Stevens Construction Corp.

National Labor Relations Board - Board Decisions

Jun 28, 2007

350 N.L.R.B. 132 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
350 NLRB No. 13
132
Stevens Construction Corp. and Milwaukee and
Southern Wisconsin Regional Council of Car-
penters and Northern Wisconsin Regional
Council of Carpenters, United Brotherhood of
Carpenters and Joiners of America and Labor-
ers’ International Union of North America, Lo-
cal 464.1 Cases 30–CA–15489, 30–CA–15883, 30–
CA–16108, 30–CA–16109, 30–CA–16196
June 28, 2007
DECISION AND ORDER
BY MEMBERS SCHAUMBER, KIRSANOW, AND WALSH
On April 7, 2003, Administrative Law Judge Bruce D.
Rosenstein issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief, and the Respondent
filed a reply brief. The General Counsel filed cross-
exceptions and a supporting brief. The Respondent filed
an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings,2 findings,3 and conclusions as
modified and to adopt the recommended Order as modi-
fied and set forth in full below.4
More specifically, we adopt the judge’s findings that
the Respondent violated Section 8(a)(1) of the Act by
advising employee James Muir that it would be futile to
support a union; threatening the termination of all em-

1 We have amended the caption to reflect the disaffiliation of the La-
borers’ International Union of North America from the AFL–CIO ef-
fective June 1, 2006.
2 We specifically adopt the judge’s ruling denying the General
Counsel’s motion to amend the complaint by adding union applicants
Shawn Dressler and Dan Larson as additional alleged discriminatees.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing his findings.
4 In the remedy section of his decision, the judge provided for all
discriminatees to be made whole as prescribed in F.W. Woolworth Co.,
90 NLRB 289 (1950). However, as the Respondent’s discriminatory
conduct toward employee James Muir did not result in the cessation of
his employment, his make-whole award is properly calculated as pre-
scribed in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971). See, e.g., CAB Associates, 340 NLRB 1391,
1393 (2003). We shall amend the judge’s remedy accordingly. We
shall also modify the judge’s recommended Order in keeping with this
remedial amendment, and delete paragraph 1(a) because it does not
correspond to any unfair labor practice alleged in the complaint or
found by the judge. We shall substitute a new notice in conformity
with the Order as modified.
ployees if they ever unionized; threatening Muir with
arrest and discharge for affiliating with a union or engag-
ing in other protected concerted activity; and maintaining
a no-solicitation and -distribution rule for nonemploy-
ees.5 We also adopt the judge’s findings that the Re-
spondent violated Section 8(a)(3) and (1) of the Act by
barring Muir from returning to work on February 15,
2002, denying him the opportunity to earn wages for that
day, and transferring him to another project because of
his union affiliation and protected concerted activity;6
refusing to hire union applicants Robert Hyatt, Darrell
LaBelle, John McGwin, David Parker, Cynthia Schaefer,
Edward Steeb, Scott Watson, and Kurt Wise for available
carpenter positions; refusing to hire union applicants
Steve Cagle, John Matthews, and Karl Markgraf for
available concrete laborer and/or cement finisher posi-
tions; and disciplining Muir on February 25, 2002.7
In addition, we adopt the judge’s finding that the Re-
spondent did not violate Section 8(a)(1) of the Act by
threatening a subcontractor’s employee, Robert Hyatt,

5 On the facts of this case, Member Schaumber agrees that the Re-
spondent’s maintenance of the rule violated Sec. 8(a)(1). In addition to
the judge’s findings, Member Schaumber notes that the maintenance of
the rule is unlawful because of the chilling effect it would have on
employees in the exercise of their Sec. 7 rights. Specifically, employ-
ees who read the rule in the employee handbook would be deterred
from inviting the Union to the jobsite even at times or in areas where
they might possess a Sec. 7 right to do so.
6 The judge found that the Respondent took these actions because
Muir telephoned OSHA to report safety violations at the jobsite and
because he had announced that he was a union organizer. Member
Schaumber notes that the Respondent did not except to the judge’s
finding that Muir’s phone calls to OSHA were protected concerted
activity and in fact concedes in its brief that they were.
7 The Respondent first argues that it disciplined Muir on this date
because he lied about talking to Production Manager Jim Ladika re-
garding safety issues at the Wisconsin Dells jobsite. The judge found
this reason to be false and we agree.
The Respondent next argues that it disciplined Muir because he told
two employees on two separate occasions that he was a foreman when,
in fact, he was not. The judge found that Muir only told Scott Shanks,
in early January 2002, that he was a foreman. Contrary to the judge,
the record shows that Muir also told Ron Benhke, some time between
February 18 and February 25, 2002, that he was a foreman at the
Stoughton jobsite.
Despite this error by the judge, we nonetheless agree with the judge
that the Respondent’s discipline of Muir violated the Act. In doing so,
we note that the Respondent did not discipline Muir in January 2002
after he first told an employee he was a foreman. Rather, the Respon-
dent disciplined Muir after the second occasion that occurred in Febru-
ary 2002, and this second occasion was after Muir had engaged in
protected concerted activity by calling OSHA to report safety violations
at the jobsite and after he had announced that he was a union organizer.
The decision of the Respondent to discipline Muir only after it was
aware of his protected concerted activity and his status with the union,
coupled with its giving the first false reason for the discipline discussed
above, persuades us that the warning would not have been issued absent
Muir’s protected concerted activity.
STEVENS CONSTRUCTION CORP. 133
with discharge.8 We also adopt the judge’s finding that
the Respondent did not violate Section 8(a)(3) and (1) of
the Act by disciplining Muir on February 22 and March
7, 2002,9 or by refusing to hire union applicants Gary

8 The General Counsel alleged that, on or about April 13, 2001, the
Respondent violated Sec. 8(a)(1) by directing Hyatt to refrain from
discussing the Union with Respondent’s employees and threatening
Hyatt with discharge if he failed to comply. As noted infra, we find
that the directive to refrain from discussing the Union was unlawful. In
analyzing the alleged threat, the judge apparently understood the Gen-
eral Counsel to be alleging coercive interrogation and mistakenly ap-
plied Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel
& Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir.
1985). The correct standard is whether the alleged conduct “would tend
to coerce a reasonable employee.” Madison Industries, 290 NLRB
1226, 1229 (1988); Without Reservation, 280 NLRB 1408, 1414
(1986). Also, in determining whether an employer’s statement violates
Sec. 8(a)(1), we consider the “totality of the relevant circumstances.”
Ebenezer Rail Car Services, 333 NLRB 167, 167 fn. 2 (2001). Apply-
ing the appropriate standard, we nonetheless agree with the judge that
there was no unlawful threat of discharge. After Hyatt objected to the
direction to refrain from discussing the Union, Respondent’s Produc-
tion Manager Jim Ladika said to Hyatt: “You don’t seem to understand
what I’m saying, so maybe you’ll understand later this afternoon.” We
agree with the judge that this statement did not constitute a threat of
discharge.
In assigning error to the judge’s finding in this regard, counsel for
the General Counsel relies on Paper Mart, 319 NLRB 9 (1995). In that
case, the Board found an implicit threat of discharge in the respondent’s
statement to an employee that if he was not happy, he could seek em-
ployment elsewhere, and the company would help with his “transition
out.” Ladika’s statement is nothing like the statement found impliedly
to threaten discharge in Paper Mart. Nor do we join our colleague in
finding that statement unlawful as a threat of unspecified “negative
consequences.” The complaint alleged a threat of discharge, and due
process constrains us to hold the General Counsel to his theory. See
Lamar Advertising of Hartford, 343 NLRB 261, 265 (2004).
Contrary to his colleagues, Member Walsh would reverse the
judge’s finding that the Respondent did not violate Sec. 8(a)(1) by
threatening Hyatt when Ladika told him, on Friday morning, April 13,
2001, “You don’t seem to understand what I’m saying, so maybe you’ll
understand this afternoon.” Ladika’s statement was a thinly veiled
threat. As the majority points out, the correct standard for analyzing an
alleged threat is whether the statement “would tend to coerce a reason-
able employee.” Madison Industries, supra at 1229. Applying that
standard here, a reasonable employee in Hyatt’s position would likely
construe the Respondent’s statement as threatening discharge or other
serious, negative consequences if he refused to give in to the Respon-
dent’s unlawful demand to stop talking about the Union. And in point
of fact, the threatening nature of the remark was confirmed when Hyatt
returned to work for his employer the following Monday, only to find
out that he had been laid off. A charge was filed alleging that the layoff
violated the Act, but it resulted in a settlement.
The majority asserts that, because the complaint alleged a threat of
discharge but Hyatt did not testify that the Respondent’s threat specifi-
cally related to discharge, due process forbids finding a violation. That
statement turns due process on its head. The fact that the Respondent
did not utter an express threat of discharge does not render unfair a
finding that the Respondent threatened Hyatt with unspecified conse-
quences; at trial, the Respondent was surely on notice of the gravamen
of the allegation and therefore able to present a defense.
9 In adopting these findings, Member Schaumber and Member Kir-
sanow find it unnecessary to pass on the judge’s finding that the Gen-
Miller and Aaron Zimmerman for available carpenter
positions.
Contrary to the judge, however, we find that the Re-
spondent violated Section 8(a)(1) by directing Hyatt, on
April 13, 2001, to refrain from discussing the Union with
its employees. The record shows that on one occasion
Hyatt, an employee of a subcontractor, told Ted
Roessler, an employee of the Respondent, that he would
not have to pick up garbage if he was in the Union, and
that “if you work for the union you get laid off any time
you want.” According to Roessler, Hyatt also said other
things that he could not really recall but that “kind of
made me upset.” Roessler complained to Kast that Hyatt
was interfering with his job responsibilities by talking to
him about the Union.10 Kast also overheard other em-
ployees of the Respondent complaining to each other that
Hyatt was going out of his way to talk to them about the
Union while they were trying to do their work. Kast and
Ladika thereafter told Hyatt that they did not want him
talking to their employees about the Union during work-
ing time.

eral Counsel did not meet his initial burden under Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981). Rather, assum-
ing arguendo that the General Counsel met his initial Wright Line bur-
den, Member Schaumber and Member Kirsanow find that the Respon-
dent met its rebuttal burden by establishing that it would have taken the
same action even absent Muir’s protected activity.
Although he agrees with his colleagues that the Respondent did not
unlawfully discipline Muir on February 22 and March 7, 2002, Member
Walsh would find, contrary to the judge, that the General Counsel met
his initial Wright Line burden on these issues. There is no question that
the Respondent had knowledge of Muir’s union and other protected
concerted activities at the time that Muir was disciplined. Further, the
record is replete with examples of the Respondent’s general antiunion
animus, as well as its animus toward Muir in particular for engaging in
union and other protected concerted activities. As discussed above,
within the same general time period as its February 22 and March 7
discipline of Muir, the Respondent: unlawfully told Muir that it would
be futile to support a union and threatened the termination of all em-
ployees if they unionized; unlawfully threatened Muir with discharge
and arrest for affiliating with a union; maintained an unlawful no-
solicitation/no-distribution rule; unlawfully barred Muir from the Wis-
consin Dells project and prevented him from being paid for the day
because of his union affiliation and other protected concerted activity;
unlawfully disciplined Muir; unlawfully instructed a subcontractor
employee to refrain from discussing the Union; and unlawfully refused
to hire union applicants. In the circumstances, Member Walsh finds
that the General Counsel met his initial Wright Line burden. However,
in agreement with his colleagues, he finds that the Respondent met its
rebuttal burden by establishing that it would have disciplined Muir on
February 22 and March 7 regardless of his union and other protected
concerted activities.
10 The record does not support the judge’s finding that Roessler
complained to Kast that Hyatt was “constantly” talking to him during
working hours. Moreover, Roessler testified that he had only two con-
versations with Hyatt: the conversation about the union discussed
above and an even briefer conversation about the college sweatshirt
Roessler was wearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD134
An employer may forbid employees from talking about
a union during periods when the employees are supposed
to be actively working, if that prohibition also extends to
other subjects not associated or connected with the em-
ployees’ work tasks. However, an employer violates the
Act when employees are forbidden to discuss unioniza-
tion, but are free to discuss other subjects unrelated to
work. Sam’s Club, 349 NLRB 1007, 1009 (2007) (quot-
ing Jensen Enterprises, 339 NLRB 877, 878 (2003)).
Here, the record shows that the Respondent routinely
allowed employees to discuss nonwork-related matters
during working time.11 Despite that fact, the Respon-
dent issued a blanket prohibition against any talking
about the Union during working time.12 This prohibition
violated Section 8(a)(1) because it only applied to con-
versations about the Union. Id.13
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and take certain affirmative action necessary to
effectuate the policies of the Act. Specifically, we shall
order the Respondent to rescind the unlawful no-
solicitation and -distribution rule for nonemployees and
to advise employees in writing that the rule is no longer
being maintained. We shall also order the Respondent to
reimburse James Muir for the wages he lost on February
15, 2002 in the manner set forth in Ogle Protection Ser-
vice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1172 (1987).
Also, we shall order the Respondent to offer Robert
Hyatt, Darrell LaBelle, John McGwin, David Parker,
Cynthia Schaefer, Edward Steeb, Scott Watson, Kurt
Wise, Steve Cagle, John Matthews, and Karl Markgraf
immediate and full instatement to the positions for which
they applied or, if those positions no longer exist, to sub-
stantially equivalent positions. We shall further order the
Respondent to make the discriminatees whole for any
lost earnings as prescribed in F. W. Woolworth Co., 90

