Ultrasystems Western Constructors

National Labor Relations Board - Board Decisions

Feb 26, 1993

310 N.L.R.B. 545 (N.L.R.B. 1993)

545
310 NLRB No. 83
ULTRASYSTEMS WESTERN CONSTRUCTORS
1 The Respondent has requested oral argument. This request is de-
nied as the record, the exceptions, and the briefs adequately present
the issues and the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent has excepted to the judge’s finding that the 13
applications submitted at Rocklin on their face evidenced the union
background of the applicants. The Respondent contends, in effect,
that it did not treat the applications from union members disparately
from other applications, because it could not have determined from
the applications that they were from union adherents. We disagree
and find that the evidence of union background on the face of the
applications (i.e., the listing of prior union jobs, of union member-
ship, of pay at ‘‘[union] scale,’’ and of membership in union appren-
ticeship programs) clearly indicates the union background of these
applicants. Accordingly, we agree with the judge that the Respond-
ent knew that the applicants at issue had union backgrounds.
In addition, the Respondent has excepted to the judge’s factual
finding that UA Local 447 Business Agent Haley dropped off all 13
applications at Rocklin on August 10. We find merit in this excep-
tion because Haley himself testified that he dropped off eight appli-
cations on that date. Because it is uncontradicted that Local 447
members dropped off the other five applications in furtherance of the
Union’s organizing drive and, because, as shown above, these five
applications clearly evidenced union background as did the eight that
Haley dropped off, we find that this factual error does not affect the
judge’s analysis of the Respondent’s conduct after it received these
applications.
Finally, the Respondent excepts to the judge’s reliance on the al-
leged false date-stamping of Creeden’s application and on the lan-
guage in the Respondent’s contingency plan allegedly equating
‘‘source of infection’’ with union organizers. Because we find the
meaning of these indicia equivocal, we do not rely on them, but
agree with the judge, for the other reasons given by him, that the
Respondent harbored union animus. We also find equivocal as evi-
dence of animus the fact that Respondent’s personnel manager, Kil-
roy, did not send letters to nine ‘‘apparently’’ qualified welders at
Bakersfield. We agree with the judge, however, that animus can be
discerned from Kilroy’s ‘‘underhanded tactic[s]’’ in dealing with the
Bakersfield applications.
3 The Charging Party has excepted to the judge’s conclusion that
the Respondent violated Sec. 8(a)(3) by transferring employee Fred
Abbott to Coalinga on August 22, 1988 (the judge inadvertently stat-
ed ‘‘1991’’), without offering him the same opportunity to return to
Rocklin which it offered to certain other employees. The Charging
Party points out that this conclusion contradicts the judge’s own
finding that Abbott never went to Coalinga. We find merit in the
Charging Party’s exception. In this regard, we note that although the
judge stated that the contradiction between Abbott’s credited testi-
mony that he was never offered a job at Coalinga and a company
status report that indicated he was, ‘‘need not be resolved,’’ the
judge did in fact find that Abbott was ‘‘ROFed’’ from Rocklin and
that ‘‘he never went to Coalinga.’’ Because we agree with the judge
that the Respondent’s ‘‘device of ROFing’’ union adherents from
Rocklin was unlawfully motivated, we also agree with him that the
Respondent violated Sec. 8(a)(3) by ‘‘ROFing’’ Abbott from
Rocklin, regardless of whether it then offered him a transfer to
Coalinga as it had the other discriminatees.
4 The Respondent has excepted to the failure of the notice to con-
form to the Order. In this regard, the Respondent points out that the
judge included in the notice a provision that the Respondent notify
in writing discriminatee-applicants that future applications would be
considered in a nondiscriminatory manner, but omitted such a provi-
sion from his Order. We find merit in this exception and shall in-
clude such a provision in the Order consistent with the judge’s find-
ings and conclusions.
Additionally, the General Counsel has excepted to the judge’s in-
advertent omission of discriminatee Vern Cleveland’s name from the
‘‘make whole’’ provisions of the Order and notice. We find merit
in this exception and shall modify the Order and provide a new no-
tice accordingly.
Ultrasystems Western Constructors, Inc. and Inter-
national Brotherhood of Boilermakers, Iron
Shipbuilders, Blacksmiths, Forgers and Help-
ers, AFL–CIO. Cases 31–CA–17516, 31–CA–
17571, 31–CA–17906 (formerly 20–CA–22467),
and 31–CA–17907 (formerly 20–CA–22468)
February 26, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On April 26, 1991, Administrative Law Judge James
M. Kennedy issued the attached decision. The General
Counsel and the Charging Party filed exceptions and
supporting briefs and the Respondent1 filed exceptions
and a brief in support. Thereafter, the General Counsel
and the Charging Party filed briefs in opposition to the
Respondent’s exceptions, and the Respondent filed a
brief in opposition to the General Counsel’s and the
Charging Party’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 and to adopt the recommended Order as
modified4 and fully set out below.
1. This case presents the issue, inter alia, of whether
a paid union organizer is a bona fide applicant for em-
ployment and, if so, whether an employer violates Sec-
tion 8(a)(3) and (1) of the Act by refusing to consider
him for hire because of his union affiliation. The facts
are not in dispute. On August 22, 1988, William
Creeden submitted an employment application to the
Respondent at its Rocklin, California jobsite. Creeden
noted on the application that he was currently em-
ployed by the International Union as a full-time orga-
nizer. He also stated that he had sufficiently high
welding skills to warrant being tested. The Respondent
did not consider his application for employment. The
judge found that the only reason the Respondent re-
jected Creeden was because he was a union organizer.
The judge then found, in accordance with Board prece-
dent, that Creeden was a bona fide applicant for em-
ployment and that the Respondent violated Section
8(a)(3) and (1) of the Act by refusing to consider
546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 In Sunland, we also adopted the finding that the respondent there
did not violate Sec. 8(a)(3) and (1) by refusing to hire a professional
union organizer during a strike called by the union. In this regard,
we agreed with the judge that ‘‘an employer should not be required
during a strike to hire a paid organizer whose role is ‘inherently and
unmistakably inconsistent with employment behind a picket line.’’’
(Emphasis added.) We note that there is no strike involved in the
present case.
6 In holding that the Board should apply its traditional backpay and
reinstatement remedy to the construction industry, the Board major-
ity in Dean reasoned that:
although jobs in the construction industry are frequently of short
duration at a single project, that is not always the case. The in-
dustry is also composed, to some extent, of ‘‘permanent and sta-
ble’’ work forces. Further, in either case it is not unusual for
employers to carry over or request selected employees from job-
site to jobsite. Determination of whether an employee may have
been transferred or reassigned elsewhere is a factual question
and, as such, is best resolved by a factual inquiry at compliance.
Id. at 573–574 (footnotes omitted).
7 Those individuals shall include, but are not limited to, the 14 ap-
plicants at Rocklin and the 52 applicants at Bakersfield.
Creeden for hire ‘‘because of his union organizing pro-
pensities.’’
We recently reexamined the issue of whether profes-
sional union organizers are ‘‘employees’’ within the
meaning of Section 2(3) of the Act and, if so, whether
it violates the Act to refuse to hire a paid union orga-
nizer. See Sunland Construction Co., 309 NLRB 1224
(1992), and Town & Country Electric, 309 NLRB
1250 (1992). For the reasons set out in our extensive
analysis of the issue in those cases, we have decided
to adhere to Board precedent in this area of the law.5
Accordingly, we shall continue to find that paid union
organizers are employees within the meaning of Sec-
tion 2(3) of the Act and we agree with the judge, for
the reasons set out by him, that the Respondent vio-
lated Section 8(a)(3) and (1) by refusing to consider
Creeden for hire.
