted, amounted to no more than permissible
inquiries regarding what the employees, through union repre-
sentation, hoped to accomplish. Cline responded by stating that
he wanted more benefits and more pay, and that “it was nothing
personal.” Nelson simply expressed his reservations about
union representation, and believed the Respondent took care of
its employees by providing work and that there would always
be work for Cline, and, further, that Rainbow had an employee
who was 63 years old who was doing just fine. Cline could not
recall anything more that was said except for “idle chatter.”
The foregoing questions to Cline and the ensuing conversa-
tion seem to be no more than a permissible attempt to initiate
discussion, pro and con, about the Union with a known union
activist. No promises were made or implied, and Nelson’s
remark that there would always be work for Cline, in addition
to demonstrating that the Respondent harbored no animus to-
ward him, may be readily understood as an opinion by Nelson
that the Respondent consistently provided work opportunities
for all of its employees. I find that such a statement was not, as
the General Counsel maintains, a specific promise of benefit to
Cline in order to induce him to cause him to refrain from union
organizational activity. I shall therefore dismiss these allega-
tions of the complaint.
During his tenure, Cline, an active union advocate, was laid
off at least once and was moved around to various jobs under
different leadmen, including Graybeal, Bob Curry, Rick Ben-
nett, and Tom Beasley. There is no evidence that, other than
Graybeal, any of the leadmen or supervisors made any unlawful
comments to him or otherwise discriminated against him as a
result of his union activity, and he worked steadily until his
employment voluntarily ended on or about December 3, 1997.
When Cline quit by walking off the job in the middle of the
day he was deemed to have quit without notice and the Re-
spondent noted on an internal “Termination Notice” that Cline
was ineligible for rehire. It is the position of the General Coun-
sel that the Respondent’s designation of Cline as being ineligi-
ble for rehire was discriminatorily motivated, as the Respon-
dent’s records show that another employee, Paul Hardgrove,
had a poor employment record and, in fact, was terminated by
the Respondent on January 8, 1998; and further, while desig-
nated as not eligible for rehire Hardgrove was, in fact, rehired
on June 5, 1998, some 5 months later. Although their circum-
stances are certainly different, the Respondent was consistent in
designating both Cline and Hardgrove as being ineligible for
rehire, and the record shows that during a 13-month period
some 16 other employees were deemed to also be ineligible for
rehire for similar reasons. However, the distinction is that
Hardgrove reapplied; Cline did not. Therefore, the Respondent
was never put in the position of having to reassess its determi-
nation of Cline’s ineligibility. I shall dismiss this allegation of
the complaint.
4. Complaint allegations regarding William Power
Power testified that on May 6, 1977, during a breaktime
conversation, Beesley, a leadman, told Power that his “buddy,
Kevin [Reidebach]” was from the Union, and that from time to
time the Union would send people out to the Company and that,
“we know how to deal with that.” Then there ensued a discus-
sion regarding the Union’s tactics in paying employee-
organizers to organize the workers. While Beesley is deceased
and was therefore unable to deny or explain the alleged conver-
sation with Power, nevertheless I credit the testimony of Power
in this regard. Telling Power, who had not yet identified him-
self as a union activist, that his “buddy” was from the Union
implies that Power too was deemed by Beesley to be sympa-
thetic toward the Union. I therefore find that by such a state-
ment the Respondent has violated Section 8(a)(1) of the Act as
alleged. While Beesely’s related statement that “we know how
to deal with that,” could be reasonably interpreted as a
nonthreatening remark, it could also be understood to mean that
the Respondent may take some sort of unspecified action
against “Kevin” because of his union activities. As it appears
that, in context, the latter interpretation is the most reasonable
under the circumstances, I find that this statement constituted
an implied threat to deal adversely with union adherents, and is
violative of Section 8(a)(1) of the Act. However, I do not find
the other portions of the conversation, related by Power, to be
violative of the Act. Rather, this seemingly friendly discussion
of the tactics that a union may employ in organizing employees
contained no elements of interference, restraint, or coercion.
On July 11, 1997, Power wore a union T-shirt to work, and
gave a letter to his leadman, Rick Bennett, announcing that he
was organizing on behalf of the Union. During his tenure with
the Respondent, Power had been moved around from job to job
quite a bit. And while he testified that during the 3-1/2-month
period prior to the end of June he had worked 68 hours of over-
time, in fact the Respondent’s records show that he had worked
only a total of 29.5 hours of overtime. And, from about the end
of June until July 11, 1997, when he identified himself as a
union adherent, and thereafter up until the time he was laid off
on September 5, 1997, according to Power, he only worked 1-
1/2 hours of overtime. As far as he knew, other employees
were not working overtime during this period; further, Power
testified that he was on “a couple of jobs that I closed up for
sure,” and that there probably was not any need for overtime on
those jobs. I find that, under the circumstances, the General
Counsel has not demonstrated that Power was denied overtime
because of his identification as a union activist and the leader of
the Union’s organizing committee. Indeed, Power testified that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 988
about 2 weeks after he identified himself as a union organizer
he was invited by Divisional Manager Nelson to join Nelson
and a leadman for lunch, and there is no record evidence that
this luncheon invitation was designed for an improper purpose.