11 Ladika and Kast testified that they had on other occasions told
employees to stop talking when they were supposed to be working and
to get back to work. This testimony is insufficient, however, to demon-
strate that the Respondent had a policy prohibiting the discussion of all
nonwork-related matters during working time.
12 Thus, the Respondent did not limit its admonition to conversations
that interfered with its employees’ work or with production, even
though that was the basis for the complaints made by its employees.
13 Hyatt’s conversation with Roessler took place during working
time, and it is well-settled that an employer may lawfully prohibit so-
licitation of its employees during working time. Our Way, 268 NLRB
394 (1983) (“‘working time is for work’”). We disagree, however, with
any implication in the judge’s decision that Hyatt’s brief discussions
about the union constituted solicitation. See Waste Management of
Arizona, 345 NLRB 1339, fn. 2 and 10–12 (2005).
NLRB 289 (1950), with interest as computed in New
Horizons for the Retarded, supra.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Stevens Construction Corp., Madison, Wis-
consin, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promulgating and maintaining a rule prohibiting
employees from talking about the Union while allowing
other nonwork-related discussions.
(b) Threatening employees because of their union af-
filiation.
(c) Threatening to arrest or discharge employees for
their affiliation with a union or for engaging in protected
concerted activities.
(d) Maintaining a work rule that states “persons who
are not employed by us are prohibited from soliciting any
employee or distributing literature on jobsites, premises
or at employee work locations at any time.”
(e) Barring an employee from returning to work, deny-
ing him the opportunity to earn wages for the day, and
transferring the employee from one project to another
because of his union affiliation or protected concerted
activities.
(f) Disciplining an employee because of his union af-
filiation or protected concerted activities.
(g) Refusing to hire applicants because of their affilia-
tion with a union.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Robert Hyatt, Darrell LaBelle, John McGwin, David
Parker, Cynthia Schaefer, Edward Steeb, Scott Watson,
Kurt Wise, Steve Cagle, John Matthews, and Karl Mark-
graf immediate and full instatement to positions for
which they applied or, if those positions no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any others rights or privileges they
would have enjoyed.
(b) Make Robert Hyatt, Darrell LaBelle, John
McGwin, David Parker, Cynthia Schaefer, Edward
Steeb, Scott Watson, Kurt Wise, Steve Cagle, John Mat-
thews, and Karl Markgraf whole for any loss of earnings
and other benefits sustained by them as a result of the
discrimination against them, in the manner set forth in
the amended remedy section of this decision and order.
STEVENS CONSTRUCTION CORP. 135
(c) Rescind the work rule quoted above and advise the
employees in writing that the rule is no longer being
maintained.
(d) Make whole James Muir for the wages he lost on
February 15, 2002 in the manner set forth in the amended
remedy section of this decision and order.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusal to hire
Robert Hyatt, Darrell LaBelle, John McGwin, David
Parker, Cynthia Schaefer, Edward Steeb, Scott Watson,
Kurt Wise, Steve Cagle, John Matthews, and Karl Mark-
graf, and to the discipline of James Muir on February 25,
2002, and within 3 days thereafter, notify them in writing
that this has been done and that the refusal to hire them
and the discipline will not be used against them in any
way.
(g) Within 14 days after service by the Region, post at
its facility in Madison, Wisconsin, copies of the attached
notice marked “Appendix.”14 Copies of the notice, on
forms provided by the Regional Director for Region 30,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that the Respondent has gone out of business or closed
the facility involved in these proceedings, the Respon-
dent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former em-
ployees employed by the Respondent at any time since
February 14, 2002.
Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.

14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT promulgate and maintain an overly
broad rule prohibiting employees from talking about the
Union while allowing other nonwork-related discussions.
WE WILL NOT threaten you because of your affiliation
with a union.
WE WILL NOT threaten you with arrest or discharge be-
cause of your affiliation with a union or your protected
concerted activity.
WE WILL NOT maintain the following work rule in our
handbook:
Persons who are not employed by us are prohibited
from soliciting any employee or distributing literature
on jobsites, premises, or at employee work locations at
any time.
WE WILL NOT bar you from returning to work, deny
you the opportunity to earn wages for the day, or transfer
you from one project to another because of your union or
protected concerted activity.
WE WILL NOT discipline or otherwise discriminate
against you because of your union or protected concerted
activity.
WE WILL NOT refuse to hire applicants because of their
affiliation with a union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL within 14 days from the date of the Board’s
Order, offer Robert Hyatt, Darrell LaBelle, John
McGwin, David Parker, Cynthia Schaefer, Edward
Steeb, Scott Watson, Kurt Wise, Steve Cagle, John Mat-
thews, and Karl Markgraf immediate and full instatement
to positions for which they applied or, if those positions
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD136
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges they would have enjoyed.
WE WILL make Robert Hyatt, Darrell LaBelle, John
McGwin, David Parker, Cynthia Schaefer, Edward
Steeb, Scott Watson, Kurt Wise, Steve Cagle, John Mat-
thews, and Karl Markgraf whole for any loss of earnings
and other benefits sustained by them as a result of the
discrimination against them, less any net interim earn-
ings, plus interest.
WE WILL rescind the rule quoted above and advise our
employees in writing that the rule is no longer being
maintained.
WE WILL make James Muir whole, with interest, for the
wages he lost on February 15, 2002.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful refusal to hire Robert Hyatt, Darrell LaBelle, John
McGwin, David Parker, Cynthia Schaefer, Edward
Steeb, Scott Watson, Kurt Wise, Steve Cagle, John Mat-
thews, and Karl Markgraf, and any reference to the disci-
pline of James Muir on February 25, 2002, and WE WILL,
within 3 days thereafter, notify them in writing that this
has been done and that the refusal to hire them and the
discipline will not be used against them in any way.
STEVENS CONSTRUCTION CORP.
Paul A. Bosanac, Esq., for the General Counsel
Douglas E. Witte, Esq., of Madison, Wisconsin, for the Re-
spondent-Employer.
Michael T. Kelley, Director of Organizing, of Kaukauna,
Wisconsin, for the Charging Party.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This case
was tried before me on January 7, 8, and 9, 2003, in Madison,
Wisconsin, pursuant to Consolidated Complaints and Notice of
Hearing (the complaint) issued by the Regional Director for
Region 30 of the National Labor Relations Board (the Board)
on November 26, 2002.1 The complaint, based upon original
and amended charges in the above noted cases was filed by
Milwaukee and Southern Wisconsin Regional Council of Car-
penters (the Charging Party or Union), Northern Wisconsin
Regional Council of Carpenters, United Brotherhood of Car-
penters and Joiners of America (the Charging Party or Union),
and Laborers’ International Union of North America, Local
464, AFL–CIO, (Local 464 or Union), alleges that Stevens
Construction Corp. (the Respondent or Employer), has engaged
in certain violations of Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act). The Respondent filed a timely
answer to the complaint denying that it had committed any

1 All dates are in 2002 unless otherwise indicated.
violations of the Act.
Issues
The complaint alleges that Respondent engaged in a number
of independent violations of Section 8(a)(1) of the Act includ-
ing threats to employees because of their union activities and
maintenance in its handbook of overly broad solicitation and
distribution rules. Additionally, the complaint alleges that the
Respondent disciplined and took punitive actions against an
employee, and has failed and refused to consider for employ-
ment and/or hire fourteen applicants because of their member-
ship in and activities in support of the Union, in violation of
Section 8(a)(1) and (3) of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged as a contractor in
the building and construction industry in Madison, Wisconsin,
where it annually purchased and received at its facilities and/or
jobsites in Wisconsin, products, goods, and materials valued in
excess of $50,000 directly from employers outside the State of
Wisconsin. The Respondent admits and I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Unions are labor or-
ganizations within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
During the relevant time period herein, the Respondent em-
ployed approximately 120–130 employees that engaged in con-
structing residential, commercial, industrial, and/or office fa-
cilities in Madison, Wisconsin and throughout the State of Wis-
consin. Prior to April 1, Jim Ladika held the position of Pro-
duction Manager/Manager of Field Personnel and was respon-
sible for hiring and establishing salary rates for employees.
After April 1, Vice President of Operations Geoffrey Vine as-
sumed these responsibilities. Dan Kast, David Mosel, Scott
Shanks, and Carl Nelson serve in the capacity of Superinten-
dents for Respondent, and are responsible for the day-to-day
operations on a specific jobsite. Jamie Endrizzi is Respon-
dent’s Safety Director and oversees all areas of safety through-
out the Employer’s operation. Lastly, Dena Pavlick serves as
the human resources manager handling employment applica-
tions and conducting employee interviews on Respondent’s
behalf.
B. Complaint 30–CA–15489 and 15883
1. The facts
On or about April 13, 2001, Respondent was in the process
of constructing a multistory apartment building in Madison,
Wisconsin. Respondent contracted with Statz & Harrop, Inc. to
complete the steel stud framing on the building. Statz & Har-
rop, Inc. and Respondent separately employ its own employees
and supervisors on the apartment building construction project.
STEVENS CONSTRUCTION CORP. 137
Shortly before the above date, Respondent’s employee Ted
Roessler complained to Superintendent Kast that an employee
of Statz & Harrop, Inc. was interfering with his job responsi-
bilities by constantly talking to him during working hours about
organizing a union at Respondent and the benefits of such rep-
resentation. Kast had also been informed by a number of other
Respondent employees that they had experienced the same
problems with this employee. Respondent inquired and then
learned that the name of the Statz & Harrop, Inc. employee that
was talking about the Union with Respondent’s employees
during worktime was Robert Hyatt. Accordingly, during the
afternoon of April 13, 2001, at the worksite, Kast and Manager
of Field Personnel Ladika approached Hyatt and informed him
that they heard he had been talking union to Respondent’s em-
ployees. Both Kast and Ladika informed Hyatt that they did
not want him talking about the Union with Respondent’s em-
ployees during worktime. Hyatt responded that it was a free
country and he would talk to whomever he pleased about the
Union or anything else whenever he felt like it. Both Kast and
Ladika reaffirmed to Hyatt that he should refrain from talking
about the Union with Respondent’s employees during work-
time. The conversation ended with Ladika stating, “You don’t
seem to understand what I’m saying, so maybe later this after-
noon you’ll understand.” Upon returning to work the following
Monday, April 16, 2001, Hyatt was laid off from his position
with Statz & Harrop, Inc.2
In early January 2002, Ladika hired former employee James
Muir as a construction Carpenter III at a salary of $18.50 per
hour. Muir was assigned to the Wilderness Resort expansion
project in Wisconsin Dells, Wisconsin under the supervision of
Superintendent Shanks. At the time of his hire, Muir was em-
ployed by the Union as an organizer but did not inform the
Respondent about his status. Muir continued to work on the
Wilderness project throughout January 2002, without discuss-
ing the Union with Respondent’s employees. On January 26, he
dislocated his shoulder while working at home over the week-
end. Muir notified Shanks and Human Resources Manager
Pavlick that he would not be reporting to work on Monday and
that he would be under a doctors care for at least the next week
and unable to return to work. Muir informed Shanks that he
hoped to be back to work full-time on February 15. During the
course of their telephone conversation, Pavlick offered Muir the
opportunity to come back to work on the Wilderness project as
a Safety Monitor, a light duty position, at the reduced wage of
$11 per hour. Although Muir was disappointed with the wage
reduction, after reflecting on the offer overnight, he decided to
accept and reported to the jobsite on February 11. Muir ob-
served on his first day back to work that a number of the men
were working on roofs without harnesses or tie-offs, which is a
violation of Occupational Safety and Health (OSHA) regula-