2. The Respondent has excepted to the judge’s find-
ing that it violated Section 8(a)(1) by disparately en-
forcing its no-solicitation/no-distribution rule. We find
merit in this exception. In finding the violation, the
judge relied on the fact that the Respondent permitted
employees to take up collections during worktime for
employees who had been injured on the job. As the
Respondent points out, however, evidence was pre-
sented regarding only one such employee solicitation
and in that instance Butters, the Respondent’s Rocklin
project manager, testified without contradiction that he
told the employee requesting permission to solicit that
the Respondent could not approve the solicitation and
that, if it were done, it would have to be done on the
employee’s own time and not on working time. Be-
cause the judge failed to make findings of fact as to
whether the solicitation was actually done on working
time and, if so, whether the Respondent knew of it, we
find that there is insufficient evidence to support a
finding that the Respondent disparately enforced its
no-solicitation/no-distribution rule. Consequently, we
shall dismiss this allegation of the complaint. We
agree, however, for the reasons stated by the judge,
with his conclusion that this rule was overbroad.
3. The General Counsel has excepted to the judge’s
failure to provide in the remedy portion of his decision
that the Respondent reinstate the employees who were
discharged or unlawfully laid off at Rocklin and to his
failure to provide that the Respondent offer employ-
ment to the applicants whom it unlawfully refused to
consider for hire. We find merit in this exception for
the following reasons.
As to the employee-discriminatees who were unlaw-
fully discharged from Rocklin, the judge, apparently
applying a presumption against reinstatement, found
that although reinstatement with backpay was the ap-
propriate remedy, an order requiring reinstatement of
the discriminatees would be ‘‘pointless’’ because the
job had ended. Consequently, the judge ordered the
Respondent to place the discriminatees on a pref-
erential hiring list and to offer each employment on a
nondiscriminatory basis when jobs came up for which
each was qualified. In Dean General Contractors, 285
NLRB 573 (1987), however, the Board specifically
considered and rejected any ‘‘precompliance presump-
tion against reinstatement in the construction indus-
try.’’6 Therefore, we agree with the General Counsel
that resolution of the Respondent’s backpay and rein-
statement obligations toward the employee-
discriminatees at Rocklin should be left to compliance.
As to the applicants whom the Respondent unlaw-
fully refused to consider for hire at Rocklin and Ba-
kersfield, the General Counsel contends, for the rea-
sons stated above, that the judge erred by not pro-
viding in his remedy that the Respondent offer them
employment in positions for which they applied, the
traditional remedy in the circumstances. For the rea-
sons stated above, we agree that the traditional remedy
is appropriate here. Consequently, we shall modify the
Order to provide that the Respondent offer employ-
ment to the applicant-discriminatees.7
ORDER
The National Labor Relations Board orders that the
Respondent, Ultrasystems Western Constructors, Inc.,
Rocklin and Bakersfield, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Engaging in surveillance or creating the impres-
sion of surveillance of employee union activity.
(b) Maintaining a no-distribution/no-solicitation rule
which forbids the distribution and solicitation of Sec-
tion 7 protected material anywhere on its construction
sites by employees during nonworktime.
(c) Threatening employees with loss of their jobs if
they do not withdraw their union authorization cards;
547ULTRASYSTEMS WESTERN CONSTRUCTORS
8 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
telling employees that it will be more cooperative with
respect to their future employment if they were to
abandon their interest in union representation.
(d) Telling employees that the job will shut down if
they select a union to represent them.
(e) Isolating employees because of their union ac-
tivities.
(f) Maintaining any hiring policy which screens job
applicants to uncover suspected union sympathizers
and refusing to consider applicants for employment
based on its conclusion that they are union sympa-
thizers.
(g) Transferring employees to other sites or dis-
charging them because of their union membership,
sympathies, or background.
(h) In any other manner interfering with, restraining,
or coercing its 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) Make whole all employee-applicants at Rocklin
and Bakersfield for any losses they may have suffered
by reason of the discriminatory refusal to consider
them for employment in the manner described in the
remedy section of this decision as modified. Offer all
employee-applicants at Rocklin and Bakersfield em-
ployment in the positions for which they applied, or if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges to which they would have
been entitled if they had not been discriminated against
by the Respondent.
(b) Make whole employees Fred Abbott, Jim Camp-
bell, Fenner LaCroix, Donald Cauble, Ronald Cauble,
and Vern Cleveland for any losses they may have suf-
fered by reason of the discrimination against them in
the manner described in the remedy section of this de-
cision. Further, offer the above-named employees im-
mediate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(c) Remove from its files any references to the dis-
charges of Fred Abbott, Jim Campbell, Fenner
LaCroix, Donald Cauble, Ronald Cauble, and Vern
Cleveland and notify them in writing that this has been
done and that evidence of this unlawful termination
will not be used as a basis for future personnel action
against them. Sterling Sugars, 261 NLRB 472 (1982).
(d) Notify in writing all those individuals who ap-
plied for employment at the Rocklin and Bakersfield
projects in 1988 and who were unlawfully denied em-
ployment that any future job applications will be con-
sidered in a nondiscriminatory manner.
(e) Preserve and, on request, make available to the
National Labor Relations Board or its agents, for ex-
amination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and
reports, and all other records necessary to effectuate
the backpay provisions of this Order.
(f) Post at its Rocklin and Bakersfield, California fa-
cilities copies of the attached notice marked ‘‘Appen-
dix.’’8 Copies of the notice, on forms provided by the
Regional Director for Region 31, after being duly
signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are custom-
arily 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
it is not feasible to post notices at those sites because
the Respondent is no longer present, the Respondent
shall mail notices to all the employees it employed at
those projects and shall post them at its current
projects.
(g) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not
specifically found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT engage in surveillance or create the
impression of surveillance of employee union activity.
548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten employees with loss of their
jobs if they do not withdraw their union authorization
cards; WE WILL NOT tell employees that we will be
more cooperative with respect to their future employ-
ment if they abandon their interest in union representa-
tion.
WE WILL NOT tell employees that the job will shut
down if they select a union to represent them.
WE WILL NOT maintain a no-distribution/no-solicita-
tion rule which forbids the distribution and solicitation
of Section 7 protected material anywhere on our con-
struction sites by employees during nonworktime.
WE WILL NOT isolate employees because of their
union activities.
WE WILL NOT maintain any hiring policy which
screens job applicants to uncover suspected union sym-
pathizers, and WE WILL NOT refuse to consider appli-
cants for employment based on our conclusion that
they are union sympathizers.
WE WILL NOT transfer employees to other sites or
discharge them because of their union membership,
sympathies, or background or their activities on behalf
of International Brotherhood of Boilermakers, Iron
Shipbuilders, Blacksmiths, Forgers and Helpers, AFL–
CIO or United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of
the United States and Canada, AFL–CIO or any other
union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make whole, together with interest, all em-
ployee-applicants at Rocklin and Bakersfield for any
losses they may have suffered by reason of our dis-
criminatory refusal to consider them for employment
in 1988, and WE WILL offer them employment in posi-
tions for which they applied, or if nonexistent, to sub-
stantially equivalent positions.
WE WILL make whole, together with interest, em-
ployees Fred Abbott, Jim Campbell, Fenner LaCroix,
Donald Cauble, Ronald Cauble, and Vern Cleveland
for any losses they may have suffered by reason of the
discrimination against them, and WE WILL offer the
above-named employees immediate and full reinstate-
ment to their former jobs, or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
WE WILL remove from our files any references to
the discharges of Fred Abbott, Jim Campbell, Fenner
LaCroix, Donald Cauble, Ronald Cauble, and Vern
Cleveland and notify them in writing that this has been
done and that evidence of this unlawful termination
will not be used as a basis for future personnel action
against them.
WE WILL notify in writing all those individuals who
applied for employment at our Rocklin and Bakersfield
projects in 1988 and who were unlawfully denied em-
ployment that any future job applications will be con-
sidered in a nondiscriminatory manner.
