Center Service System Division

National Labor Relations Board - Board Decisions

Aug 27, 2005

345 N.L.R.B. 729 (N.L.R.B. 2005)

CENTER SERVICE SYSTEM DIVISION
345 NLRB No. 45
729
Center Construction Company, Inc. d/b/a Center
Service System Division and Local 370, United
Association of Journeyman and Apprentices of
the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL–CIO. Cases 7–
CA–46490, 7–CA–46696, and 7–CA–46697
August 27, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On September, 21, 2004, Administrative Law Judge
Joseph Gontram issued the attached decision. The Gen-
eral Counsel and the Respondent filed exceptions and
supporting briefs. The General Counsel and the Charg-
ing Party filed answering briefs, and the Respondent
filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions2 as modified and to adopt the rec-
ommended Order as modified below.3
The judge found that the Respondent committed sev-
eral unfair labor practices. We unanimously agree with
the judge that the Respondent violated Section 8(a)(1) by
threatening employees for honoring a picket line,4 sur-
veilling picket line activity, interrogating applicant David
Lawrence during a job interview,5 promulgating and en-

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 There are no exceptions to the judge’s dismissal of the complaint
allegation that the Respondent, by its president and owner, Robert
Eagleson, violated Sec. 8(a)(1) by telling employee Wayne Rose that
following prior unsuccessful union organizing drives, he “eventually
got rid of the [useless] sons of bitches.” Chairman Battista and Mem-
ber Schaumber find it unnecessary to rely on this statement as evidence
of antiunion animus. Member Liebman, however, does rely on the
statement for this purpose.
3 The order is modified to clarify the Respondent’s remedial obliga-
tions for its unlawful refusal to consider or hire the discriminatees. See
Tri-County Paving, Inc., 342 NLRB 1213, 1213 (2004).
4 In finding that the Respondent violated Sec. 8(a)(1) by threatening
employees with discipline for honoring a picket line, Chairman Battista
and Member Schaumber do not rely upon the judge’s finding that the
Respondent threatened its employees by directing them to return all
company property to work on August 7, 2003. In this same context,
Member Liebman does not rely on the judge’s alternative balancing
analysis in the penultimate paragraph of sec. III,A,2 of the judge’s
decision.
5 In finding that the Respondent violated Sec. 8(a)(1) by coercively
interrogating applicant David Lawrence during a job interview, Chair-
man Battista and Member Schaumber agree that the questioning was
forcing an unlawful rule prohibiting employees from
wearing clothing displaying the Union’s insignia and
interrogating employees about their union sympathies.
Likewise, we unanimously agree with the judge that the
Respondent violated Section 8(a)(1) and (3) by refusing
to consider and hire union members for available
plumber positions, and by discharging employee Wayne
Rose.6 We further agree with the judge’s recommenda-
tion that the Respondent be ordered to bargain with the
Union pursuant to NLRB v. Gissel Packing Co., 395 U.S.
575 (1969). As set forth below, a majority of the Board7
agrees with the judge that the Respondent violated Sec-
tion 8(a)(1) by soliciting grievances from Rose. A sepa-
rate majority8 reverses the judge’s finding that the Re-
spondent violated Section 8(a)(1) by threatening adverse
employment actions, including termination, if the Union
was selected to represent the plumbers.
Solicitation of Grievances
Members Liebman and Schaumber agree with the
judge that the Respondent violated Section 8(a)(1) by
soliciting grievances from employee Wayne Rose and
impliedly promising to remedy them. In August 2003,
shortly after the union organizing drive commenced, Su-
pervisor Matt Welsh told employee Wayne Rose on a
payday that he had to pick up his paycheck from the Re-
spondent’s president and owner, Robert Eagleson. Rose
complied, and during the ensuing meeting, which lasted

coercive considering all relevant circumstances. They find it unneces-
sary to pass on the judge’s finding that the questioning was inherently
coercive.
6 Member Schaumber points out that under the Board’s Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. de-
nied 455 U.S. 989 (1982), analysis the General Counsel must prove by
a preponderance of the evidence that antiunion animus (i.e., Sec. 7
animus) was a substantial or motivating factor in an employer’s adverse
employment action. It was with this understanding that the Supreme
Court approved Wright Line as “at least permissible” under the Act.
NLRB v. Transportation Management Corp., 462 U.S. 393, 401 (1983)
(“As we understand the Board’s decisions, they have consistently held
that the unfair labor practice consists of a discharge or other adverse
action that is based in whole or in part on anti-union animus—or as the
Board now puts it, that the employee’s protected conduct was a sub-
stantial or motivating factor in the adverse action. The General Coun-
sel has the burden of proving these elements under Section 10(c).”) 462
U.S. at 399. Consistent therewith, the Board, administrative law
judges, and circuit courts of appeals have sometimes specifically de-
lineated as a fourth element of the General Counsel’s initial burden of
proof under Wright Line proof of a causal nexus. A causal nexus is also
required under the Board’s FES, 331 NLRB 9 (2000), analyses, which
applies a similar causation test. The judge in this case did not identify
proof of a causal nexus as a separate element of the General Counsel’s
case either under Wright Line or FES. While Member Schaumber
agrees with the judge’s findings and conclusions, he believes identify-
ing causal nexus as a separate element under Wright Line and FES is
preferable lest the burden of proof on this issue be misplaced.
7 Members Liebman and Schaumber.
8 Chairman Battista and Member Schaumber.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD730
about 45 minutes, Eagleson spoke about the history of
the Company and Local 370’s organizing efforts, telling
Rose that prior union organizing efforts had been unsuc-
cessful, and that “he eventually got rid of the [useless]
sons of bitches.” Rose then asked if Eagleson considered
him useless, and Eagleson replied, “No, I hear you’re a
good one.”9
Eagleson also asked Rose if he had any questions or
concerns about his job. Rose, whose testimony was gen-
erally credited by the judge, additionally testified that he
told Eagleson that he was not receiving health insurance.
Eagleson responded that it was a big company “and
sometimes things fall through the cracks.” Rose testified
that, as he left the office, Eagleson told him, “If you have
any problems with this company, I’m the president . . .
you need to discuss these with me.”
The meeting was unusual, because Rose had never
been instructed to pick up his paycheck directly from the
company president, and had not previously spoken to
Eagleson or attended a meeting in his office. Indeed,
prior to the Union’s organizing drive, the Respondent
required unrepresented employees to first approach their
immediate supervisor with grievances, which were not to
be presented to Eagleson unless their immediate supervi-
sor failed to resolve them.
The Board has long held that, in the absence of a pre-
vious practice of doing so, the solicitation of grievances
by an employer during an organizational campaign vio-
lates the Act when the employer promises to remedy
those grievances. See, e.g., Uarco, Inc., 216 NLRB 1, 2
(1974). The solicitation of grievances alone is not
unlawful, but it raises an inference that the employer is
promising to remedy the grievances. This inference is
particularly compelling when, during a union organiza-
tional campaign, an employer that has not previously had
a practice of soliciting employee grievances institutes
such a practice. Amptech, Inc., 342 NLRB 1131, 1136–
1138 (2004). While an employer who has had a past
practice and policy of soliciting grievances may continue
to do so during an organizational campaign, an employer
cannot rely on past practice if it “significantly alters its
past manner and methods of solicitation during the cam-
paign.” House of Raeford Farms, 308 NLRB 568, 569
(1992), enfd. mem. 7 F.3d 223 (4th Cir. 1993), cert. de-
nied 511 U.S. 1030 (1994).
Applying these principles, we find, in agreement with
the judge, that Eagleson, by directing that Rose bring
grievances directly to him, solicited grievances from

9 Eagleson did not deny making this remark. Instead, he testified
that he was not sure whether or not he had asked Rose about his interest
in the Plumbers Union. Eagleson’s testimony about the August meet-
ing was generally discredited by the judge.
Rose and impliedly promised to remedy them. The di-
rective and the manner in which it was conveyed repre-
sented a significant change from the Respondent’s prior
policy requiring employees to first present grievances to
their immediate supervisor. House of Raeford Farms,
supra, 308 NLRB at 569 (requirement that employees
attend frequent grievance meetings was significant
change from preorganizing campaign policy of holding
infrequent meetings at which attendance was voluntary).
The significance of the change is highlighted by the fact
that Eagleson had never spoken with Rose prior to the
solicitation of grievances at issue here, much less dis-
cussed grievances with him. At the mid-August meeting,
in contrast, Eagleson asked Rose if he had any questions
or concerns about his job and responded to Rose’s com-
plaint about not receiving health insurance by telling him
that he should receive it. In these circumstances, we
agree with the judge that the Respondent violated Section
8(a)(1) by soliciting grievances and impliedly promising
to remedy them. See also Avondale Industries, 329
NLRB 1064, 1101–1102 (1999) (superintendent unlaw-
fully solicited grievances by telling employees to advise
their supervisor of safety problems and come to him if
supervisors did not take action and that he was there to
solve problems).
The dissent relies on Eagleson’s version of the August
meeting, which was generally discredited by the judge, in
arguing that Eagleson’s comment was not unlawful. In
doing so, the dissent focuses on each aspect of the Au-
gust meeting in isolation. For example, the dissent cor-
rectly observes that it would not have been unlawful,
without more, for Eagleson to meet one-on-one with an
employee or to remind employees that he was the ulti-
mate authority.10 This is particularly true if such conduct
was the norm prior to any organizing activity. Here,
however, Rose had never met with or discussed work-
place concerns with Eagleson. Then, shortly after the
commencement of the campaign, he was directed to the
company president’s office to retrieve his paycheck, an
unprecedented event; engaged in a 45-minute conversa-

10 In support for this latter proposition, the dissent cites Suburban
Journals of Greater St. Louis, 343 NLRB 157 (2004). There, the Board
found that the employer did not engage in objectionable conduct by
holding one-on-one meetings with unit employees during which bene-
fits for represented and unrepresented employees were compared. In
the circumstances of that case, the Board found that the comparison did
not amount to a promise that the represented employees would receive
improved benefits if they voted to decertify the union. The case is
inapposite as the issue here is whether Eagleson solicited grievances
and impliedly promised to remedy them during the August meeting.
Member Liebman did not participate in Suburban Journals of Greater
St. Louis, supra, and she expresses no view here as to whether it was
correctly decided. She agrees with Member Schaumber nonetheless
that it is inapposite here.
CENTER SERVICE SYSTEM DIVISION 731
tion with the Company’s highest executive, with whom
he had never before spoken; was questioned about his
workplace concerns; and was told that he should be re-
ceiving the insurance benefits about which he com-
plained. Eagleson told Rose that if Rose had any prob-
lems “you need to discuss these with me.” In these cir-
cumstances, we are satisfied that Eagleson’s directive
represented a significant change in existing practice.11
Alleged Threat of Adverse Employment Actions
Contrary to the judge, Chairman Battista and Member
Schaumber find that the Respondent did not violate Sec-
tion 8(a)(1) when Eagleson told Patrick Ruddy, the Sheet
Metal Workers union’s steward, “If we let the Plumbers
come in here, it is going to take three or four of your
men’s positions. Who would [you] like to get rid of
here?” The judge found the violation applying the stan-
dard enunciated in NLRB v. Gissel Packing Co., 395 U.S.
575, 618 (1969), for deciding whether an employer’s
statement represents an unlawful threat of reprisal or
represents a lawful prediction of the consequences of
unionization . . . carefully phrased on the basis of objec-
tive fact to convey an employer’s belief as to demonstra-
bly probable consequences beyond his control.” Here,
Eagleson’s statement to the Sheet Metal Workers union
shop steward represented his understanding of the collec-
tive-bargaining agreement that the Plumbers Union
wanted the Respondent to sign. In expressing his opin-
ion, he repeatedly quoted from the agreement and made
it clear that he was relying upon the language of the pro-
posed agreement as the basis for his opinion.
Furthermore, Eagleson’s statements did not contain
any threat of reprisal by the Respondent. He did not state
that the Respondent itself would take any unilateral ac-
tion to eliminate jobs but pointed out what he believed
the Plumbers Union would seek to do. See, e.g., Hamp-
ton Inn, 309 NLRB 942, 943 (1992). Moreover, the Re-
spondent and the Sheet Metal Workers Union have had a
collective-bargaining relationship for over 20 years. In
that context, Eagleson’s opinion could not have been
reasonably understood as implicitly threatening that the
Respondent would eliminate any jobs solely on its own
initiative. Indeed, it is clear that Ruddy did not under-

11 Contrary to our dissenting colleague’s implication, we have not
found that Eagleson’s statement to Rose that he should be receiving
health insurance was independently an unlawful promise of benefits.
Instead, we rely on the solicitation of grievances which preceded and
elicited Rose’s complaint about health insurance, in addition to the
other evidence cited above, in finding this violation.
We give no weight to Eagleson’s testimony, cited by the dissent, that
he told Rose to see the Respondent’s office manager about his health
insurance. As discussed above, that testimony was not credited by the
judge, who generally did not credit Eagleson’s testimony concerning
the August meeting.
stand them as a threat but merely Eagleson’s opinion.
Accordingly, we shall dismiss this 8(a)(1) allegation.
Our dissenting colleague contends that Eagleson’s
statements to Ruddy fail to meet either part of the Gissel
standard for a lawful prediction. She says that the Re-
spondent did not offer objective evidence justifying its
“prediction,” nor did it show that the probable conse-
quences were beyond its control. We disagree.
The Board has frequently quoted the language of Gis-
sel describing what an employer may lawfully say about
the consequences of unionization:
[A]n employer is free to communicate to his employees
any of his general views about unionism or any of his
specific views about a particular union, so long as the
communications do not contain a “threat of reprisal or
force or promise of benefit.” He may even make a pre-
diction as to the precise effects he believes unionization
will have on his company. In such a case, however, the
prediction must be carefully phrased on the basis of ob-
jective fact to convey an employer’s belief as to de-
monstrably probable consequences beyond his control
or to convey a management decision already arrived at
to close the plant in case of unionization (citation omit-
ted). [NLRB v. Gissel Packing Co., 395 U.S. at 618.]
This language is followed by sentences which are par-
ticularly apt in the instant case:
If there is any implication that an employer may or may
not take action solely on his own initiative for reasons
unrelated to economic necessities and known only to
him, the statement is no longer a reasonable prediction
based on available facts but a threat of retaliation based
on misrepresentation and coercion, and as such without
the protection of the First Amendment. Id.
Thus, under Gissel, a prediction constitutes an unlaw-
ful threat of retaliation “if” the employer says or implies
that it may take action at his own initiative. If the action
is to be solely at the employer’s initiative, the prediction
is no longer reasonably based on “available facts.”
Contrary to our colleague’s contention, the Respondent
made it clear that it would be acting in response to a
Plumbers Union’s initiative if it eliminated Sheet Metal
Workers’ jobs. And, the Respondent did offer objective
evidence based on available facts for its opinion that the
Plumbers would seek Sheet Metal Workers’ jobs if suc-
cessful in organizing the Respondent’s plumbers.12 As