Regarding the incident of July 16, 1997, I credit the testi-
mony of Nelson and find that he sent home two painters, Power
and Weston, because there was an unresolved problem with the
color of paint that was to be applied, and that the leadman re-
mained on the job. Both Power and Weston were recalled to
work after 1 day. I find that the 1-day hiatus in Power’s em-
ployment was the result of legitimate business considerations
and was not discriminatorily motivated. I shall dismiss this
allegation of the complaint.
It is interesting that the criticism of Power’s work perform-
ance began shortly after the Union as the leader of the Union’s
organizing committee identified Power. While the General
Counsel takes the position that this cause-and-effect relation-
ship is evidence of discriminatory conduct toward Power, the
clear, abundant and credible record evidence shows that for
some unexplained reason Power’s work performance did in-
deed suffer after his union leadership role was announced. I
find that Bennett’s criticism of Power for not painting the tops
of the pipes and for leaving “holidays” was reasonable and non-
discriminatory, and I credit the related testimony of Vay,
Forbes, Nelson, and Metz regarding Power’s apparent slacking
off on the job at the same time. I shall dismiss this allegation of
the complaint.
The General Counsel maintains that, for discriminatory rea-
sons, Power was purposefully not given the proper tools to
perform certain painting work in order to “set him up” for criti-
cism by Bennett, his leadman. I credit Nelson’s testimony
regarding the matter and find that Power, as a journeyman
painter, should have been able to properly adjust his equipment
so that he would be able to compensate for not being provided
with the correct size of spray nozzle which, at the time, was not
readily available. The fact that the most efficient spray nozzle
may not have been provided to Power at the time, without
more, does not warrant the conclusion that the Respondent
intentionally failed to provide Power with the proper tools. I
find it highly unlikely that Bennett, knowing that the painting
would have to be redone or at least touched up, would inten-
tionally deny Power the proper equipment hoping that he would
do a poor job of painting for which he could be criticized. I
shall dismiss this allegation of the complaint.
I find that all the criticism of Power’s unsatisfactory work
performance was warranted, and that the Respondent’s July 25,
1997 admonition to Power regarding his work performance was
moderate and nonconfrontational, and was simply designed to
ascertain whether he had any problems and to encourage him to
apply himself to the work he was assigned. There were no
further similar incidents, and Power’s work for the Respondent
was apparently deemed to be satisfactory until the time he was
laid off on September 5, 1997.
I find that the conversation near the end of August 1997, be-
tween Power and his leadman, Curry, was simply a friendly
exchange regarding the pros and cons of union representation.
Indeed, during the conversation Power offered Curry a union T-
shirt and bumper sticker, and said that he had already given a
T-shirt to Divisional Manager Nelson. In this context, Curry
asked Power, the announced leader of the Union’s organizing
committee, whether he was being paid by the Union to organ-
ize, a recognized practice. Power was evasive and did not an-
swer the question, and Curry did not pursue the matter. I be-
lieve that Power could have readily understood that this was a
spontaneous question, and did not constitute a conscious at-
tempt by Curry to obtain improper information. Thus, I find
nothing in this conversation to constitute interference, restraint,
or coercion toward Power for his union activities, and shall
dismiss the allegations of the complaint pertaining to this con-
versation.
I credit Nelson’s testimony and find that on September 5,
1997, he laid off Power and another painter, Jamie Weston, at
the same time. There is no contention herein that Weston was a
union advocate or that his layoff was similarly unlawful. Fur-
ther, it is admitted by Power that work on the job was in the
final completion stage. Nelson then, I find, attempted to call
both Weston and Power back to work about 2 weeks later, as
Nelson had initially said that he would do. Weston showed up
on the appointed day while Power did not, and Nelson granted
Power’s request that he be permitted to begin work on the fol-
lowing day, but Power failed to do so.26
I am mindful of the fact that on that very day, during a
lunchtime conversation, Curry told Larson that “they had gotten
rid of Bill [Power] in order to get rid of the union.” While this
statement, undenied by Curry, is clearly unlawful, infra, never-
theless it was Nelson, not Curry, who made the decision to lay
off Power, and I credit Nelson’s testimony that the September
5, 1997 layoff of Power and Weston was for lack of work.