2 The General Counsel and the Respondent entered into a settlement
agreement on February 8, resolving the layoff of Hyatt as alleged in
Case 30–CA–15489 (GC Exh. 3). Thus, that portion of the complaint
will not be addressed in this decision. Rather, the discussion that oc-
curred between Hyatt, Kast, and Ladika on April 13, 2001, will be
addressed subsequently in the decision when considering whether the
statements violated Section 8(a)(1) of the Act as alleged by the General
Counsel.
tions. He mentioned this to Superintendent Mosel on February
11, but nothing was done. Muir arrived at work on February
12, and observed that no ropes or fall protection gear was
erected to protect the men who were still working on the roof.
He mentioned this flagrant safety violation to Shanks who re-
plied that the men should know better. Safety Director Endrizzi
was on the jobsite that morning and Muir talked to him about
the unsafe roof practices specifically that the men were working
without harnesses or tie-offs. That afternoon, Endrizzi called a
special meeting for all employees on the jobsite including Muir
and discussed issues regarding fall protection while working on
the jobsite (R Exh. 3). Muir also mentioned his concerns about
fall protection to Ladika while he was making one of his rou-
tine visits to the jobsite. Muir, without informing anyone in
authority at Respondent, telephoned OSHA prior to the special
meeting to report unsafe working conditions on the jobsite
when men were working without proper fall protection. Muir
made the call because he did not believe that the Respondent
was conforming to safety or OSHA regulations due to its fail-
ure of not requiring the men to wear harnesses when working
on roofs or implementing other fall protection guidelines. The
OSHA investigator did not immediately respond to Muir’s
initial telephone call so he placed a second call to OSHA during
the morning of February 14. Later that morning the OSHA
inspector arrived at the jobsite and talked with Muir and En-
drizzi. After inspecting the jobsite, the investigator cited the
Respondent for not providing a safe work environment when
men were working on roofs or other locations where they could
fall due to unsafe fall protection measures. After the departure
of the OSHA investigator, Muir informed Endrizzi and Mosel
that he was the individual who called and reported the safety
violations to OSHA. Muir also informed both individuals that
he was a union organizer and would be talking to Respondent
employees about joining the Union. Endrizzi immediately
telephoned Ladika and informed him that Muir was the indi-
vidual who reported the safety violations to OSHA and that he
just announced that he was a union organizer. Ladika acknowl-
edged that Endrizzi informed him about these matters. Ladika
immediately telephoned the jobsite looking for Muir but was
informed by Shanks that he had left for the day.3 Ladika con-
tacted Pavlick who provided Muir’s cell phone number. Ladika
placed a telephone call to Muir who received it while he was
still in his car driving home. Ladika informed Muir that he was
no longer needed at the Wisconsin Dells jobsite and that he
would not be able to return to work until he provided a doctor’s
release. Muir informed Ladika that he would bring the doctor’s
note to the jobsite and give it to Shanks so it could be faxed to
Ladika’s attention. Ladika told Muir that he should not show
up for work at the jobsite and if he did, he would be arrested for
trespassing and fired. Ladika instructed Muir to go directly to
the office on February 15 with the doctor’s release and not
show up at the jobsite. Upon arriving home, Muir telephoned
Ladika to further discuss the matter. Ladika told Muir that he

3 Shanks previously agreed that Muir’s working hours would be 7
a.m. to 3:30 p.m. due to child-care responsibilities. Apparently Shanks
had not informed Ladika or Pavlick of this arrangement when Ladika
attempted to reach Muir around 3:30 p.m. on February 14.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD138
did not want to discuss the matter further and he should contact
Pavlick if he had any further questions.
Prior to proceeding to the office on February 15, Muir
stopped at his doctor’s office and obtained a clean copy of the
return to duty release form as the prior one had become illegi-
ble (R Exh. 4). Before Muir arrived at the office, Respondent’s
President, Endrizzi, Ladika, and Pavlick met to discuss the
issue of Muir being responsible for initiating the OSHA inves-
tigation and announcing that he was a union organizer with the
intent of recruiting Respondent’s employees to join the Union.
While the participants in this meeting decided they could not
treat Muir any differently than any other employee, it was
agreed that after receipt of the doctor’s release form, Muir
would be transferred to another jobsite where no further com-
motion from yesterday’s OSHA visit could arise (R Exh. 54).
Pavlick was instructed to contact Muir and ask him if he had
the doctor’s release form. She then telephoned Muir who in-
quired whether he still had a job or if he was fired. Pavlick
apprised him that he did indeed still have his job and upon re-
ceipt of the doctor’s release form she would start the process to
get him back to work. Muir informed Pavlick that if he ob-
served any further safety violations he would call OSHA and
that when he did return to work he would be bringing union
literature and would be talking to other employees to convince
them to join the Union. The conversation ended and Muir
agreed to be in the office within the hour with the doctor’s re-
lease form.
Upon arriving at the office, Muir attended a meeting with
Ladika, CFO Mark Rudnicki and Pavlick. Muir provided the
doctor’s release form to Pavlick who noted it was dated Febru-
ary 15. Muir apprised Pavlick that he went back to the doctor
that morning to get a new form because the other one was hard
to read. During the course of the meeting, Pavlick discussed
the issue surrounding Muir leaving the jobsite at 3:30 p.m. on
February 14, and after addressing Muir’s intention to advocate
for the Union, she obtained his agreement to distribute union
literature and speak to Respondent’s employees about the Un-
ion before and after work, during lunch or after work but not
during worktime. The meeting ended with Respondent stating
that due to the situation with OSHA yesterday, they did not feel
comfortable placing Muir back at the Wilderness jobsite and
therefore, he was being reassigned to the First National Bank of
Stoughton job starting next Monday, February 18. Muir re-
sponded that he would have no problem working at the Wilder-
ness jobsite again. Respondent stated that it did not feel com-
fortable putting him back because an uncomfortable workplace
environment would be created after yesterday and they did not
want anyone to feel uncomfortable. Muir was instructed to
report to the First National Bank jobsite on Monday (R Exh.
54).
2. The 8(a)(1) allegations
The General Counsel alleges in paragraph 5 of the complaint
that on or about April 13, 2001, at a multistory apartment build-
ing, Ladika and Kast directed that an employee refrain from
discussing union with Respondent’s employees working at that
jobsite and threatened the employee with discharge if he failed
to stop such activities.
The Board has held that interrogation is not a per se violation
of Section 8(a)(1) of the Act. Rossmore House, 269 NLRB
1176, (1984), affd. sub nom. Hotel Employees Union Local 11
v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In determining
whether an interrogation is unlawful, the Board examines
whether, under all the circumstances the questioning reasonably
tends to interfere with, restrain, or coerce employees in the
exercise of their Section 7 rights. Rossmore House, 269 NLRB
at 1177–1178. Emery Worldwide, 309 NLRB 185, 186 (1992).
Under the totality of circumstances approach, the Board exam-
ines factors such as whether the interrogated employee is an
open and active union supporter, the background of the interro-
gation, the nature of the information sought, the identity of the
questioner, and the place and method of interrogation. Ross-
more House, 269 NLRB at 1178 fn. 20 (1984); Bourne v.
NLRB, 332 F.2d 47, 48 (2d Cir. 1964); Sunnyvale Medical
Clinic, 277 NLRB 1217, 1218 (1985).
Shortly before the above date, Respondent’s employee Ted
Roessler complained to Kast that an employee of Statz & Har-
rop, Inc. was interfering with his job responsibilities by con-
stantly talking to him during working hours about organizing a
union at Respondent and the benefits of such representation.
Kast had also been informed by a number of other Respondent
employees that they had experienced the same problems with
this employee. Respondent inquired and learned that the name
of the Statz & Harrop, Inc. employee that was talking about the
Union with Respondent’s employees during worktime was
Hyatt. Accordingly, during the afternoon of April 13, 2001, at
the worksite, Kast and Ladika approached Hyatt and informed
him that they heard he had been talking union to Respondent’s
employees. Both Kast and Ladika informed Hyatt that they did
not want him talking about the Union with Respondent’s em-
ployees during worktime. Hyatt responded that it was a free
country and he would talk to whomever he pleased about the
Union or anything else whenever he felt like it. Both Kast and
Ladika reaffirmed to Hyatt that he should refrain from talking
about the Union with Respondent’s employees during work-
time. The conversation ended with Ladika stating, “You don’t
seem to understand what I’m saying, so maybe you’ll under-
stand later this afternoon.”
Hyatt previously gave a sworn affidavit to the Board 4 days
after the events in question on April 16, 2001. The affidavit
confirms that Kast and Ladika instructed Hyatt not to talk about
the Union with Respondent’s employees during worktime and
does not mention that either Kast or Ladika threatened him with
discharge if he failed to stop such activities. Likewise, in his
testimony in the subject case, Hyatt did not assert that either
Kast or Ladika threatened him with discharge if he failed to
stop such activities.
The Board has consistently maintained the position that oral
solicitations may be prohibited only during working time. Re-
public Aviation Corp. v. NLRB, 324 U.S. 793 (1945). Accord-
ingly, I find that when Respondent representatives instructed
Hyatt not to talk to Respondent’s employees during working
time about the Union it was privileged to do so. Moreover, I
find that based on Hyatt’s testimony, Respondent’s representa-
tives did not threaten him with discharge if he failed to stop
talking to Respondent’s employees about the Union during
STEVENS CONSTRUCTION CORP. 139
working time.
Based on the forgoing, I do not find that the General Counsel
sustained the allegations in paragraph 5 of the complaint and
recommend that they be dismissed.
The General Counsel alleges in paragraph 6 of the complaint
that on or about February 14, at the Wilderness Resort project,
Mosel advised an employee that it would be futile to support a
union and threatened the termination of all employees if the
employees ever unionized.
Muir testified that just before lunch he and Mosel were talk-
ing about the OSHA investigation. During that discussion,
Muir told Mosel that he was a member of the Union and in-
tended to organize Respondent’s employees. Mosel, told Muir
that “in no way would Stevens go Union, and if the Union
bothered them again they would fire all their employees and
sub out their work just like they do in California.” Mosel ended
the conversation by informing Muir that he did not believe in
unions.
According to Mosel, he testified that he was a union member
in the late 1970’s and early 1980’s but was not in favor of un-
ions in general. He admitted that he told Muir, “that if he was
Stevens, he would not bother with the Union and would sub
everything out.” Mosel denied the comments attributed to him
by Muir that if the Union bothered them again they would fire
all their employees and sub out their work just like they do in
California.
While Mosel denied portions of the conversation, he admit-
ted that a conversation did occur in which the Union was dis-
cussed. I am inclined to credit Muir’s version of the conversa-
tion for the following reasons. First, Muir’s testimony is fully
consistent with his affidavit given to the Board approximately 1
month after the conversation took place. Second, Mosel admit-
ted that he does not believe in unions and that “if he was Ste-
vens, he would not bother with the Union and sub everything
out.” Third, Mosel denied that he was present on February 14
when Muir announced that he was a union organizer and was
the individual that called OSHA. Endrizzi contradicted Mosel
and testified that he was present when Muir announced he was
a union organizer and was the individual that called OSHA.
Fourth, Muir’s testimony had a ring of truth to it and occurred
just after he informed Mosel that he was a member of the Un-
ion and intended to organize Respondent’s employees.
Based on the forgoing, I find that Mosel threatened an em-
ployee that advocating on behalf of the Union would cause the
termination of all employees. Such statements tend to under-
mine Section 7 rights and are violative of Section 8(a)(1) of the
Act.
The General Counsel alleges in paragraph 7 of the complaint
that on or about February 14, by telephone, Ladika threatened
an employee with arrest and discharge and implied union activ-
ity constituted disloyalty.
Ladika placed a telephone call to Muir who received it while
he was still in his car driving home from work on February 14.
Ladika informed Muir that he was no longer needed at the Wis-
consin Dells jobsite and that he would not be able to return to
work until he provided a doctor’s release. Muir informed
Ladika that he would bring the doctor’s note to the jobsite and
give it to Shanks so it could be faxed to Ladika’s attention.
Ladika told Muir that he should not show up for work at the
jobsite and if he did, he would be arrested for trespassing and
fired. Muir asked Ladika why he was responding in this matter,
and Ladika said, “He had given me a job and I had stabbed him
in the back.”
The context of this conversation closely followed the time
when Endrizzi informed Ladika that Muir called the OSHA
investigator and that Muir had announced that he was a union
organizer. Moreover, Ladika admitted in his testimony that he
told Muir he was upset that he had telephoned the OSHA inves-
tigator and that if he showed up on the Wilderness jobsite he
would have him arrested for trespassing and fired. Accord-
ingly, I find that Ladika made the remarks alleged by the Gen-
eral Counsel in paragraph 7 of the complaint.
Based on the forgoing, I find that Ladika’s statements violate
Section 8(a)(1) of the Act.
3. The 8(a)(1) and (3) allegations
The General Counsel alleges in paragraph 8(a), (b), and (c)
of the complaint that Ladika barred Muir from returning to the
Wisconsin Dells jobsite, prevented him from being paid on
February 15, and transferred Muir from Wisconsin Dells to the
First National Bank project in Stoughton, Wisconsin.
The protected nature of Muir’s and other employee’s efforts
to protest Respondent’s actions concerning safety violations has
long been recognized by the Board who has held that similar
conduct comes within the guarantees of Section 7 of the Act.
See Joseph DeRairo, DMD, P.A. 283 NLRB 592 (1987). The
Board has also held in Mike Yurosek & Sons, Inc., 306 NLRB
1037, 1038 (1992), that “individual action is concerted where
the evidence supports a finding that the concerns expressed by
the individual are [sic] logical outgrowth of the concerns ex-
pressed by the group.” In this case, I find that Muir’s com-
plaints, on his own and the employees’ behalf about safety
concerns on the jobsite fall within the ambit of protected con-
certed activity. However, it must be determined whether Muir
was barred from returning to work, denied wages on February
15, and transferred to the First National Bank project based on
such activity.
In Wright Line, 251 NLRB 1083 (1980), enfd, 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1)
turning on employer motivation. First, the General Counsel
must make a prima facie showing sufficient to support the in-
ference that protected conduct was a “motivating factor” in the
employer decision. On such a showing, the burden shifts to the
employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct. The United
States Supreme Court approved and adopted the Board’s
Wright Line test in NLRB v. Transportation Management
Corp., 462 U.S. 393, 399–403 (1983). In Manno Electric, 321
NLRB 278 fn. 12 (1996), the Board restated the test as follows.
The General Counsel has the burden to persuade that antiunion
sentiment was a substantial or motivating factor in the chal-
lenged employer decision. The burden of persuasion then shifts
to the employer to prove its affirmative defense that it would
have taken the same action even if the employee had not en-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD140
gaged in protected activity.
The evidence conclusively establishes that Muir initiated the
OSHA investigation and openly announced that he was a union
member and intended to organize the Respondent’s employees.
Indeed, Ladika acknowledged these facts before Respondent
took the actions alleged in paragraph 8(a), (b), and (c) of the
complaint. Moreover, I find that Ladika threatened Muir with
arrest and discharge if he returned to the Wisconsin Dells job-
site because he was upset that Muir had contacted OSHA and
announced that he was a union organizer. Thus, I find that
antiunion sentiment was a substantial or motivating factor in
the Employer’s decisions alleged in the complaint.
Ladika admitted in his testimony that he stated on February
14 that he no longer wanted Muir on the Wisconsin Dells job-
site despite Shanks testimony that he never made a request to
Ladika that he did not want Muir to return to the jobsite. Effec-
tive February 15, Muir was cleared by his doctor to return to
full-time duty without restrictions and could have resumed his
carpentry duties at Wisconsin Dells. I find the true reason that
Muir was not returned to the Wisconsin Dells jobsite was be-
cause Ladika was upset that Muir had contacted OSHA, and
that after Ladika went out on a limb to rehire Muir in January
2002,4 he felt that Muir had stabbed him in the back by joining
the Union and announcing that he intended to organize Re-
spondent’s employees.
Additionally, the evidence shows that Muir was directed to
come to the office on February 15 with his doctor’s release
rather than reporting to the jobsite. Since the Respondent pre-
cluded Muir from reporting to work at the jobsite, he should
have been paid his regular salary of $18.50 per hour for the
entire day. Lastly, I find that Muir was transferred to the First
National Bank of Stoughton jobsite because he initiated the
OSHA investigation that resulted in a citation and openly an-
nounced that he was a union organizer. Respondent by testi-
mony (Ladika) and written memorandum to the file admitted
this fact (R. Exh. 54).
Based on the forgoing, I find that the Respondent has not es-
tablished that the same action would have been taken even in
the absence of Muir’s protected concerted and union activities.
Therefore, I conclude that Respondent violated Section 8(a)(1)
and (3) of the Act and sustain the General Counsel’s allegations
alleged in paragraph 8(a), (b), and (c) of the complaint.
The General Counsel alleges in paragraph 8(d) of the com-
plaint that on or about February 22, Endrizzi disciplined Muir.
According to Muir, Endrizzi was at the Stoughton Bank pro-
ject on February 22, and was watching him work. Muir testi-
fied that he was on an open ladder hanging an interior soffit.
While in the process of completing the task, a board leaning
against the wall started to fall. Muir attempted to catch the
board turning his body around to a point where he was not fac-
ing the open ladder. At that moment, Endrizzi observed Muir
and issued him a written warning for not facing the ladder (GC
Exh. 4). Muir refused to sign the warning.
The General Counsel argues that Endrizzi issued the warning
based on the fact that Muir had previously called the OSHA