12 Our dissenting colleague argues that the record contains nothing
about the substance of Eagleson’s explanations. Ruddy, however,
specifically testified that Eagleson read from the Plumbers Union’s
contract and offered his opinion based upon that reading. Logically, it
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD732
Ruddy testified, Eagleson read parts of the Plumbers
Union’s contract to him, “explaining what he thought it
meant.”13 Ruddy agreed that Eagleson offered him the
contract to look at and urged him to read it so that he
could see for himself what it said. Ruddy described a
second meeting as a “redo of the same things” with
Eagleson, again opining about “what the [Plumbers] con-
tract meant to him [Eagleson]” and “trying to impress on
me the point that the Plumbers were going to take our
jobs.” In sum, the Respondent made a “reasonable pre-
diction” about the potential for the Plumbers Union to
claim jobs, “based on available facts.” See Crown Cork
& Seal Co., 36 F. 3d 1130, 1141 (D.C. Cir. 1994).
Our dissenting colleague further contends that our de-
cision is contrary to the Board’s decisions in Systems
West LLC, 342 NLRB 851 (2004), and Schaumberg
Hyundai, Inc., 318 NLRB 449 (1995). We disagree.
In Systems West LLC, supra, the employer told em-
ployees that if they unionized they would not be able to
work outside the Yakima, Washington area because the
employer “couldn’t foresee paying the extra cost to take
them to a jobsite out of the area when I could hire people
locally and not have to pay the extra cost.” The Board
found that this statement was unlawful because it was not
based on objective fact. Rather, the basis for the predic-
tion was an incorrect assumption that local unions in
other areas would want their own members working on
local projects. A second statement predicted that the
employees would not qualify as journeymen and that the
employer would find it hard to justify paying them jour-
neyman’s wages when more experienced workers could
be obtained from the hiring hall. Again, the employer
offered no evidence to the listening employees justifying
these predictions. The Board also found that both state-
ments predicted adverse consequences which, on their
face, indicated that the employer would of its own voli-
tion inflict adverse consequences on its employees if they
chose union representation.
For the first time at the hearing, the employer sought to
justify the statements based on provisions of a master
labor agreement introduced into evidence at the hearing,
which obligated signatory employers to first employ in-
dividuals dispatched from union hiring halls. The Board

follows that the substance of Eagleson’s explanation was the text of the
contract and his interpretation thereof.
13 Our colleague asserts that Eagleson never acknowledged meeting
with Ruddy. We fail to see the import of this assertion since he was
never asked about a meeting with Ruddy nor did he ever deny meeting
with him. She also asserts that he denied saying anything to anyone
about a reduction in the number of Sheet Metal Worker-represented
employees if the Union were selected. We understand his testimony to
be a denial of the alleged threat that he, or the Respondent, would re-
taliate by reducing Sheet Metal Worker-represented employees.
rejected the employer’s defense for a number of reasons
that distinguish that case from the present one. First, the
master labor agreement was a post hoc justification. The
employer neither informed his listeners nor testified at
the hearing that the statements were based on the terms
of the agreement. In contrast, Eagleson repeatedly
sought to justify and explain his position based on the
proposed Plumbers Union’s contract, quoted it, referred
to it, and offered to let Ruddy read it for himself. Sec-
ond, the master labor agreement was an expired agree-
ment for an adjacent territory that did not apply to the
area where the employer operated. Eagleson, on the
other hand, relied on provisions of a proposed agreement
presented to the Respondent by the Plumbers Union for
the Respondent to sign.
Our dissenting colleague notes that the Board in Sys-
tems West LLC, supra, additionally found no merit in the
employer’s reliance on the expired master labor agree-
ment because it “ignored the reality that such provisions
are neither inevitable nor immutable, but are merely
terms that may result from collective bargaining, and,
thus, are at least partly within the [employer’s] control.”
342 NLRB 851, 852 (emphasis in original). This state-
ment has no application here because the employer in
Systems West LLC did not rely on the expired master
labor agreement as a basis for its predictions which, on
their face, stated that the employer would impose adverse
consequences of its own volition. The Respondent here,
having been presented with a proposed agreement by the
Plumbers, had every right to make predictions, based on
objective fact, concerning the consequences adoption of
that agreement would have on employees represented by
the Sheet Metal Workers. To hold otherwise would ef-
fectively impose a blanket gag rule prohibiting any
comment by an employer on the consequences of agree-
ments proposed to it. This we decline to do.14
Schaumburg Hyundai, Inc., supra, is also distinguish-
able. There, the Board found that the employer failed to
provide objective evidence that its employees would suf-
fer more onerous working conditions if they were cov-
ered by the union’s standard contract when it merely
waved the contract at employees during a meeting, and
failed to introduce the contract as evidence at the hearing
or to otherwise document its claims. Moreover, there
was no evidence in that case regarding the bargaining
position the union would take if negotiations occurred. In

14 We observe that in Systems West LLC, the Board cited uncontra-
dicted testimony by a union organizer that the union did not require
employers to sign its standard agreement as a further basis for rejecting
the employer’s asserted reliance on it. The case is distinguishable for
this reason as well, because no evidence of that character was presented
in this case.
CENTER SERVICE SYSTEM DIVISION 733
contrast, the Respondent here cited and read from the
proposed agreement presented to it by the Plumbers Un-
ion and introduced it into evidence at the hearing.15
Our dissenting colleague asserts that the Respondent
had control of the work assignment and that Ruddy
“would reasonably realize that” and “would interpret
[Eagleson’s] comments as threats of retaliation.” Ruddy,
the only employee allegedly threatened, did not testify
that Eagleson threatened him. In his testimony, Ruddy
repeatedly acknowledged that what he heard was just
Eagleson’s opinion. The entire tenor of Ruddy’s testi-
mony is clearly that of Eagleson repeatedly telling him
his interpretation of the Plumbers’ contract and Ruddy
simply not buying into it. We do not disagree that the
test under Section 8(a)(1) is whether objectively Eagle-
son’s comments had a reasonable tendency to be coer-
cive in the totality of the circumstances. However, in the
circumstance here, we do not find that Ruddy would rea-
sonably interpret Eagleson’s comments as threats.16
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Center
Construction Company, Inc. d/b/a Center Service System
Division, Burton, Michigan, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
1. Delete paragraph 1(d) and reletter the subsequent
paragraphs.
2. Insert the following after paragraph 2(b) and relet-
ter the subsequent paragraphs:
“(c) Consider the remaining discriminatees for future
job openings that arise subsequent to the beginning of the
hearing in accord with nondiscriminatory criteria, and
notify the discriminatees, the Charging Party, and the
Regional Director for Region 7 of such openings in posi-

15 Contrary to our dissenting colleague, the Board in Schaumberg
Hyundai did not state that the “burden of proof is on the employer to
demonstrate that its prediction is lawfully based.” We agree that an
employer must articulate the objective evidence supporting its predic-
tion. However, the burden of proving that a challenged statement inter-
feres with, restrains, or coerces employees in the exercise of their Sec.
7 rights rests with the General Counsel. An employer is not required to
prove that its statements are lawful.
16 The dissent asserts that we neglect the effect that an employee’s
economic dependency on their employer has on the employee’s ten-
dency to “pick up intended implications . . . that might be more readily
dismissed by a more disinterested ear.” NLRB v. Gissel Packing Co.,
395 U.S. 575, 617 (1969). We do not neglect this principle. Rather, we
find for the reasons stated above that that the principle is not contra-
vened by Eagleson’s opinion that the Plumbers would take Sheet Metal
Workers’ jobs because “they do the same thing that [sheet metal work-
ers] do.”
tions for which the discriminatees applied, or substan-
tially equivalent positions.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
CHAIRMAN BATTISTA, dissenting in part.
The judge and my colleagues find that the Respondent
unlawfully solicited grievances when, as employee
Wayne Rose was leaving after their August meeting
ended, Robert Eagleson said, “[i]f you have any prob-
lems with this company, I’m the President . . . you need
to discuss them with me.” I disagree. The judge noted
that “[i]t is well established [ ] that an employer cannot
rely on past practice to justify solicitation of employee
grievances if the employer significantly alters its past
manner and methods of solicitation during the union
campaign.” House of Raeford Farms, 308 NLRB 568,
569 (1992), enfd. mem. 7 F.3d 223 (4th Cir. 1993), cert.
denied 511 U.S. 1030 (1994). The judge found that
Eagleson’s statement violated Section 8(a)(1) because it
changed the Respondent’s policy which required that
employees first go to the supervisor. However, as dis-
cussed infra, Eagleson’s remark, without more, did not
change the existing policy. Nor was Eagleson making a
promise to correct employee complaints. I would, there-
fore, reverse the judge’s finding of a violation.
As to the issue of whether there was a change of pol-
icy, my colleagues say that Eagleson’s parting remarks
were a directive to deal directly with him. But my col-
leagues read far too much into his words. Eagleson did
not say that employees should refrain from the practice
of seeing their supervisors first. He merely indicated
that, as always, he was the ultimate authority and that
employees could ultimately see him. Eagleson’s uncon-
tradicted testimony on this point, which was not specifi-
cally discredited by the judge, shows that his parting re-
marks were not a change to the existing policy. When
Rose mentioned that he was not receiving health insur-
ance, Eagleson asked him if he had said “anything to
anybody?” Rose said that he might have mentioned it to
his supervisor but was unsure. Eagleson then asked him
if he said anything to “my Office Manager, Debbie” who
handles such matters and “…why did you not say some-
thing to Debbie? She is the one that puts you on the
health insurance.” In short Eagleson was not telling
Rose that he should go directly to Eagleson. Eagleson
was telling Rose precisely the opposite.
The cases relied on by my colleagues and the judge are
inapposite.1 In those cases, there was evidence that the

1 House of Raeford Farms, supra (employer switched from occa-
sional, voluntary meetings to numerous, mandatory meetings during
which it admittedly solicited grievances, pledged to correct them and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD734
employer significantly altered existing practices or insti-
tuted new policies.
Perhaps recognizing that Eagleson’s parting remarks
without more can not fairly be understood as changing
the existing policy, my colleagues rely upon findings that
the judge himself did not make. Unlike the judge, they
assert that by asking Rose during the meeting if he had
any questions or concerns, Eagleson violated the Act. I
disagree. Even if there was a solicitation of a grievance,
such a solicitation is unlawful only if it contains an ex-
press or implied promise to rectify the grievance. Here,
there was no such promise.
Eagleson did not promise to remedy Rose’s complaint:
he did not tell Rose he “would” get health insurance.
Eagleson testified that he told Rose that he “should be
getting health insurance” because he was eligible at 90
days and that coverage was “automatic, typically.” I see
nothing unlawful in truthfully telling Rose about benefits
that he “should” have been receiving from the Respon-
dent but which, apparently erroneously, he was not re-
ceiving and which the Respondent may have been legally
obligated to provide to him.
MEMBER LIEBMAN, concurring and dissenting in part.
In a plain effort to incite a clash between its employ-
ees, the Respondent’s president and owner, Robert
Eagleson, threatened Sheet Metal Workers Union Stew-
ard Patrick Ruddy that three or four of the Respondent’s
employees represented by the Sheet Metal Workers Un-
ion would lose their jobs if its plumber employees chose
representation by the Charging Party Local 370. The
judge correctly found Eagleson’s statements to be unlaw-
ful threats of job loss. See Systems West LLC, 342
NLRB 851 (2004); Schaumburg Hyundai, Inc., 318
NLRB 449 (1995). Contrary to precedent, the majority
reverses this finding. I therefore dissent.1
A. Background
Local 370 sought to represent the Respondent’s two
plumber employees, a journeyman and an apprentice, and

did correct them); Embassy Suites Resort, 309 NLRB 1313 (1992)
(employer’s introduction, immediately before election, of a new hand-
book establishing a council for employee appeals and solving problems
was found objectionable but, since not alleged to violate the Act, the
Board did not reach if it was unlawful); Safety Kleen Oil Services, 308
NLRB 208 (1992) (after employer became aware that employees had
contacted the union, it scheduled an employee meeting where employer
solicited complaints and expressly promised to remedy them); Avon-
dale Industries, 329 NLRB 1064, 1101–1102 (1999) (superintendent
specifically solicited safety complaints from employees that he prom-
ised to remedy if the employees’ supervisors failed to do so); and Amp-
tech, Inc., 342 NLRB 1131, 1139–1140 (2004) (employer in direct
response to the organizing effort introduced an entirely new employee
advocacy program “to help resolve employee issues”).
1 In all other respects, I agree with the majority opinion.
the employees already represented by the Sheet Metal
Workers Union supported this organizing effort. The
Respondent resisted this organizing attempt aggressively
and unlawfully. It engaged in surveillance of its Sheet
Metal Workers Union employees’ activities in support of
Local 370; threatened to discharge Sheet Metal Workers
Union employees for honoring a Local 370 picket line;
disciplined employees for participating in or honoring
the picket line; coercively interrogated an applicant for a
plumber job about his union sympathies; solicited and
implicitly promised to rectify grievances from one of the
plumber employees; prohibited that employee from
wearing a union T-shirt at work, and thereafter discrimi-
natorily discharged him, and discriminatorily failed and
refused to consider and hire Local 370 members who
applied for advertised jobs.
In the midst of this unlawful conduct, Eagleson sum-
moned Union Steward Ruddy to his office. Service
Manager Lonnie Katt was also present. Eagleson had
open in front of him a copy of Local 370’s collective-
bargaining agreement with the Flint [Michigan] Associa-
tion of Plumbing and Mechanical Contractors. Accord-
ing to Ruddy,2 Eagleson read “bits and pieces” of the
contract out loud and “explain[ed]” or “[tried] to ex-
plain” what he thought the language meant. The record,
however, contains nothing about any such “explana-
tions.” Eagleson told Ruddy that, in his (Eagleson’s)
opinion, if Local 370 represented the plumber employees
it would have an adverse impact on the Sheet Metal
Workers’ employees. Eagleson read from, and directed
Ruddy’s attention to, article X, Jurisdiction, of the
agreement.3 He told Ruddy, “If we let the Plumbers
come in here, it is going to take three or four of your
men’s positions.” Eagleson then immediately asked,
“Who would [you] like to get rid of here?” Ruddy re-
plied, “I don’t want to get rid of anybody.”
About 2 days later, Eagleson again summoned Ruddy
to his office. He again told Ruddy how many jobs the
Sheet Metal Workers’ employees would lose if the two
plumber employees selected Local 370.4 Ruddy credibly
testified that Eagleson was “trying to impress on me the
point that the Plumbers were going to take ou[r] jobs.”

2 Ruddy’s testimony about his meetings with Eagleson was specifi-
cally credited. Katt did not testify and Eagleson was generally discred-
ited.
3 Art. X, Jurisdiction, is a four-page, 159-line article that sets out 51
numbered types of multifaceted tasks, equipment, material, fixtures,
etc., over which Local 370 asserts jurisdiction under its collective-
bargaining agreement with the contractors association.
4 During these meetings, Eagleson offered to let Ruddy look for
himself at the Local 370 collective-bargaining agreement with the
contractors association: “[Eagleson] said it was there for me to see. . . .
He said ‘Here, read it yourself.’”
CENTER SERVICE SYSTEM DIVISION 735
Based on these facts, the judge found that Eagleson’s
remarks to Ruddy, intended to provoke a clash between
the Sheet Metal Workers Union and Local 370, violated
Section 8(a)(1) of the Act. He rejected the Respondent’s
argument that Section 8(c) of the Act protected Eagleson
in voicing his opinion on the effect that the Local 370
contract would have on the sheet metal workers.
B. Analysis
The threats at issue here are virtually indistinguishable
from threats recently found unlawful by a unanimous
panel of the Board in Systems West LCC, supra, applying
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). In
reversing the judge’s finding here, the majority fails to
abide by this precedent.
In Gissel Packing Co., supra, the Supreme Court de-
scribed what employers may lawfully say about the con-
sequences of unionization.
[A]n employer is free to communicate to his employees
any of his general views about unionism or any of his
specific views about a particular union, so long as the
communications do not contain a “threat of reprisal or
force or promise of benefit.” He may even make a pre-
diction as to the precise effect he believes unionization
will have on his company. In such a case, however, the
prediction must be carefully phrased on the basis of ob-
jective fact to convey an employer’s belief as to de-
monstrably probable consequences beyond his control
. . . .
395 U.S. at 618 (emphasis added). The burden of proof is
on the employer to demonstrate that its prediction is law-
fully based. Schaumburg Hyundai, supra, 318 NLRB at
450.5 The Respondent has not met that burden. Rather,
Eagleson’s statements fail to meet both elements of a lawful
prediction of the adverse consequences of unionization.
That is, his statements—”If we let the Plumbers come in
here, it is going to take three or four of your men’s posi-
tions”—were neither based on objective fact nor did they
address consequences beyond the Respondent’s control.