Moreover, contrary to Curry’s statement, the Respondent did
not “get rid” of Power; rather, Nelson attempted to recall Power
some 2 weeks later. I find that the surrounding circumstances,
including Nelson’s attempt to recall Power to work, and the
finding herein that the Respondent did not discriminate against
other union activists, supports the Respondent’s position that
the layoff of Power was not discriminatorily motivated. I shall
dismiss this allegation of the complaint.
5. Complaint allegations regarding Brad Larson; failure to
timely recall Shawn Benett
Metz did not deny that the day after Larson was hired, during
a safety interview, he asked Larson whether he had worked
with any union safety officers at Disney World, Larson’s prior
employer, and then asked if Larson was union or had ever
worked with any union people. Larson answered no to these
questions. Even though Larson had already been hired, I never-
theless find that Metz’ interrogation of Larson regarding his
prior union affiliation was unlawful. By such conduct the Re-
spondent has violated Section 8(a)(1) of the Act as alleged.
On August 26, 1997, Larson overheard a radio conversation
between Metz and Bob Curry, the leadman on the job. Metz
said that he had been interviewing somebody in the office and
asked if Curry knew the individual. Curry said, “Wait till I get
to the office, I think he’s a union plant.” Then Curry turned to
Larson and told him that the Union had been trying to get into
Rainbow. I credit Larson’s testimony and find that Curry’s
response to Metz, in the presence of Larson, could have rea-
sonably caused Larson to believe, whether correctly or incor-
rectly, that an applicant’s union activity was a factor to be con-

26 Nelson appeared to have a clear recollection of the events sur-
rounding the layoff and recall of Power and Nelson, and although the
Respondent’s records show that Power was laid off and do not show a
similar layoff of Weston, nevertheless Nelson’s account of the incident
was not challenged at the hearing.
RAINBOW PAINTING 989
sidered in the hiring process. By such a statement, I find that
the Respondent has violated Section 8(a)(1) of the Act.
On September 2, 1997, Curry told Larson that after Power
had put his union shirt on he had “been sort of laying down on
the job.” Larson disagreed, and said that he didn’t see any
difference in Power’s work. I do not find that this statement to
Larson was unlawful, particularly as I have found that Power,
an active and open union advocate at that time, had in fact been
deficient in his work performance after he announced his lead-
ership role in the Union’s organizing efforts. I shall dismiss
this allegation of the complaint.
On September 5, 1997, Larson and Curry walked over to the
Pizza Hut for lunch. During lunch, in the restaurant, Curry told
Larson that “they had gotten rid of Bill [Power] in order to get
rid of the union.” Telling an employee that another employee
has been discharged in order to get rid of the Union, whether or
not the statement is merely a supposition or is intended to in-
hibit the union activity of others, is violative of Section 8(a)(1)
of the Act, I so find.
I find that Graybeal’s November 3, 1997 derogatory state-
ment to Larson that, “that’s why it takes so long to hang the
wall covering,” on the day Larson announced his union affilia-
tion and first wore a union T-shirt, is violative of Section
8(a)(1) of the Act as alleged. This statement clearly conveyed
the idea that Graybeal equated deficient workmanship with
union activity, and that union advocates would be presumed to
be poor workers. There is no evidence that, in fact, Larson’s
work was other than satisfactory.
Also on November 3, 1997, Curry told Larson that Jeff Nel-
son was really upset that Larson had lied and had said that he
was nonunion when he was hired. Expressing dissatisfaction
with an employee for failing to acknowledge union sympathies
implies that the employee may be subject to unspecified repri-
sals or treatment and is clearly coercive. I find that this state-
ment is violative of Section 8(a)(1) of the Act as alleged.
Similarly, I find that Nelson’s November 13, 1997 statement
to union representatives, in the presence of Larson, that “all
those union people are liars,” is violative of Section 8(a)(1) of
the Act. In this regard, it was reasonable for Larson to assume,
particularly after his earlier conversation with Curry, that Nel-
son was intimating that Larson was a liar for failing to ac-
knowledge his union affiliation during the hiring process. In
this context, being told that a supervisor harbors such negative
feelings about an employee is coercive, as it causes the em-
ployee to fear that his employment relationship may somehow
be affected.
I credit Nelson and find that Larson had been recently trans-
ferred to the Tom Siatta Dodge jobsite from a different job, and
that Nelson had instructed Graybeal to give overtime work on
Saturday, January 17, 1998, to a couple of the “main guys who
had been out there” prior to Larson’s transfer to the job, and
who were therefore familiar with the work to be done. I shall
therefore dismiss the compliant allegation that Larson was de-
nied overtime work on that day for discriminatory reasons.