ULTRASYSTEMS WESTERN CONSTRUC-
TORS, INC.
Alice J. Garfield, for the General Counsel.
David S. Durham, Joseph P. Ryan, and Eric Grover (Littler,
Mendelson, Fastiff & Tichy), of San Francisco, California,
for the Respondent.
Michael J. Stapp (Blake & Uhlig), of Kansas City, Kansas,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried before me in Bakersfield and San Francisco, Cali-
fornia, on 13 trial days beginning January 30, 1990, and end-
ing on March 21, 1990, on complaints issued by the Re-
gional Directors for Regions 20 and 31 of the National Labor
Relations Board on March 29 and July 21, 1989. The com-
plaints are based on charges filed by International Brother-
hood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forg-
ers and Helpers, AFL–CIO (Charging Party or Boilermakers)
on January 30, and March 7, 1989 (some of which were sub-
sequently amended). On October 5, 1989, the Acting General
Counsel ordered the Region 20 cases transferred to Region
31 and consolidated them all into a single action. As consoli-
dated, they allege that Ultrasystems Western Constructors,
Inc. (Respondent) has committed certain violations of Section
8(a)(1) and (3) of the National Labor Relations Act.
Issues
The principal issue is whether Respondent has a policy of
denying employment to applicants who work as construction
industry boilermakers who are deemed likely to be sympa-
thetic either to the Charging Party or to a sister construction
union, the United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL–CIO (UA) and who would likely
seek to organize those of Respondent’s employees who per-
form that type of work. In addition, Respondent is accused
of discharging certain employees because of their member-
ship in or activities on behalf of the Boilermakers and is ac-
cused of engaging in unlawful surveillance of union activists;
threatening them with loss of employment or other reprisals;
maintaining an overly broad no-solicitation/no-distribution
rule; discriminatory enforcement of the rule; maintaining a
policy of terminating, isolating and transferring employees
who are believed to be union activists; imposing more oner-
ous terms and conditions of employment by barring employ-
ees from the Rocklin parking lot during their lunchbreak in
order to prevent them from engaging in lawful discussion of
unions and promising future benefits (i.e., employment) to
individuals to induce them to refrain from cooperating with
the Union.
549ULTRASYSTEMS WESTERN CONSTRUCTORS
1 All dates are 1988 unless stated otherwise.
2 At Rocklin, the complaint alleges the following 13 employee-ap-
plicants were unlawfully screened:
Earl Athey, Jr.; Gregg Baker; Dennis Bertacchi; Richard
Bertacchi; Terry Cuffe; Art Schmidt; Larry Gladden; Dale
Gritzmacher; Larry Grubbs; Elton Hart; Roy Jones; Richard
Mott; Aldino Sani, and others whose names are not known.
The complaint also alleges that Respondent unlawfully refused to
consider for employment a 14th person, Bill Creeden, the Inter-
national organizer.
3 Respondent maintained an office in the city of Bakersfield from
which it managed both the Jasmine and Poso sites.
4 As demonstrated throughout this proceeding, a so-called tube
welder is a certified welder skilled in welding 2-inch or smaller pip-
ing with the tungsten inert gas technique (TIG). Welders having this
Continued
I. JURISDICTION
Respondent admits it is, and has been at all material times,
a California corporation headquartered in Irvine, California,
but nationally engaged in the construction of power plants
and related piping, electrical work, and boiler construction,
and during the course and conduct of its business operations
it annually purchases and receives goods and services valued
in excess of $50,000 directly from suppliers located outside
California. Accordingly, it admits it is an employer engaged
in commerce and in a business affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits the Union is now and has been at all
material times, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
Respondent is a large contractor which builds both for
itself and for other project owners certain types of industrial
plants including steam-generated electric power plants. In
19881 it had among its active projects, the construction of
several such plants in California. Three of these are brought
under scrutiny by these consolidated complaints. The first, in
sequence, was the one located in Rocklin. The second and
third (which will be referred to as the second because of
their close proximity and the fact that they were built simul-
taneously under the direction of one individual) were near
Bakersfield. Separately they were known as the Poso and
Jasmine plants. As will be seen, it is unnecessary to distin-
guish between the two. Both the Rocklin and Bakersfield
projects ended in 1989.
Respondent is a member of the Associated Builders and
Contractors (ABC) and regards itself as ‘‘merit’’ shop; its
employees are not represented by any labor organization. Be-
cause of its size, and because its projects are widespread, it
has become an organizing target of the Boilermakers. That
labor union assigned two International representatives to at-
tempt to organize Respondent. The first was Tony
Yakemowicz, who was subsequently succeeded by Bill
Creeden. The International organizers were aware of the
Rocklin project and contacted the UA Local in Sacramento
to seek to coordinate an organizing drive by the two unions.
They jointly determined the best way to do that was to au-
thorize union members to seek employment at the site and
create a committee consisting of their own onsite members
to try to organize the nonunion craftsmen which Respondent
already employed. They obtained copies of Respondent’s ap-
plication forms and had UA and Boilermaker members fill
them out and submit them. This happened for approximately
14 individuals at Rocklin in August.2 The same tactic was
used by the Boilermakers Local in Los Angeles in November
when Creeden submitted approximately 50 applications to
Respondent’s Bakersfield office.3
Yakemowicz also learned that Jerry Newsom had become
Respondent’s boiler superintendent at Rocklin. He knew
Newsom personally and knew him to be a former Boiler-
maker member. In fact, Newsom has been in the
boilermaking industry for over 25 years but has not recently
been associated with the unionized portion of the industry.
Respondent hired him from QPI, another nonunion industrial
contractor where he had served as personnel manager.
Through that employment Newsom had come to know Re-
spondent’s personnel manager John Kilroy. In February, Kil-
roy had hired Newsom to be the boiler superintendent at
Rocklin.
In July, Yakemowicz asked Newsom if he would meet
with him, and Newsom did so. A week or so later,
Yakemowicz introduced Newsom to Creeden, who became
Yakemowicz’ successor in this organizing effort, as
Yakemowicz was being sent to other duties. These meetings
are not described in intimate detail but both Newsom and
Creeden agree that the union officials informed Newsom
they intended to organize Respondent’s boilermakers; they
asked him if he was opposed. Newsom replied that he would
not get in their way. They asked him if he would document
any misconduct Respondent might commit. Newsom agreed
to do that, but there is no evidence he offered to or actively
engaged in any organizing himself.
Even so, Respondent argues that Newsom was a super-
visory union spy and/or organizer planted in the facility by
the Union. Respondent also strongly argues that Newsom’s
testimony was false, based upon what it perceives to be a
bias caused when Respondent discharged Newsom’s son,
Willie, from the Bakersfield job in November. Respondent
wishes to turn this entire proceeding into a credibility con-
flict between Newsom and his assistant Larry Oliphant, the
boiler general foreman, on the one side and Respondent’s
management on the other. Indeed, there is reason to think
that these credibility questions must be resolved. Yet, a close
analysis of the facts demonstrates that Respondent’s own
witnesses and documents either tend to corroborate Newsom
and Oliphant and its management witnesses have serious
credibility problems of their own. To the extent that this mat-
ter has been distilled to a swearing contest between
Newsom/Oliphant and Respondent’s management, in general
terms I find in favor of Newsom/Oliphant. There may be
areas of their testimony which is not corroborated, but so
much of it is that the issue of Newsom’s alleged bias be-
comes inconsequential. Probably the most compelling evi-
dence is the testimony of Respondent’s other managers as
well as the job progress reports which consistently show that
Respondent was having a difficult time finding qualified
‘‘tube welders’’4 throughout the lives of both projects. In the
550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
skill are often known as Heliarc welders (after a trade name), TIG
welders or simply tube welders. These individuals must weld the
smaller diameter pipes utilized in high-pressure applications such as
the pressurized steam tubes needed to operate the turbine. Such
welders are commonly obligated, as they were here, to pass an on-
site welding test. Respondent’s own project notes constantly refer to
the fact that such welders were in short supply and that the pass rate
on the test was extremely low. Furthermore, in Bakersfield, at any
rate, in appears that there were two similar projects being con-
structed simultaneously by a competitor. The competitor also re-
quired tube welders thereby further reducing Respondent’s ability to
obtain welders of that skill level.