5 The majority disputes this assertion. To be precise, the Board in
Schaumburg Hyundai held “that the judge wrongfully imposed on the
General Counsel the burden of showing that unionization would not
cause lower wages and harsher working conditions as Weissberg said
would occur if employees voted in the Union. Although an employer
can legitimately make a prediction, as Weissberg did here, regarding
the precise effects of unionization, the prediction must be carefully
made on the basis of objective fact to convey an employer’s belief as to
demonstrably probable consequences beyond its control. NLRB v.
Gissel, [supra].” Id. at 450. The clear import of this holding is that the
Respondent, not the General Counsel, has the burden of showing that
its “prediction” has been “carefully made on the basis of objective fact”
to convey its “belief as to demonstrably probable consequences beyond
its control.”
First, the record contains nothing showing that Eagle-
son presented any evidence to Ruddy justifying his asser-
tion about the loss of Sheet Metal Workers’ positions.
Nor did the Respondent present any evidence at the trial
establishing objective fact upon which Eagleson’s pre-
diction was based.
The majority says that Eagleson was expressing an
opinion, based on his understanding of the collective-
bargaining agreement that Local 370 would try to get the
Respondent to enter into if the two plumbers chose rep-
resentation by the Plumbers Union. In expressing his
opinion, the majority asserts, Eagleson repeatedly quoted
from the Local 370 collective-bargaining agreement and
made it clear that he was relying upon the language of
that document as the basis for his opinion. Eagleson, of
course, did not even acknowledge having a meeting with
Ruddy, and he denied saying anything to anyone about a
reduction in the number of Sheet Metal Workers’ em-
ployees if Local 370 were selected. Ruddy’s testimony
that Eagleson read “bits and pieces” of the contract out
loud and “explain[ed]” or “[tried] to explain” what he
thought the language meant fails to support my col-
leagues’ assertion that Eagleson offered or attempted to
offer objective evidence for his opinion about the effect
of unionization by the Plumbers Union based on avail-
able facts. The record contains absolutely nothing about
the substance of Eagleson’s so-called explanations. And
Eagleson’s offering to let Ruddy simply read the Plumb-
ers collective-bargaining agreement for himself certainly
does not satisfy the Gissel requirement that Eagleson’s
prediction about the effect of unionization by the Plumb-
ers Union be carefully phrased on the basis of objective
facts. Accordingly, the Respondent has not established
that Eagleson’s statement was based on objective fact.6
Second, the adverse consequences that Eagleson pre-
dicted involved choices over which the Respondent
would have either complete or partial control. My col-
leagues assert that Eagleson was merely stating that the
Plumbers Union would propose, and the Respondent
would agree, to a contract with certain clauses that would
require the Respondent to lay off some employees.
They further assert that Eagleson made it clear to Ruddy
that if Sheet Metal Workers’ unit jobs were eliminated
from the unit as a result of unionization of the two

6 My colleagues assert that even the judge did not question the rea-
sonableness of the Respondent’s interpretation of the relevant clauses
in the Plumbers contract. But, again, there were no interpretations by
the Respondent in the record for the judge to evaluate in the first place.
The judge specifically found in the fourth and final paragraphs of sec.
III,A,4 of his attached decision that “the Respondent presented no
evidence of objective facts supporting ‘demonstrably probable conse-
quences’ . . . beyond the Respondent’s control, to justify or support its
threat that three or four jobs would be lost.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD736
plumber employees, it would only be in response by the
Respondent to a Plumbers Union’s initiative. On this
question, Systems West is controlling. There the respon-
dent sought to defend its supervisor’s statement—that if
the employees unionized they would not be able to work
outside of the area and that most of them would be re-
placed—on the basis of a master labor agreement intro-
duced into evidence at the hearing, which obliges the
signatory employer to first employ individuals dis-
patched from union hiring halls. The Board held that the
Master Agreement did not establish the objective factual
basis of the supervisor’s statement; nor did its terms ren-
der the matters the supervisor addressed beyond the Re-
spondent’s control. There was no evidence that the
respondent and union would be bound by that or any
similar agreement, or that the respondent was required to
be a signatory. Any suggestion, therefore, that the re-
spondent would be required to hire first from union hir-
ing halls, the Board said:
ignored the reality that such provisions are neither in-
evitable nor immutable, but are merely terms that may
result from collective bargaining, and thus are at least
partly within the Respondent’s control. See Schaum-
burg Hyundai, Inc., 318 NLRB 449, 450 (1995) (even
if union’s standard contract provided for wages and
working conditions predicted by employer, bargaining
unit employees would not automatically be covered by
such an agreement following negotiations). [Systems
West LLC, 342 NLRB 851, 852 (2004).]7
The same logic applies here. Pointing to the Local 370
agreement, as Eagleson may have done, does not alter the
fact that the Respondent would not necessarily become
signatory to that agreement or agree to its jurisdictional
provision. That would be a matter within its control.8
And whatever the agreement may say about jurisdiction
claimed by Local 370, the assignment of work is surely
not beyond the Respondent’s control. Just as surely,
Ruddy, hearing Eagleson’s comments, would reasonably
realize that and instead would interpret those comments
as a threat of retaliation for the Sheet Metal Workers’

7 My colleagues have not meaningfully distinguished Systems West.
They assert that the Board rejected the employer’s reliance on the mas-
ter labor agreement in that case because it was raised for the first time
as a posthoc justification at the hearing, and also because there was no
evidence in any event that the employer and the union would have been
bound by that or any other agreement. While those considerations were
factors in the Board’s analysis, they were not controlling.
8 Under the law, union demands are always negotiable, and absent
some proof, an employer has no basis for assuming that he will be
forced by a union to act to his own detriment. Paul Distribution Co.,
264 NLRB 1378, 1383 (1982).
support of Local 370.9 As Gissel teaches, we must “take
into account the economic dependency of the employees
on their employers, and the necessary tendency of the
former, because of that relationship, to pick up intended
implications of the latter that might be more readily dis-
missed by a more disinterested ear.” 395 U.S. at 617.
The majority neglects this principle.
Finally, that Eagleson may have couched his remarks
as his opinion, as the majority asserts, based on his un-
derstanding of the Local 370 agreement, is insufficient to
mitigate their coercive effect. Clinton Electronics Corp.,
332 NLRB 479, 479 (2000). Nor does the majority accu-
rately claim that Ruddy understood Eagleson’s state-
ments as merely an opinion, and not a threat. Ruddy
credibly testified that Eagleson was “trying to impress on
me the point that the Plumbers were going to take ou[r]
jobs.” Eagleson made that point clear when he asked
Ruddy, “Who would [you] like to get rid of here?”
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 refuse to hire or fail and refuse to con-
sider for hire job applicants on the basis of their union
affiliation or other protected activities.
WE WILL NOT discharge or otherwise discriminate
against any employee on the basis of the employee’s
union affiliation or other protected activity.
WE WILL NOT threaten to discipline or discharge any
employee for honoring a picket line at our facility.
WE WILL NOT unlawfully photograph employees who
are engaged in picketing.

9 Although my colleagues note that Ruddy did not actually testify, in
haec verba, that Eagleson threatened him, they correctly acknowledge
that that is not determinative of the result, and that the test under Sec.
8(a)(1) is whether Eagleson’s comments objectively had a reasonable
tendency to be coercive in the totality of the circumstances.
CENTER SERVICE SYSTEM DIVISION 737
WE WILL NOT solicit complaints from employees or
change the manner in which complaints are handled
while a union is conducting an organization drive at our
facility.
WE WILL NOT prohibit employees from wearing shirts
with union insignia.
WE WILL NOT interrogate applicants for employment
concerning their viewpoints on unions.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the bar-
gaining unit:
All full-time and regular part-time journeymen plumb-
ers, plumber apprentices, and plumber helpers engaged
in the fabrication, installation, and service of plumbing
equipment employed by Respondent at its facility lo-
cated at 4040 E. Bristol Road, Burton, Michigan; but
excluding all office clerical employees, professional
employees, guards and supervisors as defined in the
Act, and all employees currently included in the bar-
gaining unit represented by Sheet Metal Workers Inter-
national Union, Local Union No. 7.
WE WILL, within 14 days from the date of the Board’s
Order, offer Wayne Rose full reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Wayne Rose whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Wayne Rose, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.
WE WILL, within 14 days from the date of the Board’s
Order, offer 1 of the 12 discriminatees listed below full
instatement to the journeyman plumber position to which
that person applied in response to our advertisement in
the Flint Journal on August 17, 2003, or, if that job no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privi-
leges he would have enjoyed had he been hired when he
applied.
Maurice Cahill, Jermaine Connor, Gerald Cox, David
McDermitt, Michael Morris, Dennis Slattery, Jack
Steco, Eric Backlund, Michael Herriman, Scott Mo-
bilio, William Wise, and Chester Solarz
WE WILL make the applicant who is offered the jour-
neyman plumber position whole for any loss of earnings
and other benefits resulting from our failure and refusal
to hire him, less any net interim earnings, plus interest.
WE WILL consider the remaining discriminatees for fu-
ture job openings that arise subsequent to the beginning
of the hearing in accord with nondiscriminatory criteria,
and notify the discriminatees, the Charging Party, and the
Regional Director for Region 7 of such openings in posi-
tions for which the discriminatees applied, or substan-
tially equivalent positions.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful re-
fusal to hire any of the discriminatees, and WE WILL,
within 3 days thereafter, notify them in writing that this
has been done and that the refusal to hire them will not
be used against them in any way.
CENTER CONSTRUCTION COMPANY, INC. D/B/A
CENTER SERVICE SYSTEM DIVISION
Kelly A. Temple, Esq., for the General Counsel.
Hiram S. Grossman, Esq., P.C. (Daniel & Grossman, P.C.), of
Flint, Michigan, for the Respondent.
DECISION
STATEMENT OF THE CASE
JOSEPH GONTRAM, Administrative Law Judge. This case was
tried in Flint, Michigan, on May 18–20, 2004. In Case 7–CA–
46490, the charge was filed by Local 370, United Association
of Journeymen and Apprentices of the Plumbing and Pipe Fit-
ting Industry of the United States and Canada, AFL–CIO (Lo-
cal 370 or the Union) on August 8, 2003,1 and was amended on
August 25 and September 19. In Case 7–CA–46696, the charge
was filed by Local 370 on October 7, and was amended on
November 3. In Case 7–CA–46697, the charge was filed by
Local 370 on October 7. The Acting Regional Director for Re-
gion 7 ordered that the cases be consolidated and, on December
23, issued a consolidated amended complaint. With the agree-
ment of counsel, the complaint was amended at the hearing.
The amended consolidated complaint alleges that Center
Construction Company, Inc. d/b/a Center Service System Divi-
sion (the Respondent) violated Section 8(a)(1) of the National
Labor Relations Act (the Act) (1) by threatening to discipline
and fire employees if they honored a picket line at the Respon-
dent’s facility; (2) by surveilling its employees’ activities on the
picket line; (3) by threatening adverse employment actions,
including termination, if Local 370 was selected to represent
the plumbers employed by the Respondent; (4) by soliciting
grievances from, and promising better benefits to, its employ-
ees to discourage the employees from supporting a union; (5)

1 All dates are in 2003, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD738
by promulgating and enforcing a rule prohibiting employees
from wearing shirts with union insignia; (6) by interrogating
employees about their union sympathies; and (7) by telling
employees that if they were interested in a union, they should
talk to the Respondent’s owner first. The amended consolidated
complaint further alleges that the Respondent violated Section
8(a)(1) and (3) of the Act by refusing to consider and hire
members of Local 370 for available positions for plumbers, and
by discharging employee Wayne Rose, and violated Section
8(a)(1) and (5) of the Act by refusing to bargain collectively
with Local 370. The Respondent admits all jurisdictional alle-
gations, but denies that it has committed any unfair labor prac-
tices.
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, a corporation, is engaged in the sale, instal-
lation, and service of heating, air-conditioning, and plumbing
systems from its facility in Burton, Michigan, where, during the
calendar year preceding the filing of the present complaint, it
had gross revenues in excess of $500,000 and purchased and
received goods valued in excess of $50,000 from suppliers
within the State of Michigan, which suppliers had received
these goods directly from points outside the State of Michigan.
The Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that Local 370 is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Robert Eagleson (Eagleson) is the president and owner of the
Respondent. In the 1950s, his father established Bernhart
Eagleson Plumbing & Heating, which later became R. W.
Eagleson Plumbing & Heating. In 1964, Eagleson’s father es-
tablished Center Construction Company to do general construc-
tion throughout Michigan. In 1970, Eagleson took over man-
agement of Center Construction. In 1973, Eagleson established
Center Service System, the Respondent, which, like his father’s
plumbing business, primarily does residential plumbing and
heating. Kristina Eagleson, Eagleson’s daughter, has worked
for the Respondent for 20 years, and is currently the production
manager. Kristina has a journeyman plumber’s license and a
master plumber’s license. Matthew Welsh is the Respondent’s
plumbing supervisor. The Respondent admits that Kristina
Eagleson and Welsh are supervisors within the meaning of
Section 2(11) of the Act.
Eagleson’s father’s plumbing and heating businesses had
contracts with Local 370 for several years. Eagleson himself
was a member of Local 370 for more than 15 years. The Re-
spondent has never had a contract with Local 370. In the 1990s,
Local 370 unsuccessfully attempted to organize the Respondent
on two occasions. Each time, Local 370 requested the Respon-
dent to extend voluntary recognition, and each time the Re-
spondent refused. After the Respondent’s refusals, Local 370
filed representation petitions with the National Labor Relations
Board, both of which were unsuccessful. The Respondent has
had a contract with Local 7 of the Sheet Metal Workers Union
for over 20 years. The Respondent generally employs between
20 and 40 sheet metal workers, and 2 or more plumbers.
The basic distinction between plumbers and sheet metal
workers is that plumbers deal with piping, which is wet and
carries liquid. Plumbers are also called fitters or pipe fitters.
Sheet metal workers deal with ductwork, which is dry and car-
ries air.
In July and August 2003, Local 370 again sought to organize
the Respondent’s plumbers. At that time, there were two poten-
tial members of the bargaining unit—Wayne Rose, a journey-
man plumber, and Lance Lockhart, a plumber’s apprentice.
B. Local 370’s Organizing Activities and Related
Events Before August 17
On July 30 and 31, Rose and Lockhart, respectively, signed
authorization cards for Local 370. On August 4, Benjamin
Ranger, the Union’s organizer, and Mark Johnson, the business
manager, met with Eagleson in Eagleson’s office. Ranger and
Johnson told Eagleson that Local 370 was organizing the Re-
spondent’s plumbers, and had secured the signatures of the two
unit members. Ranger asked Eagleson for recognition so that
the parties could start bargaining immediately. Eagleson
claimed he did not know that he had two plumbing employees,
and after confirming that he did, he asked to see the authoriza-
tion cards. Ranger then showed Eagleson the two cards signed
by Rose and Lockhart.2 After examining the cards, Eagleson
stated that he would never sign an agreement with Local 370
and would go out of business before signing an agreement with
Local 370. Ranger replied he would seek other legal means to
obtain recognition.
The next day, August 5, Ranger mailed and faxed a letter to
Eagleson demanding immediate recognition of Local 370 as the
representative of the Respondent’s plumbing employees. (On
August 5, Ranger also signed and mailed to the Board a repre-
sentation petition.) However, Ranger’s letter contained an inad-
vertent, and inconsistent, description of the represented em-
ployees as the Respondent’s HVAC employees, rather than the
plumbing employees. The HVAC employees were already
represented by the Sheet Metal Workers Union. Eagleson
claims that the letter confused him regarding the employees