During the January 19, 1998 conversation between Graybeal
and Larson, Graybeal berated Larson for not properly spray
painting an area. Graybeal told Larson that he was going to get
rid of him, and further told him that if he didn’t like it he could
complain to the Union. That afternoon, when Nelson showed
up on the job, Larson complained to Nelson about Graybeal’s
tirade, and said that the Union was not out to hurt the company
and that his work was competent. It seems clear that Graybeal,
by stating that Larson could complain to the Union about Gray-
beal’s criticism of him, was implying that he believed Larson’s
alleged poor workmanship and his union affiliation were inter-
connected. Larson denies that his work was deficient. There is
no evidence, and the Respondent has not maintained, that Lar-
son had intentionally failed to perform the work in a satisfac-
tory manner.27 Whether or not Graybeal’s criticism of Larson
was warranted, I find Graybeal’s threat to discharge Larson was
coercive and violative of Section 8(a)(1) of the Act as alleged
because Graybeal implied that Larson’s alleged poor work
performance was related to his union activity.
In early June 1998, only three individuals, Larson, Shaun
Bennett, who is leadman Rick Bennett’s son, and Curry, the
leadman, were working on a particular job. It appears that all
three were laid off. Apparently, according to Larson’s testi-
mony, all of the Respondent’s complement of 15 painters was
also laid off at about the same time. There is no allegation that
this particular layoff of Larson and Shaun Bennett, who from
time to time would also wear a union T-shirt, was discrimina-
tory. However, it is alleged that all of the other painters were
recalled earlier, and that the recall of Larson and Shaun Bennett
was delayed for discriminatory reasons. Larson testified that
other painters were recalled that same week: he was told that
one of the new hires, Gene Harrison, had only 4 days off; and
Mike Kiss, a leadman, was off for only about 5 hours. How-
ever, Larson’s layoff lasted some 3 weeks, and Shaun Bennett’s
layoff lasted some 6 weeks, until about July 24, 1998.
I am mindful of statements by leadman Graybeal, as related
by to leadman Kiss that “[w]e’re gonna fuck with [Larson] until
he gets laid off,” and that a week or so later after Larson was, in
fact, laid off, Graybeal told Kiss, “We finally got rid of that
union mother fucker.” Abundant record evidence shows that
Graybeal was an outspoken, temperamental individual, who
had a tendency to “yell and holler” about many things, and who
was particularly critical of the Union and of all union adherents.
Graybeal had nothing to do with Larson’s layoffs, and there is
no record evidence that he was privy to management’s discus-
sions of union matters. Further, Graybeal made a similar
statement to Kiss about Cline, and told him that, “if Larry Cline
don’t quit, we’re gonna find a reason to get rid of him.” Yet
Cline, an openly active union adherent, worked steadily for the
Respondent, without incident, from April 23, 1997, until De-
cember 3, 1997, when he walked off the job. I conclude that
Graybeal’s aforementioned statements regarding Power, under
the circumstances, are not probative of the Respondent’s moti-
vation for Larson’s various layoffs.
Nelson testified that he laid off Larson on two or three dif-
ferent occasions. The longest of these occasions was in June
1998. According to Nelson, there were only a few jobs going
on at the time and they all were in the process of wrapping up;
there was simply a lack of work. He had no place to send Lar-
son. James Weston got laid off at the same time, and other
workers, including three leadmen, Rick Bennett, Bob Curry,
and Ray Nibley, voluntarily took time off; otherwise, according
to Nelson, they too would have been laid off. The Respondent’s
records show that Larson was laid off from June 9, 1998, and
was recalled on June 29, 1998; thus, he was off work a total of
13 workdays. Weston, according to the Respondent’s records,

27 Larson, who acknowledged making certain “stupid mistakes,”
admits that his work was sometimes criticized by Curry; however there
are no complaint allegations regarding such criticism.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 990
was laid off on June 11, 1998, and was not recalled until July
16, 1998, a total of 24 workdays.
The record evidence of this particular mass layoff in June
1998 and the Respondent’s sequence of recalling workers
thereafter are particularly unclear. It appears that Shaun Ben-
nett, the son of leadman Rick Bennett, was clearly not one of
the union leaders, yet Shaun Bennett was recalled much later
than Larson, one of the announced leaders of the union move-
ment. Further, it appears that James Weston, who, according to
the Respondent’s records, was hired some 2 weeks earlier than
Larson, and was not a union adherent, was recalled after Larson
and just a few days prior to Shaun Bennett’s recall. Moreover,
I credit Nelson and find that Shaun Bennett’s recall was de-
layed because of transportation and drug-related problems, and
not because of his occasional wearing of a union T-shirt.