4 Shanks testified that Muir had just been released from jail prior to
being hired in early January 2002.
inspector approximately 10 days earlier and apprised Endrizzi
that he was a union organizer. Indeed, Muir testified that on
February 14, the day he informed Endrizzi that he called the
OSHA inspector Endrizzi removed his glasses and stated to
Muir that he only removes his glasses when he is upset. Addi-
tionally, after Muir apprised Endrizzi that he was a union or-
ganizer, Endrizzi said this is bullshit and threw his hard hat
down and walked away. Endrizzi admitted that Muir informed
him that he initiated the OSHA investigation and announced
that he was a union organizer but both Endrizzi and Mosel de-
nied that Endrizzi removed his glasses and threw his hardhat on
the ground.
I am not persuaded that Endrizzi issued the safety warning to
Muir based on his protected concerted or union activities for
the following reasons. First, I am suspect of Muir’s testimony
concerning the actions of Endrizzi on February 14. In this re-
gard, Muir gave a sworn affidavit to the Board on March 18,
approximately 1 month after the incident on February 14, yet he
made no mention of Endrizzi’s conduct of removing his glasses
and throwing his hardhat on the ground. Actions by Endrizzi,
such as alleged by Muir, are highly significant and if they oc-
curred would have been fresh in Muir’s memory and should
have been included in his sworn statement. Second, Endrizzi
impressed me as a serious individual when dealing with safety
issues on the jobsite. Indeed, 1 week before he gave Muir the
safety warning, he had written a letter to one of the subcontrac-
tors on the Wisconsin Dells project citing them for two OSHA
violations one of which involved facing a ladder, the same vio-
lation that Muir received (R Exh. 46). I note that this violation
occurred in advance of the time that Muir announced to En-
drizzi that he had initiated the OSHA investigation and was a
union organizer.
Based on the forgoing, I am not persuaded that antiunion
animus contributed to the issuance of the safety warning. If
others disagree, I would find that Endrizzi would have issued
the safety warning to Muir even in the absence of his protected
concerted or union activities. Therefore, I find that the Re-
spondent did not violate Section 8(a)(1) and (3) of the Act
when Endrizzi issued the safety warning alleged in paragraph
8(d) of the complaint.
The General Counsel alleges in paragraph 8(e) of the com-
plaint that on February 25, Ladika disciplined Muir.
Muir testified that on February 25, he was summoned to the
trailer to meet with Ladika and Pavlick. Ladika gave him a
second written warning for spreading “false information.” In
this regard, Ladika asserted that Muir had stated to Endrizzi
that he talked to Ladika about concerns he had on fall protec-
tion at the Wisconsin Dells jobsite. Ladika contended that this
never happened. Ladika also charged Muir because he had
stated to two different employees that he was hired as a Fore-
man when he was actually hired as a Carpenter III. Ladika
ended the conversation by informing Muir that this was his
second warning and if he received an additional warning he
would be terminated.
I am of the opinion that the issuance of this written warning
was pretextual for the following reasons. First, there is no
question that Ladika was aware that Muir had previously initi-
ated the OSHA investigation and announced that he was a un-
STEVENS CONSTRUCTION CORP. 141
ion organizer. Indeed, Endrizzi testified that he informed
Ladika of these events and Ladika admitted them. Second, I
previously found that Ladika informed Muir that he was upset
with him because he initiated the OSHA investigation and that
Muir was transferred to the Stoughton Bank project because of
the OSHA investigation. Thus, there is an abundance of evi-
dence of antiunion animus.
Concerning the first aspect of the written warning, Muir
credibly testified that he apprised Endrizzi and Shanks about
his concerns with fall protection on the Wisconsin Dells jobsite.
He also testified and his sworn affidavit to the Board confirms
that he mentioned the same concerns to Ladika while he visited
the jobsite on or about February 12 or 13. Thus, I am of the
opinion that Ladika was fully aware of Muir’s concerns about
the lack of fall protection provided for the men at the Wiscon-
sin Dells jobsite. Moreover, Endrizzi testified and Ladika ad-
mitted that Endrizzi apprised him on February 12 about the fall
protection issues expressed by Muir, and the Respondent called
a special meeting on that date to address those concerns with
the men. With regard to the second portion of the written
warning, Shanks testified that he had a conversation in early
January 2002 with Ladika because Muir had informed him that
he was hired as a Foreman. Ladika informed Shanks that Muir
was hired as a Carpenter III and not as a Foreman. According
to Shanks, the matter never came up again and was resolved in
early January 2002. Shanks also acknowledged that no em-
ployee ever complained directly to him that Muir claimed to be
hired as a Foreman. While Ladika testified that a second em-
ployee complained about this issue, he was very vague and
unable to pinpoint when it occurred. Indeed, the Respondent
did not call the employee to testify. Accordingly, I conclude
that the issue of Muir asserting that he was hired as a Foreman
occurred in early January 2002 and was put to rest at that time.
Indeed, no oral or written warnings were issued to Muir in
January 2002 for spreading “false information.”
Based on the forgoing, I conclude that Ladika gave the sec-
ond warning to Muir due to his hostility that Muir had an-
nounced approximately 2 weeks earlier that he was the individ-
ual that initiated the OSHA investigation and revealed that he
was a union organizer. Additionally, I note that Ladika never
previously gave a written warning to any employee for spread-
ing “false information.” Finally, I find that the underlying rea-
sons for the written warnings were either false or occurred
weeks before the issuance of the warning and therefore, were
solely manufactured to punish Muir for engaging in protected
concerted and union activities. Therefore, I find that the Re-
spondent violated Section 8(a)(1) and (3) of the Act when it
disciplined Muir on February 25, as alleged in paragraph 8(e)
of the complaint.
The General Counsel alleges in paragraph 8(f) of the com-
plaint that Superintendent Carl Nelson disciplined Muir on
March 7 (GC Exh. 4).
Muir testified that he received his third written warning on
March 7 because he retained a cell phone on his person while
he was working on the jobsite. Ladika and Pavlick came to the
jobsite and informed Muir that this was his third written warn-
ing. Although Ladika had previously told Muir that he would
be terminated if he received a third violation, he was not termi-
nated but was informed if he did not immediately remove the
cell phone he would definitely be terminated. Muir asked to
see a copy of any written policy concerning cell phone usage
but Pavlick said they did not have to show him proof of the
policy.
Contrary to the General Counsel, I am not convinced that the
discipline visited on Muir for use of his cell phone was viola-
tive of the Act. In this regard, although a new written policy on
cell phone usage was not distributed to employees until April
2002, Respondent held a meeting with all Superintendents on
February 22, and instructed them to announce to all employees
the new cell phone policy. Although Muir denied in his testi-
mony that no one at Respondent previously informed him about
the new cell phone policy, he stated in his sworn affidavit given
to the Board that Nelson informed him on February 25, that he
was not to wear his cell phone on the jobsite and that this was a
new company policy. I also note that Pavlick credibly testified
that Assistant Superintendent Ric Bass complained to her on
February 21, that Muir was on his cell phone constantly all
morning long. Therefore, when Muir continued to carry his
cell phone on his person and it rang during the day on March 7,
Respondent was privileged to issue him a warning having pre-
viously informed all employees including Muir on February 25,
that cell phones could not be used while working on the jobsite.
Rather, employees were told that they could leave their cell
phones in their cars or lunch boxes and could use them on
break, at lunch or before or after work hours.
Based on the forgoing, and particularly noting that Muir ad-
mitted that he was informed on February 25 that he could not
retain his cell phone on his person while working, I find that the
written warning was a legitimate method of discipline unrelated
to Muir’s protected concerted or union activities. I further note,
that Nelson signed the written warning and he had no involve-
ment in the OSHA investigation or was present at the Wiscon-
sin Dells jobsite when Muir announced that he was a union
organizer. While Ladika and Pavlick came to the jobsite and
discussed the cell phone warning with Muir, it was Nelson who
issued the warning when Muir initially refused to remove the
cell phone from the jobsite and informed Nelson that he would
remove the phone only if he saw something in writing.
Accordingly, I find that antiunion animus did not enter into
the Respondent’s reasons for issuing the written warning to
Muir. Therefore, I conclude that Respondent did not violate
Section 8(a)(1) and (3) of the Act when it disciplined Muir as
alleged in paragraph 8(f) of the complaint. If others disagree, I
would find that Respondent would have issued the discipline to
Muir even in the absence of his protected concerted or union
activities.
In light of my findings above regarding paragraphs 6 and 7
of the complaint, I find that the General Counsel was privileged
in revoking one provision of the settlement agreement in Case
30–CA–15489 and including paragraph 5 in the subject com-
plaint (GC Exh. 3). I note however, after hearing the testimony
surrounding the allegations alleged in paragraph 5 of the com-
plaint, I did not find that Respondent violated the Act as alleged
and recommended dismissal of that allegation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD142
C. Complaint 30–CA–16108 and 30–CA–16109
1. The 8(a)(1) allegations
The General Counsel alleges in paragraph 5 of the complaint
that Respondent has maintained certain rules in its revised Em-
ployee Handbook that impermissibly restrict employee activity
protected by the Act.5
The Board’s standard for analyzing workplace rules like
these is set out in Lafayette Park Hotel, 326 NLRB 824, 825
(1998), enfd. 203 F.3d 52 (D.C. Cir. 1999), as follows:
In determining whether the mere maintenance of rules such as
those at issue here violates Section 8(a)(1), the appropriate in-
quiry is whether the rules would reasonably tend to chill em-
ployees in the exercise of their Section 7 rights.
Where the rules are likely to have a chilling effect on Section
7 rights, the Board may conclude that their maintenance is an
unfair labor practice, even absent evidence of enforcement.
With respect to the outside activities rule, the language con-
tained in its first section is exceptionally broad and leaves to the
total discretion of the Respondent what type of activities may
be in conflict with the general welfare of the Company, have
the appearance of impropriety, or might otherwise damage the
Company’s reputation, business, and performance of employee
duties. However, the second portion of the rule that provides
examples to incumbent employees sets the tone of what is ex-
pected by Respondent and provides a common sense under-
standing of the type of outside activities that would infringe on
the rule. These guidelines, in my opinion, would clarify to a
reasonable employee that Section 7 activity is not the type of
conduct proscribed by the rule. Reading this language in con-
text, employees would recognize that, it was intended to reach
conduct similar to the examples given in the rule, not conduct
protected by the Act. See Tradesman International, 338 NLRB
460 (2002).