2 All facts found here are based on the record as a whole and on my
observation of the witnesses. The credibility resolutions have been
made from a review of the entire testimonial record and exhibits with
due regard for logic and probability, the demeanor of the witnesses, and
the teaching of NLRB v. Walton Mfg. Co., 369 U.S. 404 (1962). As to
those witnesses testifying in contradiction of the findings, their testi-
mony has been discredited, either as having been in conflict with the
testimony of reliable witnesses or because it was incredible and unwor-
thy of belief or as more fully explained in the text. With respect to the
testimony regarding what occurred at meetings between a manager and
an employee, I have also taken into account the economic dependence
of employees on employers, with awareness of an employee’s atten-
tiveness to intended implications of his employer’s statements which
might be more readily dismissed by a disinterested party. See NLRB v.
Gissel Packing Co., 395 U.S. 575, 617 (1969).
CENTER SERVICE SYSTEM DIVISION 739
Local 370 sought to represent. This claim is not credible.
Moreover, Eagleson exploited the inadvertent reference to
HVAC employees in the letter to explain his own actions in
refusing to recognize Local 370 and to drive a wedge between
Local 370 and Local 7 of the Sheet Metal Workers Union. On
August 8, and immediately after being advised of the error,
Ranger mailed and faxed a corrected letter to Eagleson elimi-
nating the reference to the HVAC employees.
On August 4, Eagleson met with Local 370 representatives
who sought recognition on behalf of the Respondent’s plumb-
ing employees. Eagleson observed, inspected, and read the
cards that were signed by his two plumbing employees, and that
were handed to him by Ranger. He then lashed out at Ranger
and Johnson, telling them that he would never sign a contract
with Local 370 and would rather go out of business. Thus,
when Eagleson received Ranger’s August 5 letter on that date,
Eagleson knew that the reference to HVAC employees was a
mistake, and that Local 370 was, in fact, seeking to represent
only his plumbing employees, which is what Ranger and John-
son told Eagleson on August 4. Of course, if the letter confused
Eagleson, the natural reaction would be to telephone Ranger
and ask him about the letter, i.e., to try to clear up any confu-
sion. But Eagleson did not try to clear up any confusion be-
cause there was none. Instead, a copy of the letter was given to
the steward of the Sheet Metal Workers Union. In this way,
Eagleson tried to exploit what he knew was an inadvertent mis-
take in order to drive a wedge between Local 370 and the Sheet
Metal Workers Union. When Ranger became aware of the mis-
take in his letter, he corrected the mistake, and mailed and
faxed a corrected letter to Eagleson on August 8.
In making my credibility determinations, I am aware that
Ranger and Johnson gave one version, and Eagleson gave an-
other version of what occurred during their meeting. The testi-
mony of Ranger and Johnson has been credited and the testi-
mony of Eagleson has been discredited because of the de-
meanor of these witnesses. In addition, Ranger and Johnson
corroborate each other, and their testimony is more plausible.
For example, Ranger and Johnson testified that Ranger handed
the signed authorization cards to Eagleson who examined them
for several minutes. This testimony is consistent with the pur-
pose of the meeting, which was to alert Eagleson to the organi-
zation of Respondent’s plumbers and to request recognition for
Local 370. Moreover, Eagleson testified that he does not recall
if Ranger handed him the cards, and he does “not believe” that
he read them. (Tr. 435.)3 (This testimony is not only incredible,
it is also not determinative of the factual issue. Ranger had
already told Eagleson that the two members of the unit had
signed cards, and Eagleson knew the two members of the unit
were Rose and Lockhart.) Thus, the testimony of Ranger and
Johnson is also more credible because of their specific recollec-
tion, as opposed to Eagleson’s vague recollection. On the other
hand, given the importance of the cards, Eagleson would recall
if the cards were shown to him. Accordingly, his claim of not
being able to recall is itself not credible.
Johnson and Ranger also testified that Eagleson stated he
would never sign an agreement with Local 370. Eagleson testi-

3 References to the transcript of the hearing are designated as Tr.
fied that he said he would never sign an agreement without
seeing the contract first. Again, Eagleson’s testimony is not
credible and is rejected. Eagleson’s claimed statement essen-
tially says nothing. Of course he would not sign an agreement
without seeing it first. Moreover, Eagleson was present in the
hearing room for Ranger’s and Johnson’s testimony, and it is
apparent that he tried to conform his recollection of these
events as close as possible to what actually occurred, without
acknowledging the true meaning of what was said. As if Ranger
and Johnson heard him say, “I will never sign an agreement
with Local 370,” but failed to hear the remainder of the sen-
tence, “without seeing it first.” Eagleson was not a credible
witness. Moreover, Eagleson’s demeanor on the witness stand
displayed an antiunion animus notwithstanding his ingratiating
reference to his having been a member of Local 370 for many
years. During his meeting with Ranger and Johnson, Eagleson
did not qualify his refusal to sign an agreement with Local 370,
except to exacerbate the antiunion animus contained in the
statement by adding that he would go out of business before
signing an agreement with Local 370.
After Eagleson received the fax of Ranger’s August 5 letter,
he telephoned Johnson and requested a copy of the plumbers’
proposed collective-bargaining agreement. Eagleson said that
he would like to look over the agreement and discuss what
could be done.
On August 6, at approximately 6:45 a.m., Local 370 set up a
picket line at the Respondent’s facility. Ranger, Johnson, and
other members of Local 370 picketed, together with Lockhart
and other employees of the Respondent.4 Johnson brought the
proposed collective-bargaining agreement, and provided a copy
to Eagleson inside the Respondent’s facility. Johnson and
Eagleson had a brief discussion in which Eagleson said that he
had no problem if his employees wanted to join a union. John-
son returned to the picket line, and the picketing continued until
mid-afternoon on August 6.
The question that arises is, why would Eagleson request a
copy of an agreement that he had already told Ranger and John-
son he would never sign? The answer is that Eagleson wanted
to use the agreement to further his efforts to drive a wedge
between Local 370 and the Sheet Metal Workers. Moreover,
contrary to Eagleson’s statement to Johnson, Eagleson had no
intention to talk with Local 370 about what could be done with
an agreement. On August 7, Eagleson met with Patrick Ruddy,
the Sheet Metal Workers’ steward, in Eagleson’s office. Ser-
vice Manager Lonnie Katt was present during the meeting, but
he was not called as a witness. Eagleson read aloud certain
parts of the plumbers’ agreement that he had just received from
Johnson, told Ruddy his interpretation of the agreement, and
tried to impress on Ruddy that the plumbers were trying to take
jobs away from the sheet metal workers. Eagleson then told
Ruddy, “If we let the Plumbers come in here, it is going to take
three or four of your men’s positions. Who would [you] like to
get rid of here?” (Tr. 107.) Ruddy, of course, said he did not
want to get rid of anybody. A few days later, Eagleson again

4 The Respondent’s employees who picketed included Lockhart, Pat-
rick Ruddy, Michael Oliver, and Kevin Deconig.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD740
met with Ruddy and again told him that the plumbers were
trying to take the sheet metal workers’ jobs.
On August 6, after Johnson had provided Eagleson with a
copy of the collective-bargaining agreement, Johnson returned
to the picket line. Later, Eagleson and Welsh came out to the
front of the facility and observed the picketing. The Respon-
dent’s sheet metal workers would not cross the picket line, and
they were congregating in a parking lot across from the facility
where the Respondent’s trucks were parked. Johnson held a
video camera, and he recorded, for approximately 10 minutes,
some of the activity in and around the picket line. Welsh went
back inside the facility and returned with a camera. He then
took pictures of the picket line, which included the Respon-
dent’s workers, as well as pictures of the sheet metal workers
across the street. Welsh then walked over to the sheet metal
workers and told them to get to work or he would make sure
that they would be fired.5
At approximately noon, Kristina Eagleson came out to the
picket line and handed letters to the Respondent’s employees.
The letters were signed by Eagleson and stated:
Your absence on August 6th was not excused. You
must report to work on August 7, 2003 and each work day
thereafter.
Additionally, you must return all company property to
work on August 7, 2003 whether or not you intend to re-
port to work on August 7th and each work day thereafter,
your retention of company property on or after August 7th,
2003 is not authorized and Center Service will report to
the proper authorities that you have Center Service prop-
erty without authorization.
Your failure to report for work on August 7th and
work on August 7th, 2003 and each work day thereafter
and return company property on August 7th will result in
Center Service imposing discipline on you.
(GC Exh. 14.) The picketing ended in the afternoon of August
6, and all employees returned to work on August 7.
C. Applications for Employment From
Local 370 Members
On August 17, the Respondent advertised in the local news-
paper, the Flint Journal, for journeymen plumbers, HVAC in-
stallers, and service technicians. The advertisement read as
follows:
PLUMBERS—State Licensed Journeyman, HVAC Installers
and Service Tech. Competitive wages, health-care benefits,
opportunity to earn monthly bonus for self motivate[d] con-
scious [sic] People. Apply at Center Service, 4040 E. Bristol
Rd. Burton

5 In evaluating the credibility of testimony regarding the statements
of supervisors, as well as the owner, to employees, I have also taken
into account the economic dependence of employees on employers,
with awareness of an employee’s attentiveness to intended implications
of his employer’s statements which might be more readily dismissed by
a disinterested party. See NLRB v. Gissel Packing Co., 395 U.S. 575,
617 (1969). The Respondent admits that Welsh and Kristie Eagleson
are supervisors within the meaning of Sec. 2(11) of the Act.
(GC Exh. 6.) On August 18, Ranger called the Respondent’s
offices in response to the advertisement, and he was told by a
secretary/receptionist that the Respondent was still hiring.
Ranger told some members of Local 370 about the Respon-
dent’s advertisement for plumbers. Other union members had
already seen the advertisement.
On August 18, eight plumbers, all members of Local 370,
went in a group with Ranger to the Respondent’s offices to
apply for the plumber positions advertised in the newspaper.
These union members were Maurice Cahill, Jermaine Connor,
Gerald Cox, David McDermitt, Michael Morris, Dennis
Slattery, Jack Steco, and Richard Young.6 The plumbers re-
quested applications from the secretary/receptionist. She copied
and distributed the applications to the eight plumbers. How-
ever, she gave no instructions to the plumber-applicants con-
cerning how or where the applications were to be completed.
The reception area was not large, and there were not enough
chairs to accommodate all of the plumbers, so they went to
their automobiles in the parking lot to complete the applica-
tions. The completed applications were then given to the secre-
tary/receptionist who, again, said nothing about the applications
or the way in which the plumbers had completed them.
Ranger did not complete his application on August 18. In-
stead, he took his blank application to the Union’s offices,
made copies, and distributed the blank applications to five more
union members. These union members, Eric Backlund, Michael
Herriman, Scott Mobilio, Kenneth Wheeler, and William Wise
completed the applications at the Union’s offices. On August
19, these union members went with Ranger to the Respondent’s
offices and handed the completed applications to the secre-
tary/receptionist who said nothing about the applications or the
way in which they had been completed.
On October 2, three additional union plumbers went to the
Respondent’s offices to apply for a job. These plumbers were
Alexander Gallant, Carl Nelson, and Chester Solarz. The secre-
tary/receptionist gave them each an application, which they
completed in the waiting area. They handed the completed
applications to the secretary/receptionist who, like the previous
two occasions, said nothing about the way in which the applica-
tions were completed.
Thus, 16 plumbers, all of whom were members of Local 370,
completed and submitted applications for the plumber positions
advertised by the Respondent on August 17. At least 13 of
these plumbers were licensed, journeyman plumbers.7 Steco

6 The Respondent has possession of the applications completed by
these plumbers except for the application of Cox. Cox testified that he
completed and submitted an application, and other witnesses confirmed
his presence on August 18. Accordingly, I conclude that Cox completed
and submitted an application to the Respondent on August 18. How-
ever, I do not make any adverse inference on the Respondent’s failure
to locate or produce a copy of that application. Documents may be lost
unintentionally, and I conclude that this occurred with respect to Cox’s
application.
7 The remaining three, Richard Young, Kenneth Wheeler, and Carl
Nelson, did not testify and their applications do not reveal whether they
possess journeyman licenses. In spite of this lack of evidence, the Re-
spondent has not asserted the failure to prove the licensed status of
these three applicants as a reason why they were not considered for
CENTER SERVICE SYSTEM DIVISION 741
and Cahill are master plumbers. The experience of the 16
plumbers ranged from a minimum of 7 years (Connor and So-
larz) to almost 50 years (Steco). The plumbers had experience
in both commercial and residential plumbing. One of the
plumbers (Slattery) had worked for the Respondent in the past.
Steco and Eagleson attended the same apprentice plumbing
classes together in 1965 and have been friends since that time.
The Respondent knew that these applicants were Local 370
members. The first two groups of plumbers entered the Re-
spondent’s facility led by Ranger. Eagleson knew Ranger be-
cause he had met with Ranger on August 4 when Ranger de-
manded recognition of Local 370. Moreover, some of the appli-
cations in all three groups of union members who applied for a
job disclosed that the applicant was a member of Local 370.8
In any event, the Respondent has not claimed herein that it was
unaware of the applicants’ membership in Local 370.
The Respondent did not call any of the Local 370 plumber-
applicants for an interview, or for any follow up information, or
for any other reason. Instead, Welsh solicited Jeffrey Blasdell
in early October, long after the Respondent’s advertisement for
plumbers and long after the union plumbers had applied for the
position. The Respondent hired Blasdell as a plumber on Octo-
ber 6. On October 20, the Respondent hired Bradley Liddell as
a plumber. The Respondent also hired David Lawrence in late
August-early September and Chance Crosno in mid-October as
plumber’s helpers or apprentices. Blasdell, Liddell, and Law-
rence had formerly worked for the Respondent.
D. Interrogation of David Lawrence
David Lawrence is a plumber’s apprentice. He had worked
for the Respondent as a plumber’s apprentice from July to De-
cember 2000. He saw the Respondent’s August 17 newspaper
advertisement and telephoned Welsh. Welsh asked Lawrence to
bring in a resume, but Lawrence did not. About 2 weeks later,
Welsh telephoned Lawrence, asked him to come into the Re-
spondent’s offices to complete an application, and reminded
Lawrence to bring a resume. On the last Thursday in August,
Lawrence went to the Respondent’s offices and spoke with
Welsh. When that interview concluded, Lawrence and Welsh
went into Eagleson’s office. Eagleson asked Lawrence how he
felt about unions. Lawrence replied that there were pros and
cons. Lawrence gave Eagleson this reply because he felt that it
was what Eagleson wanted to hear, and Lawrence was anxious
to get a better paying job. Eagleson told Lawrence that if he
were interested in joining a union, Eagleson could place him in
the Sheet Metal Workers’ union. Eagleson offered Lawrence a
job that day as a plumber’s apprentice.
E. Events Involving Wayne Rose
The Respondent hired Wayne Rose as a journeyman plumber
in January 2003. Rose interviewed with and was hired by
Welsh. Rose had virtually no contact with Eagleson during his

employment. In addition, Gallant has been excluded as a discriminatee
because he stated on his application that he was available only for part-
time work.
8 These include the applications of Solarz, Backlund, Mobilio,
Wheeler, Wise, and Herriman. Moreover, in Cahill’s application, he
listed Ranger as a reference.
first 8 months on the job. The first conversation Rose ever had
with Eagleson was in mid-August, which was about 2 weeks
after Rose had signed a union authorization card for Local 370,
less than 2 weeks after that card was shown to Eagleson, and
about 1 week after Local 370 had picketed Eagleson’s com-
pany. Eagleson directed Rose into Eagleson’s office so that
Rose could pick up his paycheck, and Eagleson then started
talking to Rose about the company. As Eagleson described it,
he wanted to “clear up a few things” with Rose. (Tr. 451.)
Eagleson first asked Rose if he had any questions or concerns
about his job. Eagleson said that the company had an invest-
ment or retirement plan, and that the nonunion employees
vested in the plan in 3 years. Rose asked why he was not re-
ceiving health insurance. Eagleson assured Rose that he was
eligible for and would receive this insurance, and explained that
the Respondent “was a big company and sometimes things fall
through the crack[s].” (Tr. 300.)
Eagleson also testified that he had heard from Welsh, Rose’s
supervisor, that Rose was unhappy. Rose denies making such a
claim and his denial is more credible than Eagleson’s assertion.
Eagleson’s claim that Rose was unhappy appears to be based
on Eagleson assuming this because Rose had joined the union.
Although unhappiness on the job may be one reason an em-
ployee would join a union, it certainly is not the only reason.
There is no credible evidence that Rose was unhappy at his job,
and Eagleson’s testimony that Welsh had told him Rose was
unhappy is not credible.
Eagleson talked about the history of the company and Local
370’s organizing efforts. Eagleson described how his father had
started the business and how Eagleson had continued it. Eagle-
son said that Local 370 had two previous organizing drives, in
1994 and 1998, but these organizing efforts were unsuccessful,
and he “eventually got rid of the [useless] sons of bitches.” (Tr.
271, 302.) Rose then asked Eagleson if he considered Rose to
be useless, and Eagleson replied, “No, I hear you’re a good
one.” The entire discussion lasted about 45 minutes. When
Rose was leaving the office, Eagleson told him, “If you have
any problems with this company, I’m the President . . . you
need to discuss these with me.”9 The previous and normal
policy of the Respondent for handling employee complaints
required the employee to make the complaint to the immediate
supervisor, and then, if the matter were not resolved, the com-
plaint would be referred to Eagleson.
Between 1 and 2 weeks after Eagleson’s mid-August conver-
sation with Rose, Rose wore a shirt into work that was embla-
zoned with the union logo and lettering. Nothing was said dur-
ing the morning meeting, but as Rose was getting into his truck
to go to his job, Kristie Eagleson told him to not wear the shirt
on the job. She told Rose that the shirt was inappropriate and
was against company policy. She told Rose that he had to
change the shirt before he got to the job because she did not
want the contractor on the job to think that the Respondent was
paying union wages. Rose replied that the shirt was new and he
was going to change it anyway. Accordingly, Rose changed his
shirt before he went to the job.