5 The piping department also overlapped the boiler.
6 In both Rocklin and Bakersfield Respondent sought to hire only
unskilled labor from local sources, particularly the state unemploy-
ment office.
7 There are few, if any, construction industry apprenticeship pro-
grams oper ated without the co-sponsorship of one of the AFL–CIO
construction unions. However, that background might be a plus if a
once-apprenticed individual has left the union behind, for his skills
would be good, but his interest in the Union would be low.
face of all this evidence Respondent unconvincingly argues
that both projects were not in a ‘‘hiring mood’’ at the time
the applications were presented, but were, instead, in a layoff
mode.
B. Jerry Newsom at Rocklin
In late 1987, Newsom was approached by Kilroy who
eventually offered Newsom the boiler superintendent’s job at
Rocklin. The two actually visited the site on February 8 and
met with Project Manager Bill Butters. At that time, accord-
ing to Newsom, but denied by Butters, Butters told Newsom
he was aware that there was union organizing in the area and
the Boilermakers Union was particularly active. He told
Newsom that the Company did not wish any union people
on the job. He then asked Newsom about his personal ‘‘fol-
lowing.’’ A following is a group of individuals who ‘‘fol-
low’’ experienced managerial personnel from job to job
around the country. It is undisputed that employers such as
Respondent who are nonunion, and without access to union
hiring halls, find followings essential to their ability to per-
form the work. Kilroy hired Newsom, in part, because
Newsom asserted that he had a reasonably substantial fol-
lowing of employees. Butters was interested in the size of
Newsom’s following.
It appears that one of the advantages of a following is,
particularly if the employer is nonunion, that its members are
a known quantity insofar as skills are concerned and are also
known to be uninterested in union representation. Newsom
says that Butters was particularly partial to the fact that
Newsom’s following was, like Newsom, from the South, par-
ticularly Louisiana. According to Newsom, whether it is ob-
jectively true or not, Butters held the belief that followings
from the deep South are less likely to be interested in union
representation. Newsom says Butters approved of the loca-
tions from where Newsom’s following came.
After their discussion, Butters agreed to put Newsom in
charge of the boiler at Rocklin and introduced him to the
other superintendents. These included Dickey Dukes, head of
the structural iron group; Bruce Hasty, superintendent over
the piping department; Ed Cummings, superintendent of elec-
trical; and John Wilson, the head engineer.
According to Newsom, on February 15, the date Butters
actually accepted him, Butters told him that Respondent’s in-
ternal organization differed from other companies in that Re-
spondent had created a so-called iron department. Under the
auspices of this single department were individuals who per-
formed both structural steel erection as well as mechanical
work related to the boiler. The boiler not only contains a
combustor, a vessel, and related exhaust ventilation, it also
requires the assembly of an enormous amount of pipe. Ac-
cording to Newsom, Butters told him that Respondent had
merged these two normally separate divisions as a device to
elude union organizing.5
Newsom also hired Larry Oliphant to be his general fore-
man. Oliphant was part of Newsom’s own following but had
a following of his own. According to Newsom, Butters was
quite satisfied with this, as approximately 65 percent of the
crew came from Newsom’s following and the other 35 per-
cent came from the followings of individuals such as Oli-
phant.
Newsom testified that Butters and he had several con-
versations with respect to Newsom’s authority to hire. Dur-
ing these conversations Butters told Newsom to ‘‘stay away
from’’ local area individuals because they would make the
Company more vulnerable to union organizing whereas per-
sons who came from the followings would not;6 if one is
from the South, he said, they were more likely to return to
the South after the job is over, satisfied with the wages.
Newsom says Butters told him to screen the applications in
circumstances where applicants were unknown and look for
a union background or indicia of a union background. These
included a wage comparison (Respondent and its nonunion
competitors generally pay craftsmen about $14.50 per hour,
whereas union scale is significantly higher, in the $l7–$22
range), active/recent union membership, apprenticeship back-
ground,7 and the names of known unionized previous em-
ployers. According to Newsom, Butters told him to file ap-
plications which came from such individuals in a separate
file folder.
Butters denies this testimony saying Respondent was a
‘‘merit shop’’ and that union considerations were not a con-
cern. He specifically denies ever directing Newsom to per-
form any screening such as Newsom has described and says
no separate files were maintained. Both he and Kilroy (as
well as Bakersfield Project Manager Bill Massey) say Re-
spondent’s hiring processes are neutral with respect to union
membership. However, that neutrality seems to be com-
promised by its own conduct and by the fact that Respondent
maintains a so-called contingency plan which gives specific
directions to management with respect to how to respond to
a union organizing campaign. The contingency plan even re-
fers to union organizers as a ‘‘source of infection’’ and rec-
ommends that any employee organizers discovered on the
job be removed from contact with other employees. Accord-
ingly, Respondent’s officials’ claim of neutrality must be dis-
counted.
C. Union Organizing at Rocklin
The Boilermakers had collected 13 applications from var-
ious of its members and UA members who worked out of
the either the Sacramento or Marysville UA locals. On Au-
gust 10, UA Representative Bill Haley delivered those appli-
cations to the guard at the Rocklin jobsite. After the guard
551ULTRASYSTEMS WESTERN CONSTRUCTORS
delivered them to Butters, Butters told some of his super-
intendents that he had received a group of applications from
union men. He told the superintendents not to touch them,
saying that he would take care of them after talking with Kil-
roy. Pipe Superintendent Bruce Hasty, who was very familiar
with the application files maintained in the company office
at the jobsite, said he had never seen those applications until
they were shown to him while testifying. The General Coun-
sel observes, correctly, that this is direct evidence of Butters’
separating those files from the others and consequent screen-
ing of applicants. Each of these applications, together with
some others, show the applicant to be either a union member
or to have other union background. They were also shown
to be sufficiently skilled welders who would warrant being
hired or at least being offered the welder’s test. Yet Hasty
says he never even saw those applications. Since he was
looking to hire pipefitters and/or welders, the removal of
these applications from his view suggests that Newsom’s tes-
timony is correct, that someone in Respondent’s office was
segregating the applicants’ files deemed to show excessive
union connection. Hasty never had the opportunity to offer
employment to any of these 13 and those who had claimed
welding skills were not given the chance to demonstrate their
ability.
As noted, Butters had told Newsom not to hire individuals
with excessive union background. Early in July, Newsom
wanted to hire Fred Abbott, a boilermaker-fitter. Because
Newsom knew Abbott’s abilities and wanted him on the job,
and also knew Abbott had an extensive union background,
he wanted to avoid Butters’ veto. Accordingly, he made sure
that Abbott, on his application form, lowered his previous
wage rates to suggest nonunion employment and suggested
Abbott not mention that he was an active member of the UA
local in nearby Marysville. Instead, Abbott wrote that he was
former member of a Boilermakers local. Abbott was hired
and classified as an ‘‘ironworker.’’ Similarly, operating at the
behest of either Yakemowicz or Creeden, the Cauble brothers
and Vern Cleveland were hired as ‘‘ironworkers’’ after omit-
ting information about their current membership in UA
locals.
On August 16, according to Newsom, he learned from an
employee, not organizer Creeden, that the Union was going
to conduct an organizing meeting at a pizza parlour in nearby
Roseville. He reported the scheduled meeting to Butters.