5 The Handbook Rules provide:
Restrict Conflicting Outside Activities
In limiting employees’ involvement in certain outside activities, we
are not attempting to interfere in your personal life, but rather to protect
the best interests of Stevens Construction Corp. and all its personnel.
We cannot permit employees to pursue activities which, in the judg-
ment of the Company, may be in conflict with the general welfare of
the Company or have the appearance of impropriety, or which might
otherwise damage our reputation or interfere with our business or the
proper performance of your duties.
Certain activities which obviously are not proper for employees in-
clude but are not limited to employment with a competitor, use of the
Company’s time, facilities or equipment to engage in another business
or occupation, and any outside activity which results in your losing
time from work, being distracted from work, or otherwise performing
unsatisfactorily, or which could result in an appearance of conflict.
You should consult with our President before engaging in any activity
which might b covered by this policy.
Obey Our Solicitation and Distribution Rules
No employees may solicit another employee for any purpose while
either employee is on working time. The distribution of handbills or
other literature during working time or in working areas is forbidden.
Persons who are not employed by us are prohibited from soliciting
any employee or distributing literature on jobsites, premises or at em-
ployee work locations at any time.
Under those circumstances, I am of the opinion that the out-
side activities rules which have not been enforced do not have a
chilling effect on Section 7 rights and their maintenance in the
Employee Handbook is not violative of Section 8(a)(1) of the
Act.
In regard to the portion of the Handbook that deals with em-
ployee solicitation and distribution of literature during working
time and in working areas, the Board has addressed these issues
on numerous occasions. In Our Way, 268 NLRB 394 (1983),
the Board reaffirmed the view that rules prohibiting solicitation
during working time are lawful. Similarly, the Board in
Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962), held that
distribution may lawfully be restricted both on worktime and in
work areas.
Under these circumstances, I do not find that those portions
of the Handbook chill employee Section 7 rights and recom-
mend that those provisions not be found to violate Section
8(a)(1) of the Act.
With respect to the Handbook rule that deals with persons
not employed by the Respondent, the Supreme Court held in
Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), that the em-
ployer’s exclusion of nonemployee union organizers from the
parking lot of its retail store, pursuant to its uniformly enforced
rule against all solicitation and distribution on those premises
was a legitimate action in accordance with the employer’s
property right. This holding is grounded on the proposition that
the retail store was private property and the nonemployee union
organizers in that case had no protected right of access to the
respondent’s private property. In the subject case, the majority
of Respondent’s construction activity is not undertaken on its
own property but rather at construction sites owned by others.
The Respondent is solely retained to engage in construction
activities. The Respondent has submitted no evidence to estab-
lish that the construction sites where they perform work are
owned by them or are considered to be private property. Like-
wise, there is no evidence in the record of the nature of the
relationship among the property owner, the general contractor,
and the Respondent. Indeed, I note that the Respondent did not
prohibit the Union from engaging in picketing on March 12, at
the Stoughton Bank project. Under these circumstances, I find
that the Respondent has not met the threshold burden of estab-
lishing that it had a property interest in the construction site that
would entitle it to exclude individuals from the property. See R
& R Plaster & Drywall Co., 330 NLRB 87 (1999).
Therefore, the maintenance of the no solicitation and distri-
bution rules to persons not employed by Respondent is overly
broad and violates the Act. Moreover, since the words prem-
ises and work locations are not defined, the rule could reasona-
bly be interpreted to preclude solicitation or distribution of
literature in the areas that employees’ park their cars, take their
lunch and breaks or before and after work. Accordingly, I find
the Respondent’s maintenance of this Handbook rule to be
overly broad and violative of Section 8(a)(1) of the Act.
2. The 8(a)(1) and (3) violations
The General Counsel alleges in paragraph 6(b) of the com-
plaint that around mid-February 2002, eleven individuals filed
employment applications for carpenter positions pursuant to ads
STEVENS CONSTRUCTION CORP. 143
placed by Respondent in various publications seeking carpen-
ters. All of these applicants wore some type of union insignia
such as jackets or hats identifying themselves as union mem-
bers and indicated on their applications that they had worked
for union employers.
The General Counsel further alleges that Respondent has
failed and refused to consider for employment and/or hired any
of the eleven applicants because of their membership in and
activities in support of the Union.
The Board in FES, 331 NLRB 9 (2000), determined that the
General Counsel must show in a discriminatory refusal to-hire
violation the following at the hearing on the merits. First, that
the respondent was hiring, or had concrete plans to hire. Sec-
ond, that the applicants had experience or training relevant to
the announced or generally known requirements of the posi-
tions for hire, or in the alternative, that the employer has not
adhered uniformly to such requirements, or that the require-
ments were themselves pretextual or were applied as a pretext
for discrimination. Third, that antiunion animus contributed to
the decision not to hire the applicants. If the respondent asserts
that the applicants were not qualified for the positions it was
filling, it is the respondent’s burden to show, at the hearing on
the merits, that they did not possess the specific qualifications
the position required or that others (who were hired) had supe-
rior qualifications, and that it would not have hired them for
that reason even in the absence of their union support or activ-
ity. To establish a discriminatory refusal-to-consider violation,
pursuant to FES, supra, the General Counsel bears the burden
of showing the following at the hearing on the merits: (1) that
the respondent excluded applicants from a hiring process; and
(2) that antiunion animus contributed to the decision not to
consider the applicants for employment. Once this is estab-
lished, the burden will shift to the respondent to show that it
would not have considered the applicants even in the absence
of their union activity or affiliation.6
There is no dispute that the Respondent hired a number of
carpenters after the union applicants filed their job applications.
In regard to carpenter positions that were filled by Respondent,
three skill levels of carpenter proficiency were sought and a
labor classification check list was attached to each application.
All applicants were requested to check which level they thought
their individual skill level fit. For example, carpenter positions
at Respondent were separated into Carpenter I, II, and III lev-
els, with Carpenter III possessing the highest skills and war-
ranting the highest hourly pay rate.
In defending its decision to hire other individuals for the va-
cant carpenter positions, Respondent argues that the individuals
that they hired possessed superior qualifications when com-
pared to the union applicants. Additionally, the Respondent
argues that a number of the union applicants demanded salaries
higher than normally paid, had poor references, or failed to
return telephone calls when they sought to inquire about ques-
tions with their applications or to discuss salary demands.