9 Tr. 272. The testimony was limited to unrepresented employees,
since Rose was unrepresented at the time of Eagleson’s statement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD742
The Respondent’s employees are not required to wear uni-
forms, although they may purchase uniforms if they wish. In-
stead, the employees frequently wear T-shirts, which many
times are emblazoned with various names and logos, including
professional sports teams, college sports teams, racecar drivers,
and musical groups. None of these shirts violate the policy. The
Respondent’s policy, if it may be called a policy, regarding
clothing that is allowed on the job is sporadically mentioned to
the workers. There is no written policy. As Welsh and Kristie
Eagleson described the policy, prohibited shirts are shirts that
contain bullet holes, pictures of marijuana plants, swear words,
offensive sayings, and religious or political messages. In his
posthearing brief, the Respondent’s counsel describes the pol-
icy as prohibiting “items containing religious, political, offen-
sive words, pictures or graphics.” (R. Posthearing Br. p. 26.)
The Respondent maintains that the shirt worn by Rose, which
contained the name and logo of the Union, violated this policy.
There is no evidence of any employee, other than Rose on this
single occasion, ever being cited for violation of the Respon-
dent’s alleged clothing policy.
On September 22, Rose was working on a job in or near
Clarkston, Michigan. Welsh testified that the job was in Leo-
nard, Michigan, but he explained that the location of the job
was 5–10 miles east of Clarkston. Moreover, after Eagleson had
observed Rose’s truck in the vicinity of Pearson Road and I-75,
Welsh told Eagleson that Rose had been working that day on a
job near Clarkston. Rose’s time card reflects that he worked 8-
1/2 hours on September 22. Rose lives in Millington, Michigan.
The map provided by the Respondent of the central Michigan
area shows that Clarkston abuts I-75, and that a reasonable
route to take in traveling from Clarkston to Millington is to go
north on I-75, then east from the Birch Run exit. (See Tr. 291;
R. Exh. 8.) An alternate route is to travel north on Route 15 to
Millington. Although the second route appears to be more di-
rect, it may or may not take more time since I-75, unlike Route
15, is an interstate highway.
At approximately 6 p.m. on September 22, Eagleson ob-
served a company truck at Interstate 75 (I-75) and Pearson
Road.10 Eagleson telephoned Welsh who said that the truck
was assigned to Rose. Eagleson testified that he was concerned
about the location of the truck and the time it was observed
because the driver should have been home by that time of day.
Notwithstanding this alleged concern, Rose’s location—on or
near I-75 between the jobsite in Clarkston and Rose’s residence
in Millington—was at least generally where he should be in
traveling from the job to his residence. Moreover, the time of
day is at least partially explained by the fact that Rose worked
8-1/2 hours at the job September 22. (R Exh. 7.) Eagleson told
Welsh to “Check it out and find out what he [Rose] is doing.”
(Tr. 479.)
A couple of days later, Welsh called Eagleson and told him
that Rose was using the company truck on personal time. Welsh
was not asked at the hearing, and did not explain, how he knew
this or how he arrived at this conclusion or whether he also

10 It is unclear if Eagleson observed Rose while Rose was driving on
I-75 or on Pearson Road; however, the resolution of this factual matter
is not relevant to the determination of any issue in this case.
knew that Rose had taken the truck to go to the Union’s offices.
Eagleson told Welsh that, in accordance with the Respondent’s
policy, Rose would have to lose the truck for a while. Eagleson
told Welsh to take the truck away from Rose for at least a week
or two, but not to tell Rose this.
On Thursday, September 25, Welsh called Rose while Rose
was on the job, and told him to report back to Welsh at the
Respondent’s offices at the end of the day. Welsh explained his
failure for 3 days to confront Rose with Eagleson’s observation
as follows: “I did not want to confront and reprimand him or
discipline him for his actions until I had the opportunity to
speak in detail with Bob [Eagleson] about what was observed
and when, where and why.” (Tr. 358.) Accordingly, before the
Respondent made any decision on how to deal with Eagleson’s
observation of Rose on September 22, Welsh and Eagleson
spoke in detail not only about when and where Rose was ob-
served, but also why Rose was there. And there is no dispute
that Rose was in the area of I-75 and Pearson Road because he
was going to talk with Local 370 officials about their organiza-
tion of the Respondent’s plumbers.
On September 25, and pursuant to Welsh’s instructions,
Rose reported to Welsh at the Respondent’s facility at about
5:30 p.m. Welsh told Rose that Eagleson had seen him driving
his company truck in the area of I-75 and Pearson Road on
Monday at 6 p.m., and he asked Rose why he was on Pearson
Road. Rose replied that he was going to the Union’s offices to
see Ben Ranger. Welsh suggested that this trip was 3 to 10
miles out of the way, but in fact the trip was a total of 3 miles
(1-1/2 miles each way) from I-75. Rose reminded Welsh that
in the past Rose had been allowed to use the company truck for
personal reasons such as cashing his paycheck or going to
lunch, and that the distances for these trips were much greater
than the distance involved in his trip to the Union’s offices on
September 22. Welsh told Rose that his truck was going to be
taken from him because of unauthorized use.
Welsh denies that he asked Rose where he was taking the
company truck. This denial is not credible, especially in light of
Eagleson’s instruction to Welsh on Monday to find out what
Rose was doing. Moreover, Welsh admits that he wanted to
discuss in detail with Eagleson when, where, and why Rose
was at the observed location. Welsh’s denial, which is partially
inconsistent with his own and Eagleson’s testimony, but which
is in keeping with his attempt during the hearing to avoid ad-
mitting any concern about or involvement in Rose’s union ac-
tivity, further detracts from Welsh’s credibility.
After Welsh told Rose that his truck was being taken away,
Rose said he needed to remove his tools from the truck, and he
would need a ride home. Welsh and Rose went to the truck and
Rose removed his tools. While he was removing his tools, Kris-
tie Eagleson came out to the truck. Kristie Eagleson testified
that she had heard Rose fling open the door of Welsh’s office
extremely hard. Kristie Eagleson and Welsh testified that Rose
was cursing at his truck, saying over and over again, “That’s
bullshit, I quit.” Kristie Eagleson testified that “Matt told him
[Rose] since he quit, he needs to remove his belongings from
the Company vehicle.” (Tr. 417.) Upon considering their de-
meanor and other factors, the testimony of Kristie Eagleson and
Welsh regarding these events is not credible.
CENTER SERVICE SYSTEM DIVISION 743
Rose was impressive as a quiet, respectful, and polite person.
Indeed, when Rose was interviewed for the job, Welsh noted
that he was “clean cut, very polite.” (GC Exh. 23.) Moreover,
of the employee applications in evidence, Rose’s application is
the only one that contains a positive reference to the character
traits of the applicant, further supporting the reliability of this
impression from Rose’s demeanor. The testimony of Kristie
Eagleson and Welsh that Rose repeatedly said, in a raised
voice, “That’s bullshit, I quit” is out of character and is incon-
sistent with the demeanor that Rose displayed and projected at
the hearing. Rose denied saying it, and his testimony is credi-
ble. Second, while they were in Welsh’s office, Rose told
Welsh that he needed to remove his tools from the truck. There-
fore, Welsh would have had no cause to tell Rose while they
were at the truck that, since he quit, he should remove his tools.
Indeed, that is why they were already at the truck, so Rose
could remove his tools and belongings. Rose did not quit, he
did not tell Welsh that he quit, and he did not curse at Welsh.
Welsh drove Rose home. During the ride, Rose told Welsh
that his van needed a sleeve cylinder, and it might take Rose a
day or more to get the part and install it. Rose said he would
come to work on Monday. Welsh told Rose he should come to
work the next day. The next morning, Friday, September 26, at
about 8:30 a.m., Rose called the office, asked for Welsh, who
was not available, and told the secretary to tell Welsh that he
(Rose) would not be in work on Friday. Although this was the
first time during his employment that Rose called the office to
report he would not be in, his telephone call in the morning of
September 26, combined with his statement to Welsh on Sep-
tember 25, substantially met the Respondent’s procedure for
reporting absences from work.
The Respondent argues that Rose’s testimony is inconsistent
because if, as Rose claims, he told Welsh on Thursday that he
would not be at work on Friday, there would be no reason for
Rose to call the Respondent on Friday morning. However, this
argument fails to account for Welsh’s response to Rose on
Thursday that Rose should still come to work on Friday. Be-
cause of Welsh’s statement to Rose on Thursday, Rose’s tele-
phone call to Welsh on Friday morning to report that he would
not be in work is understandable and consistent.
Welsh claims that Rose called the office on Friday, Septem-
ber 26, and that he talked with Rose on the telephone. Welsh
claims that Rose tried to rescind his resignation during that
telephone call. The Respondent did not call its secretary as a
witness, nor did it offer any corroborating evidence to support
Welsh’s claim that he spoke with Rose or to refute Rose’s
claim that he left a message with the secretary. Moreover,
Welsh claims that, during this alleged telephone conversation,
he told Rose that he did not have the time to talk, but Rose
should call him on Monday morning. However, on that same
day, Eagleson signed a letter addressed to Rose (which Rose
denies receiving) stating that his resignation has been accepted.
(R Exh. 6.) It is not likely that Welsh would have invited Rose
to call and discuss Rose’s job status when, on the same day, the
president and owner of the company had signed a letter stating
that Rose was no longer an employee. In considering the de-
meanor of Welsh and Rose, and all of the circumstances, in-
cluding the previous aspects of Welsh’s testimony found to lack
credibility, Welsh’s testimony regarding the telephone call, as
well as his testimony about his meeting with Rose on Monday,
September 29, is not credible.
In addition, Welsh testified that, in the September 26 tele-
phone conversation, he told Rose to telephone the office on
Monday. However, Rose did not telephone the office on Mon-
day; rather, he came into the office. This is consistent with
Rose’s testimony that he had not quit on Thursday and had not
talked to Welsh on Friday.
The Respondent has a policy concerning the use of company
trucks. Essentially, the policy is that company trucks are not to
be used for personal purposes. However, like the Respondent’s
alleged work clothing policy, the Respondent’s truck policy is
not written. Moreover, there are exceptions to the policy that
might be termed de minimus exceptions. For example, employ-
ees use company trucks to cash their paychecks and to pick up
personal items at a store on their way to and from work. The
Respondent claims that every personal trip must be approved in
advance; however, in practice, preapproval is not sought or
necessary in the de minimus situations. Nevertheless, and in
keeping with this policy, the Respondent has taken trucks away
from employees who were caught using their trucks outside of
working hours.11
Rose arrived in work on Monday, September 29, at 7:45
a.m., and, at Welsh’s request, entered Welsh’s office. Welsh
told Rose that he (Welsh) had thought about Rose’s situation all
weekend, that he knew Rose was not happy working there, that
he felt Rose would be happier if he were not working for the
Respondent, and that he would accept Rose’s resignation. Rose
replied that he did not resign and he did not understand how
Welsh could presume to know how or what Rose was feeling.
Welsh, having already decided, with or at the behest of Eagle-
son, to fire Rose, and maintaining the charade Welsh and
Eagleson had initiated, simply replied that he accepted Rose’s
resignation.
Welsh claims that when he met with Rose on September 29,
Rose again tried to rescind his resignation. Welsh claims that he
told Rose that the resignation could not be rescinded because
(1) Welsh felt that Rose was not happy working for the Re-
spondent, and (2) Rose had performance problems. As noted
above, Welsh is not a credible witness. Moreover, Welsh’s
claim that Rose had resigned on September 25 has already been
rejected. Accordingly, and for all of the foregoing reasons,
Welsh’s testimony regarding his meeting with Rose on Sep-
tember 29 is not credited except to the extent that it is corrobo-
rated by Rose. For example, and as noted above, Welsh stated
to Rose during their September 29 conversation that he felt
Rose was not happy working for the Respondent.
Although Welsh’s testimony that he mentioned performance
problems to Rose is not credited, the fact that Welsh presently
makes that claim is considered. Welsh testified that he had
previously discussed performance problems with Rose. How-
ever, no documents were offered to substantiate or corroborate
such discussions. The Respondent has never disciplined Rose
for, nor has Welsh documented, any alleged performance prob-