That evening the meeting was conducted by Creeden and two
UA representatives, Bill Haley and Jimmy Thompson. Re-
spondent’s employees who attended the meeting were Ab-
bott, Vern Cleveland, Alex Wells, Ron and Don Cauble (who
are twins), Jim Campbell, Fenner ‘‘Catfish’’ LaCroix, and
others. Creeden and the other two union officials solicited
authorization cards from these individuals and asked them to
handbill and distribute material, as well as talk to coworkers.
The material which they distributed included a standard array
of union pen holders, stickers, and buttons.
On the following day, August l7, Butters told Newsom he
had learned LaCroix had attended the meeting and demanded
that Newsom discharge him. Butters also instructed Newsom
to continue to talk to the employees about the meeting to
find out more about their union sympathies. Newsom does
not appear to have done this, because before he could,
Creeden sent Butters a mailgram officially announcing the
organizing activity and listing the names of individuals who
had agreed to be on the organizing committee. These were
Abbott, Wells, Vern Cleveland, and Don Cauble. Butters im-
mediately telefaxed a copy of the mailgram to Kilroy at com-
pany headquarters, simultaneously telling Newsom:
These sons-of-bitches, I want them off this job, and
I want them off now. I want them isolated. Get them
out of—get them away from the rest of the crew. Do
whatever you got to do to keep them from gathering up
. . . .
A second meeting was held at the pizza parlour that night.
Creeden distributed additional union organizing material. In
addition, plans were made to leaflet the location where the
dirt road to the jobsite met the county paved road. Beginning
August 18, shortly after 6 a.m., Creeden, supported by addi-
tional organizers from the UA, approached employees as
they drove into the site. They held up signs and spoke to em-
ployees asking them to take the flyers. Also, Abbott, Vern
Cleveland, both Caubles, Jim Campbell, and LaCroix distrib-
uted Boilermakers literature to others near the company of-
fice, a location known as the brass alley.
Later that morning, on Butters’ instructions, those individ-
uals whom Creeden had announced as being members of the
organizing committee and those wearing union insignia were
removed from their work on the boiler and sent approxi-
mately 150 yards away to work on the prefabricated smoke-
stack which was lying horizontally in the laydown yard.
These were Don Cauble, Vern Cleveland, Jeff Cleveland,
Campbell, Wells, Scott Alsop, Mark Faulk, Stan Burger,
Marvin Husser, Louis Meyers, and LaCroix.
According to Newsom, but denied by Butters, the con-
struction schedule did not call for any work on the stack. In-
deed, the stack was not actually erected until October or No-
vember. Moreover, of the individuals who were assigned to
the stack, Cauble, Cleveland, Campbell, and Wells were tube
welders. It appears not only from the testimony of Newsom
and Oliphant, but that of Respondent’s Massey (from Bakers-
field), that the welding involved on the stack can be ade-
quately performed by plate welders. A plate welder generally
welds nontubular material. Butters said the reason he chose
tube welders to weld on the stack was because it was a very
important weld involving the lifting trunnions requiring a
‘‘full penetration weld.’’ He wanted to be assured that the
trunnions would be strong enough to hold those portions of
the stack when they were later erected by crane.
Butters’ testimony is most suspect here. First, it appears
from the testimony of Creeden, also a long-time welder and
who testified as an expert, that all welds, except tack welds,
are ‘‘full penetration.’’ Thus, to Creeden, the phrase ‘‘full
penetration’’ means nothing. This testimony stands unop-
posed, even though Respondent had its own expert, Ralph
Weloy, the quality control chief, available to testify.
Therefore, Butters’ explanation that the more highly
skilled tube welders were required on the stack job is not
credited. Instead, it seems more likely that Butters wanted
these individuals to be removed from the boiler proper as
part of the standing contingency plan to isolate union activ-
ists, thereby removing the ‘‘source of infection.’’ Newsom’s
testimony is to that effect and he is corroborated by Oli-
phant.
552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Coalinga is located roughly 200 miles southwest of Rocklin in
a remote area in the west central San Joaquin Valley at the base of
the Diablo Range.
9 Abbott denies that he distributed any union organizing material
during worktime.
Within 2 days, Butters instituted some additional proce-
dures to protect Respondent. According to Newsom, all fu-
ture hires were to be made through Hasty’s pipe department
and subject to Butters’ or Kilroy’s approval. Furthermore,
one of Respondent’s other projects located in Coalinga had
a need for some sort of certified welders. It is not clear on
the record exactly what skills were needed there, but a re-
quest had been made by the Coalinga superintendent through
Kilroy to try to locate additional welders.8 Newsom says
Butters told him to send several individuals from his depart-
ment to Coalinga, and that certain of those individuals would
be brought back to Rocklin. These were several members of
the DeWitt family (including Bobby Burroughs) as well as
Abbott, Vern Cleveland, and Campbell, all members of the
organizing committee. They were all to be carried on the
books as ‘‘ROFs’’ (reductions of force). However, a side ar-
rangement was made to bring back the DeWitts and Bur-
roughs; they were to be rehired through Hasty’s pipe depart-
ment. In September that is what happened. Instead of being
assigned directly to Hasty in the pipe department, they were
returned to Newsom’s supervision. Campbell and Cleveland
went to Coalinga and worked for a period; then they were
ROFed. Abbott stayed 2 more days at Rocklin; he never
went to Coalinga. He was ROFed at Rocklin. Abbott
credibly testified that he was never offered a job at Coalinga;
a company status report says he was. For our purposes, the
matter need not be resolved.
Butters denies responsibility for this incident. He says he
simply told Newsom to select whomever he wanted to go to
Coalinga. However, his testimony cannot be credited due to
the mutually corroborating testimony of Newsom and Oli-
phant as well as the strange handling of the DeWitts and
Burroughs, as contrasted with the selection of Abbott and the
nonreturn of Cleveland and Campbell. All these individuals
were tube welders and Respondent needed them. There was
no business justification for giving some individuals a secret
right to return to Rocklin while not giving that same right
to others whose skills were equal. The only difference be-
tween these employees was that Cleveland and Campbell (as
well as Abbott) had been listed on Creeden’s telegram as
being members of the union organizing committee. Again,
this treatment is consistent with Respondent’s desire to iso-
late and get rid of the union organizers.
D. August 22, 1988, at Rocklin
On Monday, August 22, union organizer Creeden decided
to deliver a job application on his own behalf. He had pre-
viously filled it out on August 16 and had so dated it. On
August 22, he gave it to a guard for delivery to the office.
Structural Iron Superintendent Dickey Dukes later took it to
the office where it eventually ended up in Butters’ hands.
Sometime after Respondent had possession of it, it was false-
ly stamped as having been received on August 16, the date
Creeden had signed it; but Butters admits receiving it on Au-
gust 22. Creeden had noted he was currently employed by
the International Union as a full-time organizer. He also stat-
ed that he had sufficiently high welding skills to warrant
being tested. Butters, together with the rest of the supervisory
staff were stunned by Creeden’s nerve in filing such an ap-
plication. Although some have attempted to deny it, there is
much testimony that they all had a good laugh over it. But-
ters says he immediately telephoned Kilroy in Irvine to ad-
vise him of Creeden’s tactic. He says Kilroy asked that the
application be telefaxed to him immediately; Butters did so.
This is quite strange testimony, for Kilroy says he already
was in Rocklin on August 22.
Butters also advised Newsom, Oliphant, and the other su-
perintendents to tell their crews that the heretofore laxly en-
forced rule against eating lunches in cars was now to be
strictly enforced. Both Newsom and Oliphant testified they
told their men, pursuant to those instructions, that they could
no longer sit in their parked vehicles or leave the jobsite at
lunchtime unless they had company permission. Butters told
Newsom to tell the employees that they were subject to ter-
mination if they did not withdraw their union authorization
cards and to remind them that if they did, Respondent would
cooperate with them with respect to calling them for future
work. Newsom says he carried out those instructions.