6 To establish a discriminatory refusal to consider and hire case, the
General Counsel is required to prove the allocation of burdens set forth
in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
In regard to whether union animus contributed to the deci-
sion not to consider or hire the union applicants, I find that the
General Counsel has established this element for the following
reasons.
First I note that Mosel and Ladika made threatening state-
ments to employees based on their protected concerted or union
activities. Second, I find that Ladika visited discipline upon
Muir due to his protected concerted activities and announce-
ment that he was a union organizer on February 14, a period in
time prior to the filing of the union applications on February 19
and 20. Third, I find that Ladika prevented Muir from return-
ing to the Wisconsin Dells jobsite and subsequently transferred
him to the Stoughton Bank jobsite because of his protected
concerted activities and announcing that he was a union organ-
izer.
In order to determine whether the individuals hired by Re-
spondent had superior qualifications to the union applicants, a
comparison of their training and experience must be under-
taken.
a. The union applicants
Robert Hyatt (GC Exh. 6)
Hyatt filed an application for employment on February 21.
At the time of his application he was unemployed but he listed
prior union employers for whom he had worked. Hyatt applied
for all three skilled level carpenter positions and indicated on
his application that he had previously performed within those
classifications. Based on my review of his application, Hyatt
was eminently qualified to perform all functions of the Carpen-
ter III position at Respondent. By letter dated March 8, Pavlick
apprised Hyatt that his desired wage rate of $25 per hour is
outside Respondent’s initial pay scale for a Carpenter and his
application was rejected.
Joshua Kepler (GC Exh. 7)
Kepler filed an application for employment on February 19,
and wore a carpenter hat and shirt when applying in person at
Respondent. His application shows that he had been a carpen-
ter for about 1 year and he checked the Carpenter I skill level
classification to indicate his proficiency. Respondent did not
hire Kepler because during the reference check portion of the
application process it was discerned that his prior employer
intended to call him back to work on or about March 13.
Based on the forgoing, I find that this was a legitimate rea-
son for not hiring Kepler and was totally unrelated to his union
affiliation.
Darrelle LaBelle (GC Exh. 8)
LaBelle filed his application for employment on February
19, and wore a union hat when he applied in person at Respon-
dent. His application shows that he described himself as a un-
ion organizer and indicated that he was qualified to perform
Carpenter III skill level responsibilities. His testimony indi-
cated that he was a journeyman union carpenter and had been in
the field for 26 years. Respondent sent a letter dated March 8,
which La Belle did not receive based on an incorrect street
address that apprised him that the salary level of $22.66 per
hour that he sought was outside the initial pay scale for a Car-
penter position. Accordingly, his application was rejected.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD144
Gary Miller (GC Exh. 10)
Miller filed his application for employment on February 19,
and wore a union hat and shirt when he applied in person at
Respondent. He applied for a Carpenter I position having been
in the trade for approximately 2 years. His application shows
two reference checks from his prior employers. Comments
such as “no common sense, a talker, not a worker, limited
knowledge and tried to work hard but didn’t know much” were
contained thereon. The application file checklist shows that
Miller was not hired due to his poor references.
Based on the forgoing, I find that Miller was not hired be-
cause two prior employers gave him unfavorable references,
rather than his affiliation with the Union.
John McGwin (GC Exh. 9)
McGwin filed his application for employment on February
19, and wore a union hat, shirt and jacket when he applied in
person at Respondent. He applied for a Carpenter III position
having been in the trade for approximately 9 years. By letter
dated March 11, Pavlick rejected his application primarily be-
cause the hourly wage he sought of $22.66 is outside the Re-
spondent’s initial pay scale for a Carpenter. My review of
McGwin’s application establishes that he was an experienced
carpenter who had also held a Foreman position at a prior em-
ployer.
David Parker (GC Exh. 11)
Parker filed his application for employment on February 19,
and wore a union hat and shirt when he applied in person at
Respondent. He applied for a Carpenter III position having
been in the trade for approximately 12 years. By letter dated
March 18, Pavlick rejected his application based on an unsatis-
factory reference check from his prior employer. In this regard,
Parker had been fired from his prior employer because of a
drinking problem.
Cynthia Schaefer (GC Exh. 12)
Schaefer filed her application for employment on February
19, wore a union jacket when she applied in person at Respon-
dent and listed former union employers on her application. She
had been in the trade for a number of years and was certified as
a journeyman carpenter. Accordingly, she applied for all avail-
able Carpenter positions at Respondent. Thus, I conclude that
Schaefer was eminently qualified for all advertised Carpenter
positions at Respondent. Both Ladika and Pavlick testified that
the Respondent was making a special effort to hire qualified
women and minority carpenters as none were presently em-
ployed. Schaefer’s application was rejected because Respon-
dent left a message with her daughter on March 8 to inquire
about her desired hourly wage but no return call was ever re-
ceived. Schaefer testified that she never received a message
from Respondent on March 8, and while she has two daughters
over 21, neither of them lived in her house on March 8. Indeed,
one of her daughters lives approximately 100 miles away from
her residence (GC Exh. 74). I also note on Schaefer’s applica-
tion that she earned hourly wages of $22.66 at her prior union
employer, a wage that is outside Respondent’s initial pay scale
for a Carpenter.
Edward Steeb (GC Exh. 13)
Steeb filed his employment application on February 19, and
wore a union hat, shirt and jacket when he applied in person at
Respondent. His application shows excellent experience in the
trade and he checked that he was capable of performing all the
duties of a Carpenter III on Respondent’s labor classification
form. By letter dated March 8, Pavlick rejected Steeb’s appli-
cation because he sought an hourly wage of $22.66, a wage rate
outside Respondent’s initial pay scale for a Carpenter.
Scott Watson (GC Exh. 14)
Watson filed his employment application on February 19,
and wore a union hat, shirt and jacket when he applied in per-
son at Respondent. His application shows excellent qualifica-
tions having achieved journeyman carpenter status and serving
as a Foreman at his most recent employer. By letter dated
March 8, Pavlick rejected Watson’s application because he
sought an hourly wage of $22.66, a wage rate outside Respon-
dent’s initial pay scale for a Carpenter.
Kurt Wise (GC Exh. 15)
Wise filed his employment application on February 20, and
wore a union hat and shirt when he applied in person at Re-
spondent. His application shows excellent experience having
achieved journeyman carpenter status at his most recent em-
ployer with a wage history in excess of $27 per hour. Respon-
dent’s applicant file checklist shows that a telephone message
was left on March 8 for Wise to specify the hourly wage he was
seeking. Wise testified that he never received a telephone mes-
sage from Respondent and therefore, could not have returned
the call. In any event, Wise was not hired as a Carpenter at
Respondent.
Aaron Zimmerman (GC Exh. 16)
Zimmerman filed his employment application on February
19, and wore a union hat and shirt when he applied in person at
Respondent. His application shows that he possessed the quali-
fications of a Carpenter I and had a solid employment history.
Respondent did not hire Zimmerman because he was called
back to work at his former employer on March 11. Since Zim-
merman’s testimony confirmed this, and his return to work took
place prior to the Respondent completing its reference checks, I
find that this was a legitimate reason for not hiring Zimmer-
man. Thus, I conclude that Respondent’s reason for not hiring
Zimmerman was unrelated to his union affiliation.
b. Carpenter’s hired by Respondent
Michael Farr (GC Exh. 19)
Farr filed his employment application on March 1, and indi-
cated he was qualified to perform the duties of a Carpenter
Laborer, Concrete Laborer and a Carpenter I. He possessed
good references at his prior employer and was hired on April 5
as a Carpenter Laborer earning $13 per hour despite not per-
forming carpentry duties since June 2000. His most recent
employment experience was as a banquet cook.
Craig Vorwald (GC Exh. 20)
Vorwald filed his employment application on March 19, and
indicated he was qualified to perform the duties of a Carpenter
STEVENS CONSTRUCTION CORP. 145
II. He did not fully complete the employment application but
attached a resume that showed some experience as a carpenter,
the most recent being in January 2000. His prior employer was
Dubuque Greyhound Park & Casino where he held a security
position until August 2001. Vorwald was hired on April 2, as a
Carpenter II with a starting salary of $15 per hour.
Kenneth Ruegsegger (GC Exh. 21)
Ruegsegger filed his employment application on March 27,
and listed that he had previously been employed with the Re-
spondent in 1999 but was presently self-employed. Respondent
hired Ruegsegger as a Carpenter III on April 8, with a starting
wage of $20 per hour. At the time Ruegsegger left Respon-
dent’s employ to start his own business, he was the highest paid
carpenter on its payroll.
Jason Genord (GC Exh. 22)
Genord filed his employment application on April 18, but
did not check the positions he thought he was qualified for on
the labor classification form. Likewise, Genord did not com-
plete the employment experience portion of the employment
application. Rather, he attached a resume to the application
that shows his prior experience as a farmer and a fabrica-
tor/welder, handling equipment and custom fabrication of heat-
treating furnaces. Respondent hired Genord on May 16 as a
Carpenter I with a salary of $13 per hour. I find that Genord’s
experience and background is not as substantial as the union
applicants.
Matthew Wellenketter (GC Exh. 23)
Wellenketter filed his employment application on April 22,
but did not check any of the positions on the labor classification
form that he qualified for. His application shows that he was
scheduled to graduate from the University of Wisconsin with a
degree in Civil Engineering and Construction Management.
His resume indicates that his objective for employment in-
cludes a construction or engineering firm, with interests in pro-
ject management and structural design. Wellenketter was hired
on June 10, as a Carpenter I at an hourly wage of $17 per hour.
Based on the above, it does not appear that Wellenketter had
extensive experience as a carpenter in comparison to the union
applicants. Additionally, as a college graduate, it is unlikely
that he would remain in a carpenter position for a lengthy pe-
riod. Indeed, his interests are primarily in project management
and structural design.
Clay Tyler (GC Exh. 24)
Tyler renewed his interest in being hired at Respondent on
April 24, having previously been rejected by Pavlick’s letter
dated November 16, 2001 due to lack of construction experi-
ence. In his initial application filed on November 15, 2001, he
applied for a frame carpenter position. Tyler was hired on May
16 as a Carpenter II, with a starting hourly wage of $18.
I note that Ladika testified that if an individual application
was previously rejected, it was highly unlikely that such a per-
son would be considered for a future position. Additionally, I
note that approximately five months had elapsed from Tyler’s
prior application and no new application was filed when he
renewed his interest in employment.
Samuel Adams (GC Exh. 25)
Adams filed his employment application on May 6, and
sought a Carpenter I position. His application shows that he
had some experience as a carpenter but not extensive and his
most recent carpentry duties ended in May 2001 when working
for his father’s company. Respondent hired Adams on August
1, as a Carpenter Laborer with a starting salary of $13 per hour.
Patrick Kingsland (GC Exh. 26)
Kingsland filed his employment application on May 15, and
sought a Carpenter II position. He had previously worked as a
carpenter for his most recent employer earning $17 per hour.
Respondent hired Kingsland on June 3, as a Carpenter II earn-
ing $19 per hour, an increase over his prior position. The Gen-
eral Counsel raised the issue of Kingsland being hired at a time
when a relative was employed by Respondent as contrary to a
provision in the Employer’s Handbook (GC Exh. 2, page 10,
Employment of Relatives). Pavlick credibly testified that even
if close relatives are employed at Respondent, it is permissible
as long as one of the employees does not work under the direct
or indirect supervision or the same Department as the person
with whom he or she has the relationship.
Based on the forgoing, I do not believe that a violation of the
Employer’s Handbook has been established. Rather, I note that
the hiring of Kingsland is unique in that he was hired at a
higher hourly rate than he previously was making at his prior
employer.
Robert Stewart (GC Exh. 27)
Stewart filed his employment application on May 21, seek-
ing a carpenter position. He was hired on June 14 in the classi-
fication of a Carpenter Laborer at the hourly rate of $12. His
most recent experience as a carpenter was in 1999 when he
built houses for a low-income family school program.
Glen Colver (GC Exh. 28)
Colver filed his employment application on June 11, seeking
a Carpenter I position. He had good experience as a junior
carpenter having been paid $10 per hour while performing car-
pentry work at his prior employer. Colver was hired on June 26
as a Carpenter Laborer at the hourly rate of $13.
Richard Schuch (GC Exh. 29)
Schuch sent an e-mail message to Respondent on June 19
with his resume attached. He was seeking a project manage-
ment or supervisory position paying $45,000 per year or $21.63
per hour. On July 1, Schuch filed a formal application and
indicated he was applying for a Carpenter III or Assistant
Foreman position and sought $52,000 per year or $25 per hour.
Respondent hired Schuch on July 18 as a Carpenter III at the
hourly wage of $20.
Based on the forgoing, I question why Schuch’s resume and
formal application that requested a wage rate outside Respon-
dent’s initial pay scale was not rejected similar to the union
applicants and consistent with Ladika’s testimony that such
applications were automatically rejected without an interview.
David Woodson (GC Exh. 30)
Woodson filed his employment application on June 21, seek-
ing an apprentice carpenter position. His application shows
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD146
that he was in the formative stages of his career having been in
the trade for approximately 2 years. Respondent hired
Woodson on July 17 as a Carpenter Laborer at the hourly rate
of $14.
Allen Chase (GC Exh. 31)
Chase filed his employment application on July 19 and ap-
plied for a carpentry position. His application shows that he
was self-employed from April 1999 to March 20, performing
carpentry work and earned $15 per hour. Respondent sent out
two reference forms to the two employers that Chase had listed
on his application. One employer just confirmed his dates of
employment while the other employer reported that Chase was
terminated for not showing up for work. Despite learning of
Chase’s termination from the former employer, Respondent
sent him a letter seeking additional information to complete his
application and to schedule an employment interview. The
records establish that Chase was offered a position as a Cement
Finisher I at the hourly rate of $16 but did not commence em-
ployment as he was put in jail before his scheduled start date (R
Exh. 5)
Based on the above I note that Chase, despite having an in-
complete application and a poor reference check, was given an
interview and offered a position at Respondent unlike the union
applicants.
Tommy Steig (GC Exh. 32)
Steig filed his employment application on July 22, and
sought a Carpenter I position. He was self-employed at the
time of his application but asserted that the work was not steady
enough. His references were good and Respondent hired him
on August 14 as a Carpenter I at the hourly rate of $15.
German Julian (GC Exh. 33)
Julian filed his employment application on July 24, and ap-
plied for a carpenter position. His application shows that his
most recent employment was in the food service industry.
Julian also did some painting in the construction industry. He
listed that he possessed special skills with windows, doors and
cabinets. Respondent hired Julian on August 5 as a Carpenter I
at the hourly rate of $13.
Richard Pochopien (GC Exh. 34)
Pochopien filed his employment application on July 25, and
applied for a Carpenter II position. His application shows that
in his most recent position effective June 2002, he was a field
Superintendent and was paid $22 per hour. While he had ex-
cellent references, unlike the union applicants, his application
was not rejected because he sought a desired wage rate outside
the initial pay scale for a Carpenter. Indeed, he was hired on
August 9 at the hourly rate of $18 with a provision that his
salary would be reviewed after 30 days on the job. None of the
union applicants were given this opportunity and a number of
those applicants possessed qualifications at least equal to Po-
chopien.
Carl Smith (GC Exh. 35)
Smith filed his employment application on July 28, and ap-
plied for a Carpenter II position. His application shows that in
his most recent position effective July 24 he was a day laborer
performing laborer, carpenter, housekeeping and production
work. The application also notes that he has experienced sobri-
ety issues in the past and was terminated from one of his prior
employers because of attendance problems. Despite having
these matters noted on his application, Respondent hired Smith
on August 9 as a Carpenter II at the hourly rate of $16. Wil-
liam Kennedy (GC Exh. 36)
Kennedy filed his employment application on July 30, and
applied for a trim carpenter position. His application shows
that in his most recent self-employed position, he was responsi-
ble for all types of small jobs including light electrical work,
installation of floors and trim carpentry work. Prior to that job,
he was an assembly molder from 1996 to 2000. Respondent
hired Kennedy on August 14 as a Carpenter II at the hourly rate
of $17.
c. Analysis
The General Counsel, in addition to alleging refusal to hire
violations, has asserted that the Respondent has refused to con-
sider the union applicants for employment. Contrary to this
argument, I find that the Respondent did consider the union
applicants and did not exclude them from the hiring process. In
this regard, each of the above union applications was reviewed,
processed and considered. In some instances telephone calls
were placed to the union applicants to verify desired salaries or
to clear up matters listed on the application. Thus, contrary to
the General Counsel, I recommend that those complaint allega-
tions be dismissed.
With respect to the refusal to hire allegations alleged in the
complaint, I find that the Respondent did not hire some of the
union applicants because of their union affiliation and therefore
violated Section 8(a)(1) and (3) of the Act. The following
represents my reasons for this finding. First, I note that none of
the union applicants were contacted by the Respondent to see if
they would consider taking a lower hourly wage or consider a
carpenter laborer position unlike the nonunion applicants, some
of who accepted reduced hourly wages from what they previ-
ously earned. Second, union applicants were routinely rejected
if they requested a salary or their wage history showed a wage
rate outside Respondent’s initial pay scale for a Carpenter.
Nonunion applicants that were hired were not routinely rejected
if they listed in their applications a salary or wage history out-
side Respondent’s initial pay scale for a Carpenter. Addition-
ally, a number of the nonunion applicants that were hired were
given the opportunity to interview with Respondent even if
their applications showed a wage history that was outside Re-
spondent’s initial pay scale for a Carpenter. Union applicants
were not afforded this same accommodation and no union ap-
plicant listed in the complaint was offered an interview with
Respondent. Third, union applicants were routinely rejected
based on poor reference checks. This was not the case for non-
union applicants. For example, union applicants who either
acknowledged or their reference checks uncovered past alcohol
problems were routinely rejected (Parker), while nonunion
applicants were given an interview and hired (Smith). Like-
wise, union applicants that received poor reference checks were
routinely rejected while nonunion applicants that also received
poor reference checks were hired (Chase was also convicted of
STEVENS CONSTRUCTION CORP. 147
a felony involving child support and Smith). Fourth, despite
Respondent’s policy according to Ladika of not considering
applications that were previously rejected, Respondent hired
nonunion applicant Tyler. Fifth, in comparing the qualifica-
tions of the union applicants with the nonunion applicants, it is
abundantly clear that the union applicants had substantially
more years in the trade and greater experience than the majority
of the carpenters or carpenter laborers hired by the Respondent.
Lastly, both Ladika and Pavlick confirmed that one of the pri-
mary goals of Respondent was to hire qualified minority and
women carpenters as none were employed during the critical
period. In this regard, Schaefer was eminently qualified having
achieved journeyman carpenter status. While the Respondent
asserts that it did not hire Schaeffer because she did not return
their one telephone call, I find this reason to be pretextual.
Indeed, as discussed above, the Respondent routinely sent out
second letters to nonunion applicants or made second telephone
calls to seek information. Since Respondent put a great deal of
emphasis on seeking out and hiring qualified women carpen-
ters, their reasons for not hiring Schaefer do not withstand scru-
tiny.
In summary, I find that the reasons advanced by Respondent
for not hiring the union carpenter applicants alleged in the
complaint with the exception of Kepler, Miller, and Zimmer-
man to be pretextual. I note that the Respondent did not hire
even one of the union applicants listed in the complaint. In-
deed, I find the Respondent would have hired the eight indi-
viduals (Hyatt, LaBelle, McGwin, Parker, Schaefer, Steeb,
Watson, and Wise) but for their union affiliation. Under
Wright Line, I find that the Respondent did not meet its burden
that it would have taken the same action even if the employees
had not engaged in protected activity.
The Respondent argues that the hiring of union applicant
Todd Bloyd (GC Exh. 38) confirms that it did not possess un-
ion animus and it fully considered his employment application.
Bloyd filed his employment application on April 18, and ap-
plied for a concrete finisher position. He listed in his applica-
tion that he was a union organizer and intended to organize the
Respondent’s employees. On April 22, he amended his appli-
cation to include leadman and Foreman positions. By two
separate letters dated April 30, Respondent rejected his applica-
tion stating that they were looking for applicants with more
experience and no concrete laborer positions were available.
According to Pavlick, because Bloyd was persistent, he was
granted an interview with Pavlick and Vice President of Opera-
tions Hein on May 17. Bloyd tape-recorded the interview and a
transcript was made (GC Exh. 69). After the completion of the
interview, Bloyd whose primary experience was working with
concrete was offered a position as a carpenter. He commenced
employment on June 3 but worked only 2 weeks as the Union
instructed him to leave the job.
Although the Respondent did hire Bloyd knowing that he
was a union organizer, I do not place significant emphasis on
this hiring as it occurred at a time after Respondent had rejected
all of the earlier carpenter union applicants. Moreover, when
the Respondent hired Bloyd they knew he did not possess car-
pentry skills and had not Bloyd voluntarily left his job, it could
have provided the Respondent a legitimate reason to terminate
him.7 In any event, the hiring of one union applicant after re-
jecting all other carpenter union applicants does not shelter the
Respondent’s prior illegal actions under the Act.
D. Complaint 30–CA–16196
1. The union applicants
The General Counsel alleges in paragraph 5 of the complaint
that the Respondent since February 2002 placed ads in various
publications seeking concrete laborers and cement finishers.
On April 18, three union applicants applied for laborer posi-
tions but since April 25, Respondent has failed and refused to
consider these individuals for employment and/or hired them.
Rather, beginning May 7, Respondent hired at least 23 employ-
ees for positions for which the union applicants were qualified.
In order to compare the qualifications of the three union appli-
cants with a number of the individuals hired by Respondent, an
analysis of their backgrounds and experience will be under-
taken.
a. Steve Cagle (GC Exh. 39)
Cagle filed his employment application with Respondent on
April 19, and sought employment working with concrete. He
checked on the labor classification form that he was proficient
to work in the positions of carpenter, concrete, or general la-
borer. Cagle noted on his application that he was a union or-
ganizer and possessed prior experience with union companies
as a Foreman and laborer working with concrete. Respondent
telephoned Cagle and it is noted on the application that he was
willing to accept wages of $10 per hour despite being paid $20
per hour in prior positions. By letter dated April 30, Respon-
dent informed Cagle that they did not have any concrete labor
positions available at that time but would keep his application
on file, and if any positions became available that suited his
skills, he would be contacted.
b. John Matthews (GC Exh. 40)
Matthews filed his employment application with Respondent
on April 18, and sought employment as a laborer. His applica-
tion notes that he has experience working with underground
utilities and a salary history in excess of $20 per hour. Respon-
dent’s employee checklist file notes that Matthews did not pos-
sess concrete or carpentry experience and was seeking wages
higher then their pay scale. By letter dated April 30, Respon-
dent apprised Matthews that they were looking for applicants
with more experience but they would keep his application on
file, and if an opportunity became available that suited his skills
he would be contacted.
c. Karl Markgraf (GC Exh. 41)
Markgraf filed his employment application with Respondent
on April 25, and sought work as a laborer. His application
shows that since 1993 he had excellent experience with a union
employer performing various types of laborer work at an hourly
wage of $19 to $21. Respondent’s employee checklist file
notes that they were not hiring laborers at this time and Mark-