11 In two egregious cases, the employees were discharged, but those
cases are not comparable to the present case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD744
lems. However, Welsh cited the Williamston job, where Rose
worked September 23 and 24, for Rose’s alleged performance
problems. Rose had to be sent back twice to correct code viola-
tions on that job. Welsh testified that he told him Rose how the
Williamston job should be fixed. However, Welsh is not a
licensed plumber. Therefore, assuming Rose followed Welsh’s
instructions, it is just as likely that Welsh was as responsible as
Rose for the two trips to correct the job. In conclusion, Welsh
did not cite Rose for performance problems either when Rose
was terminated or before that time. And the job for which
Welsh claims there was a performance problem, the correction
of the problem was as much the fault of Welsh as Rose.
III. ANALYSIS
A. Section 8(a)(1)
1. Threat to fire employees for honoring picket line
Nonstriking employees who honor a picket line set up by
their coworkers are engaged in activity protected by the Act.
Accordingly, an employer may not discharge or threaten to
discharge an employee who honors a picket line. American
Transportation Service, 310 NLRB 294, 296 (1993), quoting
ABS Co., 269 NLRB 774, 774–775 (1984) (discharge); Sunny-
side Home Care Project, 308 NLRB 346 (1992) (threat to dis-
charge). On August 6, while the Respondent’s employees and
Local 370 picketed the Respondent’s facility, the employees
who were members of the Sheet Metal Workers Union refused
to cross the picket line. Welsh threatened these employees with
discharge if they did not return to work. This threat interfered
with, restrained, and coerced the employees in the exercise of
their Section 7 rights. Accordingly, by making this threat, the
Respondent violated Section 8(a)(1).
2. Letter threatening discipline of employees who
honor the picket line
An employer may not discipline or threaten to discipline em-
ployees who honor a picket line. American Transportation
Service, supra. On August 6, while Local 370 was picketing the
Respondent’s facility, the Respondent delivered letters to its
employees who were members of the Sheet Metal Workers
Union. The letters threatened discipline against the employees
if they did not report for work on August 7. The letters also
imposed discipline on the employees by requiring them to re-
turn all company property on August 7, and threatening that if
they did not, “proper authorities” would be notified. Thus, the
threat of discipline was compounded with the threat of possible
arrest. The threat and discipline set forth in the Respondent’s
August 6 letters interfere with the employees’ Section 7 rights,
and violate Section 8(a)(1) of the Act.
The Respondent claims that it engaged in these threatening
and disciplinary actions because its employees had failed to
comply with the call-in policy. The Respondent claims to have
a call-in policy, although, again, this policy is not in writing.
The call-in policy requires employees to notify the Respondent
by 8 a.m. on any day they will be absent from work. The policy
assists the Respondent in scheduling work and work projects.
The Respondent’s factual argument fails to address the facts
involved in its threats and discipline. First, the Respondent
threatened the employees with discipline without regard to the
call-in policy. (“Your failure to report for work on August 7th
and work on August 7th, 2003 and each day thereafter . . . will
result in Center Service imposing discipline on you.”) Thus, the
Respondent threatened to impose discipline on its employees
solely for their honoring the picket line in the future, not for
failing to comply with the call-in policy in the past. Second, the
discipline that was imposed—return of company property—
was more severe than the Respondent’s usual response to a
violation of the call-in policy, which was a warning (that is, no
discipline). (Tr. 487–488.) Accordingly, the Respondent’s fac-
tual defense to the present charge is rejected.
The Respondent’s violation of Section 8(a)(1) is established,
as set forth above, by Board precedent dealing with discipline
and threats of discipline because of Section 7 activities. How-
ever, if the Respondent’s interests in maintaining efficient as-
signments of work to its employees were to be balanced against
the employees’ Section 7 rights in refusing to cross the picket
line, see Business Services by Manpower, 272 NLRB 827
(1984), enf. denied 784 F.2d 442 (2d Cir. 1986), the conclusion
would be the same. The Respondent offered no evidence con-
cerning the extent to which, if at all, its business was disrupted
by the employees’ failure to comply with the call-in policy.
Moreover, the picket line was set up at 6:45 a.m., and the em-
ployees who refused to cross the picket line congregated next to
the company’s trucks in the parking lot across the street from
Eagleson’s office. The Respondent not only knew the identity
of the employees who were refusing to cross the picket line,
Welsh even took their picture. Thus, the information that the
Respondent would obtain from the observance of its call-in
policy was timely obtained in any event. Accordingly, this case
is “plainly distinguishable” from Business Services by Man-
power, supra. See Western Stress, Inc., 290 NLRB 678, 679
(1988).
The Respondent violated Section 8(a)(1) by disciplining and
threatening to discipline its employees for their protected activ-
ity in honoring a picket line at the Respondent’s facility.
3. Surveillance
Absent proper justification, photographing employees en-
gaged in protected concerted activities constitutes unlawful
surveillance because it has a tendency to intimidate employees,
implant the fear of future reprisals, and interfere with the exer-
cise of Section 7 rights. Photographing in the mere belief that
something might happen is not a sufficient justification. F. W.
Woolworth Co., 310 NLRB 1197 (1993); Waco, Inc., 273
NLRB 746 (1984). The employer’s motive when it surveils
employees’ protected activities is not an essential element of an
8(a)(1) violation. The test is whether the conduct interferes with
the free exercise of Section 7 rights. American Freightways
Co., 124 NLRB 146, 147 (1959). The Board has determined
that an employer interferes with its employees’ free exercise of
their Section 7 rights when it takes photographs of them on a
picket line. Thus, surveillance may be unlawful without regard
to whether the employees know of it. Starbrite Furniture
Corp., 226 NLRB 507 (1976).
The Respondent argues that Lockhart was the only employee
who picketed, and he was on layoff at the time of the picketing.
Without regard to the relevance of this factual argument, it is
CENTER SERVICE SYSTEM DIVISION 745
inaccurate. Ruddy picketed, together with other employees such
as Mike Oliver, Dan Parker, and an employee identified only as
Kevin.
The Respondent also argues that there was no need for it to
take pictures of the employees on the picket line. Presumably,
this argument is preliminary to another factual argument, viz.,
that the employees on the picket line were not actually intimi-
dated by having management take their photographs on the
picket line. But a defense to a charge of unlawful surveillance
by the taking of photographs of picketers is not whether the
employer had no need to take the photographs, but rather,
whether the employer can prove that it had a need to take the
photographs. Moreover, the violation of 8(a)(1) does not de-
pend on the employees’ subjective reaction to the unlawful
activity. E.g., Sunnyside Home Care Project, Inc., 308 NLRB
346 fn. 1 (1992).
The Respondent also argues that Welsh started taking photo-
graphs after he saw Ranger videotape some of the activity.
“[T]he Board requires an employer engaging in such photo-
graphing or videotaping to demonstrate that it had a reasonable
basis to have anticipated misconduct by the employees. ‘[T]he
Board may properly require a company to provide a solid justi-
fication for its resort to anticipatory photographing.’” National
Steel & Shipbuilding Co., 324 NLRB 499 (1997), quoting
NLRB v. Colonial Haven Nursing Home, 542 F.2d 691, 701
(7th Cir 1976). The Respondent presented no evidence that it
anticipated picket line misconduct. Accordingly, the Respon-
dent’s argument that Welsh started taking photographs after he
saw Ranger videotape some of the picket line activity does not
address, much less meet, the Board’s imposing justification
test.
The Respondent admits that it took photographs of the em-
ployees in the picket line at its facility. The picket line was
composed, inter alia, of the Respondent’s employees. The Re-
spondent has failed to prove a justification for the photograph-
ing. Accordingly, the Respondent has violated Section 8(a)(1)
of the Act.
4. Threat to fire employees of the Sheet Metal Workers
Union if Local 370 were selected to represent
the Respondent’s plumbing employees
The threat of job loss is one of the most flagrant examples of
interference with Section 7 rights. Sheraton Hotel Waterbury,
312 NLRB 304 (1993). On August 7, Eagleson, in the presence
of his service manager, told Ruddy, the Sheet Metal Workers
union steward, “If we let the Plumbers come in here, it is going
to take three or four of your men’s positions. Who would [you]
like to get rid of here?” This threat of job loss if the plumbers
were to select Local 370 as their representative interferes with
the Section 7 rights of all the Respondent’s employees, and
violates Section 8(a)(1) of the Act.
The Respondent contends that Eagleson’s statement to
Ruddy constituted Eagleson’s opinion of the effect that Local
370’s collective-bargaining agreement would have on the sheet
metal workers, and that Section 8(c) of the Act protects Eagle-
son in voicing his opinion. This contention is rejected. If an
employer makes a prediction of the effects unionization will
have on the Company, “the prediction must be carefully
phrased on the basis of objective fact to convey an employer’s
belief as to demonstrably probable consequences beyond his
control.” NLRB v. Gissel Packing Co., 395 U.S. 575, 618
(1969). Eagleson’s threat that three or four sheet metal workers
would lose their jobs does not meet this test.
The bargaining unit that Local 370 seeks to represent con-
sists of two plumbers. The unit does not consist of any sheet
metal workers. Local 370 did not solicit any workers to sign
cards other than the Respondent’s two plumbers. When Ranger
met with Eagleson on August 4, Ranger told Eagleson that the
plumbers had signed cards and presented these two cards to
Eagleson. Eagleson was also aware of the employees Local 370
represented because he was formerly a member of Local 370.
Notwithstanding Ranger’s August 5 letter, which contained an
inadvertent reference to the Respondent’s HVAC employees,
Eagleson was not confused about the specific employees of the
Respondent that Local 370 sought to represent.
Eagleson also claims that Local 370’s collective-bargaining
agreement seeks to represent sheet metal workers. Again, how-
ever, this contention is belied by Local 370’s organizing efforts
and its demand for recognition. Moreover, the Respondent
presented no evidence of any jurisdictional disputes between
the sheet metal workers and the plumbers, nor evidence of the
plumbers union claiming jobs performed by the sheet metal
workers, either at the Respondent or any other company. In
short, the Respondent presented no evidence of objective facts
supporting “demonstrably probable consequences” upon which
Eagleson’s threat was made.
The cases cited by the Respondent to support its contention
that Eagleson’s threat to Ruddy did not unlawfully interfere
with the employees’ Section 7 rights are inapposite. In Air-
stream, Inc. v. NLRB, 877 F.2d 1291 (6th Cir. 1989), the em-
ployer told its employees about a new job awareness program
soon after the union filed an election petition. The court found
that the employer’s communications concerning the awareness
program did not unlawfully interfere with the employees’ Sec-
tion 7 rights. However, the lawfulness of communications con-
cerning a benefit from an employer during an organizing drive
is inapposite to the question in the present case concerning the
lawfulness of the employer’s threat of the loss of jobs should
the union be successful in an organizing drive.
Of course, the general proposition must be kept in mind: “an
employer is free to communicate to his employees any of his
general views about unionism or any of his specific views
about a particular union, so long as the communications do not
contain a ‘threat of reprisal or force or promise of benefit.’”
NLRB v. Gissel Packing Co., supra at 618. However, the opera-
tive distinction between the present case and the cases relied on
by the Respondent is that Eagleson threatened his employees
with the loss of jobs if Local 370 were selected to represent the
plumber employees, whereas none of the cases cited by the
Respondent involved a threat of job loss resulting from pro-
tected activity.
Thus, in Atlantic Forest Products, 282 NLRB 855 (1987),
the Board found that speeches made by the employer’s manag-
ers before an election did not threaten plant closure and the loss
of benefits in violation of Section 8(a)(1). A prominent fact
relied on by the Board in reaching its conclusion was that none
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD746
of the speeches contained a direct threat of the adverse conse-
quences. In the present case, however, there was a direct threat:
“If we let the Plumbers come in here, it is going to take three or
four of your men’s positions.” Accordingly, Atlantic Forest
Products is not controlling and does not modify the well-
established principle that the threat of job loss because of orga-
nizing activity interferes with Section 7 rights.
In Blue Grass Industries, 287 NLRB 274 (1987), the Board
found that a manager’s reference to a separate company’s plant,
that had shut down after a strike, did not constitute a threat to
close if the employees selected the union. There was no direct
threat of adverse consequences as there was in the present case.
In Salvation Army Residence, 293 NLRB 944 (1989), the Board
found that the employer’s statement that the union belonged to
the Mafia was protected by Section 8(c) as a privileged expres-
sion of opinion. In Sears, Roebuck & Co., 305 NLRB 193
(1991), the Board found the employer’s statement that the un-
ion might send someone out to break employees’ legs to collect
dues, although flip and intemperate, was an expression of per-
sonal opinion protected by Section 8(c). The Board noted that
to constitute a threat the threatened action must be within the
party’s power to carry out, whereas the alleged threatened ac-
tion by the employer was not ascribed to the employer, but to
the union. The Respondent cites Safety Kleen Oil Services, 308
NLRB 208 (1992) (miscited as “Troxel Co.”), but this case
lends no support to the Respondent’s position. In NLRB v. Pen-
tre Electric, Inc., 998 F.2d 363 (6th Cir. 1993), the employer
stated that, based on the company’s customer base, it would
lose customers if the union were selected; however, the em-
ployer explained that the company would still prosper. The
court noted that “[t]he record is simply devoid of any evidence
that [the employer] suggested that Pentre might close its
doors.” Id. at 370. Similarly, none of the remaining cases cited
by the Respondent, Beverly Enterprises, 310 NLRB 222
(1993); Hampton Inn, 309 NLRB 942 (1992); and Flexsteel
Industries, 311 NLRB 257 (1993), involved direct threats of job
loss or adverse consequences. Unlike these cases, the present
case involves a direct threat by the employer that three or four
jobs would be lost if the union, Local 370, were selected as the
plumbers’ representative.
The Respondent argues herein that Eagleson did not make a
threat that three or four jobs would be lost if Local 370 were
selected to represent the plumbers. This factual argument may
explain the Respondent’s reliance on inapposite cases that did
not involve such a threat. Nevertheless, Ruddy was a credible
witness, and his testimony regarding his meeting with Eagleson
has been credited. Moreover, it is apparent that Eagleson in-
tended to provoke a clash between the Sheet Metal Workers
Union and Local 370, and his threat to Ruddy is consistent with
that intent.
In summary, the Respondent has failed to present objective
facts to support the demonstrably probable consequence, be-
yond the Respondent’s control, to justify or support its threat
that three or four jobs would be lost. Eagleson’s threat that such
jobs would be lost if Local 370 were selected to represent the
Respondent’s plumbers is a threat that is not protected by Sec-
tion 8(c). For all of the foregoing reasons, Eagleson’s threat
violates Section 8(a)(1).
5. Eagleson’s threat of adverse employment actions and
solicitation of grievances during his discussion with Rose
a. Threat
In his discussion with Rose in mid-August, Eagleson told
Rose that, after Local 370’s previous two unsuccessful organiz-
ing drives, he “eventually got rid of the [useless] sons of
bitches.” Rose then asked Eagleson if he considered Rose to be
useless, and Eagleson replied, “No, I hear you’re a good one.”
The General Counsel argues that the implicit, unlawful threat in
Eagleson’s first statement was that Eagleson would also get rid
of Rose for his current support of Local 370. I disagree.
The question is, considering all the circumstances of Eagle-
son’s statement, did it reasonably tend to interfere with Rose’s
Section 7 rights. Sunnyside Home Care Project, Inc., 308
NLRB 346 (1992). The resolution of this question is difficult
and is close. The statement does not contain a direct threat. On
the other hand, the statement does demonstrate, in a clear and
arguably threatening manner, Eagleson’s antiunion animus. The
statement links, with no justification or explanation, employees
who support a union with useless “sons of bitches.” Neverthe-
less, Eagleson assured Rose, immediately after this statement
and in response to Rose’s question, that he did not consider
Rose to be useless. (Of course, the question by Rose is evidence
that he felt threatened by the statement. However, the immedi-
ate reassurance by Eagleson would have eliminated Rose’s
concern.) In the absence of other evidence to show that the
statement could reasonably be understood as a threat to dis-
charge Rose for his union support, I conclude the General
Counsel has not sustained his burden of proof that the statement
constituted an unlawful threat. Accordingly, I will recommend
that this charge be dismissed.
b. Solicitation of grievances
An employer interferes with the Section 7 rights of employ-
ees by soliciting employee grievances and promising to remedy
them during a union organizational campaign. Safety Kleen Oil
Services, supra at 209. In addition, when an employer institutes
a new practice of soliciting employee grievances during a union
organizational campaign, “there is a compelling inference that
he is implicitly promising to correct those inequities he discov-
ers as a result of his inquiries and likewise urging on his em-
ployees that the combined program of inquiry and correction
will make union representation unnecessary.” Embassy Suites
Resort, 309 NLRB 1313, 1316 (1992), citing Reliance Electric
Co., 191 NLRB 44, 46 (1971).
At the end of the mid-August meeting, Eagleson told Rose,
“If you have any problems with this company, I’m the Presi-
dent . . . you need to discuss these with me.” This was a change
from the previous policy of the Respondent for handling em-
ployee complaints. The previous policy required the employee
to initially go to the immediate supervisor before going to
Eagleson. Eagleson’s solicitation of complaints or problems
from Rose through a new procedure interfered with Rose’s
Section 7 rights. House of Raeford Farms, 308 NLRB 568, 569
(1992) (“It is well established, however, that an employer can-
not rely on past practice to justify solicitation of employee
grievances if the employer significantly alters its past manner
CENTER SERVICE SYSTEM DIVISION 747
and methods of solicitation during the union campaign.”) Ac-
cordingly, the Respondent violated Section 8(a)(1) of the Act
through Eagleson’s unlawful solicitation of complaints from
Rose in mid-August.
6. Prohibition against wearing shirts with union insignia
The right to wear union insignia at work has long been rec-
ognized. Republic Aviation Corp. v. NLRB, 324 U.S. 793
(1945). In the absence of special circumstances, a restriction on
the wearing of union buttons or insignia constitutes a violation
of Section 8(a)(1). Virginia Electric & Power Co., 260 NLRB
408 (1982). Mere contact with customers or other persons is not
a special circumstance. Id.
When Kristie Eagleson directed Rose to remove his union
shirt, she told him that she did not want the contractor to think
that the Respondent was paying union wage. However, the
Respondent has failed to establish the reasonableness, much
less the probability, of such an inference by a contractor or
anyone else. Moreover, even if a contractor were to make such
an inference, the Respondent failed to show how this inference
would be detrimental in any way. Indeed, it seems just as likely
to generate a favorable reaction as an unfavorable one, but it is
not necessary to speculate because the Respondent has failed to
offer any proof on the matter.
For the same reason, it is not necessary to decide whether the
Respondent’s desire to have contractors believe that it does not
pay union scale constitutes a “special circumstance” exempting
the Respondent’s alleged clothing restriction from the general
right of employees to wear union insignia recognized in Repub-
lic Aviation. See NLRB v. Harrah’s Club, 337 F.2d 177 (9th
Cir. 1964); United Parcel Service, 195 NLRB 441 (1972).
However, it should be noted that, especially in light of there
being no requirement to wear uniforms and the Respondent’s
allowance of many other logos on employees’ work T-shirts,
this case does not involve a claim of presenting to contractors
or to the public an image of neatly uniformed workers. See
United Parcel Service, supra.
The Respondent argues that the violation, if any, was de
minimus. Supporting this argument is the fact that Rose had
intended to remove his union shirt before starting work. Never-
theless, this violation is more than a mere technicality. Rose
was allegedly directed to remove his union shirt in accordance
with the Respondent’s policy, yet the Respondent has not yet
rescinded or modified that policy. Moreover, this violation was
one of several violations committed by the Respondent after
Local 370 told Eagleson and showed Eagleson that all his
plumbing employees had signed authorization cards. The Re-
spondent’s de minimus contention is rejected.
The Respondent claims that it has had a policy for many
years prohibiting the wearing of clothing that has religious,
political, offensive sayings, or offensive pictures. However, the
Respondent has not explained how a shirt that displays a union
insignia fits within one of these prohibited categories. A shirt
bearing only a union’s insignia does not contain religious, po-
litical, or offensive sayings or offensive pictures. Thus, either
Rose’s union shirt did not violate the Respondent’s work cloth-
ing policy, leading to the inference that the policy was unlaw-
fully enforced against Rose because he had recently joined
Local 370 in the midst of an organizing campaign. Or, Rose’s
union shirt did violate the Respondent’s work clothing policy,
as the Respondent claims, leading to the conclusion that the
policy and the enforcement of the policy violate the Act. In
either event, the Respondent’s direction to Rose to remove his
union shirt interfered with his Section 7 rights, and violated
Section 8(a)(1).
7. Interrogation
Questions concerning union sympathies in the context of a
job application interview are inherently coercive, and are viola-
tive of Section 8(a)(1), even when the interviewee is subse-
quently hired. Rochester Cadet Cleaners, 205 NLRB 773
(1973).
When Lawrence reported to the Respondent’s in late August
for a job interview, he first met with Welsh and was then
brought to Eagleson’s office. Eagleson asked Lawrence how he
felt about unions. Lawrence replied that there were pros and
cons, an answer he felt Eagleson wanted to hear. Eagleson’s
question is inherently coercive and violates Section 8(a)(1).
Moreover, if all the circumstances of the interrogation of
Lawrence were considered, the result would not change. The
test of whether an unlawful interrogation has occurred is
whether, under all the circumstances, the alleged interrogation
reasonably tends to restrain, coerce, or interfere with the em-
ployees in the exercise of rights guaranteed by the Act. Ross-
more House, 269 NLRB 1176 (1984), affd. sub nom. Hotel
Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In
making this determination, all of the surrounding circumstances
must be considered. Either the words themselves or the context
in which they are used must suggest an element of coercion or
interference. Id. Relevant circumstances include the time and
place of the interrogation, the method used, the personnel in-
volved, the nature of the information sought, the known posi-
tion of the employer, whether the employee was given assur-
ances that there would be no reprisals, whether a valid purpose
for the interrogation was communicated to the employee, the
truthfulness of the employee’s response, and whether the per-
son being questioned is an open union adherent. Performance
Friction Corp., 335 NLRB 1117 (2001), citing Bourne v.
NLRB, 332 F.2d 47 (2d Cir. 1964); Rossmore House, supra;
Sunnyvale Medical Clinic, 277 NLRB 1217 (1985).
The place of Eagleson’s interrogation of Lawrence was
Eagleson’s office. Eagleson is the Respondent’s president and
owner. No valid purpose was communicated to Lawrence.
There is no evidence of whether Lawrence knew Eagleson’s
feelings about unions, although Eagleson did say to Lawrence
that if he wanted to join the Sheet Metal Workers Union,
Eagleson would help. Of course, Lawrence was applying for a
plumbing position and would not be a member of the sheet
metal workers bargaining unit. Lawrence was given no assur-
ances that there would be no reprisals, and Lawrence was not
an open union adherent. Lawrence did not say whether his an-
swer was truthful, but truthfulness was not Lawrence’s concern.
His only concern was to give Eagleson an answer he felt Eagle-
son wanted.
Under all the circumstances, the factors weigh in favor of a
conclusion that Eagleson’s questioning Lawrence as to how he
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD748
felt about unions was coercive. Indeed, the circumstances of
Eagleson’s interrogation of Lawrence about Lawrence’s union
sympathies were inherently coercive. Accordingly, Eagleson’s
interrogation of Lawrence violated Section 8(a)(1) of the Act.
B. Section 8(a)(1) and (3)
1. The union members who applied for the advertised
plumber opening
To establish a discriminatory refusal-to-hire in violation of
Section 8(a)(3) of the Act, the General Counsel must prove the
following: (1) the Respondent was hiring or had concrete plans
to hire; (2) the applicants had experience or training relevant to
the announced requirements of the position for hire or the re-
quirements were applied as a pretext for discrimination; and (3)
antiunion animus contributed to the decision not to hire the
applicants. FES, 331 NLRB 9, 12 (2000). Once this is estab-
lished, the burden shifts to the Respondent to show that it
would not have hired the applicants even in the absence of their
union affiliation. “If the respondent asserts that the applicants
were not qualified for the positions it was filling, it is the re-
spondent’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 superior qualifica-
tions, and that it would not have hired them for that reason even
in the absence of their union support or activity.” Id.
The Respondent does not expressly concede, but nor does it
dispute, that the General Counsel has satisfied the above three
elements establishing a violation of Section 8(a)(3).12 Rather,
the Respondent argues that it would have refused to hire the
union applicants without regard to their union affiliation. Ac-
cordingly, it is only necessary to briefly consider the three ele-
ments of the General Counsel’s prima facie case.
Element 1. On August 17, the date of the Respondent’s ad-
vertisement in the Flint Journal, the Respondent had concrete
plans to hire at least one journeyman plumber. This is shown by
the Respondent’s advertisement, which prominently listed an
opening for a journeyman plumber. Moreover, the Respondent
did hire two journeymen plumbers in October (although the
need to hire two, rather than one, plumbers may have arisen
after the Respondent discharged Rose in September.)13 The
only qualification listed in the advertisement was a state (jour-
neyman) license. Element 2. On August 18, seven qualified,
journeymen plumbers applied for the available, journeymen