In addition, on a tour around the site, Butters admits he
observed Abbott on a break giving material to another em-
ployee. He told Abbott that distribution of this material
breached Respondent’s no-solicitation rule. Butters does not
say that the material was union related.9
The no-solicitation rule itself, found in General Counsel’s
Exhibit 6, states:
Soliciting or distributing literature on company property
is prohibited during working hours.
The rule is also posted at Respondent’s entrance gate. Re-
spondent does not seriously dispute the fact that the no-
solicitation/no-distribution rule is overly broad and unlawful
on its face. Our Way, Inc., 268 NLRB 394 (1983); Essex
International, 211 NLRB 749 (1974); Stoddard-Quirk Mfg.
Co., 138 NLRB 615 (1962). Neither does it seriously dispute
the fact that Abbott had the right to distribute union literature
to another individual while on his break. Furthermore, it is
clear that Respondent permitted solicitation of other types,
including collections for workers injured on the job, and that
those collections occurred during working time. Therefore,
the evidence is clear that even had it been lawful, Respond-
ent disparately enforced the no-solicitation, no-distribution
rule. Funk Mfg. Co., 301 NLRB 111, 112 (1991); Imco Con-
tainer Co., 208 NLRB 874 (1974).
Also on August 22, according to LaCroix, Butters made
some sort of special effort to observe him at work. He de-
scribed it as ‘‘bird dogging.’’ Butters denies making any un-
usual effort to oversee either Abbott’s or LaCroix’s work,
saying he probably saw everyone work at one time or an-
other as he made his routine rounds of the job. He says that
he has no specific recollection of observing LaCroix and, ex-
cept for the incident involving the distribution of some pa-
pers, he has no recollection of watching Abbott’s work ei-
ther.
The problem with Butters’ testimony is that as soon as
union organizing actually commenced, he began a personal
surveillance of the entire situation. He directed Cost and
Scheduling Manager Elmer Wilson to take photographs of
553ULTRASYSTEMS WESTERN CONSTRUCTORS
10 Massey had not worked in California before.
11 Respondent attacks Thistle’s credibility saying his testimony
was bought and paid for. It argues that Thistle gave his testimony
after having arranged for the reinstatement of his Boilermakers re-
tirement plan. Respondent overstates the situation. It appears true
that Thistle has since reinstated his union membership, but unless the
Union is violating Federal pension plan laws, Thistle was always en-
titled to his pension plan, at least to the extent that it had become
vested. If a union official, such as Creeden, agreed to check into
Thistle’s entitlement under the plan, he was doing no more than pro-
viding information which Thistle could have obtained directly from
the plan. If Creeden was able to persuade Thistle to give testimony
it was not because of anything Thistle gained from the Union or the
pension plan, it was because Creeden had persuaded him to come
forth and describe what had happened. Creeden certainly did not,
based on Thistle’s testimony, buy favorable testimony.
12 Creeden and Brooks turned in the applications of the 50 em-
ployees named in the complaint. They are:
Scott N. Abad William H. Immken
John W. Anderson Joe J. Iverson
Gary L. Ardery William H. Lee
Continued
the individuals who were picketing and distributing union lit-
erature at the access road entrance. He accompanied Wilson
on these photographic surveillances and also sat in a car a
few feet away from the location where the literature was
being given out. This gave him a good view of each em-
ployee taking literature and which employees were partici-
pating in the distribution. His curiosity about the employees’
union activity was intense, even extending to copying auto
license numbers. Accordingly, I am unable to credit Butters’
testimony denying that he gave neither Abbott nor LaCroix
any special attention. Their names had been listed on
Creeden’s telegram as union organizing committee members
and they clearly had attracted Butters’ notice. His contention
that he didn’t even know who LaCroix was is not worthy of
belief.
On September 7, both Ron and Don Cauble, together with
LaCroix, distributed union literature before work at the time
gate. According to Newsom, that morning Butters told him
to get rid of them. Later that afternoon, Newsom ROFed
both Don Cauble and LaCroix. Newsom said he did not ROF
Ron Cauble because he assumed that if one brother was laid
off, the other would quit. However, Ron Cauble did not quit;
two days later he was ROFed as well.
E. Bakersfield
As noted previously, Respondent’s need for tube welders
in Bakersfield was even greater than in Rocklin. It had two
projects underway and was competing directly with other
contractors building similar projects nearby. Respondent’s
project manager at Bakersfield during the time in question
was Greg Bland; the boiler superintendent was Bill Massey.
Massey and Bland had worked together for a number of
years at a large nonunion contractor headquartered in Texas,
Brown & Root.10 Massey was known to have a large fol-
lowing, also from Texas and Louisiana. He had even brought
along his own general foreman, Gene Witt. In October, while
the Rocklin project was still underway and the boiler depart-
ment there was still being run by Newsom, Bland and
Massey complained to Kilroy that they were having a great
deal of difficulty manning the Bakersfield projects. Kilroy
knew the Rocklin job was beginning to wind down and
thought it might be appropriate to bring Newsom to Bakers-
field in the hope that his following would move there as
well. Accordingly, Kilroy asked Newsom to come to Bakers-
field and meet with both men. Newsom did so in early No-
vember. According to Newsom, one of the principal topics
they discussed was the organizing campaign which had taken
place in Rocklin. With Massey present, Bland told Newsom
that it would be necessary to carefully screen all the applica-
tions to avoid a repeat of the problem which had occurred
at Rocklin. Newsom agreed to do so. He says both he and
Massey already knew what the screening procedures would
be.
In late November, after a short vacation, Newsom began
to work at Bakersfield. Both Massey and Newsom had the
responsibility to hire workmen to perform the boiler tasks.
They are in agreement that it was quite difficult to man these
jobs with qualified tube welders who had no significant
union background. According to Newsom, Massey told him
he could hire some individuals with union backgrounds if
they altered their applications to give the false impression
that they had little or none.
Indeed, Charles Thistle, a longtime Heliarc welder and
former Boilermaker Union member, gave Massey an applica-
tion on November 29. Massey told Thistle that although his
application demonstrated that he possessed the skills nec-
essary to perform the job, he was not allowed to hire anyone
who had a union background. He told Thistle if he would
fill out a new application, change the names of his past em-
ployers and lower the wages shown, Massey would consider
hiring him. Massey went so far as to suggest to Thistle that
he list specific nonunion contractors. He also told Thistle that
he already had several union members working on the job
who had agreed not to cause any trouble. According to This-
tle, Massey told him that if the job were to go union, Re-
spondent would shut it down. On the following day, Thistle
brought in an altered application (G.C. Exh. 7). He took the
welding test, passed and was hired.11
Earlier that year, approximately simultaneous with the or-
ganizing at Rocklin, Creeden had enlisted the aid of Boiler-
makers Local 92 in Los Angeles in his effort to organize Re-
spondent. To this end he had gotten Local 92 officials, spe-
cifically Business Agent and Vice President Henry Brooks,
to solicit Local 92’s members to fill out Respondent’s job
application forms. Approximately 50 such applications were
filled out during the late summer.
In December, through employees such as Thistle and oth-
ers, Creeden learned that Respondent was seeking to hire in-
dividuals having the skills normally found in journeymen
boilermakers. Those skills include rigging, fitting, and var-
ious levels of welding, including tube welding. This, of
course, was exactly what Creeden was looking for. On De-
cember 9, Creeden and Brooks went to Respondent’s Bakers-
field office. Creeden asked the woman who greeted them
whether Respondent was hiring. She asked what type of
work he did; he said he was a ‘‘mechanic,’’ i.e. a welder.