7 Ladika testified that during his tenure as Production Manager, the
hiring policy did not permit someone to apply as a laborer and be hired
as a carpenter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD148
graf’s salary demands were too high. By letter dated April 25,
Respondent informed Markgraf that they did not have any la-
borer positions available but his application would be kept on
file in the event that any positions became available that suited
his skills.
2. Employee’s hired by Respondent
a. Anthony Butze (GC Exh. 43)
Butze filed his employment application on March 7, and
sought work as a general laborer. His application shows that
his most recent employment since December 2000 to the pre-
sent was not in the construction industry but he did have some
prior experience working with concrete from 1995 to 1999.
The application notes a number of laudatory references. He
was hired as a concrete laborer on May 15, at the hourly wage
of $13.
b. Mathew Young (GC Exh. 44)
Young filed his employment application on May 17, and
sought a concrete laborer position. His most recent experience
as a construction laborer took place between 1988 and 1994.
By letter dated May 22, Respondent notified Young that it did
not have any positions available but it would keep his applica-
tion on file, and notify him if an opportunity arose that suited
his skills. Respondent, on July 16, contacted Young to sched-
ule an interview and discuss desired wages as Young had pre-
viously indicated that he would discuss that issue on his earlier
filed application. Respondent, after the interview, hired Young
as a concrete laborer at the hourly wage of $14.
c. Alberto Vasquez (GC Exh. 46)
Vasquez filed his employment application on July 30, and
sought work as a carpenter, concrete or general laborer. His
application shows that his most recent experience for the last 3
years was not in the construction industry. Rather, Respon-
dent’s interview sheet indicates that while he lived and worked
in Mexico prior to 1998, he had some experience as a laborer
working with concrete. Respondent hired Vasquez as a con-
crete laborer earning $13 per hour.
d. Lori Brisbois (GC Exh. 47)
Brisbois filed her employment application on August 19, and
sought work as a general laborer. Brisbois’s application indi-
cates that she had no experience in construction, the majority of
her work history having been in the restaurant and ground
maintenance/landscape industries. Indeed, by letter dated Sep-
tember 5, Respondent rejected her application indicating that it
did not have any positions available as a general laborer.
Thereafter, on September 11, Respondent telephoned Brisbois
and left a message for her to call to schedule an interview.
When Respondent did not immediately hear from Brisbois, they
made a second attempt to reach her on September 16, to sched-
ule an interview. Brisbois was subsequently hired as a general
laborer at the hourly wage of $12.8