12 Eagleson testified that he is not sure whether he needed plumbers
on the date the advertisement appeared in the newspaper. Nevertheless,
the Respondent did not assert this as a reason why he did not hire the
union applicants. Moreover, whether or not Eagleson is presently sure
he needed plumbers when the advertisement appeared, the fact remains
that he advertised for a plumber on that date and spent $382.92 doing
so.
13 On August 17, the Respondent also had concrete plans to hire two
plumber’s helpers or apprentices, which is proven by the hiring of
Lawrence in late August and Crosno in October. The hiring of two
plumber’s apprentices corroborates the determination that the Respon-
dent had concrete plans to hire at least one journeyman plumber be-
cause, under State law, an apprentice is required to work with a li-
censed plumber. Therefore, two apprentices would be available to work
with the Respondent’s expected complement of two journeymen
plumbers.
plumber position(s) at the Respondent (consisting of the eight
applicants, less the application of Young, who the General
Counsel did not prove was a journeyman plumber). On August
19, four qualified, journeymen plumbers applied for the avail-
able, journeymen plumber position(s) (consisting of the five
applicants, less the application of Wheeler, who the General
Counsel did not prove was a journeyman plumber). On October
2, one qualified, journeymen plumbers applied for the avail-
able, journeymen plumber position(s) at the Respondent (con-
sisting of the three applicants, less the application of Nelson,
who the General Counsel did not prove was a journeyman
plumber, and the application of Gallant who was only available
for part-time work). All of these 12 applicants were members of
Local 370 and they all met the single, publicly announced re-
quirement for the position—a State license. See GM Electrics,
323 NLRB 125, 128 fn. 13 (1997), cited in FES, supra at 12.
Element 3. The Respondent knew the applicants were union
members, and it does not argue otherwise. The Respondent’s
antiunion animus is established by all the facts set forth herein,
and especially Eagleson’s statement to Ranger that he would
never sign an agreement with Local 370 and that he would go
out of business before he would do so, as well as Eagleson’s
statement to Rose in which he called union members useless
“sons of bitches.”
The Respondent argues that it refused to hire the union ap-
plicants for various, nondiscriminatory reasons, and these al-
leged reasons are incorporated, in a shotgun approach, in the
Respondent’s answer to the complaint in this proceeding. For
example, the Respondent asserts that 10 applicants (Cahill,
Connor, McDermitt, Slattery, Morris, Steco, Young, Herriman,
Mobilio, and Wheeler) were not considered because their appli-
cations were not filled out in the Respondent’s building. How-
ever, there was no such requirement or condition when these
applicants submitted their applications, and the Respondent did
not tell the applicants of any such requirement. Moreover, there
is no evidence that any other applications, much less the appli-
cations of Blasdell, Liddell, and Crosno, were completed or
were required to be completed in the Respondent’s building.
The Respondent claims that certain applications (Cahill,
Connor, McDermitt, and Slattery) were not considered because
the applicants did not answer or did not follow instructions in
answering the questions in the application relating to general
knowledge. However, Blasdell, Lawrence, and Crosno also did
not answer the general knowledge questionnaire. Moreover,
Liddell failed to answer many of the questions in the question-
naire, and answered the questionnaire in the same, supposedly
wrong, way as Cahill, Connor, McDermitt, and Slattery.14 In
addition, Rose, who was hired in January 2003, completed his
application in the same, supposedly wrong and disqualifying,
manner.
The Respondent claims that certain applicants (Cahill, Con-
nor, McDermitt, Slattery, Steco, Morris, Young, Herriman,
Wheeler, and Nelson) failed to state in their applications that
they had residential, as opposed to commercial, plumbing ex-