In addition, the record does not disclose that the Respondent
had a policy or any particular method of recalling employees
from layoff in any sequence of seniority. Employees were
recalled, it appears, according to their versatility and skills need
to perform the available work. Thus, the General Counsel’s
assertion that Larson should have been recalled prior to, per-
haps, the recall of less senior employee Harrison, who had been
employed by the Respondent for some 4 months prior to the
layoff, is not supported by probative record evidence. Finally, I
credit the assertions of Nelson to the effect that he did not
predicate any employment decisions on the basis of whether or
not particular employees supported the Union. Assuming, ar-
guendo, that the General Counsel has presented a prima facie
case regarding the Respondent’s failure to recall Larson and
Shaun Bennett in timely fashion, I conclude that the Respon-
dent has met its Wright Line28 burden of demonstrating that the
Respondent’s recall of Larson and Shaun Bennett from layoff
was not discriminatory. I shall therefore dismiss these allega-
tions of the complaint.
It is alleged that the Respondent denied Larson work on
Monday, July 27, and perhaps on Tuesday, July 28, 1998, both
because of his union activity and in retaliation for his earlier
testimony in this proceeding on July 22, 1998; and, further, that
Nelson threatened Larson during the July 28, 1998 phone
call.29
Nelson testified that he again laid off Larson for a few days,
apparently on July 27 and 28, 1998, as work was getting slow.
It was the Respondent’s practice to give preference to leadmen
when work opportunities were limited, and two leadmen, Rick
Bennett and Bob Curry completed the job on which Larson had
been working, after only one more day. Then, on the next day,
Nelson recalled Larson to work. Thus, Nelson phoned Larson’s
home and, to Nelson’s surprise, Larson happened to answer the
phone. Nelson began the conversation by stating, “I thought
you’d be out working.” Nelson testified that this was simply an
offhand, spontaneous comment, and that it was not intended, as
the complaint alleges, to have any sinister connotations. I
credit Nelson’s testimony. I find that Larson was laid off be-
cause the remaining limited amount of work could be com-
pleted by the two leadmen. I further find that during the tele-

28 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983).
29 The complaint alleges that by such conduct, namely, Nelson’s
phone call for the purpose of recalling Larson to work, the Respondent,
“Threatened employees who had testified at an NLRB hearing by in-
forming them that they should seek alternative employment.”
phone conversation, Nelson’s statement to Larson was innocu-
ous and nonthreatening. I shall dismiss these allegations of the
complaint.
6. Complaint allegations regarding Steve Jensen, Jose Zepeda,
and Marcos Zepeda
Since about January 3, 1997, Steve Jensen has been an em-
ployee of Contractors and Builders, a manpower firm utilized
by the Respondent for temporary employees. He was first sent
out to one of the Respondent’s jobs on December 12, 1997. On
or about January 12, 1998, shortly after engaging in a conversa-
tion with Brad Larson, Graybeal, his leadman, who asked what
Larson had said to him, approached Jensen. Jensen replied that
Larson had asked him to wear a union T-shirt the following
Monday, January 19, 1998, and Graybeal proceeded to say,
according to Jensen, “[Y]ou’re not going to go for that union
stuff, are you?” Jensen said yes, and Graybeal said, “. . . fuck
all that, you know, if the company goes union we’ll never have
any work.”
I credit the testimony of Jensen and find that Graybeal inter-
rogated him regarding his conversation with Larson, a known
union activist, and then asked Jensen, in effect, whether he too
intended to engage in union activity. I find that by such con-
duct, the Respondent engaged in surveillance of employees’
union activity, and interrogated Jensen regarding his union
sympathies. Such conduct is violative of Section 8(a)(1) of the
Act as alleged. However, I do not find Graybeal’s statement
that, “if the company goes union we’ll never have any work,”
to be violative of the Act. Clearly, this is merely a statement of
opinion by Graybeal that he believed the Respondent’s custom-
ers would go elsewhere if the Respondent became unionized. I
shall dismiss this allegation of the complaint.
Regarding the January 19, 1998 layoffs of Jensen, Jose
Zepeda, and Marcos Zepeda, I credit the testimony of Divi-
sional Manager English and find that these three employees
were laid off as part of a much larger layoff of the Respon-
dent’s drywall tapers at a time when several large projects were
being completed. During this period there was some juggling of
employees so that some tapers may have been laid off and
other, more senior or qualified tapers, may have finished up the
jobs of the laid-off employees, as it is English’s practice to
retain his leadmen or core employees if possible. Further, Eng-
lish had laid off three other tapers about a week earlier, and, a
week later, on January 27, 1998, laid off two additional tapers,
Donald Dufur and Floyd Dodson. The layoff of these latter two
individuals, who were also listed as members of the Union’s
organizing committee in the Union’s January 19, 1998 letter to
the Respondent, is not alleged in the complaint as being unlaw-
ful. Moreover, English retained his core group of employees,
one of which, Norm Ogden was also listed in the Union’s letter
as a member of the organizing committee. Then, I find, Eng-
lish attempted to recall Jensen, Jose Zepeda, and Marcos
Zepeda when work picked up and the Respondent again needed
their services.