She replied Respondent was hiring welders, to which
Creeden responded, ‘‘Well, good, because I got fifty applica-
tions here for you of qualified Boilermakers,’’ handing her
the stack of applications. Brooks then handed her his busi-
ness card and said if Respondent needed any qualified weld-
ers to please give him a call.12
554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Kenneth L. Barker Benjamin B. Lujan
Mark S. Brinkley Sam Magana
Michael L. Burnham Michael L. Main
Andrew Chavez Douglas J. Mandy
Charles L. Colbert Alvin H. Manning
Tom K. Dalluge SS # 570–48–0082
Wayne E. DeYoung Alvin H. Manning
Clifford S. Dillard SS # 527–25–8712
Dennis P. Dorsey Arlen G. Miller
Dale E. Douvia Earl F. Milligan
Luis J. Duran Frank S. Nunez
James S. Durbin Steven K. Ramsey
Larry D. Evans Juan C. Rodriguez
David M. Flanders Lynn H. Ruse
Daniel Gonzales Francisco Saenz
Jonathan W. Greenwood Ronald L. Sloniker
Lloyd B. Haines Gregory W. Smith
Mark V. Harney William D. Talburt
Gary W. Hatcher Charles Taylor
Bobbie L. Holmes Ward P. Tinney II
Danny D. Hutchings Lloyd A. Watkins
Donald L. Hutchings Anthony C. Yoder
Norman A. Immenschuh Floyd R. Young
In addition, two other members of Boilermakers Local 92 filed ap-
plications independently. They were Robert Slim and Chris Ells-
worth. Their names were added to the complaint during the hearing.
13 Respondent’s officials contend that those 50 were ‘‘stale’’ be-
cause they were over 2 months old. They say in the construction in-
dustry applications that old are not worth pursuing as the individuals
have probably found other work. I permitted the General Counsel to
call only a few of the 50. They testified, in essence, that they would
have gone to work for Respondent at Bakersfield. I barred the re-
mainder as cumulative. I do not regard the applications as ‘‘stale.’’
Bland admitted that the applications were given to him
and agreed each of the applications showed a strong union
background. This concerned him and he immediately tele-
phoned Kilroy in Irvine to inform him what had happened.
As at Rocklin, Creeden also on that day sent telegrams to
Respondent notifying it that Respondent was organizing Ba-
kersfield.
On Monday, December 12, Kilroy came to Bakersfield to
review the situation. He says he was only there to conduct
a ‘‘mini’’ labor relations seminar among the supervisors.
Nonetheless, he took the 50 applications back with him to
Irvine. Bland had earlier told him he was dire need of tube
welders and the job reports confirm it; yet Kilroy took the
decision-making process away from the Bakersfield hierarchy
at this point. Neither Bland nor Massey was permitted to
make any decisions about hiring any of the 50.
Kilroy waited a month before he did anything about those
applications. He then sent letters to 18. He explained he had
carefully reviewed the applications for tube welders and had
sent letters to the 18 he believed qualified. Curiously, he
omitted nine clearly qualified welders, none of whom were
sent letters. Two other members of the Boilermakers Union
(Slim and Ellsworth) turned in applications independently;
Kilroy sent letters to them as well. Kilroy said in the letter’s
conclusion, ‘‘Upon receipt of the requested information, and
if in fact you have tube welding experience, arrangements
will be made for your welding test.’’ Each letter was accom-
panied by a second copy with a note for the applicant to mail
the copy back with his response at the bottom.
As the General Counsel observes, this was hardly a re-
quest for qualified individuals to come in for a tube welding
test. Instead, consistent with the 30-day delay responding to
the filing of the applications, this stratagem added additional
delay. Such a tactic, in the face of a crying need for tube
welders, seems designed to discourage applicants rather than
acquire them. Thus, although Kilroy testified his purpose in
taking the 50 applications with him to Irvine was to give
them better treatment than they might otherwise have re-
ceived because they were ‘‘stale,’’13 I regard it as sophisti-
cated dissemblance. His conduct is quite inconsistent with his
testimony.
Of the four applicants who did file responses to the letter,
a Bakersfield official supposedly made phone calls to the
telephone numbers which they gave. In three cases the offi-
cial reported inability to reach the individual, supposedly be-
cause messages were unreturned, telephones were discon-
nected or there was no answer. The fourth, Magana, was
supposedly scheduled for a welding test but did not report.
None of this testimony is direct but is taken from notes writ-
ten on the application forms. The upshot of all this is that
none of the 18 (plus 2) or of the 50 (52) individuals was
hired. In addition, Kilroy flatly ignored nine others who were
arguably tube welders.
IV. ANALYSIS AND CONCLUSIONS
It is well settled that it is a violation of Section 8(a)(3)
of the Act to refuse to hire an individual for employment if
that refusal is based upon the applicant’s union membership
or union activity. Phelps Dodge Corp. v. NLRB, 313 U.S.
177 (1941). Moreover, the Board has held that the Act im-
poses upon each employer the duty to consider each request
for employment in a lawful, nondiscriminatory manner.
Shawnee Industries, 140 NLRB 1451, 1452–1453 (1963),
enf. denied on other grounds 333 F.2d 221 (10th Cir. 1969);
See also Alexander’s Restaurant, 228 NLRB 165 (1977);
KRI Constructors, 290 NLRB 802 (1988).
I conclude that the evidence is clear that Respondent has
in place an unlawful policy designed to screen from employ-
ment individuals whom it deems, rightly or wrongly, to be
likely to engage in union activity. Moreover, although the
practice of hiring from ‘‘followings’’ is not unlawful in
itself, it is evidence of an affirmative preference for individ-
uals known to be both competent and to be free of any union
connection. Its other directives regarding how to respond to
union organizing drives clearly evidences union animus.
Some of it is subtle; some is not. The portion of its contin-
gency plan referring to union organizers as an ‘‘infection’’
certainly suggests that unionism is a disease to be wiped out.
Furthermore, the no-solicitation/no-distribution rule enforced
at Rocklin clearly violated Section 8(a)(1); it was
discriminatorily enforced as well. Not only was it unlawful
on its face, for it prohibited union activity during non-
working time, it was enforced against a known union adher-
ent, Abbott, while not enforced against individuals soliciting
on matters not related to union organizing.
Furthermore, at Rocklin there were numerous incidents of
coercion designed to either discourage union activity, ferret
out or isolate those who engaged in such activity. Its surveil-
lance at the access road and its barring employees from eat-
ing in their cars did not have an innocent purpose. Neither
did Butters’ ‘‘bird dogging’’ Abbott and LaCroix nor did the
threats of discharge if the employees did not withdraw their
555ULTRASYSTEMS WESTERN CONSTRUCTORS
14 John Triplett, Steve Auman, and Doug York.
15 Iowa Beef Packers, 144 NLRB 615 (1963).
16 KRI Constructors, 290 NLRB 802, 813 (1988); Apex Ven-
tilating, 186 NLRB 534 fn. 1 (1970).
authorization cards and the followup carrot of future ‘‘co-
operation’’ in employment upon their doing so. And, at Ba-
kersfield, Massey told Thistle that the job would be shut
down if it went union.
Moreover, Respondent’s deceit in handling the union-con-
nected applications at Rocklin and the false date stamp af-
fixed to Creeden’s application must also be considered evi-
dence of animus. Honest motives need not be concealed.
At Bakersfield, Respondent’s manner of dealing with the
50 or 52 applicants who came from the Union also dem-
onstrates animus. It did not treat these individuals in the
same fashion that its own policy says it should. Respondent
operates what is known a ‘‘merit shop,’’ which in theory
treats all job applicants fairly, based solely on their abilities.
That did not happen. Instead, Kilroy took the applications
away from the individuals who normally make hiring deci-
sions. He then performed his own selection process, stalling
for 30 days before taking only meager action. Kilroy clearly
was hoping to let the storm blow over. That is hardly evi-
dence that Respondent was carefully evaluating each appli-
cant’s skills; instead it was an invidious way of avoiding
those applicants altogether. Animus can be discerned from
that underhanded tactic.