14 These applicants, as well as Liddell, placed check marks next to
listed plumbing categories in which they had experience. The question-
naire instructed the applicant to state “yes or no.”
CENTER SERVICE SYSTEM DIVISION 749
perience. First, no such requirement or preference was listed in
the Respondent’s advertisement for the position. Second, the
Respondent’s application does not ask the applicant to differen-
tiate between or to highlight residential and commercial plumb-
ing experience. Third, every applicant from Local 370 listed
experience on his application with a plumbing contractor who
performed residential as well as commercial plumbing.
The Respondent claims that the applications of Backlund,
Herriman, and Wise were not considered because their applica-
tions stated that they were currently working, and the Respon-
dent (allegedly) does not hire plumbers who are currently work-
ing. (GC Exh. 1(t); Tr. 339.) However, the applications of
Rose, Lawrence, and Liddell state that they were then currently
working, and the Respondent did not reveal any hesitancy in
hiring them. (GC Exhs. 23, 34; R Exh. 10.) The Respondent
also claims that the applications of several union members were
not considered because references were not provided in the
applications. However, Blasdell and Liddell also failed to list
references in their applications.
The Respondent argues that it hired Blasdell and Liddell as
journeymen plumbers because they were former employees and
their work had been satisfactory. However, Slattery had also
worked for the Respondent in the past, and there was no evi-
dence that the Respondent was dissatisfied with his work.
Moreover, the Respondent’s argument does not answer why it
had previously—long before it hired Blasdell and Liddell—
refused to hire any of the union applicants. The Local 370
plumbers applied for the Respondent’s advertised plumbing
position the day after the advertisement appeared in the news-
paper. The Respondent failed to contact any of the union appli-
cants, and it waited almost 2 months before soliciting Blasdell
and hiring Blasdell and Liddell. It is reasonable to infer that the
Respondent wanted and needed the plumbers for which it ad-
vertised when the advertisement appeared. There was no appar-
ent need to delay approximately 2 months in hiring plumbers,
especially after so many qualified plumbers had applied for the
job the day after the advertisement appeared. Moreover, if the
Respondent had a practice or policy or preference of hiring
plumbers that it had previously employed, there was no need
for it to incur the expense of the advertisement ($382.92) or to
spend the time in distributing, receiving, processing, and re-
viewing other applications. In fact, the Respondent’s interest in
hiring plumbers it formerly employed is a pretext that only
arose after the Respondent received the applications from the
qualified plumbers who were members of Local 370, the union
that was seeking to represent the Respondent’s plumbing em-
ployees.
Steco and Cahill are master plumbers, whereas Blasdell and
Liddell are journeymen plumbers. This is affirmative proof the
superior qualifications of Steco and Cahill. In addition, the
experience of the 12 union plumbers ranged from a minimum
of 7 years (Connor and Solarz) to almost 50 years (Steco). The
union plumbers had experience in both commercial and resi-
dential plumbing. Steco and Eagleson attended the same ap-
prentice plumbing classes together in 1965 and have been
friends since that time.
The Respondent’s explanations for its refusal to hire any of
the Local 370 applicants are not credible, do not withstand
factual analysis, and are belied by its actions in hiring Blasdell
and Liddell. In short, the Respondent’s reasons for its refusal to
hire, or to even interview or contact, any of the 12 qualified
plumbers who applied for the advertised position are pretextual.
Accordingly, the inference of wrongful motive established by
the General Counsel remains intact. Limestone Apparel Corp.,
255 NLRB 722 (1981). The Respondent violated Section
8(a)(3) and (1) of the Act in its refusal to hire any of the union
applicants for its advertised plumber position.
2. Discharge of Rose
Under the test set forth in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983), when the employer is
alleged to have violated Section 8(a)(3) in discharging an em-
ployee, the General Counsel has the burden of proving by a
preponderance of the evidence that antiunion sentiment was a
motivating factor in the discharge. To meet this burden, the
General Counsel must offer credible evidence of union or other
protected activity, employer knowledge of this activity, and the
existence of antiunion animus. Briar Crest Nursing Home, 333
NLRB 935 (2001). Once such unlawful motivation is shown,
the burden shifts to the employer to prove its affirmative de-
fense that the alleged discriminatory conduct would have taken
place even in the absence of the protected activity. Id.; Wright
Line, supra. If the employer’s stated motive is found to be false,
the circumstances may warrant an inference that the true motive
is an unlawful one. Shattuck Denn Mining Corp. v. NLRB, 362
F.2d 466, 470 (9th Cir. 1966). Nevertheless, the employer’s
defense does not fail simply because not all of the evidence
supports it, or even because some evidence tends to negate it.
Merrilat Industries, 307 NLRB 1301, 1303 (1992). The ulti-
mate burden of proving discrimination always remains with the
General Counsel. Wright Line, supra.
The evidence presented to satisfy the General Counsel’s ini-
tial burden must be analyzed separately from the evidence pre-
sented in the Respondent’s defense. Pace Industrial, 320
NLRB 661 (1996), enfd. 118 F.3d 585 (8th Cir. 1997). Never-
theless, an employer’s stated reasons for an adverse employ-
ment action against an employee can be considered as a part of
the General Counsel’s initial burden, and if those reasons are
pretextual, they can support an inference that the employer had
an unlawful motive. Black Entertainment Television, 324
NLRB 1161 (1997). The entire record may be examined to
ascertain whether the adverse employment action was moti-
vated by protected activity. Thus, in determining whether the
evidence presented has satisfied the General Counsel’s initial
burden, the evidence is not limited to the evidence introduced
by the General Counsel, but can also include the reasons ad-
vanced by the Respondent for the discharge and any additional
evidence offered at the hearing by the Respondent. American
Gardens Management Co., supra at fn.5; Williams Contracting,
309 NLRB 433 (1992).
Rose engaged in protected or union activity by signing an
authorization card for Local 370. The Respondent knew of his
protected activity because Rose’s signed card was shown to and
read by Eagleson on August 4. In addition, Rose later wore a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD750
union shirt to work that Kristie Eagleson directed him to re-
move. Antiunion animus is shown, inter alia, by Eagleson’s
statement to Ranger that he would never sign an agreement
with the Union and by Eagleson’s derogatory comment to Rose
about union members. The Respondent’s commission of 8(a)(1)
violations also demonstrates animus. Greyston Bakery, 327
NLRB 433 (1999). Accordingly, the General Counsel has es-
tablished that Rose’s discharge was motivated by an unlawful
purpose prohibited by Section 8(a)(3).
In defense, the Respondent argues that its discharge of Rose
was not discriminatory because it did not “discharge” Rose.
Rather, the Respondent claims that it simply refused to allow
Rose to rescind his alleged voluntary resignation. This argu-
ment is based on facts that have not been found in this case and
that have been specifically rejected. Accordingly, the Respon-
dent’s defense is rejected.
Notwithstanding, even if its factual argument were accepted,
the Respondent’s defense does not prove enough because if
Rose had voluntarily resigned, the question remains, what was
the Respondent’s motivation for refusing to allow Rose to re-
scind his resignation. See Merrow Machine Co., 337 NLRB
421 fn. 1 (2002). Rose’s use of his truck in going to the Union’s
offices on his way home from his job in Clarkston would not
justify the Respondent’s action. This is seen from the Respon-
dent’s initial decision to take back Rose’s truck, rather than
discharge him, in imposing discipline for Rose’s unauthorized
use of the truck. Moreover, the Respondent did not discharge
other employees when they engaged in similar conduct.
The Respondent claims that, on September 25, Welsh told
Rose that the Respondent would not allow Rose to rescind his
resignation because of performance problems Rose had in a job
in Williamston about 1 week previously. Rose denies that
Welsh told him of any performance problems, and Rose is a
more credible witness. In any event, the Respondent’s claim is
itself not credible. Rose had worked for the Respondent since
January. The only job that Welsh could identify where Rose
allegedly had a performance problem was the Williamston job,
and this job was done within about 1 week of the day Rose was
discharged. Moreover, if performance was actually a problem
in Rose’s employment, it would likely have been documented
or mentioned to Rose while he was employed. But it was not.
The evidence in this case, especially when considered with the
Respondent’s antiunion animus, compels the conclusion that
the issue of a performance problem is an issue the Respondent
contrived after Rose was discharged.
The pretextual and mendacious nature of the Respondent’s
explanation for its termination of Rose is also seen in Welsh’s
statement to Rose that he (Welsh) knew Rose was not happy
working for the Respondent. Rose had never said this to Welsh
or Eagleson, and he had done nothing to substantiate this con-
trived claim. Rather, Welsh was seeking Rose’s concurrence so
that Rose’s imminent discharge would seem less harsh, or even
consistent with Rose’s wishes. Pretext is also seen in the cha-
rade instigated by Welsh and Eagleson regarding Rose’s al-
leged resignation. Rose had not told Welsh that he quit. Rather,
Welsh and Eagleson, knowing they wanted to discharge Rose,
but lacking a justifiable reason for doing so, pretended Rose
had told Welsh that he quit. Then, when Rose came to work on
Monday, September 29, and knowing nothing of Welsh’s and
Eagleson’s contrivance, he was surprised to hear Welsh talk
about his resignation. Although Rose protested that he had
never resigned, Welsh continued the charade and told Rose that
his resignation was accepted. In any event, Welsh’s statement
to Rose does not alter the substance or the nature of the Re-
spondent’s action, which was the discharge of Rose.
Because the reasons advanced by the Respondent for its dis-
charge of Rose are false and a pretext for its actual motive in
taking that action, the Respondent necessarily did not rely on
those reasons in taking its action. Accordingly, there is no need
to further address these reasons because a finding of pretext
“leav[es] intact the inference of wrongful motive established by
the General Counsel.” Limestone Apparel Corp., 255 NLRB
722 (1981). The Respondent’s discharge of Rose violated Sec-
tion 8(a)(3) and (1) of the Act.
C. Gissel Bargaining Order
An employer may be directed to bargain with a union that
has not been certified by the Board in two categories of cases.
The first category comprises “‘exceptional’ cases marked by
‘outrageous’ and ‘pervasive’ unfair labor practices.” NLRB v.
Gissel Packing Co., 395 U.S. 575, 613–614 (1969). The second
category (category II) includes “less extraordinary cases
marked by less pervasive practices which nonetheless still have
the tendency to undermine majority strength and impede the
election processes,” and where at one point the union had ma-
jority support in the bargaining unit.... If the Board finds that
the possibility of erasing the effects of past practices and of
ensuring a fair election (or a fair rerun) by the use of traditional
remedies, though present, is slight and that employee sentiment
once expressed through cards would, on balance, be better pro-
tected by a bargaining order, then such an order should issue.”
Id. at 614–615.
“Certain violations have been regularly regarded by the
Board and the courts as highly coercive. These are the so-called
‘hallmark’ violations and their presence will support the issu-
ance of a bargaining order unless some significant mitigating
circumstance exists.” NLRB v. Jamaica Towing Co., 632 F.2d
208, 212 (2d Cir. 1980). The discharge of an employee because
of union activity is such a hallmark violation and “is one of the
most flagrant means by which an employer can hope to dis-
suade employees from selecting a bargaining representative
because no event can have more crippling consequences to the
exercise of Section 7 rights than the loss of work.” Mid-East
Consolidation Warehouse, 247 NLRB 552, 560 (1980).
The lasting effect of an employer’s unfair labor practices is
heightened when the bargaining unit is small. As the Board
noted in River West Development, 311 NLRB 591 fn. 1 (1993),
“Particularly in a small unit, the impact of discharging one-
third of the unit [one of three unit employees was discharged]
has a greater effect and is likely to chill Section 7 rights in the
entire unit.” The chilling effect of the Respondent’s discharge
of Rose in the present case is greater than in River West Devel-
opment because Rose represented 50 percent of the employees
in the unit.
The coerciveness and lasting effect of the employer’s actions
is also magnified when high management officials commit the
CENTER SERVICE SYSTEM DIVISION 751
unfair labor practices. Debbie Reynolds Hotel, 332 NLRB 466
(2000). In the present case, the Respondent’s plumbing man-
ager/sales manager, the Respondent’s president and owner, and
the owner’s daughter committed the unfair labor practices.
Thus, the Respondent’s highest management complement and
entire ownership undertook and participated in unfair labor
practices that demonstrated the Respondent’s attitude toward
the union and toward organizing efforts on behalf of the union.
Such actions have a “tendency to undermine majority strength
and impede the election process.” Cassis Management Corp.,
323 NLRB 456, 460 (1997).
Although Rose is entitled to reinstatement and backpay,
these remedies would not erase the coercive effect of the Re-
spondent’s conduct. In light of the small size of the bargaining
unit, the unit employees, whether they constitute one or more
employees, will likely know about his discharge and the under-
lying message. River West Development, supra. Moreover,
Rose would not likely risk another period of unemployment “by
engaging in further attempts to improve [his] working condi-
tions, in the absence of a bargaining order.” Cassis Manage-
ment Corp, supra. The ownership and management of the Re-
spondent remains the same as when Rose was unlawfully dis-
charged, which “can serve only to reinforce in the minds of the
employees the lingering effects of the Respondent’s viola-
tions.” State Materials, Inc., 328 NLRB 1317 (1999).
The Respondent’s unfair labor practices other than its hall-
mark violation of discharging a union supporter also contribute
to the coercive and durable effects of its conduct. Thus, the
Respondent’s coercive interrogation of an applicant for a
plumber’s position regarding his feelings about unions and the
Respondent’s threat to discharge and discipline employees for
honoring a picket line are actions that the employees are likely
to remember.
The possibility of erasing the effects of the Respondent’s un-
fair labor practices by applying traditional remedies and con-
ducting a fair election is slight. In addition, a bargaining order
is necessary to protect the free expression of employee senti-
ment as evidenced by the authorization cards. Accordingly, a
bargaining order is warranted under category II of the Gissel
standard.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
threatening to discipline and discharge its employees for honor-
ing a picket line at its facility; by unlawfully photographing its
employees who were engaged in picketing; by threatening to
discharge employees if the Union were selected to represent its
plumbing employees; by unlawfully soliciting complaints from
its employees and changing the manner in which complaints are
handled during the Union’s organizing drive; by unlawfully
prohibiting the wearing of shirts with union insignia; and by
unlawfully interrogating a job applicant concerning his view-
point on unions.
4. The Respondent violated Section 8(a)(1) and (3) of the
Act by unlawfully refusing to hire and to consider for hire the
12 union applicants for the position of journeyman plumber.
5. The Respondent violated Section 8(a)(1) and (3) of the
Act by unlawfully discharging Wayne Rose.
6. The following employees of the Respondent constitute a
unit appropriate for bargaining within the meaning of Section
9(b) of the Act:
All full-time and regular part-time journeymen plumbers,
plumber apprentices, and plumber helpers engaged in the fab-
rication, installation, and service of plumbing equipment em-
ployed by Respondent at its facility located at 4040 E. Bristol
Road, Burton, Michigan; but excluding all office clerical em-
ployees, professional employees, guards and supervisors as
defined in the Act, and all employees currently included in the
bargaining unit represented by Sheet Metal Workers Interna-
tional Union, Local Union No. 7.
7. At all times since August 4, 2003, and continuing to the
present date, the Union has been the exclusive representative of
all the employees within the appropriate unit for purposes of
collective bargaining.
8. By engaging in the above-described violations of Section
8(a)(1) and (3), the Respondent has undermined the majority
strength of the Union and has impeded the election processes.
9. The unfair labor practices found herein are sufficiently
pervasive, and have the tendency to undermine the Union’s
majority strength and to impede the election processes, as to
warrant a remedial order requiring the Respondent to recognize
and bargain with the Union as the exclusive collective-
bargaining representative of the Respondent’s employees in the
above-described appropriate unit.
10. The unfair labor practices set forth above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, it must be ordered to cease and desist and to
take certain affirmative action designed to effectuate the poli-
cies of the Act.
Having found that the Respondent has engaged in substantial
and pervasive unfair labor practices calculated to destroy the
Union’s majority status, that traditional remedies for such un-
fair labor practices are unlikely to eliminate their lingering and
coercive effects, and that the chances of holding a fair election
are slight, I shall recommend that the Respondent be required to
recognize and bargain with the Union as the exclusive collec-
tive-bargaining representative of its employees in the appropri-
ate unit.
Having found that the Respondent unlawfully refused to hire
one of the applicants for the available journeyman plumber
position for which the Respondent advertised in the Flint Jour-
nal on August 17, 2003, it is ordered that the Respondent shall
offer one of the applicants, listed below, immediate employ-
ment in that position, and that such applicant be made whole
for any loss of earnings and other benefits suffered as a result
of the discrimination against him in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD752
puted in accordance with New Horizons for the Retarded, 283
NLRB 1173 (1987):
Maurice Cahill, Jermaine Connor, Gerald Cox, David
McDermitt, Michael Morris, Dennis Slattery, Jack Steco, Eric
Backlund, Michael Herriman, Scott Mobilio, William Wise,
and Chester Solarz.
Having found that the Respondent unlawfully discharged
Wayne Rose, I shall order that the Respondent offer him rein-
statement and make him whole for any loss of earnings and
other benefits in accordance with F. W. Woolworth Co., supra,
plus interest in accordance with New Horizons for the Re-
tarded, supra.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended15
ORDER
The Respondent, Center Construction Company, Inc. d/b/a
Center Service System Division, Burton, Michigan, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to consider for hire, and refusing to
hire, job applicants on the basis of their union affiliation or
other protected activities.
(b) Discharging or otherwise discriminating against any em-
ployee on the basis of the employee’s union affiliation or other
protected activity.
(c) Threatening to discipline or to discharge its employees
for honoring a picket line at its facility.
(d) Threatening to discharge its employees if its employees
select United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry of the United States and
Canada, AFL–CIO (the Union) to represent them.
(e) Photographing its employees who are engaged in pro-
tected activities.
(f) Soliciting complaints from its employees or changing the
manner in which complaints are handled while a union is con-
ducting an organization drive.
(g) Prohibiting its employees from wearing shirts with union
insignia.
(h) Interrogating applicants for employment concerning their
viewpoints on unions.
(i) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive rep-
resentative of the employees in the following appropriate unit
concerning terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a signed
agreement:

15 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
All full-time and regular part-time journeymen plumbers,
plumber apprentices, and plumber helpers engaged in the fab-
rication, installation, and service of plumbing equipment em-
ployed by Respondent at its facility located at 4040 E. Bristol
Road, Burton, Michigan; but excluding all office clerical em-
ployees, professional employees, guards and supervisors as
defined in the Act, and all employees currently included in the
bargaining unit represented by Sheet Metal Workers Interna-
tional Union, Local Union No. 7.
(b) Within 14 days from the date of this Order, the Respon-
dent shall offer immediate employment to one of the discrimi-
natees from the following list without prejudice to the discrimi-
natee’s seniority or any other rights or privileges he would have
enjoyed had the Respondent hired him when he applied. If the
position for which this discriminatee should have been hired no
longer exists, the Respondent shall offer him immediate em-
ployment in a substantially equivalent position without preju-
dice to his seniority or any other rights or privileges he would
have enjoyed had the Respondent hired him when he applied.
Maurice Cahill, Jermaine Connor, Gerald Cox, David
McDermitt, Michael Morris, Dennis Slattery, Jack Steco, Eric
Backlund, Michael Herriman, Scott Mobilio, William Wise,
and Chester Solarz.
(c) Make the selected discriminatee whole for any loss of
earnings and other benefits suffered as a result of the discrimi-
nation against him as set forth in the remedy section of this
decision.
(d) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful refusal to hire any of the
12 discriminatees set forth in paragraph (a) above, and within 3
days thereafter notify them in writing that this has been done
and that the refusal to hire them will not be used against them
in any way.
(e) Within 14 days from the date of this Order, offer Wayne
Rose full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(f) Make Wayne Rose whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the deci-
sion.
(g) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records 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.
(h) Within 14 days after service by the Region, post at its fa-
cility in Burton, Michigan copies of the attached notice marked
“Appendix.”16 Copies of the notice, on forms provided by the

16 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-
CENTER SERVICE SYSTEM DIVISION 753
Regional Director for Region 7, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since August 4, 2003.
(i) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.