It clearly appears that the Union’s January 19, 1998 letter, in
which it identifies a number of drywall tapers as union organiz-
ing committee members, was purposefully designed to prevent
the layoffs that the Union anticipated and/or or to substantiate a
later claim that such anticipated layoffs were unlawful. I find
that the January 19, 1998 letter did not, as maintained by the
General Counsel, cause the Respondent to immediately and
precipitously discharge announced union adherents because
RAINBOW PAINTING 991
they were named in the letter; rather, the layoff of tapers began
a week prior to the date of the letter. I find that the Respondent
has sustained its burden of proof under Wright Line, supra, and
I shall therefore dismiss the allegations of the complaint per-
taining to the alleged unlawful layoffs of Jensen, Jose Zepeda,
and Marcos Zepeda.
7. Compalint allegations regarding the layoffs of Noe
Cervantes and Daniel Escamilla
I credit the testimony of Divisional Manager Montoya and
find that he laid off Noe Cervantes and Daniel Escamilla on
November 21, 1997, because of lack of work and not, as al-
leged in the complaint, because they had announced their af-
filiation with the Union. Indeed, they were known to be active
union members when they were hired. Further, the Respon-
dent’s records show that another employee, who was re-hired
on November 5, 1997, and was not, insofar as the record shows,
a union adherent, was also laid off on the same day as
Cervantes and Escamilla, while Gonzalez, who was an an-
nounced union committee member and was hired along with
Cervantes and Escamilla, was retained, as were other an-
nounced union committee members. Assuming arguendo that
the General Counsel has presented a prima facie case regarding
the layoff of Cervantes and Escamilla, I conclude that the Re-
spondent has sustained its burden under Wright Line, supra, of
demonstrating that the layoff of these two individuals was not
unlawful. I shall dismiss these allegations of the complaint.
8. Complaint allegation regarding surveillance by Montoya
I credit the testimony of Divisional Manager Montoya and
find that he was invited to the union meeting at Freedom Park
by an employee, and was not told by higher management to go
to the park for purposes of surveillance. I further credit his
testimony that while at the park he was invited by the union
organizers, who were aware of his supervisory capacity, to
remain at the park and attend the meeting. He was never asked
to leave the area. Rather, he simply left of his own volition.
Therefore, I find that his presence at the park did not amount to
surveillance as alleged, and I shall dismiss this allegation of the
complaint.
I find, however, that as Union Representative Sylvester and
employee Cervantes testified, someone in a Rainbow truck
proceeded to drive through the parking lot thereafter, and could
observe the individuals who were assembled. Montoya was not
the only supervisor who knew about the meeting, as he had
earlier reported to his superior that there was to be a meeting at
the park. Further, it appears reasonable to presume that
Montoya’s truck was identical to other Rainbow trucks, and
that it was more than a mere coincidence that another Rainbow
truck would be passing through the parking lot of the park dur-
ing the time of the scheduled union meeting. Regardless of
whether Montoya or some other supervisor was driving the
truck, I conclude that by such conduct the Respondent at-
tempted to engage in surveillance of its employees’ union activ-
ity, and by such conduct has violated Section 8(a)(1) of the Act
as alleged.
9. Complaint allegations regarding mass applicants
The complaint alleges that since on or about October 15,
November 3 and 15, and December 8, 1997, and February 25,
1998 (the dates of the mass calling sessions), the Respondent
“has failed and refused to consider for employment and has
failed and refused to employ” 36-named individuals.
At least four of the mass applicants were not permitted to
leave their names and numbers with the Respondent when they
called. There is abundant evidence that the applicants would
often be calling the Respondent at the same time on two or
more different phone lines, and I find that it was perfectly un-
derstandable, under the circumstances, that the person who
answered the Respondent’s phone would request that callers
call back or would advise them that the Respondent was simply
not taking any more calls at the time. Under the circumstances,
I find that the Respondent’s refusal to take pertinent informa-
tion from each applicant at the time he or she called is not vio-
lative of the Act. I shall dismiss this allegation of the com-
plaint.
I find that the Respondent’s changing of its hiring procedure,
under the circumstances, is not, as the General Counsel con-
tends, evidence of an intent to discriminate against union appli-
cants. The evidence shows that the Respondent’s hiring proce-
dure was changed because of the Union’s attempt to disrupt the
work of the office staff by inundating the office with mass ap-
plicants at one time. Thus, the Respondent had a legitimate
business reason for requiring that thereafter applicants were to
call the office within a proscribed time period each day, and
leave only certain relevant information so that the Respondent
could later contact them. Moreover, I find that, as credibly
testified to by Metz and Hammond, changing from the un-
wieldy notebook entry system, whereby information from some
five applicants would be contained on each page, to the more
simplified individual index card system for each applicant, was
designed for purposes of expediency and is not, as the General
Counsel maintains, further evidence of an attempt to discrimi-
nate against union applicants.