8 I note striking differences in the repeated attempts to reach Brisbois
in comparison to Schaefer.
e. Kerry Deal (GC Exh. 48)
Deal filed her employment application on August 26, and
sought work as a carpenter or laborer. Her application shows
that she had prior experience as a laborer in her most recent
position and excellent references at that employer in addition to
prior employers. Deal was hired as a carpenter laborer at $14
per hour.
f. Martin Ringelstetter (GC Exh. 50)
Ringelstetter filed his employment application on September
9, and sought work as a concrete laborer. His application
shows that he had previous concrete experience and received
excellent references from his prior employers. While he earned
in excess of $15 an hour at his prior position, Respondent
granted him an interview and offered him the position of con-
crete laborer which he accepted at $13 per hour.
g. Gerald Doyle (GC Exh. 51)
Doyle filed his employment application on September 12,
and sought either a concrete laborer or carpenter laborer posi-
tion. His application shows no experience in the construction
industry since September 2000, but prior to that time he did
work with concrete while building homes and garages in Puerto
Rico. Doyle was granted an interview and was hired as a con-
crete laborer at $12 per hour.
h. Adam Huff (GC Exh. 52)
Huff filed his employment application on September 13, and
sought a position working with concrete. His application
shows that he had prior experience working with concrete and
favorable references from his prior employers. Huff was
granted an interview and was hired on October 7, as a concrete
laborer at the hourly rate of $13 per hour.
i. Douglas Kennedy (GC Exh. 53)
Kennedy initially filed his employment application on May
24, and sought work as a carpenter laborer. His application
shows some experience in 2001 with framing buildings and
installing windows. The reference check produced good prior
employer references. By letter dated June 3, Respondent re-
jected his application stating that it was looking for candidates
with more experience for the projects that it presently had. The
letter did not state that it was keeping his application on file.
Thereafter on September 20, Kennedy contacted the Respon-
dent and requested that he be reconsidered for any carpenter
laborer positions that might be available. An interview was
scheduled for September 27, and Kennedy was offered a car-
penter laborer position at the hourly wage of $12.
j. Luis Medina (GC Exh. 54)
Medina filed his employment application September 30, and
sought a general laborer position. His application shows some
experience in construction working with concrete. By letter
dated October 1, Respondent rejected his application, stating
that they have filled their needs for any available positions.
Medina telephoned the Respondent on October 1, and asked to
be considered for a concrete position. By letter dated October
7, Respondent informed Medina that it has filled all present
needs for concrete laborers. By letter dated October 31, Re-
STEVENS CONSTRUCTION CORP. 149
spondent notified Medina that its hiring needs changed and they
were seeking several concrete laborers. An interview was
scheduled and Medina was hired as a concrete laborer at the
hourly wage of $12.
k. Russell LeFevre (GC Exh. 55)
Le Fevre filed his employment application on October 3, and
sought a concrete laborer position. His application shows prior
experience working with concrete. While one of his prior ref-
erences was favorable, the second reference indicated that he
left the employer twice with no warning. Respondent, never-
theless, scheduled an interview for October 22, and LeFevre
was hired on October 28, as a concrete laborer at the hourly
wage of $16.
l. Steve Weber (GC Exh. 57)
Weber filed his employment application on April 15, and
sought a concrete finisher position. His application shows that
he desired a wage rate in the range of $22 to $25 per hour. De-
spite seeking a wage rate outside Respondent’s initial pay scale
for a concrete finisher, unlike the union applicants, Weber was
granted an interview and hired as a concrete finisher II at the
hourly rate of $20.
m. Frederick Amacher (GC Exh. 59)
Amacher filed his employment application on July 22, and
sought a concrete finisher position. His application shows that
he desired a wage rate of $22 per hour. Despite seeking a wage
rate outside Respondent’s initial pay scale for a concrete fin-
isher, unlike the union applicants, Amacher was hired as a con-
crete finisher II at the hourly rate of $18.
n. Martin Holtan (GC Exh. 61)
Holtan filed his employment application on August 17, and
sought a concrete finisher I position. His application shows a
desired wage rate of $20 per hour and at his most recent em-
ployer he earned $22 per hour. Despite seeking a wage rate
outside Respondent’s initial pay scale for a concrete finisher I,
unlike the union applicants, Holtan was afforded an interview
on September 13, and hired as a concrete finisher I at the hourly
rate of $17.
o. Michael Powers (GC Exh. 62)
Powers filed his employment application on August 21, and
sought a concrete foreman or finisher position. His application
shows a desired wage rate of $23.50 per hour. Despite seeking
a wage rate outside Respondent’s initial pay scale for a con-
crete finisher II position, unlike the union applicants, Powers
was afforded an interview on August 26, and was hired as a
concrete finisher II at the hourly rate of $20.
p. Larry Blaisdell (GC Exh. 65)
Blaisdell filed his employment application on September 13,
and sought a concrete finisher position. He was offered an
interview, unlike the union applicants, and the notes from the
interview indicate that he was not a highly experienced finisher.
Despite this observation, Blaisdell was hired as a concrete fin-
isher I at the wage rate of $14 per hour.
q. Sean Blake (GC Exh. 66)
Blake filed his employment application on September 18,
and sought a concrete finisher position. His application shows
a desired wage rate of $18 to $20 per hour. Despite seeking a
wage rate outside Respondent’s initial pay scale for a concrete
finisher I position, unlike the union applicants, Blake was given
an interview on October 2, and was hired as a concrete finisher
at the hourly rate of $16. I also note that Blake’s application
contained a reference with the comment “Had a hard time get-
ting him to work” and he left without giving the former em-
ployer an explanation.
r. Alan Chase (GC Exh. 67)
Chase filed his employment application on October 28, and
sought a position working with concrete. While his application
shows that he had worked in the construction industry for 20
years and had an excellent background working with concrete,
there are no reference checks included in the packet. Indeed,
Chase was self-employed in his most recent position and the
Respondent consciously made it a practice of obtaining refer-
ences from clients that a self-employed person had worked for.
Contrary to past practice, and while routinely checking refer-
ences for similarly situated union applicants, Respondent hired
Chase as a concrete finisher I at the wage rate of $16 per hour.
3. Analysis
Applying the FES guidelines, discussed above, I find that
Cagle, Mathews, and Markgraf were eminently qualified to
perform the duties and responsibilities of the carpenter, con-
crete or general laborer positions for which they applied.
In comparing the treatment given to the union applicants
with those concrete laborer and concrete finishers hired by the
Respondent, I note glaring differences. For example, unlike the
union applicants that listed desired wages outside the Respon-
dent’s pay scale, nonunion applicants who did the same were
granted interviews and in most instances hired (Ringelstetter,
Weber, Amacher, Powers, Blake, and Holtan). Additionally,
unlike union applicants who were informed that their applica-
tions would be retained on file if positions became available
that suited their skills and never contacted, nonunion applicants
who were told the same thing were routinely contacted, granted
interviews and hired (Young, Brisbois, Kennedy, and Medina).
Likewise, nonunion applicants were contacted if they did not
initially respond to Respondent inquiries, while union appli-
cants were never given this opportunity (Young, Brisbois, Ken-
nedy, and Medina). Lastly, at least two of the nonunion appli-
cants that were hired (LeFevre and Blake) had questionable
references yet they were still given interviews and hired by the
Respondent.
Based on the forgoing, and noting above that the Respondent
exhibited union animus, I find that the three union applicants
were not hired solely because of their affiliation with the Un-
ion. In this regard, I find that each of the three union applicants
were eminently qualified for the positions that they applied for
and possessed superior qualifications to at least more than three
individuals hired by Respondent. Applying the Wright Line
guidelines, Respondent has not demonstrated that it would have
taken the same action even in the absence of the applicant’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD150
union activities. Thus, I find that the Respondent violated Sec-
tion 8(a)(1) and (3) of the Act when it refused to hire the three
union applicants alleged in paragraph 5 of the complaint. Con-
trary to the General Counsel, I do not find that the Respondent
refused to consider for hire the three applicants or excluded
them from the hiring process. In this regard, although the Re-
spondent did not hire the three individuals, they received and
logged in their applications along with other employee appli-
cants, reviewed them, and contacted one of the union applicants
to discuss salary demands. Under these circumstances, I rec-
ommend that the refusal to consider violations alleged by the
General Counsel be dismissed.
E. Affirmative Defenses
The Respondent has proffered a number of job applications
(R Exh. 11 through 37) to establish that it treated nonunion
applicants that were not hired identically to the union applicants
that were not hired. In this regard, Respondent argues that both
before and after the times that it did not hire the union carpenter
applicants or the laborer applicants, it applied the same hiring
criteria consistently. For example, nonunion applicants were
rejected when hiring needs did not warrant additional employ-
ees, their applications showed a lack of experience for the posi-
tions applied for, applicants desired a wage rate outside Re-
spondent’s initial pay scale, employee’s did not respond to e-
mail requests for additional information and reference checks
revealed undesirable traits or skills. While I agree that the
above noted applications stand for the propositions represented,
I am not convinced that it should be determinable in the subject
case. Rather, I find that the Respondent did not follow its hir-
ing guidelines when comparing the union applicants that were
rejected with the nonunion applicants that were hired. As noted
above, I find that the consideration received in evaluating both
sets of applications was strikingly different for those applicants
hired in comparison to the union applicants that were rejected.
For all of the above reasons, I find that the Respondent did
not hire the union applicants alleged in the complaint because
of their union affiliation.9

9 During the course of the hearing and after it had rested its case, the
General Counsel moved to amend the complaint to add the names of
union applicants Shawn Dressler and Dan Larson who filed applica-
tions on February 20 as additional individuals that the Respondent
refused to consider or hire because of their union affiliation. This re-
quest to amend the complaint was made after their applications were
introduced by Respondent and revealed they were union organizers in
the special skills and qualifications section (R Exh. 13 and 14). I re-
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6) and (7) of the Act.
2. The Unions are labor organizations within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act when Pro-
duction Manager James Ladika and Superintendent David
Mosel threatened employees because of their union affiliation.
4. Respondent violated Section 8(a)(1) and (3) of the Act
when it barred employee James Muir from returning to work,
denied him the opportunity to earn wages for the day, trans-
ferred him to another jobsite and disciplined him because of his
union activities. Respondent further violated Section 8(a)(1)
and (3) of the Act when it refused to hire Robert Hyatt, Darrell
LaBelle, John McGwin, David Parker, Cynthia Schaefer, Ed-
ward Steeb, Scott Watson, Kurt Wise, Steve Cagle, John
Mathews, and Karl Markgraf because of their union affiliation.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
I recommend that the Board issue a remedy requiring the in-
statement of the eleven above named employees together with
backpay and interest. Likewise, James Muir should be reim-
bursed for the wages he lost on February 15, 2002. I further
recommend that the Board order Respondent to offer the eleven
employees instatement to those or substantially equivalent jobs
without prejudice to their seniority or any other rights or privi-
leges. It should also order Respondent to make them whole for
lost earnings, if any, together with interest. Backpay should be
computed from the date they would have been hired less any
net interim earnings, as prescribed in F.W. Woolsworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]

jected the amendment since it occurred during the course of the hearing
and due process warranted that the Respondent have more time to pre-
pare for the amendment. Since at least one of the complaints in this
matter has been outstanding since 2001, and several postponements of
the litigation were granted, it was incumbent on the General Counsel to
have included those individuals in the complaint in a timely manner.
Under these circumstances, I renew my ruling and find that it was not
appropriate for the General Counsel to amend the complaint during the
course of the hearing and at a time after it had rested its case in chief.