And, at Rocklin the device of ROFing individuals to send
them to Coalinga and then on their way does not bear close
scrutiny. If it was nondiscriminatory, given the need for
skilled welders, Respondent would have permitted the union
activists to return in the same fashion as it did the DeWitts
and Burroughs. I conclude that this action was only a decep-
tion designed to rid itself of union activists at Rocklin.
The element of knowledge is present for each and every
alleged discriminatee whether at Rocklin or at Bakersfield. In
both cases the union advised Respondent that union orga-
nizing was underway and, in Rocklin, named the individuals
were who comprised the organizing committee. Furthermore,
Butters, supported by Wilson, was engaged in continuous
surveillance at the access road. It is quite clear that he knew
who the individuals were who were the most likely to sup-
port the union. All of the elements of unlawful screening
have been proven and Respondent’s efforts to rebut are inef-
fective. This policy violates Section 8(a)(1) and (3) and af-
fected the 13 Rocklin applicants and the 52 Bakersfield ap-
plicants. I also conclude that Respondent violated Section
8(a)(1) and (3) with respect to the individuals sent to
Coalinga who were not offered a return to Rocklin.
The complaint, as amended at the hearing, alleges that
Floyd DeWitt, David DeWitt, and Bobby Burroughs (the
DeWitt Family) were unlawfully discriminated against in the
same sense as Vern Cleveland, Fred Abbott, and Jim Camp-
bell since they were in the group sent to Coalinga. I am un-
able to agree. There is no evidence that they were being mis-
treated in being sent to Coalinga.
It is true that the selection of the union committee mem-
bers as candidates for Coalinga was discriminatory and it is
equally true that the DeWitts were included in order to cam-
ouflage that illegal purpose. Even so, the DeWitts were pro-
vided the right to return to Rocklin and did so. They were
not the victims of any unlawful plot against them. They were
only unharmed pawns in a scheme to get rid of union orga-
nizers. Therefore, I cannot find them to have been discrimi-
nated against. In a very real sense they volunteered for duty
in Coalinga. They do not even appear to have known that
they were being used as camouflage, nor is there evidence
that any other employee knew it.
The complaint also alleges that Respondent violated Sec-
tion 8(a)(3) and (1) by its refusal to hire Creeden. Creeden,
of course, was a full-time organizer for the Boilermakers
International Union. He filed an application at Rocklin for
the specific purpose of seeing how Respondent would deal
with it. As expected, Respondent rejected the application,
and as with the rank and file applicants, I have no difficulty
in finding that Creeden was rejected because he was a union
organizer and for no other reason. Respondent’s explanation
that it did not hire individuals who already had full-time em-
ployment is pure nonsense. Respondent even made a deal in
late August with another nonunion company, QPI, to send its
full-time employees (who were tube welders14) to Rocklin
for a while. Nonetheless, there is the obvious question re-
garding whether Creeden was a bona fide applicant for em-
ployment. While I am not convinced that he was, Board law
appears to require that I conclude otherwise. H. B. Zachry
Co., 289 NLRB 838 (1988), enf. denied 886 F.2d 70 (4th
Cir. 1989). In reviewing Zachry, I think that the court deci-
sion finding the professional organizer there not to be a bona
fide employment applicant, makes a great deal of sense.
However, I am bound to follow Board law15 which holds in
this instance that such an individual is a bona fide applicant
for employment. I do think it is clear that Creeden possesses
more than sufficient welding skills to have least warranted
being tested; yet Respondent never gave him that chance. It
is certainly conceivable that if hired he would have, as he
testified, attempted to perform the work required and en-
gaged in union organizing only during times when permitted.
In that sense, I cannot say the Board’s Zachry rule to be
without reason. Accordingly, I find that Creeden was a bona
fide applicant for employment who was discriminated against
when Respondent denied him the opportunity to seek em-
ployment because of his union organizing propensities. That
decision violated Section 8(a)(3) and (1).
V. THE REMEDY
Having found that Respondent has engaged in certain vio-
lations of Section 8(a)(1) and (3) of the Act, it will be or-
dered to cease and desist therefrom. In addition, it shall be
ordered to take certain affirmative action, including reinstate-
ment and backpay for those individuals who were discharged
or unlawfully laid off from Rocklin. Because the jobs ended
in 1989, an order requiring reinstatement of these employees
would be pointless. Nonetheless, Respondent shall be di-
rected to place each of these individuals on a preferential hir-
ing list and advise each in writing that he is being so treated;
further, Respondent shall offer each employment on a non-
discriminatory basis when jobs come up for which each is
qualified. It shall also include an order requiring Respondent
to pay backpay to those individuals, determined in a compli-
ance proceeding,16 to have been denied employment at either
Rocklin or Bakersfield because of their union background.
Those individuals shall include, but are not limited to, the 14
applicants at Rocklin and the 52 applicants at Bakersfield.
556 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Should any individual be entitled to backpay, it shall be cal-
culated in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), interest shall be computed in accordance with
New Horizons for the Retarded, 283 NLRB 1173 (1987).
CONCLUSIONS OF LAW
1. Respondent Ultrasystems Western Constructors, Inc., is
an employer engaged in commerce and in an industry affect-
ing commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. International Brotherhood of Boilermakers, Iron Ship-
builders, Blacksmiths, Forgers and Helpers, AFL–CIO and
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, AFL–CIO, are labor organizations within the mean-
ing of Section 2(5) of the Act.
3. On August 18, 19, and 22 and September 1 and 2,
1988, Respondent acting through Butters, and Elmer Wilson
engaged in surveillance and created the impression of sur-
veillance of employee union activity in violation of Section
8(a)(1) of the Act.
4. Respondent has violated Section 8(a)(1) of the Act by
maintaining a no-distribution/no-solicitation rule which for-
bids the distribution and solicitation of Section 7 protected
material anywhere on its construction sites by employees
during nonwork time.
5. During August 1988, Respondent violated Section
8(a)(1) by maintaining and enforcing the no-distribution/no-
solicitation rule in a disparate manner when it prohibited
union-related solicitation and distribution while simulta-
neously permitting solicitation not related to union activity.
6. Respondent violated Section 8(a)(1) of the Act by iso-
lating employees because of their union activities.
7. Respondent violated Section 8(a)(1) of the Act on the
dates set forth in the decision when it threatened employees
with loss of their jobs if they did not withdraw their union
authorization cards; it also violated that same section when
Newsom, acting upon Butters’ directive, told employees that
Respondent would be more cooperative with respect to their
future employment if they would abandon their interest in
union representation.
8. On November 29, 1988, Respondent, acting through
Massey violated Section 8(a)(1) of the Act when he told an
employee that the job would shut down if the employees se-
lected a union to represent them.
9. At all times material Respondent has violated Section
8(a)(3) and (1) of the Act by maintaining a hiring policy
which through a pattern and practice screens job applicants
to uncover suspected union sympathizers and by refusing to
consider any applicant for employment based on its conclu-
sion that he is likely to be a union sympathizer.
10. By transferring on August 22, 1991, employees Fred
Abbott, Jim Campbell, and Vern Cleveland to Coalinga with-
out offering them the same opportunity to return to Rocklin
which was given to the DeWitts and Burroughs, Respondent
violated Section 8(a)(3) and (1) of the Act.
11. On September 7, 1988, Respondent violated Section
8(a)(3) and (1) of the Act by discharging Ronald Cauble and
Fenner LaCroix; and on September 9 Respondent violated
Section 8(a)(3) and (1) of the Act by discharging Donald
Cauble.
12. Respondent did not commit any other violations of the
Act.
[Recommended Order omitted from publication.]