I credit the testimony of office secretaries Carla Day and Jo-
anna Hammond, and find that they were specifically instructed
not to note the telephone applicants’ union affiliation and were
to enter only relevant information so that the Respondent could
contact the individuals when it was in a hiring mode. I further
find that they precisely followed this instruction. I credit the
testimony of Metz and the various divisional managers who
participated in the hiring process, and find that they did not
attempt to identify and disregard call in applicants on the basis
of suspected union adherence; nor is there any showing that the
Respondent circumvented its established call in hiring proce-
dure by hiring, for example, off the street.
It is clear and undisputed that during the relevant period
herein the Respondent did, in fact, hire a fair number of call-ins
from either the notebook entries (up to about November 1997)
and the index card entries thereafter. While the record evidence
indicates that the total number of call ins far exceeded the num-
ber of union mass applicants, it is reasonable to assume that at
least some of the mass applicants would have been among
those the Respondent would have attempted to contact when it
needed to hire from the call in applicants. Indeed, it is main-
tained by the Respondent that, as it randomly called applicants
and frequently had to phone a number of applicants before
reaching an available candidate for the position, it most likely
did attempt to contact at least some of the mass applicants.
It appears that the Union’s mass application procedure was
not designed to accurately verify whether any of the applicants
were contacted by the Respondent, or, indeed, to even accu-
rately maintain a record of the identity of the mass applicants.
Thus, any individual who was not referred out during the Un-
ion’s hiring hall procedure was invited to another location to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 992
apply by phone for work with unknown employers, not just the
Respondent; and such individuals may or may not have signed
the sign-in sheet that was left near the door of the room; and, it
is reasonable to assume under the circumstances, that they may
or may not have even known, or cared, or recollected the names
of the employers they were asked to phone.
Significantly, according to Union Representative McCaf-
ferty, the mass applicants were told to report to him as soon as
possible only if they were to get hired, at which time McCaf-
ferty intended to inform them of their organizing obligations as
employees of a nonunion employer. Thus, insofar as the record
shows, the mass applicants were not instructed to report to
Mccafferty when any employer that they might have phoned
had contacted them. Thereafter, McCafferty did not routinely
canvass the mass applicants to ascertain whether they had been
called by any employer, but rather testified that he might sim-
ply so inquire, in passing, when he happened to see them. Fi-
nally, McCafferty testified that during the investigative stage of
this proceeding there may have been as many as 50 question-
naires of mass applicants who phoned the Respondent during
the mass application sessions he conducted.
While the mass applicants may have honestly believed that
they did not receive a phone call from Rainbow, such an honest
belief is problematical under the circumstances. There are many
reasons why such an honest belief may be potentially unreli-
able: information may not have been relayed by family mem-
bers to other family members who were currently employed;30
or the applicant may have received a phone call but, if he or she
was working or unavailable for work at that time, did not pay
much attention to the identity of the caller; and, as no applicant,
insofar as the record shows, was directed to keep a record of
such calls, they are simply being asked to rely upon their
memories of possible phone calls which, at the time, were of no
meaningful significance.
Moreover, the mass applicants were not asked until some
months after they applied, whether the Respondent had con-
tacted them. Thus, in the case of the mass applicants who
phoned on October 15, 1997, it was not until some 5-1/2
months later (early April 1998) that they were first asked any-
thing about the Respondent by anyone, and then, in completing
the investigative questionnaire regarding the matter, it is obvi-
ous that they were assisted in their recollection of the events by
the Union.
I am mindful of the fact that the Respondent did not keep
any records of whom it called during its attempt to hire call-in
applicants, and that the mass applicants had no choice but to
phone the Respondent and leave their names and phone num-
bers and primary job skill. Had the Union established a verifi-
able procedure whereby it diligently explained to the mass ap-
plicants that they and their families should keep concurrent and
accurate records of each phone call from prospective employ-
ers, and had the Union consistently monitored the applicants’
compliance with this system of verification, such a process
would tend to be significantly more probative than the method
it actually employed herein. Here, the Union’s instruction to
the mass applicants that they should report back to the Union
only if they were hired, virtually invites the applicants to sim-

30 For example, I have found that Divisional Manager English at-
tempted to recall Marcos Zepata by calling and advising his brother,
Jose Zepata, that both Zepata brothers were being recalled. Jose Zepata
did not bother to advise his brother of this call, as his brother was work-
ing somewhere else.
ply disregard any phone calls when, for example, they are em-
ployed or otherwise unavailable and are therefore not seeking
to be hired. On balance, the General Counsel’s evidence that
none of the mass applicants were called is less probative than
the Respondent’s evidence that it most likely did call some of
the mass applicants.31
Finally, I find that the record as a whole does not demon-
strate a propensity on the part of the Respondent to discriminate
against union activists. Thus, I have dismissed each of the
allegations of the complaint pertaining to alleged instances of
unlawful layoffs and instances of unlawful failure to rehire.
Further, abundant record evidence shows that the Respondent
has in fact hired known active union members, and has con-
tinuously retained announced union adherents as valued core
employees, and, in the case of Power, one of the Union’s lead-
ers, even continued to employ him, without incident, after a
serious and meritorious complaint was lodged against him by
one of the Respondent’s customers.
On the basis of the foregoing, assuming arguendo that the
General Counsel has established a prima facie case, I find that
the Respondent has met its Wright Line, supra, burden of proof
by demonstrating that it did not discriminatorily fail to call or
hire any of the mass applicants. I shall therefore dismiss these
allegations of the complaint.32
10. Complaint allegations regarding the Johnnie’s Poultry
issue
It is alleged that the Respondent violated the Johnnie’s Poul-
try33 rights of the leadmen who were interviewed by the Re-
spondent during its investigation and preparation for the hear-
ing herein. Respondent’s counsel admitted that it interviewed
the leadmen and did not assure them of the safeguards set forth
in Johnnie’s Poultry. These leadmen were alleged in the com-
plaint to be supervisors within the meaning of the Act and
agents of the Respondent; indeed, they have been found to be
agents of the Respondent. In the absence of any citation of
authority that an employer is required to give alleged supervi-
sors such assurances, I shall dismiss this allegation of the com-
plaint.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(1) of the Act as
set forth herein.
4. The Respondent has not violated Section 8(a)(3) or (4) of
the Act as alleged.
31 As noted above, the names of three mass applicants were omitted
from the complaint because it was determined that, for some unspeci-
fied reason, they were not seeking work. This explanation does not
make sense, as each of the mass applicants, according to Union Repre-
sentative McCafferty, were, by definition, seeking work; indeed, this is
the very reason they applied. And even if they were not seeking work,
the issue of whether or not they were contacted by the Respondent
would seem to warrant their inclusion in the complaint if, in fact, they
had not been contacted. The absence of these individuals from the
complaint is therefore perplexing.
32 The following case relied upon in the General Counsel’s brief is
inapposite: D.S.E. Concrete Forms, 303 NLRB 890, 897 (1991), affd.
21 F.3d 1109 (5yh Cir. 1994).
33 146 NLRB 770 (1964).
RAINBOW PAINTING 993
THE REMEDY
Having found that the Respondent has violated Section
8(a)(1) of the Act, I recommend that it be required to cease and
desist therefrom and from in any like or related manner
interfering with, restraining, or coercing its employees in the
exercise of their rights under Section 7 of the Act. Further, the
Respondent shall be required to post an appropriate notice,
attached as “Appendix.”

On the foregoing findings of fact and conclusions of law, I
issue the following recommended34
ORDER
The Respondent, John Forbes, a sole proprietorship, d/b/a
Rainbow Painting and Decorating, Las Vegas, Nevada, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interfering with, restraining and coercing its employees in
violation of Section 8(a)(1) of the Act by interrogating them
regarding their union affiliation or union activities, by engaging
in surveillance of their union activities, by telling employees
that other employees have been laid off because of their union
activities, by threatening to discharge employees because of
their union activities, by implying that employees’ union activi-
ties are considered in the hiring process, by implying that the

34 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
work of employees will be more closely monitored because
they are active on behalf of the Union, and by telling employ-
ees that managers are upset with them for failing to reveal their
union affiliation during the hiring process.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed to
them under Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the purposes of the Act.
(a) Within 14 days from the date of this Order, post at the
Respondent’s place of business copies of the attached notice
marked “Appendix.”35 Copies of said notice, on forms pro-
vided by the Regional Director for Region 28, after being duly
signed by Respondent’s representative, shall be posted immedi-
ately upon receipt thereof, and be maintained by Respondent
for 60 days consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to
ensure that said notices are not altered, defaced, or covered by
any other material.
(c) Within 21 days after service by the Region, file with the
Regional Director for Region 28, a sworn certification of a
responsible official on a form provided by the Region attesting
to the steps that the Respondent has taken to comply.
35 In the event that the Board’s 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 be changed to
read “Posted Pursuant to a Judgment of the United States Court of
Appeals Enforcing an Order of the National Labor Relations Board.”